ORDER
B.S. Patil, J.
1. In this writ petition, the petitioner has challenged the order dated 15.12.1998 passed by the Deputy Director of Public Instructions refusing to accord approval to the appointment of the petitioner as Drawing Teacher under the 6th respondent-Institution as affirmed in appeal by order dated 17.07.1999 passed by the Director of Public Instructions. Petitioner has also assailed the order dated 13.05.2002 passed by the Principal Secretary to Government (Primary and Secondary Education) rejecting the revision petition filed by him invoking the provisions under Section 131 of the Karnataka Education Act, 1983 (for short ‘the Act;)
2. The facts that are relevant for the purpose of disposal of this case can be set out as under.
Petitioner was appointed as Drawing Teacher under the 6th respondent – Institution on 28.07.1998 and a proposal was sent by the Institution for approval of his appointment. The Director of Public Instructions – respondent no.4 herein rejected the proposal on the ground that the post was reserved for Scheduled Caste and appointment of a candidate belonging to General Merit was impermissible. The authorities called upon the Institution to fill up the post by appointing a person belonging to Schedule Caste. Petitioner has produced the communication dated 22.06.1999 vide Annexure-E, issued by the Block Education Officer, Hubli, whereunder the 6th respondent was called upon to submit a proposal for approval of the appointment of one Sri. Hegappa Somappa Lamani who was appointed on 24.02.1999 in the place of the petitioner after the services of the petitioner were terminated on 18.02.1999. The petitioner approached the Appellate Authority namely the Director of Public Instructions by filing an appeal invoking the provisions of Section 130 of the Act. The Appellate Authority by order dated 17.07.1999 dismissed the appeal by a cryptic order holding that as the Institution has not maintained the roster separately for teaching and non-teaching posts the order passed by the Deputy .Director of Public Instructions could not be found fault with. Aggrieved by this order, petitioner filed a revision petition invoking the provisions of Section 131 of the Act before the State Government. The revision petition is also dismissed on 13.05.2002 holding that as per the report of the Deputy Director of Public Instructions dated 09.8.1999, the post in question was set apart and reserved for Scheduled Caste candidate and therefore the same had to be filled up by appointing the candidate belonging to Scheduled Caste and in view of the said report and for the reasons mentioned therein the grievance made by the petitioner could not be entertained. It is in this background the petitioner is before this Court assailing the validity and the correctness of the order dated 15.12.1998 passed by the Deputy Director of Public Instructions vide Annexure-B as affirmed by the Appellate and the Revisional Authorities and further seeking a direction to the respondent-authorities to reinstate the petitioner in service as Drawing Teacher and for a consequential direction to the respondent-authorities to approve his appointment as Drawing Teacher under the 6th respondent-Institution.
3. Learned counsel for the petitioner has contended that the post of Drawing Teacher to which the petitioner was appointed was a single cadre post and could not be reserved. It is his contention that such a reservation would tantamount to effecting 100% reservation which is impremissible as per the constitutional frame-work and as held by the catena of decisions of the Apex Court. In support of his contention, he has placed reliance on the judgment of this Court rendered in W.P. NO. 2898/1996 Disposed of on 06.07.1996 (2898/1996 Disposed of on 6-7-1996). Reliance is placed on the decision rendered by the Apex Court in the case of Post Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association and Ors. and in the case of Dr. Raj Kumar v. Gulbarga university .
4. Learned counsel for the 6th respondent-Institution drawing the attention of the Court to the affidavit filed on 27.09.2005 submits that there is a single post of Drawing Teacher in the 6th respondent-Institution and that the same cannot be reserved in favour of a reserved category as it would amount to 100% reservation. He further submits that the post in question was earlier filled up by a candidate belonging to General Merit and upon a vacancy having arisen it was rightly filled up by appointing a candidate belonging to General Merit. As the appointment was made in accordance with law and as per the staff patron provided in grand-in-aid the respondent-authorities ought to have approved the appointment of the petitioner is what is contended.
5. Learned Government Pleader appearing for the respondent-authorities submits that as the post in question was required to be filled up by appointing a candidate belonging to Scheduled Caste and as the said requirement was violated the authorities have rightly refused to approve the appointment of the petitioner. He has further submitted that the Government Order issued on 7.8.1998 directing the authorities not to reserve posts in favour of reserve category in a single cadre does not have retrospective effect and therefore the Institution cannot take advantage of the same as the selection process in the instant case was completed prior to 7.8.1998.
6. Having heard the learned Counsel appearing for the parties, the only point that arises for consideration is:
Whether the orders under challenge refusing approval of the appointment of the petitioner on the ground that the post was reserved for Scheduled Caste and Scheduled Tribe is tenable is law?
7. It is not in dispute that the post of Drawing Teacher in the respondent-Institution is a single post. It is well established by now that a single post in a cadre cannot be reserved to S.C., S.T. or Other Backward Classes as otherwise it will amount to enforcing 100% reservation in the services. The Apex Court in the case of Postgraduate Institute of Medical Education and Research, Chandigarh v. Faculty Association and Ors. (Supra) dealing with similar question has held as under:
In a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such single post in the cadre will be kept reserved exclusively for the members of the back ward classes and in total exclusion of the general members of the public and cent per cent reservation for the backward classes is not permissible within the constitutional frame-work. Hence, until there is plurality of posts in a cadre, the question of reservation will not arise because any attempt of reservation by whatever means and even with device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented.
8. Having regard to the enunciation of law by the Apex Court and in view of the undisputed facts as emerged from the pleadings and the records made available, it has to be held that the action of the respondents in refusing to approve the appointment of the petitioner on the ground that the post was reserved for Scheduled Caste candidate is illegal. The contention urged by the Government Pleader stating that the Government Order prohibiting reservation in the single cadre post is applicable prospectively with effect from the year 1998 is misconceived in that the prohibition for reservation in respect of single cadre post emerges from the constitutional frame-work and what the Government order did was only to implement the same. Therefore, the contention urged is untenable in law.
9. It is not in dispute that after the petitioner was terminated from his service on 18.2.1999, one Sri. Hegappa Somappa Lamani came to be appointed as Drawing Teacher. It is also to be noticed that the Block Education Officer directed the management to submit a proposal for approval of the appointment of the said Sri. Lamani as per Annexure-E and accordingly the proposal was submitted and his appointment was approved. It also transpires that the said Sri. Lamani has since been appointed elsewhere and has tendered resignation to the said post on 12.9.2005. Thus, the post in which the petitioner was appointed earlier as Drawing Teacher continues to be vacant since 12.9.2005.
10. In view of the above, the only direction that can be issued is to direct the respondent-authorities to consider the case of the petitioner for approval as Drawing Teacher under the 6th respondent pursuant to his appointment made as per order dated 28.7.1998 and pass appropriate orders thereon. In so far as the claim for grant of consequential benefits with effect from the date of his appointment is concerned, it has to be stated that the petitioner cannot be allowed the benefit of back wages as the 6th respondent-Institution under the direction of the authorities of the Department had appointed one Sri. Lamani in the post in question and the said Sri. Lamani had discharged his duties till 12.9.2005. The post in question having been admitted to grant-in-aid, the said Sri. Lamani was paid the pay and allowances admissible to the post till he ceased to be in employment. If the petitioner is allowed the back wages then the Government will be made to bear the financial burden twice by paying salary to two persons in respect of the same post, which will be a burden to the Exchequer and which is not in the interest of public. However, the petitioner cannot be denied other consequential benefits including continuity of services consequent upon the approval of his appointment to be made by the Competent Authority. In this view of the matter, I pass the following:
ORDER
Writ petition is allowed in part. Impugned orders passed by the Deputy Director of Public Instructions respondent No. 4 herein vide Annexure-B as affirmed in appeal vide Annexure-F and the order dated 13.5.2002 passed by the 1st respondent vide Annexure-G are set aside. The petitioner is held entitled for reinstatement. A direction is issued to the respondent authorities to consider the claim of the petitioner for approval of his appointment as Drawing Teacher under the 6th respondent with effect from the date of his appointment i.e. 28.7.1998. The petitioner shall be entitled for all consequential benefits except payment of back wages. Compliance within a period of eight weeks from the date of receipt of a copy of this order.
Ordered accordingly. No costs.