Karnataka High Court
Dharmarathnakara Rai Bahaddur vs The State Of Karnataka on 30 March, 2021
Author: R Devdas
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MARCH, 2021
BEFORE
THE HON' BLE MR.JUSTICE R. DEVDAS
WRIT PETITION NO.33101 OF 2014(S-RES)
C/W
WRIT PETITION NO.29556/2012 (S-RES),
32143/2014 (EDN-GIA), 33099/2014 (S-TR),
33539/2011 (S-RES), 33673/2011 (S-RES),
33866/2011(S-RES), 36358/2012(EDN-RES),
40421/2011 (EDN-RES), 40934/2015 (S-RES),
41425/2011(S-RES), 44426/2012 (S-RES),
57227/2014 (S-RES)
IN W.P. NO.33101/2014
BETWEEN
1. DHARMARATHNAKARA RAI BAHADDUR
ARCOT NARRAINSWAMY MUDALIAR
EDUCATIONAL CHARITIES
NO.24, GANGADHAR CHETTY ROAD
BANGALORE-560042
BY ITS SECRETARY
2. SMT. K SUMATHI M.SC, B.ED.,
W/O SRI N GUNASEKARAN
AGED ABOUT 45 YEARS
WORKING AS ASSISTANT MISTRESS
(PCM), R.B.A.N.M'S (BIFURCATED)
-2-
HIGH SCHOOL, GANGADHAR CHETTY
ROAD, BANGALORE-560042
RESIDING AT NO.C5, 2ND FLOOR
VICTORIA VILLA
ALEXANDER STREET
RICHMOND TOWN
BANGALORE-560025
...PETITIONERS
(BY SRI M S PARTHASARATHI, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY ITS SECRETARY TO
GOVERNMENT
PRIMARY AND SECONDARY
EDUCATION, M S BUILDING
DR AMBEDKAR VEEDHI
BANGALORE-560001
2. THE COMMISSIONER FOR PUBLIC
INSTRUCTIONS
PRIMARY & SECONDARY EDUCATION
NEW PUBLIC OFFICES
NRUPATHUNGA ROAD
BANGALORE-560001
3. THE DIRECTOR OF PUBLIC
INSTRUCTIONS
SECONDARY EDUCATION
NEW PUBLIC OFFICES
NRUPATHUNGA ROAD
BANGALORE-560001
4. THE DEPUTY DIRECTOR OF PUBLIC
INSTRUCTIONS
BANGALORE NORTH DISTRICT
K G ROAD
BANGALORE-560002
-3-
5. THE BLOCK EDUCATION OFFICER
NORTH RANGE-3
KAMARAJ ROAD
BANGALORE-560042
6. THE SECRETARY
K.T.S.V. HIGH SCHOOL
NORTH RANGE-1
RAJAJINAGAR
BANGALORE-560010
...RESPONDENTS
(BY SRI SUBRAMANYA, AAG A/W
SMT SHARADHAMBA, AGA FOR R1 TO R5
SRI J ARAVIND BABU, ADVOCATE FOR R6)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH RULE 11(6) OF THE
KARNATAKA EDUCATION INSTITUTIONS [RECRUITMENT AND
TERMS & CONDITIONS OF SERVICES OF EMPLOYEES IN PRIVATE
AIDED PRIMARY AND SECONDARY EDUCATIONAL INSTITUTIONS]
RULES 1999 AS AT ANNEXURE-F AS ILLEGAL AND
UNCONSTITUTIONAL AND ETC.
IN W.P. NO.29556/2012
BETWEEN
1. MILLATH EDUCATION TRUST
OFFICE OF THE NATIONAL HIGH SCHOOL,
PARK ROAD,
HASSAN-573201.
BY ITS SECRETARY.573201
2. SRI NAVEED HUSSAIN
S/O SRI MD JAFFAR
AGED ABOUT 58 YEARS,
HEAD MASTER
NATIONAL HIGH SCHOOL,
PARK ROAD,
HASSAN-573201.
3. SRI K V CHANDRASHEKAR,
S/O LATE WADIYAPPA GOWDA
AGED ABOUT 54 YEARS,
ASSISTANT MASTER
NATIONAL HIGH SCHOOL
PARK ROAD,
HASSAN-573201.
4. SRI HYDER
S/O SRI IBRAHIM BERI
AGED ABOUT 50 YEARS,
ASSISTANT MASTER
NATIONAL HIGH SCHOOL
PARK ROAD,
HASSAN-573201.
5. SRI MD IBRAHIM
S/O SRI M D HAYATH
AGED ABOUT 55 YEARS,
ASSISTANT MASTER
NATIONAL HIGH SCHOOL
PARK ROAD,
HASSAN-573201.
6. SRI MD IQBAL
S/O SRI ABDUL RASHEED
AGED ABOUT 47 YEARS,
ASSISTANT MASTER
NATIONAL HIGH SCHOOL
PARK ROAD,
HASSAN-573201.
7. SRI A M RAMESH
S/O SRI MYLARAPPA
AGED ABOUT 47 YEARS,
ASSISTANT MASTER
NATIONAL HIGH SCHOOL
PARK ROAD,
HASSAN-573201.
8. SRI SADIK PASHA
S/O SRI MD GHOUSE
AGED ABOUT 50 YEARS,
ASSISTANT MASTER
NATIONAL HIGH SCHOOL
PARK ROAD,
HASSAN-573201.
9. SRI SHAIK AHMED
S/O SRI MD YOUSUF
AGED ABOUT 60 YEARS,
ASSISTANT MASTER
NATIONAL HIGH SCHOOL
PARK ROAD,
HASSAN-573201.
10. SRI SHOUKAT ALI KHAN
S/O SRI ABDUL RASHEED KHAN
AGED ABOUT 47 YEARS,
ASSISTANT MASTER
NATIONAL HIGH SCHOOL
PARK ROAD,
HASSAN-573201.
11. SRI AMJAD PASHA
S/O SRI SAB JAAN SAB
AGED ABOUT 49 YEARS,
ASSISTANT MASTER
NATIONAL HIGH SCHOOL
PARK ROAD,
HASSAN-573201.
...PETITIONERS
(BY SRI M P SRIKANTH & M S PARTHSARATHI, ADVOCATES)
AND
1. THE STATE OF KARNATAKA
BY ITS SECRETARY TO GOVERNMENT
PRIMARY AND SECONDARY EDUCATION,
M.S.BUILDING,
DR.AMBEDKAR VEEDHI,
BANGALORE-560001.
2. THE COMMISSIONER FOR PUBLIC
INSTRUCTIONS,
PRIMARY AND SECONDARY EDUCATION,
NEW PUBLIC OFFICES,
NRUPATHUNGA ROAD,
BANGALORE-560001.
3. THE DIRECTOR OF PUBLIC INSTRUCTIONS
SECONDARY EDUCATION,
NEW PUBLIC OFFICES,
NRUPATHUNGA ROAD,
BANGALORE-560001.
4. THE DEPUTY DIRECTOR OF
PUBLIC INSTRUCTIONS
HASSAN DISTRICT,
HASSAN 573201.
5. THE BLOCK EDUCATION OFFICER
HASSAN TALUK,
HASSAN DISTRICT 573201.
...RESPONDENTS
(BY SRI A SUBRAMANYA, AAG FOR
SMT SHARADHAMBHA, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
KARNATAKA EDUCATIONAL INSITITUTIONS [RECRUITMENT &
TERMS & CONDITIONS OF SERVICES OF EMPLOYEES IN PRIVATE
AIDED PRIMARY & SECONDARY EDUCATIONAL INSTITUTIONS]
RULES 1999, AT ANNEXURE-L AND ETC.
IN W.P. NO.32143/2014
BETWEEN
NRUPATHUNGA EDUCATION
SOCIETY (R),
35TH CROSS, MADIDEVARU MANSION,
SIT EXTENSION,
TUMKUR-572 102,
BY ITS SECRETARY.
...PETITIONER
(BY SRI M P SRIKANTH & M S PARTHASARATHI, ADVOCATES)
AND
1. THE STATE OF KARNATAKA
BY ITS SECRETARY TO THE GOVERNMENT,
(PRIMARY AND SECONDARY EDUCATION),
M.S.BUILDING, DR. AMBEDKAR VEEDHI,
BANGALORE-560 001.
2. THE COMMISSIONER FOR PUBLIC INSTRUCTIONS,
PRIMARY AND SECONDARY EDUCATION,
NEW PUBLIC OFFICES,
NRUPATHUNGA ROAD, K.R.CIRCLE,
BANGALORE-560 001.
3. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
SECONDARY EDUCATION,
NEW PUBLIC OFFICES,
NRUPATHUNGA ROAD, K.R.CIRCLE,
BANGALORE-560 001.
4. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS
TUMKUR SOUTH DISTRICT,
RADAKRISHNAN ROAD,
TUMKUR-572 102.
5. THE BLOCK EDUCATION OFFICER,
TUMKUR TALUK,
OLD MIDDLE SCHOOL COMPOUND,
OPPOSITE TOWN POLICE STATION,
TUMKUR-572 101.
6. SRI D.P.PANCHAKSHARAYYA
HEAD MASTER,
NRUPATHUNGA HIGH SCHOOL,
TUMKUR-572 102.
PRESENTLY WORKING AS HEAD MASTER,
SMVP HIGH SCHOOL,
B GOWDANAKATTE,
TIPTUR TALUK,
TUMKUR DISTRICT.
7. SRI H.M.PRAKASH MURTHY,
ASSISTANT TEACHER (CBZ),
NRUPATHUNGA HIGH SCHOOL,
SIT EXTENSION,
TUMKUR-572 102.
RESIDING AT
C/O.JAGADEESHAIAH,
4TH 'B' CROSS,
OPPOSITE PATIL PUTTAPPA PARK,
MARUTHINAGAR,
TUMKUR-572 102.
8. SMT. M.S AMRUTHA,
ASSISTANT TEACHER (PCM),
NRUPATHUNGA HIGH SCHOOL,
SIT EXTENSION,
TUMKUR-572 102.
PRESENTLY WORKING AS ASSISTANT TEACHER (PCM),
NOLAMBA HIGH SCHOOL,
K.B.CROSS, TIPTUR TALUK,
TUMKUR DISTRICT.
9. SRI D.S. VEERABHADRAPPA,
ASSISTANT TEACHER (ARTS),
NRUPATHUNGA HIGH SCHOOL,
SIT EXTENSION,
TUMKUR-572 102.
RESIDING AT
'SRIDEVI NILAYA' 6TH CROSS,
SHIVAMOOKAMBIKA NAGAR,
TUMKUR-572 102.
10 . SRI S.D. NAGARAJU,
PHYSICAL EDUCATION TEACHER,
GRADE-2,
NRUPATHUNGA HIGH SCHOOL,
SIT EXTENSION,
TUMKUR-572 102.
PRESENTLY WORKING AS
PHYSICAL EDUCATION TEACHER GRADE-2,
NOLAMBA HIGH SCHOOL,
K.B.CROSS,
TIPTUR TALUK,
TUMKUR DISTRICT.
11 . SRI S.R.NATESH,
ASSISTANT TEACHER (ARTS)
NRUPATHUNGA HIGH SCHOOL,
SIT EXTENSION,
TUMKUR-572 102.
RESIDING AT
1ST MAIN ROAD, 3RD CROSS,
NRUPATHUNGA LAYOUT,
TUMKUR-572 102.
12 . SRI B.M.GANGADHAR,
ASSISTANT TEACHER (ARTS)
NRUPATHUNGA HIGH SCHOOL,
SIT EXTENSION,
TUMKUR-572 102.
RESIDING AT
'UJJINI SIDDESHWARA',
3RD MAIN, NRUPATHUNGA LAYOUT,
TUMKUR-572 102.
13 . SRI K.C. MANJULA,
CRAFT TEACHER (DRAWING)
NRUPATHUNGA HIGH SCHOOL,
SIT EXTENSION,
TUMKUR-572 102.
RESIDING AT
W/O.MOHAMMAD AYAZ,
MAE BUILDING,
TPK ROAD,
NEXT TO AMBIKA BAKERY,
SAPTHAGIRI LAYOUT,
TUMKUR-572 102.
...RESPONDENTS
(BY SRI R SUBRAMANYA, AAG FOR
SMT SHARADAMBHA, AGA FOR R1 TO R5
SRI D R RAJASHEKHARAPPA, ADVOCATE FOR R6 TO R13)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO HOLD & DECLARE
THE PROVISIONS OF RULE 11(6) OF THE KARNATAKA
EDUCATIONAL INSTITUTIONS [RECRUITMENT & TERMS &
CONDITIONS OF SERVICES OF EMPLOYEES IN PRIVATE AIDED
PRIMARY & SECONDARY EDUCATIONAL INSTITUTIONS] RULES
1999 AT ANNEXURE-S AS UNCONSTITUTIONAL AND ETC.
IN W.P. NO.33099/2014
BETWEEN
1. DHARMARATHNAKARA
RAI BAHADDUR ARCOT
NARRAINSWAMY MUDALIAR
EDUCATIONAL CHARITIES,
NO.24, GANGADHAR CHETTY ROAD,
BANGALORE-560042.
BY ITS SECRETARY.
2. SRI T S VENUGOPAL P.M.E.
S/O.SRI.T.K.SUBBEGOWDA,
AGED ABOUT 44 YEARS,
WORKING AS ASSISTANT MASTER,
R.B.A.N.M"S (MAIN) HIGH SCHOOL,
GANGADHAR CHETTY ROAD,
BANGALORE-560042.
R/AT FLAT NO.109, "A" BLOCK,
KRISHNAGEET SHELTERS,
PAI LAYOUT, 1ST MAIN,
16TH "E" CROSS,
BANGALORE.
...PETITIONERS
(BY SRI M P SRIKANTH & M S PARTHASARATHI, ADVOCATES)
AND
1. THE STATE OF KARNATAKA
BY ITS SECRETARY TO GOVERNMENT
PRIMARY AND SECONDARY EDUCATION,
M.S.BUILDING,
DR.AMBEDKAR VEEDHI,
BANGALORE-560001.
2. THE COMMISSINER FOR PUBLIC INSTRUCTIONS
PRIMARY & SECONDARY EDUCATION,
NEW PUBLIC OFFICES,
NRUPATHUNGA ROAD,
BANGALORE-560001.
3. THE DIRECTOR OF PUBLIC INSTRUCTIONS
SECONDARY EDUCATION,
NEW PUBLIC OFFICES,
NRUPATHUNGA ROAD,
BANGALORE-560001.
4. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS
BANGALORE NORTH DISTRICT,
K.G.ROAD,
BANGALORE-560002.
5. THE BLOCK EDUCATION OFFICER
NORTH RANGE-3,
KAMARAJ ROAD,
BANGALORE-560042.
6. THE SECRETARY
ANNAPORRNA HIGH SCHOOL,
LAKSHMIPURA CROSS,
NORTH RANGE-4,
BANGALORE-560042.
...RESPONDENTS
(BY SRI R SUBRAMANYA, AAG FOR
SMT SHARADAMBHA, AGA FOR R1 TO R5
SRI J ARAVIND BABU, ADVOCATE FOR R6)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH RULE 11(6) OF THE
KARNATAKA EDUCATIONAL INSTITUTIONS (RECRUITMENT AND
TERMS AND CONDITIONS OF SERVICES OF EMPLOYEES IN
PRIVATE AIDED PRIMARY AND SECONDARY EDUCATIONAL
INSTITUTIONS) RULES, 1999 AS AT ANNEXURE-F IN SO FAR AS
ENABLING THE TRANSFER OF TEACHERS FROM MINORITY
EDUCATIONAL INSTITUTIONS WITHOUT THE CONSENT OF SUCH
MANAGEMENTS OR OTHERWISE AS ILLEGAL AND
UNCONSTITUTIONAL AND ETC.
IN W.P.NO.33539/2011
BETWEEN
SRI TARALABALU JAGADGURU EDUCATION SOCIETY
SIRIGERE-577541
CHTIRADRUGA DISTRICTREP
BY ITS ADMINISTRATIVE OFFICER
SRI S B RANGANATH
...PETITIONER
(BY SRI ASHOK G V, ADVOCATE FOR
SRI G K V MURTHY, ADVOCATE)
AND
1. STATE OF KARNATAKA
REP BY ITS SECRETARY,
DEPARTMENT OF PRIMARY &
SECONDARY EDUCATION,
M S BUILDING
DR AMBEDKAR ROAD
BANGALORE-560001
2. THE COMMISSIONER OF PUBLIC INSTRUCTION
NEW PUBLIC OFFICES
NRUPATUNGA ROAD
BANGALORE-560001
3. THE DIRECTOR OF PUBLIC INSTRUCTION
(SECONDARY EDUCATION),
DEPARTMENT OF PUBLIC INSTRUCTION,
NRUPATUNGA ROAD
BANGALORE-560001
4. THE DIRECTOR OF PUBLIC INSTRUCTION
OFFICE OF THE ADDITIONAL COMMISSIONER
OF PUBLIC INSTRUCTION
DHARWAD
5. THE DIRECTOR OF PUBLIC INSTRUCTION
OFFICE OF THE ADDITIONAL COMMISSIONER
OF PUBLIC INSTRUCTION
GULBARGA
6. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTION
DAVANAGERE DISTRICT
DAVANAGERE
7. THE BLOCK EDUCATION OFFICER
DAVANAGERE (S)
DAVANAGERE
8. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTION
HASSAN DISTRICT
HASSAN
9. THE BLOCK EDUCATION OFFICER
BELUR TALUK
BELUR, HASSAN DISTRICT
10 . SRI SURESH G S
ASSISTANT MASTER
SRI DURGAMBIKA COMPOSITE
HIGH SCHOOL
DAVANAGERE
11 . SRI S PANDU MURTHY
ASSISTANT MASTER
SWAMI VIVEKANANDA HIGH SCHOOL
VANAGURU, SAKALESHAPURA TALUK
HASSAN DISTRICT
...RESPONDENTS
(BY SRI R SUBRAMANYA, AAG FOR
SMT SHARADAMBHA, AGA FOR R1 TO R9
SRI VENKATESH R BHAGAT, ADVOCATE FOR R11)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO STRIKE DOWN SUB-
SECTIONS (2) AND (3) OF SECTION 98 OF THE KARNATAKA
EDUCATION ACT, 1983 AND RULE 11 OF THE KARNATAKA
EDUCATIONAL INSTITUTIONS [RECRUITMENT AND TERMS OF
CONDITIONS OF SERVICE OF EMPLOYEES IN PRIVATE AIDED
PRIMARY AND SECONDARY EDUCATIONAL INSTITUTIONS] RULES,
1999 BY HOLDING THEM AS ULTRA-VIRES THE CONSTITUTION OF
INDIA, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.
IN W.P. NO.33673/2011
BETWEEN
SRI NARASIMHASWAMY VIDYA SAMSTHE (R)
MADENAHALLI, MADUGIRI TALUK
TUMKUR DISTRICT,
BY ITS SECRETARY
SRI.C.BHANUPRAKASH
S/O LATE K.CHIKKAHANUMANTHAIAH,
AGED ABOUT 40 YEARS,
R/O S.P.MAKHAN, SIDDAGANGA EXTENSION
KEB ROAD, TUMKUR.
...PETITIONER
(BY SRI M V HIREMATH, ADVOCATE)
AND
1. THE SECRETARY II
GOVT OF KARNATAKA
DEPARTMENT OF CO-OPERATIVE
M.S.BUILDINGS, BANGALORE
2. THE DIRECTOR OF SECONDARY EDUCATION
OFFICE OF THE DEPARTMENT OF PUBLIC
INSTRUCTIONS, NRUPATHUNGA ROAD
BANGALORE
3. THE DEPUTY DIRECTOR
DEPT OF PUBLIC INSTRUCTIONS
(ADMINISTRATION)MADHUGIRI,
TUMKUR DISTRICT
4. SMT N.KALPANA
GANGADHARESHWARA PU COLLEGE
(HIGH SCHOOL) DIVISION,
THOVINAKERE,
KORATAGERE TALUK
TUMKUR DISTRICT
...RESPONDENTS
(BY SRI R SUBRAMANYA, AAG FOR
SMT SHARADAMBHA, AGA FOR R1 TO R3
SRI S R DESHPANDE, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DT 19.8.11 ISSUED BY R3 VIDE ANNEXURE-E BY ISSUE OF WRIT
IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT OR
DIRECTION AS THE CASE MAY BE AND ETC.
IN W.P. NO.33866/2011
BETWEEN
SMT. A.N. JAYALAKSHMAMMA,
W/O SRI. C.K. VENKATESH,
AGED ABOUT 54 YEARS,
HEAD MISTRESS,
SRI. MANJUNATHA RURAL HIGH SCHOOL,
KARADALU, NELLIKERE POST,
TIPTUR TALUK, TUMKUR DISTRICT.
R/AT SRINIVASA NILAYA, CART STREET,
CHIKKANAYAKANAHALLI.
...PETITIONER
(BY SRI M P SRIKANTH & M S PARTHASARATHI, ADVOCATES)
AND
1. STATE OF KARNATAKA,
BY ITS SECRETARY TO GOVERNMENT
PRIMARY AND SECONDARY EDUCATION,
M.S. BUILDING, DR. AMBEDKAR VEEDHI,
BANGLAORE 560001.
2. THE COMMISSIONER FOR PUBLIC INSTRUCTIONS,
PRIMARY AND SECONDARY EDUCATION,
NEW PUBLIC OFFICES,
NRUPATHUNGA ROAD,
BANGLAORE 560001.
3. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
SECONDARY EDUCATION,
NEW PUBLIC OFFICES,
NRUPATHUNGA ROAD,
BANGALORE 560001.
4. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS,
TUMKUR SOUTH DISTRICT,
TUMKUR.
5. THE BLOCK EDUCATION OFFICER,
TIPTUR TALUK,TUMKUR DISTRICT.
6. BELLAKATTE SAMSTHANA SRIMATHADA
VIDYA SAMSTHE @
TIPTUR SIDLEHALLI MAHASAMSTHANA
SRIMATHA SRI. VEERASHAIVA
GURUKULANANDASHRAMA, TIPTUR
TUMKUR DISTRICT.
7. SRI. K.T. HUCHAIAH,
HEAD MASTER,
SRI. SHANKARESHWARA HIGH SCHOOL,
PURADAKATTE,
CHIKKANAYAKANAHALLI TALUK.
...RESPONDENTS
(BY SRI R SUBRAMANYA, AAG FOR
SMT SHARADAMBHA, AGA FOR R1 TO R5
SRI B G VIJAYAKUMAR SWAMY, ADVOCATE FOR R7)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DTD.19.8.11 PASSED IN FAVOUR OF THE R7 BY
THE R4 VIDE ANNEXURE-D AND ETC.
IN W.P. NO.36358/2012
BETWEEN
SRI NARASIMHASWAMY VIDYA SAMSTHE (R)
MADENAHALLI, MADUGIRI TALUK
TUMKUR DISTRICT
BY ITS SECRETARY
SRI C BHANUPRAKASH
S/O LATE K CHIKKAHANUMANTHAIAH
AGED ABOUT 41 YEARS
R/O S P MAKHAN
SIDDAGANGA EXTN
KEB ROAD TUDMKUR.
...PETITIONER
(BY SRI M V HIREMATH, ADVOCATE)
AND
1. THE SECRETARY II
GOVT OF KARNATAKA
DEPARTMENT OF EDUCATION
M S BUILDINGS
BANGALORE-560001
2. THE DIRECTOR OF SECONDARY EDUCATION
OFFICE OF THE DEPARTMENT OF PUBLIC INSTRUCTIONS
NRUPATHUNGA ROAD
BANGALORE-560001
3. THE DEPUTY DIRECTOR
DEPT OF PUBLIC INSTRUCTION (ADMINISTRATION)
MADHUGIRI
TUMKUR DISTRICT-572132
4. SRI KALINGA KRISHNA
AGED MAJOR
ASSISTANT SCIENCE TEACHER
R V P HIGH SCHOOL
Y N HOSAKOTE
PAVAGAD TALUK
TUMKUR DISTRICT-561202
...RESPONDENTS
(BY SRI R SUBRAMANYA, AAG FOR
SMT SHARADHAMBA, AGA FOR R1 TO R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 4.9.12 ISSUED BY R3 VIDE ANNEXURE-E AND ETC.
IN W.P.NO.40421/2011
BETWEEN
SRI JAYAPRAKASH NARAYAN
EDUCATION SOCIETY (R)
NERLAGUNTE, CHITRADURGA DISTRICT,
REP BY ITS SECRETARY, ASHOK T
...PETITIONER
(BY SMT ARCHANA P MURTHY, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
REP BY TIS SECRETARY
DEPARTMENT OF PRIMARY AND
SECONDARY EDUCATION, M S BUILDING,
DR AMBEDKAR ROAD
BANGALORE 1
2. THE COMMISSIONER OF PUBLIC INSTRUCTION,
NEW PUBLIC OFFICES,
NRUPATHUNGA ROAD
BANGALORE 1
3. THE DIRECTOR OF PUBLIC INSTRUCTION
(SECONDARY EDUCATION) OF PUBLIC INSTRUCTIONS,
NRUPATUNGA ROAD,
BANGALORE 01
4. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTION
DAVANGERE DISTRICT
DAVANGERE
5. THE BLOCK EDUCATION OFFICER,
JAGALUR TALUK
DAVANGERE
6. SRI T KRISHNAPPA
MAHARANI GIRLS HIGH SCHOOL
NITTUVALLI
DAVANAGERE
...RESPONDENTS
(BY SRI R SUBRAMANYA, AAG FOR
SMT SHARADHAMBA, AGA FOR R1 TO R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO STRIKE DOWN SUB
SEC(2) & (3) OF SEC 98 OF THE KARNATAKA EDUCATION ACT
1983 AND RULE 11 OF THE KARNATAKA EDUCATIONAL
INSTITUTIONS (RECRUITMENT AND TERMS AND CONDITIONS OF
SERVICE OF EMPLOYEES IN PRIVATE AIDED PRIMARY AND
SECONDARY EDUCATIONAL INSITUTIONS) RULES 1999 BY
HOLDING THEM AS ULTRAVIRES THE CONSTITUTION OF INDIA IN
SO FAR AS THE PETITIONER IS CONCERNED AND ETC.
IN W.P. NO. 40934/2015
BETWEEN
1. SRI SHIVAYOGI MUNESHWARASWAMY VIDYA PEETA
SRI MARALA SIR MARALEGAVI MUTT
KANAKAPURA TALUK
RAMANAGAR DISTRICT 562 117
REPRESENTED BY ITS PRESIDENT
SRI MUMMADI SHIVARUDRA SWAMIGALU
AGED ABOUT 42 YEARS
SRI MARALA SRI MARALEGAVI MUTT
KANAKAPURA TALUK
RAMANAGAR DISTRICT 562 117
2. SRI H K UMESH
S/O SRI KEMPANNA
AGED ABOUT 35 YEARS
WORKING AS ASSISTANT MASTER
SSMSR HIGH SCHOOL
SRI MARALA SRI MARALEGAVI MUTT
KANAKAPURA TALUK
RAMANAGAR DISTRICT 562 117
...PETITIONERS
(BY SRI M S PARTHASARATHI, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY ITS SECRETARY TO GOVERNMENT
PRIMARY AND SECONDARY EDUCATION
M S BUILDING
DR AMBEDKAR VEEDHI
BANGALORE 560 001
2. THE COMMISSIONER FOR PUBLIC INSTRUCTIONS
PRIMARY & SECONDARY EDUCATION
NEW PUBLIC OFFICES
NRUPATHUNGA ROAD
K R CIRCLE
BANGALORE 560 001
3. THE DIRECTOR OF PUBLIC INSTRUCTIONS
SECONDARY EDUCATION
NEW PUBLIC OFFICES
NRUPATHUNGA ROAD
K R CIRCLE
BANGALORE 560001
4. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS
RAMANAGAR 571511.
5. THE BLOCK ECUCATION OFFICER
KANAKAPURA TALUK
RAMANAGAR DISTRICT
6. SMT H PANKAJA
ASSISTANT MISTRESS
SRI SWAMY VIVEKANANDA RURAL HIGH SCHOOL
MOTAGANAHALLI
MAGADI TALUK
RAMANAGAR DISTRICT 562120.
...RESPONDENTS
(BY SRI SUBRAMANYA, AAG A/W
SMT SHARADHAMBA, AGA FOR R1 TO R4
R5 SERVED,
NOTICE TO R6 IS DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE SECTION
98(2) OF THE KARNATAKA EDUCATION ACT, 1983 VIDE
ANNEXURE-J1 AS UNCONSTITUTIONAL AND ETC.
IN W.P. NO.41425/2011
BETWEEN
1. DHARMARATHNAKARA RAI BAHADDUR ARCOT
NARRAINSWAMY MUDALIAR
EDUCATIONAL CHARITIES,
NO.24, GANGADHAR CHETTY ROAD,
BANGALORE 560042,
BY ITS SECRETARY.
2. SMT S KALAVATHI
W/O SRI T UDAY KUMAR,
AGED ABOUT 48 YERS,
ASSISTANT MISTREESS
R.B.A.N.M.S. CANTONMENT
THIRUKULATHAR SCHOOL,
BANGALORE 560042,
R/AT NO.26/1, F STREET,
JAYARAJNAGAR,
HALASUR, BANGALORE 560008
...PETITIONERS
(BY SRI M P SRIKANTH & M S PARTHASARATHI, ADVOCATES)
AND
1. THE STATE OF KARNATAKA
BY ITS SECRETARY TO GOVERNMENT
PRIMARY AND SECONDARY EDUCATION,
M.S.BUILDING,
DR.AMBEDKAR VEEDHI,
BANGALORE 560001
2. THE COMMISIONER FOR PUBLIC INSTRUCTIONS
PRIMARY & SECONDARY EDUCATION,
NEW PUBLIC OFFICES,
NRUPATHUNGA ROAD,
BANGALORE 560001
3. THE DIRECTOR OF PUBLIC INSTRUCTIONS
PRIMARY & SECONDARY EDUCATION,
NEW PUBLIC OFFICES,
NRUPATHUNGA ROAD,
BANGALORE 560001
4. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS
BANGALORE NORTH DISTRICT,
K.G.ROAD,
BANGALORE 560002
5. THE BLOCK EDUCATION OFFICER
NORTH RANGE-3,
KAMARAJ ROAD,
BANGALORE 560 042
...RESPONDENTS
(BY SRI R SUBRAMANYA, AAG FOR
SMT SHARAMADHAMBA, AGA FOR R1 TO R5)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH RULE 11(6) OF THE
KARNATAKA EDUCATIONAL INSTITUTIONS (RECRUITMENT AND
TERMS AND CONDITIONS OF SERVICES OF EMPLOYEES IN
PRIVATE AIDED PRIMARY AND SECONDARY EDUCATIONAL
INSTITUTIONS) RULES, 1999 IN SO FAR AS ENABLING THE
TRANSFER OF TEACHERS FROM MINORITY EDUCATIONAL
INSTITUTIONS WITHOUT THE CONSENT OF SUCH MANAGEMENTS
OR OTHERWISE AS ILLEGAL AND UNCONSTITUTIONAL VIDE
ANNEXURE-J AND ETC.
IN W.P. NO.44426/2012
BETWEEN
SRI TARALABALU JAGADGURU
EDUCATION SOCIETY
SIRIGERE-577541
CHITRADURGA DISTRICT
REPRESENTED BY ITS ADMINISTRATIVE OFFICER
SRI S B RANGANATH
...PETITIONER
(BY SRI ASHOK GV, ADVOCATE FOR
SRI G K V MURTHY, ADVOCATE)
AND
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF PRIMARY AND SECONDARY EDUCATION
M S BUILDING, DR AMBEDKAR ROAD,
BANGALORE-560001
2. THE COMMISSIONER OF PUBLIC INSTRUCTION
NEW PUBLIC OFFICES
NURPATUNGA ROAD
BANGALORE-560001
3. THE DIRECTOR OF PUBLIC INSTRUCTION
(SECONDARY EDUCATION)
DEPARTMENT OF PUBLIC INSTRUCTION
NRUPATUNGA ROAD
BANGALORE-560001
4. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTION
(ADMINISTRATION)
DEPARTMENT OF PUBLIC INSTRUCTION
HASSN DISTRICT
HASSAN 573201.
5. MR K S PRAKASH
AGED MAJOR
CRAFT TEACHER(HORTICULTURE)
SRI RAJIV GANDHI MEMORIAL HIGH SCHOOL
RUDRANAHALLI GATE
ARASIKERE TALUK
HASSAN DISTRICT 573103.
6. MR K V RAMACHANDRA
AGED MAJOR
ASSISTANT TEACHER(HINDI)
SRI RAJIV GANDHI MEMORIAL HIGH SCHOOL
RUDRANAHALLI GATE
ARASIKERE TALUK
HASSAN DISTRICT 573103.
7. MR HYDER
AGED MAJOR
ASSISTANT MASTER(ARTS)
NATIONAL HIGH SCHOOL
HASSAN 573201.
8. MR SHEIKH AHMED
AGED MAJOR
CRAFT TEACHER(DRAWING)
NATIONAL HIGH SCHOOL
HASSAN 573201.
9. MR BASAVE GOWDA K A
AGED MAJOR,
ASSISTANT MASTER(KANNADA)
SRI RAJIV GANDHI MEMORIAL HIGH SCHOOL
RUDRANA HALLI GATE
ARASIKERE TALUK
HASSAN DISTRICT 573103.
...RESPONDENTS
(BY SRI R SUBRAMANYA, AAG FOR
SMT SHARADHAMBA, AGA FOR R1 TO R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO STRIKE DOWN SUB
SEC(2) & (3) OF SEC 98 OF THE KARNATAKA EDUCATION ACT
1983 AND RULE 11 OF THE KARNATAKA EDUCATIONAL
INSTITUTIONS (RECRUITMENT AND TERMS AND CONDITIONS OF
SERVICE OF EMPLOYEES IN PRIVATE AIDED PRIMARY AND
SECONDARY EDUCATIONAL INSITUTIONS) RULES 1999 BY
HOLDING THEM AS ULTRAVIRES THE CONSTITUTION OF INDIA IN
SO FAR AS THE PETITIONER IS CONCERNED AND ETC.
IN W.P. NO.57227/2014
BETWEEN
SRI TARALABALU JAGADGURU EDUCATION SOCIETY
SIRIGERE -577541
CHITRADURGA DISTRICT
REPRESENTED BY ITS
ADMINISTRATIVE OFFICER
SRI S B RANGANATH
...PETITIONER
(BY SRI ASHOK G V, ADVOCATE FOR
SRI G K V MURTHY, ADVOCATE)
AND
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF PRIMARY & SECONDARY
EDUCATION,
M S BUILDING, DR AMBEDKAR ROAD,
BANGALORE-560001
2. THE COMMISSIONER OF PUBLIC INSTRUCTION
NEW PUBLIC OFFICES,
NRUPATHUNGA ROAD,
BANGALORE-560001
3. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTION
DEPARTMENT OF PUBLIC INSTRUCTION
ZILLA PANCHAYAT,
CHIKMAGALUR-577102
4. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTION
DEPARTMENT OF PUBLIC INSTRUCTION
CHITRADURGA DISTRICT,
CHITRADURGA 577501.
5. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTION
DEPARTMENT OF PUBLIC INSTRUCTION
DAVANAGERE DISTRICT
DAVANAGERE 577001.
6. THE ADDITIONAL COMMISSIONER
DEPARTMENT OF PUBLIC INSTRUCTION
RODDA ROAD,
DHARWAD-580008
7. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTION
ZILLA PANCHYAT,
DEPARTMENT OF PUBLIC INSTRUCTION,
SIRSI
UTTARA KANNADA DISTRICT 581401.
8. SRI SHIVAMURTHY M N
PHYSICAL EDUCATION TEACHER,
GOVERNMENT PRE UNIVERSITY COLLEGE,
SHIVANI,
AJJAMPURA HOBLI,
CHIKMAGALUR DISTRICT 577102.
9. SRI MALLAPPA
GROUP D EMPLOYEE,
NETAJI HIGH SCHOOL,
PIRUMENAHALLI,
TARIKERE TALUK,
CHIKMAGLUR DISTRICT 577102
10 . SRI MRUTHYUNJAYA
SECOND DIVISION CLERK,
KALA SEVA SANGHA EDUCATION SOCIETY
HIGH SCHOOL,
AJJAMPURA,TARIKERE TALUK,
CHIKMAGLUR DISTRICT 577102.
11 . SRI H KRISHNA MURTHY
ASSISTANT MASTER (ENGLISH)
GOVERNMENT HIGHER PRIMARY SCHOOL,
HEBBALLI,
HOSADURGA TALUK,
CHITRADURGA DISTRICT 577502 .
12 . SRI ONKARAPPA R
SECOND DIVISION CLERK,
SRI BASAVESWARA HIGH SCHOOL,
MARABAGHATTA,
HOSADURGA TALUK,
CHITRADURGA DISTRICT
13 . SRI B N KARILINGAPPA
GROUP D EMPLOYEE,
OFFICE OF THE DEPUTY
DIRECTOR OF PUBLIC INSTRUCTION
DAVANAGERE 577001.
14 . SRI V R HAVERI
TEACHER,
PAKEERESHWARA T T I.,
SHIRAHATTI
GADAG DISTRICT 582101.
15 . SRI PUTTAPPA L DASARA
SECOND DIVISION CLERK,
LOTUS GIRLS HIGH SCHOOL,
MUNDAGODA
SIRSI DISTRICT 581401.
16 . SRI B H HANUMANTHAPPA
PHYSICAL EDUCATION TEACHER
GRADE 2
LOTUS GIRLS HIGH SCHOOL,
MUNDAGODA
SIRSI DISTRICT 581401.
...RESPONDENTS
(BY SRI R SUBRAMANYA, AAG A/W
SMT SHARADHAMBA, AGA FOR R1 TO R7
SRI R S LOKESH, ADVOCATE FOR R13)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO STRIKE DOWN SUB SEC(2)
& (3) OF SEC 98 OF THE KARNATAKA EDUCATION ACT 1983 AND
RULE 11 OF THE KARNATAKA EDUCATIONAL INSTITUTIONS
(RECRUITMENT AND TERMS AND CONDITIONS OF SERVICE OF
EMPLOYEES IN PRIVATE AIDED PRIMARY AND SECONDARY
EDUCATIONAL INSITUTIONS) RULES 1999 BY HOLDING THEM AS
ULTRAVIRES THE CONSTITUTION OF INDIA IN SO FAR AS THE
PETITIONER IS CONCERNED AND ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED ON 04.03.2021 AND COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE
FOLLOWING:
COMMON ORDER
These writ petitions are filed by managements of private
aided schools and some of the teachers of the private aided
schools, calling in question The Karnataka Educational
Institutions (Recruitment And Terms And Conditions of Service
Of Employees In Private Aided Primary and Secondary
Educational Institutions) Rules, 1999; the vires of Section
98(2) and (3) of the Karnataka Education Act, 1983 and the
Government Circular dated 03.02.2000.
2. Since the issues raised are common, these writ
petitions were clubbed and heard together and are being
disposed of by this common order.
3. In exercise of power conferred by Sections 87 to 101
read with Section 15 of the Karnataka Education Act, 1983,
(hereinafter referred to as 'the Act, for short) the Government
of Karnataka made The Karnataka Educational Institutions
(Recruitment And Terms And Conditions of Service Of
Employees In Private Aided Primary and Secondary
Educational Institutions) Rules, 1999; (hereinafter referred to
as 'the Rules, 1999', for short) making provision for identifying
excess teachers in the aided schools and transferring such
excess teachers to other aided schools. It is basically
contended on behalf of the petitioners that in terms of Section
46(1) (b) and (c) of the Act, power is vested in the Managing
Committee of an aided institution to appoint teachers and
other employees of the private educational institution and to
take disciplinary action against teachers and other employees,
except the head of the institution. It is contended that the
powers of the Managing Committee of private educational
institutions in the matter of appointment of teachers have
been upheld by the Hon'ble Supreme Court of India in the
cases of T. M. A. Pai Foundation and others Vs. State of
Karnataka and others, reported in (2002) 8 SCC 481,
Brahmo Samaj Education Society and others Vs. State of
W.B. and others, reported in (2004) 6 SCC 224,
Secretary, Malankara Syrian Catholic College Vs. T Jose
and others, reported in (2007) 1 SCC 386 and many other
subsequent judgments.
4. It is contended that the impugned Circular dated
03.02.2000 is issued by the State Government in pursuance of
Section 98(2) and (3) of the Act, which are dependent on
Section 98(1). It is submitted that the power to retrench an
employee/teacher is vested with the Governing Council in
terms of Section 46(1)(c) but a provision is incorporated in
Section 98(1) that an order of retrenchment could be passed
either by the Governing Council or by the competent
authority. It is submitted that under the scheme of the Act
and in terms of the rulings of the Hon'ble Supreme Court, the
power of appointment of teachers and employees, their
transfer and removal lies with the Managing Committee. The
provisions under Section 98 being in contravention and
inconsistence with the other provisions of the Act and in
violation of Article 19(1)(g) of the Constitution of India, the
offending provision of the Act, the Rules, 1999 and the
impugned Circular/ Government Order are required to be
quashed.
5. Attention of this Court is also drawn to the provisions
of the Grant-in-aid Code, especially Section 17(i) and (iii) to
contend that the power of appointment of the teachers is
vested with the Managing Committee. It is contended that the
State Government does have the power to prescribe
qualification, conditions of service and ensure that no teacher
or employee of a private education institution is dismissed,
removed or reduced in rank except in accordance with the
conditions of service governing him/her, after an enquiry. But,
it is a settled position of law that such power vested in the
Managing Committee cannot be usurped by the Government in
the guise of retrenchment, as provided in Section 98 of the
Act.
6. On the contrary, it is contended at the hands of the
respondent-State Government that the provisions contained in
Section 98 of the Act and the Rules, 1999, have been in vogue
since the time of their enactment and implemented without
there being any objection from the private aided institutions,
except the managements of a few institutions and teachers,
who are before this Court. It is submitted that there are
thousands of private aided institutions in the State of
Karnataka who have accepted the provisions contained in
Section 98 of the Act and the Rules, 1999, without any grouse.
On the other hand, a handful of school managements have
filed these writ petitions in the year 2014 and thereafter,
which would show that the grievance is not genuine and at the
instance of a few institutions, the provisions of the Act and the
Rules should not be interfered with.
7. It is submitted at the hands of the respondent-State
Government that in terms of the provisions of the Grant-in-aid
Code and Section 49 of the Act, government is required to set
apart some of money annually for being given as grant-in aid
to local authority institutions and private institutions in the
State recognized for that purpose in accordance with rules
made in that behalf. Sub-section (2) of Section 49 of the Act
requires that the institution receiving the grant to comply with
any provisions for the reservation of appointments or posts in
favour of Scheduled Castes, Scheduled Tribes and Backward
classes. In terms of Section 53, the State Government is
empowered to withhold, reduce or withdraw the grant.
8. Moreover, it is submitted that even in terms of Rule
10 of the Rules, 1999, power is vested with the Governing
Council/Managing Committee to retrench a teacher/ employee.
The conditions for retrenchment are specified in Rule 10, one
of which is that where the teacher pupil ratio falls below the
standard staffing pattern specified in Annexures IV and V
retrenchment may be ordered. In terms of sub-rule (2) of
Rule 10, whenever the Governing Council is of the opinion that
a teacher/employee is required to be retrenched, the
Governing Council shall follow the procedure as contemplated
in Section 98 of the Act, which means recommendation should
be placed before the competent authority/State Government.
9. The learned Additional Advocate General submits that
the State Government is not infringing upon the power of the
Managing Committee to appoint or transfer an aided teacher/
employee by operating the provisions contained in Section 98
or the Rules. On the other hand, provision is made under the
Rules to adjust the excess teacher from one school to another
where there is deficiency. At any rate, it is submitted that if
there is a drop in the number of students and the teacher
pupil ratio falls below the prescribed standard, then the
Managing Committee is duty bound to inform the competent
authority/State Government and it is within the powers of the
competent authority/State Government to take remedial
measures. Ultimately, it is within the powers of the competent
authority/State Government to retrench the employee.
Therefore, instead of resorting to retrenchment, provision is
made under the Rules to transfer or relocate the excess
teacher to another institution where there is a need. Similarly,
when there is deficiency of teacher found in an aided school,
the teacher from the excess pool is identified and transferred
to such schools. This, according to the learned Additional
Advocate General cannot be construed as taking away the
power of appointment or removal from the hands of the
Managing Committee.
10. The learned Additional Advocate General places
reliance on a decision of the Hon'ble Apex Court in the case of
Namit Sharma Vs. Union of India, reported in (2013) 1
SCC 745 to contend that courts should accept an
interpretation which would be in favour of the constitutionality,
than an approach which would render the law unconstitutional.
Declaring the law unconstitutional should be the last resort.
11. Heard the learned Counsels and perused the petition
papers.
12. A larger Bench of 11 judges of the Hon'ble Supreme
Court, in the case of T. M. A. Pai Foundation (supra) held that
rules and regulations that promote good administration and
prevent mal-administration can be formulated so as to
promote the efficiency of teachers, discipline and fairness in
administration and to preserve harmony upon affiliated
institutions. At the same time, it has to be ensured that even
an aided institution does not become a government owned
and controlled institution. It was further held that normally,
the aid that is granted is relatable to the pay and allowances
of the teaching staff. In addition, the management of the
private aided institution incur revenue and capital expenses.
Such aided institution cannot obtain that extent of autonomy
in relation to management and administration as would be
available to a private unaided institution, but at the same
time, it cannot also be treated as an educational institution
departmentally run by government or as a wholly owned and
controlled government institution and interfere with
constitution of the governing bodies or thrusting the staff
without reference to management. The epic judgment was
rendered on 31.10.2002/25.11.2002. Thereafter, all statutory
enactments, orders, schemes, regulations were required to be
brought in conformity with the decision of the Constitution
Bench. Unfortunately, provisions such as Section 98 of the Act
have remained in the statute book along with Rules, 1999 and
Circulars/Government Orders are being issued compelling/
imposing teachers from other institutions upon the
managements of private aided institutions.
13. But, this Court cannot be oblivious of the inevitable
consequences of a fall in the teacher pupil ratio or such other
situation where a teacher would be declared "excess" and by
operation of law, such a teacher/employee will have to be
recommended by the Managing Committee to be retrenched.
In that view of the matter, the prevailing Rules, 1999, are a
boon to the teachers/employees who would otherwise be
retrenched and removed from service. At the same time, the
managements should also not go with a feeling that a
teacher/employee from the excess quota is thrust upon the
management.
14. Having regard to these complexities and the need to
balance equities, guided by the verdict of the Hon'ble Apex
Court in the case of Namit Sharma (supra), this Court is of the
considered opinion that the provisions of Section 98 of the Act
and the Rules, 1999 are required to be read down to make it
more effective, workable and ensure the attainment of the
object of the Act. The provisions contained in Section 98 of
the Act and the 1999 Rules, in the matter of
allocating/transferring a teacher/employee from one private
aided institution to another shall be done only with the
consent of the Governing Council/Managing Committee.
Appropriate Circular may be issued in this regard informing
the Managing Committees of private aided institutions that as
and when the need arises, proposal will be sent by the
competent authority to allocate/ appoint by transfer a
teacher/employee from the excess quota to the institution,
seeking its consent. Information may also be provided that if
the proposal is not accepted, the teacher/employee from an
aided institution would be in danger of being
retrenched/removed from service. Such option shall also be
given to the teacher/employee and he/she may be informed
that if the proposal is not acceptable, he/she would be in
danger of being retrenched/removed from service.
15. Such Circular shall be prepared and issued within a
period of three months from the date of receipt of a copy of
this order. It is ordered accordingly.
With these directions, these writ petitions stand
disposed of.
Pending Interlocutory Applications, if any, stand disposed
of.
SD/-
JUDGE
DL
