The President And Anr vs The Appellant Authority And Ors
2022 Latest Caselaw 2125 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 10TH DAY OF FEBRUARY, 2022

                         BEFORE

        THE HON'BLE MR.JUSTICE E.S.INDIRESH

       WRIT PETITION No.201481/2021 (S-RES)

BETWEEN:

1.     THE PRESIDENT, HYDERABAD
       KARNATAKA EDUCATION SOCIETY
       BEHIND PDA ENGINEERING COLLEGE
       AIWAN-E-SHAHI, KALABURAGI-585 101

2.     THE PRINCIPAL
       HKE SOCIETY'S S. NIJALINGAPPA
       DENTAL COLLEGE
       JAYANAGAR, RING ROAD
       KALABURGI-585 101
                                           ... PETITIONERS
(BY SRI KRUPA SAGAR PATIL &
 SRI SUBRAMANYA, ADVOCATES)

AND:

1.     THE APPELLATE AUTHORITY
       AND PRINCIPAL SECRETARY
       TO GOVERNMENT OF KARNATAKA
       MEDICAL EDUCATION DEPARTMENT
       M.S. BUILDING, BENGALURU

2.     DR. KESHAV BIRADAR
       S/O HANMANTH RAO BIRADAR
       AMBHA NIVAS, H.NO.10/38
       VITTAL NAGAR, N.V. LAYOUT
       KALABURAGI-585 101

3.     DR. KIRAN W/O DEEPAK TOSHNIWALA
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      H.NO.7-11-52
      "GURU", OPP. S.B. PETROL PUMP
       GUNJ COLONY, KALABURAGI-585 101

4.    DR. CHANNABASAVA
      C/O VED PRAKASH GAMPA
      PLOT NO.22, KHUBA PLOT
      KALABURAGI-585 101

5.    DR. BHAGIRATHI
      PLOT NO.30, H.NO.2-911/12/7/30
      BEHIND HANUMAN TEMPLE
      PRASHANTH NAGARA
      KALABURAGI-585101

6.    DR. SUGANDHA SHIEH
      H.NO.9-92, PLOT NO.51/2
      JAYANAGAR, KALABURAGI-585 101

7.    DR. CHAMING SHIEH
      H.NO.9-92, PLOT NO.51/2
      JAYANAGAR, KALABURAGI-585 101
                                             ... RESPONDENTS
(BY SRI VIRANAGOUDA BIRADAR, AGA FOR R1;
 SRI P.VILASKUMAR, SENIOR COUNSEL FOR
 SRI NITESH PADIYAL & SRI SIDDARAM B. WADI
 ADVOCATES FOR R2 TO R7)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH    THE     ORDER    DATED     05.04.2021    (SIGNED    ON
09.04.2021)    BY   THE     FIRST   RESPONDENT     IN     APPEAL
NO.96/2020 (ANNEXURE-Q).


      THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR     ORDERS      ON    31.01.2022,     COMING     ON     FOR
PRONOUNCEMENT,       THIS    DAY,   THE   COURT    MADE     THE
FOLLOWING:
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                           ORDER

First petitioner is a society registered under the

Karnataka Societies Registration Act, running various aided

and unaided educational institutions. The second

petitioner is an unaided institution under the control of first

petitioner's society and the same is coming under the

provisions of the Karnataka Education Act 1983 (for short

'the Act'). The service conditions of the employees of the

Private Unaided Educational Institutions are governed

under the Act. Respondent Nos.2 to 7 are working as

Lecturers in the second petitioner college and their salary

is being paid by the first petitioner society. The contesting

respondents have made claim for entitlement of salary on

par with the government Lecturers and they further

contended that the fourth, fifth and sixth pay commission

recommendations are applicable to them. The service

conditions inter alia claim of the contesting respondents for

providing pay is under the provisions of The Karnataka

Private Educational Institution (Discipline and Control)

Rules, 1978 (hereinafter referred to as 'the Rules'). The

contesting respondents approached the Appellate Authority

and Principal Secretary to Government of Karnataka,

Medical Education Department in Appeal No.96/2020

contending that they were appointed by the petitioner-

Dental College during the period between 1990 and 1994

and the qualification prescribed for the said post was BDS

degree and in the year 2007, Dental Council of India

amended the minimum qualification for the teaching staff

as MDS degree and the amended provisions have come

into force from 27.09.2007. It is further stated in the writ

petition that the petitioner-college have adopted the

Dental Council of India regulations and prescribed

qualification of MDS degree for the post of Lecturers. The

contesting respondents, being aggrieved by the action of

the aforesaid amendment, approached this Court in

W.P.Nos.83558-565/2011 C/w W.P.No.83333/2011 and

the writ petitions came to be allowed on 25.11.2011. Being

aggrieved by the same, the petitioner-institution has

challenged the same in W.A.No.10336/2011 and connected

matter and the Division Bench of this Court by order dated

01.06.2012 dismissed the appeal and as such, confirmed

the judgment passed in W.P.Nos.83558-565/2011 C/w

W.P.No.83333/2011. Being aggrieved by the order passed

by the Division Bench in W.A.No.10336/2011 and

connected matter, the petitioners herein have approached

the Hon'ble Supreme Court in SLP Nos.24731-732/2012

and the said petitions came to be dismissed. In the

meanwhile, the contesting respondents have preferred

contempt petitions before this Court in CCC (Civil)

Nos.4013-4020/2012 and this Court, by order dated

20.09.2012 disposed of the contempt petitions by

relegating the parties to approach the competent authority

with regard to the disputed aspects of calculation made by

the complainants therein/contesting respondent Nos.2 to

7. Pursuant to the orders passed therein, the petitioners

have deposited part payment in terms of the order in

W.P.Nos.83558-565/2011 C/w W.P.No.83333/2011. In

the meanwhile, the contesting respondents had preferred

W.P.Nos.101090-097/2013 seeking writ of mandamus,

directing the petitioners herein to pay arrears of amount

with interest and this Court by order dated 10.04.2013,

directed the government to consider the grievance of the

petitioners in terms of the provisions contained under the

Act. Thereafter, the contesting respondents moved

contempt petitions in CCC (Civil) Nos.4273-80/2013 and

the same came to be disposed of on 20.12.2013. The

contesting respondents have also filed writ petitions in

W.P.Nos.205135 & 205137-141/2014, seeking writ of

mandamus to the petitioners herein to pay the arrears of

salary with interest and also apply new pay scale and this

Court by order dated 24.06.2019, disposed of the writ

petitions reserving liberty to the contesting respondents to

approach the competent authority. Thereafter, the

contesting respondents had filed CCC Nos.200246-

251/2019 (Civil) before this Court and this Court by order

dated 12.02.2020 directed the Secretary, Department of

Medical Education, to comply with the directions issued in

W.P.Nos.205135 & 205137-141/2014. In view of the

orders passed by this Court mentioned above, the

Appellate Authority, accepted Appeal No.96/2020 filed by

the contesting respondents and the same was refuted by

the petitioners herein and finally, the appeal came to be

allowed by order dated 05.04.2021 and the same was

signed on 09.04.2021 (Annexure-Q). Being aggrieved by

the same, the petitioners have presented this writ petition.

2. Sri Subramanya, learned counsel appearing on

behalf of Sri Krupa Sagar Patil, learned counsel for the

petitioners submitted that the core issue involved in this

writ petition is with regard to Rule 5 of the Rules. He

further contended that the pay-scale of an employee of the

institution shall be corresponding to the post in the

Government Educational Institution however, certain

benefits like DA, CCA, HRA and other allowances cannot be

equated with that of the government employees. In this

regard, he referred to the law declared by this Court in the

case of Sri Siddartha Educational Society vs. Tumkur

District Technical Institutions Non-Teaching

Employees Union and Others in W.P.No.12937/1995

disposed of on 27.11.2002. Placing reliance on the same,

he argued that the contesting respondents are not entitled

to receive the benefits of the government employee and

their allowance is as per the terms of their order of

appointment. He further contended that the said

judgment was reiterated by this Court in the case of The

Karnataka Lingayat Education, Society and Ors., vs.

Siddappa G. Namba and Ors., reported in ILR 2017

KAR 5139 and he further argued that the aforementioned

judgment was confirmed by the Division Bench in the year

2018 in the case of Gadigayya and Ors., K.L.E. Society

and Ors., reported in 2018(4) AKR 90. He also referred

to the law declared by the Hon'ble Apex Court in the case

of Satimbla Sharma and Ors., vs. St. Paul's Senior

Secondary School and Ors., reported in AIR 2011 SC

2926 and argued that the impugned order passed by the

Appellate Authority requires to be set aside.

3. Nextly, Sri Subramanya, learned counsel for

the petitioner contended that the issue involved in this writ

petition is with regard to implementation of the order

dated 08.01.2014 (Annexure-H) and as such, he

contended that the Appellate Authority has not discussed

about the calculation made as per the orders passed by

this Court referred to above and further contended that

there is no discussion in the impugned order of the

Appellate Authority with regard to legal position involved in

the case. He further contended that there is no reason

assigned by the Appellate Authority while disposing of the

appeal. Therefore, he sought for interference of this

Court.

4. Sri P.Vilaskumar learned Senior Counsel

appearing on behalf of Sri Nitesh Padiyal, learned counsel

appearing for the contesting respondents submitted that

this Court by order dated 24.06.2019 in

W.P.Nos.205135/2014 & 205137-141/2014, directed the

petitioners herein to comply with the order dated

08.01.2014 and therefore, he contended that the Appellate

Authority having taken note of the entire history of the

case, has passed the impugned order which cannot be

faulted with. He further contended that the contesting

respondents have been made to approach authorities time

and again and at the instance of the petitioners herein, the

contenting respondents have filed writ petitions after writ

petitions and various directions have been issued in the

contempt petitions, despite the same, the contesting

respondents are not able to secure justice in the matter

and therefore, he contended that the writ petition itself is

not maintainable as the petitioners have no locus standi to

challenge the impugned order passed by the Appellate

Authority.

5. In the light of the submissions made by the

learned counsel appearing for the parties, the point that

arises for determination is,

i. Whether the finding recorded by the Appellate Authority is just and proper?

ii. What order?

6. Perusal of the writ papers would substantiate

that the second petitioner-college is an unaided institution

run by the first petitioner-society and therefore, coming

under the purview of the Rules, 1978. Rule 5 of the Rules

reads as under:

"5. Scale of Pay:- The scale of pay of an employee of an institution shall not be lower than the scale of pay of an employee of a corresponding post in the Government Educational Institutions."

7. This Court in Sri Siddartha Educational

Society's case (supra) at paragraph-22 of the said

judgment has observed as follows:

"22. Though Rule 5 of the Rules 1978 provide that the scale of pay of an employee of an Institution shall not be lower than the scale of pay of an employee of a corresponding post in the government educational institutions it does not ipso facto mean that the benefit of DA, CCA, HRA, and other allowances are to be paid to such employees which non-teaching staff of the government technical institutions

are entitled to. Rule 5 only provides for payment of scale of pay and it does not refer to any allowances. Before a set of employees could claim parity of pay scales on the principle of equal pay for equal work it has to be shown by such claimants that qualitatively and quantitatively the work which they do is the same type and nature as that of their counter parts whose pay scales are pressed into service for getting the parity. Not only that even educational qualifications must be identical. It is well settled by a series of decisions by the Supreme Court, different pay scales could be prescribed for employees having different educational qualifications.

Therefore, even the aforesaid doctrine of equal pay for equal work only refers to pay and not to other allowances. In the case of MAHATMA GANDHI VIDYA PEETA, this Court was interpreting Rule 5 of Rules 1978 and it has been held that the provisions of Rule 5 would squarely apply to the petitioners who were working as non-teaching employees of the respondent society who are in the light of the said provision are entitled to the pay scales that cannot be lower than once admissible to

the employees holding corresponding posts in the government educational institutions. Therefore, it is clear from the aforesaid judgment also what the employees in private educational institutions are entitled to is the pay scales which are admissible to the employees working in government institutions on equivalent posts. That judgment is of no assistance to the respondents to substantiate their claim for other monetary benefits such as DA, HRA, CCA and other allowances which are outside the purview of "the pay"."

(Emphasis supplied)

8. It is also relevant to extract paragraph-21 of

the judgment of this I in The Karnataka Lingayat

Education, Society's case (supra):

"21. The claim of the respondents as per Rule 5 of the Karnataka Private Educational Institutions (Discipline and Control) Rules, 1978, which provides that the pay of the un- aided educational institutions shall be at par with the Government employees is also of no help to the respondents. Such parity of pay does not talk of allowances like Dearness

Allowance, HRA, encashment of leave, etc. The learned Single Judge of this I in Sri.Siddartha Education Society v. Tumkur District Technical Institutions Non-Teaching Employees Union, MANU/KA/0374/1999 : ILR 2003 (Kar.HC) 163, (supra), vide paragraph 22 quoted above, made this position clear, but, it appears that said judgment was not brought to the notice of the Labour I at the time of decision in the impugned order passed by the Labour I."

9. The Division Bench of this I in Gadigayya's

case (supra) at paragraph-12 has observed as under:

"12. With regard to the contention that the appellants are entitled for pay and allowances on par with the government employees is also untenable. The learned Single Judge relying upon the decision of this I in the case of Sri. Siddartha Education Society Vs. Tumkur District Technical Institutions Non-

Teaching Employees Union, MANU/KA/0724/2002 : ILR 2003 (Kar. HC) 163, has answered the said issue i.e., private educational institution employees are not

entitled for monetary benefits such as DA, HRA and other allowances on par with the government educational institutions."

(Emphasis supplied)

10. The Hon'ble Apex Court in Satimbla

Sharma's case (supra) at paragraphs-10 to 12 has

observed as under:

"10. In Frank Anthony Public School Employees' Association v. Union of India & Ors. (supra), relied on by learned counsel for the appellants, the scales of pay and other terms and conditions of service of teachers and other employees of the Frank Anthony Public School, New Delhi, which was a private unaided minority institution, compared very unfavourably with those of their counterparts of the Delhi Administration Schools and the Frank Anthony Public School Employees' Association sought equalization of their pay-

scales and conditions of service with those of teachers and employees of Government schools. Sections 8 to 11 of the Delhi School Education Act dealt with the terms and

conditions of service of employees of recognized private schools. Section 10 of the Delhi School Education Act provided that the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of the recognized private schools shall not be less than those of the corresponding status in schools run by the appropriate authority.

Section 12 of the Delhi School Education Act, however, provided that the provisions of Sections 8 to 11 including Section 10 were not applicable to unaided minority institutions. The case of teachers of Frank Anthony Public School was that if Sections 8 to 11 were made applicable to them, they would at least be as well off as teachers and other employees of Government schools. The Frank Anthony Public School Employees' Association therefore challenged Section 12 of the Delhi School Education Act as discriminatory and violative of Article 14 of the Constitution and this Court held that Section 12 of the Delhi School Education Act insofar as it makes the provisions of Sections 8 to 11 inapplicable to unaided minority schools is discriminatory. This

was thus a case in which the employees of unaided minority institutions were not given the benefits available to employees of other private institutions under Sections 8, 9, 10 and 11 of the Delhi School Education Act only on the ground that unaided minority institutions enjoy autonomy of administration under Article 30(1) of the Constitution and this Court held that this could not be a rational basis for differentiation of service conditions, pay and other service benefits between employees of unaided minority institutions and the employees of other private schools and the Court declared Section 12 as discriminatory. In other words, the State by making a statutory provision in Section 12 of the Delhi School Education Act which was discriminatory, had violated the mandate to the State under Article 14 of the Constitution not to deny the equal protection of the laws within its territories. This decision in the case of Frank Anthony Public School Employees' Association v. Union of India & Ors. (supra) does not assist the appellants in any manner because the guarantee of equality, as we have said, is not

available against an unaided private minority school.

11. We also do not think that the Court could issue a mandamus to a private unaided school to pay the salary and allowances equal to the salary and allowances payable to teachers of Government schools or Government aided schools. This is because the salary and allowances of teachers of a private unaided school is a matter of contract between the school and the teacher and is not within the domain of public law. In Sushmita Basu & Ors. v. Ballygunge Siksha Samity & Ors. MANU/SC/8515/2006 : [(2006) 7 SCC 680], the teachers of a recognized private school known as Ballygunge Siksha Sadan in Calcutta filed a Writ Petition in the High Court of Calcutta praying for issuance of writ of mandamus directing the authorities of the school to fix the salary of teaching and non- teaching staff of the school and to remove all anomalies in the scales of pay as recommended by the Third Pay Commission as extended to other Government aided schools and Government schools and this Court held that in the absence of statutory provision no

such direction can be issued by the High Court under Article 226 of the Constitution. Where a statutory provision casts a duty on a private unaided school to pay the same salary and allowances to its teachers as are being paid teachers of Government aided schools, then a writ of mandamus to the school could be issued to enforce such statutory duty. But in the present case, there was no statutory provision requiring a private unaided school to pay to its teachers the same salary and allowances as were payable to teachers of Government schools and therefore a mandamus could not be issued to pay to the teachers of private recognized unaided schools the same salary and allowances as were payable to Government institutions.

12. In K. Krishnamacharyulu and Others vs. Sri Venkateswara Hindu College of Engineering and Another (supra), relied upon by the learned counsel for the appellants, executive instructions were issued by the Government that the scales of pay of Laboratory Assistants as non-teaching staff of private colleges shall be at par with the government employees and this Court held

that even though there were no statutory rules, the Laboratory Assistants as non- teaching staff of private college were entitled to the parity of the pay-scales as per the executive instructions of the Government and the writ jurisdiction of the High Court under Article 226 of the Constitution is wide enough to issue a writ for payment of pay on par with government employees. In the present case, there are no executive instructions issued by the Government requiring private schools to pay the same salary and allowances to their teachers as are being paid to teachers of Government schools or Government aided schools."

(Emphasis supplied)

11. Recently, the Hon'ble Apex Court in the case of

State of Maharashtra vs. Bhagwan in Civil Appeal

No.7682/2021 decided on 10.01.2022 at paragraph-

10.5 to 10.7 held as follows:

"10.5. In the present case, WALMI being an autonomous body, registered under the Societies Registration Act, the employees of

WALMI are governed by their own Service Rules and conditions, which specifically do not provide for any pensionary benefits; the Governing Council of WALMI has adopted the Maharashtra Civil Services Rules except the Pension Rules. Therefore, as such a conscious policy decision has been taken not to adopt the Pension Rules applicable to the State Government employees; that the State Government has taken such a policy decision in the year 2005 not to extend the pensionary benefits to the employees of the aided institutes, boards, corporations etc.; and the proposal of the then Director of WALMI to extend the pensionary benefits to the employees of WALMI has been specifically turned down by the State Government.

Considering the aforesaid facts and circumstances, the High Court is not justified in directing the State to extend the pensionary benefits to the employees of WALMI, which is an independent autonomous entity.

10.6. The observations made by the High court that as the salary and allowances payable to the employees of WALMI are being paid out of the Consolidated Fund of the State

and/or that the WALMI is getting grant from the Government are all irrelevant considerations, so far as extending the pensionary benefits to its employees is concerned. WALMI has to run its administration from its own financial resources. WALMI has no financial powers of imposing any tax like a State and/or the Central Government and WALMI has to depend upon the grants to be made by the State Government.

10.7. Now, so far as the observations made by the High Court that the amount available with WALMI and deposited with E.P.F. towards the employee's contribution itself is sufficient to meet the financial liability of the pensionary benefits to the employees and, therefore, there is no justification and/or reasonable basis for the State Government to refuse to extend the benefit of pension to the retired employees of WALMI is concerned, it is to be noted that merely because WALMI has a fund with itself, it cannot be a ground to extend the pensionary benefits. Grant of pensionary benefits is not a one-time payment. Grant of pensionary benefits is a recurring monthly expenditure and there is a continuous

liability in future towards the pensionary benefits. Therefore, merely because at one point of time, WALMI might have certain funds does not mean that for all times to come, it can bear such burden of paying pension to all its employees. In any case, it is ultimately for the State Government and the Society (WALMI) to take their own policy decision whether to extend the pensionary benefits to its employees or not. The interference by the Judiciary in such a policy decision having financial implications and/or having a cascading effect is not at all warranted and justified."

(Emphasis supplied)

12. In the light of the settled principles referred to

above, this Court in W.P.Nos.205135/2014 & 205137-

141/2014 directed the Secretary, Health and Family

Welfare Department to comply with the letter dated

08.01.2014 (produced as Annexure-H). This Court has

accepted that the contesting respondents were getting

salary in terms of Rule 5 of the Rules in W.P.Nos.83558-

565/2011 C/w W.P.No.83333/2011 disposed of on

25.11.2011. The said order of the Learned Single Judge

was confirmed by the Division Bench of this Court in

W.A.No.10336/2011 and connected matter and confirmed

by the Hon'ble Apex Court in SLP Nos.24731-732/2012

dated 22.08.2012. While dismissing the Special Leave

Petitions, the Hon'ble Supreme Court observed as follows:

"At this stage, Mr. Basavaprabhu S. Patil learned Senior Counsel appearing for the petitioners prays that some time may be granted for payment of arrears of increment and dearness allowance. In the interests of justice, we grant four weeks' time to the petitioners to comply with the directions contained in the impugned judgment."

13. This Court while disposing of the contempt

petition in CCC (Civil) Nos.4013-4020/2012 at paragraphs-

15 to 19 of the judgment has observed as under:

"15. Contempt jurisdiction cannot be used as a jurisdiction in terrorem to terrorise any person to succumb or to put any person to the position of compliance. A perusal of the

order of the learned Single Judge does not indicate what is the precise benefit in terms of entitlement of quantification given in the order.

While it is claimed on behalf of complainants that their entitlement is to the tune of `80 to `90 lakh, on the other hand, Accused persons have asserted that it is the precise figure of `11,22,637/-.

16. It is not possible for us while exercising contempt jurisdiction to adjudicate these disputed aspects or to examine in detail or scrutinise the particulars of calculations made either by the complainant or by the accused persons.

17. While complainants have placed certain certificates issued by one Deepak P. Ramdas, Income Tax & Sales Tax Consultant to buttress their claim as per their version of entitlement towards `80.00 to `90.00 lakh together, the Accused persons before this Court made a statement prepared and filed by 2nd Accused - Principal HKES, S. Nijalingappa Institute of Dental Science and Research - the details of the entitlement of the complainants.

18. Obviously there is controversy/difference between the two and it is not possible for us to look into these disputed aspects to ascertain whether the calculation of complainants is right or that of the Accused persons is correct and to what extent it calls for further examination etc.

19. In the circumstances, while we do not propose to examine the Contempt Petition any further, it is open for the complainants to workout the dispute before any other forum in accordance with law, either under the provisions of Karnataka Education Act 1983 or under any other permitted process of law. With this observation this Contempt petitions are dismissed."

(Emphasis supplied)

14. In the light of the aforementioned orders, I

carefully considered the impugned order passed by the

Appellate Authority. Perusal of the same would indicate

that the Appellate Authority has not applied its mind in

terms of the order passed by the Division Bench of this

Court in contempt petition and without making any

discussion with regard to the payment to be made to the

contesting respondents herein, abruptly jumped into the

conclusion that the contesting respondents are entitled for

sum of money referred to at the operative portion of the

impugned order. There is no discussion by the Appellate

Authority how the claim of the contesting respondents was

considered similar to the government dental college

teaching staff, despite the fact that second petitioner

herein is a private unaided educational institution governed

under the provisions of the Rules. That apart, there is no

calculation made by the Appellate Authority and as to how

and in what manner the said quantification of sum has

been made by the first respondent in the operative portion

of the impugned order is not known to the petitioners nor

to the contesting respondents. The order impugned is

without reasons relating to calculation. In that view of the

matter, I am of the view that the writ petition deserves to

be allowed, remanding the matter to the Appellate

Authority-First respondent, to redo the exercise in

accordance with law, in the light of the orders passed by

this Court and the Hon'ble Apex Court referred to above,

within an outer limit of six months from the date of receipt

of certified copy of this order.

15. In the result, the following order is passed:

ORDER

i. Writ petition is allowed;

ii. Order dated 05.04.2021 signed on 09.04.2021 by the First respondent is quashed;

iii. Matter is remanded to the First respondent to consider the claim of the contesting respondents in accordance with law, within an outer limit of six months from the date of receipt of certified copy of this order.

SD/-

JUDGE

NB*