Dr. Kiran And Ors vs The Appellant Authority And Ors
2022 Latest Caselaw 10110 Kant

        IN THE HIGH COURT OF KARNATAKA AT
                 KALABUR AGI BEN CH

        DATE D THIS THE 1 S T DAY OF JULY, 2022

                        PRESENT

THE HON'BLE MR. JUSTICE SRE ENIVAS HAR ISH KUMAR

                           AN D

        THE HON 'BLE MR . JUSTICE S. R ACHAIAH

      WRIT APPEAL NO.200040 OF 2022 (S-RES)


 BETWEEN:

 1.     Dr. Kiran W/o Deepak Toshniwala
        Aged 52 Years, Occ: Lecturer
        HKE's Den tal College, Kalaburagi
        R/o: H.No.7-11-52 "Guru"
        Opp. S.B.Petrol Pump , Gunj Colony
        Kalaburagi-585 101

 2.     Dr. Channabasava
        C/o Ved Prakash Gampa
        Plot No.22, Khuba Plot
        Kalaburagi-585 101

 3.     Dr. Bhagirathi
        Plot No.30, H.No.2-911/12/7/30
        Behind Hanuma n Temple
        Prashant Nagar, Kalaburagi-585 102


 4.     Dr. Su gandha Shieh
        H.No.9- 92, Plot No.51/2
        Jaya Nagar, Colony
        Kalaburagi-585 101
                            :: 2 ::




5.   Dr. Chaming Shieh
     H.No.9- 92, Plot No.51/2
     Jaya Nagar, Kalaburagi-585 101
                                                 ...Appellants

(By Sri P.Vilaskumar, Sr.Counsel for Sri. Nitesh
Padiyal, Advocate)

AND:

1.   The Appellate Authority &
     Principal Secreta ry
     To Govern ment of Karnataka
     Medical E duca tion Depar tment
     M.S.Building, Bengaluru

2.   The President
     Hyderabad Karnataka
     Education Society, Behind
     PDA Engin eering College
     Aiwan-E-Shahi, Kalaburagi-585 101

3.   The Principal
     HKE Society's
     S. Nijalingappa Dental College
     Jayanagar, Ring Road
     Kalaburagi-585 102
                                               ...Res pondents

(By Sri Viranagouda M. Biradar, AGA for R1;
Sri. Krupa Sagar Patil & Sri L.K. Subrama nya,
Advocate for R2 & R3)

     This Writ App eal is filed under Section 4 of
Karnataka   High   Court    Act,     praying   to   allow   the
appeal filed by appellant by setting aside the order
of     learned     Single          Judge,      pa ssed       in
WP.No.201481/2021 dated 10.02.2022.
                               :: 3 ::




     This   Writ    App eal      having       been   heard   and
reserved    on     06.06.2022           and   coming    on   for
pronoun cement      this   day,         SREENIVAS      HARISH
KUMAR J., delivered th e following:

                      JUDGMENT

This writ appeal is directed against the order dated

10.02.2022 in WP No.201481/2021. The appellants were

respondents 3 to 7 in the writ petition filed by the

President of Hyderabad Karnataka Education Society and

the Principal of HKE Society's S. Nijalingappa Dental

College (referred to as 'management' for short).

2. The Writ Appeal has a long chequered history.

The facts as stated in the appeal may be culled out first.

All the appellants and one Dr. Keshava Biradar are

working as Lecturers/Asst. Professors in HKE Society's

S.Nijalingappa Dental College, Kalaburagi. They were all

appointed in between 1990 and 1994. When they were

appointed as lecturers, the qualification required for

appointment to the post of lecturer was bachelor degree in

dental surgery and they possessed that qualification. In :: 4 ::

the year 2004, the Dental Council of India amended the

regulation and prescribed master degree in dental surgery

as the basic qualification for the post of Lecturer/Asst.

Professor. Since the appellants did not possess master

degree, the management of the college freezed the annual

increments, salary, dearness allowance, etc., which were

being paid to them and started paying them a meager

sum as salary at its whims. Aggrieved by this action of

the management, the appellants, Dr. Keshava Biradar and

two more persons approached this court by filing Writ

Petition Nos. 81370-81377/2010. The writ petitions were

disposed of giving direction to the appellants and others to

approach the authority under the Education Act. Then

they approached the Principal Secretary to the

Government of Karnataka, Department of Medical

Education, who by his order gave nominal relief to them

and more benefits to respondents 2 and 3.

3. The appellants and others again approached the

High Court by filing Writ Petition Nos. 83558-83565/2011 :: 5 ::

and Writ Petition No.83333/2011 challenging the order of

the Principal Secretary. The management also filed writ

petition challenging the order of the Principal Secretary.

The writ court allowed the petitions of the appellants and

dismissed the writ petition of the management by order

dated 25.11.2011. Consequent to allowing of the

appellants' writ petitions, the order dated 05.07.2011

passed by the Principal Secretary was quashed and the

management was directed to pay up to date increments

withheld from 2004, pay the salary and dearness

allowance as applicable to the government employees and

implement revised pay scales applicable as per the

recommendation of fifth pay commission. Three months

time was given for compliance of the order. This order was

challenged by the management in Writ Appeal Nos.

10336-10337/2011 and these Writ Appeals were

dismissed on 1.6.2012. Thereafter the management

preferred SLP before the Supreme Court and it was also

dismissed. The learned advocate appearing for the

management sought time for making payment of the :: 6 ::

arrears. Four weeks time was granted by the Supreme

Court.

4. Since the management did not comply with the

order, the appellants preferred Contempt Petitions in

C.C.C.Nos.4013-4020/2012 before this court. No further

action was taken in the contempt proceeding as liberty

was granted to the appellants to approach the appropriate

authority for calculation of arrears and therefore they

approached the first respondent under section 131 of the

Karnataka Education Act for calculating the arrears of

increments, DA, etc., The first respondent also did not

initiate action and this prompted the appellants to once

again initiate contempt proceedings by filing CCC

Nos.4273-4280/2013. These proceedings were disposed

of as the first respondent made a submission before the

contempt court that she would pass orders by calculating

the arrears as per the directions given in W.Ps.83558-

83565/2011. Thereafter the first respondent passed an

order on 8.1.2014 and directed the management to pay :: 7 ::

the arrears within 15 days with a further observation that

if the management failed to comply with the order, it

would recommend to the Dental Council for de-recognition

of the college. In spite of the order by the first

respondent, the management showed no response and

therefore the appellants once again filed Writ Petition Nos.

205135 and 205137-141/2014 seeking writ of mandamus

to the first respondent for implementation of its order

dated 8.1.2014. Though the writ petitions were allowed

on 24.6.2019, neither the first respondent nor the

management took any action and consequently the

appellants initiated contempt action by filing CCC Nos.

200246-251/2019. In the contempt proceedings, it was

found that calculation was required to be done and

therefore the counsel appearing for the respective parties

were directed to calculate the arrears of salary, dearness

allowance, increments, etc., Then on 5.4.2021 the first

respondent passed an order directing the management to

pay to each appellant a certain sum of money being the

arrears.

:: 8 ::

5. Since the management took no action, the

appellants moved application for reviving the contempt

proceedings. The management instead of making a

submission before the court in the contempt proceeding,

changed the advocate and got filed Writ Petition No.

201481/2021 challenging the order dated 05.04.2021 of

the first respondent. The writ petition was allowed on

10.2.2022 and this is the order challenged in this writ

appeal.

6. We have heard the arguments of Sri P.Vilaskumar,

learned senior counsel appearing for the appellants, Sri

Viranagouda Biradar, Additional Government Advocate,

and Sri Krupa Sagar Patil and Sri L.K Subramanya for the

management.

7. It was the argument of Sri P.Vilaskumar that the

series of writ petitions, writ appeals and contempt

proceedings would only show that the management has

decided not to honour the direction given by this court to

settle the legitimate claims of the appellants. It was :: 9 ::

clearly held by this court that the appellants were not

required to acquire post graduate qualification as they

were all appointed much before amendment was brought

to Dental Council Regulations. The first respondent is to

implement its order dated 8.1.2014. It is made very clear

in W.P.Nos. 83558-83565/2011 that appellants are all

entitled to till-date increments withheld by the

management from the year 2004, pay and applicable

dearness and other allowances attached to the post of

lecturers as well as revised pay scales applicable to

Government employees including fifth pay commission

benefits and the revised dearness allowance. That means

the appellants have to be paid salary on par with pay

scale applicable to the lecturers in government colleges

and that they are also entitled to claim other allowances

as applicable to government employees. This is the clear

meaning that can be gathered if the order in W.Ps. 83558-

83565/2011 is read. Following this order, the first

respondent passed an order on 9.4.2021 holding that each

appellant was entitled to a certain sum of money as :: 10 ::

mentioned therein. This fixation was in accordance with

fitment table which was applicable to teaching staff of the

Government Dental College. It is clearly observed by the

first respondent that the contention of the respondents

(the management herein) that the petitioners (appellants)

were not entitled to other benefits, cannot be accepted.

The order of the first respondent clearly shows the

manner in which he could arrive at the figures of arrears

that each appellant was entitled to be paid. This being the

case, the learned Judge of the writ court should not have

remanded the case to the first respondent for re-

calculation of the arrears. The writ petition filed by the

management was misconceived and it was not

maintainable. In this view, the impugned order is

required to be set aside and the management should be

directed to pay the arrears. He also submitted that the

contempt petition should be revived as the management

has utterly failed to honour the directions given by this

court.

:: 11 ::

8. Sri L.K.Subramanya appearing for the

management argued that while there is no dispute that

the pay scale of the appellants must be on par with the

lecturers in Government Dental Colleges, so far as other

allowances such as DA, HRA, CCA, etc., are concerned,

the appellants cannot claim parity with the Government

college lecturers. He submitted that there are three types

of institutions namely the institutions run by the

Government, institutions run by the private management

with the aid of the Government and the institutions run by

the private management without the aid of the

Government. For the first two types, the pay and other

allowances are paid from the Government fund and for the

institutions being run by the management without aid,

only pay scale is applicable and the appellants cannot

claim allowances as are applicable to government

employees, for the management has to take a decision in

that regard keeping in mind its financial resources. In the

case on hand the dental college is run without the aid of

the Government, the appellants cannot put forth claim for :: 12 ::

the allowances equal to that of lecturers in Government or

aided institutions. He referred to the judgments of this

court in the case of Sri Siddartha Education Society vs

Tumkur District Technical Institutions Non-Teaching

Employees Union and Others

[Manu/KA/0724/2002], the Karnataka Lingayat

Education Society and Others vs Siddappa G Namba

and Others [Manu/KA/1288/2017] and Gadigayya

and Others vs K.L.E Society and Others

[Manu/KA/1626/2018].

9. Referring to the earlier order in W.Ps.83558-

83565/2011 and connected matters, he argued that it

does not state that the appellants should be paid

allowances that are applicable to Government employees.

The appellants are under a wrong impression that they

can claim parity with the Government college lecturers in

so far as allowances are concerned. The management

was constrained to file Writ Petition 201481/2021 because

the first respondent arrived at a calculation in regard to :: 13 ::

arrears payable to the appellants without any basis and

without understanding the order of this court in W.Ps.

83558-83565/2011. In the order impugned, the learned

single Judge has rightly come to conclusion that the

calculation done by the first respondent is incorrect and

for the purpose of recalculation, the matter deserved

remand to the first respondent. There are no infirmities in

the impugned order and hence the writ appeal is to be

dismissed.

10. In regard to contempt petition, it was the

argument of Sri Subramanya that it is not the intention of

the management to withhold the arrears that the

appellants are entitled to. Once the first respondent takes

proper decision based on the rules and regulations

applicable to un-aided educational institutions, arrears if

any will be paid. Already the management has made

payment and this only shows that the intention of the

management is not to disobey the orders and directions of :: 14 ::

this court. Therefore he submitted that the contempt

proceeding should not be revived.

11. On the basis of the arguments of Sri Vilaskumar

and Sri L.K.Subramanya, it can be noticed that the point

of controversy is whether the appellants can claim parity

with lecturers of the Government college in the matter of

allowances.

12. It is not in dispute that the dental college being

run by the management is an unaided institution. For this

reason the scale of pay applicable to teaching and non-

teaching staff of unaided institution is governed by Rule 5

of the Karnataka Private Educational Institutions

(Discipline and Control) Rules, 1978. Rule 5 reads as

below :

"The scale of pay of an employee of an institution shall not be lower than the scale of an employee of a corresponding post in the Government educational institutions."

:: 15 ::

13. Pay does not include allowances. It is for this

reason, in the earlier decisions of this court, the following

view has been taken : -

In the case of Siddartha Educational Society

(supra), the learned single Judge of this court clearly

held that,

" 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 :: 16 ::

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 :: 17 ::

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."

14. Following the judgment in Siddartha

Educational Society, another single Judge bench in the

case of The Karnataka Lingayat Society and Others

(supra) reiterated the very same principle in para 21 of

his judgment as below :

"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 Court in Sri.Siddartha Education Society Vs. Tumkur District Technical Institutions Non-Teaching Employees Union, ILR 2003 (Kar.HC) 163, (supra), vide paragraph 22 quoted above, :: 18 ::

made this position clear, but, it appears that said judgment was not brought to the notice of the Labour Court at the time of decision in the impugned order passed by the Labour Court."

15. Then the Division Bench of this court in the case

of Gadigayya vs KLE Society (supra), the same view

has been taken in the following words :-

"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 Court 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."

16. Therefore the consistent view in all the judicial

pronouncements is that the employees of unaided :: 19 ::

educational institutions can claim parity with the

employees of government educational institutions only

with respect to pay scale and not the allowances. The

unaided institutions are run from the fee collected by the

management from the students; therefore payment of

allowance part is left to the discretion of the management.

The appointment of teaching and non-teaching staff in the

unaided institutions is essentially in the nature of a

contract and once the employees get into the services in

the unaided institutions, they are bound by the terms of

appointment and they cannot claim parity in regard to

payment of allowances with that of government

employees. With this prelude, now the order in

W.Ps.83558-83565/2011 and connected writ petitions is

to be referred to here as the appellants and the

management have understood it in their own ways. The

operative portion is extracted here : -

"W.P.Nos.83558-83565/2011 are accepted. W.P.No. 83333/2011 is dismissed. Annexure-A dated 05.07.2011 made by the V-

:: 20 ::

respondent is quashed. Respondents I to III in W.P.Nos.83558-83565/2011 are directed to pay to petitioners increments withheld by them from the year 2004 till date and pay salary, applicable dearness allowance attached to the post of lecturers as well as revised pay scales applicable to Government employees, including fifth pay commission benefits and revised dearness allowance from time to time till date, within a period of three months from today. Respondents I to III shall continue to pay the salary and other benefits as stated hereinbefore notwithstanding the fact that petitioners have not acquired MDS qualification. The payment of non-practicing allowance shall be as per policy to be evolved by the management."

(emphasis supplied)

17. Sri Vilaskumar submitted that according to this

order, the appellants are not only entitled to pay scale but

also to allowances as applicable to the government

employees. He stressed the term "as well as" in the

sentence. But, Sri L.K.Subramanya submitted that the

order does not entitle the appellants to claim the :: 21 ::

allowances payable to teaching staff in government

colleges and it only refers to pay scale.

18. In our opinion, the interpretation given by Sri

Vilaskumar is difficult to be accepted. The operative

portion in the writ petition must be understood in the

background of the entire discussion made by learned

single Judge while disposing of the writ petition. In para 6

of the order it is clearly observed that in the amended

regulations of DCI, it is not stated that the lecturers who

were appointed with BDS qualification in terms of DCI

Regulations, 1983 should acquire MDS qualification to

continue as lecturers or non-acquisition of MDS

qualification will affect salary paid to them as per Rule 5 of

the Karnataka Private Educational Institution (Discipline

and Control) Rules, 1978. That means the clear

observation is that the salary being paid to the appellants

since inception was according to Rule 5 which only speaks

about pay scale and not the allowances. Even in para-5 of

the judgment of the Division Bench of this court between :: 22 ::

the parties herein in W.A.No.10336/2011 c/w

W.A.10337/2011, it is stated that respondents 4 to 11,

i.e., the appellants were getting salary in terms of Rule 5.

In this view, it can be stated further that the appellants

have right to claim parity only with respect to pay scale

and not the allowances. It is a misnomer that the term,

'as well as' used as a conjunction in the sentence found in

the operative portion of the order in W.Ps.83558-

83565/2011 provides a link to the latter part to interpret

that the expression, 'as applicable' also refers to

allowances. Therefore the position that becomes further

clear is that the appellants can claim parity with the

government college teaching staff only in regard to pay

scale and not allowances, which has to be fixed by the

management having regard to its financial resources.

19. We may refer to the order passed by the Division

Bench in CCC (Civil) Nos. 4013-4020/2012. Para 19 is

extracted below : -

:: 23 ::

"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."

20. The observation made here is to follow

Karnataka Education Act, 1983 or any other permitted

process of law. The order does not state that arrears of

allowance payable to the appellants must be calculated in

terms of allowances payable to the Government college

employees.

21. The order passed in W.P.205135 and 205137-

205141/2014 refers to the order of the Government dated

8.1.2014 which makes a reference to applicability of

Karnataka Private Educational Institutions (Discipline and

Control) Rules. Therefore the directions given in these

writ petitions to the first respondent was to comply with :: 24 ::

the order dated 8.1.2014 which means arrears must be

calculated by applying Rule 5. Sri Vilaskumar argued that

this order favours the appellants, but we do not think so.

22. The appellants insist on the management that it

should follow the order dated 8.1.2014. The actual

direction found in this order is,

""ªÉÄîÌAqÀ CA±ÀUÀ¼À »£É߯ÉAiÀÄ°è Karnataka Private Educational

Institution (Discipline & Control) Rules, 1978 ¥ÀæPÁgÀ qÁ.ªÉÆúÀ£ï ¥ÀÄgÀA¨sÀ ªÀÄvÀÄÛ EvÀgÀjUÉ ªÀiÁ£Àå GZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ ¤zÉÃð±À£ÀzÀAvÉ GvÉÛÃPÀ (3) gÀ°è£À ¸ÀPÁðgÀzÀ DzÉñÀUÀ¼À°è£À fitment

table UÀ¼À£ÀéAiÀÄ F »AzÉAiÉÄà ªÉÃvÀ£ÀªÀ£ÀÄß ¤UÀ¢UÉƽ¹ ¨ÁQ ªÉÃvÀ£ÀªÀ£ÀÄß ¥ÁªÀw¸À®Ä PÀæªÀÄ PÉÊUÉƼÀÄîªÀAvÉ PÉÆÃjgÀĪÀÅzÀ£ÀÄß C£ÀĵÁ×£ÀUÉƽ¹ ªÀgÀ¢AiÀÄ£ÀÄß 15 ¢£ÀUÀ¼À M¼À ¸À°è¸ÀĪÀAvÉ ¸ÀÆa¹zÉ."

23. It is clear from this order also that the entire

arrears must be calculated according to the Karnataka

Private Educational Institutions (Control and Discipline)

Rules which is applicable to pay scale only. But the first

respondent while passing the order on 05.04.2021

pursuant to a direction given by this court to calculate the :: 25 ::

arrears payable to the appellants, did not accept the

contention of the management that according to the order

in W.P.83558/2011, the appellants were only entitled to

claim pay scale as notified by the fifth pay commission,

and not allowances. This observation, in our opinion is

wrong because of aforementioned discussion.

24. The learned Judge of the writ court has in his

impugned order clearly observed that there is no

discussion by the appellate authority, i.e., the first

respondent as to how the claim of the contesting

respondents (appellants herein) was considered similar to

that of Government Dental College teaching staff despite

the fact that the college was a private unaided education

institution governed under the provisions of the Rules.

The learned single Judge has also observed that the first

respondent's order does not indicate the manner of

quantification of the sum. This finding in our opinion

stands to reason. Therefore we do not find any infirmity

in the impugned order in remanding the case to the first :: 26 ::

respondent for redoing the entire process. In this view,

this writ appeal has to fail and therefore it is dismissed.

25. The writ petition was allowed on 10.2.2022

giving a direction to the first respondent, i.e., the Principal

Secretary, Medical Education, Government of Karnataka,

to consider the claim of the appellants within an outer

limit of six months from the date of receipt of certified

copy of the order. It appears no action has been taken

during pendency of the writ appeal. Appellants have been

fighting for the last several years and therefore we hereby

direct the first respondent to calculate the entire arrears

payable to the appellants within a period of two months

from the date of receipt of a copy of this order and

thereafter the management, within a month from the date

of first respondent's order shall, after adjusting the

payments if any made by them, pay the balance to the

appellants, if any amount is found due.

:: 27 ::

26. As we have upheld the order of the single Judge,

the contempt petitions CCC 200246-251/2019 cannot be

revived.

Sd/-

JUDGE

Sd/-

JUDGE

KMV/ckl