Karnataka High Court
Shri T Thimmaiah vs The State Of Karnataka on 12 December, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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WP No. 5491 of 2012
C/W WP No. 11266 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION No.5491/2012
C/W
WRIT PETITION No.11266/2010 (S-RES)
IN W.P.No.5491/2012:
BETWEEN:
1. SHRI.T.THIMMAIAH,
S/O THIMMASIDDAIAH,
AGED 52 YEARS, NOW WORKING AS
SECOND DIVISION ASSISTANT,
SRI.SIDDESHWARA RURAL COMPOSITE COLLEGE,
KESTHUR, TUMKUR TALUK AND DISTRICT.
SINCE DECEASED
1(a) SMT. MANJULA (2ND WIFE)
W/O LATE THIMMAIAH, AGED ABOUT 30 YEARS,
1(b) SRI.PRAKASH.T.,
Digitally S/O LATE THIMMAIAH, AGED ABOUT 26 YEARS,
signed by
KIRAN
KUMAR R 1(c) KUMARI. PAVITHRA.T., D/O LATE THIMMAIAH,
Location:
HIGH AGED ABOUT 10 YEARS, (MINOR)
COURT OF REPRESENTED BY HER MOTHER
KARNATAKA
NATURAL GUARDIAN.
ALL ARE RESIDING AT SUGGAIAYANAPALYA,
SOMPURA HOBLI, NDAVANDA POST,
NELAMANGALA TALUK,
BANGALORE RURAL DISTRICT-562 111.
...PETITIONERS
(BY SRI. HAREESH.T.BHANDARY., ADVOCATE)
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WP No. 5491 of 2012
C/W WP No. 11266 of 2010
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS
PRINCIPAL SECRETARY-I,
DEPARTMENT OF PRIMARY AND SECONDARY
EDUCATION,
M.S.BUILDING,
AMBEDKAR VEEDHI,
BANGALORE-560 001.
2. THE DEPUTY SECRETARY,
AND APPELLATE TRIBUNAL,
DEPARTMENT OF PRIMARY AND SECONDARY
EDUCATION, M.S.BUILDING,
AMBEDKAR VEEDHI,
BANGALORE-560 001.
3. THE COMMISSIONER,
DEPARTMENT OF PRE-UNIVERSITY EDUCATION,
18TH CROSS ROAD,
SMAPIGE ROAD, MALLESHWARAM,
BANGALORE-560 003.
4. THE JOINT DIRECTOR, (ADMINISTRATION)
DEPARTMENT OF PRE-UNIVERSITY EDUCATION,
18TH CROSS, ROAD, SAMPIGE ROAD,
MALLESHWARAM, BANGALORE-560 003.
5. THE DEPUTY DIRECTOR,
DEPARTMENT OF PRE-UNIVERSITY EDUCATION,
TUMKUR DISTRICT,
TUMKUR.
6. THE SECRETARY,
SIDDESHWARA RURAL EDUCATIONAL TRUST.
KESTHUR, TUMKUR TALUK AND DISTRICT.
...RESPONDENTS
(BY SRI.HARISH.A.S, AGA FOR R-1 TO R-5;
SRI.M.P.SRIKANTHA, ADVOCATE FOR R-6)
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WP No. 5491 of 2012
C/W WP No. 11266 of 2010
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE IMPUGNED ORDER ISSUED BY THE FOURTH RESPONDENT
WHICH IS APPROVED BY THE THIRD RESPONDENT DATED
19.01.2012 VIDE ANNEXURE-D, ETC.
IN W.P.No.11266/2010:
BETWEEN:
1. SRI SIDDESHWARA RURAL EDUCATION SOCIETY
KESTURU, TUMKUR TALUK,
TUMKUR.
REPRESENTED BY ITS SECRETARY.
2. SRI.K.N.HANUMANTHARAYA,
AGED ABOUT 46 YEARS,
PEON SRI SIDDESHWARA RURAL COMPOSITE
PRE-UNIVERSITY COLLEGE,
KESTURU, TUMKUR TALUK,
TUMKUR.
...PETITIONERS
(BY SRI. M.P.SRIKANTH, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF PRIMARY & SECONDARY
M.S.BUILDING, DR.AMBEDKAR VEEDHI,
BANGALORE-560 003.
2. THE DEPUTY SECRETARY TO GOVERNMENT,
DEPARTMENT OF PRIMARY & SECONDARY
M.S.BUILDING,
DR.AMBEDKAR VEEDHI,
BANGALORE-560 003.
3. THE COMMISSIONER,
PREUNIVERSITY EDUCATION DEPARTMENT
18TH CROSS, MALLESWARAM,
BANGALORE-560 003.
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WP No. 5491 of 2012
C/W WP No. 11266 of 2010
4. THE DEPUTY DIRECTOR,
PRE UNIVERSITY EDUCATION,
TUMKUR.
5. SRI.T.THIMMAIAH,
AGE:MAJOR,
SECOND DIVISION ASSISTANT,
VIJAYALAKSHMI PRE UNIVERSITY COLLEGE,
BALELE, KODAGU TALUK,
MADIKERI DISTRICT.
SINCE DECEASED
5(a) SMT. MANJULA (2ND WIFE)
W/O LATE THIMMAIAH,
AGED ABOUT 30 YEARS,
5(b) SRI.PRAKASH.T.,
S/O LATE THIMMAIAH,
AGED ABOUT 26 YEARS,
5(c) KUMARI. PAVITHRA.T.,
D/O LATE THIMMAIAH,
AGED ABOUT 10 YEARS, (MINOR)
REPRESENTED BY HER MOTHER
NATURAL GUARDIAN.
ALL ARE RESIDING AT
SUGGAIAYANAPALYA,
SOMPURA HOBLI, NDAVANDA POST,
NELAMANGALA TALUK,
BANGALORE RURAL DISTRICT-562 111.
Note:Vide Order dated:04.09.2023.
Since the legal representatives of the deceased
T.Thimmaiah are already on record in
W.P.No.5491/2012, they shall be treated as the LRs
of R-5 in W.P.11266/2010
...RESPONDENTS
(BY SRI.HARISH.A.S, AGA FOR R-1 TO R-4;
SRI.HAREESH.T.BHANDARY, ADVOCATE FOR LRs., OF
DECEASED R-5)
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WP No. 5491 of 2012
C/W WP No. 11266 of 2010
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA, PRAYING TO QUASH
THE ORDER DATED:23.03.2010 PASSED BY THE R-2 ON
APPEAL No.59 OF 2008 VIDE ANNEXURE-U, ETC.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 04.09.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING
ORDER
1. On 07.07.2003, in M.A. (EAT No.3/2001) the
Educational Appellate Tribunal passed an order in favour of
T.Thimmaiah (respondent No.5 in W.P.No.11266/2010 and
the petitioner in W.P.No.5491/2012), directing that the
Second Division Assistant, who was working in Shri.
Krishna Pre-University College, Dabbaspete, be transferred
to Vijayalakshmi Pre-University College, Balele, Kodagu
Taluk, to hold the post which had fallen vacant as a result
of the retirement of the incumbent i.e., Sri. B.N.
Ganapathi.
2. Pursuant to the said order, the Director of Pre-
University Education passed an order transferring
T.Thimmaiah to Vijayalakshmi Pre-University College,
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Balele, since a post had fallen vacant pursuant to the
retirement of B.M.Ganapathi, and T.Thimmaiah
accordingly reported for duty on 23.06.2005.
3. On 12.06.2006, the Principal of Vijayalakshmi Pre-
University College addressed a letter to the authorities
stating that there was no workload for T.Thimmaiah and
therefore, it would be proper to transfer him to any other
Pre-University College.
4. Pursuant to the said recommendation, the
authorities, thereafter, sought the approval of the
Government for transferring T.Thimmaiah, and the
Government accorded its approval on 07.08.2006. The
authorities, thereafter, called upon Sri.Siddeshwara
Charitable Registered Trust who was running Siddeshwara
Composite Pre-University College at Kesthur, to accept the
transfer of T.Thimmaiah since one Chandrashekar, a
Second Division Assistant who was holding the post in that
College, had passed away.
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5. The College, in turn, responded stating that in their
college, there was an existing 'D' Group employee eligible
for promotion and they intended to fill up the said post by
granting promotion, and therefore, they were not prepared
to give their No Objection Certificate for transfer.
6. It appears that the authorities, thereafter, sought to
ascertain whether there was any vacant post in the
Second Division Assistant posts in the Districts, but they
found that there was no vacant post available and
consequently, it was found that Sri.Siddeshwara Pre-
University College at Kesthur was the only College which
had a vacant Second Division Assistant post due to the
death of an incumbent employee therein.
7. The Government, in view of the fact that the only
vacancy for sanction of Second Division Assistant post was
available at Sri.Siddeshwara Pre-University College,
proceeded to pass an order on 14.07.2008, transferring
T.Thimmaiah as a Second Divisional Assistant and this
order was passed in exercise of its powers conferred under
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Rule 23(2) of the Karnataka Pre-University Education
(Academic institution administration and grant-in-aid)
Rules, 2006 (hereinafter referred to as "the 2006
Rules").
8. Being aggrieved by this order of transfer,
Sri.Siddeshwara Rural Education Society and
K.Hanumanthaiah, who was working as a Peon in
Sri.Siddeshwara Rural Pre-University College, have filed
this Writ Petition. Apart from seeking quashing of the
order of transfer, a prayer is also sought to direct the
authorities to approve the promotion of petitioner to the
post of a Second Division Assistant.
9. The petitioner has sought, by way of an amendment
of the Writ Petition, to raise additional grounds, along with
a prayer to declare that Rule 23(2) of 2006 Rules is ultra
vires the provisions of the Karnataka Education Act, 1983
("the Act", for short).
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10. Two years after the abovementioned Writ Petitions
were filed, T.Thimmaiah has preferred Writ Petition
No.5491/2012 on 17.02.2012, seeking quashing of the
communication dated 19.01.2012, by which his claim for
payment of wages for the period between 23.07.2008 and
16.02.2011 was refused on the ground that he was not
working in the said period and had reported for duty at
Siddeshwara Pre-University College only on 17.02.2011. A
prayer is also sought to issue a mandamus directing the
Commissioner of Pre-University Education Department to
release his salary for the period between 23.07.2008
16.02.2011.
11. It is T.Thimmaiah's contention that pursuant to the
order of transfer dated 14.07.2008, which was challenged
by the Management, he tried to report for duty but the
Management did not allow him to join the institution and
discharge his duties, but on the contrary, they had
challenged his transfer by preferring an appeal in Appeal
No.59/2008 and the Appellate Authority, by an order
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dated 28.03.2010, refused to entertain the appeal and
directed the Management to take T.Thimmaiah into
service, while also holding that he was entitled to
backwages. It is his contention that despite the order, the
Management, instead of taking him back to duty, has
proceeded to file a Writ Petition and since this Court
refused to grant an interim order, he was taken into duty.
12. T.Thimmaiah contends that he was working in an
aided institution and that his salary was paid by the
Government, but since he had been treated as excess
staff, he was transferred from one institution to another
and was only allowed to join duty on 17.02.2011, meaning
that for the period between 23.07.2008 and 16.02.2011,
he had not been paid any salary. T.Thimmaiah contends
that for no fault of his, he was denied work and due to the
inability of the authorities to provide him an employment,
he cannot be denied his salary on the ground that he did
not discharge his duties.
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13. Sri.M.P.Srikanth, learned counsel appearing for the
Management, contended that Rule 23(2) which enables
the Commissioner/Director Pre-University Education to
transfer any Teaching and Non-Teaching Personnel
working in an aided Pre-University College (who were
found to be surplus due to lack of workload) to another
aided Pre-University College, scuttles the right of the
Management to administer the institution.
14. It is his contention that this Rule is contrary to
Section 98(2) of the Act, which requires the State
Government to appoint a person to a similar post in
another aided institution. He submits that since Section
98(2) of the Act mandates that an appointment shall be
made to a post which became vacant pursuant to
retrenchment, the Rule which enables the Director to
transfer an employee of one aided institution to another,
where a post was vacant, would be illegal.
15. It is also contended that the Management would
have the right to choose its employee and the entire
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process of recruitment would have to be undertaken by
the Management, subject, of course, to the approval of the
Government, and this would mean that the Government
has the power to impose on any person working in an
institution to be an employee of another institution. It is
contended that the Government, by virtue of this action,
has virtually become a de facto regulator of all aided
educational institutions and this is contrary to the
provisions of the Act, which confers the power on the
Governing Council to appoint employees.
16. He relied upon the judgment rendered by a Co-
ordinate Bench of this Court in Sri Taralabalu Jagadguru
Education Society1 to contend that this Court had laid
down the law that the Government cannot take away the
responsibility of appointment of staff of an institution. He
also submitted that this judgment was in consonance with
Sri Taralabalu Jagadguru Education Society, Sirigeri, Chitradurga District v.
State of Karnataka and Others, (2005)1 KLJ 361.
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the decision of the Hon'ble Supreme Court rendered in the
case of T.M.A. Pai Foundation2.
17. He also stated that a Co-ordinate Bench of this
Court, in W.P.No.33101 of 2014 and connected matters,
had read down Section 98 of the Education Act to the
effect that in the matter of allocating / transferring an
employee from one institution to another, the same could
be done only with the consent of the Governing Council. It
was sought to be contended that the transfer of an
employee virtually amounts to imposing an employee on
an unwilling employer and that the same is impermissible.
18. The State, per contra, contends that by virtue of the
statutory rules framed in exercise of powers conferred
under the Education Act and also by virtue of the fact that
the salaries for the sanctioned posts were borne by the
Government across the State, the State has been given
the absolute right to ensure that the employees drawing
T.M.A. Pai Foundation and Others vs. State of Karnataka and Others.,
(2002) 8 SCC 581.
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salary out of the State exchequer are utilized completely
and in this regard, where it was found that there was
insufficient workload for an employee in one institution, in
order to ensure that the aid that is granted by the
Government is put to complete use, such surplus staff are
permitted to be accommodated in any other institution
which is also aided and where a post is vacant. It is
submitted that such kind of appropriation and
management of manpower with respect to a person who is
drawing salary from the State Government cannot, in any
way, be considered as illegal or arbitrary.
19. It is also contended that the provisions in the Cadre
and Recruitment Rules ("the C and R Rules", for short)
were amended to state that posts cannot be kept vacant
for more than one year, and the Management of an
institution, which does not bear the burden of paying such
employee's salary, cannot contend that it has a right to
transfer an employee and therefore, a transfer cannot be
effected.
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20. As far as the legality of the provision is concerned, it
is submitted that the 2006 Rules have been framed in
exercise of statutory power conferred under Section 145 of
the Act, and as a matter of fact, Section 87 of the Act
makes it clear that the State Government can make Rules
regulating the recruitment and conditions of service,
including the rights as regards disciplinary matters of the
employees in recognized private educational institutions
and such statutory rules would have to be accepted. It is
contended that if the State has been conferred with the
power to frame rules, the legislative competence of the
same cannot be questioned.
21. It is contended that the argument that Rule 23(2) of
the 2006 Rules is in contravention of Section 98(2) of the
Act is wholly misconceived. It is submitted that Section 98
relates to retrenchment of an employee and it cannot be in
dispute that retrenchment means the termination of
service for a reason which is not attributable to the
employee or even the employer. It is contended that the
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concept of retrenchment cannot be made applicable to a
case where a post falls vacant due to the death,
resignation or retirement of an employee.
22. It is contended that Section 98 of the Education Act
basically permits retrenchment of any employee, subject
to the prior approval of the competent authority and
where such retrenchment is effected, the State
Government is required to accommodate such retrenched
employee to a similar post available in any other aided
educational institution and therefore, the State cannot
have absolute application in cases where post falls vacant.
23. It is contended that the power of transfer from one
institution to another institution in respect of the posts,
which are admitted to a salary grant, would lie within the
domain of the Government, since the Government is
bearing the cost of the employee. It is contended that it is
the absolute prerogative of the Government to ensure that
the posts that it had approved for grant is utilized to its
fullest extent and in this context, the State would have the
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power to transfer staff from one institution to another
when it is found that the staff did not have requisite
workload.
24. It is also contended that the decisions relied upon
are completely inapplicable and having regard to the fact
that Chapter-V of the 2006 Rules comprehensively take
care of every situation in relation to an aided College, it is,
therefore, not open for the Management to contend that
the State Government does not have the power to transfer
an employee.
25. In light of the above contentions advanced, the
questions that would have to be considered in these Writ
Petitions are:
i. Whether the Management of an educational
institution can challenge the power of the
Government to transfer an employee from
one aided institution to another aided
institution?
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ii. Whether Rule 23 (2) of the 2006 Rules is
illegal and arbitrary and liable to be struck
down?
26. In respect of the petition filed by T.Thimmaiah, the
point that would arise for consideration is:
Whether T.Thimmaiah can be denied salary
for the period 23.07.2008 to 16.02.2011 on
the ground that he had not discharged his
duties in an aided institution?
27. As far as the petition filed by the Management is
concerned, it would be appropriate to have an overview of
the provisions of the Act, insofar as it relates to the terms
and conditions of service of employees in private
educational institutions enumerated in Chapter-XIV of the
Education Act, for a proper understanding of the issues
raised in these petitions.
28. Section 87 of the Act enables the Government to
make Rules to regulate the recruitment and conditions of
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service, including the rights, as regards disciplinary
matters of the employees in recognized private
educational institutions. Thus, the Rules that are framed
by the Government would govern the qualifications and
conditions of service of every employee of a private
educational institution. This would, therefore, indicate that
the Management does not, by itself, have an independent
right to govern the conditions of service of its employees
and they are determined by statutory rules governed by
the Government.
29. Section 88 of the Education Act prohibits any person
from being appointed to a private educational institution,
unless that person possesses the requisite qualifications
prescribed under Section 87 of the Education Act.
30. Section 89 of the Education Act states that the pay
and allowances given to persons employed in recognized
private institutions should be paid on or before such day of
every month as may be prescribed by the Government.
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31. Section 90 mandates that every institution should
maintain a schedule of employees indicating the number of
persons in its employment, the name and qualification of
each employee and the grade of pay, along with any other
particulars as may be prescribed.
32. These provisions, when read collectively, would
indicate that though the institution is managed by a
Committee, the terms and conditions of service of its
employees (including the pay scale) are governed
completely by the statutory rules.
33. Section 91 of the Act states that every employee
would be governed by the prescribed Code of Conduct and
if there was any violation of such provisions, he/she is
liable to be subjected to the prescribed disciplinary action.
Sub-section (2) of Section 91 makes it clear that the
Managing Committee, with the prior approval of the State
Government, can also prescribe standards of conduct to be
observed by the employees. Thus, even in respect of the
conduct of an employee, the same would be as per the
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rules framed by the Government. In case the Managing
Committee desires to impose its own standards of conduct
on the employees, they are required to be applied only
after the State Government approves it and only if they
are not inconsistent with the Code of Conduct framed by
the Government.
34. Section 92 of the Act bars the dismissal, removal or
reduction in rank of an employee of an institution unless it
is made in accordance with the conditions of service
governing them and after an enquiry has been conducted,
wherein an employee has been informed of the charges
against him and has been afforded reasonable opportunity
of being heard in the matter.
35. Sub-section (2) of Section 91 also mandates that no
penalty shall be imposed unless the employee is informed
in writing of the proposal to take action and is given an
opportunity to make any such representation, and a
penalty could be imposed only after such representation is
concerned.
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36. Sub-section (3) of Section 96 confers on the
Managing Committee the power to suspend an employee
in the circumstances stated therein, but it is made clear
that such suspension shall not remain in force for more
than six months and in case the enquiry is not completed
within six months, the Secretary of the Committee is
required to report the matter to the competent authority,
which may permit extension of such suspension. The
provision also makes it clear that the Managing Committee
is required to forthwith report to the competent authority
the circumstances under which the order was made, and it
also states that every employee who was placed under
suspension would be entitled to subsistence allowance.
37. These provisions, therefore, make it clear that
whether a private educational institution is aided or
unaided, the terms of recruitment, conditions of service,
code of conduct and the manner in which they have to be
proceeded against by way of initiating disciplinary action
or removed from service, are all governed by statutory
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rules, and in this entire process, prior approval of the
competent authority is a must. The provisions relating to
Chapter-XIV do not confer any independence on a private
educational institution to prescribe its own terms and
conditions for employing or removing an employee of the
institution.
38. To put it in other words, the power of the
Management in respect of prescribing the conditions of
service is virtually non-existent and is completely
dependent on the Rules framed by the State Government,
even if the salaries of the employees are borne by the
institution.
39. It is, therefore, clear that even in cases where the
expenses of an entire establishment such as salaries,
allowances, etc. are borne by the Managing Committee, it
cannot independently take a decision which affects the
conditions of service of any employee. Such conditions of
service are completely governed by the Rules framed
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under the Act and is subject to the supervision of the
authorities as prescribed under the Act.
40. Section 94 of the Act provides for an appeal to the
Educational Appellate Tribunal against dismissal, removal
or reduction in rank of an employee. Section 97 of the Act
provides for the manner in which an employee can submit
his resignation to the Governing Council of an institution.
41. It is, therefore, clear that not only recruitment but
also removal of an employee (including resignation) is
governed by the provisions of the Act.
42. Section 98 of the Act provides for retrenchment of
employees. It states that if retrenchment of any employee
is found necessary by the Governing Council as a result of
any change relating to education or course of instruction
or due to any other reason, retrenchment can be affected
only with the prior approval of the competent authority or
the next higher authority, as the case may be. In other
words, if an institution finds it necessary to terminate the
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services of an employee for any reason (including, for
example: the closure of a particular course of study), the
same can be effected only if the competent authority
under the Act accords approval.
43. In this regard, the meaning of the term
"retrenchment" becomes essential. The Rules in relation to
the Pre-University Colleges are also silent about the aspect
of 'retrenchment' in a Pre-University College. However, it
would be beneficial to look into the Rules that have been
framed in respect of retrenchment of employees of private
aided primary and secondary educational institutions as
per the Karnataka Educational Institutions (Recruitment
and Terms and conditions of Service of Employees in
Private Aided Primary and Secondary Educational
Institutions) Rules, 1999 (for short, "the 1999 Rules").
44. Though these Rules cannot be applicable to Pre-
University Colleges, the Principle that the Rule-maker
envisaged when it came to the point of retrenchment can
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be gathered from the Rules and hence, the same are being
referred to.
45. Rule 10 of the 1999 Rules reads as follows:
" 10. Retrenchment of employees:-
(1) An employee in an Institution may
be retrenched by the Governing
Council on the following grounds:
(a) Where the teacher pupil ratio falls
below the Standard Staffing
Pattern specified in Annexures IV
and V, as the case may be.
(b) Due to changes relating to
curriculum or student strength
the workload of a teacher in a
particular subject does not
warrant his continuation in a
particular institution.
(c) Closure of school due to lack of
infrastructural facilities, dispute
within the management or
between management and
teachers or any other reasons
which may be recorded in writing.
(d) The employee does not possess
the required educational
qualification.
(e) Where the competent authority or
the Government deletes the post
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from salary grant for the reasons
to be recorded in writing.
(f) For any of the above or for any
other reason as the Government
may deem fit which may be
recorded in writing.
(2) The procedure to be followed by the
Governing Council for retrenchment
of an employee of an Institution shall
be as follows:
(a) no employee of an Institution
whose appointment has been
approved with aid by the
Department shall be retrenched
by a Governing Council except for
reasons specified in sub-rule (1)
or section 98 of the Karnataka
Education Act, 1983.
(b) Where retrenchment is due to the
employees becoming surplus, the
junior-most employee in terms of
seniority list maintained in
accordance with the rule 8 in the
particular cadre and subject, shall
be retrenched.
(c) A notice shall be issued to the
employee proposed to be
retrenched stating the reasons in
writing for such retrenchment,
giving the employee an
opportunity to submit his written
statement of objection if any
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within fifteen days from the
receipt of such notice.
(d) On receipt of the written objection
received from the employee, he
shall be afforded an opportunity
to explain his stand in person if
such request has been made by
him/her in the written statement.
(e) The Governing Council shall on
the basis of grounds so
established send proposals to the
competent authority.
(f) The Competent Authority shall on
receipt of the proposal verify the
same and after ascertaining the
facts, that--
(i) the reason stated in the proposal
are in conformity with the
reasons stated in sub-rule (1);
(ii) that the employee is junior-most
as per the seniority list
maintained by the management
in the particular subject and
cadre;
(iii) accord approval to the
Governing Council to retrench
the employee so proposed by
giving one month's notice or
one month's salary in lieu of the
same.
(g) The Competent Authority shall
thereafter withdraw salary grant
in respect of such excess /
retrenched staff.
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(3) If the Governing Council does not
send the proposal, in accordance with
clause (e) of sub-rule (2) the
Competent Authority may give
directions to the Governing Council to
send proposals within a period of one
month, failing which salary grants in
respect of the entire institution shall
be withdrawn forthwith. "
46. As could be seen from the above, Rule 10(1) states
that an employee in an institution could be retrenched by
the Governing Council on six specified grounds. The
grounds specified are:
(a) Where the teacher pupil ratio falls below the
Standard Staffing Pattern specified in Annexures IV
and V, as the case may be;
(b) Due to changes relating to curriculum or student
strength the work load of a teacher in a particular
subject does not warrant his continuation in a
particular institution;
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(c) Closure of school due to lack of infrastructural
facilities, dispute within the management or between
management and teachers or any other reasons
which may be recorded in writing;
(d) The employee does not possess the required
educational qualification;
(e) Where the competent authority or the
Government deletes the post from salary grant for
the reasons to be recorded in writing; and
(f) For any of the above or for any other reason as
the Government may deem fit which may be
recorded in writing.
47. "Retrenchment" under the Industrial Disputes Act,
1947 (hereinafter referred to as "the I.D. Act") reads as
follows-
"Retrenchment" means the termination by
the employer of the service of a workman for any
reason whatsoever, otherwise than as a
punishment inflicted by way of disciplinary action,
but does not include--
(a) voluntary retirement of the workman; or
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(b) retirement of the workman on reaching the
age of superannuation if the contract of
employment between the employer and the
workman concerned contains a stipulation in that
behalf; or
(bb) termination of the service of the
workman as a result of the non-renewal of the
contract of employment between the employer
and the workman concerned on its expiry or of
such contract being terminated under a
stipulation in that behalf contained therein; or]
(c) termination of the service of a workman on
the ground of continued ill-health."
48. Though a definition under the I.D. Act cannot be
applied to this Act, for understanding the meaning of the
term "retrenchment", the said provision is also considered
in this judgment. As could be seen from the definition of
retrenchment in a statute relating to the I.D. Act which
governs the conditions to the workmen in industry, it
becomes clear that "retrenchment" means the termination
of services of any employee. The termination could, inter
alia, be due to surplus labour, surplus staff, lack of
financial capacity of the employer to pay the employee.
The essential attribute of retrenchment is that the services
of an employee come to an end but it is not a reason
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attributable to the performance or conduct of the
employee.
49. However, the provisions of the Act do not permit the
termination of such employment unless there is approval
by the competent authority. Sub-section (2) of Section 98
goes on to state that if such retrenchment is effected after
obtaining approval, the person retrenched is required to
be appointed to a similar post in any other aided
educational institution, subject to availability. Thus, even if
an employee is terminated with the approval of the
competent authority, nevertheless, such retrenched
employee is required to be accommodated in another
aided institution.
50. Thus, it is clear that retrenchment of an employee
would be for a reason which is not attributable to the
employee in any way.
51. From a plain understanding of the term
"retrenchment", the services of an employee are required
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to come to an end with the employer. A situation where an
employee has no workload and the law mandating that
such an employee is required to be appointed to another
establishment, cannot be construed as a case of
retrenchment.
52. It is, therefore, clear that the concept of
retrenchment, as indicated in the statutory Rules, would
be attracted only when laying off an employee has become
necessary due to reasons beyond the control of the
employer and the employee. In a case where a school is
aided and the salary of the employee is borne by the
State, and the law governing the school which mandates
that a school which cannot continue the services of such
employee is required to be accommodated in another
school, can never come within the concept of
retrenchment.
53. Section 99 of the Act mandates that if the service of
an employee is retrenched or terminated by the Governing
Council for reasons other than as a measure of
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punishment, the retrenched or terminated employee would
be entitled for compensation at the rate of 15 days' salary
for every completed year of service, subject to a minimum
of three months and a maximum of 15 months' salary.
Thus, even if the services of an employee are terminated
for any reason other than by way of punishment, the law
provides for grant of financial compensation.
54. Section 100 of the Act states that the provisions of
Chapter XIV would have an overriding effect,
notwithstanding anything contained in any law that may
be in force or any award, agreement or contract made
before or after the date of commencement of the Act. It is,
therefore, clear that the service conditions of an employee
would be governed by the provisions of Chapter 14 and
not by any other law or contract for service.
55. Section 101 of the Act states that if the competent
authority has formed an opinion that a disciplinary action
against an employee is necessary, it is empowered to
direct the Governing Council to take action within a
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specified period and if such action is not taken, the
competent authority is empowered to report the matter to
the State Government, and the State Government, after
considering the report, may specify a person or the
authority to take disciplinary action against the employee
and the person or authority appointed by the Government
is conferred with the power to take disciplinary action and
also impose any of the penalties that the Governing
Council may impose. Thus, in respect of an educational
institution (with or without grant) a provision is made
where the competent authority is empowered to direct
initiation of disciplinary action against an employee and if
such action is not taken, the competent authority is
permitted to report to the Government, and the
Government is thereupon empowered to initiate
disciplinary action through a specified person and also
who, in turn, would be empowered to impose penalty on
such employee of an institution.
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56. Thus, even if there is no relationship of an employer
and employee between the employee of a private
recognized institution and the State Government, by virtue
of Section 99, the authorities are permitted to direct
initiation of disciplinary action against an employee and
failing compliance with such direction, the State
Government is empowered to appoint a person to take
disciplinary action and impose penalty on the delinquent
employee. This indicates that a deemed relationship of
employer-employee is created by virtue of Section 101
and the State Government is given the power to ensure
that the conduct of an employee of a private recognized
educational institution is probed into and punished, if the
allegations are found to be proved.
57. A complete reading of the provisions of this Chapter
would, therefore, indicate that in respect of a private
educational institution, an employee's service conditions
are clearly governed by the Rules prescribed under the
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Statute and ultimately, the Government would have an
oversight of the entire process.
58. It is to be borne in mind that this is applicable to
both categories of institutions, those which are admitted to
aid and those which are not admitted to aid.
59. In respect of Pre-University Colleges, the 2006 Rules
have been framed. For the purposes of this Writ Petition,
Chapter V would be relevant.
60. Rule 15 indicates the manner of recruiting teaching
and non-teaching staff and states that a Managing
Committee would be competent to appoint the teaching
and non-teaching staff, subject to compliance of the
reservation roster prescribed by the Government.
61. The Rules pertaining to Chapter-V provide for
recruitment, procedure for recruitment, the mode of
notifying the vacancies, and also promotion to the cadre of
lecturers and to the post of a Principal.
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62. For the purpose of this case, Rule 21 of the 2006
Rules would be relevant and the same reads as under:
"21. Grant-in-aid to Private Pre-University
colleges.- (1) Subject to the financial capacity of the
Government, the scale of pay applicable to lecturers
and non-teaching personnel in Government Pre-
University Colleges in accordance with Karnataka
General Services (Pre-University Education
Recruitment) Rules, 1996 shall generally be applicable
to the teaching and non-teaching personnel in the
Aided Pre-University Colleges unless otherwise
ordered by the Government for the purpose of release
of grant-in-aid as extended by the Government, for
teaching and non-teaching aided employees from time
to time. The employees of Aided Pre-University
Colleges shall be eligible only for such benefits and
allowances that have been extended and sanctioned
specifically to such employees by the Government
from time to time.
(2) The posts and the persons working in such
posts in private aided Pre-University Colleges shall be
eligible for grant-in-aid only from the date of sanction
of the grant-in-aid by the Government and the earlier
period of un-aided service shall not count for any pay
fixation, increment, leave, seniority and other service
benefits including pension.
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(3) Consequent to the sanction of salary grant-in-
aid to an employee of aided Pre- University College,
the initial pay of such an employee shall be fixed at
the minimum of the pay scale applicable to the post
and he will not be eligible for any monetary benefits
either notionally or otherwise in respect of the earlier
period of un-aided service.
(4) Salary to a post in private aided Pre-
University College shall be stopped if the minimum
students strength per section as specified under these
rules is not maintained or fulfilled for consecutive
three academic years.
(5) Grant-in-aid may be released to non-teaching
staff of a private aided Pre-University College which
started functioning prior to first June, 1987 to the
posts specified in Schedule-VI of these rules if the
appointment and approval is made prior to first day of
June, 1992.
(6) In a private aided Pre-University College
where grant-in-aid is being released to more than one
non-teaching posts, if any such not-teaching post falls
vacant due to death or retirement or resignation, then
that post ceases to be eligible for grant. If in respect
of institutions started functioning prior to first day of
June 1987 all the clerical posts are unaided, as on the
date of coming into force of these rules, then grant-in-
aid may be released prospectively from the date of
issue of such order to only one post of either First
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Division Assistant or Second Division Assistant as the
case may be on the basis of seniority. If science
sections were to exist lawfully in such a college then,
grant-in-aid may be released to one post of laboratory
attender. But, grant-in-aid shall not be released to
non-teaching posts which were not in existence prior
to first June, 1987 and the appointment had not been
approved prior to first June, 1987 unless it is the only
post of First Division Assistant or Second Division
Assistant or the post of a Laboratory Attender.
(7) Whenever an employee of a private aided Pre-
University College is placed under suspension by the
Managing Committee, the managing committee shall
complete the disciplinary proceedings in respect of the
said employee within a period of six months from the
date of suspension and the Government may release
grant-in-aid for subsistence allowance of the said
employee for the period of said six months if prior
permission of the department is obtained for placing
the official under suspension. The managing
committee shall be liable to pay the subsistence
allowance to such an employee beyond the period of
six months of suspension.
(8) The Government may recover from the
managing committee of Private aided Pre- University
College the amount released by it as grant-in-aid if
the same is mis-utilised or embezzled or mis-
appropriated by the managing committee and it may
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be recovered as arrears of land revenue and while
doing so, the land and building owned by the
managing committee may be attached and sold by the
Deputy Commissioner of the concerned district under
the provisions of the Karnataka Land Revenue Act,
1964 to secure the amount and for effective recovery
of the dues."
63. As could be seen from Rule 21(6) of 2006 Rules, in a
private aided Pre-University College, where grant-in-aid
has been released for more than one non-teaching posts,
if any such non-teaching post falls vacant due to death,
retirement or resignation, then that post ceases to be
eligible for grant. It is, therefore, clear that whenever a
College is receiving grant-in-aid in respect of more than
one non-teaching posts, on the account of death,
retirement or resignation of the incumbent, then that post
statutorily ceases to be eligible for grant.
64. To put it in simpler terms, if the post of a Clerk is
admitted to grant-in-aid and that Clerk passes away, the
said post ceases to be eligible for grant and if the
Management decides to fill up that post on its own, in law,
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it will not be entitled to call upon the Government to
continue the salary grant for the said post. Thus, the
statutory rule indicates that in respect of a non-teaching
post, the post itself ceases to be eligible for grant, if it
becomes vacant either due to death, retirement or
resignation. Therefore, in the event a post becomes
vacant, say, as a result of retirement, the Management
cannot fill up that post by recruiting another person or by
promoting an eligible employee, and then seek
continuance of payment of salary to such employee
appointed to that vacant post.
65. Thus, the Rule indicates that the Government had
agreed to bear the salary grant in respect of an employee
who was occupying the post as on the date the Institution
was admitted to grant and its liability to pay the salary is
only until that particular employee continues in his/her
post. If the employee who was occupying the post at the
time the Institution was admitted to grant either retires,
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resigns or dies, then the liability of the Government to aid
the grant would automatically cease.
66. It is, no doubt, true that it is open for the
Management to fill up that post in the manner prescribed
under the relevant Rules, but if the Management fills up
that particular post either by way of recruitment or by way
of promotion, it cannot expect the State Government to
bear the salary of the person who has been appointed to
the vacant post. It is, therefore, clear that in the event the
Management wants the Government to pay salary in
respect of a particular post, it would have to necessarily
obtain a specific approval from the State Government and
it does not possess a right to promote or appoint an
employee of its choice, and subsequently, demand the
Government to continue to pay the salary grant.
67. It is to be noticed in this case that this particular
Rule is not under challenge. The petitioner - Institution is
basically challenging Rule 23(2) of the 2006 Rules.
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68. Rule 23 of the 2006 Rules reads as follows:
"23. Transfer of teaching and non-teaching staff
from one private aided Pre- University college to
another private aided Pre-University college.- (1)
The staff working in aided posts in a aided private pre-
university college may be transferred to an aided post
in another private pre-university college with the prior
approval of the Director, if the posts in both the
colleges are same in nature and both the managements
agree to the proposal. The person so, transferred will
be the junior most in the cadre in the transferred
college. However his service in the previous aided
institution will count for the purposes of salary, leave
and pensionary benefits.
(2) Teaching and non-teaching personnel working
in an aided Pre-University college against aided posts
found surplus due to lack of work load or for any other
reason shall be transferred by the
Commissioner/Director, Pre-University Education to
another aided Pre- University college either under the
same managing committee or under a different
managing committee against an aided post in the same
subject. However, the grant-in-aid shall be continue for
such aided posts till a vacancy is found in another aided
college. Action will be taken against both the
management and the officer concerned who are
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responsible for concealing the information regarding
availability of such vacancies."
69. As could be seen from the above, this Rule basically
provides for the staff working in aided posts (in an aided
private Pre-University colleges) to be transferred to an
aided post in another private Pre-University college,
subject to the prior approval of the Director. A further
condition was imposed that the posts in both the colleges
are similar in nature and both Managements have agreed
to the said proposal. It is also made clear that the person
transferred would be junior-most in the transferred
college, but his service rendered in the previous college
would be considered for the purpose of salary, leave and
pensionary benefits. This Rule would obviously operate in
a case where both Managements agree for such transfer.
Since both the Managements have agreed for the transfer,
there can obviously be no dispute regarding continuance
of the aid.
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70. Sub-Rule (2) of Rule 23 of the 2006 Rules, however,
would operate in a situation where it is found that teaching
and non-teaching personnel working in an aided Pre-
University college, against aided posts, are found to be in
excess due to lack of workload or for any other reason. It
basically mandates that such teaching and non-teaching
staff who do not have adequate workload are to be
transferred by the Commissioner/Director of Pre-University
Education to another aided Pre-University college, either
under the same managing committee or under a different
managing committee.
71. Thus, in cases where it is found that there is surplus
teaching and non-teaching personnel due to lack of
workload, the Commissioner is empowered to transfer
such employee to another aided Pre-University College. In
other words, the State does not want the employee that it
is paying for, to be idle and instead of resorting to
retrenchment which causes deprivation of the livelihood of
an employee, a provision was made to transfer such an
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employee to another aided Institution. In such case, the
question of obtaining the approval of the Managing
Committee of an aided Institution to which an order of
transfer would be made, would not be necessary,
fundamentally, because the transfer is being made to an
aided post in a different aided Institution.
72. The aided Institution, to which an employee is
transferred as a result of being surplus, cannot have any
objection, since there does exist a post in that Institution
for which salary is being paid by the Government. The
Management, as long as it is receiving grant-in-aid, would
be bound to accept an employee on transfer, since it is in
the interest of the State Government to ensure optimal
utilization of staff to whom the salary is being paid by the
Government. If the transferee Institution refuses to accept
the transfer, the State would be burdened with an
employee who does not have any work load and therefore,
it stands to logic that the State, by virtue of it bearing the
salary of an employee, is permitted to post that particular
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person so as to justify the salary that it is paying. The
aided Institution, which is completely dependent on the
Government for salary grant, cannot, in any way, curtail
this power of the Government to utilize an employee
whose salary is borne entirely by the State.
73. The argument that Rule 23(2) of the 2006 Rules is
contrary to Section 98(2) of the Education Act is wholly
misconceived.
74. As already stated above, "retrenchment" would mean
'termination of service of an employee other than
punishment'. An employee who has no workload cannot
automatically be liable for retrenchment. The State is
empowered to transfer said person to another aided
Institution. The relationship sought to be raised between
retrenchment contained in Section 98(2) of the Education
Act and Rule 23(2) of the 2006 Rules, cannot be accepted,
since retrenchment and transfer are complexly different
concepts and would have no bearing on each other. The
argument, in this regard, is therefore, rejected.
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75. Reliance placed on the judgment rendered by this
Court in the case of Sri Taralabalu Jagadguru
Education Society3 would have no application to the
present case, since at that relevant point in time, the 2006
Rules had not yet been enacted and the Court, therefore,
did not have an opportunity to consider the import of Rule
23 of the 2006 Rules.
76. The reliance placed on the judgment of the Apex
Court in the case of T.M.A. Pai Foundation (supra) can
also be of no consequence, since the Constitutional Bench
was not dealing with a statutory rule which provided the
manner in respect of which the conditions of service of an
employee were required to be governed. The Apex Court
has, in fact, observed in the said case that an aided
Institution cannot obtain the extent of autonomy in
relation to management and administration as would be
available to a private un-aided Institution. It is, no doubt,
stated that it cannot be treated as an educational
Sri Taralabalu Jagadguru Education Society, Sirigere v. State of Karnataka
& Others, (2005) 1 KAR.L.J. 361.
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Institution departmentally run by the Government or as a
wholly owned and controlled Government Institution, to
interfere with the constitution of the governing bodies or
thrusting staff without reference to Management, but this
particular observation would have to be considered in the
context of the fact that the Constitutional Bench was not
referring to any statutory Rule.
77. In the instant case, in respect of an employee who is
found to be surplus, the Government is basically
transferring that particular employee to another post to
which the Government was granting aid. In the event the
Management does not wish to receive the aid to that post,
it can inform the Government that the transfer need not
be made and that it would bear the cost of the particular
post, which was earlier admitted to aid. If an Institution
were to state that it does not wish to receive the aid and
that it should be given the liberty to fill up the post which
has fallen vacant, then, obviously, the Government cannot
transfer an employee to that post since that post would no
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longer be continued as an aided post. But as long as the
Management considers and demands that the earlier aided
post is to be continued, it would then necessarily have to
bear the brunt of Rule 23(2) of the 2006 Rules and would
have to accommodate the employee transferred by the
State Government.
78. The decision relied upon in the case of
Dharmarathnakara Rai Bahaddur Arcot
Narayanaswamy Mudaliar Educational Charities4
cannot be of any avail, since Rule 23(2) of the 2006 Rules
was not specifically considered and the reliance placed on
a Division Bench Ruling of this Court in
W.A.No.1411/20125 also cannot be considered since the
said decision also did not consider the effect of Rule 23(2)
of the 2006 Rules.
Dharmarathnakara Rai Bahaddur Arcot Narayanaswamy Mudaliar
Educational Charities v. State of Karnataka & Others, W.P.No.33101/2014 &
connected matters, disposed of on 30.03.2021.
disposed of on 11.10.2012.
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79. In the result, there is no merit in
W.P.No.11266/2010 filed by the Institution and the same
is, accordingly, dismissed.
80. As far as W.P.No.5491/2012 filed by Thimmaiah is
concerned, the post which Thimmaiah was holding was
admittedly permitted to receive grant-in-aid and he was,
therefore, entitled to receive his salary. Once it was found
that he did not have adequate workload, he was
transferred, and Thimmaiah also obeyed the order of
transfer by reporting for duty with the Management. If
Thimmaiah did not have any workload during the
interregnum, the Government cannot refuse to aid the
salary on the ground that he had not discharged any work.
It is to be stated here that only if an employee refuses to
discharge his duties would he be disentitled from receiving
salary. If an employer chooses not to make use of the
services of an employee, it cannot, thereafter, turn around
and say that the employee would not be entitled for
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salary, more so in the case of an employer like the State
Government.
81. In that view of the matter, since Thimmaiah was
holding a post admitted to grant-in-aid, he would be
entitled for the salary even for the period he did not have
sufficient workload i.e., for the period from 23.07.2008 to
16.02.2011. The writ petition of Thimmaiah i.e.,
W.P.No.5419/2012 is allowed. Since Thimmaiah is no
more, his legal representatives would be entitled for
receiving the salary for the aforesaid period.
Sd/-
JUDGE
HNM
