Karnataka High Court
The State Of Karnataka And Ors vs Ashok And Ors on 18 December, 2023
Author: R.Devdas
Bench: R.Devdas
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WA No. 200174 of 2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE C M JOSHI
WRIT APPEAL NO.200174 OF 2021 (S-RES)
BETWEEN:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
EDUCATION DEPARTMENT,
(PRIMARY & SECONDARY EDUCATION),
M.S.BUILDING,
DR.B.R.AMBEDKAR VEEDHI,
BENGALURU - 560 001.
2. THE COMMISSIONER FOR
PUBLIC INSTRUCTIONS
Digitally signed by
KALABURAGI,
VARSHA N DIST.KALABURAGI - 585 102.
RASALKAR
Location: High
Court Of Karnataka
3. THE DEPUTY DIRECTOR (ADMN.)
DEPARTMENT OF PUBLIC INSTRUCTIONS,
BIDAR, DISTRICT BIDAR - 585 401.
4. THE BLOCK EDUCATION OFFICER
BIDAR, DISTRICT BIDAR - 585 401.
...APPELLANTS
(BY SRI. MALLIKARJUN C. BASAREDDY, GA)
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WA No. 200174 of 2021
AND:
1. SRI ASHOK
S/O SHIDRAMAPPA PATIL,
AGED ABOUT 57 YEARS,
R/O 1143 ALIYABAD POST,
NAVABAD,
TQ. AND DIST. BIDAR - 585 402.
2. THE PRESIDENT
SHANTHI KIRANA
EDUCATIONAL INSTITUTION (R)
BIDAR, DISTRICT BIDAR - 585 401.
3. THE HEAD MASTER
BAL BHARATHI HIGHER PRIMARY SCHOOL,
MURUKHAL,
TQ. & DIST. BIDAR - 585 401.
...RESPONDENTS
(BY SMT. RATNA N. SHIVAYOGIMATH, ADVOCATE FOR R1;
SRI KRUPA SAGAR PATIL, ADVOCATE FOR R2 AND R3)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT - 1961, PRAYING TO CALL FOR
RECORDS OF W.P.NO.201365/2018 (S-RES) DATED
20.01.2021 ON THE FILE OF THE LEARNED SINGLE JUDGE,
HIGH COURT OF KARNATAKA, KALABURAGI BENCH,
KALABURAGI AND SET ASIDE THE ORDER PASSED BY THE
LEARNED SINGLE JUDGE, HIGH COURT OF KARNATAKA,
KALABURAGI BENCH, KALABURAGI IN W.P.NO.201365/2018
DATED 20.01.2021.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
R.DEVDAS J., DELIVERED THE FOLLOWING:
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WA No. 200174 of 2021
JUDGMENT
R. DEVDAS J., (ORAL):
The State and the Department of Public Instructions
are in appeal seeking to assail the impugned order passed
by the learned Single Judge in W.P.No.201365/2018 dated
21.01.2021.
2. The first respondent/writ petitioner approached
the learned Single Judge seeking a direction to quash
Annexure-G dated 25.01.2018/01.02.2018 and sought for
a writ of mandamus directing the appellants herein to
release the salary of the petitioner from 06.04.2015. It is
the contention of the writ petitioner that he was appointed
as Headmaster in the Bal Bharathi Higher Primary School,
Markhal, Taluk and District Bidar, which is an aided
institution. In the year 2010, it appears that the writ
petitioner participated in the Zilla Panchayat and Taluk
Panchayat elections. He was elected and served in that
capacity for a period of five years and returned back to the
school and sought permission to continue as a
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Teacher/Headmaster and he was permitted to resume
duty from 06.04.2015 and therefore, the writ petitioner
gave the representation at Annexure-F seeking release of
salary from 06.04.2015. During the course of these
proceedings before the learned Single Judge, the writ
petitioner attained the age of superannuation and he
retired as Headmaster of the Institution on 31.05.2020.
3. The learned Single Judge accepted the
contentions of the writ petitioner that the reasoning in the
impugned endorsement at Annexure-G is that the
petitioner did not work between 2010 and 2015 and
therefore, he could not be given the salary. However, it is
not disputed that the petitioner resumed duty from
06.04.2015 and therefore, the reasoning furnished by the
appellant authorities to decline payment of salary from the
date when he resumed office on 06.04.2015 cannot be
sustained.
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4. Learned Government Advocate would draw the
attention of this Court to Rule 25 of the Karnataka
Educational Institutions (Recruitment and Terms and
Conditions of Service of Employees in Private Aided
Primary and Secondary Educational Institutions) Rules,
1999 to be read with Rule 53 of the Grant-in-Aid Code for
aided, primary schools in Mysuru, effective from 1st of
April, 1969. Learned Government Advocate would submit
that the two provisions make it clear that a
teacher/employee of an aided institution is precluded from
participating in politics or taking part in elections. Any
action in contravention of the provision would constitute
misconduct. The Grant-in-Aid Rules would provide that no
Grant-in-Aid shall be admissible in respect of services, if
any, rendered by such teachers, who engaged themselves
in political activities of any kind. In fact, Rule 53 of the
Grant-in-Aid Rules would make it clear that if any teacher
is desirous in participating in any political activity or
desirous of contesting for any election to the State
Legislative Assembly, Legislative Council, Lok-Sabha,
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Rajya-Sabha, Taluk Board, Municipal Council or
Corporation or any other local body, such teacher is
required to sever his or her connection with the school
concerned. In that view of the matter, learned
Government Advocate would submit that it was
impermissible for the respondent/Management of the
Institution to grant permission to the writ petitioner or
permit resumption of duty.
5. Per contra, Smt.Ratna N. Shivayogimath,
learned counsel appearing on behalf of respondent
No.1/writ petitioner would submit that if it is the
contention of the appellant/State and its authorities that
such an action on the part of the writ petitioner would
amount to misconduct, then, appropriate action should
have been initiated for dismissing the writ petitioner from
service. However, such action has not been taken by the
respondent/State. On the other hand, the writ petitioner
was permitted to resume duties from 06.04.2015 and
information has been given by the management to the
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appellant/authorities that the writ petitioner has resumed
duties and therefore, the petitioner requested payment of
salary. Moreover, learned counsel would submit that the
High Court of Kerala had an occasion to deal with such
provisions contained in the State Enactments, which would
debar the teachers/staff of the Private Educational
Institutions from taking part in elections. The High Court
of Kerala in the case of Moosa, Manager, AMLP School
and another Vs. State of Kerala and others in
W.P(C).No.16198/2010, by order dated 24.02.2021,
declared such provision has ultra vires Article 21A of the
Constitution of India. However, learned counsel would also
fairly submit that the State of Kerala questioned the said
order before the Hon'ble Supreme Court and the Hon'ble
Supreme Court in the case of A.N.Anurag and another
Vs. The State of Kerala and Others in SLP (Civil)
Dairy No.6004/2021, by order dated 18.03.2021 has
stayed the orders passed by the High Court of Kerala in
the case of Moosa (Supra). In that view of the matter, the
learned counsel would submit that leave may be granted
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to the writ petitioner to raise a challenge to such
provisions which are ultra vires Article 21A of the
Constitution of India. The learned counsel for the
respondent No.1/Writ petitioner also drew the attention of
this Court to Annexure-H, which is a Government Order
dated 26.08.2003 and submits that under similar
circumstances, benefit was given to one of the
teachers/lecturers namely Sri.L.K.Chouhan, who had
contested in the elections of the Legislative Assembly and
having been elected, he served as the member of the
Legislative Assembly for a period of five years. Thereafter,
he returned and resumed duties as lecturers. In that case,
by virtue of Government Order dated 26.08.2003, the
State Authorities permitted him to draw the salaries from
the date he resumed work.
6. Having heard the learned Government
Advocate, the learned counsel for the respondent
No.1/writ petitioner and learned counsel for the
respondent/Management and on perusing the appeal
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memo, this Court of is of the considered opinion that no
Court can pass an order contrary to the provisions of law.
If the rule mandates that no permission can be granted to
a teacher/staff of the Private Aided Educational Institutions
to contest in elections, it was impermissible for the
respondent/management to permit the writ petitioner to
participate in the elections. Moreover, the writ petitioner
did not wait till the actual permission was given by the
appellant/authorities. The Rules of the Grand-in-Aid Code
are very clear that if a teacher/staff of the aided institution
seeks to contest in elections, he or she is required to sever
the relationship with the school and the management. It is
also clear that no Grand-in-Aid would be admissible in
respect of such services, even if it is rendered at the
instance of the management. Therefore, if the
management has permitted the writ petitioner to resume
duties without seeking the permission of the
appellant/authorities, then, the management is to blame
itself and if required, the writ petitioner may proceed
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against the management seeking payment of arrears of
salary.
7. The other contention of the learned counsel for
respondent No.1/writ petitioner that similar benefit was
given to another teacher/lecturer, would be of no avail,
since it is a settled position of law that the constitutional
mandate flowing out of Article 14 of the Constitution of
India cannot be pressed into service to perpetuate
illegality. A reference may be made to Gurusharan Singh
Vs. New Delhi Municipal Administration reported in
(1996) 2 SCC 459 and State of Bihar Vs. Kameshwar
Prasad Singh reported in (2000) 9 SCC 94. Therefore,
such a contention cannot be accepted.
8. This Court is also of the opinion that in respect
of the retiral benefits of the respondent No.1/writ
petitioner, cause of action arose only on 31.05.2020
during the pendency of the writ petition. Therefore, if the
respondent No.1/writ petitioner is aggrieved of the non-
payment of the retiral benefits, it is open for the
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respondent No.1/writ petitioner to take action in
accordance with law.
9. However, insofar as the prayer made in the writ
petition is concerned and the impugned orders passed by
the learned Single Judge directing the
appellant/authorities to consider the request of the
petitioner for release of salary for work done from
06.04.2015 until the date of the petitioner demitting the
office, the same cannot be sustained in view of the
express provisions of the extant rules. In that view of the
matter, the writ appeal succeeds.
10. Accordingly, the writ appeal is allowed, while
setting aside the impugned order passed by the learned
Single Judge in W.P.No.201365/2018 dated 20.01.2021.
Ordered Accordingly.
Needless to observe that respondent No.1/writ
petitioner is free to raise a challenge to such rules which
prevent a teacher/employee of a Private Educational
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Institution from participating in politics or taking part in
elections, if so advised.
Sd/-
JUDGE
Sd/-
JUDGE
VNR/NR
