Karnataka High Court
Dr. Bhagirathi vs The State Of Karnataka And Ors on 27 November, 2023
Author: R.Devdas
Bench: R.Devdas
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WA No. 200148 of 2023
C/W WA No. 200163 of 2023
WA No. 200164 of 2023
WA No. 200167 of 2023
WA No. 200168 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE C M JOSHI
WRIT APPEAL NO. 200148 OF 2023 (S-TR)
C/W
WRIT APPEAL NO. 200163 OF 2023
WRIT APPEAL NO. 200164 OF 2023
WRIT APPEAL NO. 200167 OF 2023
WRIT APPEAL NO. 200168 OF 2023
IN W.A.NO.200148 OF 2023
BETWEEN:
Digitally signed by DR. SUGANDHA
SOMANATH
PENTAPPA MITTE W/O CHAMING SHEIH
Location: High
Court Of Karnataka
AGE: 56 YEARS,
OCC: LECTURER IN ORAL SURGERY
IN S.NIJALINGAPPA INSTITUTE OF DENTAL
SCIENCE & RESEARCH, JAYA NAGAR,
RING ROAD, KALABURAGI - 585 105.
...APPELLANT
(BY SRI. P. VILAS KUMAR, SENIOR COUNSEL FOR
SRI.NITESH PADIYAL, ADVOCATE)
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WA No. 200148 of 2023
C/W WA No. 200163 of 2023
WA No. 200164 of 2023
WA No. 200167 of 2023
WA No. 200168 of 2023
AND:
1. THE STATE OF KARNATAKA
THROUGH ITS PRINCIPAL SECRETARY,
DEPARTMENT OF REVENUE,
M.S. BUILDING,
DR.B.R AMBEDKAR VEEDHI
BENGALURU - 01.
2. THE HYDERABAD KARNATAKA EDUCATION SOCIETY
THROUGH ITS PRESIDENT,
PDA ENGINEERING COLLEGE CAMPUS
AIWAN-E-SHAHI AREA,
KALABURAGI - 585 102.
3. THE PRL. SECRETARY
HEALTH & FAMILY PLANNING DEPARTMENT
(MEDICAL EDUCATION)
VIKAS SOUDHA, BENGALURU - 01.
4. THE REGIONAL COMMISSIONER
KALABURAGI REGION,
KALABURAGI-585102.
(THE THEN DIVISIONAL COMMISSIONER)
5. THE DISTRICT REGISTRAR OF SOCIETIES
& CO-OPERATIVE SOCIETIES
KALABURAGI - 585 102.
6. THE PRINCIPAL
HKE SOCIETY'S S.NIJALINGAPPA DENTAL COLLEGE
OPP. JAYA NAGAR, RING ROAD
KALABURAGI - 585 105.
...RESPONDENTS
(BY SMT. MAYA T.R., HCGP FOR R1 AND R3 TO R5;
SRI. KRUPA SAGAR PATIL, ADVOCATE FOR R2 AND R6)
THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO ALLOW THE
APPEAL FILED BY APPELLANT BY SETTING ASIDE THE ORDER
OF LEARNED SINGLE JUDGE, PASSED IN W.P. NO.201841/2022
WHICH HAS BEEN PASSED IN COMMON ORDER DATED:
22-09-2023 IN THE INTEREST OF JUSTICE.
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WA No. 200148 of 2023
C/W WA No. 200163 of 2023
WA No. 200164 of 2023
WA No. 200167 of 2023
WA No. 200168 of 2023
IN W.A.NO.200163 OF 2023
BETWEEN:
DR. BHAGIRATHI
AGE: MAJOR,
OCC: LECTURER IN DEPT. S.NIJALINGAPPA
INSTITUTE OF DENTAL SCIENCE & RESEARCH,
R/O. PLOT NO.30, H.NO.2-911/12/7/30
BEHIND HANUMAN TEMPLE,
PRASHANT NAGAR, KALABURAGI - 585 102.
...APPELLANT
(BY SRI. P. VILAS KUMAR, SENIOR COUNSEL FOR
SRI. NITESH PADIYAL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH ITS PRINCIPAL SECRETARY,
DEPARTMENT OF REVENUE,
M.S. BUILDING,
DR.B.R AMBEDKAR VEEDHI
BENGALURU - 01.
2. THE HYDERABAD KARNATAKA EDUCATION SOCIETY
THROUGH ITS PRESIDENT,
PDA ENGINEERING COLLEGE CAMPUS
AIWAN-E-SHAHI AREA,
KALABURAGI - 585 102.
3. THE PRL. SECRETARY
HEALTH & FAMILY PLANNING DEPARTMENT
(MEDICAL EDUCATION)
VIKAS SOUDHA, BENGALURU - 01.
4. THE REGIONAL COMMISSIONER
(THE THEN DIVISIONAL COMMISSIONER)
KALABURAGI REGION,
KALABURAGI - 585 102.
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NC: 2023:KHC-K:8843-DB
WA No. 200148 of 2023
C/W WA No. 200163 of 2023
WA No. 200164 of 2023
WA No. 200167 of 2023
WA No. 200168 of 2023
5. THE DISTRICT REGISTRAR OF SOCIETIES
& CO-OPERATIVE SOCIETIES
KALABURAGI - 585 102.
REP. BY ITS DISTRICT REGISTRAR.
6. THE PRINCIPAL
HKE SOCIETY'S S.NIJALINGAPPA DENTAL COLLEGE
OPP. JAYA NAGAR, RING ROAD
KALABURAGI - 585 105.
7. COMMUNITY HEALTH CENTRE,
RAJAPUR,
KALABURAGI DISTRICT 585 103.
...RESPONDENTS
(BY SMT. MAYA T.R., HCGP FOR R1, R3 TO R5 AND R7;
SRI. KRUPA SAGAR PATIL, ADVOCATE FOR R2 AND R6)
THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO ALLOW THE
APPEAL FILED BY APPELLANT BY SETTING ASIDE THE ORDER
OF LEARNED SINGLE JUDGE, PASSED IN W.P. NO.201865/2022
WHICH HAS BEEN PASSED IN COMMON ORDER DATED 22-09-
2023 IN THE INTEREST OF JUSTICE.
IN W.A.NO.200164 OF 2023
BETWEEN:
DR.CHANNABASAVA
AGED ABOUT 51 YEARS,
OCC: LECTURER IN CONSERVATIVE DENTISTRY IN
S.NIJALINGAPPA INSTITUTE OF DENTAL SCIENCE &
RESEARCH CENTRE, JAYA NAGAR, KALABURAGI
R/O. PLOT NO.95, AKKA MAHADEVI COLONY,
BESIDE IT KEONICS PARK, KALABURAGI - 58 5103.
...APPELLANT
(BY SRI. P. VILAS KUMAR, SENIOR COUNSEL FOR
SRI. NITESH PADIYAL, ADVOCATE)
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NC: 2023:KHC-K:8843-DB
WA No. 200148 of 2023
C/W WA No. 200163 of 2023
WA No. 200164 of 2023
WA No. 200167 of 2023
WA No. 200168 of 2023
AND:
1. THE STATE OF KARNATAKA
THROUGH ITS PRL. SECRETARY,
DEPARTMENT OF REVENUE,
M.S. BUILDING, DR.B.R AMBEDKAR VEEDHI
BENGALURU - 01.
2. THE HYDERABAD KARNATAKA EDUCATION SOCIETY
THROUGH ITS PRESIDENT,
PDA ENGINEERING COLLEGE CAMPUS
AIWAN-E-SHAHI AREA,
KALABURAGI - 585 102.
3. THE PRL. SECRETARY
HEALTH & FAMILY PLANNING DEPARTMENT
(MEDICAL EDUCATION)
VIKAS SOUDHA, BENGALURU - 01.
4. THE REGIONAL COMMISSIONER
(THE THEN DIVISIONAL COMMISSIONER)
KALABURAGI REGION,
KALABURAGI -585102.
5. THE DISTRICT REGISTRAR OF SOCIETIES
& CO-OPERATIVE SOCIETIES
KALABURAGI - 585 102.
REP. BY ITS DISTRICT REGISTRAR.
6. THE PRINCIPAL
HKE SOCIETY'S S.NIJALINGAPPA DENTAL COLLEGE
OPP. JAYA NAGAR, RING ROAD
KALABURAGI - 585 105.
7. COMMUNITY HEALTH CENTRE,
HEBBAL, KALABURAGI 585 103.
REP. BY CHIEF MEDICAL OFFICER.
...RESPONDENTS
(BY SMT. MAYA T.R., HCGP FOR R1, R3 TO R5 AND R7;
SRI. KRUPA SAGAR PATIL, ADVOCATE FOR R2 AND R6)
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WA No. 200148 of 2023
C/W WA No. 200163 of 2023
WA No. 200164 of 2023
WA No. 200167 of 2023
WA No. 200168 of 2023
THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO ALLOW THE
APPEAL FILED BY APPELLANT BY SETTING ASIDE THE ORDER
OF LEARNED SINGLE JUDGE, PASSED IN W.P. NO.201864/2022
WHICH HAS BEEN PASSED IN COMMON ORDER DATED 22-09-
2023 IN THE INTEREST OF JUSTICE.
IN W.A.NO.200167 OF 2023
BETWEEN:
DR. KIRAN
W/O. DEEPAK TOSHNIWALA
AGE: 53 YEARS,
OCC: LECTURER IN DEPT. OF PROSTHODONTICS
HKE'S DENTAL COLLEGE, KALABURAGI.
R/O.H.NO.7-11-52 "GURU"
OPP S.B.PETROL PUMP,
GUNJ COLONY, KALABURAGI - 585 101.
...APPELLANT
(BY SRI. P. VILAS KUMAR, SENIOR COUNSEL FOR
SRI. NITESH PADIYAL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH ITS PRL. SECRETARY,
DEPARTMENT OF REVENUE,
M.S. BUILDING, DR.B.R AMBEDKAR VEEDHI
BENGALURU - 01.
2. THE HYDERABAD KARNATAKA EDUCATION SOCIETY
THROUGH ITS PRESIDENT,
PDA ENGINEERING COLLEGE CAMPUS
AIWAN-E-SHAHI AREA, KALABURAGI - 585 102.
3. THE PRL. SECRETARY
HEALTH & FAMILY PLANNING DEPARTMENT
(MEDICAL EDUCATION)
VIKAS SOUDHA, BENGALURU - 01.
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NC: 2023:KHC-K:8843-DB
WA No. 200148 of 2023
C/W WA No. 200163 of 2023
WA No. 200164 of 2023
WA No. 200167 of 2023
WA No. 200168 of 2023
4. THE REGIONAL COMMISSIONER
KALABURAGI REGION,
KALABURAGI -585102.
(THE THEN DIVISIONAL COMMISSIONER)
5. THE DISTRICT REGISTRAR OF SOCIETIES
& CO-OPERATIVE SOCIETIES
KALABURAGI - 585 102.
6. THE PRINCIPAL
HKE SOCIETY'S S.NIJALINGAPPA DENTAL COLLEGE
OPP. JAYA NAGAR, RING ROAD
KALABURAGI - 585 105.
7. COMMUNITY HEALTH CENTRE,
RAJAPUR, KALABURAGI District - 585 103.
REP. BY CHIEF MEDICAL OFFICER.
...RESPONDENTS
(BY SMT. MAYA T.R., HCGP FOR R1, R3 TO R5 AND R7;
SRI. KRUPA SAGAR PATIL, ADVOCATE FOR R2 AND R6)
THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO ALLOW THE
APPEAL FILED BY APPELLANT BY SETTING ASIDE THE ORDER
OF LEARNED SINGLE JUDGE, PASSED IN W.P. NO.201866/2022
WHICH HAS BEEN PASSED IN COMMON ORDER DATED:
22-09-2023 IN THE INTEREST OF JUSTICE.
IN W.A.NO.200168 OF 2023
BETWEEN:
1. DR. VIJAY W/O LATE SAINATH NALGE
AGE: 57 YEARS,
OCC: LECTURER IN S.NIJALINGAPPA
DENTAL COLLEGE, JAYA NAGAR, RING ROAD,
KALABURAGI - 585 105.
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NC: 2023:KHC-K:8843-DB
WA No. 200148 of 2023
C/W WA No. 200163 of 2023
WA No. 200164 of 2023
WA No. 200167 of 2023
WA No. 200168 of 2023
2. DR. KISHORE MORE
S/O. ANAND RAO MORE
AGE: 59 YEARS,
OCC: LECTURER IN S.NIJALINGAPPA
DENTAL COLLEGE,
JAYA NAGAR, RING ROAD,
KALABURAGI - 585 105.
...APPELLANTS
(BY SRI. P. VILAS KUMAR, SENIOR COUNSEL FOR
SRI. NITESH PADIYAL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH ITS PRL. SECRETARY,
DEPARTMENT OF REVENUE,
M.S. BUILDING,
DR.B.R AMBEDKAR VEEDHI
BENGALURU - 01.
2. THE HYDERABAD KARNATAKA
EDUCATION SOCIETY
THROUGH ITS PRESIDENT,
PDA ENGINEERING COLLEGE CAMPUS
AIWAN-E-SHAHI AREA,
KALABURAGI - 585 102.
3. THE PRL. SECRETARY
HEALTH & FAMILY PLANNING DEPARTMENT
(MEDICAL EDUCATION)
VIKAS SOUDHA, BENGALURU - 01.
4. THE REGIONAL COMMISSIONER
(THE THEN DIVISIONAL COMMISSIONER)
KALABURAGI REGION,
KALABURAGI-585102.
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NC: 2023:KHC-K:8843-DB
WA No. 200148 of 2023
C/W WA No. 200163 of 2023
WA No. 200164 of 2023
WA No. 200167 of 2023
WA No. 200168 of 2023
5. THE DISTRICT REGISTRAR OF SOCIETIES
& CO-OPERATIVE SOCIETIES
KALABURAGI - 585 102.
REP. BY DISTRICT REGISTRAR.
6. THE PRINCIPAL
HKE SOCIETY'S S.NIJALINGAPPA
DENTAL COLLEGE
OPP. JAYA NAGAR, RING ROAD
KALABURAGI - 585 105.
7. THE MEDICAL OFFICER,
COMMUNITY HEALTH CENTRE,
GOVERNMENT GENERAL HOSPITAL,
ALAND, KALABURAGI DISTRICT - 585 101.
8. RURAL SATELLITE DENTAL HEALTH CENTRE
PRIMARY HEALTH CENTRE, KARAJAGI
AFZALPUR TALUKA,
KALABURAGI DISTRICT - 585 102.
...RESPONDENTS
(BY SMT. MAYA T.R., HCGP FOR R1, R3 TO R5, R7 & R8;
SRI. KRUPA SAGAR PATIL, ADVOCATE FOR R2 AND R6)
THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO ALLOW THE
APPEAL FILED BY APPELLANT BY SETTING ASIDE THE ORDER
OF LEARNED SINGLE JUDGE, PASSED IN W.P. NO.201901/2022
WHICH HAS BEEN PASSED IN COMMON ORDER DATED:
22-09-2023 IN THE INTEREST OF JUSTICE.
THESE APPEALS ARE COMING ON FOR ADMISSION, THIS
DAY, R.DEVDAS J., DELIVERED THE FOLLOWING:
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WA No. 200148 of 2023
C/W WA No. 200163 of 2023
WA No. 200164 of 2023
WA No. 200167 of 2023
WA No. 200168 of 2023
JUDGMENT
R.DEVDAS J., (ORAL);
The appellants are all serving with the respondent No.2-
Society in the Dental College. Being aggrieved of the transfer
orders, the appellants filed writ petitions in
W.P.No.201865/2022 and connected matters. Since the issue
raised was common, all the writ petitions were clubbed and
heard together and disposed of by a common order dated
22.09.2023. The respondent No.2-Society raised preliminary
issue regarding maintainability of the writ petition on the
ground that the respondent No.2-Society is a private institution
and therefore the alleged transfer orders could not have been
questioned by filing a writ petition under Article 226 of the
Constitution of India. The respondent No.2-Society pressed into
service a decision of the Hon'ble Supreme Court in the case of
St.Mary's Education Society Vs. Rajendra Prasad
Bhargava, reported in AIROnline 2022 SC 1324. The
learned Single Judge accepted the contentions of the
respondent No.2-Society and in the light of the said judgment,
held that the respondent No.2-Soceity being a private society,
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the employees of a private educational institution cannot invoke
the jurisdiction of this Court under Article 226 of the
Constitution of India in respect of matters regarding the service
conditions which are not governing or controlled by statutory
provisions. It was noticed that the respondent No.2-Society has
a separate service manual governing the service conditions of
its employees/lecturers and therefore the writ petitions were
dismissed.
2. Learned Senior Counsel Sri.P. Vilas Kumar,
appearing for the appellants would vehemently contend that
during the course of the proceedings before the learned Single
Judge, an application was filed under 151 of CPC seeking a
direction to respondent Nos.4 and 5 to produce all the
necessary and corrected documents which led to the formation
or registration of the respondent No.2-Society in the year 1958.
The learned Senior Counsel has also taken this Court through
some documents pertaining to the registration of respondent
No.2-Society and would contend that the initial deposits were
collected by the Divisional Commissioner, Gulbarga Division,
and the memorandum of society would show that the initial
members were the Divisional Commissioner, Gulbarga, Deputy
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Commissioner, Gulbarga, and a few others. The challan for
payment of the registration amount would also show the name
of Divisional Commissioner, Gulbarga. The learned Senior
Counsel would therefore contend that respondent No.2-Society
is not a Private Educational Institution and therefore the
respondent No.2-Society is amenable to the jurisdiction of this
Court under Article 226 of the Constitution of India.
3. Having regard to the documents sought to be cited
by the learned Senior Counsel, we are not persuaded to accept
the submission of the learned Senior Counsel. The question is
whether respondent No.2-Society is a Government Institution
or a Private Educational Society. If it is a Government
Institution, the employees of the institution would become
Government employees and they will have to approach the
Karnataka State Administrative Tribunal to redress their
grievances. On the other hand, even if the respondent No.2-
Society is an aided institution, still the employees of the society
will have to approach the competent authority under the
statute governing the service conditions under the contract. It
has been contended by the 2nd respondent Society that it is an
unaided Institution.
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4. In that view of the matter, we are of the considered
opinion that the impugned judgment passed by the learned
Single Judge dismissing the writ petitions only on the ground
that the writ petitions could not be maintained as the issue
brought before this Court is regarding orders of transfer passed
by respondent No.2-Society which would be an aspect falling
out of the contract between the employer and the employee,
cannot be faulted.
5. The Hon'ble Supreme Court in the said decision in
the case of St.Mary's Education Society (supra) has held in
clause C and D of the paragraph No.68 as follows;
"(c) It must be consequently held that while a
body may be discharging a public function or
performing a public duty and thus its actions
becoming amenable to judicial review by a
Constitutional Court, its employees would not have
the right to invoke the powers of the High Court
conferred by Article 226 in respect of matter relating
to service where they are not governed or controlled
by the statutory provisions. An educational institution
may perform myriad functions touching various
facets of public life and in the societal sphere. While
such of those functions as would fall within the
domain of a "public function" or "public duty" be
undisputedly open to challenge and scrutiny
under Article 226 of the Constitution, the actions or
decisions taken solely within the confines of an
ordinary contract of service, having no statutory
force or backing, cannot be recognised as being
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amenable to challenge under Article 226 of the
Constitution. In the absence of the service conditions
being controlled or governed by statutory provisions,
the matter would remain in the realm of an ordinary
contract of service.
(d) Even if it be perceived that imparting
education by private unaided the school is a public
duty within the expanded expression of the term, an
employee of a nonteaching staff engaged by the
school for the purpose of its administration or
internal management is only an agency created by it.
It is immaterial whether "A" or "B" is employed by
school to discharge that duty. In any case, the
terms of employment of contract between a school
and nonteaching staff cannot and should not be
construed to be an inseparable part of the obligation
to impart education. This is particularly in respect to
the disciplinary proceedings that may be initiated
against a particular employee. It is only where the
removal of an employee of nonteaching staff is
regulated by some statutory provisions, its violation
by the employer in contravention of law may be
interfered by the Court. But such interference will be
on the ground of breach of law and not on the basis
of interference in discharge of public duty."
6. We are therefore of the opinion that even if the
appellants herein make out a case of vindictive action on the
part of respondent No.2-Society in passing the orders of
transfer, the action would arise of a contract between the
parties and it does not fall within the functions of a public duty
as held by the Hon'ble Supreme Court. For the appellants to
invoke the jurisdiction of this Court, they have to convince this
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Court that there is a breach of statutory law which apparently is
absent in the present cases.
Consequently, we dismiss the appeals.
However, since the learned Senior Counsel submitted that
during the course of the proceedings before the learned Single
Judge there was an interim order protecting the interest of the
appellants, and since this Court has held that the appellants will
have to approach the competent authority, the orders passed
by the learned Single Judge and this Court will not take effect
for a period of 30 days, from the date of receipt of a copy of
this order, in order to enable the appellants to approach the
competent authority and seek redressal, including interim order
to protect their interest.
Ordered accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
MSR
