Karnataka High Court
Karnataka Liberal Education Society, ... vs State Of Karnataka And Others on 19 April, 1996
Equivalent citations: AIR1997KANT93, ILR1996KAR2144, 1996(5)KARLJ616, AIR 1997 KARNATAKA 93, 1997 LAB. I. C. 244 (1996) ILR (KANT) 2144, (1996) ILR (KANT) 2144
Author: Tirath S. Thakur
Bench: Tirath S. Thakur
ORDER
1. This writ petition calls in question an order dated 15th Nov. 1994 issued by the Deputy Director of Collegiate Education, Dharwad refusing to accord approval to the appointment of 4 principals selected and appointed by the petitioner-Society and directing it to make appointments to the existing vacancies based on the seniority list as it stood on 31st Dec. 1995. The facts in brief may be stated thus:
2. The petitioner is an educational Society running nearly 60 educational Institutions in the State of Karnataka of which 19 are Degree Colleges. All these Colleges most of which arc aided, are under the control of the Directorate of Collegiate Education of the Government of Karnataka.
3. The U.G.C. Pay Scales were extended to the Teachers employed in Degree Colleges in the State by a Government Order dated 30th March 1990. As per the Scheme so introduced, with effect from 1-1-1986. there have to be only three cadres of Teachers in Degree Colleges namely Lecturers, Lecturers (Sr. Scale) and Lecturers (Selection Grade). By Orders dated 16th Feb. 1993, and 3rd of March, 1993, issued by the Directorate of Public Instructions promotions and appointments made after the 1st of January, 1986 were refused recognition and the Institutions directed to maintain the seniority list as the same stood on 31st Dec. 1985 i.e. immediately preceding the date of introduction of the UGC scales until further orders. Aggrieved by the said orders, some Teachers employed in the petitioner-Society filed writ petitions in this Court and secured ad-interim orders of stay against the aforesaid directions. While the said writ petitions were pending the 3rd respondent issued an order dated 15th Nov. 1994 declining to accord approval to the appointment of four Principals selected and appointed by the petitioner for its Degree Colleges at Athani, Hubli, Nipani and Dharwad. The petitioner was further directed to make appointments against the said vacancies oh the basis of the seniority position as on 31st of Dec. 1986 failing which the salary grant for the colleges aforementioned had to be withheld. The petitioner claims to have sent a reply to the order which has according to it invoked no response forcing the petitioner to file the present petition challenging the order in question as already indicated earlier.
4. Heard learned Counsel for the parties.
5. Mr. Vijay Shankar, learned Counsel appearing for the petitioner-Society argued that the impugned order violated the fundamental rights guaranteed to the petitioner under Arts. 14 and 19(1)(c) and (g) of the Constitution, and that the same was without any authority of law being unrelatable to any statutory or other provision. He urged that the order in question could not have been issued in exercise of the executive power of the State for the reason that the conditions of service of the Teachers employed in Private Educational Institutions were wholly governed by ihe provisions of the Karnataka Private Educational Institutions (Disciplinary and Control) Act, 1975 and the Rules framed thereunder which inter alia provide for preparation and maintenance of proper seniority lists. Neither the Act nor the Rules, contended, Mr. Vijay Shankar, confer any power upon the State Government to issue directions to a private management to prepare any such list in a particular manner, nor was it open to the State Government to withheld the grant or refuse approval of appointment of teachers/principals for the reasons stated in the order under challenge. It was argued that, the grant in aid sanctioned in favour of a private Institution could not be refused on the ground that certain instructions relating to the preparation of the seniority of teachers had not been allowed. It was urged that the reasons given in the impugned order did not fall within the purview of Rule 10 of the Grant-in-Aid Code which related to the stoppage of grant. The order was also questioned on the ground that it was in violation of the principles of natural justice, having been passed without giving to the petitioner any opportunity of being heard in the matter.
6. I have given my anxious consideration to the submissions made at the Bar. The; Grant-in-Aid-Code is non-statutory in character. It embodies the terms and conditions subject to which the Government may grant aid to a Private Educational Institution Any such aid is aimed at encouraging private enterprise in the field of education in the Primary, Secondary and College levels. The Code, specifically reserves the right in favour of the Government to refuse, reduce or completely withdraw the aid at any time, at their discretion notwithstanding the Rules contained in the Code. -There is thus no unqualified or vested right with an educational institution to claim the grant-in-aid nor is the extent of and sanctioned or granted meant to be a permanent feature. Suffice it to say that aid from the Government may be claimed only on the terms embodied in the Code and refusal of the same even upon fulfilment of the terms of the Code to some while extending the said benefit to others situate similarly may alone give a cause of action to the aggrieved to complain and seek redress under the protection of the equality clause enshrined in Art. 14 of the Constitution Stated differently while it may be possible for the State to totally abrogate the Code and decline to grant in-aid to any institution as a matter of general and uniform policy it may not be possible to grant aid to some while refusing the same to others if any such refusal is based on no rational and intelligible differentia, between the two. Any such hostile treatment would fall foul of Art. 14 making it imperative for the Court to step in to remedy the discriminatory use of the power to grant largesse for there is no gainsaid that even in the matter of grant of a public largesse the State cannot discriminate between those similarly situate. Therefore subject to the compulsions of equality as guaranteed by Art. 14, the grant or refusal of aid-to a private Educational Institution, is in the realm of the executive policy and hence beyond the purview of judicial review.
7. Let us now see what is the scheme provided by the Code for the grant of (Government Aid to the Institutions. Rules 7 and 8 of the Code require the Institution for which aid is sought to be under the control of a management answerable for the maintenance of the Institution and the fulfilment of the conditions of aid. Rule 9 obliges the management to inter alia give effect to any policy decision of the Government. Rule 10 identifies Institutions to whom no grant is payable while Rule 12 requires the Institution to make a declaration to the effect that the Rules embodied in the Code governing the payments of grant-in-aid are being and will be observed by the Management fully and faithfully. Rule 12-A provides for the appointment of Special Officer in case the Director of Collegiate Education is of the opinion that the Management has committed any one or more of the defaults referred to in the said Rule. It is useful at this stage to extract Rule 12-A which reads thus:--
"12A: Appointment of Special Officer :--
(1) If, in the opinion of the Director of Collegiate Education (a) the Managing Committee of any educational institutions for which the grant-in-aid is paid under the grant-in-aid Code, persistently makes default or is negligent in the performance of the duties imposed on it by the Grant-in-Aid Code or Rules of recruitment or commits any act which is prejudicial to the interest of the teaching and non-teaching staff and the student community in general or if otherwise not functioning properly; or (b) the Managing Committee of any institution for which the grant-in-aid is paid is not functioning in accordance with the agreement entered into by the Managing Committee for the purposes of salary grant or any directions issued by the State Government or the Department of Collegiate Education, the Director of Collegiate Education may, after hearing the Managing Committee, by order, remove the said Managing Committee and appoint a Special Officer to manage the affairs of the said Educational Institution for a period of one year and it may extend the period for one more year.
Exception:-- Nothing in this rule shall apply to Educational Institutions established and administered by the minorities."
A plain reading of the above provision makes it fairly obvious that the power exercisable by the Directorate of Collegiate Education over the aided Institutions is wide and all per vasive. Persistent defaults or negligence in the performance of the duties imposed upon the management of the Institution either by the Code or the Rules of Recruitment give the authorities the power to remove the Manag ing Committee and appoint a Special Officer to manage the affairs of the Institution. So also can any act of the management pre judicial to the interests of the teaching or other Staff of the Institution, justify action under Rule I2-B. What is therefore apparent is that the grant of aid to the Institution is dependent upon its performance and func tioning to the satisfaction of the Directorate of Collegiate Education in accordance with the relevant Rules and the Provisions of the Grant-in-Aid Code. All this re-affirms that grant-in-aid is not claimable as a matter of any vested or unqualified right of the Insti tution.
8. Seen in the above backdrop the argument advanced by Mr. Vijay Shankar, that the directions issued bv the respondent by the impugned order are without any sanction of law, does not commend itself to me. The direction in substance is two fold, viz., (i) the appointment of the Principals not being in accordance with the seniority as on 31-12-1985, cannot be approved and (ii) if the appointment to the available vacancies arc not made as per the seniority list valid as on the above date, the Institutions concerned may lose their right to grant-in-aid. Now it is not possible to say that the reason behind the proposed stoppage of aid to the petitioner's Institutions is alien to the grant of aid; nor is it possible for the petitioner to contend that the proposed stoppage of the aid is otherwise mala fide or vitiated by any extraneous considerations. Looking to the scheme underlying the code it is reasonable to hold that in order that an Institution may assert a right to get grant-in-aid it must make sure that appointments in the Institution are made in accordance with the relevant Rules and after taking into account the relevant factors. The Grant-in-Aid Code and the Recruitment Rules framed under the provisions of the Karnataka Private Educational Institutions (Discipline and Control) Act, 1957 do in my opinion, sufficiently empower the authorities to ensure that the appointments are made properly and in accordance with seniority list duly approved for the purpose. In having declined to approve appointments which were not made as per the approved seniority list and in directing the management to fill-up the vacancies on the basis of the said list, the authorities committed neither an illegality nor an impropriety to warrant interference.
9. Equally untenable is the alternative argument advanced by Mr. Vijaya Shankar that since the field in which the Grant-in-Aid Code operates is covered entirely by the provisions of the Karnataka Private Educational Institution (Discipline and Control) Act, 1975 and the Rules framed thereunder, the Government and its Officers could not invoke the provisions of the Code to issue directions as to the settlement of seniority or stoppage of the aid to the Institutions run by the petitioners. Section 3 of the Act, aforesaid empowers the State Government, to frame and notify model Rules in respect of matters relating to the Code of Conduct and the conditions of service of the employees. These rules the Private Educational Institutions were required to adopt unless of course the Institutions had made their own Rules, in which event the same were to be modified so as to bring them in conformity with the Model Rules. A similar provision for framing of Rules was made by S. 15 of the Act which empowered the State Government to frame Rules for purposes of carrying out the purpose of the Act. In exercise of the powers so vested the Government has framed what are known as Karnataka Private Education Institutions (Discipline and Control) Rules 1978 inter alia prescribing the qualifications, age and method of recruitment to be adopted in private Educational Institutions. The Rules also provide for other matters relating to discipline, code of conduct, and leave etc., Rule 8 of the said Rules enjoins upon the management of the educational Institutions to maintain a separate seniority list of employees holding each category of posts in the Institution. The Rules do not however make any provision regarding grant of aid or the conditions subject to which the same can be claimed by the Institutions. It is also significant to note that the provisions of the Act now stand repealed by S 146 of the Karnataka Education Act 1983. The repealing provision however specifically provides that the provisions contained in the Act notwithstanding all Rules, Orders, Notifications, Grant-in-Aid Codes, Appointments, Schemes, Bye-laws, Regulations, Official Memorandum, Circular, or any other order made or issued before the commencement of the Act and in force on the date of such commencement providing for or relating to any of the matters for the furtherance of which the said Act is enacted shall continue to remain in force and be effective as if they were made under the corresponding provisions of the said Act unless and until superseded by anything done or any action taken or any Notification, Grant-in-Aid Code, Rule, Order, Appointment, Scheme, Bye-law, Regulations, Official Memoranda, Circular or any other order made thereunder. It thus follows that even though the provisions of the 1975 Act stand repealed, the Rules, Orders and Notifications framed thereunder continue to remain in force till such time they are superseded by anything done under the later Act. So also do the provisions of Grant-in-Aid Code continue to remain operative as if the same had been issued under the corresponding provisions of the Karnataka Education Act, 1982. Chapter IX of the said Act deals with the Grant-in-Aid and in terms of S. 49(1) appearing under the said Chapter, the Government is supposed to set apart a sum of money annually for being given as grant-in-
aid to Educational Institutions recognised for the said purpose in accordance with the Rules made in that behalf. Sub-section (2) of S. 49 further provides that Rules framed under S. 49(1) may require the Institutions receiving the grants to comply with" any provision as to the reservation of appointments or posts in favour of scheduled castes, scheduled tribes or any backward class subject to such modification if any as the Government may make in the application of such provisions to any class or classes of such Institutions.
10. It is not disputed that Statutory Rules under S. 49(1) regulating the Grant-in-Aid to private Educational Institutions have not been framed. On a harmonious and conjoint reading of Ss. 49 and 146(3) of the Act, it is apparent that till such time, the Government frames Rules regulating the Grant of Aid, the provisions of the Grant-in-Aid Codes that were in force on the date of the promulgation of the Act shall continue to remain operative as if the Rules embodied in the said Code were framed under S. 49(1). It follows as a corol lary that there is no conflict between the provisions of the Grant-in-Aid Code and those of the Karnataka Education Act so as to exclude the Code from application on the principle that the field in which the Code operates stands fully covered by the Statute.
On the contrary, the Statute itself recognises and maintains the efficacy of the provisions of the Code as if the same had been framed in exercise of the statutory powers available to the Government under S. 49(1). In other words till such time the Government in exercise of its power under S. 49(1) does not frame a separate set of Rules regulating the grant of aid to the Institutions, the provisions contained in the Code continue to remain operative. There is thus no merit in the proposition canvassed by Mr. Vijaya Shankar that the respondents could not call in aid the provisions of the Code in the light of the Statutory Provisions regardless whether they were provisions contained in the Karnataka Private Educational (Discipline and Control) Act, 1976 or those the Karnataka Education Act, 1983.
11. That brings me to the last submission urged by Mr. Vijaya Shankar as to the validity of the threatened stoppage of aid on the ground that the petitioner Society had not appointed the Principals against the available "vacancies on the basis of the seniority list, It was argued that Rule 9 of the Grant-in-Aid.
Code casts upon the Management of the Institution certain obligations which did not include the obligation to maintain a seniority list according to the directives issued by the respondents. It was urged that if ever the respondents could stop aid to an Institutions it could at best be on account of proved failure on its part to carry out one or more of the directives contained in Rule 9, clauses (i) to
(vii). Preparation of a seniority list and promotions as per the same was according to Mr. Shankar not one such obligations en joined upon the Management under Rule 9 (supra) so that the breach of any such obligation may result in the stoppage of aid to the Institution. There is no merit even in this submission of Mr. Vijaya Shankar. It is true that Rule 9 of the Code enjoins upon the Managements to discharge certain specific obligations enumerated thereunder but it is difficult to accept the argument that the obligations enumerated in the said Rule are exhaustive. A reading of Rule 12-A makes it manifest that apart from what is enumerated under Rule 9 the Management of an Insti tution is also under an obligation to function in accordance with the directions issued by the State Government or the Department of the Collegiate Education from time to time.
Any such directions may be based on a policy decision within the meaning of sub-rule (7) of Rule 9 or may be a specific direction to an Institution or Class of Institutions. Failure on the part of the Institution to comply with any such directives from the Government can also result in action against the Institution extending up to supersession and the take over of the Management by a Special Officer appointed for the purpose. It is not therefore as though the obligations cast upon the Management are limited to only those as are specifically mentioned in Rule 9 nor is it possible to hold that the respondents can decline the grant of aid in the event of the breach of any one of such enumerated obligations only.
12. The conditions of service of employee working in aided Institutions were till the introduction of the UGC pay scales governed by the Government Order ED 146 UPC 79 Bangalore dated 31st October 1981 which was made effective retrospectively from 1-1-1981. The UGC pay scales were extended to the teaching staff of the Private Educational Institutions vide an order dated 30th March, 1990 retrospectively with effect from 1-1-1986. As per para-13 of the said order, the employees working in the Institutions had an option to switch over to the UGC scale or continue in the State scales and the designations held by them. It is not in dispute that all the teaching staff of the petitioner Society had opted to be governed by the UGC scales and had in accordance with the said scales drawn the arrears of their salary retrospectively with effect from 1-1-1986. Having so benefited from the said order some of the teachers working in the Institution of the petitioner-Society had filed writ petitions challenging the validity of para-13 of the aforesaid Government Order and sought the reversal of the option exercised by them in terms thereof. These petitions have failed and been dismissed by my judgment of even date. What is important is that as per para 16 of the scheme introduced by the aforesaid Government Order, the Seniormost teacher working in the College has to function as the Principal of the Institution. The scheme further provides that with effect from 1-1-1986, the Lecturers, Readers, Professors and Senior Professors working in the Institutions have to be re-designated as Lecturers, Lecturers (Senior Scale) and Lecturers (Selection Grade) on the basis of the length of their service and the norms fixed in that regard by the Government Order. It is in that background that the Directorate of Education issued instructions directing the Institutions to continue the seniority lists approved by the Department and showing the seniority position of the teaching staff as on 31st December, 1985. The appointments made by the petitioners to the available vacancies of Principals, were in that context found by the authorities to be not in order as the same had been made otherwise than by reference to the seniority list as it stood on the 31st December, |1985. The refusal to approve such appoint-ments and a direction to the petitioner to make appointments as per the said list, was therefore tantamount only to directing the Institution to give effect to the policy decision taken by the State Government as contained in Government Order dated 30th March, 1990. In the circumstances it could not be said to be beyond the powers vested in the respondents nor could the proposed denial of grant to the petitioners Institutions on that basis be said to be improper or outside purview of the Grant-in-Aid Code.
13. Mr. Vijaya Shankar, however argued that the question of seniority or the basis of the settlement thereof could not be said to be a policy decision of the Government and therefore any refusal of grant on the said basis could not be legally sustained. There is no merit in this submission either. The question is not whether the Government has taken a policy decision as to the settlement of seniority, the question is whether seniority is or is not a part of the general scheme introduced and made applicable as a matter of policy to the teachers working in the private aided Institutions. If seniority, categorisation and appointments to the posts of Principals all combined together constitute a composite scheme which has been introduced by the Government, it is not possible to say that any such scheme is not a policy decision merely because the scheme does not take any specific or independent decision as regards the question of settlement of seniority. It is the total effect'of the scheme in the context of! all its angularities that the question as to whether it amounts to a policy decision or not is to be viewed. Seen thus, I have no manner of doubt that the promotions and appointments based on categorisation made retrospective from 1-1-1986 constitute an essential part of the scheme as much as the question of seniority so that the violation of any such scheme even in regard to any one of its facets could be taken note of by the authorities and enforced against the Institutions at the pain of denial of grant-in-aid to them.
14. That brings me to the last submission urged on behalf of the petitioner. It was argued that that the impugned order was in violation of the principles of natural justice, in that the petitioner had not been given any opportunity of being heard before stopping the grant-in-aid for the Institutions where the appointments in question have been made. There is no substance even in this submission. A reading of the order in question shows that all that it directs that in case the appointments against the available vacancies of Principals are not made in accordance with the seniority position, the grant-in-aid admissible to the Institution concerned shall be stopped. Admittedly, there has been no stoppage of grant as such, partly because the order in question only threatens to stop and did not actually stop the flow of aid to the petitioner. It is in these circumstances open to the petitioner-Society to make any representation if so advised against the proposed action of stoppage. Any such representation if made to the authorities shall have to be considered before the aid is actually stopped. Even assuming that the decision to stop the grant is taken finally, the consideration of any representation made against the same shall, in my opinion, sufficiently comply with the requirement of the principles of natural justice for it is well settled that in certain situations even a post-decisional hearing, may be a substantial compliance with doctrine of audi alteram partem.
15. In the totality of the circumstances, therefore, I see no reason to interfere. The writ petition fails and is accordingly dismissed reserving liberty to the petitioner to make a representation if so advised against the proposed action which representation if made within 4 weeks from today shall be considered on its merits by the respondents in accordance with law and keeping in view the observations made in this judgment before any final order of stoppage of grant is made by them.
16. The parties are left to bear their own costs.
17. Petition dismissed.