Karnataka High Court
B.N. Sreeraman vs State Of Karnataka on 28 February, 1985
Equivalent citations: ILR1985KAR3147, (1986)ILLJ166KANT
ORDER
1. Petitioners as Lectures/Readers of an aided educational institution and/or as members of Executive Committee of Private College Teachers Association have questioned constitutional validity of Cls. 2(iv) and (vii); 4(4); 5, 6, 8, 9, 12, 13, and 17 entitled as 'Code of Conduct' (Annexure-A) prescribed for employees of aided educational institutions. The brochure/book-let captioned as 'Government of Karnataka, Educational and Youth Services Department' dealing with sub : Direct payment of salaries to private aided Colleges, Junior Colleges and Teacher's colleges sets out certain terms and conditions on which grant is given.
"The question of direct payment of salaries to the employees of aided Colleges, Junior Colleges and Teacher's Colleges has been under the consideration of Government for some time past and Government have decided that salaries be paid directly to the employees of these institutions, subjects to the fulfilment of certain duties and responsibilities both by the managements and employees of these institutions. Accordingly Government are pleased to make the Following order :
ORDER NO. ED 141 UPC 76, BANGALORE DATED THE 6th October, 1977.
Salaries of the employees of the aided institutions referred to above, which execute an agreement with Government as in the form attached shall be paid in accordance with the provisions and subjects to the conditions contained in the Agreement. The salaries for the month of October 1977 shall be paid on 1st November, 1977 and thereafter from month to month.
2. For the judicious exercise of powers and duties of Management in the matter of maintaining order and discipline amount the employees, it is necessary that they prescribe a Code of Conduct for their employees. For the purpose, the Management shall obtain from each of their employees an agreement duly signed by him in the form contained in Schedule II of the Agreement."
2. Government while regulating direct payment of salary of staff of aided educational institution have prescribed certain Code of Conduct breach of which would result in forfeiture of grant or withholding either by revocation or cancellation. Incidentally, it is necessary to mention that no such restrictions are imposed on staff working in un-aided institutions.
3. Resume of clauses challenged is as follows :
Clause 2 while dealing with professional duties by sub-clause (iv) imposes same restriction as is imposed on Lecturers/Teacher working in Governments Colleges in respect of acceptance of private tuition. Sub-Clause (vii) prohibits an employee from preparing or publishing any book or books commonly known as 'keys or notes' or assist whether directly or indirectly in their publication without the permission of Management. Sub-clause (iv) of Clause 4 prohibits an employee from organising or attending any meeting during working hours of the institutions except when he is required or permitted by the Head of the Institution to do so. Clause 5 prohibits an employee for becoming a Members or associating with any political party or any organisation which takes part in politics. Clause 6 restricts an employee from joining or continuing to be a members of an association the objects or activities of which are prejudicial to the interest of sovereignty or integrity of India or Public order or moralty. Clause 8 prohibits an employee from involving in criticism in any Radio, Broadcast, any document published in his own name, or anonymously, pseudonymously or in the name of any other person in any communication which has the effect of an adverse criticism of any current or recent policy or action of the Government of Karnataka or Central Government or any other State Government. Clause 9 restricts an employee fork asking for or accepting contribution or otherwise associate himself with the raising of any collections in cash or in kind in pursuance of any object whatsoever except with the previous sanction of Management. Clause 12 prohibits an employee from receiving any complementary or valedictory address, accept any testimonial or attend any meeting or entertainment held in his honour except with the previous sanction of the Management. Clause 13 prohibits an employee from engaging directly or indirectly in any trade or business or negotiate for or undertake any other employment except with the previous sanction of the Management. Clause 17 prohibits an employee to speculate in any stock, share or other investment.
4. Contention of petitioners is that in the guise of grant of aid, State cannot impose fetters or curtail fundamental rights and restrictions imposed under sub-cls. (iv) and (vii) of Clause 2; and Clause 8 infringes fundamental right conferred under Art. 19(1)(a); Cls. 13 and 17 infringe right conferred under Art. 19(1)(g) and Cls. 4(iv); 5, 6, 9, 12 infringe rights conferred under Arts. 19(1)(b) and (c) of the Constitution. In other words, these are unjustifiable restraints on individuals.
5. Imposition of these restrictions is justified by the State on the ground that employees of the aided institution cannot claim better privileges than employees in Government Colleges. If they intend to exercise unfettered power just as the employees of un-aided institutions, they can do so without the aid. In other words, grant is made subjects to adherence of terms and conditions imposed. Conditions imposed are essential for proper and efficient administration of institution; to safeguard/interest of students as well as State, and by so stretch of imagination can they be characterised as unreasonable and illegal or without jurisdiction.
6. After the advent of Constitution, controversy of this nature is shrouded with precedents; basic principles enunciated in all these cases is that reasonableness depends upon objects intended to be achieved by impugned provision and its limitations. So, bearing in mind, well established principles impugned restrictions are to be examined in the light of saving clauses contained in Art. 19 of Constitution.
7. Restrictions imposed as per sub-cls. (vi) and (vii) of Clause 2 prohibiting an employee of private institution from accepting private tuition or publishing 'notes or keys' are same as the one imposed on Government servants and objects is to subserve the interest of students. Established practice of authorities prohibiting Lecturers/Readers from accepting private tuition and/or publishing 'notes' or keys is extended to staff in aided institution. This restriction is fairly and reasonably related to scheme of education. Neither they can be treated differently nor claim better privileges than government employees. I don't find anything which is ultravires of Art. 19(1)(a) of the Constitution if education authorities intend, to have uniform policy governing teaching staff similarly circumstanced.
8. Just as a Government servant is prohibited from taking active part in politics, employees of aided institutions on like terms prohibited from taking active participation in politics as per Clause 5. Device adopted pay the salary directly by Government is not to make them politicians, It is impossible to accept the plea that even after joining service they may engage in political activity. Whatever, may be the fundamental rights that they exercised before joining duty but after joining service become subjects to various rules regulation service conditions framed in conformity with the Constitution. There is no disparity between Lecturers/Readers working in Government College and staff in aided institutions beyond what the reason for its existence demands.
9. Clause 6 prohibits an employee from joining an association, the activities of which are prejudicial to the interest of sovereignty and integrity of India or public order or morality. This may have the protection of Clause 3 or 4 of Art. 19 of Constitution and that is why much grievance is not made against restrictions imposed under this clause.
10. Clause 8 on which much stress is laid reads thus :
"8. Criticism of Government - No employee shall, in any radio, broadcast or in any document published in his own name or anonymously, pseudonymously or in the name of any other person in any communication to the press or in any public utterance, make any statement of fact or opinion.
(i) Which has the effect of an adverse criticism of any current or recent policy or action of the Government of Karnataka, or Central Government or any other State Government;
Provided that nothing contained in this clause shall apply to bona fide expression of views by any employee as an office-bearer of a trade Union or association of such employees for the purposes of safeguarding the conditions of service or for securing an improvement thereof; or
(ii) Which is capable of embarrassing the relations between, the Government of Karnataka and the Central Government or the Government of any other State; or
(iii) Which is capable of embarrassing relations between, the Central Government and the Government of any foreign State;
Provided that nothing in this rule shall apply to any Statements made or views expressed by an employee in his official capacity or in the due performance of the duties assigned to him."
This clause without proviso is the same as Rule 7 of Karnataka Government Servants Conduct Rules 1977 (as it stood then) which was the subject matter of decision in B. Manmohan v. State of Mysore and others [1967-I L.L.J. 69]. In order to understand the ratio of the decision contention canvassed on behalf of State, which is reiterated by Government Pleader is extracted at P. 76 of [1967-I L.L.J. 69].
"The next contention of the Learned Advocate General was that the validity of the impugned Rule will have to be Judged not merely by the tests provided by Art. 19(2) but also by taking into consideration the occupation of the petitioners : In that context, the Court should see whether the impugned Rule cannot be considered as a reasonable restriction imposed on the Government servants in the interests of the general public and thus falling within sub-art. (6) of Art. 19. On this branch of the case, his arguments proceeded thus : a Government servant, as a citizen of this Country is entitled to freedom of speech and expression; but being a Government servant he has special duties and responsibilities; his occupation requires him to be disciplined and efficient, without which there will be a chaos in the administration, a public servant who indulges in public criticism of recent policy or action of Government cannot remain disciplined and consequently his efficiency is bound to suffer. According to him, it would be a sad day for the country if Government servants are permitted to publicly criticise the Government's policy or action; as Government servants they are expected to loyally implement the policy decisions taken by the Government, it is through them the Government, implement its policy; if the very persons through whom the Government acts are avowedly critical of the policy to be implemented then administration would become well nigh impossible."
Hegde, J., (as he then was) did dilate on this aspect and held thus : at P. 76 of [1967-I L.L.J. 69].
"A citizen of this Country is not merely a citizen, in addition to being a citizen he may have other capacities. In determining the validity of any restriction placed on him, his duties and responsibilities arising from his occupation will have to be considered."
After deriving sustenance from decisions of the Supreme Court in Kameshwar Prasad v. State of Bihar [1962-I L.L.J. 294] and O. K. Ghosh v. E. X. Joseph [1962-II L.L.J. 615] for the above proposition, stated thus :
"As seen earlier, the impugned rule prohibits the publication of any document or any public utterance by a Government servant which has the effect of any adverse criticism of any current or recent policy or action of the Government. Unlike the Central Civil Services (Conduct) Rules, 1964, not bona fide expression of views by any Government servant as an office bearer of a trade union of such Government servants, for the purpose of safe-guarding the conditions of service of such Government servants or for securing an improvement thereof is allowed by the 'Rules'. A blank restriction is placed on the Government servants prohibiting them from making any public utterance even if it be an utterance relating to their conditions of service and that at a meeting of an association of Government servants, if it has the effect of any adverse criticism of any current or recent policy or action of the Government. The Rule in question is so wide as to include all adverse criticism of recent policy or action of the Government, whatever that policy or action may be. A rule of this character cannot be said to be a reasonable restriction imposed in public interests, on the rights guaranteed under Art. 19(1)(g). We fail to see how public interest will be served by requiring a Government servant to refrain from criticising the Governments policy or action, relating to his conditions of service or matters connected with them, even if it be only in the presence of his colleagues. Public interest requires that Government servants should be contented, efficient and disciplined. This cannot be achieved by gagging their mouths. No useful purpose will be served by forming an association of theirs if the Governments servants are deprived of the opportunity of discussing the Government's policy or action relating to their conditions of service which process may necessarily involve criticism of the policy or action of the Government. It may be that a Government servant cannot be permitted to go to the general public and denounce any of the Government's policy or action. He may be deprived of that liberty because of his station in life and duties that he has to perform. But if he is restrained from criticising the Government's policy or action regarding his conditions of service in his own association meetings or if he is prohibited from circulating any document among the members of his own association criticising the Government's policy or action relating to his conditions or service or about matters connected with them, the same cannot be said to be a reasonable restriction in the interest of the general public.
As mentioned earlier, the impugned Rule is so wide as to prohibit all adverse criticism of current or recent policy or action of the Government and it is not possible to separate its valid portion from that which is invalid."
and ultimately held that it constitutes an unreasonable restriction infringing fundamental right conferred under Art. 19(1)(g) of the Constitution.
11. But Clause 8 with present proviso is similar to one which we find in Central Civil Services Conduct Rules, 1964. Central Civil Services Conduct Rules, 1964 have stood the test of time and impugned clause falls within the exception as underlines in passage extracted above. There is nothing like absolute or uncontrolled liberty wholly freed from restraint for that would lead to anarchy and disorder. Restrictions of this type strike a balance between freedom guaranteed and social control permitted by Clause 6 of Art. 19 of the Constitution. Hence, restriction imposed under this clause cannot be termed as unreasonable.
12. Clause 9 prohibits collection of contribution or to associate himself with such collection by whatever name it is called. Clause 12 imposes restriction on receipt of honours. Clause 13 imposes restriction in engaging directly or indirectly in any trade or business without the previous sanction of the management. Clause 17 imposes restriction in involving in any speculative business such as stock, shares or other investments. Object of imposition of these restrictions is to have control or discipline on staff to sub-serve the interest of institution as well as the State. These are conducive for proper administrative control over the staff and management of the institution and cannot be termed as unreasonable.
13. Relying on decision of the Supreme Court in Kameshwar Prasad's case (supra) it is contended that restriction imposed under these clauses are violative of their fundamental rights. There is no rule or clause similar to Rule 4A of Bihar Government Servant Conduct Rules 1956 prohibiting any form of demonstration for the redress of grievance of Government servants in the present Code of Conduct. Hence this decision is of no assistance.
14. Nextly, it is contended that service conditions are regulated by Statues framed by concerned Universities to which institution where they are working are affiliated and as the field is already covered by Statues framed by respective Universities, Government had no competence to prescribe service conditions. S. 67 of the Karnataka Universities Act, on which reliance is placed reads thus :
"67. Relations of affiliated Colleges with the University : The relation of the affiliated colleges with the University shall be governed by the Statutes : to be made in that behalf and such statues shall provide in particular for the exercise by the University of the following powers in respect of the college affiliated to the University :
(1) to lay down minimum educational qualifications for the different classes of teachers and tutorial staff employed by such colleges;
(2) xxxx xxxx xxxx (3) to regulate conditions of service of teachers of such colleges including the grant of leave with or without allowances and the Constitution on pension, insurance and provident funds for the benefit of such teachers; and...."
Dealing with admission to affiliated colleges but run by Government, this Court as well as Supreme Court have negatived the plea that a committee constituted by Government has no power to make admissions in view of Statutes framed under sub-s. (1) of S. 67 of the Karnataka Universities Act by respective Universities governing admissions. In the instant case, Government have opted to pay the salary directly; as an ancillary or incidental power of grant intends to regulate their service conditions. That apart, there is no inconsistency between a Statute framed by University and the present rules governing their service conditions is pointed out. Hence, I find hardly any merit in the plea.
15. Grant or undertaking by Government to pay salary of Lecturers/Teachers of aided institutions is not regulated by any codified law but by executive order. State Government in exercise of ancillary or incidental power of grant of aid has imposed certain conditions which are in pari materia with terms and conditions imposed on staff working in Government schools and colleges, hence intra-vires. I find no substance in the plea that Government has no power to impose such restrictions.
16. Quite apart from this, I presume, petitioners must have executed an agreement in prescribed form in the absence of any interim order in their favour so as to draw their salary and do not propose to unsettle matters settled at this distance of time in exercise of extraordinary jurisdiction. Writ Petition No. 5546 of 1978 wherein validity of same rules were challenged has been dismissed. No merit in any one of the contentions canvassed by Learned Counsel for Petitioners. Writ Petition dismissed. Rule discharged.