Karnataka High Court
Hanamant Siddappa Bajantri vs The State Of Karnataka on 24 July, 2020
IN THE HIGH COURT OF KARNATAKA
®
DHARWAD BENCH
DATED THIS THE 24TH DAY OF JULY 2020
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
W.P.No.105439/2014 (S-RES)
& W.P.Nos.108382-417/2014 (S-RES)
BETWEEN:
1. SHRI.HANAMANT SIDDAPPA BAJANTRI
AGE: 59 YEARS,
ASSISTANT TEACHER
J A HIGH SCHOOL, ATHANI
DIST: BELGAUM
2. SHRI.AJIT GOVIND KULKARNI
AGE: 53 YEARS,
ASSISTANT TEACHER
J A HIGH SCHOOL, ATHANI DIST: BELGAUM
3. SHRI.SHASHIKANT KESHAVRAO KULKARNI
RETD. ASSISTANT TEACHER
J A HIGH SCHOOL, ATHANI DIST: BELGAUM
4. SHRI.NACHKET GUNDERAO KATHAVATE
AGE: 66 YEARS,
WORKED AS HEAD CLERK CUM ACCOUNTANT
J A HIGH SCHOOL, ATHANI DIST: BELGAUM
5. SHRI.ANIL MALHAR WADER
AGE: 66 YEARS,
WORKED AS SECOND DVISION CLERK
2
J A COMP. P U COLLEGE,
ATHANI DIST: BELGAUM
6. SHRI.ASHOK YALLAPPA TALAWAR
AGE: 51 YEARS,
WORKED AS PEON
J A HIGHER SECONDARY SCHOOL, ATHANI DIST: BELGAUM
7. SHRI.RAMACHANDRA NARAYAN DESHMUGH
AGE: 75 YEARS,
WORKED AS ASSISTANT TEACHER
J A HIGHER SECONDARY SCHOOL, ATHANI
DIST: BELGAUM
8. SHRI. HANAMANT BHEEKAPPA LAMANI
WORKED AS SDC CUM TYPIST
IN KLES CSK HIGH SCHOOL,
ATHANI DIST: BELGAUM
B) NOW TRANSFERRED AT CHIKKODI
ANKALI SCHOOL, KLES SSK HIGH SCHOOL,
ANKALI, CHIKODI
PRESENT WORKED IN ANKALI SCHOOL
9. SHRI.SHRESHAIL TALAYYA SHIVARUDRYYA BANGI
AGE: 61 YEARS, RETIRED,
WORKED AS PE TEACHER
KLES CS KITTUR HIGH SCHOOL,
ATHANI, DIST: BELGAUM
10. SHRI.RAMAKANT BABURAO DESHPANDE
AGE: 71 YEARS,
RETIRED TEACHER
J A HIGH SCHOOL,
ATHANI DIST: BELGAUM
11. RAVINDRANATH RAMACHANDRA WADER
AGE: 74 YEARS,
RETIRED TEACHER
J A HIGH SCHOOL,
ATHANI DIST: BELGAUM
3
12. SHRI.ANNAPPA MALLAPPA GASTI
AGE: 58 YEARS,
NOW WORKING AS SDC CUM TYPIST
IN JE SOCIETIES, JA COMP, P U COLLEGE, ATHANI
DIST: BELGAUM
13. SHRI.NEELAKANTH SUSHILABAI NOOLI
AGE: 60 YEARS,
NOW WORKING AS SDC
J A COMP, P U COLLEGE, ATHANI
DIST: BELGAUM
14. SHRI.RAGHAVENDRA ANANTH MUTALIK DESAI
AGE: 58 YEARS,
PRINCIPAL J. A. COMP, P U COLLEGE, ATHANI
DIST: BELGAUM
15. SHRI.ASHOK RAMARAO PATIL
AGE: 64 YEARS,
RETIRED AS VICE PRINCIPAL
J A HIGH SCHOOL, ATHANI,
DIST: BELGAUM
16. SHRI.PANDIT DHARMANNA PAWAR
AGE: 77 YEARS,
RETIRED SECOND DIVISION CLERK
J A HIGH SCHOOL AND S S G H S, ATHANI
DIST: BELGAUM
17. SHRI.RAMACHANDRA PRALHAD KHASNIS
AGE: 62 YEARS,
RETIRED TEACHER
J A COMMERCENT COLLEGE,
J A HIGH SCHOOL
S S GIRLS HIGH SCHOOL, ATHANI
DIST: BELGAUM
18. SHRI.VISWANATH ANANTRAO DESHPANDE
AGE: 65 YEARS
RETIRED PE TEACHER
J A HIGH SCHOOL,
ATHANI, DIST: BELGAUM
4
19. SHRI.SUNIL BALKRISHNA KULKARNI
AGE: 57 YEARS
P E DEMONSTRATOR
J A COMP. P U COLLEGE
ATHANI, DIST: BELGAUM
20. SHRI.ASHOK SHRIPAD DIXIT
AGE: 65 YEARS
RETIRED ASST. TEACHER
J A HIGHER SECONDARY SCHOOL,
ATHANI, DIST: BELGAUM
21. SHRI.SRINIVAS VITAL JOSHI
AGE: 63 YEARS, RETIRED P E TEACHER
J A HIGHER SECONDARY SCHOOL,
ATHANI, DIST: BELGAUM
22. SHRI.SALIM BANDANWAJ DRAXI
AGE: 51 YEARS
WORKING AS KANNADA LANGUAGE TEACHER,
ABDUL KALAM HIGH SCHOOL, ATHANI
DIST: BELGAUM
23. SHRI.HAZARTAHMED A JAHAGIRDAR
AGE: 54 YEARS
WORKING AS HEAD MASTER,
ABDUL KALAM HIGH SCHOOL, ATHANI
DIST: BELGAUM
24. SMT.BIBIAYESHA A SHAIKH
D/O. AMEERUDDIN SHEIKH
AGE: 51 YEARS
WORKING AS DRAWING TEACHER,
ABDUL KALAM HIGH SCHOOL, ATHANI
DIST: BELGAUM
25. SHRI.SALIM MANSURSAB DRAXI
AGE: 54 YEARS
WORKING AS PEON,
ABDUL KALAM HIGH SCHOOL, ATHANI
DIST: BELGAUM
5
26. SHRI.ABDUL RAZAK M TAMBOLI
AGE: 51 YEARS
WORKING AS WATCHMAN CUM PEON
ABDUL KALAM HIGH SCHOOL, ATHANI
DIST: BELGAUM
27. SHRI.RAVINDRA ANANTRAO KULKARNI
AGE: 63 YEARS
H NO. 15, VIDYANAGAR, IST LANE,
RUKMINI KRUPA,
RETIRED P E TEACHER, S S GIRLS HIGH SCHOOL,
ATHANI, DIST: BELGAUM
28. SHRI.SADASHIV RAMACHANDRA KULKARNI
AGE: 61 YEARS WORKING AS ASSISTANT TEACHER
J A HIGH SCHOOL, ATHANI
DIST: BELGAUM
29. SHRI.GUNDY GOPAL MASHAL
AGE: 58 YEARS
WORKING AS ATTENDER
J A COMP. P U COLLEGE,
ATHANI DIST: BELGAUM
30. SHRI.MADHAV GOVINDACHARYA JOSHI
RETD. ASST. TEACHER
J A HIGH SCHOOL, ATHANI,
DIST: BELGAUM.
31. SHRI.BHIMAPPA JOKKAPPA BAJANTRI
AGE: 58 YEARS,
WORKING AS ASST. TEACHER
J A HIGH SCHOOL,
ATHANI, DIST: BELGAUM
32. SHRI.RAMAPPA BHUJAPPA PADANAD
AGE: 58 YEARS,
WORKING AS P E TEACHER
J A HIGH SCHOOL,
ATHANI, DIST: BELGAUM
33. SHRI.VASANTH SUBBARAO DATAR
AGE: 74 YEARS,
6
RETD. FDA
J A HIGH SCHOOL, ATHANI
DIST: BELGAUM
34. SHRI.ASHOK BHAVRAO MOHITE
AGE: 64 YEARS,
RETD. DRAWING TEACHER
J A HIGH SCHOOL, ATHANI
DIST: BELGAUM
35. SMT.SUNDARBAI SIDDLINGAPPA PUJARI
AGE: 66 YEARS,
WORKED AS PEON
J A COMP. P U COLLEGE, ATHANI
DIST: BELGAUM
36. SHRI.RAMACHANDRA MARUTI BHOSALE
AGE: 68 YEARS, RETD. LIB -CUM- CLERK
J A HIGH SCHOOL, ATHANI
DIST: BELGAUM
37. SHRI.MURAGAYYA NINGAYYA CHINCHOLI
AGE: 67 YEARS, WORKED AS HEAD MASTER
C S K HIGH SCHOOL, ATHANI
DIST: BELGAUM
NOW R/AT: RSS NO. 977/A & B
PLOT NO. 8, SATTI ROAD, ATHANI.
... PETITIONERS
(BY SRI.NAGARAJA HEGDE, ADV.)
AND:
1. THE STATE OF KARNATAKA
R/BY ITS SECRETARY
DEPARTMENT OF EDUCATION
M S BUILDING,
BANGALORE-01
2. THE DEPUTY DIRECTOR OF
PUBLIC INSTRUCTIONS
CHIKKODI, DIST: BELGAUM
7
3. THE BLOCK EDUCATION OFFICER
ATHANI, TQ: ATHANI, DIST: BELGAUM
4. STATE OF KARNATAKA
REP.BY ITS CHIEF SECRETARY,
VIDHANA SOUDHA, BANGALORE-560 001.
5. DEPARTMENT OF LAW AND PARLIAMENTARY AFFAIRS,
VIDHANA SOUDHA, BANGALORE-560 001.
REP.BY ITS PRINCIPAL SECRETARY.
.. RESPONDENTS
(BY SMT.K.VIDYAVATHI, AAG AND
SRI.VINAYAK S.KULKARNI, AGA FOR RESPONDENTS)
THESE PETITIONS ARE FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO A) THESE
PETITIONS ARE FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO a) ISSUE A WRIT OF
MANDAMUS OR ANY OTHER APPROPRAITE WRIT DIRECTING THE
RESPONDENTS TO EXTEND THE BENEFIT OF THE KARNATAKA CIVIL
SERVICES (SERVICE AND KANNADA LANGUAGE EXAMINATION)
RULES, 1974 READ WITH THE CIRCULAR DATED 03.11.2000 AND
12.09.2001 (PRODUCED AT ANNEXURE-B AND C) TO THE
PETITIONERS THAT IS GRANT OF ONE ADDITIONAL INCREMENT
WITH ALL CONSEQUENTAIL BENEFITS TO THE PETITIONERS. a(1)
ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRAITE WRIT
BY STRIKING DOWN THE KARNATAKA EDUCATION ACT NO.4 OF
(AMENDMENT) 2015 TO THE SECTION 87 OF THE KARNATAKA
EDUCATION AMENDMENT ACT, 2014, PASSED BY RESPONDENT
NO.1, 5 AND 6, AS THE SAME IS UNCONSTITUTIONAL.
THESE PETITIONS COMING ON FOR DICTATING ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
8
: ORDER :
The captioned writ petitions are filed challenging the constitutional validity of Act No.4 of 2015. The petitioners are also seeking writ of mandamus to direct the respondents to extend the benefit of additional increment for having passed Kannada examination as per Circulars dated 03.11.2000 and 12.09.2001.
2. The facts leading to the top noted writ petitions are as under:
The petitioners are the teaching and non-
teaching staff of private aided educational institutions in the state of Karnataka. The petitioners have averred in the writ petitions that some of them are in service and some of them have retired. It is also stated that some of them have retired after filing of the writ petitions. The petitioners have specifically contended in the writ 9 petitions that, they have passed Kannada language examination as provided under Rule 3 of Karnataka Civil Services (Service and Kannada Language Examination) Rules, 1974 (for short 'the Rules').
The case of the petitioners before this Court is that they are entitled for additional increment as per Rule 6 of the Rules on par with teaching and non-
teaching staff of Government School in the State of Karnataka. The petitioners have pleaded in the writ petitions that in respect of similarly placed teaching and non-teaching staff of aided schools, the benefit of an additional increment is extended. The petitioners have specifically contended that the respondents have not complied with the order passed by this Court in W.P.Nos.19846- 20413/2012, wherein this Court had directed to grant additional increment to the petitioners therein and it is also stated that this order is confirmed by 10 the Division Bench of this Court and the Hon'ble Apex Court.
3. The case of the petitioners in this batch of writ petitions is that the benefit of granting one increment to the Government employees is decided by the Government and the same was implemented by Circular dated 03.11.2000. Subsequently by Circular dated 12.09.2001 it was also indicated that the said benefit of one increment for passing the Kannada language examination or having studied Kannada language in qualifying examination would be made applicable, even if such requirement has not been made compulsory. The case of the petitioners is that though the Circular relate to extending the said benefit to the Government employees, subsequently, by memorandum dated 06.08.2002, the manner to calculate the implementation of said benefit and nature in which increment was to be granted is also clarified. 11
4. The petitioners in this context are before this Court claiming the said benefit since all other service conditions of these employees are similar to that of teaching and non-teaching staff of Government Schools.
5. The petitioners have also relied on catena of judgments rendered by Co-Ordinate Bench of this Court prior to the impugned notification bringing in amendment to Section 87 of the Karnataka Education Act, 1983 (for short 'the Act') by Act No.4 of 2015 and also subsequent to the impugned notification, wherein this Court in batch of petitions has held that the teaching and non-teaching staff in aided schools are to be treated on parity with the Government employees.
6. In spite of several representations submitted by the petitioners requesting the official/respondents to extend the said benefit to 12 them, there is inaction on the part of respondents in not extending the benefit to the present petitioners who are employees of private aided educational institutions.
7. Learned counsel for the petitioners relying on the judgment of this Court would submit to this Court that the inaction on the part of the respondents in not extending the benefit of an additional increment to the petitioners who are employed with aided institutions is discriminatory in nature and hence warrants interference by this Court. Learned counsel for the petitioners would vehemently argue and contend before this Court that the constitutional validity of the impugned notification also needs to be examined by this Court. The respondents having suffered an order in batch of writ petitions which were also confirmed by the Hon'ble Apex Court have now resorted to bring in legislation and by way of impugned notification 13 to Section 87 of the Act, the respondents are intending to deny the benefit. Learned counsel for petitioners would vehemently argue and contend that the judgments rendered by this Court are affirmed by Division Bench of this Court and confirmed by the Hon'ble Apex Court. The learned counsel appearing for petitioners in batch of writ petitions would submit to this Court that, in catena of judgments, the Courts have not extended the benefit to the petitioners on the basis of any lacuna either in the Karnataka Education Act, 1983 or Rules made thereunder and thereby enabling the legislation to fill up the said defect or loophole or lacuna in the enactment through the impugned enactment. Learned counsel would submit to this Court that the benefit of an additional increment is extended to the teaching and non-teaching staff of private aided educational institutions by holding that the denial would result in discrimination and 14 hence they would submit to this Court that, by the impugned Act No.4 of 2015, the respondents/authorities have made an attempt to nullify the orders of the Court which is impermissible and the same needs to be struck down by this Court.
8. Per-contra, learned Additional Advocate General has filed a synopsis and has placed on record the various circulars, notifications and also the judgments of this Court in sequence. Learned Additional Advocate General has also placed on record the judgments which are against the State. The learned Additional Advocate General would vehemently argue and contend before this Court that, by way of proposed amendment, the Act No.4/2015 is enacted by the State. She would vehemently argue and contend before this Court that the grant-in-aid policy of the State Government is embedded in Karnataka Education 15 Act and the related Rules has not envisaged consideration of unaided service of teachers having regard to financial burden on the State Government which would be around Rupees 5,000 Crores. She would contend before this Court that the benefit of additional increment cannot be extended to the employees of private aided educational institutions. She would submit to this Court that the State legislature is competent to legislate such law. Having regard to the provisions of Karnataka Education Act, the impugned Act No.4/2015 is enacted with an object to see that private aided educational institutions are to be developed and standard are maintained at par with the Government institutions.
9. She has taken this Court to various provisions of Karnataka Education Act, 1983 and contended before this Court that these petitioners are appointed by the management. She would 16 contend that their appointments are not in accordance with recruitment rules as contemplated under the Karnataka Education Department Services (Department of Public Instructions) (Recruitment) (Amendment) Rules, 2016 and is not in consonance with the recruitment rules. The management has not followed strict procedure, examining their qualifications and while appointing these petitioners has not followed the prescribed recruitment rules since they were not applicable to them.
10. However, insofar as the Government institutions are concerned, the recruitment rules contemplates various modes of recruitment. Where the recruitment is by way of direct recruitment, the Joint Director of Public Instructions, is the competent authority in respect of Assistant Masters in Physical Science, Biological Science and etc. In case of Language Assistant, the Deputy Director of Public Instructions is the competent authority and 17 in regard to category of post of drama teachers, drawing teachers, a procedure is contemplated as to how they are to be selected and the competent authority is the Deputy Director of Public Instructions.
11. Relying on these recruitment Rules and also the provisions of Karnataka State Civil Services Act, 1978, she would vehemently argue and contend before this Court that the additional increment which was extended to the Government institutions was based on the Acts and Rules contemplated therein and since the teachers in the Government Institutions would move in hierarchy by way of promotion would also get promoted on the administration side and with these objects, the State legislature in its wisdom brought in this compulsory examination for the employees of Government institutions. In this background, she would submit to this Court that the same object 18 cannot be extended to the teachers of aided institutions who were subsequently given grant.
12. On these lines, she would submit to this Court that not extending the benefit of additional increment would in no way amount to discrimination. She would also submit to this Court that the teachers from aided institutions cannot assert and claim additional increment on parity as a matter of right.
13. Heard learned counsel for the petitioners in batch of writ petitions and learned Additional Advocate General and also learned Additional Government Advocate.
14. On perusal of the material on record, this issue has been dealt by this Court in several writ petitions. The judgments rendered by this Court needs to be considered in two parts. The judgments which are rendered by this Court before Act No.4 of 19 2015 was enacted and in second part, I have to examine the judgments rendered by this Court subsequent to enactment of Act No.4 of 2015 which is challenged before this Court. It would be useful for the Court to examine the ratio laid down by this Court in Sumithra P and Others Vs. State of Karnataka rendered in W.P.No.13715/2006 c/w W.P.Nos.17236/ 2008 & 10111 to 10681 of 2019, which has exhaustively dealt with rival contentions raised in the said writ petitions.
15. The question that was raised in the said writ petitions was, as to whether the benefit of additional increment can be extended to the teaching and non-teaching staff of private aided educational institutions, who had joined services before 02.09.1987. This Court by relying on the judgments of Hon'ble Apex Court reported in (2002) 6 SCC 72 (State of Haryana and Another Vs. Haryana Civil Secretariat Personal Staff 20 Association), AIR 1990 SC 968 (Haryana State Adhyapak Sangh and Others Vs. State of Haryana and Others), (1996) 5 SCC 273 (State of Haryana and Others Vs. Rajpal Sharma and Others), (1995) 4 SCC 507 (State of H.P Vs. H.P. State Recognised and Aided Schools Managing Committees and Others) and several other judgments, was of the view that imparting primary and secondary education to students is the bounden duty of State administration, the private institutions cater to the needs of educational opportunities. Therefore, there is a corresponding responsibility on the state Government to ensure that in aided institutions, the teachers and other staff whose appointments have been approved by the State Government are entitled for the same emoluments as provided to their counterparts in the Government schools. The decision of the State Government not to extend the increment in 21 question to the teachers and other employees of private aided educational institutions is patently irrational and unjust, particularly, when their counter parts in government school are made available with the said benefit.
16. In the light of the above said discussion, this Court in Sumithra's case (supra) proceeded to allow the writ petitions by issuing directions to the Government to reconsider the matter in accordance with law.
17. The Division Bench of this Court in W.A.Nos.2779 & 4868-5434/2013 while examining the identical issue wherein petitioners were seeking parity with teachers working in Government Schools, was of the view that the Karnataka Education Act, 1983 takes into consideration the functioning of the Government Schools or institution as well as private aided educational 22 institutions. Section 49 of the Act deals with setting apart of funds for making grants to recognized private aided educational institutions. Section 87 of the Act deals with qualifications, conditions of service of employees in the Government institutions as well as the private institutions. The Division Bench of this Court while interpreting the provisions of Section 87 of the Act was of the view that the State Government is empowered to make Rules regulating recruitment and conditions of service (including rights as regards disciplinary matters) of the employees in recognized private aided educational institutions. The Division Bench has also examined the proviso and was of view that the controversy in regard to grant of increment on passing of Kannada language examination would squarely fall under the first portion of Section 87 of the Act.
23
18. The Division Bench has extracted relevant portion at Annexure-II and has meticulously examined the list of benefits which are not admissible in respect of employees of private aided educational institutions. The Division Bench having specifically examined corresponding Sections and Rules along with Annexure-II was of the view that the intention of the State Government is to grant parity to the teachers working in all Government Schools as well as those working in private aided schools. The Division Bench was of the view that however, this is subject to financial capacity of the State Government and in this context a proviso has also been inserted Clause (b) of Rule 3(1) so as to deny the certain benefits to the employees of private aided educational institutions. The Division Bench of this Court while examining this aspect has recorded a categorical finding that, if the State had intended to deny the benefit of one incentive to the 24 teachers and non teaching staff of private aided educational institutions on passing Kannada Language examination, the same could have been inserted in Annexure-II of the Rules. The absence of such an insertion in Annexure-II coupled with Section 87 of the Act read with clause (b) of sub- rule (1) of Rule 3 makes it clear that there is no intention on the part of the State Government to deny such benefit to the teachers of aided institutions. The Division Bench was also of the view that the conditions of service of staff of private aided educational institutions could be varied by State Government under Sub-rule (2) of Rule 3. The Division Bench of this Court further proceeded to hold that such a variation has not been pointed out insofar as the employees of private aided educational institutions are concerned.
25
19. On these set of reasons, the Division Bench of this Court declined to interfere with the order of the learned Single Judge directing the State to grant benefit of one increment to those teaching and non-teaching staff of private aided educational institutions who had passed Kannada Language examination on par with employees of Government Schools.
20. After the State brought in amendment to Section 87 of the Act by way of Act No.4 of 2015, batch of writ petitions were filed before this Court in W.P.Nos.58694-703/2014 with several connected batch of writ petitions. These Judgments are subsequent to enactment of impugned Act No.4 of 2015. Though the constitutional validity of impugned Act No.4 of 2015 was not questioned, however, this Court would find that the respondents/State have not resisted this writ petitions by relying on this amendment Act No.4 of 26 2015. This Court relying on the Division Bench Judgment rendered in The State of Karnataka Vs. MS.Jacintha Fernandes in W.A.Nos.2779 & 4868-5434/2013 has allowed batch of writ petitions by holding that the employees irrespective of either they were appointed by government schools or private aided educational institutions and irrespective of their obligations either to pass Kannada language examination or not, are entitled to one additional increment if they have passed Kannada language examination and with these observations, the batch of writ petitions came to be allowed.
21. The Co-Ordinate Bench of this Court in W.P.Nos.15287-15291/2019 has allowed the writ petitions and directed the respondents to pay one additional increment in terms of their entitlement under Rule 6 of 1974 Rules.
27
22. In view of the judgments rendered by this Court which are affirmed by the Hon'ble Apex Court before the impugned Act No.4 of 2015 was enacted and also the judgments subsequent to enactment of Act No.4 of 2015, this Court has consistently held that such benefits which are made applicable to the Government teachers and teaching and non teaching staff in Government school should also be made applicable to the teaching and non-teaching staff of private aided educational institutions. The Co-ordinate Bench of this Court in W.P.Nos.19846-20413/2012 at paragraph No.12 has observed as follows:
"12. in a normal circumstances, when this Court is exercising its power under Articles 226 and 227 of the Constitution of India and if an order passed by the Authority is found to be not sustainable and even after it is quashed, an appropriate direction would be issued to the respondents to re-consider the case of the 28 petitioners. However, in the instant case, I find that despite there being repeated pronouncements by this Court that the petitioners, who were similarly placed as that of the petitioners as well as the petitioners herein, are entitled to be considered for the benefit, the respondents have been rejecting it on one ground or other. That apart, in view of the decision of the Division Bench of this Court, which has been relied upon herein, I am of the opinion that in the facts of the present case, such a course should not be open for the respondents for reconsideration. Therefore, the respondents are further directed to keep in view the service particulars of the petitioners herein and calculate the additional increment payable to the petitioners as has been done in the case of teachers and non-teaching staff working in Government schools, who are similarly placed. The said exercise shall be done as expeditiously as possible, but not later than three months from the date of furnishing a copy of this order to the competent authority."29
23. The next question that needs to be examined by this Court is as to whether the impugned enactment by the legislature would take away the judicial pronouncement which is based on Article 14 of the Constitution of India. Before I proceed to examine the constitutional validity of impugned Act No.4 of 2015, this Court would take judicial note of the law laid down by this Court in the case of Dr.(Ms)B.K.Naik Vs. State of Karnataka Ministry of Law and Parliamentary Affairs and Others reported in ILR 2015 KAR 5236. This Court has exhaustively dealt with impugned amendment by way of Act No.7/2014. The finding recorded by this Court in the above said judgments would also have a bearing on the present impugned Act No.4 of 2015. This Court while answering the Constitutional validity of Act No.7 of 2014 has relied on catena of judgments rendered by the Hon'ble Apex Court. The said case 30 was as to whether State Government could deny the service benefits to the employees working in institutions admitted to grant-in-aid, though the same is extended to the employees working in Government Schools/institutions and it would amount to discrimination since both are discharging same duties.
24. The Co-ordinate Bench had also an occasion to examine the question as to whether the judgments which have been passed by the Courts holding that the petitioners are entitled for equal pay on par with Government Teachers/staff can be nullified by bringing in amendment to Section 87 of the Act and as to whether such an amendment is violative of Articles 13, 14 and 16 of the Constitution of India. This Court was also required to examine as to whether by way of impugned Ordinance, a reasonable classification between two classes of employees is not brought about, but it 31 discriminates between two classes of employees who are similarly placed and who have put in equal service. In the present case on hand, the issue is in regard to extending benefit of additional increment whereas in the above said writ petitions, the question was in regard to providing service benefits to the employees working in the institutions admitted to grant-in-aid.
25. This Court would only confine to the constitutional validity of Act No.4 of 2015 and while dealing with the said issue, this Court would rely on the findings recorded by the Coordinate Bench of this Court in regard to constitutional validity of Ordinance which was under challenge in the above said writ petitions and by way of impugned Ordinance, the respondents/State made an attempt to nullify the several judgments rendered by this Court. In the present case on hand also respondents/State by bringing an amendment to 32 Section 87 of the Act by Act No.4 of 2015 have virtually made an attempt to nullify the judgments rendered by this Court.
26. To test the validity of the Act No.4 of 2015, this Court would rely on the judgments relied by the Co-ordinate Bench of this Court in the above said writ petitions. Keeping these principles in mind, if the statements, objections, reasons of the impugned enactment i.e., Act No.4 of 2015 is examined, it is clearly evident that the respondents/State having admitted several private aided educational institutions for grant-in-aid with a specific object of improving standard of education and with a view to reduce burden of management has extended salary grant to teaching and non- teaching staff. The respondents/State has in terms of Rule 6 of the Rules resolved to grant an additional increment to the Government Servants for having passed Kannada Language examination. 33 The teaching and non-teaching staff of private aided educational institutions claiming parity, filed batch of writ petitioners before this Court. This Court in the case of Loknatha Kote B. & Others Vs. State of Karnataka and Others in W.P.Nos.25248-25302/2004, has held that an additional increment is given to the Government servants for having passed Kannada Language examination and on the same analogy, there is no reason why the said benefit should not be extended to the same class of teachers who have passed SSLC with Kannada Language or passed Kannada examination. This Court was of the view that the respondents/State was under an obligation to consider the request of petitioners in the light of the aforesaid judgments rendered in V.P.Babar and Others Vs. State of Karnataka and Others in W.P.Nos.32163-32208/1998.
34
27. This Court was also of the view that despite there being repeated pronouncement in regard to entitlement of additional increment wherein the Courts have been repeatedly held that the petitioners who are similarly placed as that of employees in Government institutions are also entitled for the benefit of additional increment, the respondents have been rejecting it on one ground or the other. This Court was of the view that, such a course should not be open for the respondents for reconsideration. In the light of the above said judgments, this Court put at rest the issue in regard to entitlement of additional increment by the employees of private aided educational institutions on par with the employees of Government institutions.
28. In the light of the above said findings, this Court has to examine the law enacted by legislature so as to find out, whether in fact State 35 legislature has exercised legislative power by merely declaring an earlier judicial decision to be invalid and ineffective or the legislature has altered and changed the character of legislation which ultimately render judicial decision ineffective. On examination of this Act No.4/2015, it is clearly evident that the respondent/State is not intending to remove any defect in the impugned legislation. In my view, it cannot be considered as a curative legislation and that is apparently evident on bare perusal of the impugned Act No.4/2015. For better understanding, this Court would cull out the preamble part of the Act No.4/2015.
"An Act further to amend the
Karnataka Education Act, 1983
Whereas it is expedient further to
amend the Karnataka Education Act, 1983 (Karnataka Act 1 of 1995) for the purposes hereinafter appearing;
36
Whereas the State Government has admitted several Private Educational
Institutions for grant in aid to improve the standard of education and reduce the burden of management by giving salary grant to teaching and non-teaching staff.
Whereas no departmental examinations or Kannada language examinations were prescribed for employees in educational institutions receiving maintenance grant from State Government.
Whereas the teaching staff in private management institutions admitted to grant- in-aid, claim extension of benefit of one increment for having passed SSLC examination with Kannada as a language or Kannada Language Examination, on par with the pay and emoluments of Government servants is upheld in W.P Nos.13715/2006 c/w W.P Nos. 17236/2008 and 10111-10681/2009 dated 30.06.2009 and Writ Appeal No. 4255/2009 and 4556- 5155/2009 dated 25.03.2010. Accordingly 37 Government has issued order No.ED 302 PMC 2006, dated 25.03.2011.
Whereas the Government order dated 25.03.2011 was challenged in W.P No. 19846-20413/2012. The Hon'ble High Court of Karnataka allowed the said petition on 10.08.2012, with directions to keep in view the service particulars of the petitioners herein and calculate the additional increment payable to the petitioners as has been done in the case of teaching and non- teaching staff working in Government schools, who are similarly placed.
Whereas the state filed appeals against the order dated 10.08.2012 made in W.P Nos.19846-20413/2012, in Writ Appeal No. 2779 and 4868- 5434/2013. The Hon'ble High Court has dismissed the said appeals on 28.08.2013.
And, whereas the state of Karnataka preferred the appeal in the Hon'ble Supreme Court in Special Leave Petition No. 38205-38772/2013.
38
Whereas C.C.C.No. 648/2013 was filed before the Hon'ble High Court to implement the decision of Judgment delivered in W.P.No.19846- 20413/2012 dated 10.08.2012. The petition was allowed by giving 15 days time to implement the said orders. Since, Service examination or Kannada Language Examination is not made obligatory for aided school employees, there appears no justification in sanction of additional increment for having passed service or Kannada Language examination to aided institution employees. Government had never contemplated this at any point of time. However, Government has issued order No. ED 286 PMC 2013, dated 11.11.2013 implementing the order dated:
10.08.2012 of the Hon'ble High Court, subject to the Order of the Hon'ble Supreme Court in S.L.P. Nos. 74 38205-
38772/2013 which resulted in huge financial implication on the consolidated fund of the State.
The above said Special Leave Petition Nos. 38205-38772/2013 were dismissed on 06.01.2014.39
Now therefore, it is considered necessary to review the matter and since no Service examinations or Kannada Language Examination has been prescribed for the employees of aided Educational Institutions the Government decided not to extend the additional increment payable to the employees working in aided educational institutions as has been done in the case of employees working in Government Schools and for the matters connected therewith or incidental thereto for the purposes hereinafter appearing;"
29. If this preamble is examined, it does not indicate that the legislature by bringing in this amendment is intending to remove any defect.
30. The question that would arise before this Court is whether the legislature can render judicial decision ineffective by enacting the law within its legislative field fundamentally altering or changing its character retrospectively. Before this Court proceeds to test the Act, it would be useful to refer 40 to the judgment of Hon'ble Apex Court on this point.
31. The Hon'ble Apex Court in the case of State of Tamil Nadu Vs. State of Kerala and Another reported in AIR 2014 SC 2407 has held that the validating law is to be judged by applying three tests namely:
1. Whether legislature possesses a competence over the subject matter?
2. Whether by validation the legislature has removed the defect which the courts found in previous to law?
3. Whether it is in consistent with the provision of Part 3 of constitution?
32. The Co-ordinate Bench of this Court in the case of Dr.(Ms)B.K.Naik's case (supra) relying on the judgment of Hon'ble Apex Court in Sajjan Singh Vs State of Rajasthan, it has been held by the Hon'ble Apex Court to the following effect.41
"It is also urged that inasmuch as the impugned Act purports in substance to set aside the decisions of courts of competent jurisdiction by which some of the Acts added to the Ninth Schedule have been declared to be invalid, it is unconstitutional. We see no substance in this argument. It is hardly necessary to emphasize that legislative power to make laws in respect of areas entrusted to the legislative jurisdiction of different legislative bodies, can be exercised both prospectively and retrospectively. The constituent power conferred by Art. 368 on the Parliament can also be exercised both prospectively and retrospectively. On several occasions, legislatures think it necessary to validate laws which have been declared to be invalid by Courts of competent jurisdiction and in so doing, they have necessarily to provide for the intended validation to take effect notwithstanding any judgment, decree or order passed by a court of competent jurisdiction to the contrary. Therefore, it would be idle to contend fiat by making the 42 amendment retrospective, the impugned Act has become constitutionally invalid."
33. This Court has to examine the power of legislature to remove the basis of decision rendered by a competent court in exercise of its plenary power. This Court is of the view that the said issue is no more Res-Integra in view of law laid down by the Hon'ble Apex Court in the case of State of H.P and others Vs. Yesh Pal Garg (dead) by LRs. and others reported in (2003) 9 SCC 92. The Hon'ble Apex Court in the case of State of Haryana and others Vs. The Karnal Co-op. Farmers' Society Limited reported in AIR 1994 SC 1 has held as follows:
"31. Thus, it becomes clear that a Legislature while has the legislative power to render ineffective the earlier judicial decisions, by removing or altering or neutralising the legal basis in the unamended law on which such decisions 43 were founded, even retrospectively, it does not have the power to render ineffective the earlier judicial decisions by making a law which simply declares the earlier judicial decisions as invalid or not binding for such power if exercised would not be a legislative power but a judicial power which cannot be encroached upon by a Legislature under our Constitution."
34. On examination of the proposition of law laid down by the Hon'ble Apex Court and the ratio laid down by the Co-Ordinate Bench of this Court while interpreting the ratio laid down by the Hon'ble Apex Court in regard to competency of legislature in exercising plenary power in validating law, I am of the view that the proposed amendment does not indicate that the respondents/State has brought in amendment to cure any defect. On bare perusal of the preamble, the respondents/State has come in with this amendment with an intent to nullify the 44 judicial pronouncement and the same is forthcoming from the relevant paragraph which reads as follows:
Now therefore, it is considered necessary to review the matter and since no Service examinations or Kannada Language Examination has been prescribed for the employees of aided Educational Institutions the Government decided not to extend the additional increment payable to the employees working in aided educational institutions as has been done in the case of employees working in Government Schools and for the matters connected therewith or incidental thereto for the purposes hereinafter appearing .
35. The respondents/State by quoting the judgments and also contempt proceedings has come with this legislation to exclude the benefit of additional increment to the employees of aided institutions and by doing so, the State has virtually nullified the pronouncements by this Courts wherein 45 it is held in catena of judgments that the employees of aided institutions on parity are also entitled for additional increment for having passed Kannada examination.
36. This Court has delivered judgments on principle of parity. This Court while examining the rights of employees of aided institutions has not pointed out any defects in the existing enactment. Though it would emerge from the scheme of constitution that legislature can render judicial decision ineffective by enacting validity in law within its legislative field fundamentally altering or challenging its character retrospectively, however, the said principle would have no application where a judicial decision has been rendered by recording a finding of fact and under the pretence of such plenary power, legislature cannot nullify or neutralize the effect of judgment rendered after 46 ascertainment of facts by means of evidence or material placed by the parties to such dispute.
37. In view of the ratio laid down by the Hon'ble Apex Court in the matter of Cauvery Disputes Tribunal reported in 1993 SUPP(1) SCC 96(II) and in case of Indian Aluminium Company and Others Vs. State of Kerala reported in (1996) 7 SCC 637, the legislature is incompetent to overrule the decision of the Court without properly removing the base on which the judgment is found. The impugned Act No.4 of 2015 is enacted by the State legislature in exercise of its plenary power is sought to be dependent on the ground that it causes financial burden to the State. The State legislature by incorporating Rule 3 in the impugned Act No.4 of 2015, has sought for cancellation of sanction of additional increment and thereby in the said Rule 3 have clearly stated that 47 any judgment or decree or order of any Court would stand extinguished.
38. On examining the Rule 3 of Act No.4 of 2015, the State legislature has virtually tried to nullify the judgments rendered by this Court. By interpretive process, this Court has consistently held in catena of judgments that teaching and non- teaching staff of aided institutions to be treated on par with the teaching and non-teaching staff of Government Institution and accordingly the petitioners who are working in aided institutions are also extended the benefit of additional increment. This Court has consistently held that there cannot be any discrimination between two class of teachers discharging same duties and thereby this Court held that denial of additional increment to the teachers working in aided institutions would amount to discrimination and the same is hit by Article 14 of the Constitution of India.
48
39. The respondent - State by bringing in Act 4 of 2015, the Legislature circumvented the judgments of this Court and by bringing in amendment by Act 4 of 2015 to Section 87 of Karnataka Education Act, 1983 has declared that teaching and non-teaching staff of aided institutions are not entitled for additional increment for having passed Kannada examination. This Court is of the view that provisions made in the impugned Amendment Act 4 of 2015 is not sustainable and the same is illegal, besides in violation of Doctrine of Separation of powers enshrined under Article 50 of the Constitution. The impugned amendment is liable to be declared to be ultravires and entrenching upon the field earmarked for the judiciary as it sought to nullify the judgments and orders passed by this Court in batch of petitions. It is not the case of removal of a defect in existing law. It passes comprehension how the respondent 49
- State could have promulgated an Ordinance and consequently approved by Act 4 of 2015. Any executive order or a legislative enactment which interferes with the adjudicatory process and adjudication is an interference with the judicial power. The fact that impugned legislation seeks directly to nullify the judgments of Division Bench as well as Co-ordinate Bench of this Court in batch of petitions, it impinges upon the judicial power of the State and is, therefore, ultravires the Constitution. The Apex Court in Medical Council of India vs. State of Kerala reported in 2018 (11) Scale 141, has held that State cannot be a judge in its own cause and, therefore, cannot defy the decision of the judicial authorities. In the said judgment, the Apex Court was of the view that such an action forebodes evil consequences to the federal structure under the Constitution. 50
40. The proposed amendment brought in by State legislature does not indicate that the same is enacted to fill up any defect or loophole or lacuna through the impugned enactment. This Court in catena of judgments on touchstone of Article 14 of Constitution of India has held that teaching and non teaching staff of aided institutions cannot be discriminated. In the light of catena of judgments rendered by this Court which are confirmed by the Hon'ble Apex Court, this Court is of the view that neither legislature nor executive has power to simply declare the decisions of the Courts as invalid or not binding.
41. The impugned notification runs contrary to spirit and objects of Article 14 and I am of the firm view that it does not pass the test of permissible classification. The differentia by which the respondent - State has brought in amended Act 4 of 2015 in denying additional increment does not 51 demonstrate any rational relation to the object sought to be achieved by the impugned Act 4 of 2015. The Hon'ble Apex Court while reiterating the principles rendered in leading judgment in Mohd. Hanif Quareshi vs. The State of Bihar (AIR 1958 SC 731) held in State of M.P. vs. Rakesh Kohli ([2012] 6 SCC 312) that any amendment bringing in a permissible classification has to fulfill two conditions in order to pass the test:
i) The classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group.
ii) such differentia must have rational relation to the objects sought to be achieved by the statute in question.
42. This Court in batch of writ petitions has held that there is no qualitative differences 52 between the teachers of private aided institution and government schools. This Court has taken judicial note that the nature of work is identical. In this background, this Court is of the view that Articles 14, 15 and 16 form part of a string of constitutionally guaranteed rights. Though under Article 16, there can be reasonable classification and discrimination is the essence of classification, the same is not permissible if it rests on unreasonable basis. Those who are similarly circumstanced are entitled to an equal treatment. Equality is amongst equals. Classification is, therefore, to be founded on substantial differences which distinguishes persons grouped together from those left out of the groups and such a differential attributes must bear a just and rational relation to the object sought to be achieved. The proposed amendment does not indicate any of the ingredients discussed above.
53
43. At this juncture, this Court would also hold that the tests formulated by the Hon'ble Apex Court in State of Tamil Nadu Vs. State of Kerala and Another reported in AIR 2014 SC 2407, if applied to the present impugned amendment Act 4 of 2015, the same has to be held ultravires the constitution.
44. In the light of the above said discussion, I am of the view that the impugned enactment is an attempt by the State legislature to escape the financial liability and the same is liable to be struck down on the ground of irrational and arbitrariness and also violative of Article 14 of Constitution of India. Accordingly, I declare that the impugned Act No.4 of 2015 as unconstitutional. For the reasons stated supra, this Court would pass the following.
: ORDER :
a) The writ petitions are allowed.
54
b) The impugned Act No.4 of 2015 is
quashed as unconstitutional.
c) Respondents/State are hereby directed
to consider the case of the petitioners in regard to grant of additional increments in accordance with law.
d) The petitioners are at liberty to submit
one more fresh representation by
annexing the judgment of this Court.
Sd/-
JUDGE EM/MBS/-