Karnataka High Court
Karnataka Rajya Anudanitha Shikshana ... vs Department Of Education (Primary And ... on 8 December, 2023
Author: N. S. Sanjay Gowda
Bench: N. S. Sanjay Gowda
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WP No. 11667 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
®
BEFORE
THE HON'BLE MR. JUSTICE N. S. SANJAY GOWDA
WRIT PETITION No.11667 OF 2022 (S-RES)
BETWEEN:
KARNATAKA RAJYA ANUDANITHA
SHIKSHANA SAMSTHEGALA OKKUTA,
(A SOCIETY REGISTERED UNDER THE KARNATAKA
SOCIETIES REGISTRATIONS ACT, 1960)
HAVING ITS REGISTERED OFFICE AT:
RAVINDRA KANIKETANA, R.T.NAGAR,
TUMKUR-572 102.
REPRESENTED BY ITS SECRETARY,
SHRI.DEVARAJIAH,
S/O LATE SHRI.CHIKKARAMIAH,
AGED 68 YEARS,
R/AT NISARGA NILAYA, 4TH CROSS,
Digitally BASAVESHWARA EXTENSION, KAYATASANDRA,
signed by
KIRAN TUMKUR-572 104.
KUMAR R ...PETITIONER
Location:
HIGH (BY PROF.RAVIVARMA KUMAR, SENIOR COUNSEL FOR
COURT OF SMT.PRIYANKA YAVAGAL, ADVOCATE)
KARNATAKA
AND:
1 DEPARTMENT OF EDUCATION
(PRIMARY & SECONDARY EDUCATION)
GOVERNMENT OF KARNATAKA,
REPRESENTED BY ITS
PRINCIPAL SECRETARY,
M.S.BUILDING,
BANGALORE-560 001.
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WP No. 11667 of 2022
2. DEPARTMENT OF PUBLIC INSTRUCTIONS
GOVERNMENT OF KARNATAKA,
REPRESENTED BY ITS COMMISSIONER,
NRUPATUNGA ROAD, K.R.CIRCLE,
BANGALORE-560001.
3. DEPARTMENT OF PRE UNIVERSITY EDUCATION,
REPRESENTED BY ITS DIRECTOR,
18TH CROSS MALLESHWARAM,
SAMPIGE ROAD,
BANGALORE-560 012.
...RESPONDENTS
(BY SRI.V.G.BHANU PRAKASH, ADDITIONAL ADVOCATE
GENERAL ALONG WITH SMT. PRATHIBHA.R, AGA)
THIS WRIT PETITION FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO DIRECT THE
RESPONDENTS TO CONSIDER THE REPRESENTATIONS MADE
BY THE PETITIONER SOCIETY PRODUCED AT ANNEXURE-E
SERIES AND TO FILL UP THE POSTS THAT HAVE FALLEN
VACANT IN ACCORDANCE WITH THE PROVISION OF THE
GRANT IN AID CODE, RIGHT TO EDUCATION ACT 1983 AND
KARNATAKA EDUCATIONAL INSTITUTIONS (RECRUITMENT
AND TERMS AND CONDITIONS OF SERVICE OF EMPLOYEES IN
PRIVATE AIDED PRIMARY AND SECONDARY EDUCATIONAL
INSTITUTIONS) RULES, 1999, ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 05.09.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
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WP No. 11667 of 2022
ORDER
1. For ease of reference, this order has been indexed1 as follows:
Sl. Particulars Page No. No. I. Factual background and relief sought. 03 II. Arguments advanced by the counsels. 04 a. Contentions of the Petitioner. 04 b. Contentions of the Respondents. 06 III. Issues. 11 IV. Analysis of the applicable provisions. 12 V. Application of the law to the present 53 facts. VI. Conclusion. 70 I. FACTUAL BACKGROUND AND RELIEF SOUGHT:
2. The petitioner is a Society registered under the provisions of the Karnataka Societies Registration Act, 1960, and the members of the petitioner-Society are primary and secondary schools which have been admitted to grant-in-aid.
1 Summary analysis provided at the end of the observations under particulars IV and V. -4- NC: 2023:KHC:44738 WP No. 11667 of 2022
3. This petition is filed seeking a direction to strike down Rule 3 in Annexure-I to the Karnataka Educational Institutions (Recruitment and terms and conditions of Service of Employees in Private Aided Primary and Secondary Educational Institutions) Rules, 1999 (for short, "the 1999 Rules").
4. In addition to the same, a prayer is also made for issuance of a direction to the respondents to consider the representations made by the petitioner-Society to fill up the posts that have fallen vacant, in accordance with the provisions of the Grant-In-Aid Code ("the Code", for short), the Right of Children to Free and Compulsory Education Act, 2009 ("the RTE Act", for short) and the aforementioned Rules of 1999.
II. ARGUMENTS ADVANCED BY THE COUNSELS:
a. Contentions of the Petitioner:
5. It is the case of the petitioner that its member- schools are not being permitted by the State Government to fill up the vacancies in their teaching faculty. It is -5- NC: 2023:KHC:44738 WP No. 11667 of 2022 contended that the State Government is taking advantage of the requirement of according an approval envisaged under an Annexure to the aforementioned Rules, and that this action is clearly illegal and untenable.
6. It is the specific case of the petitioner that the statutory requirement of the Karnataka Education Act, 1983 ("the Education Act", for short) and the Rules made thereunder, mandate that the schools which have been admitted to grant are required to adhere to the Rules made therein, especially in the matter of possessing adequate number of teachers with the requisite educational qualifications. Their simple contention is that the State, by refusing to grant permission to them to fillup the posts in the manner contemplated under the statutory Rules, is essentially impeding the education of the students in schools and forcing them to violate the statutory norms. It is contended that by refusing permission to the schools to recruit the requisite teaching staff, great disservice is being done to students, who are -6- NC: 2023:KHC:44738 WP No. 11667 of 2022 now deprived of proper education, though the Education Act and the Rules framed by the State not only require that they be educated in a specified manner, but also specifies that the requisite number of teachers be allotted in a prescribed ratio to a certain number of students enrolled.
b. Contentions of the Respondents:
7. Per contra, the State contends that for posts that have fallen vacant after 31.12.2015 on account of death, resignation and retirement, permission was not accorded to fill up such vacancies as an economic measure, in view of a direction issued by the State Government on 10.06.2020 owing to the COVID-19 pandemic. The State also accedes to the fact that it is required to provide grants within the limits of its economic capacity and if the State is economically constrained from setting apart monies in that regard, neither the petitioner nor any of its members could claim grant-in-aid as a matter of right. Furthermore, it is stated that this Court had also declared -7- NC: 2023:KHC:44738 WP No. 11667 of 2022 that private educational institutions do not have any legally enforceable rights to claim grant-in-aid from the State, and that for this reason, the petitioner's prayer cannot be entertained, since they are virtually seeking issuance of a direction to ensure that they are given grants in respect of the posts which have fallen vacant on account of death, resignation, etc.
8. It is also contended that it is the duty of the Management / Managing Committee to pay salaries to the employees and that they cannot seek salary grants from the State as a matter of right. It is submitted that the Government was extending the grant-in-aid facilities to private institutions, subject to its financial capacity, and since there were financial constraints, there had been a ban on creation and filling of such posts. It is contended that the Government allowed the filling-up of a fixed number of teaching posts, and as a matter of fact, the Government had permitted the posts which had fallen vacant (till 31.12.2015) to be filled up vide Order dated -8- NC: 2023:KHC:44738 WP No. 11667 of 2022 30.07.2022, and that having regard to these facts, the prayer made in the petition could not be granted.
9. Apart from filing the statement of objections, upon directions being issued by this Court, affidavits were also filed by the Principal Secretary to Government, Department of School Education and Literacy, and also the Director of Pre-University Education. The Principal Secretary has reiterated that on account of COVID-19, there were financial constraints, as a result of which, the Government had issued the Circular dated 10.06.2020 directing the institutions to not fill up any vacant posts. It is, however, admitted that out of the 1343 sanctioned posts in aided Colleges, 898 posts were filled up and there were 445 vacancies. Further, it was also admitted that the State had already granted permission in respect of 97 posts which had fallen vacant prior to 31.12.2015, and in respect of the remaining 348 posts which fell vacant after 31.12.2015, the same could not be permitted to be filled, -9- NC: 2023:KHC:44738 WP No. 11667 of 2022 in view of the Government Order which has been issued as a result of paucity of funds.
10. The Director of Pre-University Education has also reiterated the same contention. He has also gone on to state that there were 109 vacant posts which were sought to be filled, for which permission was required. As per their records, there were a total of 188 posts vacant, out of which, 102 were teaching staff posts and 06 were non- teaching staff posts. It is stated that as on 31.12.2015, there were a total of 125 posts, of which 85 posts were vacant, but there was no specified workload and hence, 07 posts had been filled up after permission had been granted by the Department. It is also stated that 62 out of 108 posts have fallen vacant after 01.01.2016 and permission has not been granted due to the policy decision of the State Government. It is also contended that there are 06 non-grant Lecturer posts for the subject of Science, and the Department cannot accord permission to these posts, along with another 15 posts in bifurcating Pre-University
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NC: 2023:KHC:44738 WP No. 11667 of 2022 Colleges, as they were yet to be handed over to the Pre- University Department.
11. It is also averred that in respect of non-teaching posts, since there is no provision to grant aid for non- teaching staff in aided Pre-University Colleges as per the Government Order dated 22.12.1987, the question of granting permission to fill up non-teaching staff would not arise. Furthermore, it is also averred that as per their records, there is no proposal or representation received from any of the Managements (under the petitioner- Society) seeking permission to recruit against the posts that became vacant prior to 31.12.2015, and therefore, there is no merit in the prayers advanced.
12. After the objections and affidavits were filed by the Principal Secretaries and by the State, a memo was also filed on 30.08.2023 enclosing a letter dated 28.08.2023 written by the Principal Secretary to Government, Department of School Education and Literacy, addressed to the Additional Advocate General, stating that permission
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NC: 2023:KHC:44738 WP No. 11667 of 2022 had been sought from the Department (Finance) to fill up the vacancies said to have arisen between 01.01.2016 and 31.12.2020.
13. An argument was advanced on behalf of the State that there is no legally enforceable right to claim grant-in- aid and in order to run the schools in the manner prescribed under the Education Act and the Rules, the Managements are under an obligation to fill up the vacancies without expecting the grant-in-aid from the State. Reliance is placed on the decision rendered by this Court in the case of Ramanjaneyaswami Vidhya Samsthe2 to contend that there is no legal right to any institutions to seek grant-in-aid as a matter of right. III. ISSUES:
14. In light of the submissions made above, the issues that arise for consideration in this Writ Petition are as follows -
2 Ramanjaneyaswami Vidhya Samsthe and Ors. v. State of Karnataka and Ors., ILR 2000 KAR 922.
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i. Whether the requirement of seeking
permission to fill up the posts which have fallen vacant in Private Aided Educational institutions would be valid and legal, in light of the scheme of the Karnataka Education Act, 1983 and the Rules framed thereunder? ii. Whether the State Government, by retaining the power to accord permission to fill up vacant posts and refusing to accord approval, is forcing the educational institutions to contravene the provisions of the Education Act and the Rules by not recruiting the prescribed number of teachers?
IV. ANALYSIS OF THE APPLICABLE PROVISIONS:
15. In order to answer the issues arising in the present matter, the provisions of the Education Act and the relevant Rules are required to be examined and analysed.
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16. The Education Act was enacted with the objective of providing better organisation, development, discipline and control of the educational institutions in the State. This Act was considered necessary in order to plan the development of educational institutions; inculcation of healthy educational practice; maintenance and improvement in the standards of education; better organisation, discipline and to maintain control over educational institutions in the State; foster harmonious development of mental and physical faculties of students; and cultivating scientific and secular order, through education.
17. It is, therefore, clear that the basic objective of the Education Act was to ensure that a robust education system was established to help foster both mental and physical faculties of students in the State.
18. The Education Act has been divided into 18 Chapters.
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19. Chapter I contains 7 sections. Section 3 of Chapter I empowers the State Government to regulate general education, professional education, medical education, technical education, commerce education and special education at all levels, in accordance with the provisions of the Education Act, and the State Government, towards that end, is conferred with several powers, including that of establishing and maintaining educational institutions, ensuring registration and also recognition of such educational institutions. The State is also empowered to grant aid to any recognised educational institution, to further the objective of the Education Act. Thus, statutorily, the Education Act provides for the Government to make a provision to grant aid to any recognized educational institutions. Section 6 bars the establishment of an educational institution otherwise than in accordance with the provisions of the Education Act or the Rules made thereunder. Thus, an educational institution can be established or maintained only in accordance with the provisions of the Education Act and the relevant Rules.
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20. Section 7 of the Education Act empowers the State Government, by order, to specify the curricula, syllabi, duration of the course, etc. Section 7(g) categorically states that State Government may specify the staff pattern for both teaching and non-teaching staff along with the requisite educational and other qualifications for different posts. Section 7(4) indicates and declares the objectives of the education at the primary level. It is stated that the objective is universalisation of education at the primary level by comprehensive access, by both formal and non-formal means, and also by improving the retention and completion rates so as to help children attain the required level of achievement for basic purposes.
21. Chapter II enumerates the Education Authorities which can be created under the Education Act.
22. Chapter III provides for the enforcement of compulsory primary education and Chapter IV provides for examinations and prevention of malpractices.
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23. Chapter V enumerates the manner in which educational institutions are to be classified and registered, Section 31 elaborates the procedure for registration of such educational institutions. Section 31(2) mandates that while registering institutions, the Registering Authority should have due regard to their service i.e., including the Teaching staff qualified according to the Rules made by the State Government in this behalf or who are to be appointed. Thus, in order to get an educational institution registered, one of the requirements which is to be examined by the Registering Authority is the qualification of the teaching staff, before proceeding to examine whether they are in accordance with the Rules made by the State in that behalf.
24. Section 34 of the Education Act provides for cancellation of registration. It states that if any private educational institution or local authority institution does not adhere to the conditions for registration or the specifications found in Section 31(2) of the Education Act
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NC: 2023:KHC:44738 WP No. 11667 of 2022 or the Rules framed under the Education Act, the registration of such institution could be cancelled after conducting an enquiry. From this, it is clear that if the prescribed requirements under the Education Act, including the requirement relating to the qualifications of teaching staff, are not adhered to by the institutions, the registration of such institutions are liable to be cancelled.
25. Section 36 of the Education Act provides for according recognition to any educational institution which has been registered under the Education Act, which shall be subject to the fulfilment of the conditions prescribed under Section 36(2)(a) to (c).
"36. Recognition.- (2) The granting of recognition shall be subject to fulfilment of the following conditions, namely:-
(a) security deposit of the prescribed amount shall be made within the time specified;
(b) the Governing Council shall possess or be assured of adequate funds to run the institution on a stable footing; and
(c) such other general or special conditions as may be prescribed in regard to
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NC: 2023:KHC:44738 WP No. 11667 of 2022 accommodation, appointment of teaching and other staff, the code of conduct to be accepted and observed by the Governing Council, furniture and equipment, syllabi, text-books and such other matters relating thereto."
26. Section 36(2)(c) contemplates compliance of general or special conditions prescribed relating to the appointment of teaching and other staff. By virtue of this Section, it is clear that recognition is accorded to a school only if the conditions specified for appointing the teaching and other staff, are complied with.
27. Section 39 of the Education Act provides for withdrawal of recognition if the Governing Council of any private institution fails to fulfil to any of the conditions imposed on it. Section 39(1)(f), in fact, states that recognition can be withdrawn if the institution contravenes any of the provisions of the Education Act, the Rules and the orders made therein, after, of course, after giving an opportunity of hearing to the Governing Council.
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28. Chapter VII provides for management of recognised educational institutions and other institutions. Section 40 enumerates the duties of the Management of recognised private educational institutions and Local Authority institutions, while Section 41 elaborates on the management of recognized educational institutions. Section 41 categorically states that no recognized private educational institutions should be managed except in conformity with the Rules which the State Government may frame for such institutions. The Rules that can be framed by the State are as provided under Section 41(2).
"41. Management of recognised educational institutions.- (2) The rules under sub-section (1) may, inter alia, include,-
(a) qualification for posts of teaching and non- teaching employees;
(b) the manner of recruitment of the teaching and non-teaching employees;
(c) scales of pay and allowances admissible;
(d) leave, pension, provident fund, insurance and such other benefits;
(e) maintenance and enforcement of discipline of employees;
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(f) powers, functions and responsibilities of the management;
(g) duties and responsibilities of the Secretary; and
(h) maintenance and submission of records, accounts and other returns to the prescribed authority."
29. As could be seen from Section 41(2) (a) (b), (c), (d) and (e), the State Government can frame Rules in relation to - qualification for the post of teaching and non-teaching employees, the manner of recruitment of teaching and non-teaching employees, scales of pay and allowances admissible, on matters of leave, pension, provident fund, insurance, along with such other benefits, maintenance and enforcement of discipline of employees i.e., in respect of the recruitment and also the conditions of service of the employees of private educational institutions. It is, therefore, clear that the State Government can frame Rules, which control not only the recruitment of an employee or a private educational institution, but also govern the conditions of their service.
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30. Section 46 enumerates the powers of the Managing Committee of the institution to carry on the general administration of the private educational institutions to appoint teachers and other employees of the institutions, except the head of institutions. The Managing Committee is also empowered to take disciplinary action against the teachers and other employees, and also to supervise and control the employees of such institutions. Thus, a private educational institution is expected, under the provisions of the Education Act, to have a Managing Committee, which is empowered to appoint Teachers and other employees of the institutions.
31. At this stage it would also be necessary to examine the Rules framed by the State in exercise of powers under Section 145(1) of the Education Act, which would be relevant to the context of this case.
32. On the Education Act coming into force on 01.06.1995, the State has framed a set of Rules in 1995, relating to the Classification, Regulation and Prescription of
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NC: 2023:KHC:44738 WP No. 11667 of 2022 Curricula, etc., which was brought into effect from 04.10.1996.
33. It has also framed another set of Rules in 1999 relating to recruitment and terms of conditions of service in primary and secondary schools.
34. It has also framed another set of Rules in 2006 relating to the institutions imparting Pre-University education, in which it has provided for recruitment, along with the terms of conditions of service of its teaching and non-teaching staff.
35. The State has framed the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula etc.,) Rules, 1995 (hereinafter referred to as, "the 1995 Rules"). These Rules are prescribed only for an educational institution imparting primary and secondary education.
36. Rules 4 to 8 stipulate the infrastructural requirements for such an educational institution. Rule 9
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NC: 2023:KHC:44738 WP No. 11667 of 2022 (extracted hereunder) deals with the staff of such an institution and it states that every recognized institution should appoint only qualified Teachers and other staff, as specified in the Recruitment Rules notified by the State Government or by the competent authority. It also mandates that in case of primary schools, there should be a minimum of one teacher for every 40 students, and in case of secondary schools and higher institutions, teachers should be appointed as per the staff patterns specified by the State Government.
"9. Provision of staff.- (1) Every recognised educational institution shall appoint only qualified teachers and other staff as specified in the recruitment rules notified by the State Government or the competent authority authorised in this behalf. (2) In case of primary schools there shall be a minimum of one teacher for every forty students or fraction thereof.
(3) In case of secondary schools and higher institutions the teachers shall be appointed as per the staff pattern specified by the State Government from time to time."
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37. Rule 10 of the 1995 Rules prescribes the procedure for collecting fee in respect of all classes, and the fee that can be collected has been classified as term fees, tuition fee and special development fee. The fee that can be collected is also to be as specified by the State Government. Rules 11 and 12 provide for Uniform, clothing, text books, etc., and Parent Teacher Committee (respectively), while Rules 13 to 15 deal with admission of students into the institution.
38. Rule 16 provides for Constitution of a District Level Education Regulating Authority and also describes its functions, whereas Rule 17 provides for an appeal against any decision taken by the Regulating Authority. Rule 19deals with the Curricula and Rule 20 prescribes the limits relating to home work, and finally, Rule 21 provides for relaxation of rules by the State of the competent authority.
SUMMARY ANALYSIS OF THE 1995 RULES: It is, therefore, clear that every aspect of an education institution,
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NC: 2023:KHC:44738 WP No. 11667 of 2022 including the infrastructure required for running an institution and the staff that are to be appointed, are regulated by the Rules and it is the mandate of Rule 9 that every institution should appoint only qualified teachers and other staff as specified in the 1995 Rules.
39. The second set of Rules framed by the State in exercise of powers conferred under Section 87 to 101 read with Section 145 of the Education Act are the Karnataka Educational Institutions (Recruitment and Terms and Conditions of Service of Employees in Private Aided Primary and Secondary Educational Institutions) Rules, 1999 (hereinafter referred to as "the 1999 Rules").
40. These Rules, as the title suggests, prescribe the rules relating to Recruitment and Conditions of Service of private aided Primary and Secondary educational institutions. Rule 3 of the 1999 Rules reads as follows:
"3. Qualification and conditions of service of employees.- (1) Subject to the other provisions in these rules:
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(a) The categories of posts, the staffing pattern and the qualifications for recruitment to posts in an Institution shall be as specified in Annexure III, IV and V. In respect of employees other than teachers, the prescribed qualifications for recruitment, etc. in Institutions shall be the same as those applicable for the corresponding category of employees in Government Educational Institutions.
The procedure for selection of candidates to posts identified for recruitment shall be [as specified in Annexure-I and the procedure for filling up of the post of Head Master and Head Mistress in High schools shall be specified in Annexure VI].
(b) Subject to the financial capacity of the State Government the salary of employees in respect of posts admitted into aid in recognised private educational institutions receiving aid from the State Government shall generally be the same as those applicable for the corresponding category of employees in government educational institutions as per orders issued by the State Government in respect of this category of employees from time to time.
Provided that no employees of an aided Institution shall be entitled to the benefits enumerated in Annexure - II.
(c) Subject to the financial capacity of the State Government pensionary benefits is admissible
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NC: 2023:KHC:44738 WP No. 11667 of 2022 to aided employees of aided institution as per the provisions of Triple Benefit Scheme Rules and gratuity is admissible as per the orders issued by the government from time to time.
Provided that in respect of employees appointed prior to 1.1.86, pension and gratuity is admissible if management contribution of 3% is paid upto the period of 4.9.86.
(2) The State Government may vary the qualification, method of recruitment and conditions of service from time to time."
41. As could be seen from the above, Rule 3 states that the categories of posts, the staffing pattern and the qualifications for recruitment to posts and institutions shall be as provided under Annexures-III, IV, V and VI.
42. It would be worthwhile to note here that Rule 3(b) makes it clear that the salary of the employees in respect of posts which are admitted to aid in recognised private educational institutions should generally be the same as that of corresponding category of employees in Government educational institutions. This would, however, be subject to the financial capacity of the Government.
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43. Rule 3(c) also states that the State Government pensionary benefits would be admissible to aided employees as per the Triple Benefit Scheme Rules and Gratuity admissible as per the orders issued by the State Government.
44. Hence, an aided employee would be entitled to the same salary and pension as is admissible to the same category of employees in Government Educational Institutions. This would, however, be subject to the financial capacity of the Government, and the Government may, thus, reduce its aid to all the aided employees if it has any financial constraints.
45. Rule 3-A states that if the Management commits a wrongful act or makes a default in the appointment of a person or makes an appointment contrary to the1999 Rules, the salary of such person would have to be paid by the Management from its own fund and not from the financial assistance provided by the State Government.
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46. Rule 4 prescribes the age limit for recruitment to the corresponding posts in an institution and Rule 5 requires that other private educational institutions should maintain a schedule of employment as per seniority. Rule 6 mandates the constitution of the Selection Committee and one of the members of such Committee is required to possess expertise in the subject. Thus, the qualifications and procedure for recruiting an employee is prescribed and it is made clear that if there is an error in the appointment, the consequences of bearing the salary burden of such appointment would be on the institution and not on the Government.
47. Chapter II provides for service conditions in respect of employees of aided institutions. The Rules in the said Chapter provide for the period of probation, seniority and resignation of an employee and also enables an employee of an institution to be retrenched for the 6 reasons mentioned in Rule 10. In fact, Rule 10 (d) clearly states that if an employee does not possess the required
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NC: 2023:KHC:44738 WP No. 11667 of 2022 educational qualifications, he can be retrenched. Rule 11 provides for the procedure to be followed while retrenching employees under Section 98 of the Education Act, while Rule 12 provides for transfer of employees from one aided institution to another.
48. Rule 13 provides for closure of institutions by the competent authority if the student strength is not as per the prescribed norms. In fact, sub-rule (2) of this Rule states that in case of such closure, the staff are required to be retrenched in the manner provided under Rules 10 & 11, and the students are required to be accommodated in other institutions as ordered by the competent authority.
49. Chapter III of the 1999 Rules deal with provisions relating to Discipline, and it contains Rules which prescribe the procedure for imposing penalties, suspending employees and preferring an appeal against the orders passed against an employee. Chapter IV contains provisions relating to the Code of Conduct to be followed by the employees while Chapter V contains provisions
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NC: 2023:KHC:44738 WP No. 11667 of 2022 relating to Leave. These provisions would not be relevant for the purposes of this writ petition and referred to for the purpose of having an overall view of the framework of the Rules.
50. In the matter of Recruitment, Rule 3 of the 1999 Rules provides for categories of posts, the staffing pattern and the qualifications, which are enumerated under Annexures - III, IV, V and VI. The categories of posts are enumerated in Annexure III, while the staffing pattern is enumerated in Annexure IV.
51. Annexure IV stipulates the staffing pattern for High Schools while Annexure V stipulates the staffing pattern for Primary Schools, and Annexure VI deals with the procedure for filling up of the post of Head Master/Head Mistress in high schools. Annexure IV states that the minimum strength of the actual student attendance in each class of the High School from VII Standard to X Standard should be 25 in each section and in respect of
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NC: 2023:KHC:44738 WP No. 11667 of 2022 these classes, the institution should have the following staff:
i. 1 Headmaster/Mistress;
ii. 6 Assistant masters (3 for Physics, Chemistry
and Mathematics, 1 for Chemistry, Botany and Zoology and 1 each for Social Studies and English);
iii. 1 language Teacher;
iv. 1 Physical Education Teacher;
v. 1 Hindi Teacher; and
vi. Teacher for Craft b or Drawing or Music.
52. If the student strength exceeds 70, it is permissible for permitting an additional section. If, however, an additional section is opened beyond 5 sections with prior approval of the competent authority, sanction could be accorded for one and a half post. Certain other provisions are made in respect of Minority language schools and Sanskrit teachers would not be relevant for this case.
53. It is, however, clear from a reading of the Staffing pattern that a minimum number of teaching staff has been prescribed and thus, every High School is required to have
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NC: 2023:KHC:44738 WP No. 11667 of 2022 the prescribed number of teachers in order to run a High school in accordance with the Rules.
54. In respect of Primary Schools, the staffing pattern is prescribed in Annexure V and it states that minimum strength of each class from I to VII Standard should be 40 per class and for a class of 40 students, one post of Primary school teacher for each class would be sanctioned. Thus, if a primary school has Standard I to VII with a strength of 40 students, 7 Primary schools teacher posts would be sanctioned. If the strength is less than 40 per class, a maximum of two teachers shall be sanctioned for 80 students irrespective of the total number of students in all the classes. If, however, the student strength is 160, 4 posts of primary school teachers would be sanctioned, irrespective of the number of children attending each class.
55. Thus, in respect of both Primary and High Schools, there is a statutory obligation for an aided institution to have the minimum number of teachers and a private
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NC: 2023:KHC:44738 WP No. 11667 of 2022 education institution, which is receiving aid, is required to maintain the staffing pattern prescribed statutorily.
56. To put it differently, if a primary School or a High School does not maintain the staffing pattern as prescribed in Annexure IV and V, the said school would be in contravention of the provisions of the Rules framed under the Education Act and as a consequence, would also thereby contravene the provisions of the Education Act which mandate that the prescribed Rules are to be adhered to.
57. The procedure to be followed for recruitment of the staff is enumerated in Annexure-I.
58. Clause 1 of Annexure-I states that recruitment should be made on the basis of the percentage of total marks secured in the qualifying examination determined in the manner specified in Clause 3. Clause 2 of Annexure-I, reads as follows:
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NC: 2023:KHC:44738 WP No. 11667 of 2022 "2. Advertisement in the News Paper: - The selecting authority of an educational institution shall, subject to the economy orders banning filling of vacancies, issued by Government from time to time, firstly obtain prior permission of the competent authority to fill up the vacancies arising due to retirement, resignation, promotion and death against posts which were admitted to grant-in-aid excluding the vacancies caused on account of sanction of additional sections/subjects/combinations. Permission shall be granted to fill the vacant posts as per the reservation roster points by the competent authority.
Thereafter it shall notify at least in one State level daily newspaper having large circulation in the State and in one leading district level daily newspaper having large circulation in the district, inviting applications from candidates indicating therein the categories of posts, number of vacancies, minimum qualification prescribed, classification of vacancies as per the reservation roster etc., Copy of the advertisement shall also be sent to the concerned Deputy Director of Public Instruction, Block Educational Officer and the concerned employment exchange for displaying on the notice board of their offices. The managing committee of the institution shall also display the advertisement on the notice board of its office."
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59. As could be seen from the above, the selecting authority of an educational institution should, subject to the economy orders banning filling up of vacancies issued by the Government from time to time, firstly, obtain prior permission of the competent authority to fill up the vacancies arising due to retirement, resignation, promotion and death, against such posts which were admitted to grant-in-aid (excluding the vacancies caused on the account of sanction of additional sections, subjects and combinations).
60. The Clause further states that permission should be granted to fill up the vacancy as per the reservation roster points as determined by the competent authority. Thus, the grant of permission to fill the vacant posts is made mandatory by the usage of the term "shall be granted to fill the vacant posts".
61. On such permission being granted to fill up the posts, the aided school is mandated to issue a notification inviting applications from candidates and this notification
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NC: 2023:KHC:44738 WP No. 11667 of 2022 is required to state the categories of posts, number of vacancies, minimum qualification prescribed and the classification of vacancies as per the reservation roster. This notification is required to be notified in a State level newspaper and a District level newspaper having a large circulation and a copy of the advertisement published is also required to be sent to the Deputy Director of Public Instructions, Block Development Officer and the concerned employment exchange, apart from also putting up the advertisement in the notice board of the aided institution.
62. The other clauses in Annexure I go on to state the manner in which the recruitment process is to be completed. These provisions would not be relevant for the purposes of this writ petition, as this petition is targeted only on the aspect of granting permission to fill up the vacant posts which have arisen due to death, resignation or retirement of existing teachers in aided schools.
63. On a plain reading of the Clause 2 of Annexure-I, it is clear that prior permission of the competent authority
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NC: 2023:KHC:44738 WP No. 11667 of 2022 should be sought by the aided school to fill up the vacancies and the competent authority, on such permission being sought, is bound to grant permission to fill up the vacancies, keeping in mind the reservation roster points and thereafter, the aided school is required to invite applications by causing the publication of an advertisement in a State level and a District level newspapers.
SUMMARY ANALYSIS OF THE 1999 RULES: It is, therefore, clear from a conjoint reading of the substantive provisions of Section 46(c) (which confers express powers on the Managing Committee to appoint teachers and other employees in a private educational institution except the head of the institution) and Annexures I, IV and V (which prescribe the mandatory staffing pattern), every aided educational institution is statutorily bound to appoint the required number of teachers in the prescribed manner, and failure to do so would amount to contravening the Rules.
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NC: 2023:KHC:44738 WP No. 11667 of 2022 It should not be forgotten that in the ultimate analysis, the intent behind prescribing a mandatory staffing pattern is to basically ensure that proper education is imparted to the students which meet the objectives of the Statute and for this, the presence of teachers would be of primordial importance. It would be absurd to contemplate a situation where students would get educated without the required number of teachers as per the staffing pattern prescribed, because the very reason for prescribing a staffing pattern was that the law makers were acutely aware that good education cannot be imparted in students if there wasn't the adequate strength of teachers. It is, therefore, beyond a shadow of doubt that a School, in order to be compliant with the Act and the Rules, should have on its rolls the prescribed number of teachers and if it does not, it's very existence itself would be in peril.
64. In the year 2006, the State framed the Karnataka Pre-University Education (Academic, Registration,
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NC: 2023:KHC:44738 WP No. 11667 of 2022 Administration and Grant-in-aid etc.) Rules 2006, (hereinafter referred to as the "the 2006 Rules").
65. These Rules contain 5 chapters. Chapter I deals with the Preliminary and Definitions. Chapter II provides for provisions relating to Classification and procedure for establishment of private Pre-University Colleges. Chapter III provides for provisions relating to the Recognition and Admissions in Private Pre-University Colleges and Chapter IV provides for rules relating to the Subjects of Study, Attendance, Teaching Hours etc., and Chapter V enumerates the provisions relating to Aided Pre-university Colleges. The Rules basically stipulate the requirements for establishing and running Pre-university colleges.
66. For the purposes of this writ petition, it would be sufficient to consider only certain provisions of the 2006 Rules and the provisions of Chapter V, which specifically deal with private aided Pre-university colleges.
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67. Initially, for the purposes of establishing a new Pre- university College, on being satisfied with the infrastructure secured by the applicant and an undertaking given, the Institution would be registered, and the Managing Committee would be authorised to recruit the minimum teaching and non-teaching staff. Rule 4(8) states that the institution should have 1 principal, 1 lecturer for each subject, 1 physical education teacher, 1 clerk, 1 peon and 1 laboratory attender, in case of a science college. Thus, for a new college, the Rules clearly prescribe the minimum number of lecturers that are needed to establish a Pre-university College.
68. Rule 5 of the Rules makes the 2006 Rules applicable to the existing Category B and C colleges and requires them to satisfy the infrastructural requirements of the Rules, and Rule 7 provides for recognition of existing Category A colleges, permanently. This is, however, made subject to the condition that the recognition would be revoked if there is a violation of the 2006 Rules. It is,
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NC: 2023:KHC:44738 WP No. 11667 of 2022 therefore, clear that the 2006 Rules mandate a minimum number of lecturers, even for every existing Pre-university College.
69. Rule 13 of the 2006 Rules prescribes the Teaching hours and hours of teaching for both day and evening Pre- university Colleges. Rule 14 specifies the quantum of work for lecturers, principals and teaching staff, and stipulates that every lecturer teaching science and mathematics is required to have a minimum workload of at least 20 hours per week and every lecturer teaching Arts or Commerce subjects is required to have a minimum workload of 16 hours per week and the Pre-university College is required to work for at least 220 days in an academic year.
70. Chapter V provides for the Rules which are applicable to aided Pre-university Colleges. Rule 15(1) of Chapter V reads as follows:
"15. Recruitment of teaching and non- teaching staff in aided private Pre-University colleges.-(1) A Managing Committee shall be
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NC: 2023:KHC:44738 WP No. 11667 of 2022 competent to appoint the teaching and non- teaching staff in a private aided Pre-University College. The Managing Committee of a private aided Pre-University college shall comply with the reservation roster for filling-up post by the direct recruitment or by promotion to the extent and in a manner specified by the Government from time to time, whenever it is applicable. The minimum academic qualifications prescribed under the Karnataka General Services Pre-University Education Recruitment Rules, 1996, shall be applicable to the personnel of private aided pre- university colleges also. Every Managing Committee shall maintain an employment register pertaining to the teaching and non-teaching staff in which every appointment made shall be registered. An extract of employment register shall be sent to Deputy Director as on 30th September of every year.
[The provisions of the Karnataka Civil Services [General Recruitment] Rules, 1977 relating to (horizontal) reservation of posts in favour of the persons belonging to the categories of ex- servicemen, physically handicapped, project displaced persons, women and Kannada medium candidates and the provisions of the Karnataka Reservation of Appointments or Posts (in the Civil Services of the State) for Rural Candidates Act, 2000 (Karnataka Act 1 of 2001) relating to the each
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NC: 2023:KHC:44738 WP No. 11667 of 2022 category of rural candidates shall mutatis mutandis apply in respect of every recruitment made under these rules.]"
71. The abovementioned Rule states that the Managing Committee shall be competent to appoint the teaching and non-teaching staff in a private aided Pre-university college, subject to compliance of the reservation roster in the manner specified by the Government. It also states the minimum academic qualifications prescribed for recruitment to the Government Pre-university colleges and also for reservation under the General Recruitment Rules would be applicable and the Managing Committee is required to maintain a Register of Employees and send an extract of the same to the Deputy Director.
72. Sub-rule (2) of Rule 15 requires that the Deputy Director should satisfy himself that the person appointed possesses the minimum academic qualifications prescribed for the post and the roster, category-wise, has been followed. If it is found that these requirements are not met with, he is empowered to take steps to withdraw the
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NC: 2023:KHC:44738 WP No. 11667 of 2022 recognition and stop the grant after giving an opportunity to the Managing Committee. Thus, in respect of aided colleges, the Deputy Director is required to have an oversight on the staff recruited for the college and take steps if the requirements are flouted.
73. Rule 16 prescribes the procedure for recruitment, and it states that a vacancy in the cadre of lecturers would come into operation only if the subject and the number of posts in that subject are approved by the Director. Rule 17 of the Rules read as follows:
"17. Mode of notifying a vacancy for the purpose of recruitment.- (1) A managing committee of a private aided Pre-University college may notify a vacancy which arises in accordance with Rule 16 after obtaining prior permission for doing so from the Director. The notification shall be published on the notice board of the office of the management; Pre-University college concerned; the Deputy Director of Pre-University Education of the concerned district and further it shall be published in at least one leading newspaper having largest circulation in the district. The notification shall contain the description of the vacant post, caste
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NC: 2023:KHC:44738 WP No. 11667 of 2022 category reservation if any, the number and date of permission to advertise accorded by the Director, the minimum qualification specified, the last date fixed for submitting the application and marks and caste certificates to be produced in support of the academic qualification and caste category.
(2) After the last date for submitting the application is over, the management shall verify the particulars of all the candidates whether eligible or otherwise serially in the order of their academic merit, placing the candidate with the highest marks scored in the Post Graduation degree in the first place. If the academic merit of more than one candidate is same, the candidate older in age shall be placed above the other. If the highest total marks prescribed for the qualifying examinations of different candidates vary, then, the managing committee shall prepare the list based on the percentage or a common denominator.
(3) For each post, five applicants in the top of the list prepared under sub-rule (2) shall be called for interview, unless the total number of applicants is less than 5, in which case all the applicants shall be called for the interview. The management shall consult the Deputy Director of the concerned district to fix a date and time for the interview of the candidates and shall conduct the interview in the premises of the concerned Pre-University College.
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NC: 2023:KHC:44738 WP No. 11667 of 2022 (4) The managing committee shall constitute a recruitment committee comprising of four members; two representing the managing committee, the third being the Deputy Director of the concerned district, unless the Director nominates someone else by a specific order and the fourth being a subject expert to be nominated by the managing committee.
(5) The candidates called for interview shall demonstrate their ability to teach the subject and handle a class by actually delivering a lecture before a class of students of concerned college for at least twenty minutes in the presence of the recruitment committee.
(6) Each member of the recruitment committee may award a maximum of twenty-five marks and the total interview marks that can be awarded to any candidate shall not exceed twelve percent of the marks secured in the qualifying examination.
(7) The recruitment committee shall then prepare a list of selected candidates showing the marks scored in the Post Graduation examination and the marks awarded by the recruitment committee separately and also the total marks against the name of each candidate.
(8) The recruitment committee shall prepare, in the order of merit, a panel of three selected
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NC: 2023:KHC:44738 WP No. 11667 of 2022 candidates for appointment to the post on the basis of the aggregate percentage of marks in the qualifying examination and marks scored at the interview. The managing committee shall send the appointment order to the person in the order of merit. Prior approval of the Director shall be obtained before issuing the appointment order to the selected candidate."
74. As could be seen from the said Rule, there is a requirement of obtaining prior permission before notifying a vacancy which has arisen under Rule 16.
75. The other Rules are not relevant for the purposes of this case and are hence not considered.
76. Thus, the 2006 Rules also makes it mandatory for the PU college to have a prescribed number of staff who also possess the prescribed educational qualifications and if they do not satisfy the prescribed criteria, they stand the chance of being unable to run the institutions. SUMMARY ANALYSIS OF THE 1995, 1999 & 2006 RULES: On a reading of the 1995, 1999 and 2006 Rules, it is patently
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NC: 2023:KHC:44738 WP No. 11667 of 2022 clear that it is a statutory requirement for a private educational institution to have necessary infrastructure and also appoint the requisite number of staff possessing the prescribed education qualifications. These Rules prohibit the Management to appoint any person in a manner that it deems fit, and they are bound to abide by the abovementioned Rules. The consequence of flouting these Rules would be that the Management would not only be deprived of the aid, but it would also be exposed to the risk of withdrawal of the recognition that has been granted. In fact, the Rules relating to the schools makes it amply clear that the management would have to be bear the financial burden of paying the salary to the person employed contrary to the Rules. It follows, from the above statutory prescription of having the requisite number of staff, that if the State Government were to refuse or even delay the grant permission to fill up the vacant posts, it would essentially be forcing the institution to be in contravention of the Rules. In fact, it would not be wrong to state that the Department, by not according permission
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NC: 2023:KHC:44738 WP No. 11667 of 2022 to fill up the vacant posts, would be the sole reason for an educational institution to flout the Rules which require such an institution to possess the prescribed number of teaching staff.
77. Considering the above, it would also be necessary to take note of Chapter IX of the Education Act, which deals with Grants-in-Aid in this regard.
78. Section 49 of the said Chapter obligates the State to set apart monies (annually) for being given as Grant-in-aid to local authority institutions and private recognised education institutions. This is, however, made subject to the limits of the economic capacity of the State and require the institutions receiving the grant to abide by the reservation policies which may be applied by the State.
79. Section 50 of the said Chapter provides for the authorities which may sanction the grant, and Section 51 obligates the institution to intimate the receipt of any money received by the institution as donation, and also
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NC: 2023:KHC:44738 WP No. 11667 of 2022 mandates the deposit of the said amount in a specified bank account and also expend it only for the improvement of the institution.
80. Section 52 of the Education Act requires the Governing Council of an aided institution to furnish a declaration that the conditions imposed while granting recognition and sanctioning the grant are fully observed, and such institution would also be subject to inspection. It also provides for the State to either sanction or refuse sanction of grant and this decision of the State would be final.
81. Section 53 of the Education Act enables the State Government to either withhold, reduce or withdraw the grant, having regard to the funds at the disposal of the Government or the conduct, efficiency and financial conditions of the institution. This power can, however, be exercised only after affording an opportunity to the Governing Council. Sub-section (2) specifies the situations
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NC: 2023:KHC:44738 WP No. 11667 of 2022 in which the State can withhold, reduce or withdraw any grant.
82. Section 54 mandates that the monies received or held by the institution should only be utilised for the purposes for which they were intended and should also be accounted for.
SUMMARY ANALYSIS: It is, thus, clear from the above provisions that the State is given a rather large degree of control over the institutions which receive grants-in-aid from it and this is obviously because the State is entitled to ensure that its funds are not misapplied or mis- utilised.It can, therefore, be concluded that an educational institution is required, by law, to possess a prescribed number of staff who possess the prescribed qualification and if they were to default on this front, they would stand to lose their very recognition. It can also be concluded that the State, by reason of admitting an educational institution to grant, statutorily possesses the right to exercise considerable, if not overwhelming, degree of control.
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NC: 2023:KHC:44738 WP No. 11667 of 2022 V. APPLICATION OF THE LAW TO THE PRESENT FACTS:
83. It is the admitted case of both, the petitioner-Society as well as the respondent-State that the institutions belonging to the petitioner-Society have been admitted to grant-in-aid and that their right to receive the grant has not been rescinded under any statutory rule. Since it is admitted that the institutions of the petitioner-Society had been admitted to grant-in-aid, it follows that the monies that are to be given as grants to the petitioner-institutions should be set apart, as provided under Section 49 of the Education Act.
84. Section 49 of the Education Act clearly states that the State Government is to set apart monies annually for being given as grant-in-aid. Since the members of the petitioner-Society have been admitted to grant-in-aid prior to the Education Act coming into force, by virtue of Section 146 (3), they would be statutorily entitled to continue to receive the grant-in-aid.
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85. It also follows from this, that the State Government was already setting aside monies for fulfilling its obligation to provide grant-in-aid and by virtue of Section 49 of the Education Act. In fact, the earlier administrative obligation stood converted into a statutorily obligation upon the Education Act coming into force. It will have to be borne in mind that since the State was already setting apart monies for providing grant-in-aid to the institutions admitted to grant, it was obviously aware of its financial obligation even prior to the enactment of the Education Act, and the State, by virtue of Section 146 (3) of the Education Act was statutorily obliged to continue the grants.
86. The argument that the term "within the limits of its economic capacity" used in Section 49 confers a power on the State to refuse permission to recruit teachers, cannot be accepted. It is to be stated here that the term used in Section 49 basically denotes that it is open for the State to decide on the quantum of money to be set apart annually for being given as grant-in-aid. It cannot be in dispute that
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NC: 2023:KHC:44738 WP No. 11667 of 2022 in respect of the institutions that it had admitted to grant- in-aid, the State was already setting apart the required sum of monies and there was no question of making fresh allocation of funds in respect of the members of the petitioner-Society.
87. It is, no doubt, true that the State may take a policy decision to reduce the money to be set apart for being given as grant-in-aid, but then, this decision would have to be taken universally in respect of all institutions admitted to grant-in-aid and cannot be applied to only those institutions in which vacancies have arisen. The general power to reduce the quantum of money to be given to all the institutions as a whole, cannot be used to prevent recruitment, selectively in institutions wherein vacancies have arisen.
88. It is to be noticed here that an aided institution, on the basis of the grant-in-aid, would have admitted students and would also be assured that the teachers whom it has employed or will employ for that purpose,
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NC: 2023:KHC:44738 WP No. 11667 of 2022 would be paid salaries as per the terms of the grant. It is also to be kept in mind that the right of the aided institutions to collect fees is also determined by the State and it cannot obviously make arrangements for the payment of their salaries and, over and above all this, the interests of the students would be fundamentally affected if qualified teachers are not recruited and paid their prescribed salaries.
89. As already stated above, it is the admitted case of even the Government that it has been setting apart monies annually, as required under Section 49 of the Education Act and therefore, in respect of those institutions which had been admitted to grant-in-aid, either before or after the commencement of the Education Act, the State is statutorily bound to ensure that the institutions which had been admitted to grant-in-aid are provided necessary grants to run the institutions in the manner prescribed under the Education Act.
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90. If the State Government was to reduce the salary grants and refuse permission for filling up of vacant posts, the consequence would be that the schools would be running with inadequate staff, thereby contravening the provisions of the Education Act and the Rules. As a result of the vacancies to the post of teachers, there would obviously be no teachers to educate the children enrolled, thereby, defeating the very purpose and objective of the Education Act.
91. The Government would have to, obviously, keep in mind the commitment that it has given to all the institutions to which it has agreed for providing grant-in- aid while setting apart the monies annually. As a consequence, it is clear that the State Government cannot withhold the permission to fill up the vacancies on the ground that it is suffering from economic constraints.
92. This matter may also be viewed from another angle. The Education Act requires that the school be equipped with necessary faculties to impart education to the
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NC: 2023:KHC:44738 WP No. 11667 of 2022 children in respect of the subjects prescribed under the syllabus. As a consequence, if there are six subjects, the school should necessarily have six teachers for the respective subjects, in order to fulfil the objective of the Education Act in ensuring that children attain the development of basic skills, life skills and work experience as enumerated in Section 7(4) of the Education Act. If the State were to withhold permission to fill up the vacancies, the very objective of the Education Act would be defeated and the overarching objective of ensuring that the children attain the requirement of education, would be rendered nugatory. It is, therefore, imperative that the State ensures that the school to be run in the manner prescribed under the Education Act and Rules, and all the requirements of the Rules are adhered to. It also becomes absolutely essential that the State, which has enacted the law for this purpose, cannot defeat the very purpose of this Act by refusing permission to the institutions to fill up such vacancies.
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93. The State, by withholding permission, is aiding the institutions in flouting the very provisions of the Education Act and Rules that it has framed for running the schools. In fact, this would give the educational institutions to protect themselves from de-recognition by citing the withholding of permission to be granted by the State to fill up these vacancies.
94. In this view of the matter, the State Government cannot utilise the requirement of a rule which necessitates the seeking of approval for filling up the vacant posts, to deprive the educational institutions of their right and obligation to appoint teachers to fill up vacancies that would enable them to be compliant of the Rules and enable them to fulfil the ultimate objective of providing a meaningful education to the children of the State.
95. The provisions in the Rules relating to recruitment and the need to obtain permission to fill up the posts, keeping in mind the objective of the Education Act and the very language of the Rule, is only a requirement to inform
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NC: 2023:KHC:44738 WP No. 11667 of 2022 the authorities and such permission, which is formal in nature, can neither be denied nor withheld, especially when the Rule was never designed to ensure that the interests of the students are affected.
96. Thus, whenever a vacancy has arisen, the requirement of obtaining permission is basically a requirement to inform the competent authority that the salary grant in respect of those persons will have to be continued to the person(s) that the institution would appoint in accordance with the Rules and that the salary grant should not be stopped because of a vacancy. This information is to be given by the school for the purpose of ensuring that the teachers are paid continuously and this procedure to be adopted by the aided institutions cannot be utilized by the State to contend that it has the power to either grant or refuse or withhold permission for filling up of vacancies.
97. As already stated above, in respect of primary and secondary schools, Clause 2 of Annexure I clearly states
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NC: 2023:KHC:44738 WP No. 11667 of 2022 that "Permission shall be granted to fill the vacant posts as per the reservation roster points determined by the competent authority." Thus, the only power available with the competent authority in the matter of filling up the vacant posts is to determine the reservation roster points and apart from this, the competent authority does not have to the power to either withhold or deny permission to fill up the vacant posts.
98. In respect of PU Colleges, Rule 15 of the 2006 Rules, by using the expression "shall be competent to appoint the teaching and non-teaching staff" and "Every management Committee shall maintain an employment register pertaining to the teaching and non-teaching staff in which every appointment made shall be registered", emphasises the fact that the Management is obligated to appoint the requisite staff the moment a vacancy has arisen.
99. As already stated above, Section 146 of the Education Act has basically given the Grant-in-aid Code a statutory entitlement, even though the Grant-in-aid Code
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NC: 2023:KHC:44738 WP No. 11667 of 2022 had been enacted prior to the coming into force of the Education Act, as a set of administrative rules, and consequently, the recipients of the grant have secured a legal right to claim that they be provided the grant as had been committed to, by the State Government.
100. The State Government, while admitting an institution to grant-in-aid, categorically admits the posts which are necessary for running the institution effectively and in the manner prescribed under the Education Act. Once the State Government admits the requisite number of posts to grant, it cannot, thereafter, withhold the grant in respect of some of the posts which have fallen vacant, by denying permission to fill them up, and continue to pay the grant in respect of other posts. It is, no doubt, true that in respect of vacant posts, the State Government would not be liable to pay the salary grant till those posts remain vacant. However, the moment such posts are filled up in accordance with the Rules, the obligation of the State to continue to pay the salary grant automatically revives.
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101. An argument was sought to be advanced that the private educational institutions have no right to be admitted to grant and that they have no enforceable legal right in this regard. It is, no doubt, true that this Court, in the case of Ramanjaneyaswami Vidhya Samsthe (supra), has held that private educational institutions have no legally enforceable right to be admitted to Grant-in-aid. However, it is to be stated here that prior to the enactment of the Karnataka Education Act, the Grant-in- aid Code, which was formulated in the year 1969 as a set of executive instructions, basically prescribed the mode for private educational institutions to seek grant-in-aid. It is in that context that this Court held the provisions of the Grant-in-aid Code as not having the force of a statute and was, thus, not statutorily enforceable.
102. However, on the enactment of the Karnataka Education Act, by virtue of Section 146(3), all Rules, Orders, Notifications, Grant-in-aid Code, etc., which were in force before the commencement of the Education Act
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NC: 2023:KHC:44738 WP No. 11667 of 2022 and which were in relation to the matters enacted in the Education Act, are continued to be in force and are made effective, as if they were made under the corresponding provisions of the Karnataka Education Act. This is subject to the condition that they are not superseded by anything done or any action taken, or any notification issued under the Karnataka Education Act. Thus, by virtue of Section 146 (3), the Grant-in-aid Code which was a set of administrative rules, existing as on the date of the Education Act coming into force, would not only continue to be in force, but it would gain statutory character and entitle the institutions receiving the grant to demand their continuance and thereby, become enforceable.
103. Admittedly, there is no Grant-in-aid Code enacted or formulated under the Education Act which denies or nullifies the grant-in-aid given to the institutions of the petitioner - Society. Since it is the common case of both the parties that they were recipients of grant-in-aid as per the Grant-in-aid Code which was in existence prior to the
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NC: 2023:KHC:44738 WP No. 11667 of 2022 coming into force of the Education Act and since there is no statutory bar or a rule or a new Grant-in-aid Code framed, which denies them the earlier grant-in-aid that they were securing prior to the coming into force of the Education Act, it is rather clear that the institutions of the petitioner - Society have acquired a statutory right under Section 146(3) of the Education Act to receive the grant- in-aid that they were getting prior to coming into force of the Education Act.
104. In light of this discussion, the argument that the petitioner-Society does not possess a legally enforceable right to claim grant-in-aid, cannot be accepted and the same is rejected.
105. As already stated above, the State does not possess the power under the substantive provisions of the Education Act to refuse the filling up of vacancies, and that too, in aided institutions. The State, under the substantive provisions of the Education Act, has not been conferred with the power to grant permission to fill up the vacancies.
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NC: 2023:KHC:44738 WP No. 11667 of 2022 In the absence of a substantive power granted under the provisions of the Education Act, the State cannot fall back upon a Rule relating to the grant of permission to fill up the vacant posts to refuse or withhold permission to fill up the vacancies.
106. It is to be noted here that the expenditure incurred by the State for giving grant-in-aid to private educational institutions was known to the State Government even before the Education Act was enacted and this expenditure has always been a recurring expenditure, for which, a budgetary provision has been regularly made and therefore, the State cannot claim that it is under economic constraints and cannot discharge its obligation of giving grant-in-aid to the private educational institutions.
107. It may be pertinent to state here that Article 21A of the Constitution of India creates an obligation on the State to provide free and compulsory education to all children between ages 6 and 14 years in such manner as the State, by law, may determine. There is, thus, not only a
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NC: 2023:KHC:44738 WP No. 11667 of 2022 statutory obligation, but also a constitutional obligation on the State to provide free and compulsory education to all the children in the abovementioned age group.
108. In this regard, the provisions of the RTE Act enacted by the Parliament would also have to be read in consonance with Article 21A. A conjoint reading of the provisions of this Act along with Article 21A clearly establishes that every child has the right to be educated.
109. In fact, Section 6 of the RTE Act creates an obligation on the State to establish schools within its area or within the neighbourhood of the local authority (within three years from the commencement of the RTE Act) to provide free education to children. Section 7 of the said Act creates an obligation on both the State Government and the Central Government to have concurrent responsibility to provide funds for carrying out the provisions of the RTE Act, which is providing free and compulsory education to children between the ages of 6 and 14.
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110. Sub-section (3) of Section 7 of the RTE Act also makes it clear that the Central Government should provide the State Government as grant-in-aid revenues such percentage of expenditure, as it may determine from time to time. These provisions, read in the context of Article 21A of the Constitution, also indicate that a legal framework has been designed by the Parliament and there is an obligation of providing education to children, which is regarded as a compelling necessity and both the Centre and the State are required to share the financial burden as well as other responsibilities.
111. Apart from forcing the educational institutions to act in contravention of the Rules, more importantly, by not granting permission to fill up the vacant posts, the State, by adopting this course of action, would be fundamentally ensuring that the basic objective of the RTE Act for ensuring that the children in the State are provided with good education, is defeated. In a sense, the State, which has statutorily assumed the role of a guardian for
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NC: 2023:KHC:44738 WP No. 11667 of 2022 educational needs of the children by enacting the Education Act and the RTE Act, would be acting in a diametrically opposite manner and would be causing immense and irreparable harm to the education of the children. In other words, the creator of the educational system would now also be the destroyer of the educational system.
SUMMARY ANALYSIS: In light of this statutory obligation, both under the Parliamentary law and under the State law, neither the Central Government, nor the State Government can contend that it does not have the necessary funds to discharge their responsibility. It must be borne in mind that to discharge the Constitutional obligation and also to achieve the objectives of the Karnataka Education Act, a holistic approach would be necessary and an approach which would stultify or defeat the constitutional objective or the objective of State law should not be adopted.
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NC: 2023:KHC:44738 WP No. 11667 of 2022 CONCLUSION:
112. In terms of Clause 2 of Annexure-I of the 1999 Rules, which mandates that "Permission shall be granted to fill the vacant posts as per the provisions of the reservation roster points determined by the competent authority", the competent authority is bound to accord permission as soon as a request is made by the aided institution to fill up vacant posts and the competent authority can neither delay, withhold or refuse permission to fill up the vacant posts.
113. Similarly, under Rule 17 of the 2006 Rules, which mandates that "A Managing Committee of a private aided Pre-University College may notify a vacancy which arises in accordance with Rule 16 after obtaining prior permission for doing so from the Deputy Director" would not enable the Deputy Director to withhold or deny permission, and the Deputy Director would be obliged to accord permission to notify a vacancy for being filled up as and when such permission is sought.
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NC: 2023:KHC:44738 WP No. 11667 of 2022
114. This would mean that the educational institutions admitted to grant-in-aid, in the event of an arising vacancy, are required to only inform the competent authority immediately that they intend to fill up such vacant post(s) and the competent authority shall grant permission to fill up such post(s). The only exercise to be undertaken by the competent authority in this regard is to satisfy itself that the reservation roster point is being followed and if it is not followed, it can direct that the vacancy posts be filled according to the reservation roster points.
115. It is hereby made clear that the Clause relating to seeking permission from the competent authority for filling up of posts is essentially meant to only enable the competent authority to ensure that the reservation roster points are followed and the competent authority has no power to delay, withhold or refuse permission to fill up the vacant posts.
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NC: 2023:KHC:44738 WP No. 11667 of 2022
116. In view of the observations above, the writ petition is allowed and it is hereby held that Clause 2 of Annexure-I of 1999 Rules and Rule 17 of the 2006 Rules, which requires the obtaining of prior permission to fill up the vacancies, is read down to mean that the educational institutions are required to only inform the competent authority that they are filling up the vacancies which have arisen due to retirement, resignation, promotion or death, in respect of the posts which have been admitted to grant- in-aid and the competent authority is, thereafter, bound to grant permission to fill up the vacant posts and the only power that the competent authority possesses in this regard is to object to the filling up of the posts if the reservation roster points are not followed while filling up such vacant posts. If the vacant posts are being filled up in accordance with the reservation roster points, the competent authority is bound to accord permission without any delay.
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NC: 2023:KHC:44738 WP No. 11667 of 2022
117. The State Government is hereby directed to ensure that upon the posts are being filled in accordance with the procedure prescribed under the Education Act and the Rules made thereunder, and as clarified above, the prescribed salary to the persons, who are appointed, is to be paid without any delay.
118. As a result, the private educational institutions herein are at liberty to take steps to fill up the vacancies arising out of resignation, retirement, promotion or death, in the manner prescribed under the aforementioned Act, and the Rules, and after satisfying the competent authority that they have followed the reservation roster points as clarified above, as expeditiously as possible.
Sd/-
JUDGE HNM/PKS/P