Karnataka High Court
Jnana Sarovar Educational Trust vs The State Of Karnataka on 19 September, 2019
Author: P.B.Bajanthri
Bench: P.B. Bajanthri
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
WRIT PETITION NO.21192 OF 2017 (EDN-RES)
BETWEEN:
JNANA SAROVAR EDUCATIONAL TRUST
PARASHURAMA NAGAR
NHUGATHAHALLI
VAJAMANGALA POST
BANNUR ROAD
MYSURU-570 011
REP. BY PRESIDENT
... PETITIONER
(BY SRI.M.P.SRIKANTH, ADV. FOR
SRI.M.S.PARTHASARATHI, ADV.)
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY TO THE GOVERNMENT
PRIMARY & SECONDARY EDUCATION
M.S.BUILDING, AMBEDKAR VEEDHI
BENGALURU-560 001
2. THE COMMISSIONER OF PUBLIC
INSTRUCTIONS
PRIMARY & SECONDARY EDUCATION
NEW PUBLIC OFFICES
NRUPATHUNGA ROAD, K.R.CIRCLE
BANGALORE-560 001
3. THE DIRECTOR OF PUBLIC INSTRUCTIONS
PRIMARY EDUCATION
NEW PUBLIC OFFICES
NRUPATHUNGA ROAD, K.R.CIRCLE
BANGALORE-560 001
4. DEPUTY DIRECTOR OF PUBLIC
2
INSTRUCTIONS
MYSURU DISTRICT
MYSURU-570 001
5. BLOCK EDUCATION OFFICER
TALUK RANGE
MYSURU-570 001
6. CHIEF EXECUTIVE OFFICER
ZILLA PANCHAYATH
MYSURU-570 001
7. SRI D.BALAKRISHNA KRISHNAPPA
S/O. NOT KNOW TO PETITIONER
MAJOR
RESIDING AT NO.355/B, 15TH MAIN
JANATHANAGARA, T K LAYOUT
MYSORE-570 009
8. SRI WILIAM YESUDAS
S/O. NOT KNOWN TO PETITIONER
MAJOR
RESIDING AT NO.355/B, 15TH MAIN
JANATHANAGARA, T.K.LAYOUT
MYSORE-570 009
... RESPONDENTS
(BY SMT.PRAMODINI KISHAN, AGA FOR R-1 TO R5
SRI.B.J.SOMAYAJI, ADV. FOR R6
SRI.K.G.KUMARA, ADV. FOR R-7
R8 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED: 26.04.2017 PASSED BY THE R-4 VIDE
ANNEXURE-AD AND ORDER DATED: 14.02.2017 AT ANNEXURE-
Y AND ETC.
THIS PETITION IS COMING ON FOR FINAL DISPOSAL, THIS
DAY, THE COURT MADE THE FOLLOWING:-
ORDER
3 In the instant petition, petitioner has questioned the validity of the order dated 26.04.2017 passed by the Deputy Direction of Public Instructions - respondent No.4 (Annexure - AD) by which petitioner - Educational Trust has been penalized sum of Rs.1,60,50,000/- for violation of provisions of Right of Children to Free and Compulsory Education Act, 2009 (for short Act 2009) read with The Karnataka Right of Children to Free and Compulsory Education Rules, 2012 (for short Rules 2012).
2. Petitioner is registered and public charitable trust running educational institution since 2002. After introduction of Act 2009, petitioner-trust is required to comply various provisions of Act 2009 read with Rules 2012. Certain mandatory provisions are stated to have not carried out. Thus, Deputy Director of Public Instructions and other officials of the Education Department proceeded to initiate action against the 4 petitioner which was concluded in penalizing the petitioner by imposing fine of Rs.1,60,50,000/- while invoking sub-section 5 of Section 18 of Act 2009 read with Rule 11 of Rules 2012.
3. Learned counsel for the petitioner vehemently contended that Rules, 2012 has no application to the petitioner. Further, it was contended that Deputy Director of Public Instructions, Mysuru has no jurisdiction to invoke Sub-section (5) of Section 18 read with Rule 11 of Rules 2012 to penalize the petitioner- trust. In this regard, learned counsel for the petitioner pointed Rule 23 of Rules 2012 that if any proceedings were required to be drawn under Sections 13(2), 18(5) and 19(5) of Act 2009, competent authority is the Chief Executive Officer of the Zilla Panchayat of the concerned district whereas in the present case, Deputy Director has exercised the power of Chief Executive Officer. Hence, Deputy Director of Public Instructions is not empowered 5 and he is not the competent authority and impugned order is without authority of law.
4. Per contra, learned counsel for the respondent submitted that Deputy Director of Public Instructions is the competent authority to issue recognition to the educational institution. Therefore, he is empowered to take appropriate action, if there is any violation of any provision of Act 2009 read with Rules 2012. Therefore, Rule 23 of Rules 2012 has no application. Petitioner - institution is not one of the recognized institution as there is no valid recognition by the Government or Education Department. Further, petitioner has violated provisions of Act 2009 and Rules 2012, hence, no interference is called for in support of Annexure - AD dated 26.04.2017.
5. Heard learned counsel for the parties.
6. Question for consideration in the present petition is, "Whether Deputy Director of Public 6 Instruction, is competent to invoke Sub-section 5 of Section 18 of Act 2009 read with Rule 11 of Rules 2012 to penalize the petitioner for violation of provisions of Act 2009 read with Rules 2012 or not?"
7. It is relevant to take note of Rule 23 of Rules 2012 which reads as under:
"23: Prescribed Authorities and Procedure for taking action for Violation of the provisions of the Act.-Section 35.-
(1) The prescribed authority for previous sanctions for procedure under Sections 13(2), 18(5) and 19(5) of the Act is the Chief Executive Officer of the Zilla Panchayat of the district. It is the responsibility of the BEO of the block and DDPI of the district to report such cases to the CEO of the Zilla Panchayat of the district, who after satisfying himself may accord such sanction for prosecution under the said section.
(2) At the first level, the BEO on noticing violation of the Act or on receipt of a complaint about any violation of the Act by any person, shall issue a notice to the concerned school, management, School Development and Monitoring Committee and seek an explanation within fifteen days from the date of notice. If the reply is not 7 satisfactory or fails to respond to the notice, he shall bring the violation to the notice of the DDPI and the CEO of the Zilla Panchayat.
(3) The DDPI shall cause a visit to the institution and enquire into the alleged violation and make a report to the CEO of the Zilla Panchayat, who shall give reasonable opportunity for such person who has violated and shall pass orders as deem fit. CEO of Zilla Panchayat shall pass such orders within one month under these rules.
(4) The CEO of Zilla Panchayat shall be vested with the powers to take action for any violation of Sections 14, 15, 16, 17, 25, 28 and 30 of the Act and also any violation under these rules. Detailed guidelines for taking action for such violation shall be issued by the Government.
8. Reading of Rule 23 of Rules 2012, it is crystal clear that BEO of the block and Deputy Director of Public Instructions have to report such case to the Chief Executive Officer of the Zilla Panchayat of the district. In the event of satisfaction of the Chief Executive Officer, he may accord such sanction for prosecution under Sections 18(5) and 19(5) of Act 2009. In the present 8 case, Deputy Director of Public Instructions while penalizing the petitioner on 26.04.2017 has invoked provisions of sub-sections (1) and (5) of Section 18 read with Rule 11 of Rules 2012. The respondents could out point out any provision of law that Deputy Director of Public Instruction is empowered to invoke sub-section (5) of Section 18 of Act 2009. Thus, it is evident that the order of the Deputy Director of Public Instruction dated 26.04.2017 penalizing the petitioner invoking sub- sections (1) and (5) of Section 18 of the Act 2009 read with Rule11 of Rules 2012 is without authority of law.
9. Supreme Court time and again held that if a statue empowers a particular authority to discharge a particular duty, such authority alone is required to exercise such functions. In this regard, Supreme Court in the following cases has held as under:
(i) In the case of DHANANJAYA REDDY vs STATE OF KARNATAKA reported in (2001)4 SCC 9, in para no.23 held as under:-9
"23. It is a settled principle of law that where a power is given to do a certain thing in a certain manner, the thing must be done in that way or not at all. This Court in State of U.P. v. Singhara Singh, AIR 1964 SC 358 (AIR p. 361, para 8) held:-
"A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down".
(ii) Supreme Court in the case of Director General, ESI and another vs. T. Abdul Razak reported in (1996) 4 SCC 708 in para no. 14 held as under:-
"14. The law is well settled that in accordance with the maxim delegatus non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub-delegation of the power is authorised by express words or necessary implication."
(iii) Supreme Court in the case of Sidhartha Sarawgi Vs. Board of Trustees for the Port of Kolkata 10 and others reported in (2014) 16 SCC 248, in para nos 4, 9 and 10 held as under:-
4. There is a subtle distinction between delegation of legislative powers and delegation of non-legislative/administrative powers. As far as delegation of power to legislate is concerned, the law is well settled:
the said power cannot be sub-delegated. The legislature cannot delegate essential legislative functions which consist in the determination or choosing of the legislative policy and formally enacting that policy into a binding rule of conduct [Harishankar Bagla v. State of M.P., AIR 1954 SC 465 at p. 468, para 9 : 1954 Cri LJ 1322 : (1955) 1 SCR 380 at p. 388; Agricultural Market Committee v. Shalimar Chemical Works Ltd., (1997) 5 SCC 516 at p. 524, para 24] .
Subordinate legislation which is generally in the realm of rules and regulations dealing with the procedure on implementation of plenary legislation is generally a task entrusted to a specified authority. Since the legislature need not spend its time for working out the details on implementation of the law, it has thought it fit to entrust the said task to an agency. That agency cannot entrust such task to its subordinates; it would be a breach of the confidence reposed on the delegate.
9. The Constitution confers power and imposes duty on the legislature to make laws and the said functions cannot be delegated by the legislature to the executive. The legislature is constitutionally required to keep in its own hands the essential legislative functions which consist of the determination 11 of legislative policy and its formulation as a binding rule of conduct. After the performance of the essential legislative function by the legislature and laying the guiding policy, the legislature may delegate to the executive or administrative authority, any ancillary or subordinate powers that are necessary for giving effect to the policy and purposes of the enactment. In construing the scope and extent of delegated power, the difference between the essential and non- essential functions of the delegate should also be borne in mind. While there cannot be sub-delegation of any essential functions, in order to achieve the intended object of the delegation, the non-essential functions can be sub-delegated to be performed under the authority and supervision of the delegate.
10. Sometimes, in the plenary legislation itself, the lawmakers may provide for such sub-delegation. That is what we see under Sections 21 and 34 of the Major Port Trusts Act, 1963, which we shall be discussing in more detail at a later part of this judgment.
(iv) Supreme Court in the case of Captain Sube Singh and Others vs. Lt. Governor of Delhi and others, reported in (2004) 6 SCC, 440 in para no. 29 held as under:-
29. In Anjum M.H.Ghaswala [CIT v. Anjum M.H. Ghaswala, (2002) 1 SCC 633] a Constitution Bench of this Court reaffirmed the general rule that when a statute vests certain power in an authority to be exercised 12 in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. (See also in this connection Dhanajaya Reddy v. State of Karnataka [(2001) 4 SCC 9 :
2001 SCC (Cri) 652] .) The statute in question requires the authority to act in accordance with the rules for variation of the conditions attached to the permit. In our view, it is not permissible to the State Government to purport to alter these conditions by issuing a notification under Section 67(1)(d) read with sub-clause (i) thereof.
Accordingly, the impugned order bearing No.A5/209018/R.T.E.Dhooru-216/2016-17 dated 26.04.2017 is set-aside. The writ petition stands allowed reserving liberty to the respondents to forward the relevant papers to the Chief Executive Officer to proceed in accordance with Rule 23 of Rules 2012. If the Chief Executive Officer is of the view that prima facie action needs to be taken against the petitioner, in such an event, Chief Executive Officer of the concerned Zilla Panchayat is hereby directed to provide ample opportunity to the petitioner by means of issuing notice so also oral hearing, if necessary. The above exercise shall be completed within a period of four months from 13 today. All contentions are left open to be urged before the Chief Executive Officer, Zilla Panchayat.
Sd/-
JUDGE Brn