N. Y. HANUMANTHAPPA, J. ( 1 ) SRI m. Raghavendra achar, learned counsel for the petitioner, Sri P. Vishwanath shetty, leamed counsel for respondent-3, Sri K. Raghavendra rao, learned counsel for respondent-4 and Smt. D. Bhoopathy, learned hcgp for respondents-1 and 2 took notices on my direction. ( 2 ) HEARD on merits as requested by all the advocates though it is listed in theorders list. ( 3 ) THE relief sought in this writ petition is to quash Annexure-E which is an order passed by the government of Karnataka on 2-4-1992 approving the appointment of 4th respondentas principal of a college known as gowtham pre-university college, sakalespur, hassan district. According to the petitioners, the full facts which are relevant to decide the correctness or otherwise of Annexure-A are as follows: third respondent is a private educational institution. It is admitted to grant-in-aid code and is running a pre-university college. As per annexure-a, on 3-12-1986 these two petitioners and three other persons were appointed as lecturers to teach in different faculties. The date of appointment of the first petitioner was 24-9-1985 and the date of appointment of the second petitioner was 5-8-1985. Post of the principal of the college was vacant. However, the said post of the principal was managed by the society by way of making in-charge arrangement placing the second petitioner as principal of the said college. Since the institution has been admitted to grant-in-aid code, the appointment to the post of principal of the college governed by the government order dated 11-5-1982 at Annexure-C l. Relevant portion reads as follows:"in order to have common criteria and uniformity in the mode of recruitment of lecturers, the commissioner for public instruction has made the following proposals to govt. 1. The post of principals in aided junior college may be filled in by way of promotion as per the seniority of the asst. Masters. 2. The posts of lecturers in aided junior colleges may be filled in the ratio of 50% by promotion and 50% by direct recruitment in mity with the practice prevailing in the govt. Junior colleges. 3. The above Provisions may be made applicable from the starting of the junior colleges. Order No. Ed 173: slb 80, Bangalore, dated the 11th may, 1982 1. All tenure appointments of asst. Junior colleges. 3. The above Provisions may be made applicable from the starting of the junior colleges. Order No. Ed 173: slb 80, Bangalore, dated the 11th may, 1982 1. All tenure appointments of asst. Masters as lecturers in aided junior colleges approved by the joint director of public instruction, bel- gaum are regularised from the date of their appointment. The names of lecturers approved is furnished in the Annexure appended to this order. 2. The posts of principals in aided junior colleges shall be filled by way of promotion from the cadre of lecturers on the basis of seniority-cum-merit. 3. The posts of lecturers in aided junior college shall be filled in the ratio of 50% by promotion and 50% by direct recruitment as per with the govt. Junior colleges. "the said order is issued in the name of governor of karnataka. As per the said Order, appointment to the post of principal in an aided college may be filled by way of promotion as per the seniority of the assistant lecturers. Further, it is also clarified that the post of principals of the aided junior colleges shall be filled by way of promotion from the cadre of lecturers on the basis of seniority-cum-merit. Inspite of the above said Order, the management of the college invited applications to fill up the post of principal fixing the last date for receipt of applications as 16-6-1991 and also fixing the qualification and eligibility. The committee society which received a good number of applications, held an interview and then passed a resolution appointing the 4th respondent as principal of the college, for the first time, who was earlier to this Order, working as a lecturer in different colleges having acquired good experience, etc. The said selection was sent to the department for approval. But the department, at Annexure-C turned down the request of the management for approval on the ground that the said selection is not in accordance with seniority-cum-merit basis and further directed that the selection shall be on the basis of seniority-cum-roster basis and also to give promotion to the person who has taught for more than ( 4 ) 4. Strangely enough on 2-4-1992 one more order came to be passed by the government at Annexure-E approving the selection and appointment of the 4th respondent as the principal of the college which as stated earlier, is under challenge now. Strangely enough on 2-4-1992 one more order came to be passed by the government at Annexure-E approving the selection and appointment of the 4th respondent as the principal of the college which as stated earlier, is under challenge now. ( 5 ) BEFORE issuing of anncxure-a a few developments had taken place. Namely,the first petitioner herein had challenged the selection of 4th respondent before educational tribunal in appeal No. 81 of 1992 on the file of the educational appellate tribunal, hassan. In the beginning an order of stay of selection and appointment was granted. Subsequently the same was continued and it was finally heard and an order came to be passed dismissing the appeal holding the same as premature with further observation that if the applicant therein is aggrieved he may approach the proper forum. The relevant portion of the judgment of the educational appellate tribunal is at paragraph-8 and it reads as follows:"8. It is no doubt pointed out by the learned counsel for the appellant that the impugned order of appointment dated 18-6-1991, is issued by the 1st respondent, having mentioned the date of interview held for the said post as 18-4-1991, whereas in the paper advertisement published in 'udayavani' dated 6-6-1991, the date of interview is shown as 16-6-1991. So according to him, this appointment of the 2nd respondent was made 2 months earlier to the date on which the applicants were asked to appear for interview and for that reason, the appointment of the 2nd respondent is liable to be set aside. Though this contention is to be accepted on merits, the appellant has no locus standi to challenge the said appointment in the present appeal before this forum, and since his services are not affected by the impugned Order, in any manner, and since he has no right to seek for a direction to appoint him for the said post when it is a selection post and when he is entitled only to seek for considering his case also for the said post. Since the order of appointment of the 2nd respondent has not been approved by the director of pre-university board, the appellant, would be entitled to apply for the said post when a fresh advertisement is issued by the 1st respondent, calling for applications to fill up the said post. Since the order of appointment of the 2nd respondent has not been approved by the director of pre-university board, the appellant, would be entitled to apply for the said post when a fresh advertisement is issued by the 1st respondent, calling for applications to fill up the said post. Since the appointment order has also not been communicated to the appellant and since he did not issue any notice by registered post calling upon the 1st respondent to communicate the said appointment order to him before filing this appeal, in my view, the appeal is also not maintainable. Thus, in any view of the matter, the present appeal is not maintainable. If it is necessary for the appellant to challenge the appointment order on the ground that inspite of the fact that he has got all the required qualifications for the post, his case has not been considered, his remedy is only to approach the high court in a writ proceeding and I find that the appellant has no remedy before this forum, in the above circumstances. I, therefore, answer point no. 1 in the negative. Point No. 2 does not arise for consideration. 9. In the result, the appeal fails and is dismissed. In the circumstances, I direct the parties to bear their respective costs. " ( 6 ) IT appears, even the management-3rd respondent had also challenged Annexure-D whereby the director of collegiate education while holding that selection of 4th respondent as the principal of college as bad had directed the 2nd petitioner to continue as principal of the college till 31-2-1992 by filing writ petition before this court in W. P. No. 3321 of 1992. ( 7 ) SRI m. r. achar, learned Advocate for the petitioners has challenged the orderat Annexure-E on the following grounds: (1) Annexure-E is not only arbitrary but also a clear case of flouting earlier orders of the government at annexures-c and cl. (2) when the government order says that the post of the principal shall be filled by way of promotion, the present selection of 4th respondent ignoring the said condition is quite illegal. (3) when the college has been admitted to grant-in-aid code, the management is bound by the conditions imposed by the government to make selection. (2) when the government order says that the post of the principal shall be filled by way of promotion, the present selection of 4th respondent ignoring the said condition is quite illegal. (3) when the college has been admitted to grant-in-aid code, the management is bound by the conditions imposed by the government to make selection. (4) in the instant case though petitioners were qualified and eligible for appointment, the management ignoring the same appointed 4th respondent a stranger as principal of the college according to him is quite mala fide on the part of the management concerned. (5) the order passed by the educational appellate tribunal is also quite incorrect and same is under challenge before this court in c. r. p. (f. r.) No. 2447 of 1992. (6) he also submits that order at Annexure-E is the resultant of misusing the power conferred on the authority concerned and also not applying its mind to its earlier orders, and orders passed by the director of collegiate education at annexures c and d. For these reasons he submits that the relief sought for be granted. ( 8 ) WHEREAS Sri P. Vishwanatha shetty, learned counsel for respondent-3 who hasalso filed a detailed statement of objections submitted that (1) the petitions are not maintainable as the petitioners have challenged selection of 4th respondent whose selection was made pursuant to an interview that was held preceded by an advertisement calling applications to fill up the post of the principal to which the petitioners were not applicants; (2) the right to appoint the staff to the institution vests in the management whereas its approval vests with the government; (3) merely because institution is admitted to grant-in-aid code, that does not mean that the management has no discretion to appoint the staff in-charge; (4) if for any reason the authorities feel that appointment is bad or contrary to the norms fixed, it is open for such authorities to take appropriate action to withdraw the appointment but they cannot interfere in the appointment orders; (5) since selection has been made by the management and if the petitioners are aggrieved, the proper forum is to approach the educational appellate tribunal. In fact, one of the petitioners had approached the educational tribunal and was unsuccessful and now the c. r. p. which is yet to be numbered is pending before this court, as such it is not proper to consider petitioners request in these writ petitions; (6) he further submits that Annexure-C , which is a letter written by the department has no force in the eye of law; (7) when the petitioners failed to get a relief in an appeal filed before the appellate tribunal, have now filed this writ petition suppressing certain facts seeking to quash Annexure-E ; (8) Annexure-E , according to Sri P. Vishwanatha shelly, not only ineffective but also violalive of Article 19 (g) of the Constitution of India as it affects a person of right to carry on his business which includes even carrying on or slarling educalional institution; (9) now the authorities made an attempt to take away the same, thus the said order is incorrect. in support of these contentions Sri P. Vishwanalha shetty, relief upon the following decisions of this courl namely the case of r. Lakshmikantan v commissioner of public instructions reported in 1987 (2) kar. L. j. sh. N. 208 : ILR 1987 (3) kar. 882. The relevant portion reads as hereunder:" irrespective of the question as to whether the management was right in superseding the claims of the 4th respondent, even on the assumption that he was senior to the petitioner; in the matters of appointments, the management has the right to adjudge the suitability of persons for the post concerned and to make the appointment. That is one of the basic rights of the management of the institution concerned. It cannot be interfered with by the department. Undoubtedly, the joint director could refuse to approve the appointment made by the management if the person appointed did not possess the prescribed qualification or otherwise ineligible to be appointed as principal. The refusal to approve the appointment was not on any such ground. "the second one is rendered in the case of bharathiya adim jati sevak sangha v the director of collegiate education and others in W. P. No. 8932 of 1991 and connected writ petitions disposed of on 12-3-1992 wherein similar view is taken to the one taken in the decision referred to above. "the second one is rendered in the case of bharathiya adim jati sevak sangha v the director of collegiate education and others in W. P. No. 8932 of 1991 and connected writ petitions disposed of on 12-3-1992 wherein similar view is taken to the one taken in the decision referred to above. ( 9 ) FOR the above reasons Sri P. V. Sbetty submits that the petitions be dismissed with costs. ( 10 ) HE also brings to my notice that the 4th respondent in fact not only possessesthe requisite qualification but he has also taught in different colleges in different capacities. ( 11 ) WHEREAS Sri Raghavendra Rao, learned counsel for respondent-3 submitsthat: (1) the present writ petition is also not maintainable as the petitioners did not submit their applications seeking selection. (2) according to him government order dated 11-5-1982 has become inoperative in view of subsequent orders passed by the government, wherein it is said that in case of appointment of a principal of a college the qualification for selection prescribed is that one should be a post-graduate in m. a. , m. sc. , m. com. , and has served minimum of 5 years, in case of high school has served 10 years. (3) for these reasons he submits that the petitions be dismissed. ( 12 ) WHEREAS Smt. Bhoopathy, learned high court government pleader submits that as orders being inconsistent, either she is unable to support or to say as illegal. As far as the state is concerned when once a private institution is admitted to grant-in-aid code that too by way of an agreement or otherwise and in the absence of any statute or rules, the guidelines fixed to be followed strictly. Further any order passed by the government or the authority is binding on the management and its deviation renders for de-recognition. ( 13 ) AFTER hearing both sides and going through the records, the points to be considered are: (1) whether this writ petition as contended by respondents 3 and 4 is maintainable or not? (2) whether appointment or respondent-4 is correct or otherwise? Regarding consideration of the first point, it is true normally that a person who is not a party to a proceeding cannot challenge any decision taken in such a proceeding. (2) whether appointment or respondent-4 is correct or otherwise? Regarding consideration of the first point, it is true normally that a person who is not a party to a proceeding cannot challenge any decision taken in such a proceeding. But in the instant case what the petitioners have challenged in an order passed by the government at Annexure-E approving appointment of 4th respondent as principal of the college. The grounds of attack to the said appointment are that the said appointment is contrary to the government order dated 11-2-1982 where the qualification has been clearly fixed, which has been further interpreted by the department concerned at annexures-c and d. (2) as petitioners are employees of the college, as per the government order and further clarifications given by the department, entitled for promotion to the post of principal. (3) when their case has been overlooked by appointing some one else it has to be said that they are aggrieved. Then the question is, when an official is aggrieved by an order of appointment in bis place or to the post he claimed in private institution getting grant, whether such a person has to agitate his claim either before this court or before the educational tribunal. No one can say that the dispute is purely between an employee and the management, on the contrary an employee has to approach under Section 8 of the Karnataka private educational institutions (discipline and control) act of 1975, before the educational tribunal. But in the instant case the order under challenge is not the one passed by the management but it is passed by the government and nowhere in the act referred to is said even order passed by the government or authority can be challenged before the educational tribunal. Hence, when amiexure-e is the order passed by the government there is no alternative remedy except to approach this court under Article 226 of the Constitution of india. Hence, in my view the writ petition is maintainable. ( 14 ) COINING to the second point whether approval accorded by the governmentat Annexure-E is correct or otherwise, of course counsel for respondents 3 and 4 placed reliance to the decisions referred above, if the facts involved and the reasons given in both the decisions are properly scrutinised, in my view on facts these two decisions are not applicable. ( 14 ) COINING to the second point whether approval accorded by the governmentat Annexure-E is correct or otherwise, of course counsel for respondents 3 and 4 placed reliance to the decisions referred above, if the facts involved and the reasons given in both the decisions are properly scrutinised, in my view on facts these two decisions are not applicable. To take the case of r. Lakshmikantan, that was a case where the dispute no doubt was for the post of a principal, but the dispute was between two lecturers claiming on seniority-cum-merit basis. Ultimately, court came to the conclusion that right to appoint is vested with the management. It is purely a discretion given to the management to make appointment to the post of principal who in fact has been selected on the basis of seniority-cum-merit. Hence the same is not bad. Regarding alternative remedy, court had to say that the aggrieved person has to go before educational tribunal as the challenge is to an appointment made by the management. There was no occasion for the court to consider whether approval made by the government can also be challenged before the educational tribunal. Hence, in my view the said decision on facts is not applicable. ( 15 ) IN the second case, court has interpreted the rights to make appointments ofthe staff of a private institution vests in the management itself. That was a case where director of collegiate education himself gave directions to appoint and when it came for consideration before this court, the court had to say that such a step on the part of the director of collegiate education as unwarranted. The relevant observation made in the said decision is also extracted hereundcr:"it is no doubt true that the director of collegiate education is conferred with the authority to approve or not to approve the appointments made by the private management, depending on the requirements of the grant-in-aid code and other requirements as to the eligibility, qualification or seniority or the like. If the director was not satisfied mat Smt. N. c. bommanagoudar was eligible to be appointed as principal of the college that was well open to him to refuse approval. But he was not competent to appoint the principal to the college by himself. If the director was not satisfied mat Smt. N. c. bommanagoudar was eligible to be appointed as principal of the college that was well open to him to refuse approval. But he was not competent to appoint the principal to the college by himself. This action of the director is straight in-road in the freedom of the management of the private society in making appointment of staff. Right to appoint is a right available to the management and right to approve is the right available to the director of collegiate. Education in respect of aided institutions. "it is true that the director of collegiate education is the concerned authority to approve or not to approve the appointment of a private management depending on the requirements of the grant-in-aid code and other requirements as to the eligibility, qualification or seniority. Right of appointment is a right available to the management and right to approve is a right available to the director of collegiate education in respect of aided institution. Thus, the facts in the second case and the facts in the present case are altogether different. ( 16 ) REGARDING merits of the case, it has to be seen whether government was justified in issuing Annexure-E. It is said at Annexure-D that the post of the principal will be filled up among those who have put in more than 5 years of service and it has been further clarified by the director of collegiate education at annexures-c and d. It is also not in dispute that these petitioners and other 3 persons who came to be appointed at anncxure-a had already put in 5 years of service and eligible as per the government order for the post of the principal. When such was the case, it is not shown by the management how it could have thought of ignoring their cases and appoint the 4th respondent Sri K. Raghavendra rao brought to my notice a subsequent notification issued by the director of collegiate education on the basis of a government order No. Ed 57 mus 85, dated 1-7-1985 referred to in the said letter at preamble No. 2 which according to Sri Raghavendra Rao condition No. 6 is very relevant which is extracted hereunder:"6. Rtcio netetandq, iandacqandstotfaandti otosjcncidjaoai fandccbcandj, ty$b if this kannada version is correctly understood it goes against the contention of Sri Raghavendra Rao and in fact goes in favour of Sri Raghavendra achar, learned counsel for the petitioner. ( 17 ) NOW the point to be considered is when one of the petitioners filed anapplication before the educational tribunal challenging the selection of the 4th respondent and lost his case and the same is now pending before this court whether such an applicant or others joining him can agitate in this writ petition one of the issues which involved in the proceedings before the educational tribunal. The answer is what is under challenge in this writ petition is the correctness and the propriety on the part of the government in issuing the order under Annexure-E. The government which has powers to distribute the public money to various private institutions in the form of grant-in-aid is expected to act in a fair and just manner but not in an arbitrary and illegal way as it has done in this case by ignoring its own earlier order and the clarifications given by the director of collegiate education, approving the appointment of the 4th respondent as principal of the 3rd respondent college. In this writ petition as rightly done and it has to be now said that as far as Annexure-E is concerned, if it is examined in presence of its earlier order and the clarifications issued by the government, the same is quite arbitrary and illegal. Of course Sri P. V. Shetty contended that no relief can be granted to the petitioners as one of the petitioners made an attempt to challenge the selection and appointment before the educational tribunal and lost his case for the reason that the right to appoint is purely the right of the management and not of the government. In my view, when it comes to the notice of this court that on the one hand the authority of the management and on the other hand the government are acting according to their whims and fancies, it has to be said that even though relief is not sought, in order to see that substantial Justice is done the relief can very well be moulded and be given by this court while considering the case under Article 226 of Constitution of india. Sri Raghavendra rao, brought to my notice that the second petitioner is kept under suspension. As such he cannot maintain this writ petition. Suspension cannot be considered as cessation of the job or he has been sent home. Hence, inspite of suspension he can very well maintain this petition. He also submitted that order under Annexure-C l has been challenged by the management before this court by filing W. P. No. 3321 of 1992. If that is so it is made clear that the observations made herein shall not be construed that any one of the parties to the proceedings in W. P. No. 3321 of 1992 are prevented from taking the contentions that are available to them to support their case. Further, none of the parties to this proceeding requested to post this writ petition along with the above writ petition filed by the management and which is pending to be considered together. As such this writ petition has been dealt independently. ( 18 ) SINCE it is said that c. r. p. is pending challenging the order passed by theeducational appellate tribunal on an appeal preferred by one of the petitioners where selection and appointment of 4th respondent has been questioned before this court, I decline to comment upon correctness of the order challenged in the said c. r. p. it is for the petitioners or the petitioner to substantiate his case in the said c. r. p. accordingly these petitions are dismissed. No costs. All other contentions are kept open. ( 19 ) SMT. Bhoopathy, learned high court government pleader who took noticeon my direction and heard in the matter is permitted to file her memo of appearance within 4 weeks. Let a copy of this order be communicated to the government of Karnataka and other authorities of the department. --- *** --- .