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2006 DIGILAW 1051 (KAR)

UMAKANTH MALLIKARJUNASWAMY v. STATE OF KARNATAKA

2006-12-19

MOHAN M.SHANTANAGOUDAR

body2006
ORDER Heard the learned Counsel appearing on ~half of the petitioners in all these writ petitions, Sri B.N. Prasad, learned High Court Government Pleader appearing on behalf of the respondent-State and perused the material on record. 2. The Notification dated 14-6-2006 bearing No. ED 122 PBS issued under the provisions of Sections 58(1-A)(v), 58(2), 60 and 61(2)(b) read with Section 316(1) of the Karnataka Panchayat Raj Act, 1993 (Karnataka Act 14 of 1993) (hereinafter referred to as "P.R. Act") and the subsequent Circular dated 30-9-2006 bearing No. ED 179 PBS 2006 issued by the State of Karnataka are questioned in these writ petitions. The petitioners are either existing "School Development Monitoring Committees" or it's members. Since all these writ petitions are interconnected and as the common questions of facts and law are involved in these petitions, they have been heard together and disposed of by this common order. 3. The brief facts of the case leading to these writ petitions are as under: With an intention of implementing the National Education Policy for proper functioning of the schools, to monitor the proper development of the children in the schools, decentralisation of school administration, supporting the teachers to discharge their duties, for development of the schools as a unit, for improving admission of the students of the school, to prevent the students dropping from the schools and for other allied purposes, the State Government thought it fit to appoint an expert Committee headed by Dr. Raja Ramanna to study and report to the Government about the steps, which can be taken up for implementation. The said committee, after thorough study submitted its interim report to the State, suggesting various measures. As the State Government felt that it may consume considerable time to amend the relevant enactment for implementation of the recommendations of the Committee, the State Government, at the first instance issued an order dated 28-4-2001 for formation of the "School Development Monitoring Committees" ("SDMC's" for short) for the Government Primary and High Schools. The said Government order mandates that the 'SDMC's' shall consist of totally nineteen (19) members i.e., nine (09) members to be selected from amongst the parents of the students studying in the schools, four (04) ex officio members, six (06) nominated members. It is also made clear in the very Government order that once 'SDMC's' is formed, the same shall exit for a term of three years. It is also made clear in the very Government order that once 'SDMC's' is formed, the same shall exit for a term of three years. In the very order, the duties of the Committee are also specified. Certain other details such as appointment of the Chairman of the Committee, quorum for conducting the meetings, mode of conducting the meetings etc., are also specified in the said Government Order. Subsequently, on 16-8-2001 the State Government issued modification order bearing No. ED 1 PBS 2001 modifying the earlier Government Order dated 28-4-2001 to certain extent. The modified order specifies that the Member of Legislative Assembly ('MIA' for short) representing a particular constituency wherein the schools are located shall have the power to nominate nine 'SDMC's' members. Further, the 'MLA' is conferred with the power of selecting the President of SDMC's. Except the aforesaid modification, the order dated 28-4-2001 which was issued at the first instance continued to be in the filed till 14-6-2006, on which date, the State Government issued the impugned notification bearing No. ED 122 PBS 2004 by which, the Model Bye-laws were framed and the earlier Government Orders in the matter i.e., Orders dated 28-4-2001 and 16-8-2001 are superseded. It is relevant to note here itself that before publishing the Model Bye-laws, the State Government had invited the objections and the suggestions from the general public and the persons likely to be affected by issuing notification dated 17-3-2006. According to the State Government the objections and suggestions received by it are considered and thereafter, the Model Bye-laws are approved and published in the Official Gazette on 14-6-2006. The Model Bye-laws are framed under the provisions of Sections 58(1-A)(v), 58(2), 60 and 61(2)(b) read with Section 316 of the KPR Act. The Model Bye-laws published in the notification dated 14-6-2006 exhaustively take care of the formation and effective functioning of the SDMC's. Therefore, it can be said that the notification of Model Bye- laws dated 14-6-2006 is a self-contained document by itself, which gives guidelines for working of the SDMC's. According to Bye-laws, three (03) members shall be ex officio members and nine (09) representatives shall be elected from parents Council. So also there will be three nominated members and two students representatives. In the said Model Bye-laws even the disciplinary action is prescribed against the members of the Committee. So also there will be three nominated members and two students representatives. In the said Model Bye-laws even the disciplinary action is prescribed against the members of the Committee. It is also clarified in the said Model Bye-laws that the term of office of the members of the SDMC's other than the ex officio members is three (03) years, or is co-terminus with the term of the concerned Gram Panchayat whichever is earlier. The Headmaster of the school is delegated with the task of constituting the SDMC. 4. The State Government thereafter issued one more circular dated 11-8-2006 bearing No. ED 122 PBS 2004 to clarify the position that SDMC's which were constituted prior to issuance of the Notification dated 14-6-2006 shall continue to function till the completion of their prescribed term of three years. Thus, the 'SDMC's' constituted earlier to issuance of the impugned Notification dated 14-6-2006 continued to function. However, one more circular is issued by the State Government on 30-9-2006 bearing No. ED 179 PBS 2006 directing the concerned authorities to dissolve the earlier Committees and to constitute the new Committees by following the Model Bye-laws contained in the Government Notification dated 14-6-2006. In pursuance to the said circular dated 30-9-2006, the concerned authorities of the Government are trying to dissolve the existing SDMC's whose term of three years is not yet expired for forming the new SDMC's. Hence, these writ petitions have been filed, questioning the validity of the Government Notification dated 14-6-2006 as well as the subsequent circular dated 30-9-2006. 5. In pursuance to the said circular dated 30-9-2006, the concerned authorities of the Government are trying to dissolve the existing SDMC's whose term of three years is not yet expired for forming the new SDMC's. Hence, these writ petitions have been filed, questioning the validity of the Government Notification dated 14-6-2006 as well as the subsequent circular dated 30-9-2006. 5. Learned Advocates appearing on behalf of the petitioners vehemently argued that the impugned notification dated 14-6-2006 is misconstrued by the officials of the State Government, inasmuch as, the Model Bye-laws framed under the said Notification do not insist that the existing Committees should be dissolved prematurely; that the Notification dated 14-6-2006 merely prescribes the modified procedure for constitution of the new School Development Monitoring Committees ('SDMC's') and functioning of the SDMC's in the entire State; that the very fact that the said Notification prescribes maximum term of three years for the SDMC's itself goes to show that the existing SDMC's shall have to complete their fixed term of three years and that new SDMC's shall not be constituted till the completion of the present SDMC's; that the intention of the Model Bye-laws is to see that even the existing SDMC's which are constituted prior to 14-6-2006 shall be governed by the new Model Bye-laws framed under the notification dated 14-6-2006; that the notification dated 14-6-2006 is prospective in nature and it does not have the retrospective effect and consequently, it cannot cancel the term of the existing SDMC's; that if the SDMC's are superseded in the middle of the year, the same will hamper the functioning/working of the schools and consequently, the intention of the Legislature will be frustrated; the term of the SDMC's fixed for the period of three years under the Government Order dated 28-4-2001 was not qualified inasmuch as, the said Government Order does not specify that the term of the SDMC's is either until further orders or during the pleasure of the Government; that the State Government has not circulated the Model Bye-laws to the-Gram Panchayats and consequently, the Panchayats have not adopted the Model Bye-laws as contemplated under Section 316 of the KPR Act; that the term of the existing Committees shall be allowed to continue till completion of their term of three years, in order to develop and maintain the healthy democratic conventions. 6. 6. Per contra, Sri B.N. Prasad, learned High Court Government Pleader appearing on behalf of the respondent-State filed statement of objections and argued contending that the source of power to issue the impugned notification dated 14-6-2006 by which, the Model Bye-laws are framed by the State Government is traceable to the provisions of KPR Act; that the notification dated 14-6-2006 supersedes all other earlier Government Orders i.e., Orders dated 28-4-2001 and 16-8-2001 and that therefore, the earlier SDMC's constituted under the old orders will automatically cease to exist; that the Government is empowered to take /a policy decision in exercise of its executive power to frame the rules' and bye-laws to form the new SDMC's. On these amongst other grounds, he prayed for dismissal of these writ petitions. 7. On consideration of the rival contentions and grounds urged by the respective parties, this Court does not find any illegality in the impugned notification dated 14-6-2006 by which, the State Government has framed the Model Bye-laws and published the same in Official Gazette. The Model Bye-laws are exhaustive in· nature. If the Model Bye-law are perused meticulously, the same will make it clear that it is akin to a self-contained Code, which not only prescribes the creation, functions, powers of the SDMC's and monitoring the SDMC's but also specifies the election of the office-bearers of SDMC's, functions of the President, Vice-President and Secretaries of the SDMC's. The Model Bye-laws, also prescribe the procedure to be followed at the meetings of SDMC's, disciplinary action and termination of membership, filling of vacancy and maintenance of finances etc. Thus, the lacune found in the earlier Government Order dated 28-4-2001 are rectified to the substantial extent. The provisions of Section 316 of the KPR Act empowers the State Government to make Model Bye-laws for the Gram Panchayats after previous publication of the draft for not less than one month. In these matters also, as aforesaid, the State Government, after previous publication of the draft 'Model Bye-laws' for more than one month, and after considering the objections and suggestions received from the general public has framed the Model Bye-laws for the Gram Panchayats. Thereby, the SDMC's constituted are treated as the Sub-Committees of the concerned Village Panchayats. Thus, the Model Bye-laws framed under the impugned Notification dated 14-6-2006 are within the ambit of the executive power conferred on the State and are legal. Thereby, the SDMC's constituted are treated as the Sub-Committees of the concerned Village Panchayats. Thus, the Model Bye-laws framed under the impugned Notification dated 14-6-2006 are within the ambit of the executive power conferred on the State and are legal. Therefore, the Notification dated 14-6-2006 issued by the State cannot be quashed. 8. The contention of the petitioners that the Model Bye-laws are not circulated amongst the Village Panchayats by the State Government and consequently, the Gram Panchayats have not adopted the Model Bye-laws by passing the resolutions cannot be accepted. In none of these writ petitions, the Gram Panchayats are made as parties. Thus, there is nothing on record to show that the Gram Panchayats have not adopted the Model Bye-laws framed under the impugned notification. Even otherwise, as can be seen from the allegations made in the writ petitions, it is clear that the Gram Panchayats have been making efforts to constitute the new SDMC's in the place of existing SDMC's by following the Model Bye-laws contained the impugned notification. This itself impliedly means that the Gram Panchayats have adopted the Model Bye-laws framed by the State Government. Thus, the procedure as prescribed under the provisions of Section 316(3) and 316(4) of the KPR Act need not be gone into in these matters, inasmuch as, the Gram Panchayats have voluntarily adopted the Model Bye-laws. 9. However, this Court finds that the prayer of the petitioners that the existing SDMC's shall be allowed to continue to function till the completion of their term of three years is well-founded. Admittedly, the petitioners have not completed their term of three years. As aforesaid, the SDMC's came to be constituted by virtue of the Government Order dated 28-4-2001, under which, the term of SDMC's is fixed as three years. The said term of three years is not qualified, inasmuch as, the Government Order dated 28-4-2001 has not prescribed that functioning of the said SDMC's is during the pleasure of the Government. So also, the State Government has not specified that the Committee shall work for three years or until further orders, whichever is earlier. Since the language used in the Government Order dated 28-4-2001 is plain, simple and unambiguous, it is more than clear that the term of SDMC's shall be for a period of three years from the date of their Constitution. Since the language used in the Government Order dated 28-4-2001 is plain, simple and unambiguous, it is more than clear that the term of SDMC's shall be for a period of three years from the date of their Constitution. Even in the present Government Notification dated 14-6-2006, though the earlier Government Order dated 28-4-2001 is superseded, the maximum term of the SDMC's members other than the ex officio members is three years or it is co-terminus with the term of the concerned Gram Panchayat, whichever is earlier. Thus, the intention of the Legislature while framing the Model Bye-laws appears to be that once the Committee members are elected or selected, they should continue to function as Committee members for a period of three years 110m the date of selection or election, unless they are removed after disciplinary enquiry. It is not in dispute that the existing SDMC's are functioning in a proper and effective manner and in consonance with the objects for which the SDMC's are created. Admittedly no allegations are forthcoming against any of the petitioners. Though the State Government has filed detailed statement of objections, it has not even whispered that the existing SDMC's are not properly functioning. On the other hand, in paragraph 6 of the Statement of Objections filed by the State, the functioning of the existing SDMC's is appreciated as under: "It is submitted that pursuant to the formation of SDMC in the year 2001, the monitoring and development activities of the Government Schools has improved and there has been good over all response from the parents, the Committee in regard to the management of the school. The State Government on receipt of the good response, in regard to the functioning of the SDMC's and to implement the Central Government policy of Sarva Shikshana Abhiyana Scheme in a much more vibrant manner had constituted a Committee of representatives from the State of Karnataka, the National Law School, Bangalore and Azim Premji Foundation to study the functioning of the SDM Committee and to advise the State for further improvement in the educational system of the State Government". (emphasis supplied) The aforesaid facts amply go to show that the existing SDMC's are functioning effectively and satisfactorily. If it is so, there is no reason as to why the existing SDMC's should be dissolved before the expiry of their term of three years. 10. (emphasis supplied) The aforesaid facts amply go to show that the existing SDMC's are functioning effectively and satisfactorily. If it is so, there is no reason as to why the existing SDMC's should be dissolved before the expiry of their term of three years. 10. The Model Bye-laws framed by the Government through the notification dated 14-6-2006 also do not specify that the said Model Bye-laws have got retrospective effect. Unless there are words in the Model Bye-laws sufficient to show the intention of the Legislature to effect the changes in the existing Committees, it is presumed to be prospective only. It is a cardinal principle of construction that every statute or bye-law is always prospective in operation unless it is expressly or by necessary implication made to have the retrospective operation. The provisions which touch a right in existence at the time of passing of the statute or bye-law are to be applied prospectively in the absence of express enactment or necessary intendment, as has been held by the Apex Court in the case of Amireddi Raja Gopala Rao and Others v Amireddi Sitharamamma and Others1. It is held therein that: "Every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended net to have a retrospective effect". In the case on hand, since the impugned notification dated 14-6-2006 does not specify anywhere to dissolve the existing SDMC's, it shall be presumed that the existing SDMC's shall continue to function till the expiry of their term of three years. If the existing SDMC's are not allowed to function till the completion of their term of three years, particularly in the absence of any allegations, the action of the State Government will be in violation of the Article 14 of the Constitution of India. The essence of public dement attached to the 'office' of SDMC's is sufficient to attract Article 14 of the Constitution and bring the question of validity of the impugned circular dated 30-9-2006 terminating the term of office of the existing SDMC's within the scope of judicial review. The wide sweep of Article 14 undoubtedly takes within its fold the impugned circular dated 30-9-2006 issued by the State Government in exercise of its executive powers. The wide sweep of Article 14 undoubtedly takes within its fold the impugned circular dated 30-9-2006 issued by the State Government in exercise of its executive powers. Though the right of the existing SDMC's members is independent of any statutory right and even if the same flows from the Government Order dated 28-4-2001, the impugned Circular dated 30-9-2006, by which, the term of existing members of SDMC's is curtailed, must satisfy the test of Article 14 of the Constitution of India. As the petitioners in all these writ petitions have not committed any fault and as there is absolutely no allegation whatsoever against any of the members of the existing SDMC's, there is no reason as to why the term of office of the members of the existing SDMC's should be scuttled. Thus, as aforesaid, if the term of the existing SDMC's is net allowed to be completed for the term specified in the order dated 28-4-2001, then the action of the State Government would be in violation of Article 14 of the Constitution of India. Therefore, this Court is of the considered view that the petitioners shall complete their term of three years. If the existing SDMC's are allowed to complete their remaining term, it would be inconsonance with the healthy democratic conventions. 11. Even otherwise, in the impugned circular dated 30-9-2006, the State Government has not assigned any valid reasons to curtail the remaining term of the existing SDMC's. The only reason assigned therein is that the Commissioner of the Public Instruction has felt that some difficulties may arise in forming in new SDMC's in accordance with the Model Bye-laws framed under Notification dated 14-6-2006. The State Government, in its statement of objections, has not come out with any explanation as to what difficulties would be faced by the State Government if in case the existing SDMC's are not dissolved for reconstituting the new SDMC's. 12. However, this Court hastens to add that the existing SDMC's shall be governed by the Model Bye-laws framed by the State Government on 14-6-2006, as the said bye-laws have been adopted by the concerned Gram Panchayats. However, this Court hastens to add that the existing SDMC's shall be governed by the Model Bye-laws framed by the State Government on 14-6-2006, as the said bye-laws have been adopted by the concerned Gram Panchayats. If any of the members or office-bearers of the existing SDMC's commit any illegality, the bye-laws empower the concerned authorities to take disciplinary action against such members of the SDMC's. For the foregoing reasons, the impugned notification dated 14-6-2006 issued by the State Government is to be upheld by permitting the members of the existing School Development Monitoring Committee to complete their remaining period of three years. Hence, the following order is made: (a) The challenge to the Notification dated 14-6-2006 bearing No. ED 122 PBS 2004 issued by the State Government framing the Model Bye-laws to constitute the School Development Monitoring Committees (SDMC's) is dismissed. The said notification is upheld; (b) The existing School Development Monitoring Committees (SDMC's) constituted prior to issuance of notification dated 14-6-2006 shall be allowed to continue their functions till the completion of the term of three years. Consequently, the circular dated 30-9-2006 bearing No. ED 179 PBS 2006 is quashed; (c) The concerned authorities shall reconstitute the School Development Monitoring Committees (SDMC's) after the expiry of the term of the present Committees. With the aforesaid observations, these writ petitions are disposed of.