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2021 DIGILAW 511 (KAR)

Peoples Education Trust (R) v. State of Karnataka

2021-03-31

ARAVIND KUMAR, SHIVASHANKAR AMARANNAVAR

body2021
JUDGMENT : Aravind Kumar, J. 1. These two appeals are directed against the order dated 03.08.2018 passed in W.P. Nos. 42513/2016 and 42514/2016 whereunder the writ petitions filed for quashing of the orders dated 07.04.2016 passed by first respondent herein in Revision Petition No. 3/2012 and Revision Petition No. 5/2013 came to be dismissed by affirming the said orders under which, the order dated 25.05.2011 (Annexure-B) passed by the writ petitioners/appellants retrenching respondents 3 to 6 came to be set aside with a direction to reconsider the same and to accommodate them in other colleges run by the first appellant herein. 2. Parties are referred to as per their rank before the learned Single Judge. 3. Respondents 3 to 6 (in W.A. 2904/2018) were appointed as part-time lecturers in Sociology, Economics, English and History subjects on 01.01.1991, 20.08.1986, 30.04.2001 and 10.11.1986 respectively by the first petitioner-trust. These respondents challenged the orders dated 30.11.2009 of the Department of Collegiate Education under which they had declined to admit them to grant in aid, by filing W.P. Nos. 74/2009 and 230-232/2009. Said writ petitions came to be disposed of by order dated 30.11.2009 whereunder fourth respondent therein i.e., second appellant herein was directed to consider the petitioner's claim in accordance with the directions issued by the Apex Court in S.S. Anand and others vs. The Management of Mahatma Gandhi Vidyapeeta (Regd.) Bangalore and another reported (1998) 3 KLJ 293. By order dated 03.04.2010 (Annexure-D) said prayer of respondents 3 to 6 came to be rejected and communicated to them. Being aggrieved by the said endorsement, respondents 3 to 6 herein filed Revision Petition No. 3/2012. 4. In the meanwhile, first petitioner-Trust on the ground there were no good number of admissions, decided to close down the second petitioner - law college and the said course. In that regard a meeting of the first petitioner-trust came to be conducted on 20.01.2011 (Annexure-F) and a resolution came to be passed for closing down 5 year course in the second petitioner-college. The Karnataka State Law University, Hubli by communication dated 18.04.2011 and the Government of Karnataka by order dated 08.04.2011 granted permission for closing down the 5 years law course. 5. Being aggrieved by the endorsement dated 03.04.2010, respondents 3 to 6 herein had filed W.P. Nos. The Karnataka State Law University, Hubli by communication dated 18.04.2011 and the Government of Karnataka by order dated 08.04.2011 granted permission for closing down the 5 years law course. 5. Being aggrieved by the endorsement dated 03.04.2010, respondents 3 to 6 herein had filed W.P. Nos. 35754-757/2010 and learned Single Judge disposed of the said writ petitions by order dated 28.09.2012 directing them to approach the Government under Section 131 of the Karnataka Education Act against the order of retrenchment and directed the revisional authorities to decide the same on merits by issuing notice to the respondents therein. 6. Being aggrieved by the decision of first petitioner-Trust for closing down the course, the respondents 3 to 6 herein filed W.P. Nos. 19534-536/2011, which came to be disposed of by order dated 28.09.2012, permitting respondents 3 to 6 herein who were petitioners therein to file revision under Section 131 of the Karnataka Education Act and kept open all the contentions. Being aggrieved by the said order, respondents 3, 4 and 6 filed W.A. Nos. 7009-7011/2012, which came to be dismissed by order dated 26.09.2013. However, the liberty which was granted by the learned Single Judge to respondents 3 to 6 herein to file a revision under Section 131 of the Karnataka Education Act was kept intact and 30 days time was extended to file revision petition from the date of receipt of copy of the order passed in writ appeal. 7. Hence, respondents 3 to 6 herein filed Revision Petition No. 5/2013 and another review petition in R.P. No. 6/2013 under Section 133 of Karnataka Education Act. By order dated 07.04.2016 the second respondent allowed Revision Petition No. 3/2012 by setting aside the endorsement dated 03.04.2010 and directing respondent Nos. 1 and 2 therein to pay salaries to the petitioners equal to the salary paid to the government teachers as per Rule 5 of the Karnataka Private Educational Institutions (Discipline and Control) Rules, 1978 (for short 1978 Rules'). Revision Petition No. 5/2013 was also allowed and order dated 25.05.2011 terminating respondents 3 to 6 was set aside and appellants were directed to reconsider the retrenchment order passed against respondents 3 to 6 and directed the appellants herein to accommodate respondents 3 to 6 in any other college run by appellants if they are qualified. Hence, these two writ appeals. 8. We have heard the arguments of Sri. S.M. Chandrashekar and Sri. Hence, these two writ appeals. 8. We have heard the arguments of Sri. S.M. Chandrashekar and Sri. K. Subba Rao, learned Senior Advocates appearing for the appellants and respondents 3 to 6 respectively and Smt. Shilpa Gogi, Learned HCGP appearing for the State. Perused the records. 9. It is the contention of Sri. S.M. Chandrashekar, learned Senior Counsel that claim made by respondents 3 to 6 for equal pay under Rule 5 of 1978 Rules is without basis as the said claim came to be made after order of removal was passed against them. He would contend that in the meeting convened by the first respondent-trust on 25.10.2006 (Annexure-F40) resolution came to be passed regarding fixation of pay scale and also financial condition of the institution, making it clear that pay scale and other modifications would be subject to stability of the economic conditions of the institution. He would contend that claim of respondents 3 to 6 for arrears of salary was not maintainable as it had been disallowed in the earlier round of litigation i.e., W.P. No. 74/2009 and connected matters disposed of on 30.11.2009. He would contend that issue relating to arrears of the salary had been considered in the said writ petitions and as such question of considering their claim does not arise, particularly in the background of the respondents 3 to 6 having been removed from service. 10. Sri. S.M. Chandrashekar, learned Senior Counsel appearing for appellants would also contend that respondents 3 to 6 ought to have filed an appeal under Section 94 of the Karnataka Education Act challenging their order of removal and even if it is treated as a retrenchment under Section 98, they cannot seek transfer to other colleges for being absorbed. He would contend an appeal is maintainable against an order of removal and there cannot be any concession against statutory remedy. He would also contend that order of removal was canvassed as retrenchment and the Government permission to the closure of a college is sufficient compliance of Section 98 of the Act which mandates prior approval. He would also submit that sub-section (2) of Section 98 would not be attracted as it applies to an aided institution and petitioner not being an aided institution said provision is not attracted. He would also submit that sub-section (2) of Section 98 would not be attracted as it applies to an aided institution and petitioner not being an aided institution said provision is not attracted. He would submit that revision petitioners i.e., respondents 3 to 6 do not possess requisite qualification prescribed by University Grants Commission - UGC namely, it prescribes Ph.D degree or M.Phil degree as minimum qualification holder for being absorbed in other colleges. 10.1. He would contend that question of granting any monetary benefits does not arise, that too by extending the benefit of Rule 5 which came to be repealed by 1983 Act. Even otherwise the claim of equal pay has been raised after removal and on facts respondents 3 to 6 were undisputedly working 6 hours a week and as such they cannot claim parity with other permanent lecturers, who would be working 40 hours a week. Hence, he prays for the order of learned Single Judge being set aside and the writ appeals being allowed. 11. Sri K Subba Rao, learned Senior counsel appearing for respondents-3 to 6 would support the order passed by the learned Single Judge. He would draw the attention of the court to the statement of objections filed by respondents-3 to 6 before the learned Single Judge (in W.P. No. 42513/2016) and the annexures appended thereto, to contend that by resolution dated 24.12.1990, 08.11.1986, 13.07.2001, the pay scale of these respondents had been fixed as indicated thereunder and on account of the said pay scales having not been paid, repeated representations came to be submitted and ultimately, in W.P. No. 74/2019 and connected matters, which had been filed by these respondents-3 to 6, seeking grant of regular pay, direction came to be issued to the fourth respondent therein i.e., second appellant herein to consider the petitioner's claim in accordance with the directions issued by Hon'ble Apex Court in S.S. ANAND's case referred to supra. 12. He would submit that by order dated 03.04.2010 the claim of respondents for grant of pay commensurate to the pay being paid to similar teachers has been rejected and said rejection came to be challenged by the respondents-3 to 6 in WP. 12. He would submit that by order dated 03.04.2010 the claim of respondents for grant of pay commensurate to the pay being paid to similar teachers has been rejected and said rejection came to be challenged by the respondents-3 to 6 in WP. No. 35754-757/2010 which petitions came to be disposed of with an observation that the court had already directed the petitioners to approach the Government under Section 131 of the Karnataka Education Act against the order of retrenchment, fixation of salary would also become incidental to the same and as such, it would be appropriate to direct the petitioners i.e., respondents-3 to 6 to question the decision of the Management by filing a revision petition under Section 131 of the Karnataka Education Act and accordingly, a revision petition 5/2013 under Section 131 of the Karnataka Education Act had been filed based upon which, the order dated 07.04.2016 had been passed by the first respondent which came to be considered by the learned Single Judge and held that it is in consonance with the directions issued by this court. Hence, he prays for dismissal of the writ appeals. 13. Having heard the learned Advocates appearing for the parties and on perusal of the case papers, we are of the considered view that following points would arise for our consideration: "(1) Whether the order dated 03.08.2018 passed in W.P. No. 42513/2016 and W.P. No. 42514/2016 is liable to be interfered with for any reasons whatsoever? (2) What order? REASONING AND CONCLUSION: 14. First appellant - Trust is running several educational institutions of which, second appellant namely, Law College is one such. It is an undisputed fact that several institutions being run by first petitioner-trust are receiving grants and maintenance from the Government, except the Law College i.e., second petitioner-college. The 5 year Law Course was commenced from the academic year 1986-87. Respondents-3 to 6 came to be appointed on 01.01.1991, 20.08.1986, 30.04.2001 and 10.11.1986 respectively. Their appointment came to be approved by the first appellant - Trust by its resolution dated 24.12.1990, 08.11.1986 vide Annexure-R1 & R2. A perusal of said resolution would also disclose that scale of pay is also fixed thereunder. Respondents-3 to 6 came to be appointed on 01.01.1991, 20.08.1986, 30.04.2001 and 10.11.1986 respectively. Their appointment came to be approved by the first appellant - Trust by its resolution dated 24.12.1990, 08.11.1986 vide Annexure-R1 & R2. A perusal of said resolution would also disclose that scale of pay is also fixed thereunder. In fact, first appellant - Trust has submitted before the Government of Karnataka and other authorities the statement reflecting the name of the faculty members, their pay scales etc., The copy of the said statement has been produced by the respondents-3 to 6 before the learned Single Judge as per Annexure-R4. In fact, similar statement has also been furnished to the Bar Council of India, as the said authority being required to grant recognition under the extant statute. Repeated representations submitted by the respondents to the Government for grant of equal pay did not yield any fruitful result and their prayer was turned down. In fact, the claim of the institution for admitting the college to grant-in-aid having been turned down by the State authorities, respondents-3 to 6 herein challenged both the orders namely, the order dated 18.06.2005 refusing to admit the institution for grant in aid and order dated 15.04.2006 refusing to grant regular pay and other emoluments attached to the posts held by them respectively from the date of their entry into service in W.P. Nos. 74/2009 and 230-232/2009. Insofar as the first prayer namely, declining to admit the second appellant - institution to grant in aid by the Government was considered and declined by the learned Single Judge on the ground that petitioners therein i.e., respondents-3 to 6 herein have no locus standi and if the institution is aggrieved, it is required to be challenged by the institution. Insofar as the first prayer namely, declining to admit the second appellant - institution to grant in aid by the Government was considered and declined by the learned Single Judge on the ground that petitioners therein i.e., respondents-3 to 6 herein have no locus standi and if the institution is aggrieved, it is required to be challenged by the institution. Insofar as second prayer sought for in said writ petitions was, namely, pay parity and privileges as available to their counterparts in Government Educational Institutions, learned Single Judge by disposing of the said writ petitions on 30.11.2009 after noticing the judgments of the Hon'ble Apex Court in SS ANAND AND OTHERS supra, HARYANA STATE ADHYAPAK SANGH AND OTHERS vs. STATE OF HARYANA AND OTHERS reported in : AIR 1988 SC 1663 and : AIR 1990 SC 968 had held that an enquiry would be necessary to ascertain the duties and functions of the petitioners therein (respondents-3 to 6 herein) vis-a-vis similar posts held by persons in Government Institutions, and so also the question of payment of arrears would depend on the financial position and extent of burden which may befall on the institution extending the pay scales. Hence, learned Single Judge, directed the fourth respondent therein i.e., second writ petitioner to consider the claim of respondents-3 to 6 in accordance with the directions issued in S.S. ANAND's case supra. The observations made by the learned Single Judge in said writ petitions reads: "5. In the light of the aforesaid decision and applying the same to the facts of this case, no mandamus can be issued directing the authorities to pay to the petitioners salary on par with those attached to similar posts in Government institutions. Needless to state that an enquiry is necessary over the duties and functions of the petitioners vis-à-vis the very similar posts held by persons in Government institutions so as to seek salary on par with such posts. So also, the question of arrears of pay would require an enquiry at the hands of the 4th respondent - College, having regard to their financial position and extent of burden which may befall extending the pay scales." 15. So also, the question of arrears of pay would require an enquiry at the hands of the 4th respondent - College, having regard to their financial position and extent of burden which may befall extending the pay scales." 15. Pursuant to the said direction, enquiry came to be conducted and by resolution dated 03.04.2010 (Annexure-D) the claim of the respondents-3 to 6 herein for grant of salary on par with their counterparts working in Government colleges came to be considered and rejected. Being aggrieved by this order, respondents-3 to 6 herein filed W.P. Nos. 35754-757/2010 and said writ petitions came to be disposed of by order dated 28.09.2012 by observing thus: "5. Without going into the merits of the case, when this Court had already directed the petitioners to approach Government under Section 131 of the Karnataka Education Act against the order of retrenchment, fixation of salary also becomes incidental to the same and the management has rejected the request of the petitioners, hence, it is appropriate to direct the petitioners also to question the decision of the Management by filing a revision under Section 131 of the Education Act. If such a revision is filed within one month from today, the Government shall not insist on the limitation and shall decide the same on merits by issuing notice to the respondent, however, the contentions raised as regard to the management's decision is concerned, these questions are kept open for consideration by the Government." (emphasis supplied) 16. At this juncture itself, it would be apt and appropriate to notice the contention of Sri S.M. Chandrashekhar with regard to maintainability of the revision petition raised in this appeal. In the order above referred to i.e. order passed in W.P. Nos. 35754-757/2010 on 28.09.2012, liberty came to be granted to the petitioners therein i.e., respondents-3 to 6 herein by the learned Single Judge to file a revision petition under Section 131 of the Karnataka Education Act, inasmuch as, the learned Advocate appearing for fourth respondent - college i.e., second appellant herein had contended that any dispute between the private management and the teachers is maintainable before the Government under Section 131 of the Education Act or in other words, agreed/consented for granting liberty to respondents-3 to 6 herein to pursue their grievance by filing revision petition. As such, Revision Petition No. 3/2012 came to be filed by respondents-3 to 6 herein on 26.10.2012 before the first respondent herein, who by order dated 07.04.2016 had allowed the claim of the revision petitioners i.e., respondents-3 to 6. Said order dated 07.04.2016 came to be challenged by the appellants in W.P. No. 42513/2016 and while adjudicating the said writ petition, it has been observed that if the Law College/course was closed, the management could have examined as to whether these respondents could have been accommodated in any other institutions run by the management and removal by resorting to retrenchment is a punitive measure adopted by the management and it had violated the law in doing so. The stand of the management in the earlier round of litigations that even the question as to whether the retrenchment is simplicitor or punitive or whether prior permission of the Government is necessary or would be amenable to revision under Section 131 of the Act, 1983. On account of such stand having been taken by the writ petitioners, it had resulted in relegating the parties to the remedy available under Section 131 of the Act, 1983. In fact, the learned Single Judge has taken note of the judgment rendered in SHYAMLAL vs. STATE OF U.P. & ANOTHER reported in : AIR 1954 SC 369 , whereunder it was held that every termination in service does not amount to dismissal or removal, though removal like dismissal no doubt brings about termination of service. 17. In the case of MANAGEMENT OF M.S. RAMAIAH MEDICAL COLLEGE, BENGALURU vs. DR. M. SOMASHEKAR reported in : (2004) 1 KAR. L.J. 532) wherein, after referring to the provisions as contained in Section 94 and 131 of the Act, 1983 the Hon'ble Division Bench of this Court has summed up the situation and had held as follows: "11. We may sum up the position regarding remedies available to an employee (including a teacher) of a private educational institution thus: (i) The remedy against an order imposing the penalty of dismissal, removal or reduction in rank, is by way of appeal to the Educational Appellate Tribunal under Section 94(1). (ii) The remedy against an order imposing any other penalty, is by way of an appeal to the Competent Authority under Section 94(5) with a further appeal to the Educational Appellate Tribunal under Section 94(7). (ii) The remedy against an order imposing any other penalty, is by way of an appeal to the Competent Authority under Section 94(5) with a further appeal to the Educational Appellate Tribunal under Section 94(7). (iii) The remedy against any order of management which is not punitive in nature, is by way of revision, to the State Government under Section 131. (iv) Where an employee contends and establishes that the order of termination simpliciter or retrenchment, as the case may be, passed by the management is really an order imposing punishment/penalty of dismissal or removal, and files an appeal under Section 94(1), the Tribunal can go behind the form of the order and decide upon the true nature of the order, that is whether the order is merely what it purports to be, or whether it is a cloak for punishment/penalty, either as a disciplinary measure or as victimization. If it concludes that the order is a cloak for dismissal or removal, the appeal will be maintainable and it can proceed to hear and dispose of the appeal on merits." 18. The learned Single Judge has also taken note of the judgment of this court in the case of H.B. KOTRESH vs. STATE OF KARNATAKA AND OTHERS reported in (1998) 6 KAR.L.J. 306 wherein this Court while considering the right for payment of salary has held that against violation of the management Section 131 and 132 of the Act, 1983 provide the remedies to the persons concerned to approach the Government. 19. In this background, it has been noticed by the learned Single Judge that writ petition revolves around consideration with regard to the salaries claimed by the private respondents (3 to 6 herein) and also consideration relating to action of the management in retrenching as a ground to hold the revision petition was maintainable. 20. 19. In this background, it has been noticed by the learned Single Judge that writ petition revolves around consideration with regard to the salaries claimed by the private respondents (3 to 6 herein) and also consideration relating to action of the management in retrenching as a ground to hold the revision petition was maintainable. 20. It would be useful to refer at this juncture itself that one of the prime contentions taken by the management before the learned Single Judge as well as before this court is to the effect that there were no sufficient admissions to the 5 years Law Course and as such, the first appellant - Trust had resolved in its meeting held on 20.01.2011 to close down the 5 years Law Course for which, permission had been granted both by Government of Karnataka and Karnataka State Law University, Hubli on 08.04.2011 and 18.04.2011, which had been challenged in W.P. No. 19534-536/2011, which came to be dismissed by order dated 28.09.2012 and the appeal filed in W.A. No. 7009-7011/2012 also came to be dismissed on 26.09.2013 reserving liberty to the petitioners therein i.e., respondents-3 to 6 herein to file a revision under Section 131 of the Act of 1983 and as such, the revisional authority had entertained the revision petition No. 3/2012 and disposed of the same by order dated 07.04.2016 by directing the respondents to pay the salary. The said finding recorded by the learned Single Judge does not suffer from any infirmity either in law or on facts calling for our interference. 21. The second issue revolves around the validity of retrenchment of respondents-3 to 6. On account of respondents-3 to 6 herein being removed from service, as already noticed herein above, had approached this court by filing W.P. No. 19534-536/2011, which writ petitions came to be disposed of by following observations: "4. In view of the above submission and also in view of efficacious alternate remedy, without going into the merits, keeping open all the contentions of the parties, it is appropriate to permit the petitioners to file revision petition under Section 131 of the Act and in case such revision is filed within 30 days from the date of receipt of copy of this order, said revision petition be entertained without insisting on limitation. Accordingly, keeping all the contentions open and with liberty as above, writ petition stands disposed of." 22. Accordingly, keeping all the contentions open and with liberty as above, writ petition stands disposed of." 22. The contention raised by Sri S.M. Chandrashekhar, learned Senior counsel appearing for appellants is that the order of removal is appealable under Section 98 and as such, the revision petition was not maintainable, is an argument which at first blush would no doubt look attractive, but is not so. Section 98 or 105 of the Act, 1983 can be invoked when there is retrenchment of an employee and closure of the institution, for which prior approval is required to be obtained from the competent authority namely, State Government. In the instant case, the termination of the petitioners is on account of closure of the 5 year law course and as such, they have been retrenched. In fact, it has been contended that when permission is given by the authorities, termination on retrenchment is a consequence of the same. If this argument is considered in the background of the decision of the management to close down the institution, which came to be resolved on 20.11.2011 is perused, it would clearly indicate that it was closure of the law course alone was the subject matter of said discussion and ultimate resolution. There is not even a whisper with regard to the fate of the faculty members who were on the rolls of the second appellant - institution. Hence, the learned Single Judge has observed: "18. In the above background, xxx need not be heard. That is what in my opinion is relevant to be taken note as the present consideration by the revisional authority is in the petition that was filed based on such leave granted and that too on the issue of retrenchment. In the said appeal, it was also taken note of that the Trust is running more than 10 educational institutions of which, Law College was one." Hence, the learned Single Judge has arrived at a conclusion that procedure being followed to close down the law course due to reduction in strength, there can be no quarrel. 23. In the said appeal, it was also taken note of that the Trust is running more than 10 educational institutions of which, Law College was one." Hence, the learned Single Judge has arrived at a conclusion that procedure being followed to close down the law course due to reduction in strength, there can be no quarrel. 23. It has also been noticed by the learned Single Judge that first appellant - Trust was not running only one course and respondents-3 to 6 were not teaching purely law subjects, as a ground to affirm the order passed by the authorities, under which the management was directed to reconsider the order of retrenchment passed against respondents-3 to 6 herein by examining as to whether they could be accommodated in any other college/s run by first petitioner - Trust. Thus, contentions raised by learned Senior counsel appearing for the appellants does not hold water in the light of discussion made herein above. Hence, we proceed to pass the following: ORDER (i) W.A. Nos. 2904/2018 & 2905/2018 are hereby dismissed and order dated 03.08.2018 passed in W.P. Nos. 42513/2016 c/w 42514/2016 is affirmed. (ii) No order as to costs. Appeal Dismissed