THE PRESIDENT AND ANR vs. THE APPELLANT AUTHORITY AND ORS

1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 10TH DAY OF FEBRUARY, 2022 BEFORE THE HON’BLE MR.JUSTICE E.S.INDIRESH WRIT PETITION No.201481/2021 (S-RES) BETWEEN: 1. THE PRESIDENT, HYDERABAD

KARNATAKA EDUCATION SOCIETY

BEHIND PDA ENGINEERING COLLEGE

AIWAN-E-SHAHI, KALABURAGI-585 101 2. THE PRINCIPAL

HKE SOCIETY’S S. NIJALINGAPPA DENTAL COLLEGE

JAYANAGAR, RING ROAD

KALABURGI-585 101

... PETITIONERS (BY SRI KRUPA SAGAR PATIL & SRI SUBRAMANYA, ADVOCATES) AND: 1. THE APPELLATE AUTHORITY

AND PRINCIPAL SECRETARY

TO GOVERNMENT OF KARNATAKA

MEDICAL EDUCATION DEPARTMENT

M.S. BUILDING, BENGALURU 2. DR. KESHAV BIRADAR S/O HANMANTH RAO BIRADAR

AMBHA NIVAS, H.NO.10/38

VITTAL NAGAR, N.V. LAYOUT

KALABURAGI-585 101 3. DR. KIRAN W/O DEEPAK TOSHNIWALA

H.NO.7-11-52

“GURU”, OPP. S.B. PETROL PUMP

GUNJ COLONY, KALABURAGI-585 101 4. DR. CHANNABASAVA C/O VED PRAKASH GAMPA

PLOT NO.22, KHUBA PLOT

KALABURAGI-585 101 5. DR. BHAGIRATHI

PLOT NO.30, H.NO.2-911/12/7/30

BEHIND HANUMAN TEMPLE

PRASHANTH NAGARA

KALABURAGI-585101 6. DR. SUGANDHA SHIEH

H.NO.9-92, PLOT NO.51/2

JAYANAGAR, KALABURAGI-585 101 7. DR. CHAMING SHIEH

H.NO.9-92, PLOT NO.51/2

JAYANAGAR, KALABURAGI-585 101

... RESPONDENTS (BY SRI VIRANAGOUDA BIRADAR, AGA FOR R1; SRI P.VILASKUMAR, SENIOR COUNSEL FOR SRI NITESH PADIYAL & SRI SIDDARAM B. WADI ADVOCATES FOR R2 TO R7) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 05.04.2021 (SIGNED ON 09.04.2021) BY THE FIRST RESPONDENT IN APPEAL NO.96/2020 (ANNEXURE-Q).

THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 31.01.2022, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT MADE THE FOLLOWING:

3 ORDER

First petitioner is a society registered under the Karnataka Societies Registration Act, running various aided and unaided educational institutions.

The second petitioner is an unaided institution under the control of first petitioner’s society and the same is coming under the provisions of the Karnataka Education Act 1983 (for short ‘the Act’). The service conditions of the employees of the Private Unaided Educational Institutions are governed under the Act. Respondent Nos.2 to 7 are working as Lecturers in the second petitioner college and their salary is being paid by the first petitioner society. The contesting respondents have made claim for entitlement of salary on par with the government Lecturers and they further contended that the fourth, fifth and sixth pay commission recommendations are applicable to them. The service conditions inter alia claim of the contesting respondents for providing pay is under the provisions of The Karnataka Private Educational Institution (Discipline and Control) Rules, 1978 (hereinafter referred to as ‘the Rules’). The

4 contesting respondents approached the Appellate Authority and Principal Secretary to Government of Karnataka, Medical Education Department in Appeal No.96/2020 contending that they were appointed by the petitioner- Dental College during the period between 1990 and 1994 and the qualification prescribed for the said post was BDS degree and in the year 2007, Dental Council of India amended the minimum qualification for the teaching staff as MDS degree and the amended provisions have come into force from 27.09.2007. It is further stated in the writ petition that the petitioner-college have adopted the Dental Council of India regulations and prescribed qualification of MDS degree for the post of Lecturers. The contesting respondents, being aggrieved by the action of the aforesaid amendment, approached this Court in W.P.Nos.83558-565/2011 C/w W.P.No.83333/2011 and the writ petitions came to be allowed on 25.11.2011. Being aggrieved by the same, the petitioner-institution has challenged the same in W.A.No.10336/2011 and connected matter and the Division Bench of this Court by order dated

5 01.06.2012 dismissed the appeal and as such, confirmed the judgment passed in W.P.Nos.83558-565/2011 C/w W.P.No.83333/2011. Being aggrieved by the order passed by the Division Bench in W.A.No.10336/2011 and connected matter, the petitioners herein have approached the Hon'ble Supreme Court in SLP Nos.24731-732/2012 and the said petitions came to be dismissed. In the meanwhile, the contesting respondents have preferred contempt petitions before this Court in CCC (Civil) Nos.4013-4020/2012 and this Court, by order dated 20.09.2012 disposed of the contempt petitions by relegating the parties to approach the competent authority with regard to the disputed aspects of calculation made by the complainants therein/contesting respondent Nos.2 to 7. Pursuant to the orders passed therein, the petitioners have deposited part payment in terms of the order in W.P.Nos.83558-565/2011 C/w W.P.No.83333/2011. In the meanwhile, the contesting respondents had preferred W.P.Nos.101090-097/2013 seeking writ of mandamus, directing the petitioners herein to pay arrears of amount

6 with interest and this Court by order dated 10.04.2013, directed the government to consider the grievance of the petitioners in terms of the provisions contained under the Act. Thereafter, the contesting respondents moved contempt petitions in CCC (Civil) Nos.4273-80/2013 and the same came to be disposed of on 20.12.2013. The contesting respondents have also filed writ petitions in W.P.Nos.205135 & 205137-141/2014, seeking writ of mandamus to the petitioners herein to pay the arrears of salary with interest and also apply new pay scale and this Court by order dated 24.06.2019, disposed of the writ petitions reserving liberty to the contesting respondents to approach the competent authority. Thereafter, the contesting respondents had filed CCC Nos.200246- 251/2019 (Civil) before this Court and this Court by order dated 12.02.2020 directed the Secretary, Department of Medical Education, to comply with the directions issued in W.P.Nos.205135 & 205137-141/2014. In view of the orders passed by this Court mentioned above, the Appellate Authority, accepted Appeal No.96/2020 filed by

7 the contesting respondents and the same was refuted by the petitioners herein and finally, the appeal came to be allowed by order dated 05.04.2021 and the same was signed on 09.04.2021 (Annexure-Q). Being aggrieved by the same, the petitioners have presented this writ petition. 2. Sri Subramanya, learned counsel appearing on behalf of Sri Krupa Sagar Patil, learned counsel for the petitioners submitted that the core issue involved in this writ petition is with regard to Rule 5 of the Rules. He further contended that the pay-scale of an employee of the institution shall be corresponding to the post in the Government Educational Institution however, certain benefits like DA, CCA, HRA and other allowances cannot be equated with that of the government employees. In this regard, he referred to the law declared by this Court in the case of Sri Siddartha Educational Society vs. Tumkur District Technical Institutions Non-Teaching Employees Union and Others in W.P.No.12937/1995 disposed of on 27.11.2002. Placing reliance on the same,

8 he argued that the contesting respondents are not entitled to receive the benefits of the government employee and their allowance is as per the terms of their order of appointment. He further contended that the said judgment was reiterated by this Court in the case of The Karnataka Lingayat Education, Society and Ors., vs. Siddappa G. Namba and Ors., reported in ILR 2017 KAR 5139 and he further argued that the aforementioned judgment was confirmed by the Division Bench in the year 2018 in the case of Gadigayya and Ors., K.L.E. Society and Ors., reported in 2018(4) AKR 90. He also referred to the law declared by the Hon'ble Apex Court in the case of Satimbla Sharma and Ors., vs. St. Paul’s Senior Secondary School and Ors., reported in AIR 2011 SC 2926 and argued that the impugned order passed by the Appellate Authority requires to be set aside. 3. Nextly, Sri Subramanya, learned counsel for the petitioner contended that the issue involved in this writ petition is with regard to implementation of the order

9 dated 08.01.2014 (Annexure-H) and as such, he contended that the Appellate Authority has not discussed about the calculation made as per the orders passed by this Court referred to above and further contended that there is no discussion in the impugned order of the Appellate Authority with regard to legal position involved in the case. He further contended that there is no reason assigned by the Appellate Authority while disposing of the appeal. Therefore, he sought for interference of this Court. 4. Sri P.Vilaskumar learned Senior Counsel appearing on behalf of Sri Nitesh Padiyal, learned counsel appearing for the contesting respondents submitted that this Court by order dated 24.06.2019 in W.P.Nos.205135/2014 & 205137-141/2014, directed the petitioners herein to comply with the order dated 08.01.2014 and therefore, he contended that the Appellate Authority having taken note of the entire history of the case, has passed the impugned order which cannot be

10 faulted with. He further contended that the contesting respondents have been made to approach authorities time and again and at the instance of the petitioners herein, the contenting respondents have filed writ petitions after writ petitions and various directions have been issued in the contempt petitions, despite the same, the contesting respondents are not able to secure justice in the matter and therefore, he contended that the writ petition itself is not maintainable as the petitioners have no locus standi to challenge the impugned order passed by the Appellate Authority. 5. In the light of the submissions made by the learned counsel appearing for the parties, the point that arises for determination is, i. Whether the finding recorded by the Appellate Authority is just and proper? ii. What order?

11 6. Perusal of the writ papers would substantiate that the second petitioner-college is an unaided institution run by the first petitioner-society and therefore, coming under the purview of the Rules, 1978. Rule 5 of the Rules reads as under: “5. Scale of Pay:- The scale of pay of an employee of an institution shall not be lower than the scale of pay of an employee of a corresponding post in the Government Educational Institutions.” 7. This Court in Sri Siddartha Educational Society’s case (supra) at paragraph-22 of the said judgment has observed as follows: “22. Though Rule 5 of the Rules 1978 provide that the scale of pay of an employee of an Institution shall not be lower than the scale of pay of an employee of a corresponding post in the government educational institutions it does not ipso facto mean that the benefit of DA, CCA, HRA, and other allowances are to be paid to such employees which non-teaching staff of the government technical institutions

12 are entitled to. Rule 5 only provides for payment of scale of pay and it does not refer to any allowances. Before a set of employees could claim parity of pay scales on the principle of equal pay for equal work it has to be shown by such claimants that qualitatively and quantitatively the work which they do is the same type and nature as that of their counter parts whose pay scales are pressed into service for getting the parity. Not only that even educational qualifications must be identical. It is well settled by a series of decisions by the Supreme Court, different pay scales could be prescribed for employees having different educational qualifications. Therefore, even the aforesaid doctrine of equal pay for equal work only refers to pay and not to other allowances. In the case of MAHATMA GANDHI VIDYA PEETA, this Court was interpreting Rule 5 of Rules 1978 and it has been held that the provisions of Rule 5 would squarely apply to the petitioners who were working as non-teaching employees of the respondent society who are in the light of the said provision are entitled to the pay scales that cannot be lower than once admissible to

13 the employees holding corresponding posts in the government educational institutions. Therefore, it is clear from the aforesaid judgment also what the employees in private educational institutions are entitled to is the pay scales which are admissible to the employees working in government institutions on equivalent posts. That judgment is of no assistance to the respondents to substantiate their claim for other monetary benefits such as DA, HRA, CCA and other allowances which are outside the purview of "the pay".” (Emphasis supplied) 8. It is also relevant to extract paragraph-21 of the judgment of this I in The Karnataka Lingayat Education, Society’s case (supra): “21. The claim of the respondents as per Rule 5 of the Karnataka Private Educational Institutions (Discipline and Control) Rules, 1978, which provides that the pay of the un- aided educational institutions shall be at par with the Government employees is also of no help to the respondents. Such parity of pay does not talk of allowances like Dearness

14 Allowance, HRA, encashment of leave, etc. The learned Single Judge of this I in Sri.Siddartha Education Society v. Tumkur District Technical Institutions Non-Teaching Employees Union, MANU/KA/0374/1999 : ILR 2003 (Kar.HC) 163, (supra), vide paragraph 22 quoted above, made this position clear, but, it appears that said judgment was not brought to the notice of the Labour I at the time of decision in the impugned order passed by the Labour I.” 9. The Division Bench of this I in Gadigayya’s case (supra) at paragraph-12 has observed as under: “12. With regard to the contention that the appellants are entitled for pay and allowances on par with the government employees is also untenable. The learned Single Judge relying upon the decision of this I in the case of Sri. Siddartha Education Society Vs. Tumkur District Technical Institutions Non- Teaching Employees Union, MANU/KA/0724/2002 : ILR 2003 (Kar. HC) 163, has answered the said issue i.e., private educational institution employees are not

15 entitled for monetary benefits such as DA, HRA and other allowances on par with the government educational institutions.” (Emphasis supplied) 10. The Hon'ble Apex Court in Satimbla Sharma’s case (supra) at paragraphs-10 to 12 has observed as under: “10. In Frank Anthony Public School Employees' Association v. Union of India & Ors. (supra), relied on by learned counsel for the appellants, the scales of pay and other terms and conditions of service of teachers and other employees of the Frank Anthony Public School, New Delhi, which was a private unaided minority institution, compared very unfavourably with those of their counterparts of the Delhi Administration Schools and the Frank Anthony Public School Employees' Association sought equalization of their pay- scales and conditions of service with those of teachers and employees of Government schools. Sections 8 to 11 of the Delhi School Education Act dealt with the terms and

16 conditions of service of employees of recognized private schools. Section 10 of the Delhi School Education Act provided that the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of the recognized private schools shall not be less than those of the corresponding status in schools run by the appropriate authority. Section 12 of the Delhi School Education Act, however, provided that the provisions of Sections 8 to 11 including Section 10 were not applicable to unaided minority institutions. The case of teachers of Frank Anthony Public School was that if Sections 8 to 11 were made applicable to them, they would at least be as well off as teachers and other employees of Government schools. The Frank Anthony Public School Employees' Association therefore challenged Section 12 of the Delhi School Education Act as discriminatory and violative of Article 14 of the Constitution and this Court held that Section 12 of the Delhi School Education Act insofar as it makes the provisions of Sections 8 to 11 inapplicable to unaided minority schools is discriminatory. This

17 was thus a case in which the employees of unaided minority institutions were not given the benefits available to employees of other private institutions under Sections 8, 9, 10 and 11 of the Delhi School Education Act only on the ground that unaided minority institutions enjoy autonomy of administration under Article 30(1) of the Constitution and this Court held that this could not be a rational basis for differentiation of service conditions, pay and other service benefits between employees of unaided minority institutions and the employees of other private schools and the Court declared Section 12 as discriminatory. In other words, the State by making a statutory provision in Section 12 of the Delhi School Education Act which was discriminatory, had violated the mandate to the State under Article 14 of the Constitution not to deny the equal protection of the laws within its territories. This decision in the case of Frank Anthony Public School Employees' Association v. Union of India & Ors. (supra) does not assist the appellants in any manner because the guarantee of equality, as we have said, is not

18 available against an unaided private minority school. 11. We also do not think that the Court could issue a mandamus to a private unaided school to pay the salary and allowances equal to the salary and allowances payable to teachers of Government schools or Government aided schools. This is because the salary and allowances of teachers of a private unaided school is a matter of contract between the school and the teacher and is not within the domain of public law. In Sushmita Basu & Ors. v. Ballygunge Siksha Samity & Ors. MANU/SC/8515/2006 : [(2006) 7 SCC 680], the teachers of a recognized private school known as Ballygunge Siksha Sadan in Calcutta filed a Writ Petition in the High Court of Calcutta praying for issuance of writ of mandamus directing the authorities of the school to fix the salary of teaching and non- teaching staff of the school and to remove all anomalies in the scales of pay as recommended by the Third Pay Commission as extended to other Government aided schools and Government schools and this Court held that in the absence of statutory provision no

19 such direction can be issued by the High Court under Article 226 of the Constitution. Where a statutory provision casts a duty on a private unaided school to pay the same salary and allowances to its teachers as are being paid teachers of Government aided schools, then a writ of mandamus to the school could be issued to enforce such statutory duty. But in the present case, there was no statutory provision requiring a private unaided school to pay to its teachers the same salary and allowances as were payable to teachers of Government schools and therefore a mandamus could not be issued to pay to the teachers of private recognized unaided schools the same salary and allowances as were payable to Government institutions. 12. In K. Krishnamacharyulu and Others vs. Sri Venkateswara Hindu College of Engineering and Another (supra), relied upon by the learned counsel for the appellants, executive instructions were issued by the Government that the scales of pay of Laboratory Assistants as non-teaching staff of private colleges shall be at par with the government employees and this Court held

20 that even though there were no statutory rules, the Laboratory Assistants as non- teaching staff of private college were entitled to the parity of the pay-scales as per the executive instructions of the Government and the writ jurisdiction of the High Court under Article 226 of the Constitution is wide enough to issue a writ for payment of pay on par with government employees. In the present case, there are no executive instructions issued by the Government requiring private schools to pay the same salary and allowances to their teachers as are being paid to teachers of Government schools or Government aided schools.” (Emphasis supplied) 11. Recently, the Hon'ble Apex Court in the case of State of Maharashtra vs. Bhagwan in Civil Appeal No.7682/2021 decided on 10.01.2022 at paragraph- 10.5 to 10.7 held as follows: “10.5. In the present case, WALMI being an autonomous body, registered under the Societies Registration Act, the employees of

21 WALMI are governed by their own Service Rules and conditions, which specifically do not provide for any pensionary benefits; the Governing Council of WALMI has adopted the Maharashtra Civil Services Rules except the Pension Rules. Therefore, as such a conscious policy decision has been taken not to adopt the Pension Rules applicable to the State Government employees; that the State Government has taken such a policy decision in the year 2005 not to extend the pensionary benefits to the employees of the aided institutes, boards, corporations etc.; and the proposal of the then Director of WALMI to extend the pensionary benefits to the employees of WALMI has been specifically turned down by the State Government. Considering the aforesaid facts and circumstances, the High Court is not justified in directing the State to extend the pensionary benefits to the employees of WALMI, which is an independent autonomous entity. 10.6. The observations made by the High court that as the salary and allowances payable to the employees of WALMI are being paid out of the Consolidated Fund of the State

22 and/or that the WALMI is getting grant from the Government are all irrelevant considerations, so far as extending the pensionary benefits to its employees is concerned. WALMI has to run its administration from its own financial resources. WALMI has no financial powers of imposing any tax like a State and/or the Central Government and WALMI has to depend upon the grants to be made by the State Government. 10.7. Now, so far as the observations made by the High Court that the amount available with WALMI and deposited with E.P.F. towards the employee's contribution itself is sufficient to meet the financial liability of the pensionary benefits to the employees and, therefore, there is no justification and/or reasonable basis for the State Government to refuse to extend the benefit of pension to the retired employees of WALMI is concerned, it is to be noted that merely because WALMI has a fund with itself, it cannot be a ground to extend the pensionary benefits. Grant of pensionary benefits is not a one-time payment. Grant of pensionary benefits is a recurring monthly expenditure and there is a continuous

23 liability in future towards the pensionary benefits. Therefore, merely because at one point of time, WALMI might have certain funds does not mean that for all times to come, it can bear such burden of paying pension to all its employees. In any case, it is ultimately for the State Government and the Society (WALMI) to take their own policy decision whether to extend the pensionary benefits to its employees or not. The interference by the Judiciary in such a policy decision having financial implications and/or having a cascading effect is not at all warranted and justified.” (Emphasis supplied) 12. In the light of the settled principles referred to above, this Court in W.P.Nos.205135/2014 & 205137- 141/2014 directed the Secretary, Health and Family Welfare Department to comply with the letter dated 08.01.2014 (produced as Annexure-H). This Court has accepted that the contesting respondents were getting salary in terms of Rule 5 of the Rules in W.P.Nos.83558- 565/2011 C/w W.P.No.83333/2011 disposed of on

24 25.11.2011. The said order of the Learned Single Judge was confirmed by the Division Bench of this Court in W.A.No.10336/2011 and connected matter and confirmed by the Hon'ble Apex Court in SLP Nos.24731-732/2012 dated 22.08.2012. While dismissing the Special Leave Petitions, the Hon'ble Supreme Court observed as follows: “At this stage, Mr. Basavaprabhu S. Patil learned Senior Counsel appearing for the petitioners prays that some time may be granted for payment of arrears of increment and dearness allowance. In the interests of justice, we grant four weeks’ time to the petitioners to comply with the directions contained in the impugned judgment.” 13. This Court while disposing of the contempt petition in CCC (Civil) Nos.4013-4020/2012 at paragraphs- 15 to 19 of the judgment has observed as under: “15. Contempt jurisdiction cannot be used as a jurisdiction in terrorem to terrorise any person to succumb or to put any person to the position of compliance. A perusal of the

25 order of the learned Single Judge does not indicate what is the precise benefit in terms of entitlement of quantification given in the order. While it is claimed on behalf of complainants that their entitlement is to the tune of `80 to `90 lakh, on the other hand, Accused persons have asserted that it is the precise figure of `11,22,637/-. 16. It is not possible for us while exercising contempt jurisdiction to adjudicate these disputed aspects or to examine in detail or scrutinise the particulars of calculations made either by the complainant or by the accused persons. 17. While complainants have placed certain certificates issued by one Deepak P. Ramdas, Income Tax & Sales Tax Consultant to buttress their claim as per their version of entitlement towards `80.00 to `90.00 lakh together, the Accused persons before this Court made a statement prepared and filed by 2nd Accused - Principal HKES, S. Nijalingappa Institute of Dental Science and Research - the details of the entitlement of the complainants.

26 18. Obviously there is controversy/difference between the two and it is not possible for us to look into these disputed aspects to ascertain whether the calculation of complainants is right or that of the Accused persons is correct and to what extent it calls for further examination etc. 19. In the circumstances, while we do not propose to examine the Contempt Petition any further, it is open for the complainants to workout the dispute before any other forum in accordance with law, either under the provisions of Karnataka Education Act 1983 or under any other permitted process of law. With this observation this Contempt petitions are dismissed.” (Emphasis supplied) 14. In the light of the aforementioned orders, I carefully considered the impugned order passed by the Appellate Authority. Perusal of the same would indicate that the Appellate Authority has not applied its mind in terms of the order passed by the Division Bench of this Court in contempt petition and without making any

27 discussion with regard to the payment to be made to the contesting respondents herein, abruptly jumped into the conclusion that the contesting respondents are entitled for sum of money referred to at the operative portion of the impugned order. There is no discussion by the Appellate Authority how the claim of the contesting respondents was considered similar to the government dental college teaching staff, despite the fact that second petitioner herein is a private unaided educational institution governed under the provisions of the Rules. That apart, there is no calculation made by the Appellate Authority and as to how and in what manner the said quantification of sum has been made by the first respondent in the operative portion of the impugned order is not known to the petitioners nor to the contesting respondents. The order impugned is without reasons relating to calculation. In that view of the matter, I am of the view that the writ petition deserves to be allowed, remanding the matter to the Appellate Authority-First respondent, to redo the exercise in accordance with law, in the light of the orders passed by

28 this Court and the Hon'ble Apex Court referred to above, within an outer limit of six months from the date of receipt of certified copy of this order. 15. In the result, the following order is passed: ORDER i. Writ petition is allowed; ii. Order dated 05.04.2021 signed on 09.04.2021 by the First respondent is quashed; iii. Matter is remanded to the First respondent to consider the claim of the contesting respondents in accordance with law, within an outer limit of six months from the date of receipt of certified copy of this order. SD/- JUDGE NB*