Dismissed

Shri T Thimmaiah v. the State of Karnataka

Karnataka HC12 Dec 2023WP/5491/2012

Case brief

AI extract

What is this about?

The Court upheld Rule 23(2) of the Karnataka Pre-University Education Rules, 2006, allowing the Government to transfer surplus aided staff to another aided institution without management consent. The Management's writ petition was dismissed. The Court also held that an employee holding an aided post is entitled to salary even if no work was provided, allowing T.Thimmaiah's petition for back wages.

What did the court decide?

W.P.No.11266/2010 dismissed. W.P.No.5491/2012 allowed; legal representatives of T.Thimmaiah entitled to salary for period 23.07.2008 to 16.02.2011.

Shri T Thimmaiah Vs the State of Karnataka — Service and Employment | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON’BLE MR JUSTICE N S SANJAY GOWDA

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WRIT PETITION No.5491/2012 C/W WRIT PETITION No.11266/2010 (S-RES)

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IN W.P.No.5491/2012:

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BETWEEN:

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SHRI.T.THIMMAIAH, S/O THIMMASIDDAIAH, AGED 52 YEARS, NOW WORKING AS SECOND DIVISION ASSISTANT, SRI.SIDDESHWARA RURAL COMPOSITE COLLEGE, KESTHUR, TUMKUR TALUK AND DISTRICT. SINCE DECEASED

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1(a) SMT. MANJULA (2^ND WIFE) W/O LATE THIMMAIAH, AGED ABOUT 30 YEARS,

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Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA

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1(b) SRI.PRAKASH.T., S/O LATE THIMMAIAH, AGED ABOUT 26 YEARS,

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1(c) KUMARI. PAVITHRA.T., D/O LATE THIMMAIAH, AGED ABOUT 10 YEARS, (MINOR) REPRESENTED BY HER MOTHER NATURAL GUARDIAN.

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ALL ARE RESIDING AT SUGGAIAYANAPALYA, SOMPURA HOBLI, NDAVANDA POST, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT-562 111.

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…PETITIONERS

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(BY SRI. HAREESH.T.BHANDARY., ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, REPRESENTED BY ITS PRINCIPAL SECRETARY-I, DEPARTMENT OF PRIMARY AND SECONDARY EDUCATION, M.S.BUILDING, AMBEDKAR VEEDHI, BANGALORE-560 001.

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THE DEPUTY SECRETARY, AND APPELLATE TRIBUNAL, DEPARTMENT OF PRIMARY AND SECONDARY EDUCATION, M.S.BUILDING, AMBEDKAR VEEDHI, BANGALORE-560 001.

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THE COMMISSIONER, DEPARTMENT OF PRE-UNIVERSITY EDUCATION, 18^TH CROSS ROAD, SMAPIGE ROAD, MALLESHWARAM, BANGALORE-560 003.

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THE JOINT DIRECTOR, (ADMINISTRATION) DEPARTMENT OF PRE-UNIVERSITY EDUCATION, 18^TH CROSS, ROAD, SAMPIGE ROAD, MALLESHWARAM, BANGALORE-560 003.

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THE DEPUTY DIRECTOR, DEPARTMENT OF PRE-UNIVERSITY EDUCATION, TUMKUR DISTRICT, TUMKUR.

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THE SECRETARY, SIDDESHWARA RURAL EDUCATIONAL TRUST. KESTHUR, TUMKUR TALUK AND DISTRICT.

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…RESPONDENTS (BY SRI.HARISH.A.S, AGA FOR R-1 TO R-5; SRI.M.P.SRIKANTHA, ADVOCATE FOR R-6)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER ISSUED BY THE FOURTH RESPONDENT WHICH IS APPROVED BY THE THIRD RESPONDENT DATED 19.01.2012 VIDE ANNEXURE-D, ETC.

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IN W.P.No.11266/2010:

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BETWEEN:

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SRI SIDDESHWARA RURAL EDUCATION SOCIETY KESTURU, TUMKUR TALUK, TUMKUR.

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REPRESENTED BY ITS SECRETARY.

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SRI.K.N.HANUMANTHARAYA, AGED ABOUT 46 YEARS, PEON SRI SIDDESHWARA RURAL COMPOSITE PRE-UNIVERSITY COLLEGE, KESTURU, TUMKUR TALUK, TUMKUR.

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…PETITIONERS

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(BY SRI. M.P.SRIKANTH, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF PRIMARY & SECONDARY M.S.BUILDING, DR.AMBEDKAR VEEDHI, BANGALORE-560 003.

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THE DEPUTY SECRETARY TO GOVERNMENT, DEPARTMENT OF PRIMARY & SECONDARY M.S.BUILDING, DR.AMBEDKAR VEEDHI, BANGALORE-560 003.

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THE COMMISSIONER, PREUNIVERSITY EDUCATION DEPARTMENT 18^TH CROSS, MALLESWARAM, BANGALORE-560 003.

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THE DEPUTY DIRECTOR, PRE UNIVERSITY EDUCATION, TUMKUR.

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SRI.T.THIMMAIAH, AGE:MAJOR, SECOND DIVISION ASSISTANT, VIJAYALAKSHMI PRE UNIVERSITY COLLEGE, BALELE, KODAGU TALUK, MADIKERI DISTRICT.

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SINCE DECEASED

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5(a) SMT. MANJULA (2^ND WIFE) W/O LATE THIMMAIAH, AGED ABOUT 30 YEARS,

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5(b) SRI.PRAKASH.T., S/O LATE THIMMAIAH, AGED ABOUT 26 YEARS,

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5(c) KUMARI. PAVITHRA.T., D/O LATE THIMMAIAH, AGED ABOUT 10 YEARS, (MINOR) REPRESENTED BY HER MOTHER NATURAL GUARDIAN.

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ALL ARE RESIDING AT SUGGAIAYANAPALYA, SOMPURA HOBLI, NDAVANDA POST, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT-562 111.

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Note:Vide Order dated:04.09.2023. Since the legal representatives of the deceased T.Thimmaiah are already on record in W.P.No.5491/2012, they shall be treated as the LRs of R-5 in W.P.11266/2010

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…RESPONDENTS (BY SRI.HARISH.A.S, AGA FOR R-1 TO R-4; SRI.HAREESH.T.BHANDARY, ADVOCATE FOR LRs., OF DECEASED R-5)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED:23.03.2010 PASSED BY THE R-2 ON APPEAL No.59 OF 2008 VIDE ANNEXURE-U, ETC.

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THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 04.09.2023, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING

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ORDER

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On 07.07.2003, in M.A. (EAT No.3/2001) the Educational Appellate Tribunal passed an order in favour of T.Thimmaiah (respondent No.5 in W.P.No.11266/2010 and

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the petitioner in W.P.No.5491/2012), directing that the Second Division Assistant, who was working in Shri. Krishna Pre-University College, Dabbaspete, be transferred to Vijayalakshmi Pre-University College, Balele, Kodagu Taluk, to hold the post which had fallen vacant as a result of the retirement of the incumbent i.e., Sri. B.N. Ganapathi.

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Pursuant to the said order, the Director of PreUniversity Education passed an order transferring T.Thimmaiah to Vijayalakshmi Pre-University College,

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Balele, since a post had fallen vacant pursuant to the retirement of B.M.Ganapathi, and T.Thimmaiah

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accordingly reported for duty on 23.06.2005.

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On 12.06.2006, the Principal of Vijayalakshmi PreUniversity College addressed a letter to the authorities stating that there was no workload for T.Thimmaiah and therefore, it would be proper to transfer him to any other Pre-University College.

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Pursuant to the said recommendation, the authorities, thereafter, sought the approval of the Government for transferring T.Thimmaiah, and the Government accorded its approval on 07.08.2006. The authorities, thereafter, called upon Sri.Siddeshwara Charitable Registered Trust who was running Siddeshwara Composite Pre-University College at Kesthur, to accept the transfer of T.Thimmaiah since one Chandrashekar, a Second Division Assistant who was holding the post in that College, had passed away.

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The College, in turn, responded stating that in their college, there was an existing ‘D’ Group employee eligible for promotion and they intended to fill up the said post by granting promotion, and therefore, they were not prepared to give their No Objection Certificate for transfer.

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It appears that the authorities, thereafter, sought to ascertain whether there was any vacant post in the Second Division Assistant posts in the Districts, but they found that there was no vacant post available and consequently, it was found that Sri.Siddeshwara PreUniversity College at Kesthur was the only College which had a vacant Second Division Assistant post due to the death of an incumbent employee therein.

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The Government, in view of the fact that the only vacancy for sanction of Second Division Assistant post was available at Sri.Siddeshwara Pre-University College, proceeded to pass an order on 14.07.2008, transferring T.Thimmaiah as a Second Divisional Assistant and this order was passed in exercise of its powers conferred under

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Rule 23(2) of the Karnataka Pre-University Education (Academic institution administration and grant-in-aid) Rules, 2006 (hereinafter referred to as “the 2006 Rules” ).

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Being aggrieved by this order of transfer, Sri.Siddeshwara Rural Education Society and K.Hanumanthaiah, who was working as a Peon in Sri.Siddeshwara Rural Pre-University College, have filed this Writ Petition. Apart from seeking quashing of the order of transfer, a prayer is also sought to direct the authorities to approve the promotion of petitioner to the post of a Second Division Assistant.

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The petitioner has sought, by way of an amendment of the Writ Petition, to raise additional grounds, along with a prayer to declare that Rule 23(2) of 2006 Rules is ultra vires the provisions of the Karnataka Education Act, 1983 (“ the Act ”, for short).

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Two years after the abovementioned Writ Petitions were filed, T.Thimmaiah has preferred Writ Petition No.5491/2012 on 17.02.2012, seeking quashing of the communication dated 19.01.2012, by which his claim for payment of wages for the period between 23.07.2008 and 16.02.2011 was refused on the ground that he was not working in the said period and had reported for duty at Siddeshwara Pre-University College only on 17.02.2011. A prayer is also sought to issue a mandamus directing the Commissioner of Pre-University Education Department to release his salary for the period between 23.07.2008 16.02.2011.

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It is T.Thimmaiah’s contention that pursuant to the order of transfer dated 14.07.2008, which was challenged by the Management, he tried to report for duty but the Management did not allow him to join the institution and discharge his duties, but on the contrary, they had challenged his transfer by preferring an appeal in Appeal No.59/2008 and the Appellate Authority, by an order

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dated 28.03.2010, refused to entertain the appeal and directed the Management to take T.Thimmaiah into service, while also holding that he was entitled to backwages. It is his contention that despite the order, the Management, instead of taking him back to duty, has proceeded to file a Writ Petition and since this Court refused to grant an interim order, he was taken into duty.

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T.Thimmaiah contends that he was working in an aided institution and that his salary was paid by the Government, but since he had been treated as excess staff, he was transferred from one institution to another and was only allowed to join duty on 17.02.2011, meaning that for the period between 23.07.2008 and 16.02.2011, he had not been paid any salary. T.Thimmaiah contends that for no fault of his, he was denied work and due to the inability of the authorities to provide him an employment, he cannot be denied his salary on the ground that he did not discharge his duties.

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Sri.M.P.Srikanth, learned counsel appearing for the Management, contended that Rule 23(2) which enables the Commissioner/Director Pre-University Education to transfer any Teaching and Non-Teaching Personnel working in an aided Pre-University College (who were found to be surplus due to lack of workload) to another aided Pre-University College, scuttles the right of the Management to administer the institution.

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It is his contention that this Rule is contrary to Section 98(2) of the Act, which requires the State Government to appoint a person to a similar post in another aided institution. He submits that since Section 98(2) of the Act mandates that an appointment shall be made to a post which became vacant pursuant to retrenchment, the Rule which enables the Director to transfer an employee of one aided institution to another, where a post was vacant, would be illegal.

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It is also contended that the Management would

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have the right to choose its employee and the entire

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process of recruitment would have to be undertaken by the Management, subject, of course, to the approval of the Government, and this would mean that the Government has the power to impose on any person working in an institution to be an employee of another institution. It is contended that the Government, by virtue of this action, has virtually become a de facto regulator of all aided educational institutions and this is contrary to the provisions of the Act, which confers the power on the Governing Council to appoint employees.

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He relied upon the judgment rendered by a Coordinate Bench of this Court in Sri Taralabalu Jagadguru Education Society¹ to contend that this Court had laid down the law that the Government cannot take away the responsibility of appointment of staff of an institution. He also submitted that this judgment was in consonance with

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1 Sri Taralabalu Jagadguru Education Society, Sirigeri, Chitradurga District v. State of Karnataka and Others, (2005)1 KLJ 361.

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the decision of the Hon’ble Supreme Court rendered in the

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case of T.M.A. Pai Foundation² .

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He also stated that a Co-ordinate Bench of this Court, in W.P.No.33101 of 2014 and connected matters, had read down Section 98 of the Education Act to the effect that in the matter of allocating / transferring an employee from one institution to another, the same could be done only with the consent of the Governing Council. It was sought to be contended that the transfer of an employee virtually amounts to imposing an employee on an unwilling employer and that the same is impermissible.

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The State, per contra , contends that by virtue of the statutory rules framed in exercise of powers conferred under the Education Act and also by virtue of the fact that the salaries for the sanctioned posts were borne by the Government across the State, the State has been given the absolute right to ensure that the employees drawing

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2 T.M.A. Pai Foundation and Others vs. State of Karnataka and Others., (2002) 8 SCC 581.

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salary out of the State exchequer are utilized completely and in this regard, where it was found that there was insufficient workload for an employee in one institution, in order to ensure that the aid that is granted by the Government is put to complete use, such surplus staff are permitted to be accommodated in any other institution which is also aided and where a post is vacant. It is submitted that such kind of appropriation and management of manpower with respect to a person who is drawing salary from the State Government cannot, in any way, be considered as illegal or arbitrary.

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It is also contended that the provisions in the Cadre and Recruitment Rules (“ the C and R Rules ”, for short) were amended to state that posts cannot be kept vacant for more than one year, and the Management of an institution, which does not bear the burden of paying such employee’s salary, cannot contend that it has a right to transfer an employee and therefore, a transfer cannot be effected.

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As far as the legality of the provision is concerned, it is submitted that the 2006 Rules have been framed in exercise of statutory power conferred under Section 145 of the Act, and as a matter of fact, Section 87 of the Act makes it clear that the State Government can make Rules regulating the recruitment and conditions of service, including the rights as regards disciplinary matters of the employees in recognized private educational institutions and such statutory rules would have to be accepted. It is contended that if the State has been conferred with the power to frame rules, the legislative competence of the same cannot be questioned.

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It is contended that the argument that Rule 23(2) of the 2006 Rules is in contravention of Section 98(2) of the Act is wholly misconceived. It is submitted that Section 98 relates to retrenchment of an employee and it cannot be in dispute that retrenchment means the termination of service for a reason which is not attributable to the employee or even the employer. It is contended that the

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concept of retrenchment cannot be made applicable to a case where a post falls vacant due to the death, resignation or retirement of an employee.

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It is contended that Section 98 of the Education Act basically permits retrenchment of any employee, subject to the prior approval of the competent authority and where such retrenchment is effected, the State Government is required to accommodate such retrenched employee to a similar post available in any other aided educational institution and therefore, the State cannot have absolute application in cases where post falls vacant.

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It is contended that the power of transfer from one institution to another institution in respect of the posts, which are admitted to a salary grant, would lie within the domain of the Government, since the Government is bearing the cost of the employee. It is contended that it is the absolute prerogative of the Government to ensure that the posts that it had approved for grant is utilized to its fullest extent and in this context, the State would have the

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power to transfer staff from one institution to another when it is found that the staff did not have requisite workload.

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It is also contended that the decisions relied upon are completely inapplicable and having regard to the fact that Chapter-V of the 2006 Rules comprehensively take care of every situation in relation to an aided College, it is, therefore, not open for the Management to contend that the State Government does not have the power to transfer an employee.

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In light of the above contentions advanced, the

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questions that would have to be considered in these Writ Petitions are:

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i. Whether the Management of an educational

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institution can challenge the power of the Government to transfer an employee from one aided institution to another aided institution?

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ii. Whether Rule 23 (2) of the 2006 Rules is

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illegal and arbitrary and liable to be struck down?

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In respect of the petition filed by T.Thimmaiah, the point that would arise for consideration is:

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Whether T.Thimmaiah can be denied salary for the period 23.07.2008 to 16.02.2011 on the ground that he had not discharged his duties in an aided institution?

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As far as the petition filed by the Management is concerned, it would be appropriate to have an overview of the provisions of the Act, insofar as it relates to the terms and conditions of service of employees in private educational institutions enumerated in Chapter-XIV of the Education Act, for a proper understanding of the issues raised in these petitions.

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Section 87 of the Act enables the Government to make Rules to regulate the recruitment and conditions of

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service, including the rights, as regards disciplinary matters of the employees in recognized private educational institutions. Thus, the Rules that are framed by the Government would govern the qualifications and conditions of service of every employee of a private educational institution. This would, therefore, indicate that the Management does not, by itself, have an independent right to govern the conditions of service of its employees and they are determined by statutory rules governed by the Government.

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Section 88 of the Education Act prohibits any person from being appointed to a private educational institution, unless that person possesses the requisite qualifications prescribed under Section 87 of the Education Act.

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Section 89 of the Education Act states that the pay and allowances given to persons employed in recognized private institutions should be paid on or before such day of every month as may be prescribed by the Government.

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Section 90 mandates that every institution should maintain a schedule of employees indicating the number of persons in its employment, the name and qualification of each employee and the grade of pay, along with any other particulars as may be prescribed.

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These provisions, when read collectively, would indicate that though the institution is managed by a Committee, the terms and conditions of service of its employees (including the pay scale) are governed completely by the statutory rules.

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Section 91 of the Act states that every employee would be governed by the prescribed Code of Conduct and if there was any violation of such provisions, he/she is liable to be subjected to the prescribed disciplinary action. Sub-section (2) of Section 91 makes it clear that the Managing Committee, with the prior approval of the State Government, can also prescribe standards of conduct to be observed by the employees. Thus, even in respect of the conduct of an employee, the same would be as per the

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rules framed by the Government. In case the Managing Committee desires to impose its own standards of conduct on the employees, they are required to be applied only after the State Government approves it and only if they are not inconsistent with the Code of Conduct framed by the Government.

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Section 92 of the Act bars the dismissal, removal or reduction in rank of an employee of an institution unless it is made in accordance with the conditions of service governing them and after an enquiry has been conducted, wherein an employee has been informed of the charges against him and has been afforded reasonable opportunity of being heard in the matter.

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Sub-section (2) of Section 91 also mandates that no penalty shall be imposed unless the employee is informed in writing of the proposal to take action and is given an opportunity to make any such representation, and a penalty could be imposed only after such representation is concerned.

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Sub-section (3) of Section 96 confers on the Managing Committee the power to suspend an employee in the circumstances stated therein, but it is made clear that such suspension shall not remain in force for more than six months and in case the enquiry is not completed within six months, the Secretary of the Committee is required to report the matter to the competent authority, which may permit extension of such suspension. The provision also makes it clear that the Managing Committee is required to forthwith report to the competent authority the circumstances under which the order was made, and it also states that every employee who was placed under suspension would be entitled to subsistence allowance.

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These provisions, therefore, make it clear that whether a private educational institution is aided or unaided, the terms of recruitment, conditions of service, code of conduct and the manner in which they have to be proceeded against by way of initiating disciplinary action or removed from service, are all governed by statutory

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rules, and in this entire process, prior approval of the competent authority is a must. The provisions relating to Chapter-XIV do not confer any independence on a private educational institution to prescribe its own terms and conditions for employing or removing an employee of the institution.

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To put it in other words, the power of the Management in respect of prescribing the conditions of service is virtually non-existent and is completely dependent on the Rules framed by the State Government, even if the salaries of the employees are borne by the institution.

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It is, therefore, clear that even in cases where the expenses of an entire establishment such as salaries, allowances, etc. are borne by the Managing Committee, it cannot independently take a decision which affects the conditions of service of any employee. Such conditions of service are completely governed by the Rules framed

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under the Act and is subject to the supervision of the authorities as prescribed under the Act.

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Section 94 of the Act provides for an appeal to the Educational Appellate Tribunal against dismissal, removal or reduction in rank of an employee. Section 97 of the Act provides for the manner in which an employee can submit his resignation to the Governing Council of an institution.

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It is, therefore, clear that not only recruitment but also removal of an employee (including resignation) is governed by the provisions of the Act.

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Section 98 of the Act provides for retrenchment of employees. It states that if retrenchment of any employee is found necessary by the Governing Council as a result of any change relating to education or course of instruction or due to any other reason, retrenchment can be affected only with the prior approval of the competent authority or the next higher authority, as the case may be. In other words, if an institution finds it necessary to terminate the

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services of an employee for any reason ( including, for example: the closure of a particular course of study ), the same can be effected only if the competent authority under the Act accords approval.

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In this regard, the meaning of the term “retrenchment” becomes essential. The Rules in relation to the Pre-University Colleges are also silent about the aspect of ‘retrenchment’ in a Pre-University College. However, it would be beneficial to look into the Rules that have been framed in respect of retrenchment of employees of private aided primary and secondary educational institutions as per the Karnataka Educational Institutions (Recruitment and Terms and conditions of Service of Employees in Private Aided Primary and Secondary Educational Institutions) Rules, 1999 (for short, “ the 1999 Rules ”).

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Though these Rules cannot be applicable to PreUniversity Colleges, the Principle that the Rule-maker envisaged when it came to the point of retrenchment can

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be gathered from the Rules and hence, the same are being referred to.

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45. Rule 10 of the 1999 Rules reads as follows:

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“ 10. Retrenchment of employees:-

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(1) An employee in an Institution may be retrenched by the Governing Council on the following grounds:

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(a) Where the teacher pupil ratio falls below the Standard Staffing Pattern specified in Annexures IV and V, as the case may be.

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(b) Due to changes relating to curriculum or student strength the workload of a teacher in a particular subject does not warrant his continuation in a particular institution.

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(c) Closure of school due to lack of infrastructural facilities, dispute within the management or between management and teachers or any other reasons which may be recorded in writing.

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(d) The employee does not possess the required educational qualification.

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(e) Where the competent authority or the Government deletes the post

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from salary grant for the reasons to be recorded in writing.

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(f) For any of the above or for any other reason as the Government may deem fit which may be recorded in writing.

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(2) The procedure to be followed by the Governing Council for retrenchment of an employee of an Institution shall be as follows:

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(a) no employee of an Institution whose appointment has been approved with aid by the Department shall be retrenched by a Governing Council except for reasons specified in sub-rule (1) or section 98 of the Karnataka Education Act, 1983.

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(b) Where retrenchment is due to the employees becoming surplus, the junior-most employee in terms of seniority list maintained in accordance with the rule 8 in the particular cadre and subject, shall be retrenched.

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(c) A notice shall be issued to the employee proposed to be retrenched stating the reasons in writing for such retrenchment, giving the employee an opportunity to submit his written statement of objection if any

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within fifteen days from the receipt of such notice.

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(d) On receipt of the written objection received from the employee, he shall be afforded an opportunity to explain his stand in person if such request has been made by him/her in the written statement.

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(e) The Governing Council shall on the basis of grounds so established send proposals to the competent authority.

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(f) The Competent Authority shall on receipt of the proposal verify the same and after ascertaining the facts, that—

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(i) the reason stated in the proposal are in conformity with the reasons stated in sub-rule (1);

¶169

(ii) that the employee is junior-most as per the seniority list maintained by the management in the particular subject and cadre;

¶170

(iii) accord approval to the Governing Council to retrench the employee so proposed by giving one month’s notice or one month’s salary in lieu of the same.

¶171

(g) The Competent Authority shall thereafter withdraw salary grant in respect of such excess / retrenched staff.

¶172

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(3) If the Governing Council does not send the proposal, in accordance with clause (e) of sub-rule (2) the Competent Authority may give directions to the Governing Council to send proposals within a period of one month, failing which salary grants in respect of the entire institution shall be withdrawn forthwith. ”

¶174

As could be seen from the above, Rule 10(1) states that an employee in an institution could be retrenched by the Governing Council on six specified grounds. The grounds specified are:

¶175

(a) Where the teacher pupil ratio falls below the Standard Staffing Pattern specified in Annexures IV and V, as the case may be;

¶176

(b) Due to changes relating to curriculum or student strength the work load of a teacher in a particular subject does not warrant his continuation in a particular institution;

¶177

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(c) Closure of school due to lack of infrastructural facilities, dispute within the management or between management and teachers or any other reasons which may be recorded in writing;

¶180

(d) The employee does not possess the required educational qualification;

¶181

(e) Where the competent authority or the Government deletes the post from salary grant for the reasons to be recorded in writing; and

¶182

(f) For any of the above or for any other reason as the Government may deem fit which may be recorded in writing.

¶183

“Retrenchment” under the Industrial Disputes Act, 1947 (hereinafter referred to as “ the I.D. Act ”) reads as follows-

¶184

“Retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include—

¶185

(a) voluntary retirement of the workman; or

¶186

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(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or

¶188

(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or]

¶189

¶190

Though a definition under the I.D. Act cannot be

¶191

applied to this Act, for understanding the meaning of the term “ retrenchment ”, the said provision is also considered in this judgment. As could be seen from the definition of retrenchment in a statute relating to the I.D. Act which governs the conditions to the workmen in industry, it becomes clear that “ retrenchment ” means the termination of services of any employee. The termination could, inter

¶192

alia , be due to surplus labour, surplus staff, lack of financial capacity of the employer to pay the employee. The essential attribute of retrenchment is that the services

¶193

of an employee come to an end but it is not a reason

¶194

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attributable to the performance or conduct of the employee.

¶196

However, the provisions of the Act do not permit the termination of such employment unless there is approval by the competent authority. Sub-section (2) of Section 98 goes on to state that if such retrenchment is effected after obtaining approval, the person retrenched is required to be appointed to a similar post in any other aided educational institution, subject to availability. Thus, even if an employee is terminated with the approval of the competent authority, nevertheless, such retrenched employee is required to be accommodated in another aided institution.

¶197

Thus, it is clear that retrenchment of an employee

¶198

would be for a reason which is not attributable to the employee in any way.

¶199

From a plain understanding of the term “ retrenchment ”, the services of an employee are required

¶200

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to come to an end with the employer. A situation where an employee has no workload and the law mandating that such an employee is required to be appointed to another establishment, cannot be construed as a case of retrenchment.

¶202

It is, therefore, clear that the concept of retrenchment, as indicated in the statutory Rules, would be attracted only when laying off an employee has become necessary due to reasons beyond the control of the employer and the employee. In a case where a school is aided and the salary of the employee is borne by the State, and the law governing the school which mandates that a school which cannot continue the services of such employee is required to be accommodated in another school, can never come within the concept of retrenchment.

¶203

Section 99 of the Act mandates that if the service of an employee is retrenched or terminated by the Governing Council for reasons other than as a measure of

¶204

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¶205

punishment, the retrenched or terminated employee would be entitled for compensation at the rate of 15 days’ salary for every completed year of service, subject to a minimum of three months and a maximum of 15 months’ salary. Thus, even if the services of an employee are terminated for any reason other than by way of punishment, the law provides for grant of financial compensation.

¶206

Section 100 of the Act states that the provisions of Chapter XIV would have an overriding effect, notwithstanding anything contained in any law that may be in force or any award, agreement or contract made before or after the date of commencement of the Act. It is, therefore, clear that the service conditions of an employee would be governed by the provisions of Chapter 14 and not by any other law or contract for service.

¶207

Section 101 of the Act states that if the competent authority has formed an opinion that a disciplinary action against an employee is necessary, it is empowered to direct the Governing Council to take action within a

¶208

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¶209

specified period and if such action is not taken, the competent authority is empowered to report the matter to the State Government, and the State Government, after considering the report, may specify a person or the authority to take disciplinary action against the employee and the person or authority appointed by the Government is conferred with the power to take disciplinary action and also impose any of the penalties that the Governing Council may impose. Thus, in respect of an educational institution (with or without grant) a provision is made where the competent authority is empowered to direct initiation of disciplinary action against an employee and if such action is not taken, the competent authority is permitted to report to the Government, and the Government is thereupon empowered to initiate disciplinary action through a specified person and also who, in turn, would be empowered to impose penalty on such employee of an institution.

¶210

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¶211

Thus, even if there is no relationship of an employer

¶212

and employee between the employee of a private recognized institution and the State Government, by virtue of Section 99, the authorities are permitted to direct initiation of disciplinary action against an employee and failing compliance with such direction, the State Government is empowered to appoint a person to take disciplinary action and impose penalty on the delinquent employee. This indicates that a deemed relationship of employer-employee is created by virtue of Section 101 and the State Government is given the power to ensure that the conduct of an employee of a private recognized educational institution is probed into and punished, if the allegations are found to be proved.

¶213

A complete reading of the provisions of this Chapter would, therefore, indicate that in respect of a private educational institution, an employee’s service conditions are clearly governed by the Rules prescribed under the

¶214

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¶215

Statute and ultimately, the Government would have an oversight of the entire process.

¶216

It is to be borne in mind that this is applicable to both categories of institutions, those which are admitted to aid and those which are not admitted to aid.

¶217

In respect of Pre-University Colleges, the 2006 Rules have been framed. For the purposes of this Writ Petition, Chapter V would be relevant.

¶218

Rule 15 indicates the manner of recruiting teaching and non-teaching staff and states that a Managing Committee would be competent to appoint the teaching and non-teaching staff, subject to compliance of the reservation roster prescribed by the Government.

¶219

The Rules pertaining to Chapter-V provide for recruitment, procedure for recruitment, the mode of notifying the vacancies, and also promotion to the cadre of lecturers and to the post of a Principal.

¶220

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For the purpose of this case, Rule 21 of the 2006

¶223

Rules would be relevant and the same reads as under:

¶224

“ 21. Grant-in-aid to Private Pre-University colleges.- (1) Subject to the financial capacity of the Government, the scale of pay applicable to lecturers and non-teaching personnel in Government PreUniversity Colleges in accordance with Karnataka General Services (Pre-University Education Recruitment) Rules, 1996 shall generally be applicable to the teaching and non-teaching personnel in the Aided Pre-University Colleges unless otherwise ordered by the Government for the purpose of release of grant-in-aid as extended by the Government, for teaching and non-teaching aided employees from time to time. The employees of Aided Pre-University Colleges shall be eligible only for such benefits and allowances that have been extended and sanctioned specifically to such employees by the Government from time to time.

¶225

(2) The posts and the persons working in such posts in private aided Pre-University Colleges shall be eligible for grant-in-aid only from the date of sanction of the grant-in-aid by the Government and the earlier period of un-aided service shall not count for any pay fixation, increment, leave, seniority and other service benefits including pension.

¶226

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(3) Consequent to the sanction of salary grant-inaid to an employee of aided Pre- University College, the initial pay of such an employee shall be fixed at the minimum of the pay scale applicable to the post and he will not be eligible for any monetary benefits either notionally or otherwise in respect of the earlier period of un-aided service.

¶229

(4) Salary to a post in private aided PreUniversity College shall be stopped if the minimum students strength per section as specified under these rules is not maintained or fulfilled for consecutive three academic years.

¶230

(5) Grant-in-aid may be released to non-teaching staff of a private aided Pre-University College which started functioning prior to first June, 1987 to the posts specified in Schedule-VI of these rules if the appointment and approval is made prior to first day of June, 1992.

¶231

(6) In a private aided Pre-University College where grant-in-aid is being released to more than one non-teaching posts, if any such not-teaching post falls vacant due to death or retirement or resignation, then that post ceases to be eligible for grant. If in respect of institutions started functioning prior to first day of June 1987 all the clerical posts are unaided, as on the date of coming into force of these rules, then grant-inaid may be released prospectively from the date of issue of such order to only one post of either First

¶232

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Division Assistant or Second Division Assistant as the case may be on the basis of seniority. If science sections were to exist lawfully in such a college then, grant-in-aid may be released to one post of laboratory attender. But, grant-in-aid shall not be released to non-teaching posts which were not in existence prior to first June, 1987 and the appointment had not been approved prior to first June, 1987 unless it is the only post of First Division Assistant or Second Division Assistant or the post of a Laboratory Attender.

¶235

(7) Whenever an employee of a private aided PreUniversity College is placed under suspension by the Managing Committee, the managing committee shall complete the disciplinary proceedings in respect of the said employee within a period of six months from the date of suspension and the Government may release grant-in-aid for subsistence allowance of the said employee for the period of said six months if prior permission of the department is obtained for placing the official under suspension. The managing committee shall be liable to pay the subsistence allowance to such an employee beyond the period of six months of suspension.

¶236

(8) The Government may recover from the managing committee of Private aided Pre- University College the amount released by it as grant-in-aid if the same is mis-utilised or embezzled or misappropriated by the managing committee and it may

¶237

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be recovered as arrears of land revenue and while doing so, the land and building owned by the managing committee may be attached and sold by the Deputy Commissioner of the concerned district under the provisions of the Karnataka Land Revenue Act, 1964 to secure the amount and for effective recovery of the dues.”

¶239

As could be seen from Rule 21(6) of 2006 Rules, in a private aided Pre-University College, where grant-in-aid has been released for more than one non-teaching posts, if any such non-teaching post falls vacant due to death, retirement or resignation, then that post ceases to be eligible for grant. It is, therefore, clear that whenever a College is receiving grant-in-aid in respect of more than one non-teaching posts, on the account of death, retirement or resignation of the incumbent, then that post statutorily ceases to be eligible for grant.

¶240

To put it in simpler terms, if the post of a Clerk is admitted to grant-in-aid and that Clerk passes away, the said post ceases to be eligible for grant and if the Management decides to fill up that post on its own, in law,

¶241

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¶242

it will not be entitled to call upon the Government to continue the salary grant for the said post. Thus, the statutory rule indicates that in respect of a non-teaching post, the post itself ceases to be eligible for grant, if it becomes vacant either due to death, retirement or resignation. Therefore, in the event a post becomes vacant, say, as a result of retirement, the Management cannot fill up that post by recruiting another person or by promoting an eligible employee, and then seek continuance of payment of salary to such employee appointed to that vacant post.

¶243

Thus, the Rule indicates that the Government had agreed to bear the salary grant in respect of an employee who was occupying the post as on the date the Institution was admitted to grant and its liability to pay the salary is only until that particular employee continues in his/her post. If the employee who was occupying the post at the time the Institution was admitted to grant either retires,

¶244

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resigns or dies, then the liability of the Government to aid the grant would automatically cease.

¶246

It is, no doubt, true that it is open for the Management to fill up that post in the manner prescribed under the relevant Rules, but if the Management fills up that particular post either by way of recruitment or by way of promotion, it cannot expect the State Government to bear the salary of the person who has been appointed to the vacant post. It is, therefore, clear that in the event the Management wants the Government to pay salary in respect of a particular post, it would have to necessarily obtain a specific approval from the State Government and it does not possess a right to promote or appoint an employee of its choice, and subsequently, demand the Government to continue to pay the salary grant.

¶247

It is to be noticed in this case that this particular Rule is not under challenge. The petitioner – Institution is basically challenging Rule 23(2) of the 2006 Rules.

¶248

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68. Rule 23 of the 2006 Rules reads as follows:

¶251

“ 23. Transfer of teaching and non-teaching staff from one private aided Pre- University college to another private aided Pre-University college.- (1) The staff working in aided posts in a aided private preuniversity college may be transferred to an aided post in another private pre-university college with the prior approval of the Director, if the posts in both the colleges are same in nature and both the managements agree to the proposal. The person so, transferred will be the junior most in the cadre in the transferred college. However his service in the previous aided institution will count for the purposes of salary, leave and pensionary benefits.

¶252

(2) Teaching and non-teaching personnel working in an aided Pre-University college against aided posts found surplus due to lack of work load or for any other reason shall be transferred by the Commissioner/Director, Pre-University Education to another aided Pre- University college either under the same managing committee or under a different managing committee against an aided post in the same subject. However, the grant-in-aid shall be continue for such aided posts till a vacancy is found in another aided college. Action will be taken against both the management and the officer concerned who are

¶253

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responsible for concealing the information regarding availability of such vacancies.”

¶255

As could be seen from the above, this Rule basically

¶256

provides for the staff working in aided posts (in an aided private Pre-University colleges) to be transferred to an aided post in another private Pre-University college, subject to the prior approval of the Director. A further condition was imposed that the posts in both the colleges are similar in nature and both Managements have agreed to the said proposal. It is also made clear that the person transferred would be junior-most in the transferred college, but his service rendered in the previous college would be considered for the purpose of salary, leave and pensionary benefits. This Rule would obviously operate in a case where both Managements agree for such transfer. Since both the Managements have agreed for the transfer, there can obviously be no dispute regarding continuance of the aid.

¶257

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¶258

Sub-Rule (2) of Rule 23 of the 2006 Rules, however, would operate in a situation where it is found that teaching and non-teaching personnel working in an aided PreUniversity college, against aided posts, are found to be in excess due to lack of workload or for any other reason. It basically mandates that such teaching and non-teaching staff who do not have adequate workload are to be transferred by the Commissioner/Director of Pre-University Education to another aided Pre-University college, either under the same managing committee or under a different managing committee.

¶259

Thus, in cases where it is found that there is surplus teaching and non-teaching personnel due to lack of workload, the Commissioner is empowered to transfer such employee to another aided Pre-University College. In other words, the State does not want the employee that it is paying for, to be idle and instead of resorting to retrenchment which causes deprivation of the livelihood of an employee, a provision was made to transfer such an

¶260

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¶261

employee to another aided Institution. In such case, the question of obtaining the approval of the Managing Committee of an aided Institution to which an order of transfer would be made, would not be necessary, fundamentally, because the transfer is being made to an aided post in a different aided Institution.

¶262

The aided Institution, to which an employee is transferred as a result of being surplus, cannot have any objection, since there does exist a post in that Institution for which salary is being paid by the Government. The Management, as long as it is receiving grant-in-aid, would be bound to accept an employee on transfer, since it is in the interest of the State Government to ensure optimal utilization of staff to whom the salary is being paid by the Government. If the transferee Institution refuses to accept the transfer, the State would be burdened with an employee who does not have any work load and therefore, it stands to logic that the State, by virtue of it bearing the salary of an employee, is permitted to post that particular

¶263

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person so as to justify the salary that it is paying. The aided Institution, which is completely dependent on the Government for salary grant, cannot, in any way, curtail this power of the Government to utilize an employee whose salary is borne entirely by the State.

¶265

The argument that Rule 23(2) of the 2006 Rules is contrary to Section 98(2) of the Education Act is wholly misconceived.

¶266

As already stated above, “ retrenchment ” would mean ‘termination of service of an employee other than punishment’. An employee who has no workload cannot automatically be liable for retrenchment. The State is empowered to transfer said person to another aided Institution. The relationship sought to be raised between retrenchment contained in Section 98(2) of the Education Act and Rule 23(2) of the 2006 Rules, cannot be accepted, since retrenchment and transfer are complexly different concepts and would have no bearing on each other. The argument, in this regard, is therefore, rejected.

¶267

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¶268

Reliance placed on the judgment rendered by this

¶269

Court in the case of Sri Taralabalu Jagadguru

¶270

Education Society³ would have no application to the present case, since at that relevant point in time, the 2006 Rules had not yet been enacted and the Court, therefore, did not have an opportunity to consider the import of Rule

¶271

23 of the 2006 Rules.

¶272

The reliance placed on the judgment of the Apex Court in the case of T.M.A. Pai Foundation (supra) can also be of no consequence, since the Constitutional Bench was not dealing with a statutory rule which provided the manner in respect of which the conditions of service of an employee were required to be governed. The Apex Court has, in fact, observed in the said case that an aided Institution cannot obtain the extent of autonomy in relation to management and administration as would be available to a private un-aided Institution. It is, no doubt,

¶273

stated that it cannot be treated as an educational

¶274

3 Sri Taralabalu Jagadguru Education Society, Sirigere v. State of Karnataka

¶275

& Others, (2005) 1 KAR.L.J. 361.

¶276

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Institution departmentally run by the Government or as a wholly owned and controlled Government Institution, to interfere with the constitution of the governing bodies or thrusting staff without reference to Management, but this particular observation would have to be considered in the context of the fact that the Constitutional Bench was not referring to any statutory Rule.

¶278

In the instant case, in respect of an employee who is found to be surplus, the Government is basically transferring that particular employee to another post to which the Government was granting aid. In the event the Management does not wish to receive the aid to that post, it can inform the Government that the transfer need not be made and that it would bear the cost of the particular post, which was earlier admitted to aid. If an Institution were to state that it does not wish to receive the aid and that it should be given the liberty to fill up the post which has fallen vacant, then, obviously, the Government cannot transfer an employee to that post since that post would no

¶279

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longer be continued as an aided post. But as long as the Management considers and demands that the earlier aided

¶281

post is to be continued, it would then necessarily have to bear the brunt of Rule 23(2) of the 2006 Rules and would have to accommodate the employee transferred by the State Government.

¶282

The decision relied upon in the case of

¶283

Dharmarathnakara Rai Bahaddur Arcot Narayanaswamy Mudaliar Educational Charities⁴

¶284

cannot be of any avail, since Rule 23(2) of the 2006 Rules was not specifically considered and the reliance placed on a Division Bench Ruling of this Court in W.A.No.1411/2012⁵ also cannot be considered since the said decision also did not consider the effect of Rule 23(2) of the 2006 Rules.

¶285

4 Dharmarathnakara Rai Bahaddur Arcot Narayanaswamy Mudaliar Educational Charities v. State of Karnataka & Others, W.P.No.33101/2014 & connected matters, disposed of on 30.03.2021. 5 disposed of on 11.10.2012.

¶286

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¶287

In the result, there is no merit in W.P.No.11266/2010 filed by the Institution and the same is, accordingly, dismissed .

¶288

As far as W.P.No.5491/2012 filed by Thimmaiah is concerned, the post which Thimmaiah was holding was admittedly permitted to receive grant-in-aid and he was, therefore, entitled to receive his salary. Once it was found that he did not have adequate workload, he was transferred, and Thimmaiah also obeyed the order of transfer by reporting for duty with the Management. If Thimmaiah did not have any workload during the interregnum, the Government cannot refuse to aid the salary on the ground that he had not discharged any work. It is to be stated here that only if an employee refuses to discharge his duties would he be disentitled from receiving salary. If an employer chooses not to make use of the services of an employee, it cannot, thereafter, turn around and say that the employee would not be entitled for

¶289

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salary, more so in the case of an employer like the State Government.

¶291

In that view of the matter, since Thimmaiah was

¶292

holding a post admitted to grant-in-aid, he would be entitled for the salary even for the period he did not have sufficient workload i.e., for the period from 23.07.2008 to 16.02.2011. The writ petition of Thimmaiah i.e., W.P.No.5419/2012 is allowed . Since Thimmaiah is no more, his legal representatives would be entitled for receiving the salary for the aforesaid period.

¶293

Sd/JUDGE

¶294

HNM

Shri T Thimmaiah v. the State of Karnataka

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Shri T Thimmaiah v. the State of Karnataka

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