Sri Vishwabharathi Education Society (R) Vs the State of Karnataka

SMT. BHANUMATHI W/O SUNIL M AGED 38 YEARS PRESENTLY WORKING AS ASSISTANT TEACHER SCIENCE (CBZ) SRI VISHWABHARATHI AIDED HIGH SCHOOL MELEKOTE, TUMKUR CITY R/AT AVE MARIAH NILAYA KUMUTAIAH LAYOUT BANASHANKARI 2ND STAGE TUMKUR DISTRICT.

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…PETITIONERS

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(BY SRI. SRIKANTH M P., ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY ITS SECRETARY TO GOVERNMENT PRIMARY AND SECONDARY EDUCATION M.S. BUILDING, DR. AMBEDKAR VEEDHI, BANGALORE 560 001

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HC-KAR

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THE COMMISSIONER FOR PUBLIC INSTRUCTIONS PRIMARY AND SECONDARY EDUCATION NEW PUBLIC OFFICES, NRUPATHUNGA ROAD, K.R CIRCLE, BANGALORE 560 001.

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THE DIRECTOR OF PUBLIC INSTRUCTIONS SECONDARY EDUCATION NEW PUBLIC OFFICES NRUPATHUNGA ROAD, K.R. CIRCLE, BANGALORE 560 001.

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THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS TUMKUR SOUTH, TUMKUR 572101.

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THE BLOCK EDUCATION OFFICER TUMKUR TALUK, TUMKUR 572101.

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…RESPONDENTS

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(BY SRI. BOJEGOUDA.T.KOLLER., AGA)

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THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE CIRCULAR DTD. 08.06.2018 BEARING NO.Ci.8(5)Sha.Shi.Aa.He.Shi/ 21/2017-18 ISSUED BY THE R-2 TO THE EXTENT OF TREATING THE POSTS TO WHICH TRANSFERS OR EXCESS TEACHER MADE AND ARE NOT FILLED UP AS PERMANENTLY UNAIDED POSTS AS ILLEGAL, ARBITRARY AND UNCONSTITUTIONAL ANNX-P AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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HC-KAR

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CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

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ORAL ORDER

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Learned Counsel for the petitioners submits that the petitioners will not press prayer (a).

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Submission is taken on record.

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The petitioners have called in question the

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endorsement dated 09.11.2021 issued by respondent No.3 vide Annexure 'W', whereby the post of Head Master in the Institutions run by petitioner No.1 has been treated as non-grant post. Petitioner No.1 is a Society registered under the Societies Registration Act, 1960. It is running four aided High Schools. Sri Vishwa Bharathi High School, Melekote, Tumakuru, is also one of that Aided High School. The post of the Head Master of the said High School was admitted to grant. The said post became vacant from 31.08.2015. Thereafter, the management was given incharge arrangement. Respondent No.4 vide Annexure 'L' dated 04.08.2018 issued a Posting Order and

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HC-KAR

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posted one Sri Nagaraju as Head Master of Vishwabharati High School, Melekote, Tumakuru. The petitioner management has not accepted the same. Thereafter, the management sent a proposal and sought permission to promote the senior most teacher as Head Master and also sought permission to fill up that vacant teaching post. The request has been rejected by the impugned endorsement at Annexure 'W' on the ground that the management has refused to accept the posting order issued by respondent No.4.

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Learned Counsel appearing for petitioner No.1 has submitted that when respondent No.4 has passed a posting order vide Annexure 'L' dated 04.08.2018, they have not consulted the management. Therefore, such a posting order is not binding on the management. He contended that the co-ordinate Bench of this Court in W.P.No.33101/2014 and connected matters dated 30.03.2021 has considered the provisions of sub-sections (2) and (3) of Section 98 of the Karnataka Education Act,

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HC-KAR

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1983, and The Karnataka Educational Institutions (Recruitment And Terms And Conditions of Service of Employees in Private Aided Primary and Secondary Educational Institutions) Rules, 1999, and has held that posting or transfer of the teacher from one private aided institution to the other shall be done only with the consent of the Governing Council or Managing Committee. Since no such consent has been taken from the Management, their permission to fill up the post of Head Master cannot be rejected on that ground alone. Hence, he has sought for allowing the writ petition.

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Per contra, learned Additional Government Advocate appearing for the respondent-State has contended that the authority has passed the order vide Annexure 'L' posting one Sri Nagaraj as Head Master to Sri Vishwa Bharati High School, Melekote. The same has not been accepted by the management. When the Institution is an aided institution, they have to abide by the directions issued by the Government. Since they have disobeyed the

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HC-KAR

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directions issued by the Government, the request of petitioner No.1 for permission to fill up the post of Head Master is rejected.

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Heard the learned Counsel for the petitioners and the learned Additional Government Advocate for the respondent-State and perused the petition papers.

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Petitioner No.1-Vishwabharathi Education Society is running Sri Vishwa Bharathi Aided High School, Melekote Tumakuru, which is an aided institution. In the said institution, the post of the Head Master became vacant. Vide Annexure 'L' dated 04.08.2018 respondent No.4 has posted one Sri Nagaraj as Head Master, but the management has not accepted the same. Thereafter, the Management has submitted a representation seeking permission to fill up the post of Head Master. The said request has been rejected by the impugned endorsement on the ground that the management has refused to comply with the directions issued by the authority vide Annexure 'L'. This Court in a batch of writ petitions in

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HC-KAR

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W.P.No.33101/2014 and connected matters disposed of on 30.03.2021 has considered similar issue and the relevant portion of the order is extracted herein below:

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"14. Having regard to these complexities and the need to balance equities, guided by the verdict of the Hon’ble Apex Court in the case of Namit Sharma (supra), this Court is of the considered opinion that the provisions of Section 98 of the Act and the Rules, 1999 are required to be read down to make it more effective, workable and ensure the attainment of the object of the Act. The provisions contained in Section 98 of the Act and the 1999 Rules, in the matter of allocating/transferring a teacher/employee from one private aided institution to another shall be done only with the consent of the Governing Council/Managing Committee. Appropriate Circular may be issued in this regard informing the Managing Committees of private aided institutions that as and when the need arises, proposal will be sent by the competent authority to allocate/ appoint by transfer a teacher/employee from the excess quota to the institution, seeking its consent.

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HC-KAR

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Information may also be provided that if the proposal is not accepted, the teacher/employee from an aided institution would be in danger of being retrenched/removed from service. Such option shall also be given to the teacher/employee and he/she may be informed that if the proposal is not acceptable, he/she would be in danger of being retrenched/removed from service. "

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From the above judgment, it is clear that if the Government wants to allocate/transfer a

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teacher/employee from one private institution to another, the same shall be done only with the consent of the Governing Council/Managing Committee. In the case on hand, before passing the posting order at Annexure 'L;' dated 04.08.2018, the authority has not consulted the Managing Committee. In view of the judgment of this Court in W.P.No.33101/2014 and connected matters disposed of on 30.03.2021, the impugned order at Annexure 'W' has to be quashed.

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HC-KAR

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Accordingly, the writ petition is allowed . The

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impugned order dated 09.11.2021 at Annexure 'W' is quashed. The respondent-authority is directed to reconsider the case of the petitioners afresh in accordance with law, keeping in view the judgment of this Court in W.P.No.33101/2014 and connected matters, within three

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months from the date of receipt of a copy of this order.

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Sd/(H.T. NARENDRA PRASAD) JUDGE

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JT/CT:JL

Sri Vishwabharathi Education Society (R) v. the State of Karnataka

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Sri Vishwabharathi Education Society (R) v. the State of Karnataka

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