B. Usha and Others vs State of Karnataka <BR> Dr. B.R. Ambedkar Mission Public Trust (R) Vs State of Karnataka and Others

D.V. Shylendra Kumar, J.

Re: WP No. 42718 of 2004:

Writ petition by as many as nine persons, some of whom were working as non-teaching staff at the Dr. B.R. Ambedkar Residential School, Ragigudda, Shimoga as well as in the girls hostel attached to this school run by the fifth respondent - Dr. B.R. Ambedkar Mission Public Trust (Regd.), Ragigudda, Shimoga with the first petitioner was working as assistant teacher in the very school, all of whom are claiming that the orders pasted by the first respondent - State of Karnataka - and its officers in the department of public instructions viz., second respondent - Commissioner of Public Instructions; third respondent - Director (High School), Department of Public Instructions; and fourth respondent - Deputy Director of Public Instructions, on 1-1-2003 [Annexure-Q to the writ petition] and 22-9-2003 [Annexure-T to the writ petition], have the effect of throwing them out of their employment and therefore have sought for quashing of these two government orders. The petitioners, in the alternative, have also sought for issue of a writ in the nature of mandamus to direct the state and its offices in the department of public instructions to consider the representations of the petitioners dated 22-12-2003 as per Annexure-U, U1 and U2 and to direct the state to pass appropriate orders on the same.

Petitioners have contended that they had been working as employees of the fifth respondent-residential school or in the girls hostel attached to the school, run by the very management and were working for long number of years, that their management had never paid them full salary and wages payable to them as per the government norms and as stipulated in the grant-in-aid Code [for short, the code]; that the effect of the impugned orders passed by the government is only to retain the services of respondents 6 to 24, who were also working like the petitioners in the very school/hostel to the detriment and at the cost of the petitioners; that as a result of the impugned orders, while the writ petitioners stand to lose their job and even the meagre salaries they were getting for working in the school or hostel and as was being paid by the fifth respondent-management will be stopped on the other hand, respondents 6 to 24, whose services are now retained, stand to gain by getting salaries and allowances as is payable under the Code and after the impugned orders, though these respondents also were getting less salary like the petitioners hitherto. The petitioners have contended that the impugned orders, which have the effect of putting an end to the employment of the petitioners, are orders passed without according any opportunity to the petitioners, without examining their cases and position in the proper perspective or in terms of the relevant laws; that the orders are virtually arbitrary orders and are required to be quashed.

The respondents had been put on notice and after preliminary hearing, subsequent to the respondent being represented through counsel and on filing objections, this petition was admitted on 20-6-2007, observing, inter alia, as under:

The main issue that arises in these petitions is the manner in which the Government has formulated the scheme [copy at Annexure-Q] where under some staff in the school run by the Trust is being administered, has been reduced to bring it in conformity with the staff pattern on the model of Morarji Desai Residential School.

The grievance of the petitioners in WP No. 42718/2004 and who are all teachers who have lost their job pursuant to the implementation of the scheme and the Management which is the writ petitioner in WP No. 19181/2003 is that in the implementation of the scheme, the Government has acted in an arbitrary manner; that they have not given a proper opportunity to the management of the school i.e., the Trust, to ascertain the staff strength in the school earlier and that while the services of recent appointees have been retained and regularised, persons who had been appointed way back in the year 1986 do not figure in the revised scheme.

Virtually, the allegation is one of arbitrariness and discrimination on the part of the respondents in formulating the scheme and implementing the same.

The State Government being one which has formulated the scheme and has issued directions for implementation of the scheme is required to answer these allegations in these writ petitions.

Issue rule in all these petitions.

Counter, if any, in two weeks. Bring up for orders after four weeks.

Writ petition is opposed. Respondents are represented by counsel. Respondents 1 to 4, being the state and its officers, are represented by Sri S.Z.A. Khureshi, learned Additional Government Advocate; on behalf of fifth respondent, Sri Ashok Haranahalli, Advocate, has filed power; Sri Aravind Kumar is appearing for respondents 6 to 14 and 16 to 24, while respondent No. 15 is represented by Sri B. Rudra Gowda.

Statements of objections have been filed on behalf of third respondent as also on behalf of respondents 6 to 24. Fifth respondent-management has neither filed any statement of objections nor is represented at the time of hearing of the petition before the court.

The stand of the state government in terms of the statement of objections is that the writ petition itself is not maintainable; that the petitioners have no genuine grievance to put forth in the writ petition; that certain allegations have been made in the writ petition with mala fide intention; that the petitioners cannot be really said to be aggrieved or affected by the impugned orders; that the petition is without merit. It is also averred that the petitioners being not appointed as per the recruitment rules by the management of the private institution, the writ petition is not maintainable by the petitioners. It is also pleaded that the impugned orders are as a result of considerable investigation, inspection and consequential reports by the officers of the department of public instructions, pursuant to the large number of complaints made by the employees of the institution, alleging that the management was not following any norms in the matter of appointment of employees and was also not paying proper salary as per the norms; that the government was compelled to intervene in the matter to avoid exploitation of the employees by the management of the school; that the government on examination of the reports of the officers, who had inspected the school and the hostel attached to the school, which inspection was carried out from 3-5-1999 to 5-5-1999 and based on a report dated 25-5-1999 decided to change the staff pattern of the school and the hostel from the pattern of Kittur Rani Channamma girls residential school model to Morarji Desai residential school and for giving effect to this change in the administration and staff pattern based on the Morarji Desai residential school model, passed the order dated 1-1-2003; that the subsequent order dated 22-9-2003 is only as a follow-up action; that permission for starting of the residential school by the fifth respondent management for the benefit of the scheduled caste/tribe girl students was sanctioned in the year 1982 with permission to admit not more than 40 students per class for classes from V to X standard with medium of instructions being Kannada and that the institution was eligible for grant as per the Code from the date of establishment of the institution and for such purpose, issued the government order No. ED 31 MNS 81 (P) dated 24-8-1982 [copy produced at Annexure-L to the writ petition]; that ever since aid is being extended to the institution, though it is computed on the basis of the number of students studying and the amount required to run the school and the hostel on the pattern of Kittur Rani Channamma girls residential school and periodically the amount released as scholarship per student has been increased on par with the amount released to the students of Kittur Rani Channamma girls residential school; that in the wake of several complaints, the government was compelled to act as per the orders at Annexure-Q and Annexure-T to the writ petition; that there is no merit in the writ petition and the writ petition is to be dismissed.

It is urged by the state that the action taken is only to ensure compliance with the necessary rules and regulations; that the impugned orders achieve the objectives of the Karnataka Education Act, 1983 [for short the Act] and the Code and the Rules and Regulations supplementing the same; that the impugned orders do not suffer from any illegality or error in procedure; that all the employees of the institution had been heard and their views had been taken into account, as also the report submitted by the officers of the department of public instructions, though the management itself was not cooperating in furnishing necessary information or placing relevant records before passing the impugned order and therefore has urged for dismissal of the writ petition.

The statement of objections filed on behalf of the private respondents while generally supports the stand of the state government, also seeks to point out that the writ petition is without bona fides; that the petitioners are guilty of suppression of facts; that the petitioners have not placed true and complete facts before the court; that they are fence sitters, who while working for the issue of the impugned orders have turned around and opposing the impugned orders only because it was found that they could not be accommodated for the reason that the petitioners were found either ineligible for the posts or were far too juniors in comparison to the answering respondents; that the action taken is not only justified for ensuring compliance with the provisions of law and to prevent exploitation by the management but was warranted and was long overdue; that there is absolutely no need to interfere with the orders by this Court; that the petitioners, if at all have any grievance, it can be against the private management and therefore cannot question the impugned orders and have urged for dismissal of the writ petition.

The statement of objections filed on behalf of respondents 6 to 24 also indicates that while the grant for running the residential school with girls hostel was released by the social welfare department for the first four years, on and after the year 1986, in terms of the government order dated 13-2-1986 (copy at Annexure-M to the writ petition], it was being released as part of the expenditure under the grant-in-aid-code and all along the stipulation was the salary to the staff, teaching and non-teaching, was to be paid in accordance with the Code; that initially the amount was at the rate of Rs. 4,500/- per student per annum and this was enhanced to Rs. 5,100/- during the year 1987 and further enhanced to Rs. 7,500/- in the year 1992, which was again raised to Rs. 11,400/- in terms of the Government Order dated 21-8-1998 [copy at Annexure-N to the writ petition], but nevertheless the teaching and non-teaching staff were never paid salary as was required and commensurate to the aid extended to the school; that as a result of the examination of the reports by the government, it was found that for the healthy functioning of the school, staff strength should be necessarily streamlined to bring it on the lines of Morarji Desai Residential School, as the pattern of education in the school was more on the lines of Morarji Desai Residential School, particularly as the school was imparting education to students studying between V and X standards as in the case of Morarji Desai residential school, whereas in Kittur Rani Channamma girls residential school was imparting education to students studying from V to XII standard and therefore the government found the need to downsize the staff strength to bring it in conformity with the requisite number of staff on the model of the Morarji Desai residential school and it was in the course of such exercise, all eligible persons were retained and ineligible persons were to be inevitably shown the door and therefore there is no need for either quashing the impugned orders or for modification of the same etc.

The statement of objections has also referred to certain subsequent developments. It is indicated that while the appointment made prior to the year 1992, are all protected in terms of the government order, appointments made thereafter if had not followed the reservation policy of the government, cannot be recognized by the government and as the respondents 6 to 24 being retained in the services of the school and the hostel, the petitioners being eased out of the services being on the application of such norms and therefore there is no illegality or irregularity in the impugned orders. It is also indicated that the material/information for such was in fact provided by the fifth respondent itself and the third respondent had recommended for action in terms of the material received and the government having acted based on such relevant material/information, the orders should not be interfered with and the writ petition should be dismissed.

I have heard Sri Chandrashekar, learned Counsel for the petitioners, Sri S.Z.A. Khureshi, learned Additional Government Advocate, appearing for respondents 1 to 4, Sri Aravind Kumar, learned Counsel for the respondents 6 to 14 and 16 to 24, Sri Rudragowda, learned Counsel for the fifth respondent, while none represented the fifth respondent management.

The principal contention on behalf of the petitioners by Sri Chandrashekar is that the impugned orders are not as a result of any proper implementation of the statutory provisions either under the Act or under the Code; that the impugned orders are virtually arbitrary for not taking into consideration the real position of the petitioners and their entitlements; that the arbitrary nature of the order is very much apparent as employees who had been serving in the institution ever since 1987 onwards have all been kept out, while some recent appointees have been retained; that the orders provide for re-employing persons who had virtually left the institution, like the case of tenth respondent, who had left the job about three years before the passing of the impugned orders; that the impugned order is only a colourable exercise of power to patronize persons who had been in the good books of the officers of the department of public instructions and at the cost of the petitioners; that the government has not adhered to any norms or principles nor to any statutory provisions in passing the impugned orders; that the government had adopted pick and choose attitude in ensuring the retention of services of respondents 6 to 24 and the eliminating the petitioners from employment; that the staff pattern even as per the impugned orders is not exactly in terms of the Morarji Desai residential school model; that the petitioners were not heard or given a proper opportunity before passing the impugned orders; that the government had adopted double standards in applying the norms, as even now many persons who were ineligible in terms of the specification of the Code and the Act and the Rules framed thereunder have been retained and are amongst the respondents 6 to 24; that the government has not at all taken into consideration the views of the management who had made all appointments; that the officials who were involved in the passing of the impugned orders have favored a few at the cost of the petitioners and therefore the orders are biased and are to be quashed.

It is also submitted by the learned Counsel for the petitioners that the amount provided by way of grant or aid to the institution is not even used properly, in the sense the amount though released as scholarship to the students, a major portion of the amount is used up for salary to the staff, which cannot be permitted to take place, as part of expenditure from the scholarship granted to the benefit of the students; that the ratio of the amount spent as on the students vis-a-vis the amount spent as establishment expenses of the school and the hostel inclusive of salary, is grossly disproportionate and lopsided in favour of the staff to the detriment of the students; that the government cannot direct an amount by way of scholarship to the students to be spent as amount for establishment expenditure, particularly, towards salaries of the teachers and that the salary of the teachers if at all is to be met only from the grant under the Code and not from out of the scholarship benefit given to the students and therefore both the orders at Annexure-Q and T should be quashed.

Learned Counsel for the petitioners has drawn the attention of the court to Sections 7(1)(g) read with Section 46 of the Act and submits that the state and its officers have no role in the appointment of teachers and other employees of a private educational institution, except the head of the institution and therefore submits that the government could not have taken direct action in terms of the impugned orders at Annexure-Q and T.

Sri S.Z.A. Khureshi, learned AGA, while countering such submissions and with reference to the statement of objections filed on behalf of the third respondent, submits that prior to the Act coming into force, the situation was governed by the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975 and the Rules framed thereunder and the Code; that the provisions of the Code as was in force as on the date of commencement of the Act being continued in terms of the savings clause in Section 146(3) of the Act to the extent the provisions of the Code are not insistent with the provisions of Chapter IX of the Act, they are all being continued; that the government has a duty to enforce the provisions of the Act and the Rules; that when the employees of the school run by a private management complained that they were not being paid the salary and wages in terms of the grant, there was need for verification of the same and on such verification it was found that the school management had not been [paying such salary though they were drawing aid from the government all along and therefore it became necessary for the government to step in, to ensure compliance of the terms and conditions of the grant; that it is for such purpose the government passed the impugned orders and the impugned orders are issued only to achieve the enforcement of the provisions of the Act and the Rules framed thereunder and also the Code, and while such examination is also in the light of the relevant Rules governing the services of the employees in private aided educational institutions, persons found to be ineligible for appointment to any post could not be approved for continuing aid in respect of their employment, only persons who had requisite qualification vis-a-vis the post which is approved for drawing aid are approved for continuing in employment; that the impugned orders are neither one for appointing any persons nor retrenching any other person/s, but only to approve the appointment of eligible persons for the purpose of continuing grant of aid; that it does not suffer from any illegality or arbitrariness and therefore the writ petition is to be dismissed.

Learned Additional Government Advocate also submits that a writ petition by employees of a private aided educational institution is not tenable for the purpose of seeking aid to them also, in a petition under Article 226 of the Constitution of India and in support of this submission placed reliance on the unreported decision of a Division Bench of this Court rendered on 30-5-1998 passed in WA No. 1833-86 of 1995 and further submits that this has been subsequently followed by another Single Bench in the case of Sri Maruthi Rama Nayak v. State of Karnataka [WP No. 4524 of 1993, decided on 28-7-1998] and submits that applying the ratio of these decisions, this writ petition should be dismissed.

Learned Government Advocate would also submit that all selection and appointment to the school and the hostel were made by a committee constituted by the trust comprising of a representative each from the management, finance department of the state government, educational department and also the Commissioner of Public Instructions, and therefore the government thought the appointments were in order and did not stop or curtail aid any time earlier, though in fact the government had never approved the appointments made by the private management, which was considered for approval for the first time in the year 2003. Learned AGA submits that the approval was on the basis of the report by the management sent on 11-12-1998 and after due verification, several inspections by the officers of the department and after holding several rounds of discussions with the employees as also by taking into consideration the representations of the employees. Therefore learned AGA submits that just because proper action in terms of the statutory provisions had not been put in place hitherto, does not mean that it should not be streamlined even now and if the orders at Annexure-Q and T have only streamlined the staff pattern of the school and the hostel run by the private management and have ensured the payment of salary as per the Code to the approved staff, no exception can be taken to such orders and the orders should not be found fault with for the reason that it had not been implemented earlier nor for the reason that it can adversely affect persons like the petitioners. Submission is that if ineligible persons have not been approved for grant of aid, that cannot be a reason for quashing the impugned orders.

Sri Aravind Kumar, learned Counsel appearing for the private respondents, has made like submissions. What is vehemently urged is that the school management had all along been exploiting the staff by not paying their salary in terms of the aid extended by the government; that as a result of consistent efforts and agitation for getting their due share, these respondents have achieved the same under the impugned orders; that the orders should not be disturbed to the detriment of these respondents, as the orders have only ensured some sanctity in the functioning of the school management and have ensured that the management does not deprive the staff of their legitimate salary; that just because the petitioners have some grouse or grievance, while the present orders should not be disturbed, it is for the government to consider if the petitioners can be rehabilitated in any manner to redress their grievance.

Sri Aravind Kumar also submits that if the answering respondents are active in ensuring that some of the eligible persons amongst the petitioners are also accommodated and the proposal in this regard is under the active consideration of the government and it is likely that some of the petitioners may be accommodated in the near future and their grievance will be redressed.

Brief history leading to this writ petition is that: A private trust was set up in the year 1982 in the name and style of Dr. B.R. Ambedkar Mission Public Trust (Regd.), Ragigudda, Shimoga by some public spirited persons with the object of providing primary education to bright girl students belonging to scheduled caste/tribe community and to take care of their entire requirement of boarding and lodging by providing free accommodation in the hostel and free education in the school run by the trust. The trust received encouragement from the government from day one, as the government promptly issued Government Order dated 24-8-1982 [copy at Annexure-L to the writ petition], not only according approval to the establishment of the residential school for talented SC/ST girls at Shimoga on the lines of Kittur Rani Channamma girls residential school, Kittur, Belgaum district, but also indicated that the school is permitted to open Standard V during the academic year 1982-83 and progressively add higher classes till standard X is reached and that the class strength per class should not exceed 40 with the medium of instruction to be Kannada. The government order also indicates that the institution is eligible for grant as per the grant-in-aid code from the date of establishment of the institution.

What is significant here is that though in terms of the existing provisions of the Code, a school is normally admitted to aid only after five years from the date of establishment, the school established by the fifth respondent trust was permitted to avail aid from the date of establishment of the institution itself. For such purpose, it appears, the aid was initially extended by the department of social welfare and backward classes during the period when the aid was not available under the Code and later aid was provided under the Code etc. More importantly, the institution has continued to receive aid from the state government from day one till the date uninterruptedly. In between, there were allegations of mismanagement, misutilization of funds, non-payment of aided salary to the staff, but it appears, the government maintained a blissful silence and turned a blind eye to these developments. The government, it appears, though it is its responsibility to scrutinize the activity of the institution, continued to release aid in favour of the institution.

Though the aid was under the Code, the Code and the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975, which regulated the functioning of such schools at the time when the permission was granted, which was very much in force and did provide for compliance of all procedural requirements, particularly like proper appointment of qualified staff, payment of aided salary by the management, proper functioning of the institution in accordance with the Code, the Act and the Rules and notwithstanding the authorities of the department of public instructions having noticed several non-compliance and irregularities on the part of the management, no remedial or corrective action appears to have been put in place at any point of time before passing of the impugned orders. The impugned orders if at all seek to correct the mismanagement and misutilization of funds and violation of not only the provisions of the earlier statutory provisions, but also the current provisions, the Act and the Rules framed thereunder, only by disapproving the appointments of the petitioners. There is absolutely no indication of the corrective measures either taken or intended against the erring management. Though the statutory provisions of the Act, such as Sections 67, 67-A, 68, 69, 80 etc. occurring in Chapter XII of the Act, provides for ample measures to be taken against an erring management and also for setting right the irregularities and non-compliance, it is not indicated anywhere as to what action has been taken under such statutory provisions, except that by passing the impugned orders, the government has sought to streamline the state of affairs in the educational institution and the hostel managed by the fifth respondent trust.

While there cannot be any objection for taking remedial/corrective action at any point of time and if the impugned orders can approve the appointment of qualified eligible persons to the posts in terms of the statutory provisions, no exception could be taken to such orders, the impact of the impugned orders is much more than what is sought to be projected particularly with the impugned orders, acting as a prelude to the termination of the services of the petitioners, which in fact, is the effect in terms of the communication received by the petitioners from their employer, a private management, as per Annexure-A9, Annexure-B9, Annexure-C2, Annexure-D2, Annexure-E2, Annexure-F1, Annexure-G2, Annexure-H2 and Annexure-J2, all dated 30-9-2003 in the case petitioners 1 to 9 respectively.

It is an undisputed fact that all the petitioners had been appointed by the fifth respondent management and had been working in the institution for a considerable length of time and were also admitted to provident fund benefits and other benefits, which is evident from the statement and returns filed by the very management before the provident fund authorities and other statutory authorities. A copy of such statement in form No. 6A forwarded by the management indicating the contribution of the management and the employees for the period between March 2003 and February 2004, is produced as Annexure-K to the writ petition, which indicates that as many as 32 persons had been employed by the private management, amongst whom figures the petitioners also.

There is a dispute and grievance against by the management with regard to the contribution towards provident fund that the management has not contributed the amount to the fund in terms of the statement and therefore the management should be compelled to contribute and while this can be yet another issue, what is obvious is that all the petitioners were part of the establishment and were shown to be drawing salary as per this statement and assuming for any reason their services should be terminated by the management, such petitioners could have had the statutory remedy by way of an appeal u/s 94 of the Act and could have agitated their rights before the educational appellate tribunal, but instead such adverse action is sought to be enforced on the petitioners under the impugned orders, virtually leaving them without the statutory remedies under the Act.

This apart, the stand of the government that they are taking corrective action does not inspire much confidence of the court, for the reason that both the petitioners as well as the respondents 6 to 24 allege that they had not been paid aided salary hitherto, though the fifth respondent educational institution had been provided aid for payment of the staff, both teaching and non-teaching, from the day one of its establishment. If the management has drawn the aid and not paid to its employees, it is obvious the management should account for this and pay the amount even at this point of time to the employees. If the management has not remitted the provident fund contribution as per the statutory requirement, not only the amount should be recovered but the management having misused or misappropriated the amount due to the employees and also the amount to be remitted to the provident fund account, is liable for prosecution. Unfortunately, the management has adopted an attitude of blissful silence before the court, perhaps to avoid any scrutiny by this Court. Learned Counsel appearing for the management has kept away from the court during the time of hearing, except for having indicated on an earlier occasion that no relief having been sought against the management, there is nothing that is required to be answered by the management.

It is in the background of such facts and developments, the legality of the impugned orders is required to be examined. The management by passing orders as at Annexure-A9, Annexure-B9, Annexure-C2, Annexure-D2, Annexure-E2, Annexure-F1, Annexure-G2, Annexure-H2 and Annexure-J2, all dated 30-9-2003 and having quoted the impugned orders, perhaps now seeks shelter under them to escape all accountability, including the responsibility for setting the terminal benefits, which the petitioners are entitled to even assuming for arguments'' sake that they could have been otherwise terminated alter following necessary procedure in this regard.

The impugned orders having the effect of not only depriving the benefit of past service to the petitioners but also a real possibility of future non-employment, cannot be overlooked in the light of the specific complaints of the petitioners. Perhaps, there could not have been any scrutiny had the orders been passed by the private management and directly on the petitioners, which could have given them a right of appeal. But it is achieved indirectly through the impugned orders and depriving the statutory remedies also to the petitioners. It is for this reason, the orders are required to be scrutinized by applying the principles of strict adherence to law and the gravity of the orders on the petitioners being quite severe.

It is on record that the entire exercise leading to the orders at Annexure-Q and T was in the context of complaints by the staff of the school and for a good number of years, they were not being paid salary as was required to be paid to the employees of the institutions aided by the state, though the management had ever since the establishment of the school had been receiving state aid uninterruptedly. While a copy of the returns filed by the management for the purpose of remitting the contributions under the Provident Fund Act, has in fact been produced by the writ petitioners at Annexure-K to the writ petition and provides the details of salary that was paid to as many as 32 employees of the institution for the period March 2003 to February 2004, it is not clear as to whether the salary figures mentioned in the statement are the very salary that was payable to the employees of the aided private educational institutions during the relevant period or if such salary was actually paid to the employees. The complaint of the employees was obviously that they were not being paid the full aided salary, but were being paid only a part of it. Finding and conclusions in the enquiry, investigation and reports submitted by the officials of the department of public instructions, which have resulted in the orders at Annexure-Q and T is also that the management by itself was not conforming to the rules and regulations and was also not paying aided salary to the teaching and non-teaching staff of the school and therefore the corrective measures were required and one possible way of achieving this was to downsize the number of employees by shifting the staff pattern in the school from Kittur Rani Channamma Girls Residential school model to Morarji Desai Residential School model.

While one possible inference from this development is that the management was not able to pay the proper salary as was required to be paid to the employees of the school, for the reason that the number of employees in the school was much more than needed, this possibility has neither been pleaded nor made good either by the management of the school or by the state government and its officers, who are defending the matter stoutly before the court. On the other hand, the amount of aid extended to the school, it appears, has always been on the basis of computation as it works out in the case of institutions run on Kittur Rani Channamma Girls Residential school model. Unfortunately, the school management, which is a party respondent to this writ petition, has adopted a non-cooperative, non-assistance attitude and has shied away from court proceedings, virtually avoiding scrutiny into its conduct by taking an innocuous appearing stand that as no relief is sought for against the school management, there is no need for the school management to respond to the contents of the writ petition or the prayer made therein.

While the impugned orders at Annexure-Q and T, in so far as they seek to achieve the purpose of ensuring that the employees of the school receive full and proper salary as is required to be paid in state aided educational institutions and therefore need not be disturbed to that extent, to the extent they adversely affect the interest of the petitioners and even their lives, a petition with such prayer or relief is a matter which cannot be overlooked. Chapter-XII of the Act, particularly Sections 67, 67-A, 68, 69 and 80 of the Act, which provide for remedial measures to be taken by the enforcing authorities of the department of public instructions of education department to set right malfunctioning or mismanagement of the school management and to ensure that the state aided schools fall in line with the requirements of the Act and the Rules framed thereunder, there is absolutely no material placed before the court or anything indicated in the stand of the state government that such steps had been taken by the state government and its officers.

The petitioners if had worked for long years and as regular employees of the school for long years, it is now not open to the state and its officers to take up the stand that the state had not approved of their appointments. Such stand cannot also be countenanced in the light of the conduct of the respondents 1 to 4 as all along state aid has been extended to the institution without any demour. There was a duty cast upon the officers of the department to have ensured that the fifth respondent management of the school paid the correct salary to the employees from out of the state aid received by it. There is a total dereliction of duty on the part of the officers of the department concerned. If such erring management is allowed to achieve its object of easing out some of the employees in the services of the institution/school without following any proper procedure, without any check by employing the state machinery in the guise of implementing the impugned orders, this Court cannot permit it when the matter is brought to the notice and scrutiny of this Court in writ jurisdiction.

A possible inference is that the officers of the state government, who should have enforced the provisions of the Act and the Rules, are in complicity with the school management to the detriment of the employees. If the petitioners'' services had not been put to an end in a manner known to law by the school management and by following due procedure in this regard, the impugned orders cannot achieve this object. On the other hand, it is the duty of the respondents 1 to 4 to ensure that the management even for the purpose of shedding excess staff, if any, should go through a procedure permitted in law and as that has not been done, the respondents 1 to 4 are directed as follows:

a) To conduct a thorough enquiry into the functioning of the fifth respondent school management hitherto;

b) To ascertain what exactly was the salary that was being paid to the employees of the school and by what amount the payment fell short of the amount actually payable in respect of the aided private educational institutions;

c) To ensure recovery of this amount from the school management and to restore the same to the employees, whether petitioners or respondents in this writ petition.

d) To ensure that proper monitoring procedure is put in place so that grant that is being given by the state is no more misutilized, but it is put to proper use and recurrence of misuse is prevented.

e) To ascertain short payments of provident fund contributions and to apprise the provident fund authorities in this regard and impress upon them to initiate action against the erring management and trustees of the trust.

f) To ensure that the provisions of Chapter-XVII of the Act is pressed into service and necessary appropriate action is initiated against the trustees of the trust managing the school for their failures.

g) Respondents 1 to 4 to issue necessary notice in this regard according proper opportunity not only to the school management but also to other persons concerned and to hold an enquiry and pass necessary orders to comply with these directions.

h) Such an enquiry should be completed within a period of six months from the date of receipt of a copy of this order and a compliance report in this regard filed in the registry of this Court without fail. Registry to put up the compliance report before the court for orders.

i) The impugned orders of the government [Annexure-Q & T] to the extent they are adverse to the Interest of the petitioners is hereby quashed by issue of a writ of certiorari. Liberty reserved to respondents 1 to 4 to pass orders afresh, if need be, in accordance with law and on complying with the above directions.

Accordingly, Writ Petition No. 42718 of 2004 is disposed of in the above terms and awarding cost of Rs. 5,000/- (Rupees five thousand only) in favour of each of the petitioners, which is to be deposited before this Court by the respondent-state and on such deposit, is permitted to be withdrawn by the petitioners through their counsel. The cost shall be paid or deposited by the respondent-state within eight weeks from today, failing which, the registry is directed to issue a certificate in favour of the petitioners for recovery of the cost as though it is a decree passed by the civil court against the state without prejudice to any other action against the fifth respondent-state for such failures. The state is at liberty to recover the cost from the erring officer/s. If the conduct and action on the part of the trustees of the fifth respondent management is found to be one violating the criminal law of the land including the Indian Penal Code etc., the respondents 1 to 4 are hereby directed to ensure proper enquiry and action against the trustees of the fifth respondent management.

Re: WP No. 10181 of 2003:

This writ petition filed by the Management of Dr. B.R. Ambedkar Mission Public Trust running the Dr. B.R. Ambedkar Residential School, Ragigudda, Shimoga and the girls hostel attached to the school is also for quashing the Government Order dated 1.1.2003 [copy at Annexure-E in this writ petition] which is marked as Annexure-Q in the above writ petition and while the legality of this order, is already discussed and the outcome indicated in the above writ petition, the Management - writ petitioner has through its Advocate filed a memo dated 18.9.2007 signed by the Principal Secretary of the Trust - T. Ramappa.

The memo which was filed during the course of hearing of the matter is praying for permission to withdraw the writ petition urging that in view of the settlement of the matter between the parties before the Zilla Panchayat, Shimoga on 26.11.2005 and the order of the Zilla Panchayat passed on 13.12.2005, the petition may be permitted to be withdrawn.

Sri. Somnath Reddy, Learned Counsel for the petitioner prayed the court to dismiss the petition as withdrawn and has submitted that the counsel has no further instructions in the matter.

The memo filed seeking for permission to withdraw the writ petition during September 2007 in the midst of hearing is based on a development which is said to have taken place during the year 2005. The petitioner-Trust should have brought this development to the notice of this Court as and when a development of this nature takes place and immediately. More so, in the wake of the subsequent development that some of the persons figuring as respondents have not only themselves come up with the above writ petition, also seeking for not only the very relief of quashing of the Government Order dated 1.1.2003, but also alleging that the petitioner-Management was responsible for such an order being passed by the Government as the petitioner - Management was not properly utilizing the funds received from the Government by way of grant.

If, as indicated in the memo, the matter should have been settled between the parties, the above writ petition also would not have survived for consideration, but the petitioners in the above writ petition have pressed for relief and the matter was examined on merits. Therefore, it is obvious that the so called settlement was neither a total settlement nor to the satisfaction of all persons who, were in the employment of the petitioner-Trust and working either in the school or in the hostel attached to the school.

While, normally there is no impediment for the writ petitioner to withdraw his writ petition, if the withdrawal is after notice to the respondents, it is in the discretion of the court to award cost even for permitting to withdrawal of the writ petition and to dismiss the writ petition as withdrawn. But, in the present case, the withdrawal is on the premise that the matter is settled between the parties, but in fact the dispute between the parties having not been fully settled and the grievance of those respondents in this writ petition who figure as petitioners in the above writ petition having remained without being redressed even after the settlement, the memo is not very accurate but rather one which misleads this Court regarding the developments.

The writ petitioner - Trust which figures as respondent in the above writ petition has not assisted the court by placing necessary facts, material and record before the court. The stand taken in the above writ petition that as no relief is sought for against the petitioner in that writ petition, there is nothing further for the petitioner to do in that writ petition. Such conduct only leads to an inference that the writ petitioner - Trust is totally avoiding any scrutiny by this Court into its conduct or activities and the manner of utilization of the grant provided by the Government for the benefit of the students and also to pay salary and wages to the staff working in the school and hostel.

Therefore, this writ petition is dismissed levying cost on the petitioner payable at the rate of Rs. 5,000/- [Rupees five thousand only] in favour of such of those respondents in this writ petition who figure as petitioners in the above writ petition i.e., in WP No. 42718 of 2004.

Cost to be paid or deposited by the petitioner within a period of four weeks from the date of this order either paying directly to the petitioners or depositing the amount before this Court and on which deposit, the respondents in whose favour cost is awarded are permitted to withdraw it through their counsel.