IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.50717/2019 C/w.
WRIT PETITION No.50445/2019 (EDN – RES) IN W.P.No.50717/2019:
BETWEEN:
SRI.SRINIVASA EDUCATION SOCIETY [R] SRI SRINIVASANILAYA 7TH CROSS, NEAR Dr. RAJAKUMAR PARK SARASWATHIPURA TUMKUR-572105 REP. BY ITS SECRETARY SRI T.JANARDHANA AGED 45 YEARS. …PETITIONER (BY SRI S.P.KULKARNI, ADV.) AND:
1. THE STATE OF KARNATAKA DEPT. OF EDUCATION [PRE-UNIVERSITY] M.S. BUILDING, Dr. AMBEDKAR VEEDI BENGALURU-560001 REP. BY ITS PRINCIPAL SECRETARY.
2. THE DIRECTOR DEPT. OF PRE-UNIVERSITY EDUCATION SAMPIGE ROAD, 18TH CROSS MALLESHWARAM BENGALURU-560012.
3. THE DEPUTY DIRECTOR DEPT. OF PRE-UNIVERSITY EDUCATION TUMKUR DISTRICT BOYS GOVT., P.U. COLLEGE COMPOUND TUMKUR-587101. …RESPONDENTS (BY SMT.PRAMODHINI KISHAN, AGA.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 20.08.2019 MADE IN GOVERNMENT ORDER PASSED BY THE RESPONDENT No.1 AT ANNEXURE-Z13 WHEREIN THE RESPONDENT No.1 HAS DIRECTED THE CANCELLATION OF PERMISSION, RECOGNITION GRANTED TO THE SRI SRINIVASA PRE-UNIVERSITY COLLEGE, KORATAGERE, GUBBI TALUK, TUMKUR DISTRICT UNDER THE MANAGEMENT AND CONTROL OF THE PETITIONER SOCIETY AND WITHDRAWAL OF GRANT-IN-AID GRANTED TO THE SAID COLLEGE AND DIRECTION TO INITIATE PROCEEDINGS FOR RECOVERY OF THE SALARY GRANT ALREADY PAID BEING ARBITRARY, ERRONEOUS, OPPOSED TO LAW, EQUITY AND JUSTICE; AND ETC., IN W.P.No.50445/2019:
BETWEEN:
NANDINI LAYOUT SRI MANJUNATH EDUCATION SOCIETY [R] MUNESHWARA BLOCK, NANDINI LAYOUT MAHALAKSHMI LAYOUT BENGALURU-560086 REP. BY ITS SECRETARY SRI T.LOKESH. …PETITIONER (BY SRI S.P.KULKARNI, ADV.) AND:
1. THE STATE OF KARNATAKA DEPT. OF EDUCATION [PRE-UNIVERSITY] M.S. BUILDING, Dr. AMBEDKAR VEEDI BENGALURU-560001 REP. BY ITS PRINCIPAL SECRETARY.
2. THE DIRECTOR DEPT. OF PRE-UNIVERSITY EDUCATION SAMPIGE ROAD, 18TH CROSS MALLESHWARAM BENGALURU-560012.
3. THE DEPUTY DIRECTOR DEPT. OF PRE-UNIVERSITY EDUCATION TUMKUR DISTRICT BOYS GOVT., P.U. COLLEGE COMPOUND TUMKUR-587101. …RESPONDENTS (BY SMT.PRAMODHINI KISHAN, AGA.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 20.08.2019 MADE IN GOVERNMENT ORDER PASSED BY THE RESPONDENT No.1 [AT ANNEXURE-Q] WHEREIN THE RESPONDENT No.1 HAS DIRECTED THE CANCELLATION OF PERMISSION, RECOGNITION GRANTED TO THE SRI SRINIVASA PRE-UNIVERSITY COLLEGE AT GUBBI TOWN, TUMKUR DISTRICT UNDER THE MANAGEMENT AND CONTROL OF THE PETITIONER SOCIETY AND WITHDRAWAL OF GRANT-IN-AID GRANTED TO THE SAID COLLEGE AND DIRECTION TO INITIATE PROCEEDINGS FOR RECOVERY OF THE SALARY GRANT ALREADY PAID, BEING ARBITRARY, ERRONEOUS, OPPOSED TO LAW, EQUITY AND JUSTICE; AND ETC., THESE PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R These petitions involving similar and akin issues, have been heard together and disposed of by this common order.
2. The petitioner has challenged the order dated 20.08.2019 passed by the respondent No.1 whereby the respondent No.1 has directed for the cancellation of permission and recognition granted to the institutions run under the management and control of the petitioners-society, withdrawing the grant-in-aid to the said institutions, further to initiate proceedings for recovery of the salary grant already paid.
3. It is submitted that the petitioners-society has established several primary schools, high schools and Pre-university Colleges for the benefit of the people of locality more specifically for the benefit of Scheduled Castes and Scheduled Tribes during the year 1984-85. The institutions have been functioning with the prior permission of the State Government and are recognized. Many of these institutions have been admitted to State Government Grant-In-Aid.
4. It is the allegation of the Department that Sri K.Thimmaraju, the Secretary of the petitioners- society, a governing council member has mis-
represented before the Department in order to obtain the Grant-In-Aid that he belongs to the category- Schedule Caste/Schedule Tribe. It is contended that Sri.K.Thimmaraju being a “Kammara” which is a Backward Class Community in Tumkur District and a member in the Governing body of the petitioners- society, the institutions managed by the petitioners- society are eligible for grant in-aid on par with SC, ST management schools.
5. It is submitted that the petitioner has submitted representations for permission to convert the Society into Trust, to the Secretary, Department of Education, Government of Karnataka, Deputy Director, Department of Pre-university Education. Further the petitioner has submitted the report of resolution of the educational society to the District Registrar, Tumkur seeking for conversion of Society into Trust. Thereafter, awaiting permission of the District Registrar of Societies, Tumkur, a public charitable Trust was registered with Sri.K.Timmaraju as the managing Trustee. After the creation of the Trust, the management and administration of the institutions established by the Society was carried out by the Governing Body of the Trust.
6. It is submitted the creation of the Trust and change of the managing committee of the schools and colleges established by the petitioners-society was intimated to the Secretary, Government of Karnataka and also to the Director, Department of Pre-University Education.
7. It is contended that the State Government vide order dated 06.10.2007 has decided to provide an opportunity to all private educational institutions for admission to the State Government Grant-In-Aid which were established as on 1987 and were continuously run without any gap till the academic year 1992-93. By virtue of the said order, the petitioner is entitled to Grant-In-Aid. The petitioner-society has not violated any of the provisions of the Karnataka Education Act, 1983 [‘Act 1983’] and the Rules made thereunder or any of provisions of the Karnataka Societies Act, 1960 [‘Act 1960’ for short] and the Rules made thereunder. However, the respondent No.1 had issued a show cause notice intending to take action under Section 39 and 53 of the Act 1983 for cancellation of recognition and withdrawal of the grant. The petitioner has submitted a detailed explanation responding to the said show cause notice. The respondent No.1 without holding proper enquiry and hearing the matter and on erroneous appreciation of law and facts has passed the order impugned herein, which calls for interference by this Court.
8. Learned counsel Sri.S.P.Kulkarni appearing for the petitioner submitted that the respondent No.1 with a pre-meditated notion, has come to a conclusion that Sri.K.Thimmaraju, the former secretary of the petitioners-Society has falsely claimed caste benefit which has no relevancy for the Grant-In-Aid of the colleges managed by the petitioners-Society. Learned counsel placing reliance on the order of the Cognate Bench of this Court in W.P.No.22679/2011 [D.D.06.07.2012] submitted that any change in the Composition of the managing committee of the educational institution after expiry of three years of Grant-In-Aid, would not be a ground for cancellation of the Grant-In-Aid inasmuch as the status of the society run with SC/ST members. It was argued that mere conversion of Society into Trust does not amount to transfer; moreover, the property of the Petitioners Society was never transferred into the Trust.
9. Learned AGA appearing for the respondents submitted that the petitioners Society has established the Pre-university Colleges and sought for Grant-In-Aid on the premise that the same was run by the management belonging to Scheduled Caste and Scheduled Tribe. At the relevant point of time as per the Government Order dated 07.05.2007, those Pre- University colleges run by the management belonging to Scheduled Caste/Scheduled Tribes established before 31.03.1992 could be admitted to Grant-In-Aid. The Institutions run by the petitioners-Society could not have been admitted to Grant-In-Aid under General Category.
10. In order to get the benefit of the Grant-In- Aid, the petitioners-Society has produced false certificate to the effect that the managing committee was governed by the person/s belonging to SC/ST. Thereafter, on 13.03.1993 without obtaining any permission from the District Registrar of Societies, the Society was converted into a Trust belonging to General category. Reliance was placed on the order of the Cognate Bench of this Court in W.P.No.29205/2009 [D.D. 17.09.2012] whereby the endorsement issued by the Jurisdictional Tahasildar holding that the said Sri.K.Thimmaraju does not belong to Scheduled Caste/Scheduled Tribe was upheld.
11. It was submitted that the said decision has been confirmed in W.A.No.6968/2012 [D.D. 19.02.2013]. The petitioners have contravened Section 107 of the Act 1983. Considering these aspects, the order impugned has been passed after issuing show cause notice and analysing the reply/objections submitted. Accordingly, the writ petitions deserve to be rejected.
12. I have carefully considered the arguments advanced by the learned counsel for the respective parties and perused the material on record.
13. The Government Order dated 7.5.2007 indicates that the Pre-University colleges run by the Management belonging to the scheduled caste and scheduled tribe functioning with effect from 1.6.1987 to 31.3.1992 are eligible for grant-in-aid. In terms of the said G.O. Sri. Srinivasa Pre-University College Koratagere, Tumkur District, Sri Swamy Pre-University College, Kunigal, Tumkur District governed by the management of Sri Srinivasa Education Society and Sri Srinivasa Pre-University College, Gubbi, Tumkur District governed by Sri. Manjunatha Vidya Samsthe, Muneshwara Block, Mahalakshmi Layout, Bangalore were accorded with the benefit of Grant-in-Aid based on the caste certificate submitted by Sri.K. Thimmaraju, the Secretary of the said Societies. It is not in dispute that on the complaints received inasmuch as the caste certificate issued to the Sri.K.Thimmaraju as he belongs to scheduled tribe, the 1st respondent State of Karnataka had referred the matter to Caste Verification Committee (CVC) for verification. After holding an enquiry, CVC held that the said Sri K. Thimmaraju does not belong to the scheduled tribe which was questioned before this Court in W.P.No.29205/2009. The Co-ordinate Bench of this Court dismissed the writ petition confirming the order of the Tahsildar. The same has been approved in Writ Appeal No.6968/2012.
14. Rule 22 of the Karnataka Pre-University Education (Academic, Registration, Administration and Grant-In-Aid etc.,) Rules, 2006 reads thus:
“ineligibility of certain Private Pre- University Colleges to Grant-In-Aid: All Private Pre-University Colleges including Pre- University colleges run by the Private Educational Institutions other than the Scheduled Castes and Schedules Tribes established or permitted to be established on or after First day of June, 1987, but started functioning from the Academic year 1987-88 onwards shall be permanently ineligible for Grant-In-Aid. All Private Educational Institutions run by the persons belonging to the Schedule Caste or the Schedule Tribes established or permitted to be so established on or after the 31st day of March 1992, or such of those institutions permitted to the established prior to the 31st day of March 1992, but started functioning from the academic year 1992-93 onwards for imparting Pre-University education shall be permanently ineligible for Grant-In-Aid.”
15. Hence, the three Institutions herein, could not have been admitted to Grant-in-Aid under General Category.
16. It is not in dispute that the petitioners Society has been converted into a Trust on 13.10.1993. Section 107 of the Karnataka Education Act,1983 (‘Act’ for short) reads thus:
“107. Restriction on alienation of property of private educational institution.-
(1) Notwithstanding anything in any law for the time being in force, no sale, mortgage, lease, pledge, charge or transfer of possession in respect of any property of a private educational institution shall be made or created except with the previous permission in writing of the competent authority on an application made in this behalf.
(2)(a) No permission applied for under sub- section (1) shall be refused by the competent authority except where the grant of such permission will in its opinion, adversely affect the working of the institution.
(b)The competent authority shall pass an order, either granting or refusing permission applied for, within a period of sixty days from the date of receipt of the application.
(3)Any person aggrieved by an order refusing permission under sub-section (2) may, in such manner and within such time, as may be prescribed, appeal to the prescribed authority.
(4)Any transaction made in contravention of sub-section (1) shall be null and void.”
Section 41(5) of the Act reads thus;
“(5) If there is change in the Governing Council of the institution or change in the location of the institution a fresh application for recognition shall be made as if it were a newly started institution.”
Section 53 of the Act reads thus:
Powers of State Government to withhold, reduce or withdraw grant.-
(1) Notwithstanding anything contained in this Chapter, the State Government may, after such enquiry as they may deem fit, withhold, reduce or withdraw any grant payable during the year to an educational institution having regard to the funds at the disposal of the State Government or the conduct and efficiency and the financial condition of such institution, after giving an opportunity to the Governing Council of the institution concerned of making a representation against such withholding, reduction or withdrawal.
(2) Without prejudice to the generality of the provisions of sub-section (1) or any other provision of this Act, the State Government may, after such enquiry as they may deem fit, withhold, reduce or withdraw any grant payable to any educational institution if the Governing Council of the institution concerned,-
(i) fails to fulfil all or any of the conditions of grant;
(ii) denies admission to any citizen on grounds only of religion, race, caste, language or any of them;
(iii) allows any employee of the institution to take part in any agitation intended to bring or attempt to bring into hatred or contempt or intended to excite or attempt to excite disaffection towards the Government established by law in India;
(iv) directly or indirectly, encourages any propaganda or practice of wounding the religious feelings of any class of citizens of India or insulting the religion or the religious beliefs of that class; is guilty of falsification of registers or mis- use of funds for purposes other than those for which they are collected;
(v) fails to remedy within such reasonable time as specified by the competent authority the defects in the maintenance of accounts pointed out by the auditors; or (vi) fails to restore, within the time specified by the competent authority, an employee whose services have been wrongfully dispensed with or fails to pay him any arrears of salary or other benefits when directed to do so by the competent authority.
(3) Subject to the other provisions of this Act, every order passed under this section shall be final and shall not be questioned in any court of law.”
17. Section 41(5) of the Act makes it clear that if there is any change in Governing Council, a fresh application for recognition shall be made as if it is newly started Institution. Sri Srinivasa Education Society is converted into a family Trust with effect from 13.10.1993 and the educational Institutions run by the petitioners - Society are now governed by the Trust. However, no permission is accorded by the department for such change. Hence, such action of the petitioners - Society runs contrary to the provisions of Section 107 of the Act.
18. It would be beneficial to refer to the judgment of this Court in Sri Ramanjaneyaswami Vidya Saunsthe, Kumbaloor, Hobbali Taluk, Shimoga District reported in 2000 (2) KLJ 508, wherein this Court has observed that no educational institution can claim grant-in-aid as a matter of right. This Court while considering denial of grant-in-aid to educational institutions which started functioning from academic year 1987-88, declaring such institutions permanently ineligible for grant-in-aid by the State held that, grant or refusal of grant-in-aid is a matter that falls in the realm of State policy. The institution has no fundamental right to claim aid from the Government.
19. Section 53(2)(i) specifically empowers the State Government to withdraw grant if the governing council of the Institution concerned fails to fulfill all or any of the conditions of grant. The grant was made on the premise that the Pre-University Colleges governed by the petitioners – society belonged to the Schedule Tribe category, a mis-representation made by Sri. K. Thimmaraju who is now the Managing Trustee of the Pre-University Colleges/Institutions in question.
20. In the decision of the Cognate Bench of this court in W.P.No.22679/2011. In W.P.No.22679/2011, this court while examining the entitlement of salary grant subsequent to change of composition of managing committee after 30 years with reference to the G.O. dated 06.06.1977 as amended on 19.08.1977 relating to the amendment to Rule 22 of the Rules as it stood then, has held that such change in composition of the management cannot disentitle it from receiving the salary grant. However, in the present set of facts, the further amendment to Rule 22 and the G.O. dated 07.05.2007 quoted supra are applicable. The petitioners-Society obtaining the Grant-in-Aid on the basis of a false caste certificate disentitles to claim the Grant-in-Aid.
21. The caste certificate, basis for obtaining the Grant-in-Aid benefit to the institutions of the petitioners- society being held to be invalid and the subsequent change of the Society into a Trust sans permission of the department disentitles the petitioner from claiming the Grant-In-Aid and the recognition under the provisions of the Act.
22. For the aforesaid reasons, no exception can be found with the order impugned.
Writ petitions stand dismissed.
Sd/- JUDGE NC.