ORDER
1. Heard Mr. V.T. Rayaraddi, learned Counsel for the petitioners, Mrs. V. Vidya, learned High Court Government Pleader for respondents-1 and 3 and Mr. N.R. Naik, learned Counsel for the 2nd respondent.
2. The present writ petition is directed against the order dated 29-5-1998 (Annexure-D) passed by the 1st respondent setting aside the order of dismissal dated 21-4-1992 (Annexure-B) passed by the President of the petitioner-Society dismissing the services of the 2nd respondent.
3. The petitioner-Akhila Bharatha Kuruhinashetty Sangha (R) is a society registered under the provisions of the Karnataka Societies Registration Act, 1960. According to the petitioner, it is running some educational institutions including J.N. School of Arts and J.N. Pre-Primary Teachers Training Institute. There appears to be some dispute among the office bearers of the society but I do not intend to enter into the same in the present case since in my opinion that aspect is not very material for the present.
4. Admittedly, the 2nd respondent was the principal of J.N. School of Arts at Gadag. It seems that for various acts of omissions and commissions on his part, he was dismissed from service by the management under its order dated 21-4-1992 in a duly held disciplinary proceedings but the said order was set aside by the Director of Higher Education purporting to exercise his powers under clause (viii) of Rule 52 of Grant-in-Aid Code for Secondary Schools. But against the order of dismissal/removal/termination, an appeal under Section 8 of the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975 was provided
to the Educational Appellate Tribunal constituted under Section 10 thereof. However, with coming into force of the Karnataka Education Act, 1983 (in short the ‘Act’) w.e.f. 1-6-1985 the right to file such an appeal by a teacher or an employee has been retained under Section 94 of the said Act before the Tribunal. In view of the said statutory provisions, Rule 52(viii) of Grant-in-Aid Code for Secondary Schools, which was framed under executive powers of the State Government, could not have been resorted to entertain the appeal against the order of disciplinary authority and therefore in my considered opinion the impugned order at Annexure-D passed by the Director of Higher Education cannot be sustained in law and it is liable to be quashed.
5. In the case of Sri Shariff Shivayogi and Guru Govind Shivayogi Panchagnimath Trust v Joint Director of Public Instructions and Another, a similar view was taken in para 8, which reads thus.–
“Sri K. Subba Rao, learned Counsel for the 2nd respondent, strenuously contended that the order of the Joint Director is not open for judicial scrutiny under Article 226 of the Constitution as the said order is made under the provisions of the Grant-in-Aid Code which have no statutory force and which only amount to an understanding between the management and the State Government. In support of his submission, he relied on the decision of this Court in G.R. Ramaswamy Iyengar v D.P.I., Mysore, the relevant portion on which he relied, is contained in paragraphs 6, 7 and 12 of the judgment. I am unable to agree. If the order of the Joint Director is understood as an order issuing a direction for reinstating the teacher, notwithstanding the fact that the management decided to place him under suspension, the order has to be declared as without jurisdiction as the power is conferred only on the Educational Appellate Tribunal constituted under the Act. The decision on which the learned Counsel relied was rendered at a time when the Act was not in force. Subsequently, the legislature has enacted the law constituting the Educational Appellate Tribunal and conferring exclusive power on the Tribunal to entertain appeals against any order made by a Private Management affecting the conditions of service of an employee of any private management. Therefore, to that extent, all the provisions contained in the Grant-in-Aid Code which are admittedly issued by the Government in exercise of its executive powers under Article 162 of the Constitution cannot prevail. Therefore, after the petitioner-management placed the 2nd respondent under suspension, if the 2nd respondent was aggrieved by that order he had to avail the remedy only before the Educational Appellate Tribunal. Neither at his instance nor suo motu, the Joint Director has the power to pass orders which the Educational Appellate Tribunal is competent to pass under the Act. Therefore, if the Joint Director were to make an order usurping the power of the Educational
Appellate Tribunal, such an order could be set aside in a petition under Article 226, as an order made without jurisdiction”.
6. Accordingly, the impugned order at Annexure-D is quashed. At this stage, I may notice here that the Secretary-II of the Department of Education, who was directed to examine aforesaid aspect, has now stated on affidavit that keeping in view the statutory provisions of the Act, the Director of Higher Education could not have entertained the appeal and appropriate executive instructions have been issued to all the officials in the education department not to entertain the appeals of the teachers and the employees who have been subjected to disciplinary proceedings and punished therein. He has placed on record the official memorandum dated 2-9-1995 which has been issued in this regard. The material part of the said memorandum reads thus.–
“It is hereby clarified that since there exists statutory provisions under Section 94 of the Karnataka Education Act for preferring appeals to the Educational Appellate Tribunal in respect of cases of removal, dismissal and reduction in rank, the departmental authorities cannot entertain such appeals. Accordingly, the competent authorities are hereby instructed not to entertain such representations and appeals which are beyond their jurisdiction”.
7. In the above view of the matter, the writ petition is allowed setting liberty to the 3rd respondent to prefer an appeal against the order of dismissal before the Karnataka Education Tribunal, if so advised. Accordingly, if, within two weeks from today any appeal is filed by the 2nd respondent, the Tribunal will proceed to consider the same in accordance with law.