MURUGENDRA SHIKSHANA SAMSTHA KAVATKOPTALUK ATHNI BELGAUM DISTRICT Vs. COMMISSIONER FOR PUBLIC INSTRUCTIONS BANGALORE

JUDGEMENT

(1.) THIS petition was argued in detail and I have heard the learned advocates at considerable length. Basically, two points have emerged, the first of them being that the petitioner-institutions contends that under the agreement exhibit-a, that there was a scheme for merging the petitioner's and the respondent 3-institutions and that according to them this merger had effectively taken place. They also contend that the various inspecting authorities had submitted their recommendations and further more that the principal and the other staff members had also signed the agreement exhibit-a signifying their consent to such merger. The grievance of the petitioner is that the respondent 1 has passed a short Order wherein he has cryptically stated that such a merger is undesirable and, therefore, by implication has rejected the proposal. According to the petitioners the merger has taken effect and they also contend that they are virtually running the respondent 3 institution and that at this stage, it is not permissible for the respondent 1 to refuse sanction. The additional grievance is that in a serious matter like this the petitioners ought to have been given an opportunity of putting forward their case and in this context Sri desai on behalf of the petitioners has raised an interesting argument. What he submits is that it is now well-settled that if an institution is to, for any reason start functioning at a different place from the original one in respect of which the sanction or recognition was granted, that it becomes necessary to obtain fresh sanction and that in keeping with this requirement, the provisions of Section 36 of the Karnataka Education Act, would come into operation. He contends that when the approval was sought, in actual fact it was not an application for approval of the merger but that it was a fresh application for recognition of the respondent 3 institution which becomes necessary by virtue of the change of venue. The proviso to Section 36 (7) prescribes that an application for recognition shall not be rejected without hearing the party and Sri desai submits that the present Order is effectively a rejection and that passing of such an Order without hearing his clients is in breach of the provisions to Section 36 (7 ). The added submission is that if the respondent 1 had for valid reason decided not to approve of the application that he ought to have set-out brief reasons and that the impugned Order is liable to be quashed on the ground that if suffers from the vice of arbitrariness in so far as it is devoid of any reasons having been set-out.

(2.) THE fallacy in the entire submission stems from the fact that the application made to the respondent 1 was not an application for fresh recognition of the respondent 3 institution. Though Sri desai has submitted that this is so by implication, the fact remains that the application made was one for approval of the merger of the two societies and was not an application for fresh recognition of the respondent 3. If a partly desires to contend that the application was one for recognition then it must be very specifically pleaded, but more importantly, the application made to the authority itself must state so in unequivocal terms. In the present instance, according to the petitioners, merger of the two societies was contemplated and an agreement was drafted out and the agreement is supposed to have taken effect. No such agreement can take effect unless, in the case of educational institutions due approval of the authorities for the scheme is first obtained. That is, condition precedent. In the absence of such permission being granted by the authorities it is bound to contend that the transformation has taken place because that is at the highest a private arrangement of which the law would not take cognizance. Since, the application was not specifically one for recognition the question of granting any hearing to the parties does not arise. I do concede that there is some substance in Sri desai's grievance that the first respondent ought to have passed a slightly better Order in so far as in serious matters of this type and that too where the case was highly contested by the parties, it would have been far more desirable for the first respondent to have indicated even briefly, the reason in support of his conclusions. That, however, will not vitiate the Order because the authority concerned has in the reply affidavit set-out very clear and very cogent grounds in support of that order. I accept that judicial discretion which the authority had to exercise while deciding whether the merger could be permitted or not was required to be reflected in the Order that is passed. In this instance he has indicated that the proposal is not desirable. The fact remains that the petitioner-institution is not an aided institution and the respondent 3 is an established aided institution. Under these circumstances, the conclusion of respondent 1 that it is not desirable to permit any merger of two such dissimilar institutions is perfectly valid and justified. Instances have come up even before this court where on all sorts of pretexts aided institutions are sought to be taken over with the whole object of getting hold of the grant-in-aid amounts. This is not in the public interest nor does the law sanction it and under these circumstances, therefore, I see no fault whatsoever in the conclusion arrived at by the first respondent.

(3.) THERE is another aspect to the matter which has been projected by the learned Advocate who represent respondent 3. He has contended that the documents themselves are a fabrication but I refrain from commenting thereon because the matter is apparently before the police authorities and it is open to both the parties to establish their cases there. What he has also emphasised is that these are both registered societies and under the Karnataka societies registration ACT that if such societies are to be merged that there is a mandatory procedure prescribed where under notice is required to be given to every member of each of the societies and a resolution is required to be passed in the manner prescribed by Section 21 after which a period of 30 days has to elapse and the resolution has to be passed once again. Learned Advocate points out, and quite justifiably, that in this background, assuming without admitting that some agreement has been entered into, that this agreement can never have the legal effect of merging one society with another one and that too at the hands of the chairman alone. The procedure for merger has been prescribed by law and for good reason and the learned Advocate submits that in the absence thereof and more so where the respondent 3 itself denies that any such merger has taken place in the manner prescribed by law, the plea of merger itself has to be discarded. This is a hotly contested proceeding and since both the parties had represented their cases before the authorities of the education department, there is no warrant for any remand or rehearing as asked for by the petitioners.