MARINAS SOCIAL WELFARE ASSOCIATION REGD BANGALORE Vs. COMMISSIONER FOR PUBLIC INSTRUCTION IN KARNATAKA

JUDGEMENT

(1.) by this writ petition, the petitioner has challenged the order bearing No. C8(8) (ro&w-aiuort ^d) 48/88-89, dated 23-11-1988 and No. B1/3413/joss^ss/l 16/88-89, dated nil, and to set these letters aside so far as the same pertain to the petitioner as well as to declare the directions contained therein to be arbitrary and illegal and grant such further relief as this court may deem just. While filing the writ petition, the petitioner has sought for an interim relief staying the operation and implementation and further proceedings in pursuance thereof of those letters referred to above which have been annexed as annexures-a and b to the writ petition.

(2.) according to the petitioner the case of the petitioner is that the petitioner is a registered society catering to the educational needs of vulnerable sections of people in particular and is running st. Marina's english medium high school, maratha block, 65th cross, n.r. mohalla extension, mysore, as one of the institutions run by him. The petitioner's case is that the petitioner received letter Annexure-A bearing No. C8(8) (roie-asuort ^d) 48/88-89, dated 23-11-1988 issued to the institution which do not have any sanction or recognition from the directorate of public instruction and he directed such institutions which have not been sanctioned or recognised by the directorate of public instructions should be closed. In continuation of the said letter annexure-a, the petitioner's case is that petitioner received another memo bearing No. B1/3413/s3333a,83/116/88-89 bearing no date. The petitioner's case, is that the aforementioned school has also been included in the said consequential memo, while the memo issued by the first respondent do not even mention the names of any institutions. Feeling aggrieved from these annexures-a and b i.e., the circular and memo the petitioner has filed this petition under article 226 challenging the circular dated 23-11-1988 Annexure-A and the memo Annexure-B which had been issued in pursuance of letter dated 23-11-1988. The name of the petitioner-institution in this memo is mentioned at si. No. 6. The petitioner's further case is that the orders are bereft of jurisdiction and opposed the principles of natural Justice and the right to run educational institution conferred by article 19(l)(g) and article 26 of the constitution. The petitioner's further case is that while issuing the memo, the opposite parties have illegally assumed and raised illegally presumption that the institution run by the petitioner is unrecognised without any basis. The petitioner's case is that as such the impugned circular and memo are illegal,' null and void. On behalf of the opposite parties, no counter affidavit appears to have been filed in the present case by the respondents. Appearance have been put by the learned government counsel Smt. L.y. premavathi on their behalf.

(3.) I have heard Sri shantha kumar, learned counsel for the petitioner and the learned government counsel Smt. L.y. premavathi. The learned counsel for the petitioner Sri kumar urged before me that the order impugned is illegal, null and void as it adversely affects the petitioner's fundamental right to establish the educational institution conferred under article 19(1)(g) as well as under article 26 of the constitution. Later on the petitioner's counsel tried to raise the contention that their petitioner possessed the right i.e., fundamental right under article 30 of the Constitution which is affected adversely by circular and memo and as such notice or the memo which has been issued to the petitioner to close the school without giving any opportunity to the petitioner to show-cause against the same, the said orders impugned are illegal, null and void on account of being in violation of the principles of natural justice. This is what the argument is. The contention made by the learned counsel for the petitioner is hotly contested by the learned government counsel Smt. Premavathi. Smt. Premavathi urged that imparting education or establishing educational institution cannot be termed and said to be the fundamental right of any person under article 19(l)(g) as imparting education or establishing educational institution is neither trade nor business nor industry nor is it practicing of profession or occupation. She submitted that it is in fact a supplementary activity or an activity supplementary to the principle activity carried on by the state for the matter of securing the right of education to the citizens, and when it is a supplementary activity and not an independent activity then it cannot be said to be something conferred by article 19(l)(g). She further submitted that in Karnataka there is the Karnataka Education Act under which the educational institutions can be started. The educational institution whether it be primary or secondary or higher, can be established only with the permission of the state government or authority under the state government and that is subject to certain conditions or limitations provided therein. It is submitted that the petitioner has got no permission or sanction from the state to start the educational institution, so he was running the educational institution illegally. The learned government counsel further contended that the article 26 is not applicable and reliance is wrongly placed thereon by the learned counsel for the petitioner and as regards article 30 as nowhere in the petition as petitioner's case it is stated that the petitioner is a body representing minority communities, religious or linguistic and that this has not been taken as a case that the petitioner belongs to the minority community, religious or linguistic and further that no case of claim of any right under article 30 of the Constitution having been set-up nor facts relevant thereto have been asserted or alleged in the writ petition. So no such claim made or set-up in course of arguments can be considered. Smt. Premavathi further submitted that the state authorities acted within their powers or jurisdiction in issuing the direction that all those who are running institutions without any authority or permission or recognition from the state should close down those institutions, in the best interest of the education and people. That as such the petitioner's writ petition deserves to be dismissed as the order impugned is neither illegal nor void.