ORDER
P. Vishwanatha Shetty, J.
1. Since the questions raised in these petitions are similar and identical, all these petitions are heard together and disposed of by this common order.
2. According to the averment of the petitioner in Writ Petition No. 37865 of 1995, he has been working as Selection Grade Lecturer in A.P.S. College of Arts and Science, N.R. Colony, Bangalore, since 1967; and he has also been working as a visiting Professor of Law at BMS College of Law. It is his further case that he has two sons who are studying PUC with Physics, Chemistry, Mathematics and Biology as optionals.
3. The petitioner in Writ Petition No. 35504 of 2001, states that he has been working as Lecturer in Sri M.V. Government Science College, New Town, Bhadravathi in the Department of Physics and that he has the teaching experience of eighteen years and is one of the eminent Lecturers in Physics subject. Petitioners in Writ Petition No. 5974 of 2002 claim to be the parents of students studying in different classes in different educational institutions.
4. In all these petitions, the petitioners have prayed for striking down of Sections 2(28) and 4 of the Karnataka Education Act (hereinafter referred to as the 'Act'), as amended by means of Act 1 of 1995 on the ground that the said provisions are unconstitutional. According to the case set out by petitioners in Writ Petition Nos. 37865 of 1995 and 35504 of 2001, they being the eminent teachers having acquired vast knowledge on account of academic excellence achieved by them and also the experience in teaching, if they are prevented from giving tuition, it will interfere with their right to freedom of expression and propagate knowledge and learning guaranteed to them under Article 19(1)(a) of the Constitution of India. According to them, it is in the larger public interest, that the Professors/Lecturers/Teachers in the University level should be permitted to carry out tuition along with their teaching work in the educational institutions. According to the parents of the students who are petitioners in Writ Petition No. 5974 of 2002, the students must be allowed to have free choice of securing the benefit of tuition from the experienced and knowledgeable Professors/Lecturers/Teachers, who are working in the educational institutions.
5. Sri V.K. Bhat, learned Counsel appearing for the petitioners, challenging the constitutional validity of the impugned provisions, reiterating the stand taken in the petitions, submitted that the impugned provisions are liable to be declared as unconstitutional on two grounds. Firstly, on the ground that the same interferes with the right to propagate knowledge and learning, guaranteed to the Professors/Lecturers/Teachers under Article 19(1)(a) of the Constitution of India. Elaborating this submission, he pointed out that the right guaranteed to them under Article 19(1)(a) of the Constitution can be restricted or curtailed only in strict compliance of the law made under Clause (2) of Article 19 of the Constitution of India. According to him, the State has the power to make a law, abridging or curtailing the power guaranteed to a citizen under Article 19(1)(a) of the Constitution of India provided that such law made is a reasonable restriction imposed on the rights guaranteed under Article 19(1)(a) of the Constitution of India, made in the interests of sovereignty and integrity of the country, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence. It is his submission that the restriction imposed, prohibiting the tuition can neither be considered as a reasonable restriction nor can be treated as a restriction imposed which falls under various matters mentioned in Clause (2) of Article 19 of the Constitution of India. Secondly, he submitted that the impugned provisions are also liable to be declared as unconstitutional as it violates the right to equality guaranteed to the petitioners under Article 14 of the Constitution of India. According to him, while there is no restriction imposed on any other member of the public from giving tuition, restriction in question imposed only on the Professors/Lecturers/Teachers employed in the educational institutions is highly discriminatory in nature. He submits that classification made among teachers who are teaching in educational institutions on the one hand and others who are not employed in the educational institutions is not a reasonable classification and also there is no nexus with the object sought to be achieved. According to the learned Counsel, if the object of the impugned provision is to prevent tuition, there cannot be any good reason to permit tuition from teachers or persons other than those who are part or employees of educational institutions. He also relied upon the decision of the Hon'ble Supreme Court in the case of Romesh Thappar v. State of Madras : 1950CriLJ1514 and drew my attention to paragraphs [6] and [10] of the judgment which read as follows.-
'Para [6] Turning now to the merits, there can be no doubt that freedom of speech and expression includes freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation. 'Liberty of circulation as essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value': Ex parte Jackson, 96 US 727. See also Lovell v. City of Griffin, 303 US 444. It is therefore perfectly clear that the order of the Government of Madras would be a violation of the petitioner's fundamental right under Article 19(1)(a), unless Section 9(1-A) of the impugned Act under which it was made is saved by the reservations mentioned in Clause (2) of Article 19 which (omitting immaterial words regarding laws relating to libel, slander etc., with which we are not concerned in this case) saves the operation of any 'existing law insofar as it relates to any matter which undermines the security of, or tends to overthrow the State'. The question accordingly arises whether the impugned Act, insofar as it purports by Section 9(1-A) to authorise the Provincial Government...'.
'Para [10]..... Similarly, the Constitution in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in Article 19(1), has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it, and made their prevention the sole justification for legislative abridgement of freedom of speech and expression, that is to say, nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression,....'.
6. Sri R.G. Hegde, learned Counsel appearing for the parents of the students, submitted that the prohibition imposed from giving tuition takes away the right of parents and students to secure specialised coaching to such of those students who are weak in certain subjects; and this would seriously affect the rights of the students to pursue their education; and according to the learned Counsel, this would actually work against the public interest rather than serving public interest. While supporting the contention of Sri Bhat, Sri Hegde also relied upon the decision of the Hon'ble Supreme Court in the case of Romesh Thappar, supra.
7. However, Sri Srinivasa Murthy, learned Government Advocate strongly supported the impugned provision and pointed out that the impugned provision prohibiting tuition has been incorporated in the Act, keeping in mind the public interest, the interest of the student fraternity, the academic excellence and maintenance of quality education and teaching in the educational institutions. It is his submission that the Professors/Lecturers/Teachers who are all employees of an educational institution cannot challenge the impugned provision on the ground that the right guaranteed to them under Article 19(1)(a) of the Constitution of India is violated. According to him, the petitioners in W.P. Nos. 37865 of 1995 and 35504 of 2001 and other Professors/Lecturers who get themselves appointed as Professors/Lecturers/Teachers, in educational institutions are governed by the provisions of the Act and the rules, which govern the establishment and running of the educational institutions and service conditions governing them in the said educational institutions. It is his further submission that even otherwise, the impugned provision must be considered as a reasonable restriction imposed by the State curtailing the right guaranteed to the petitioners under Article 19(1)(a) of the Constitution of India in exercise of the power conferred on it under Clause (2) of Article 19 of the Constitution of India as giving tuition by the teachers employed in a recognised educational institution would be totally against public morality and public order. According to the learned Government Advocate, the members of general public and many Educationists have expressed their views against permitting tuition by the teachers employed in recognised educational institutions. He also submitted that the classification made between the Professors/Lecturers/Teachers who are employees/staff of educational institutions which are aided and recognised by the State on the one hand for whom the restriction in question applies and others to whom the restriction in question does not apply is a reasonable classification; and that the said classification has a direct nexus with the object sought to be achieved. The object of legislation according to the learned Government Advocate is to see that the Professors/Lecturers/Teachers who are employees or staff in educational institutions bestow full attention, energy, capacity and their knowledge in the educational institutions itself so that the quality of imparting education or knowledge in the educational institutions may be of very high standard and is not diluted on account of diverted attention. It is his submission that there is limitation to human capacity to work; and if these Professors/Teachers are allowed to work throughout the day, without any time for rest and to prepare for the subject to be taught in the educational institutions where they are employed, it would seriously affect the quality of education and the teaching in the educational institutions. He farther pointed out that the students should be allowed to develop on their own the quality of learning and to have more time for studies at home. In support of his above contentions, he relied upon the decision of the Hon'ble Supreme Court in the case of Sukumar Mukherjee v. State of West Bengal and Anr. : (1994)ILLJ94SC .
8. In the light of the rival contentions advanced, the only question that would emerge for my consideration is as to whether Sub-section (28) of Sections 2 and 4 of the Act are liable to be declared as unconstitutional on the grounds urged by the learned Counsel appearing for the petitioners?
9. It would be useful to refer to Sub-section (28) of Sections 2 and 4 of the Act, before I proceed to consider the question that arises for consideration in these writ petitions. They read as follows.-
'Section 2(28) 'Private Tuition' means instruction or teaching given by an employee of a recognised educational institution outside its premises to students'.
'Section 4. Prohibition of private tuition.--On and after the date of commencement of this Act, no institution recognised or deemed to be recognised under this Act, shall permit any of its employees to give private tuition nor shall such employee impart such tuition to any person'.
10. Sub-section (28) of Section 2 defines a 'private tuition' as meaning any instruction or teaching given by an employee of a recognised educational institution outside its premises to students. Section 4 of the Act, extracted above, consists of two parts. First part is an obligation or a duty cast on all institutions recognised or deemed to be recognised under the Act to prevent its employees from giving private tuition to any person. The second part is a prohibition imposed on such employees or staff of recognised educational institution or institutions deemed to have been recognised under the Act from imparting private tuition to any person. The preamble to the Act provides that the Act has been made with a view to provide for the better organisation, discipline and control over educational institutions in the State and also for the purpose of planned development of educational institutions, inculcation of healthy educational practice, maintenance and improvement in the standards of educational institutions in the State with a view to fostering the harmonious development of the mental and physical faculties of students and cultivating a scientific and secular outlook through education. Therefore, from a reading of the preamble of the Act, it is clear that the Act has been made with a view to have supervision and control over educational institutions in respect of various matters set out in the Act with the sole object of 'fostering the harmonious development of the mental and physical faculties of students and cultivating a scientific and secular outlook through education'. Section 3 of the Act confers power on the State Government, subject to the provision contained in Sub-section (3) of Section 1 of the Act, to regulate the general education and various types of other education set out in the said provision. Sub-section (2) of Section 3 of the Act provides for the various matters which the Government can take steps to control/regulate the education in the State. Chapter II of the Act provides for the appointment of various hierarchy of Educational Officers. Section 5 of the Act provides for promotion of education of the weaker sections and the handicapped; Section 7 of the Act confers power on the Government to prescribe curricula in the educational institutions by making rules; Section 11 of the Act confers power on the State Government, to direct by notification to make primary education to be compulsory in specified areas; and Section 12 of the Act provides for framing of schemes for promoting primary education. Section 14 of the Act provides for responsibility of a parent to cause his child to attend school; Section 16 of the Act provides for establishing special schools for physically or mentally deficient children; Section 18 of the Act prohibits the employment of children so as to prevent them from attending schools; Section 19 of the Act provides for primary education to be free. Chapter IV of the Act provides for maintaining transparency and academic excellence in the educational institutions; Chapter VI of the Act provides for recognition of educational institutions and constitution of expert body and withdrawal of recognition. Chapter VII of the Act provides for duty of the management of recognised private institutions and local authority institutions, constitution of Managing Committee etc.; Chapter IX provides for terms and conditions on which grants are required to be extended to the educational institutions; Chapter X provides for inspection of Account Books of the educational institutions etc. From the scheme of the Act, it is clear that the Act has been made with a view to provide an opportunity to educate large sections of the society including the weaker sections and handicapped persons of the society with an emphasis to provide quality education and maintenance of very high academic standard in education and regulate the function of educational institutions in larger public interest. Item 25 of Seventh Schedule in List III confers power both on the State and the Central Government to make appropriate legislations for the purpose of education. Therefore, the question is when the State Legislature, in exercise of its legislative power conferred on it in List III of the Constitution, has passed the Act, in the State of Karnataka, whether Section 4 which has the effect of banning tuition by the employees of recognised educational institutions, can be said that such a provision is unconstitutional on the ground that it affects the right guaranteed to the petitioners under Article 19(1)(a) of the Constitution of India? Article 19(1)(a) of the Constitution guarantees to all the citizens of this country, freedom of speech and expression. Further, Clause (2) of Article 19 of the Constitution further provides 'nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the right conferred, by the said sub-clause in the interests of the sovereignty, integrity of India; the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence'. The petitioners in Writ Petition Nos. 37865 of 1995 and 35504 of 2001 are admittedly Professors working in the recognised educational institutions. Once they become the employees of an educational institution they are bound by service conditions of the educational institutions. The educational institutions are bound by the terms and conditions of the recognition granted to them and also the terms and conditions by which the aid is given to such educational institutions. Therefore, so far as Professors/Lecturers who are the employees of educational institutions are concerned, they cannot, in my view, be permitted to contend that the impugned provisions interfere with the right guaranteed to them under Article 19(1)(a) of the Constitution of India. Section 4, as noticed by me earlier, firstly, mandates the institutions recognised or deemed to have been recognised under the Act to prevent any of its employees to give private tuition; and secondly, it prohibits the employees of such recognised institution from imparting private tuition to any person. Therefore, once recognition is secured by educational institutions, under the provisions of the Act, such educational institutions are bound by the conditions under which the recognition is granted and the provisions of the Act. The employees of such educational institutions also are bound by the provisions of the Act. So long as they continue as employees of educational institutions, the condition imposed under the Act, prohibiting them from giving private tuition must be considered as a condition incorporated into their service conditions in the recognised educational institutions. The Professors/Lecturers/Teachers in such educational institutions are likely to be tempted to give tuition for monetary gain. The temptation to earn money, experience shows has no bounds. Sometimes, it is done to retrieve oneself of his financial needs and in many cases greed in a man promotes him to do so even at the cost of his health and efficiency. This will seriously affect the academic programme, curriculum and academic excellence in the educational institutions. Further, since these teachers are required to spend considerable time and energy in tuition, they do not find sufficient time, energy and mental attitude to update their knowledge or carry out research activities to keep quality of education in the educational institutions and temptation to make money encourages unhealthy competition even among the professors and lecturers who devote their time for giving tuition. This would send a message to the student community that if a student takes tuition from a particular teacher, his prospects of passing or getting more marks in examination is more. This again leads to unhealthy competition for preference of a particular teacher. The desire to get large number of students admitted for tuition would lead to indifference on the part of the teachers in the educational institutions and this would lead to dilution of academic standard in the educational institutions. Large sections of students community belonging to weaker sections of the society and their parents cannot afford to spare extra money to pay tuition fees. The only place available for such students for acquiring knowledge is recognised educational institutions where they are admitted to pursue their education. Therefore, any relaxation or dilution in quality of education in the educational institutions would seriously affect the large sections of students who cannot afford to take tuition on account of financial constrains or for other reasons. This will have serious effect on the quality of learning by the students in the educational institutions. Therefore, if the State which has the responsibility of regulating the education in the State, has by incorporating Section 4 of the Act, mandates recognised educational institutions not to allow tuition by its employees and also prohibits such employees from giving tuition, in my view such a provision cannot be considered as violative of the rights guaranteed to the petitioners under Article 19(1)(a) of the Constitution of India. In my view, the restriction imposed could be considered as reasonable restriction imposed by the State in exercise of the power conferred on it under Clause (6) of Article 19 of the Constitution of India, with regard to right to carry on profession or avocation guaranteed to the employees of recognised Institutions. In such cases, the question of restricting the right of freedom of speech and expression guaranteed to an employee of a recognised educational institution does not arise, as noticed by me earlier. They are bound by their service conditions. Therefore, the principle laid down by the decision of the Hon'ble Supreme Court in the case of Romesh Thappar, supra, has no application to the facts of the present case. Further, such restrictions, in my view could be imposed by the State in exercise of the power conferred on it under Article 19(6) of the Constitution. If such restrictions are not imposed, it would seriously affect the morality in the society inasmuch as it would reduce or dilute the moral value of the Professors/Lecturers/Teachers in an educational institution who would in total disregard of their obligations to the students would be spending their time and energy only in giving private tuition with a view to earn more money. There is bound to be conflict of interest between discharge of their duties and desire to earn more money by giving private tuitions. The experience shows that the teachers who give coaching or tuition only with a view to help the students who require special coaching, without receiving any consideration, is very less; and even if there are such teachers, the Act does not prevent them from giving such extra coaching to the students who require extra coaching inside the premises of such recognised educational institutions. Section 4 of the Act read with the definition of 'private tuition', only prohibits giving of tuition outside the premises of recognised educational institutions. Section 4 of the Act only restricts giving tuition or imparting/propagating knowledge outside the premises of the recognised educational institutions. Therefore, if a teacher of a recognised educational institution intends to train the students inside the premises of a recognised educational institution, there is no bar for such a programme intended to benefit the student community. Therefore, I do not find any merit in the submission of the learned Counsels appearing for the petitioners that the impugned provision is liable to be struck down as one interfering with the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India.
11. The decision of the Hon'ble Supreme Court in the case of Sukumar Mukherjee, supra, relied upon by Sri Srinivasa Murthy, learned Government Advocate, fully supports the case of the State. While considering the question whether it is permissible for the State to prohibit private practice by doctors engaged in teaching, the Hon'ble Supreme Court took the view that it is permissible for the State to do so. At paragraph 15 of the judgment, the Supreme Court has observed as follows.-
'Para 15. ... As has been repeatedly explained earlier, no right to practice has been given to the non-teaching doctors. Further, not all the posts in the WBHS are practising posts. The privilege to practice privately which has been given to persons manning some posts is temporary and is likely to be withdrawn at any time. If the State Government finds that the extension of the said privilege even to some posts affects the patient-care, the State Government is free to withdraw even the said limited privilege. There is also no substance in the contention that there was no evidence of the deterioration in the standards of teaching in medical institutes of the State, since in the All India Medical Entrance Test conducted by the Medical Council of India, allegedly 25-30 per cent of the successful candidates during the last three years belonged to the State. Assuming the said figure to be correct, it would hot by itself indicate that the standard of the medical education in the State has not deteriorated. On the other hand, the experience of the State Government of the temporary relaxation of the prohibition against private practice for 25 years from 1965 to 1990 showed that the teacher-doctors were neglecting both teaching and the attendance to the patients in the hospitals attached to the teaching institutes.
The Medical Council of India also held the same view and ultimately passed a resolution in 1973 insisting that the teaching staff of all departments of a medical college should be whole-time and non-practising. The National Health Policy declared by the Government of India in 1983 also pointed to the desirability of prohibiting private practice to the Government medical personnel. The Standing Committee of the State Legislative Assembly on Health also in its report attributed the fall in the standard of medical education in the State, among other things, to the fact that the medical teachers were devoting considerable part of their working time to their private practice, It is, therefore, incorrect to say that there was no evidence before the State Legislature of the deteriorating standards in the medical education in the State. Further, even if there was no evidence, the State Government was competent to lay down as one of the service conditions for its Medical Officers, that they would not have the right to practice privately. That being a matter of policy, strictly rests within the exclusive jurisdiction of the State Government'.
The principle enunciated by the Hon'ble Supreme Court in the decision referred to above, fully supports the view I have taken above.
12. The only other question that remains to be considered is, whether the impugned provision is violative of the right guaranteed to the petitioners under Article 14 of the Constitution of India? In my view, the classification made between the employees of recognised educational institutions on the one hand and others is a reasonable classification. It only imposes restriction on the teachers who are employees of a recognised educational institution. As noticed by me earlier, such teachers are bound by the service conditions of educational institutions. In this connection, it is also necessary to point out that under Rule 16 of the Karnataka Civil Services (Conduct) Rules, 1966, it is provided that no Government servant shall, except with the previous sanction of the Government engage directly or indirectly in any trade or business or negotiate for, or undertake, any other employment. In the State of Karnataka, large number of educational institutions are receiving aid from the State Government and even the few educational institutions which are not receiving aid from the State Government, are also required to be recognised under the Act. Under these circumstances, it is not possible to take the view that classification made between the employees of the recognised educational institutions on the one part and the others, is not a reasonable classification and that there is no nexus with the object sought to be achieved. The object of the provision is to maintain academic standard in educational institutions and to protect the healthy growth of the students by making them more dependent on themselves and make less dependent on others outside the premises of the educational institutions. The spoon feeding to a child, at every stage of its growth, in my view, will not help the child in developing its mind to its fullest extent. It is only when there are some deficiencies in the child that some support or some coaching may be required. This can be provided by the large number of teachers available in the society and who are not employees of recognised educational institutions. Further, as noticed by me earlier, it is permissible for the teachers of the recognised educational institutions to give tuition within the premises of such educational institutions. Therefore, I am unable to accept the submission of the learned Counsels appearing for the petitioners that the impugned provision is liable to be struck down as violative of the right guaranteed to the petitioners under Article 14 of the Constitution of India.
13. I am also unable to accept the submission of the Counsels for the petitioners that the impugned provision seriously affects the rights of the students to take the services of the teachers to give specialised coaching or training to them. The restriction imposed under Section 4 of the Act only prevents the employees of a recognised educational institution from giving private tuition outside the premises of the recognised educational institutions. The students who are desirous of taking special coaching are not prevented from taking coaching from the teachers who are not employees of the recognised educational institutions. The restriction has been imposed, as noticed by me earlier, is in the interest of student community and maintenance of academic standard in the educational institutions. Therefore, neither the students nor the parents can make a grievance of the said provision.
14. There is also no merit in the submission of the learned Counsels appearing for the petitioners that Sub-section (28) of Section 2 of the Act is also liable to be declared as unconstitutional. I do not find anything wrong in the said provision. As noticed by me earlier, Sub-section (28) of Section 2 of the Act only defines what is meant by 'private tuition'.
15. In the light of the discussion made above, these petitions are liable to be rejected. Accordingly, they are rejected. However, no order is made as to costs.
16. Sri Srinivasa Murthy, learned Government Advocate is given four weeks' time to file his memo of appearance.