IN THE HIGH COURT OF KARNATAKA AT BANGALORE

PRESENTATION FORM

Writ Petition No. /2009 (EDN. REG-P)

Serial No……………..
Advocate Sri K.V.DHANANJAY BANGALORE District

No.296, Kamakshipalya Between

Magadi Main Road Karnataka Unaided Schools

Management’s Assn. And
Bangalore 560 079 Anr.
Roll.No.KAR/659/02 And

State of Karnataka And Ors.

Sl.No. Description of Paper Presented Court Fee Affixed On the

Paper

1 On the Memo of Writ Petition 200

2 On the Memo of Appeal
3 On Vakalath
4 On Certified Copies
5 On I.A.No…………for

6 On Process Fee

7 On Copy Application

8 ………………..

9 ………………...

10 …………………

Total 200

Number of Copies Furnished Other Side served

Presented by
Advocate for petitioner
Appellant / Respondent
Received Paper with Court Fees as above

Advocate’s Clerk

Date: 09-Mar-2009. Bangalore Receiving Clerk

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

ORIGINAL JURISDICTION

WRIT PETITION NO. /2009 (EDN. REG-P)

Between:

Karnataka Unaided Schools Petitioners

Management’s Association And Anr

AND

State of Karnataka And Ors. Respondents

INDEX

Sl.No. Particulars Pages Nos.

1. Synopsis And List of Dates 1-8

2. Memorandum of Writ Petition 9-43

Statement of Facts 09-38
Grounds 38-41

Prayer 42

3. Verifying Affidavit of Petitioner 1. 44

4 Annexure A 45
Certificate of Registration of Petitioner
1 Society dated 08-Mar-1984

5 Annexure B 46-47
Certificate of Registration of Petitioner
2 Society dated 26-Jul-1967

6 Annexure C 48-52
Certificate of Registration dated 23-
May-2004 of ‘Sri Aurobindu Vidya
Mandir’ u/s.31 of Karnataka
 Education Act, 1983, established and
administered by Petitioner 2

7 Annexure D 53-54
Letters dated 22-Oct-2008 addressed
by Petitioner 2 to Respondent 3 in
regard to change of ‘Medium of
Instruction’ from ‘Kannada’ to
‘English’

8 Annexure E 55-59
Application Form in Form I dated 23-
Oct-2008 seeking ‘Registration’ of
change of ‘Medium of Instruction’ from
Kannada to English – addressed by
Petitioner 2 to Respondent 3.

9 Annexure F 60
Rejection Order dated 25-Feb-2009
issued by Respondent 3 in respect of
request made by Petitioner 2 for
Change of ‘Medium of Instruction’ from
Kannada to English.

10 English Translation of Annexure F 61-62

11 Annexure G 63-66
Language Policy of the State in G.O.
No. ED 28 PGC 94 dated 29-Apr-1994
(Kannada)

12 Annexure G translated into English 67-74

13 Annexure H 75-79
Order and Judgment of this Court in
W.P.15177/07, a case not involving
the Petitioners herein – but which
Order directs Respondents to dispose
Registration Applications within 3
Months.

14 Vakalath 80-81
 K.V.DHANANJAY.

Bangalore Roll No.KAR/659/2002

Date: 09-Mar-2009 ADVOCATE FOR PETITIONERS

Address for Service of Notice:

K.V.DHANANJAY.
No.296
Kamakshipalya
Magadi Main Road
Bangalore 560 079
 1

IN THE HIGH COURT OF KARNATAKA

ORIGINAL JURISDICTION

WRIT PETITION No. of 2009 (EDN. REG-P)

Between
Karnataka Unaided Schools Petitioners
Management’s Association And Anr.

VERSUS

State of Karnataka And Others. Respondents

SYNPOSIS AND LIST OF DATES

29-Apr-1994 The Government of Karnataka introduces a new

Rule for educational institutions in Karnataka that
says that the ‘medium of instruction in primary
standards (I to V) shall henceforth be in mother
tongue of the child or in Kannada’.

The said Rule was not passed by the State

Legislature into any statute but was notified by the
Executive Government through an Order (G.O.
No.ED 28 PGC 94)

Educational institutions in India have an

overwhelming need to impart ‘English medium
instruction’ for the primary standards. Relying upon
a long list of judgments rendered by our Supreme
Court, Petitioner 1, Karnataka Unaided Schools
Management’s Association, a Registered Society that
represents more than a thousand unaided
educational institutions in the State, sought
intervention of this Hon’ble Court under Article 226
of the Constitution.
 2

A Full Bench came to be constituted to decide upon

the issues presented by a host of such Writ
Petitions.

20-Jan-1995 The Karnataka State Legislature passes a Statute,

‘The Karnataka Education Act, 1983’. The said Act
requires every educational institution to which it
applies to seek ‘Registration’ under it. Failure to so
register renders such an institution as ‘illegal’ and
penalties are prescribed under the Act.

Curiously, nowhere does the Act itself lay down that

‘medium of instruction in primary standards shall
henceforth be in mother tongue of the child or in
Kannada’.

23-May-2004 Petitioner 2, Rajajinagar Education Society, is a

Registered Society and is a member of Petitioner 1.
It has established and administers ‘Sri Aurobindu
Vidya Mandir’ an educational institution for primary
standards. The said ‘Sri Aurobindu Vidya Mandir’ is
registered on this day under the provisions of the
‘Karnataka Education Act, 1983’. The Registration
Certificate specifies the ‘Medium of Instruction’ as
‘Kannada’.

02-Jul-2008 The Full Bench of the Karnataka High Court issues

its Order and Judgment in the 1994 Writ Petitions.
It upholds the claims of the Writ Petitioners, allows
the Writ Petitions and declares as void, the offending
provisions of the impugned Government Order. It
holds:

198. In the light of the aforesaid discussion and in

 3

response to the reference, we record the following

conclusions:

1) Right to education is a fundamental right being

a species of right to life flowing from Article 21
of the Constitution. By virtue of Article 21-A
right to free and compulsory primary education
is a fundamental right guaranteed to all
children of the age of six to fourteen years. The
right to choose a medium of instruction is
implicit in the right to education. It is a
fundamental right of the parent and the child to
choose the medium of instruction even in
primary schools.

2) Right to freedom of speech and expression

includes the right to choose a medium of
instruction.

3) Imparting education is an occupation and,

therefore, the right to carry on any occupation
under Article 19(1)(g) includes the right to
establish and administer an educational
institution of one's choice. 'One's choice'
includes the choice of medium of instruction.

4) Under Article 26 of the Constitution of India

every religious denomination has a right to
establish and maintain an institution for
charitable purposes which includes an
educational institution. This is a right available
to majority and minority religious
denominations.

5) Every section of the society which has a

distinct language script or culture of its own
has the fundamental right to conserve the
 4

same. This is a right which is conferred on both

majority and minority, under Article 29(1) of the
Constitution.

6) All minorities, religious or linguistic, have a

right to establish and administer educational
institutions of their choice under Article 30(1) of
the Constitution.

7) Thus, every citizen, every religious

denomination, and every linguistic and
religious minority, have a right to establish,
administer and maintain an educational
institution of his/its choice under Articles
19(1)(g), 26 and 30(1) of the Constitution of
India, which includes the right to choose the
medium of instruction.

8) No citizen shall be denied admission to an

educational institution only on the ground of
language as stated in Article 29(2) of the
Constitution of India.

9) The Government policy in introducing Kannada

as first language to the children whose mother
tongue is Kannada is valid. The policy that all
children, whose mother tongue is not Kannada,
the official language of the State, shall study
Kannada language as one of the subjects is
also valid. The Government policy to have
mother tongue or regional language as the
medium of instruction at the primary level is
valid and legal, in the case of schools run or
aided by the State.

10) But, the Government policy compelling

children studying in other Government
 5

recognized schools to have primary education

only in the mother tongue or the regional
language is violative of Article 19(1)(g) , 26 and
30(1) of the Constitution of India.

199. (a) Accordingly, the Writ Petitions except W.P.

No. 21052/1994 and W.P. No. 5618/1993 and the
Writ Appeal are partly allowed, quashing Clauses (2),
(3), (6) and (8) of the impugned order in its application
to schools other than schools run or aided by the
Government

(b) The rest of the Government Order is upheld. All

the orders, endorsements, circulars, issued giving
effect to the aforesaid Clauses (2), (3), (6) and (8) in
the impugned order are also quashed.

22-Oct-2008 Petitioner 2, in respect of its educational institution,

‘Sri Aurobindu Vidya Mandir’ seeks a change of
‘Registration’ to ‘English Medium’ in respect of
Academic Year 2009-10. Lodges appropriate Forms
and pays requisite Fees before the appropriate
Officer, Respondent 3.

25-Feb-2009 Respondent 3 issues a ‘Rejection Order’ against the

‘Registration Application’ of Petitioner 2. The
reasons assigned are that the Full Bench Order
need not be enforced for the moment because it is
the subject of appeal before the Hon’ble Supreme
Court.

Certainly, the Respondents are bound to be aware of

the often quoted dicta of our Supreme Court:

It is well settled that mere preferring of an appeal

does not operate as stay on the decree or order
 6

appealed against nor on the proceedings in the court

below. A prayer for the grant of stay of proceedings
or on the execution of decree or order appealed
against has to be specifically made to the appellate
Court and the appellate Court has discretion to grant
an order of stay or to refuse the same.
Atma Ram Properties v. Federal Motors [Supreme
Court / 2004 (10) SCALE 345 : (2005) 1 SCC 705 /
R.C. Lahoti, C.J. and G.P. Mathur, J]

The Petitioners assert that it is outrageous for

Respondent 3 (who is generally sued in his official
capacity in hundreds of Writ Petitions filed every
year by affected educational institutions before this
Court and who is therefore, reasonably expected to
be mindful of Court affairs and of binding nature of
Court Orders) to suggest that the Full Bench Order
of this Court is not binding unless affirmed by the
Supreme Court.

The legal effect of the said ‘Rejection Order’ is such

that, the DDPI has decided, at his sole discretion,
that:

a) he is aware of the Full Bench Order of the

Karnataka High Court on the G.O and he reads it
in a manner he thinks fit;

b) as he reads the Full Bench Order, it is in favour

of private unaided educational institutions and if
enforced, would benefit the specific application
before him;

c) he would have implemented the said Order if

only the same not been appealed to the Supreme
Court;
 7

d) the Full Bench Order has been appealed to the

Supreme Court, he is not legally bound to
implement the same until the Supreme Court
approves the judgment of the High Court;

e) he has no opinion on the likely time it would take

for the Supreme Court to resolve the appeal;

f) he thinks it prudent to return the Application

Form and the Fees collected thereunder and by
doing so, he has indicated that the Supreme
Court may take longer to dispose of the appeal
before it;

g) he does not think any ‘stay’ was obtained in

respect of the Full Bench Order either before the
High Court itself or before the Supreme Court;

h) he does not think any such ‘stay’ is material to

his decision to not enforce the Full Bench Order
for the moment.

09-Mar-2009 The Petitioners assert that the cause of action in the

instant petition is a matter of paramount concern to
them. Accordingly, Petitioners retain a primary
concern in ensuring that the ‘Language Policy’ of
Karnataka be not enforced by the Respondents in a
manner inconsistent with the Full Bench Order.

The Petitioners reasonably assert that the violation

of their fundamental rights by the conduct of
Respondents herein is such that the Relief sought
herein offers an adequate remedy under the
circumstances. And the Relief sought is a restraint
upon Respondents from enforcing the ‘Language
Policy’ of the State in a manner inconsistent with
 8

the Full Bench Order of this Court and for a

direction to ‘Register’ forthwith, ‘English Medium
Instruction’ in the very educational institution
established and administered by Petitioner 2 (whose
application as such was wrongfully rejected for
reasons that are utterly devoid of any legal merit)

So filed, for the enforcement of the fundamental

rights of the Petitioners, for registration ‘forthwith’
and for an injunction against Respondents from
wantonly enforcing the ‘language policy’ of the State
in utter disregard of the Full Bench Order of this
Court.

K.V.DHANANJAY.

Bangalore Roll No.KAR/659/2002

Date: 09-Mar-2009 ADVOCATE FOR PETITIONERS

Address for Service of Notice:

K.V.DHANANJAY.
No.296
Kamakshipalya
Magadi Main Road
Bangalore 560 079
 9

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

ORIGINAL JURISDICTION

WRIT PETITION NO /2009 (EDN. REG-P)

Between:

1 Karnataka Unaided Schools Petitioners

Management’s Association
A Registered Society
Represented by its President
G.S.Sharma
Age 83 years
No.9, V.V.Road
V.V.Puram
Bangalore 560 004

2 Rajajinagar Education Society

A Registered Society
Represented by its Secretary
M.Sitarambhat Gudi
Age 77 Years
No.6/C, 5th Main
2nd Stage, Dr.M.C.Modi Road
Malakshmipuram
Bangalore 560 086

AND

1 State of Karnataka Respondents

Represented by its
Principal Secretary
Primary and Secondary Education
Department
M.S.Building
Bangalore 560 001

2 Commissioner for Public Instruction

Department of Education
Nrupatunga Road
 10

Bangalore 560 001

3 Deputy Director of Public Instruction

Bangalore North
Bangalore 560 002

MEMORANDUM OF WRIT PETITION FILED UNDER

ARTICLE 226 OF THE CONSTITUTION OF INDIA

The Petitioners hereinabove respectfully submit:

1. The instant petition is filed under Article 226 of the

Constitution of India invoking the Writ jurisdiction of this
Hon’ble Court.

2. Petitioner 1, the Karnataka Unaided Schools

Management’s Association (KUSMA for short) is organized
as a ‘Society’ whose members are comprised only of
educational institutions in the State of Karnataka. This
‘Society’ is registered under the State Law in force for the
Registration of ‘Societies’ and has been continually
registered at all relevant times – S.No.438/83-84 dated
08-Mar-1984. A copy of the ‘Certificate of Registration’
dated 08-Mar-1984 is produced herewith and marked as
Annexure A. Membership of this Society is open only to
those educational institutions which are privately
organized and which do not receive aid1 or assistance of
any kind from the Government, State or Central.
Membership to KUSMA is strictly enforced and the current
membership of KUSMA stands slightly above One

Section 2(18) of the Act defines ‘Grant’ as

1

“means any sum of money paid as aid out of the State funds to any
educational institution”.
 11

Thousand educational institutions. The Founder and

President of KUSMA, Sri G.S.Sharma, aged 83 years, is
authorised and competent to initiate and conduct this legal
proceeding.

3. Petitioner 2, Rajajinagar Education Society is a ‘Society’ of

persons registered under the State Law in force for the
Registration of ‘Societies’ and has been continually
registered at all relevant times – S.No. 77/67-68 dated
26-Jul-1967. A copy of the ‘Certificate of Registration’
dated 26-Jul-1967 is produced herewith and marked as
Annexure B. This Society has established an educational
institution bearing the name ‘Sri Aurobindu Vidya Mandir’
for conducting classes for the Primary standards. The said
educational institution is located at C.A.Site No.56, Ward
No.16(L), 2nd Cross, 3rd Stage, Off Kirloskar HBCS
Layout, Near Kamalanagar, Bangalore 560 079. The said
‘Sri Aurobindu Vidya Mandir’ is further unaided and
receives no Grant of any kind from the Government. The
Secretary thereof, Sri M. Sitarambhat Gudi, aged 77 years,
is authorised and competent to initiate and conduct this
legal proceeding.

4. Petitioner 2 is a member of Petitioner 1. Petitioners 1 and 2

share a common cause of action against the Respondents
and hence, this common Writ Petition. The Court fee
however, has been individually assessed and paid against
each Petitioner.

5. Respondent No.1 is the State of Karnataka that is

represented herein by the designated officer in the
‘Department of Education’. In exercise of power to legislate
 12

upon ‘Education’ in terms of Entry 25 of List 3 of Schedule

7 to the Constitution of India, the State promulgated the
Karnataka Education Act, 19832 with effect from 20-Jan-
1995. The said statute will be hereinafter referred to as
‘Act’ wherever the context admits.

6. Respondent 2, the Commissioner of Public Instruction is

the Office to which has been delegated, under Section 143
of the Act3, several powers vested in the State Government
under the Act.

7. Respondent 3 is the Deputy Director of Public Instruction,

an office entrusted with the function of a ‘Registering
Authority’ in respect of educational institutions seeking to
register4 under the Act. This Act seeks registration of every
educational institution without which (registration) the Act
proceeds to declare such educational institution as illegal.
Respondent 3 shall also be referred to as ‘DDPI’ wherever
the context admits.

2
‘for the purpose of providing ‘better organisation, development, discipline
and control of the educational institutions in the State’. - PREMABLE
3
Section 143 – Delegation – The State Government may by notification in the
official Gazette, delegate all or any powers exercisable by it under this Act or
rules made thereunder, in relation to such matter and subject to such
conditions, if any, as may be specified in the direction, to be exercised also by
such officer or authority subordinate to the State Government as may be
specified in the notification.
4
In terms of Notification No.ED 68 AAV 96, dated 30-06-1997 issued by
Respondent 1, the State of Karnataka, in exercise of powers conferred by
clause 31 of Section 2 of the Karnataka Education Act, 1983. – The
Registering Authority in respect of English Medium Primary Schools is the
Deputy Director of Public Instruction of the concerned District for the
District. In respect of Non-English Medium Primary Schools, it is the Block
Education Officer of the concerned Block for the Block.
 13

8. As required under Section 305 of the Karnataka Education

Act, 1983, the said ‘Sri Aurobindu Vidya Mandir’ was duly
registered with the prescribed authority on 23-May-2004.
A copy of the ‘Certificate of Registration’ is produced
herewith and marked as Annexure C. The said ‘Certificate
of Registration’ prescribes the ‘Medium of Instruction’ as
‘Kannada’ in respect of Primary Classes – Standards I to V.

9. The Petitioners humbly submit that the ‘English’ language

is an inspirational language for most people in this country
and an absolute requirement for many people in this
country. The Petitioners submit that they personally know
of no one, to repeat, no one, in Bangalore who desires to
educate his or her child in a language other than English
at the early stages.

10. The petitioners further submit that it is no exaggeration to

say that a disability to read, write and speak English is
recognised by most citizens of our country as a severe
limitation upon a full functioning of an individual citizen.

11. The State of Karnataka has declared a power to regulate

general education, professional education, medical

5
Section 30: EDUCATIONAL INSTITUTIONS TO BE REGISTERED- (1)
Save as otherwise provided in this Act, every local authority institution and
every private educational institution, established on or before the date of
commencement of this Act or intended to be established thereafter shall
notwithstanding anything contained in any other law for the time being in
force be registered in accordance with this Act and the Rules made
thereunder.
(2) No person or local authority shall establish or as the case may be, run or
maintain an educational institution requiring registration under this Section,
unless such institution is so registered.
 14

education, technical education, commerce education and

special education at all levels in Section 3 of the Act6.

12. On 22-Oct-2008, Petitioner 2, wrote to Respondent 3

seeking a change in the ‘medium of instruction’ to ‘English’
for the Academic Year 2009-10 and beyond in respect of
‘Sri Aurobindu Vidya Mandir’. A copy of the letter dated 22-
Oct-2008 addressed thereat is produced herewith and
marked as Annexure D. A copy of the Application Form
dated 23-Oct-2008 in the prescribed FORM 17 is produced
herewith and marked as Annexure E. Every such
application is required to be made on a Fee of Rs.5000
which was duly tendered and acknowledged by the
receiver.

6
Section 3(2) of the Act lays down that:
The State Government may towards that end-
a) establish and maintain educational institutions;
b) permit any local authority or a private body of persons to establish
educational institutions and maintain them according to such
specifications as may be prescribed;
c) require registration of educational institutions including tutorial
institutions;
d) recognise educational institutions;
e) grant aid to any recognised educational institution in furtherance of the
objects of this Act;
f) regulate the admission including the minimum or maximum number of
persons to be admitted to any course in any educational institution or
class of such institutions and the minimum age for such admissions
g) prescribe the conditions of eligibility of or admissions to any
educational institutions or class of such institutions;
h) establish hostels or recognise private hostels and frame rules for grant-
in-aid to recognise private hostels;
i) permit or establish institutions imparting education in arts, crafts,
music, dance, drama or such other fine arts, physical education
including sports;
j) permit and establish institutions or centres for pre-primary education,
adult education and non-formal education and;
k) take from time to time such other steps as they consider necessary or
expedient
7
Rule 3(1) of The Karnataka Educational Institutions (Classification And
Registration) Rules, 1997.
 15

13. The petitioners humbly submit that the choice of a

medium of instruction solely vests in the child and its
parents. This freedom is not lost under our Constitution
and the State of Karnataka can make no provision to the
contrary. The Petitioners, in seeking to establish
educational institutions that impart education in English
medium are expressing the will of the parents, whose
preference for English medium instruction is their sole
prerogative.

14. The State simply possesses no power to refuse the

registration of an English medium educational institution.
The legal definition of ‘Register’ is generally cited as ‘an
effort to formally secure or to obtain official entry in a
register kept for certain purposes’. As such, to ‘register’ is
not the same as to ‘obtain permission’. This distinction
alone serves to explain that a refusal to register cannot be
grounded on arbitrary considerations.

15. However, Respondent 3 issued a ‘Rejection Order’ on 25-

Feb-2009 in relation to the application by Petitioner 2 for
change of ‘Medium of Instruction’ from Kannada to
English. A copy of the same is produced herewith and
marked as Annexure F. An English Translation follows
Annexure F. In pertinent part, it says:

…At that point of time, the G.O ED.PGC.94 dated 29-Apr-

1994 was in force and according to it, the requirement that
medium of instruction shall be in Kannada or the mother
tongue of the child extended to private unaided primary
schools also. That requirement has been held to not be
applicable to private unaided primary schools by a Full
 16

Bench of the Hon’ble High Court of Karnataka on 02-Jul-

2008. The said Judgment has been questioned before the
Hon’ble Supreme Court by the Government of Karnataka in
S.L.P. Nos.18139-18163 of 2008. The Hon’ble Supreme
Court has accepted the said appeal for hearing. As this
matter is now pending before the Hon’ble Supreme Court,
your request cannot be considered now. Therefore, only
after the S.L.P. pending before the Hon’ble Supreme Court is
decided, your request will be considered. A DD for Rs.5000
(D.D.No.279146) is returned hereby. You are directed to
receive back your Application from the Block Education
Officer concerned.

16. The legal effect of the said ‘Rejection Order’ is such that,
the DDPI has decided, at his sole discretion, that:

a) he is aware of the Full Bench Order of the Karnataka

High Court on the G.O and he reads it in a manner he
thinks fit;

b) as he reads the Full Bench Order, it is in favour of

private unaided educational institutions and if enforced,
would benefit the specific application before him;

c) he would have implemented the said Order if only the

same not been appealed to the Supreme Court;

d) the Full Bench Order has been appealed to the Supreme

Court, he is not legally bound to implement the same
until the Supreme Court approves the judgment of the
High Court;
 17

e) he has no opinion on the likely time it would take for

the Supreme Court to resolve the appeal;

f) he thinks it prudent to return the Application Form and

the Fees collected thereunder and by doing so, he has
indicated that the Supreme Court may take longer to
dispose of the appeal before it;

g) he does not think any ‘stay’ was obtained in respect of

the Full Bench Order either before the High Court itself
or before the Supreme Court;

h) he does not think any such ‘stay’ is material to his

decision to not enforce the Full Bench Order for the
moment.

17. The ‘Rejection Order’ makes a reference to a Government

Order G.O. No.ED 28 PGC 94 dated 29-Apr-1994. The said
Order of the State of Karnataka was designed to operate
from the academic year 1994-1995. The same came to be
questioned in a host of Writ Petitions before this Hon’ble
Court. The said Order is also known as the ‘language
policy’ of Karnataka. The said Order, in clause-g, clearly
forbid the registration of any educational institution that
would impart education in English medium in respect of
students whose mother tongue was not English. The said
language policy also consisted of several other clauses that
were seriously contested by educational institutions some
of whom belonged to linguistic and religious minority
groups. The said G.O is produced herewith and marked as
Annexure G. (a translated copy follows Annexure G). In
pertinent part, it said:
 18

(g) From the Academic year 1994-95, all educational

institutions recognised by the State shall have medium of
instruction for standards 1 to 4 only in the mother tongue of
the child or in Kannada.

(h) From the Academic years 1994-95, students enrolling for

the 1st Standard shall have mother tongue or Kannada as a
medium of instruction.

18. Upon hearing the Writ petitions so presented8, this Court

discovered a conflict of opinion between earlier Division
Benches of this Court on the issues presented by such
Writ petitions. As such, a Full Bench of this Court was
constituted in terms of Section 7 of the Karnataka High
Court Act, 1961. The Full Bench delivered its Order and
Judgment on the 02-Jul-2008 allowing the Writ petitions
and issued consequential directions there under.

19. The Full Bench had formulated the ‘points for

consideration’ (para 33) as under:

Points for consideration:

33. In the light of the aforesaid submissions, the questions

that arise for consideration are as under:

Is the right to choose the medium of instruction at the

primary level, either to study or impart education, a

8
Writ Petition Nos.14363 of 1994 (Education) connected with Writ Petition
Nos.14377, 15491, 19453, 22563 of 1994, 30645 of 1999, 25647, 18571,
19331, 17337, 18787, 19469, 20165, 17338 of 1994, Writ Appeal No.2415 of
1995, Writ Petition Nos.11785, 29540 of 1995, 22752, 19434 of 1994, 900 of
2000, 17677, 19346 of 1994, 34396, 34684 and 34185 of 1996;
 19

fundamental right guaranteed under any of the Articles

19(1)(a)(g) , 26, 29 and 30(1) of the Constitution of India?

Can the State by way of regulation restrict the said right of

choice to mother tongue or regional language only?.

20. The Full Bench said:

34. The answer to these intricate questions covers various

components such as the opinion of experts in the
educational field, opinion of statesmen, legal and
constitutional issues, concept of rights, in particular
fundamental rights under the Indian Constitution, concerns
of citizens and in particular the parents of the child, social
and cultural issues, interests of the language, State and
Nation, rights and obligations of a State in a democratic set
up and a host of other factors. It is in this backdrop we have
attempted to answer the issues raised in this case.

21. The Full Bench allowed the claims of the petitioner

educational institutions. By a unanimous Order and
Judgment dated 02-Jul-2008 (hereinafter referred to as the
‘Full Bench Order’ wherever the context admits), the Full
Bench decided the issues for consideration before it as
under:

198. In the light of the aforesaid discussion and in response

to the reference, we record the following conclusions:

1) Right to education is a fundamental right being a

species of right to life flowing from Article 21 of the
Constitution. By virtue of Article 21-A right to free and
 20

compulsory primary education is a fundamental right

guaranteed to all children of the age of six to fourteen
years. The right to choose a medium of instruction is
implicit in the right to education. It is a fundamental
right of the parent and the child to choose the medium
of instruction even in primary schools.

2) Right to freedom of speech and expression includes

the right to choose a medium of instruction.

3) Imparting education is an occupation and, therefore,

the right to carry on any occupation under Article
19(1)(g) includes the right to establish and administer
an educational institution of one's choice. 'One's choice'
includes the choice of medium of instruction.

4) Under Article 26 of the Constitution of India every

religious denomination has a right to establish and
maintain an institution for charitable purposes which
includes an educational institution. This is a right
available to majority and minority religious
denominations.

5) Every section of the society which has a distinct

language script or culture of its own has the
fundamental right to conserve the same. This is a right
which is conferred on both majority and minority,
under Article 29(1) of the Constitution.

6) All minorities, religious or linguistic, have a right to

establish and administer educational institutions of
their choice under Article 30(1) of the Constitution.
 21

7) Thus, every citizen, every religious denomination, and

every linguistic and religious minority, have a right to
establish, administer and maintain an educational
institution of his/its choice under Articles 19(1)(g), 26
and 30(1) of the Constitution of India, which includes
the right to choose the medium of instruction.

8) No citizen shall be denied admission to an educational

institution only on the ground of language as stated in
Article 29(2) of the Constitution of India.

9) The Government policy in introducing Kannada as first

language to the children whose mother tongue is
Kannada is valid. The policy that all children, whose
mother tongue is not Kannada, the official language of
the State, shall study Kannada language as one of the
subjects is also valid. The Government policy to have
mother tongue or regional language as the medium of
instruction at the primary level is valid and legal, in
the case of schools run or aided by the State.

10) But, the Government policy compelling children

studying in other Government recognized schools to
have primary education only in the mother tongue or
the regional language is violative of Article 19(1)(g) , 26
and 30(1) of the Constitution of India.

199. (a) Accordingly, the Writ Petitions except W.P. No.

21052/1994 and W.P. No. 5618/1993 and the Writ Appeal
are partly allowed, quashing Clauses (2), (3), (6) and (8) of
the impugned order in its application to schools other than
schools run or aided by the Government
 22

(b) The rest of the Government Order is upheld. All the

orders, endorsements, circulars, issued giving effect to the
aforesaid Clauses (2), (3), (6) and (8) in the impugned order
are also quashed.

(c) Writ Petitions 21052/1994 and 5618/1993 are delinked

and they are sent back to the single Bench for decision in
the light of this judgment

No costs.

22. The Petitioners believe that the State did not seek from the
Full Bench, any Interim Stay upon its Order for any length
of time. The State preferred to seek ‘Leave to Appeal’ to the
Supreme Court under Article 136 of the Constitution. It
filed a Special Leave Petition (S.L.P.) for that purpose on
31-Jul-2008. S.L.P. Nos. 18139 to 18163 of 2008 were
filed in a single petition in respect of the Common Order of
the Full Bench.

23. It is further submitted that Petitioner 1, Karnataka

Unaided Schools Management’s Association (KUSMA) is
one of the initial 1994 petitioners before this Court.
KUSMA is the petitioner in W.P.14377 of 1994 before this
Court. Aggrieved by the Common Order of the Full Bench
dated 02-Jul-2008, the State has filed a Special Leave
Petition No.18140 in respect of the Full Bench Order in
W.P.14377 of 1994. KUSMA has been in receipt of Notice
and is contesting the Special Leave Petition.

24. The Main prayer in the Special Leave Petition filed by the
State says:
 23

MAIN PRAYER

Therefore, it is humbly and respectfully prayed before this

Hon’ble Court that it may be pleased to:

a) Grant the petitioners Special leave to Appeal against

the Judgment dated 02-Jul-2008 passed by the High
Court of Karnataka at Bangalore in Writ Petition
Nos.14363 of 1994 (Education) connected with Writ
Petition Nos.14377, 15491, 19453, 22563 of 1994,
30645 of 1999, 25647, 18571, 19331, 17337, 18787,
19469, 20165, 17338 of 1994, Writ Appeal No.2415 of
1995, Writ Petition Nos.11785, 29540 of 1995, 22752,
19434 of 1994, 900 of 2000, 17677, 19346 of 1994,
34396, 34684 and 34185 of 1996;

b) Grant such other and further reliefs as this Hon’ble

Court may deem fit and proper in the interest of justice
and equity.

25. The State further sought ‘Interim Relief’ in its Special leave
Petition on the following terms:

INTERIM RELIEF

It is most humbly and respectfully prayed before this

Hon’ble Court that it may be pleased to:

a) Pass an ex-parte ad-interim Order staying the

operation of the Judgment dated 02-Jul-2008 passed
by the High Court of Karnataka at Bangalore in
Nos.14363 of 1994 (Education) connected with Writ
 24

Petition Nos.14377, 15491, 19453, 22563 of 1994,

30645 of 1999, 25647, 18571, 19331, 17337, 18787,
19469, 20165, 17338 of 1994, Writ Appeal No.2415 of
1995, Writ Petition Nos.11785, 29540 of 1995, 22752,
19434 of 1994, 900 of 2000, 17677, 19346 of 1994,
34396, 34684 and 34185 of 1996;

b) Confirm the above stay after notice of motion to the

respondents;

c) Pass such other or further interim Orders as this

Hon’ble Court may deem fit and proper in the interest
of justice and equity.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER, AS IN

DUTY BOUND SHALL EVER PRAY

DRAWN BY FILED BY:

(B.MANOHAR) (SANJAY R HEGDE)
ADDL. GOVERNMENT ADVOCATE
ADVOCATE SUPREME COURT
ADVOCATE GENERAL’S OFFICE NEW DELHI
HIGH COURT BUILDINGS
BANGALORE 560 001

26. The Grounds in support of its ‘interim Relief’ were stated in

the Special Leave Petition’ as under:

GROUNDS FOR INTERIM RELIEF

 25

6.1. The Respondents are running primary schools. They

had challenged the Government Order dated 29-Apr-1994
which requires that the medium of instruction in primary
schools should be the mother tongue of the child or
Kannada. The petitioners apprehending that pursuant to the
Government Order, their schools may have to discontinue
classes which are held in English medium, in so far as the
children whose mother tongue is not English sought for stay
of the Government Order. Under the circumstances, an
undertaking was given by the State that they will not direct
closure of these recognised institutions for non-compliance
with the Government Order dated 29-Apr-1994. The same
interim Order continued till the disposal of the writ petitions.
The interim Order was thus confined to those schools which
are recognised institutions and which were running English
medium schools.

6.2 Schools which got recognition subsequent to the

Government Order dated 29-Apr-1994 are all schools which
specifically got recognition for imparting education in mother
tongue or Kannada in primary schools. Such schools had
filed writ petitions before the High Court of Karnataka
seeking to impart education in English in primary schools.
The same was not acceded to by the High Court and they
were given time to comply with the undertakings given by
them to run the schools in mother tongue or Kannada
language.

6.3 Having regard to the Order impugned in this Special

Leave Petition, all the schools which do not get aid from the
Government will start running schools in English medium.
The same would be contrary to the very Government Order
 26

and the policy of Government which policy has been upheld

by this Hon’ble Court way back in the year 1994. Under the
circumstances, there is a need to issue an Order of Stay,
staying the impugned Order. Unless such an Order is
passed, irreparable injury will be caused to the petitioners
and the general public.

27. The Special Leave Petition was heard by the Supreme

Court on 29-Aug-2008. The Court expressed its view that
parents are not bound by wisdom of international experts
in the matter of education of their children and that they
have a constitutional right to choose the medium of
instruction of their choice unfettered by opinion of experts.
The Court merely directed formal ‘Notice’ to Respondents
and did not ‘Stay’ the Order of the Court below.

28. It is submitted that the Deputy Director of Public

Instruction decides on matters presented to him in his own
right and not as an agent or a proxy for another Officer.
Further, the authority to decide upon a Registration
application is vested under the Statute and the DDPI is a
permanent office under that statute. Accordingly, the DDPI
performs a function for the proper discharge of which, he
should necessarily implement judgments of a competent
Court that touch upon the provisions of law under which
applications are made to him.

29. Under these circumstances, it is evident that the DDPI has

decided, at his sole discretion, that:
 27

i) he is aware of the Full Bench Order of the Karnataka

High Court on the G.O and he reads it in a manner he
thinks fit;

j) as he reads the Full Bench Order, it is in favour of

educational institutions and if enforced, would benefit
the specific application before him;

k) he would have implemented the said Order if only the

same not been appealed to the Supreme Court;

l) the Full Bench Order has been appealed to the Supreme

Court, he is not legally bound to implement the same
until the Supreme Court approves the judgment of the
High Court;

m) he has no opinion on the likely time it would take for

the Supreme Court to resolve the appeal;

n) he thinks it prudent to return the Application Form and

the Fees collected thereunder and by doing so, he has
indicated that the Supreme Court may take longer to
dispose of the appeal before it;

o) he does not think any ‘stay’ was obtained in respect of

the Full Bench Order either before the High Court itself
or before the Supreme Court;

p) he does not think any such ‘stay’ is material to his

decision to not enforce the Full Bench Order for the
moment.
 28

30. In saying so, the DDPI demonstrates knowledge of the fact

that the Full Bench Order has been appealed before the
Supreme Court. However, it is without doubt that the DDPI
makes a completely wrong assertion in so far as the legal
implications of an appeal are concerned.

31. A Writ lies to a High Court under Article 226 to correct a

subjective assessment of an objective fact by an agent of
the State particularly where such agent is vested with
functions the discharge of which affects the fundamental
rights of citizens.

32. The law relating to appellate remedies is too well

established to merit any doubt under these circumstances.
An appeal is always a statutory remedy and may be varied,
modified, removed, expanded or extinguished by the
Statute.9

33. Where prerogative Writs are issued by a High Court in

exercise of powers under Articles 226 or 227 of the
Constitution, the Order and Judgment of that Court
attains finality in so far as that Court is concerned unless
it is specifically stayed by the Court issuing the Order or
by a Court superior to it under the law. A superior Court
9
“All appeals…exist merely by statute and unless the statutory conditions are
fulfilled, no jurisdiction is given to any Court of justice to entertain them”
Ohene Moore v. Akesseh Tayee [Privy Council / AIR 1935 PC 5 (6) : 153 IC
908 (PC)]
“This Court said that right of appeal is the creature of a statute and it is for
the legislature to decide whether the right of appeal should be unconditionally
given to an aggrieved party or it should be conditionally given. Right of
appeal which is statutory right can be conditional or qualified.”Gujarat Agro
Industries Co. Ltd. v. Municipal Corporation of the city of Ahmedabad and
Ors.[Supreme Court / AIR 1999 SC 1818 : (1999) 4 SCC 468 / D.P. Wadhwa
and N. Santosh Hegde, JJ.]
 29

could only be the Supreme Court or an intra-Court to

which an appeal lies under the Letters patent or the
Charter of that High Court.

34. In view of the fact that Article 21410 of our Constitution

mandates a High Court for every State, an Order and
Judgment of this Hon’ble Court under Article 226 or 227
attains finality in the State of Karnataka unless:

a) an intra Court appeal, permissible under Section 4 of

the Karnataka High Court Act, 1961, is filed there
under and the appellate Bench issues a stay on the
Order of the Court below;

b) a certificate to appeal in pursuance of Articles 132 or

133 of the Constitution is sought and the High Court
grants a certificate thereunder with a corresponding
stay upon its ‘Order’ pending appeal to the Supreme
Court;

c) on a Special Leave Petition under Article 136 of the

Constitution, the Supreme Court grants, at its sole
discretion, a stay upon the ‘Order’ of the High Court
pending disposal of the ‘Special Leave Petition’;

d) the High Court, upon a formal request or on its own,

grants an interim stay for a specific period upon its
‘Order’ to enable a party to its Order to appeal to the
Supreme Court or to an Intra-Court. An interim stay so

10
Article 214 – There shall be a High Court for each State.
 30

issued, operates only for such time stated by the Court

issuing it.

35. While it is obvious that the Order and Judgment of a Full

Bench of the High Court cannot be appealed except before
the Supreme Court, the State did not pursue before the
Full Bench, any formal request for an ‘interim stay’ upon
its ‘Order’. In view of the same, the Full Bench Order has
become enforceable in the State of Karnataka since the
date on which it was delivered – 02-Jul-2008.

36. Between 02-Jul-2008 and today, 09-Mar-2009, there has

been no stay upon the Full Bench Order by any competent
Court. Accordingly, the obligation of the DDPI to adhere to
the ‘Rule of Law’ is fully frustrated as the law in force at all
relevant times for the purpose of this petition has been
that contained in the Full Bench Order. The DDPI has, by
his conduct, violated the Full Bench Order with utter
disregard to the consequences such conduct creates.

37. The ‘Rejection Order’ by the DDPI is tantamount to

asserting that the law declared by this Hon’ble Court is
only provisional and that unless approved by the Supreme
Court, he is free to disregard the same. The Petitioners
state that such an assertion is outrageous, to say the least.

38. It is further submitted that this Court, in an unconnected

matter, Writ Petition No.15177 of 2007 (which involved the
rejection of ‘Registration’ of ‘English Medium Instruction’ in
certain schools) quashed similar ‘Rejection Orders’ on 19-
Nov-2008 and directed the Respondents to dispose of fresh
Registration Applications by the petitioners therein within
 31

a period of three months. A certified copy of the said Order

dated 19-Nov-2008 is produced herewith and marked as
Annexure H. Specifically, this Court said:

“4. Mr.K.V.Dhananjay, learned counsel appearing for the

petitioner submits that the petitioners have made
applications to the respondents to register their schools for
the required curriculum for the academic year 2009-10. It is
also submitted that the applications are given before 31-10-
2008, which is the cut-off date”

“5. Having regard to the fact that the applications are

pending consideration since 1st of November, the
respondents are directed to consider the same within an
outer limit of three months from the date of receipt of this
Order”

39. Petitioner 1, upon learning of the above Order of this Court

has made extensive efforts to inform Respondents on their
obligation to not indefinitely hold up Registration
Applications and copies of the said Order were circulated
amongst member schools of Petitioner 1.

40. The action of the Respondents violates the petitioners’

freedom of speech and expression. Freedom of speech and
expression always includes a freedom of thought. Freedom
of thought, speech and expression necessarily include a
freedom of language. If there is no freedom of language,
there can be no freedom of the other. Accordingly, no law
can be made in our country that states that the State shall
refuse to recognize the right to ‘freedom of speech and
expression’ unless such right is expressed in a particular
 32

language and not in another. The situation of the

Petitioners in being denied the registration of an ‘English
medium school’ is squarely covered by the prohibition11
cast upon a State by our Constitution.

41. The petitioners fully agree with the Full Bench Order and
they may be allowed to adopt the reasoning advanced in
the Full Bench Order to the fullest extent in this
proceeding. The petitioners assert that their fundamental
rights guaranteed under Part III of the Constitution is fully
violated by the action of Respondents. Specifically, the
action of Respondent 3 in refusing to register the
petitioners’ proposal to impart ‘English Medium
Instruction’ in petitioners’ schools violates Articles 19(1)(a),
19(1)(g), 21 and Article 26 of the Constitution.

42. The Petitioners submit that there can be no dispute about

there being a duty upon Respondents to enforce the Full
Bench Order. Our Supreme Court has often declared that
a mere appeal does nothing by itself to stay the Order of
the Court below. It says:

It is well settled that mere preferring of an appeal does not

operate as stay on the decree or order appealed against nor
on the proceedings in the court below. A prayer for the grant
of stay of proceedings or on the execution of decree or order
appealed against has to be specifically made to the
appellate Court and the appellate Court has discretion to
grant an order of stay or to refuse the same.

11
Article 13 (2) The State shall not make any law which takes away or
abridges the rights conferred by this Part and any law made in contravention
of this clause shall, to the extent of the contravention, be void.
 33

Atma Ram Properties v. Federal Motors [Supreme Court /

2004 (10) SCALE 345 : (2005) 1 SCC 705 / R.C. Lahoti,
C.J. and G.P. Mathur, J]

“As is well-known, mere filing of an appeal does not operate

as a stay or suspension of the order appealed against.”
Collector of Customs, Bombay v. Krishna Sales [Supreme
Court / AIR 1994 SC 1239 : 1994 Supp (3 )SCC 73 / B.P.
Jeevan Reddy and S.P. Bharucha, JJ.]

43. The petitioners further submit that High Courts across the
country have consistently disapproved the practice of
litigants refusing to enforce its Orders merely on the
premise that they have appealed to the Supreme Court

“…Against the order of the Appeal Court, even an S.L.P.

has been filed but stay has not been obtained.”

“It is well known that the mere filing of an appeal does

not operate as a stay of the order appealed against. …
Therefore, ignoring the order of the Court an attempt has
been made to alter the factual possession...”

“It is accepted on authority and also on principle that

when an action is taken in violation of an order of Court
the resultant action is not only contumacious but is also
void for illegality [See the Judgment of Sir Robert
Megarry. Vice-Chancellor in the case of Clarke v.
Chatburn, reported in (1985)1 All England Report 211 at
page 215].”

“These principles in Clarke have been quoted with

approval by the Supreme Court in the case of Delhi
 34

Development Authority v. Skipper Construction Company

(P) Ltd. and Another….”

STP Limited v. Nirmaljit Singh Hoon [High Court of

Calcutta – AIR 2002 Cal 91 : (2002) 1 CALLT 76 (HC) /
A.K.Ganguly, J]

44. The petitioners assert that a failure of the State to obtain a

Stay even after 180 days since its appeal to the Supreme
Court coupled with the refusal of its officers to enforce the
Full Bench Order is a severe disruption of the judicial
power of this Court.

“Respondents on being noticed have filed their reply ...

They have submitted that mere filing of SLP against the
order of CEGAT would not operate as an order of stay,
unless specific order of stay has been passed by the
Supreme Court in this regard. They have further
submitted that as long as the order of CEGAT has not
been set aside and quashed, it is the bounden duty of the
petitioners to continue to pay the amount of duty as
directed in the order of CEGAT, even if the same is
subject matter of challenge in the SLP. They have placed
reliance on the judgments of several High Courts to
contend that in absence of any specific order of stay,
mere filing of appeal would not operate as stay.”

“There does not appear to be any dispute to the legal

position that unless a specific order has been passed by
the appellate court, mere filing of an appeal would not
operate as stay. Petitioners were granted several
opportunities to approach the Supreme Court and obtain
order of stay which is manifest from the order sheets of
 35

this Court. In fact the petition was filed on 17.3.1998 and

if the petitioners have not been able to obtain the order of
stay for a long period of 6 months this Court cannot grant
any further indulgence to the petitioners.”

Siddhartha Tubes v. Commissioner of Central Excise

[Madhya Pradesh High Court / 1999 (63) ECC 24 / Deepak
Verma J.]

45. High Courts have further held, in like circumstances, that

the conduct of the Executive invites the provisions of the
Contempt of Courts Act, 1971.

“In a Government which is ruled by law, there must be

complete awareness to carry out faithfully and
honestly the decisions rendered by courts of law after
effective adjudication. Then only will private
individuals, organisations and institutions learn to
respect the decisions of courts. In absence of such
attitude on the part of all concerned, chaotic conditions
might arise and the functions assigned to the courts of
law under the Constitution might be rendered a futile
exercise. It requires to be emphasised, in this
connection, that mere preferment of an appeal does
not automatically operate as a stay of the decision
under appeal and that till an application for stay is
moved and granted by the appellate court, or, in the
alternative, the court which rendered the decision is
moved and grants an interim stay of the decision
pending the preferment of an appeal and grant of stay
by the appellate court, the decision continues to be
operative. Indeed, non-compliance with the decision on
 36

the mere ground that an appeal is contemplated to be

preferred or is actually preferred, and that, therefore,
the matter is sub judice, may amount to contempt of
Court punishable under the Contempt of Courts Act,
1971. The decision of the Supreme Court in
Baradakanta Mishra v. Bhimsen Dixit, places the
matter beyond dispute, doubt or debate as regards
this aspect.”

Hans Raj Dhir v. State of Himachal Pradesh [High Court of

Himachal Pradesh / 1985 CriLJ 1030 / P.D. Desai, C.J.
and H.S. Thakur, J.]

46. High Courts have further refused to extend equitable

remedies in such instances and have expressed that the
affected party must suffer the judgment of the Court below
and may only move the superior Court for expeditious
disposal of the matter.

“The appellant also submitted that since an appeal

was pending, the order of conviction was yet to
become final, and therefore, till the appeal is decided
on merit … cannot be enforced. In our opinion, the
aforesaid submission is not acceptable. Law is well
settled that mere filing of appeal does not operate as
stay of the order appealed against, unless there is a
specific provision of law to that effect…”

“…The appellant has rather passionately submitted

that disposal of the appeal before the Appellate Court
may take a long time and …for an uncertain or
indefinite period would not be in the interest of justice.
 37

Unfortunately for the appellant, this is a piquant

situation, but this will not come to the aid of the
appellant…It is for the appellant to move the Appellate
Court for expeditious disposal of the appeal.”

Kaaruppan v. Dhanapalraj Chairman, Bar Council of Tamil

Nadu [(Madras High Court / MANU/TN/0003/2005 / P.K.
Misra and A.K. Rajan, JJ.]

47. That the petitioners are starved of an efficacious remedy to

preserve their fundamental rights under the circumstances
and have no alternative or effective remedy than to seek
intervention12 of this Court under Article 226 of the
Constitution.

48. That the cause of action in the instant petition is a matter

of paramount concern to the members of Petitioner 1.
Accordingly, Petitioner 1 retains a primary concern in
ensuring that the ‘Language Policy’ of Karnataka be not
enforced by the Respondents in a manner inconsistent
with the Full Bench Order.

49. That the petitioners have not filed, on the instant cause of
action, any other petition before this Hon’ble Court or
before any other Court of competent jurisdiction.

12
“Why is it that the Courts both in India and in America have taken an
activist approach in upholding the civil liberties and rights of the citizens? In
our opinion, this is because freedom and liberty is essential for progress, both
economic and social. Without freedom to speak, freedom to write, freedom to
think, freedom to experiment, freedom to criticize (including criticism of the
Government) and freedom to dissent there can be no progress.
Government of Andhra Pradesh v. P. Laxmi Devi [Supreme Court / AIR 2008
SC 1640 : (2008) 4 SCC 720 / H.K. Sema and Markandey Katju, JJ.]
 38

50. That the Petitioners reasonably assert that the violation of

their fundamental rights by the conduct of Respondents
herein is such that the Relief sought herein offers an
adequate remedy under the circumstances.

51. That, under the circumstances, the petitioners seek

intervention of this Court under Article 226 of the
Constitution, amongst others, on the following:

GROUNDS

I. Respondent 3 has a duty to register the ‘English Medium

Instruction’ in educational institutions of the Petitioners in
terms of Section 30 of the Karnataka Education Act, 1983
and under rules and orders made thereunder and in terms
of Notification No. ED 68 AAV 96, dated 30-06-1997. In
refusing to so register, Respondent 3 has committed a
breach of duty cast upon it. A Writ of Mandamus so lies to
compel Respondent 3 to discharge such duty wrongfully
denied to the Petitioners.

II. The Respondents have no authority to disregard a binding

Order and Judgment of the High Court and are conferred
no privilege or immunity to enforce that part of a
Government Order that has already been declared void13

13
“Where a Statute is adjudged to be unconstitutional, it is as if it had never
been. Rights cannot be built up under it; contracts which depend on it for
their consideration are void; it constitutes a protection to no one who has
acted under it and no one can be punished for having refused obedience to it
before the decision was made. And what is true of an Act void in toto is true
also as to any part of an Act which is found to be unconstitutional and which
consequently has to be regarded as having never at any time been possessed
of any legal force…The effect of the declaration that the Act is void should be
notionally taken to be obliterated from the section for all intents and
purposes”
 39

and as of no legal effect by a Court of competent

jurisdiction. The proceedings that resulted in the Full
Bench Order were validly instituted and were brought
before an appropriate Court of competent jurisdiction – the
High Court. As such, the Respondents, by seeking to
enforce a G.O. that has since been obliterated from the
Statute Books are professing an authority that is not
merely non-existent but is one which severely conflicts
with the power14 conferred upon a High Court constituted
under Article 214 of the Constitution.

III. Respondent 3 is not a multipurpose agent of the

Government of Karnataka and is a statutory office vested
with definite and limited powers. Accordingly, for the
proper and due performance of his duties, the DDPI,
commensurate with his power, has a duty to act in
accordance with the statutes and the law in force. It is
impossible to comprehend any legal merit15 in the
argument that – because a High Court judgment is

Commentary on the CONSTITUTION OF INDIA – Durga Das Basu. 8th

Edition. Pg.699. Vol.1
14
“Judicial power of the power of a Court to decide and pronounce a
judgment and carry it into effect between persons and parties who bring a
case before it for decision” Justice Samuel Miller, On the Constitution (New
York, 1891) pg.314

“Judicial power is the power to entertain the suit, consider the merits and
render a binding decision thereon”. General Investment Co. v. New York
Central Railway Co. [Supreme Court of the United States - 271 U.S. 228]
15
“The interpretation of the laws is the proper and peculiar province of the
Courts. A Constitution, is, in fact, and must be regarded by the judges, as a
fundamental law. It therefore belongs to them to ascertain its meaning, as well
as the meaning of any particular act proceeding from the legislative body. If
there should be an irreconcilable variance between two, that which has the
superior obligation and validity ought, of course, to be preferred; or, in other
words, the Constituion ought to be prepared to the statute, the intention of the
people to the intention of their agents”. The Federalist. Nos.78 at pg.525
 40

appealed to the Supreme Court, the High Court judgment

cannot be enforced until it is approved by the Supreme
Court. Accordingly, the conduct of the DDPI is based on an
assumption that holds no legal flavour whatsoever.

IV. Further, the DDPI, in performance of his statutory duties

is often sued by affected educational institutions by way of
Writ Petitions before this Hon’ble Court. The DDPI is
therefore exposed to the rules, procedures and the law
governing Court affairs. Further, the DDPI is certainly
expected to be aware of the binding nature of Orders of a
Court, of appellate procedures, the result of interim stays
and of the hierarchy involving the High Court and the
Supreme Court. Given that the DDPI is expected to have a
sound knowledge of basic matters concerning Court
Orders, the petitioners maintain that it is outrageous for
the DDPI to present a view that is both naïve and utterly
incomprehensible.

V. Further the State has not merely appealed to the Supreme

Court against the Full Bench Order. But has even sought
‘Interim Relief’ against the operation of the Full Bench
Order. If only the State assumed, even erroneously, that
mere appeal to the Supreme Court is enough to suspend
the operation of the Full Bench Order, there was no special
need to seek an ‘Interim Relief’ and to furnish ‘Grounds’ in
support thereof. The fact that the State has sought a ‘Stay’
separately and specifically belies the view of its officers
that the Full Bench Order need not be enforced for the
moment. It is further submitted that during the hearing
before the Hon’ble Supreme Court, the Counsel for the
State did invite the attention of the Court to their
 41

application for stay. Despite the same, the Supreme Court

merely directed formal ‘Notice’ to Respondents.

VI. The State has exceeded its authority in seeking to enforce

the language policy of the State when the operation of the
same has been removed by this Hon’ble Court. Having
failed to secure an interim stay upon the Full Bench Order,
Respondents have clearly disregarded the injunction
subsisting upon their conduct. Respondents should
therefore be restrained from enforcing the language policy
in respect of the petitioners’ educational institutions. The
Petitioners reasonably expect to succeed on issue of such
restraint.

VII. The Petitioners have no adequate remedy other than to

seek reversal of State action to preserve their
constitutional guarantee of a right to a valid occupation.
The refusal of the respondents to register ‘English Medium
Instruction’ in the petitioners’ schools clearly violates the
right of the Petitioners to engage in an occupation long
considered to be inherently virtuous and utilitarian and
perceived as for advancement of public good.

VIII. In terms of the Full Bench Order, the enforcement of the

‘language policy’ of the State in respect of the Petitioners
should be construed as a violation of the Petitioners’
fundamental rights enumerated in Articles 19(1)(a),
19(1)(g), 21 and 26 of our Constitution.
 42

PRAYER

Under these circumstances, the Petitioners humbly pray

that this Hon’ble Court be pleased:

i. to issue a Writ of Prohibition or a Writ of any other

nature or description restraining Respondents from
enforcing the G.O. dated 29-Apr-1994 (Annexure G)
in a manner inconsistent with the Order and
Judgment dated 02-Jul-2008 of the Full Bench of
this Court in Writ Petition 14363 of 1994 and
connected petitions in respect of Petitioner 2 and
member institutions of petitioner 1 and therefore, to
quash the ‘Rejection Order’ dated 25-Feb-2009
issued by Respondent 3 (Annexure F ).

ii. to issue a Writ of Mandamus or a Writ of any other

nature or description directing Respondent 3 to
‘Register’ forthwith ‘English Medium of Instruction’ in
respect of ‘Sri Aurobindo Vidya Mandir’ established
and administered by Petitioner 2, Rajajinagar
Education Society.

iii. to issue any other order, direction or instruction to

secure any purpose or objective that this Hon’ble
Court deems fit under the circumstances of the case
in the interests of justice, equity and expediency.
 43

K.V.DHANANJAY.

Bangalore Roll No.KAR/659/2002

Date: 09-Mar-2009 ADVOCATE FOR PETITIONERS

Address for Service of Notice:

K.V.DHANANJAY.
No.296
Kamakshipalya
Magadi Main Road
Bangalore 560 079
 IN THE HIGH COURT OF KARNATAKA

ORIGINAL JURISDICTION

WRIT PETITION No. of 2009 (EDN. REG-P)

Between
Karnataka Unaided Schools Petitioners
Management’s Association And Anr.

VERSUS

State of Karnataka And Others. Respondents

VERIFYING AFFIDAVIT

I, G.S.Sharma, Aged 83 years and President of Karnataka

Unaided Schools Management’s Association, a Registered
Society situated at No.9, Vanivilas Road, Visveswarapuram,
Bangalore 560 004 do hereby solemnly affirm and State on
Oath

1. That I am the petitioner in the above mentioned petition

and as such, fully acquainted with the facts and
circumstances of this case; hence, competent to swear this
Affidavit for myself and for fellow petitioners as I am so
instructed by all of them.

2. That I have read over the contents of the accompanying

Synopsis And List of Dates – Page Nos. 1 to 8, Writ Petition
- Page Nos. 9 to 43, paras 1 to 51, Grounds I to VIII, and I
say that the same are true and correct to my knowledge,
information, understanding and belief and are based on
the records of the case.

3. That the Annexures to the petition are true copies of the

respective originals.

4. That the contents of this Affidavit are true to the best of my

knowledge, no part of it is false and nothing material has
been concealed therefrom.

Verified at Bangalore on this

day of March, 2009

Identified by Me:

Advocate DEPONENT

Place: Bangalore
Date: 09-Mar-2009