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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

ORIGINAL JURISDICTION

WRIT PETITION NO.17983 to 17987 and 17989 to 17993 /2010

(EDN. RES)

Between
Karnataka Unaided Schools Petitioners
Managements Association And Ors

VERSUS

Union of India And Others. Respondents

SYNPOSIS AND LIST OF DATES

03-Sep-1948 This petition is concerned with the extent of

powers conferred by the Census Act, 1948 upon
the Central and State Governments, in the matter
of entrusting persons with 'census taking duty'.
The instant case raises a basic question of law:

Does the Census Act, 1948 authorise the

Government to randomly pick a citizen of India
and assign 'Government work' to such a private
citizen and to punish such citizen for a failure to
perform such, forced 'Governmental' work?

The Census Act, 1948 has been passed for the

purpose of governing the taking of Census in India
or any part thereof. The Preamble to the said
statute says:

WHEREAS it is expedient to provide for the taking

of census in India or any part thereof whenever
necessary or desirable and to provide for certain
matters in connection with the taking of such
census.
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Petitioner No.1, the Karnataka Unaided Schools

Managements 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.

Petitioner No.2, G.V.K. Education Society is

registered under the State law in force for the
registration of societies and has been so registered
at all relevant times. The said G.V.K.Education
Society is a member of KUSMA. The said private
educational institution is registered as 'Evershine
Primary School' in terms of Section 33 of the
Karnataka Education Act, 1983.

Petitioners No.3 to 10 are residents of Bangalore

and have secured the requisite academic
qualification to merit employment as 'teachers' at
educational institutions for Standards I to VII in the
State of Karnataka. Petitioners No. 3 to 10 are
currently employed as 'teachers' for various
standards at the said 'Evershine Primary School'
established and administered by Petitioner 2
society.

02-Dec-2009 Pursuant to requests from the 'Director of Census

operations for the State of Karnataka' (Respondent
4), the Government of Karnataka has, by a
Notification No.RD 20 ETC 2009, dated 02-
Dec-2009, appointed the Commissioner,
Bangalore Bruhat Mahanagara Palike (Respondent
5), as the Principal Census Officer.
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04-Jan-2010 Thereafter, the Commissioner, BBMP, has, by

Notification No.B12 (1) PR/159/2009-10
dated 04-Jan-2010, deemed it fit to further
appoint as 'census officers', employees of the
BBMP.

15-Feb-2010 Again, pursuant to the above Notification, the

Government of Karnataka has deemed it fit to
delegate even further - It has issued another
Notification No.RD 102 ETC 2009 dated 15-
Feb-2010 whereby, 'census officers' already
appointed under previous Notification are given
the further power to again appoint 'census
officers'.

26-Mar-2010 The Health Officer in the Medical Officer of Health

(MOH) in Basavanagudi Zone (Respondent 6), has
thereafter, illegally proceeded to issue Notices to
petitioners 3 to 10 seeking to appoint these
private citizens as 'census officers'. On 26-Mar-
2010, the Respondent 6 has addressed Notices to
Petitioners 3 to 10 who are teachers at 'Evershine
English School', a private unaided educational
institution established and administered by
Petitioner 2 Society. The legality of such Notices is
the subject of this Writ petition.

The Petitioners state, with humility, that teachers

are pained to think of themselves as multi-
purpose labourers or bonded labourers in view of
the manner their services are sought in relation to
activities other than teaching. They are of the
apprehension that they are unable to do justice to
their core function to teach.

The Petitioners submit that the taking of Census

work is clearly laudable and the instant petition
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may not be read as an effort to undermine the

importance of Census work. Nevertheless, special
obligations cast upon teachers of private unaided
educational institutions render it undesirable and
improper for them to participate in Census taking.

The Petitioners submit that Section 4 of the

Census Act, 1948 does not authorize the State
Government to issue any Notification to designate
any class of private citizens as Census Officers; all
that the said provision authorizes is to facilitate a
State Government to appoint individuals,
employees or officers under the State Government
to act as Census Officers.

The use of the words 'shall be bound to serve

accordingly' in Section 4(2) of the Census Act,
1948 has to be read in a manner as will compel
'Government employees only' to perform 'census
duty' notwithstanding the actual employment
contract in relation to such 'Government
employees'. The interpretation of Section 4(2) of
the Census Act, 1948 in such a manner wherein a
Government employee could be compelled to
perform services added to his original employment
contract by virtue of special statute or legislation
is fully consistent with the decision of the
Constitution Bench of our Honble Supreme Court
in Roshan Lal Tandon v. Union of India.

Therefore, the use of the word 'shall in section 4

(2) is primarily meant to override any employment
contract that does not specify census work as an
incident of employment contract. Because, a
Government employee whether contracting for a
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short term or for a longer term is a contracting

party and could, upon ordinary principles of law
governing contracts, object to the rendering of a
service not specified in his individual employment
contract, the Parliament has deemed it proper to
phrase the language in section 4 (2) in such a
manner so as to ensure that employment
contracts that are contrary are overridden and
employment contracts that make no provision for
such service are thereby supplemented.

Therefore, the language contained in section 4 (2)

of the Census Act, 1948 is wholly confined to
employees under the services of the state
Government. Because the Petitioners are neither
employees of the State nor of the Central
Government, Section 4 (2) of the Census Act, 1948
is clearly inapplicable to the petitioners. As such
the giving of impugned notices by the
Respondents is wholly misconceived and
misplaced. A Writ of Prohibition will therefore lie to
restrain the Respondents from proceeding any
further.

Further, Section 7 merely creates a duty in

persons whose assistance is necessary for the
taking of census to act in such manner as will
facilitate the taking of census. In doing so, the
scope of Section 7 is greatly curtailed by the
statute. The assistance required of a person is
always in relation to persons confined to such
land, factory, firm or establishment. An employee
of a private organization may be directed to assist
in the taking of census of other co-employees only.
To illustrate, an employee of Factory A, a private
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firm, may be directed to assist in the taking of

census of other employees of Factory A only. No
part of Section 7 authorizes a District Magistrate to
direct employees of Factory A to assist in the
taking of census of employees of Factory B. The
emphasis in Section 7 leads to no other conclusion.

Section 11 of the Census Act, 1948 invites

prosecution and punishment of a 'census officer'
who refuses to perform the duty assigned to him.
Because the above provision when read with
Section 4(2) and Section 7 imposes a penal
consequence upon any person who is appointed as
a census officer in terms of Section 4(2) of the
Act, the canons of interpretation call for a strict
interpretation and the impugned notices do not
survive a strict interpretation of these two
provisions.

The petitioners would be subject to unreasonable,

unintended and illegal consequences should this
Court not adhere to the rule of strict interpretation
of a penal statute.

If there is any ambiguity in the words which set

out the elements of an act or omission declared to
be an offence, so that it is doubtful whether the
act or omission in question in the case falls within
the statutory words, the ambiguity will be resolved
in favour of the person charged. This is, in
practice, by far the most important instance of the
strict construction of penal statutes.

A teacher in a private unaided educational

institution is primarily a private employee and the
terms and conditions that govern the relationship
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between a teacher and her employer institution is

not formulated by the Government. That is, the
terms and conditions that define an employment
contract between a private unaided educational
institution and its employees is neither formulated
nor approved by the Government, As such the
employment contract that governs the services of
the teaching faculty in a private educational
institution does not and need not incorporate any
condition that binds a teacher to render any
service for the benefit of any person other than the
contracting educational institution. Accordingly,
the teaching faculty in a private unaided
educational institution is not obligated to render
any service beyond that stipulated in the relevant
employment contract.

Further, private unaided educational institutions

that are members of KUSMA do not formulate
contracts that bind their employees to render
services not covered by such employment
contracts. Therefore, in the absence of a Statute
either by Legislature of a State or by the
Parliament, the Executive Government of a State
or of the Center is not authorized to override and
modify employment contracts that are entered
into between purely private parties. Any such
interference is opposed to the modern notion of
individual liberty or would plainly be arbitrary - in
either case, wholly opposed to the principles
enshrined in the Constitution of India.

The essential work of a teacher has no rational

relation whatsoever to the task of an enumerator.
A teacher in a private unaided educational
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institution is not more readily suited than say, an

advocate in practice in a Court of law or any other
graduate or professional, to perform the task of an
enumerator.

02-Jun-2010 Hence this Writ Petition - with prayer for Interim

Relief.

While it is true that census taking is a critical part

of Government work, any intention to draft private
individuals must be clearly expressed in certain
terms by the Parliament of India and the fact that
the Parliament has made no such mention in the
Census Act 1948, is clearly evident upon an
ordinary reading of the Census Act 1948. Further
the Rules known as Census Rules 1990, issued by
the Central Government in terms of sub-section (1)
of Section 18 of the Census Act 1948 do not
express any intention to draft private citizens for
the purpose of census taking because the
Parliament has made no provision howsoever to
facilitate drafting of private persons for census
work. The action of the respondents in issuing the
impugned notices for the purpose of drafting the
services of private citizens is tantamount to
usurpation by a public body of a power not
authorized to it. Accordingly a Writ of Prohibition
shall issue by this Honble Court for the purpose of
restraining a public body from assuming a power
not vested in it.

The Petitioners are fully deprived of the protection

accorded to them under Article 21 of the
Constitution of India. Article 21 of the Constitution
forbids the Legislature from issuing any law for the
purpose of inhibiting the liberty of an individual
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unless the language employed therein is definite

and certain. The language employed in the Census
Act, 1948 offers no authority whatsoever to the
Respondents to recruit private citizens for the
purpose of census duty. Accordingly, this Hon'ble
Court is vested with a duty, in terms of Article 226,
to intervene for the purpose of protecting the
Petitioners' constitutional right enshrined in Article
21 of the Constitution.

K.V.DHANANJAY.

Bangalore Roll No.KAR/659/2002

Date: 08-Jun-2010 ADVOCATE FOR PETITIONERS

Address for Service of Notice:

K.V.DHANANJAY.
No.296
Kamakshipalya
Magadi Main Road
Bangalore 560 079
email: dhananjaylegal@gmail.com

Phone: +91 9902909390