Mrs. Satimbla Sharma
and Ors. Vs. St. Paul's Senior Secondary School and Ors.
J U D G M E N T
A. K. PATNAIK, J.
1.
This
is an appeal against the judgment dated 25.07.2008 of the Division Bench of the
High Court of Himachal Pradesh, Shimla, in Letters Patent Appeal No.48 of 2004.
2.
The
facts very briefly are that in 1923 the respondent No.1-School (for short `the School')
was initially established as a mission school by the respondent No.2. The School
adopted the 10+2 system in 1993 and is presently affiliated to the Himachal Pradesh
Board of School Education. Before independence in 1947 the School was receiving
grant-in-aid from the British Indian Government and thereafter from the Government
of India upto 1950. From 1951 to 1966, the School received grant-in-aid from the
State Government of Punjab. After the State of Himachal Pradesh was formed, the
School received grant-in-aid from the Government of Himachal Pradesh during the
years 1967 to 1976. From the year 1977-1978, the School has not been receiving any
grant-in-aid from the Government of Himachal Pradesh and the teachers of the
School are being paid less than the teachers of Government schools and
Government aided schools in the State of Himachal Pradesh.
3.
Not
satisfied with their salary and allowances, some of the teachers of the School filed
a Writ Petition, CWP No.1038 of 1996, in the High Court of Himachal Pradesh for
a direction to pay the salary and allowances at par with the teachers of Government
schools and Government-aided schools and by judgment dated 11.10.2004 the learned
Single Judge of the High Court of Himachal Pradesh allowed the Writ Petition
and directed the respondent nos.1 and 2 to pay to the writ petitioners salary
and allowances at par with their counter-parts working in the Government schools
from the dates they were entitled to and at the rates admissible from time to time.
Aggrieved by the judgment of the learned Single Judge, the respondent nos.1 and
2 filed Letters Patent Appeal No.48 of 2004 (for short `the LPA') before the Division
Bench of the High Court and by the impugned judgment dated 25.07.2008, the
Division Bench of the High Court set aside the judgment of the learned Single Judge
and dismissed the Writ Petition of the appellants.
4.
Learned
counsel appearing for the appellants submitted that the appellants do the same
work as the teachers of Government schools and Government aided schools and yet
are being paid lower than the teachers of Government schools and Government
aided schools.
He further submitted
that the Himachal Pradesh State Government Recognized Aided Schools Teachers' Association
and others had filed Writ Petitions, C.W.P. No.413 of 1989 and 414 of 1989, in the
Himachal Pradesh High Court for appropriate writs/directions to the State Government
to pay 95% of the grant-in-aid towards approved expenditure in a school year to
the privately managed recognized schools borne on the grant-in-aid list with a view
to enable the managements of such schools to pay the teachers and allied staff of
the schools, the same pay scales and allowances as are paid to their counter-parts
working in the Government schools in the State of Himachal Pradesh and by order
dated 09.09.1992, a Division Bench of Himachal Pradesh held that teachers of
such private recognized aided schools are entitled to same emoluments as received
by their counter-parts in the State Government and allowed the writ petitions and
directed the State Government and the management of the private recognized aided
schools to work out the emoluments of the teachers and pay the same to teachers
of the private recognized aided schools.
He further submitted that
against the order dated 09.09.1992 of the Division Bench of Himachal Pradesh
High Court, the State of Himachal Pradesh came up in appeal to this Court in Civil
Appeal Nos. 1233 and 1234 of 1993 but this Court dismissed these two appeals on
10.05.1995. He vehemently argued that only with a view to wriggle out from the
liability to pay salary and allowances to its teachers and staff at par with
the salary and allowances of Government schools, the School has unilaterally decided
to stay out of the grant-in-aid scheme since 1977-1978. He submitted that the learned
Single Judge rightly held in his judgment dated 11.10.2004 in C.W.P. No.1038 of
1996 filed by the petitioners that the School, which had been receiving
grant-in-aid till 1977-1978, could not of its own volition stop to receive
grant-in-aid and rightly directed the School to pay to the appellants salary
and allowances at par with their counter-parts working in the Government
schools.
5.
Learned
counsel for the appellants submitted that the Division Bench of the High Court has
set-aside the judgment of the learned Single Judge after taking an erroneous view
in the impugned judgment that the School was under no obligation to have accepted
the grant-in-aid which would have led to diminution of its rights guaranteed under
Article 30(1) of the Constitution. He further submitted that the Division Bench
of the Himachal Pradesh High Court has also sustained the contention of the School
that the teachers of private recognized schools had no right to claim salary equal
to that of their counter-parts working in Government schools and Government
aided schools.
He submitted that
Rule 45-Q of the Grant-in-Aid Rules of the State of Himachal Pradesh provides
that management shall introduce such scales of pay and allowances for teachers and
other staff members as prescribed by the Government for corresponding staff in
Government schools. He submitted that if the teachers of Government aided schools
are entitled to same salary and allowances as the teachers of the Government
schools, there is no reason as to why only the teachers of private unaided schools
should be denied the salary and allowances of Government schools.
He submitted that if
the pay and allowances of the teachers of private minority schools such as respondent
no.1 are not made the same as that of the pay and allowances of the teachers of
the Government schools and Government aided schools, the teachers of private
minority schools will suffer discrimination and their right to equal pay for
equal work under Article 14 read with Article 39(d) of the Constitution will be
violated.
He relied on the decision
of this Court in Frank Anthony Public School Employees' Association v. Union of
India & Ors. [(1986) 4 SCC 707] wherein Section 12 of the Delhi School Education
Act which made the provisions of Section 10 providing for parity of scales of
pay and allowances of the employees of the recognized private schools with that
of the schools run by the appropriate authority inapplicable to unaided minority
institutions as discriminatory.
6.
Learned
counsel for the appellants submitted that in State of H.P. vs. H.P. State
Recognised & Aided Schools Managing Committees and Others [(1995) 4 SCC 507]
this Court relying on Mohini Jain case [(1992) 3 SCC 666] held that the right
to education is a fundamental right guaranteed under Part-III read with Part-IV
of the Constitution of India. He submitted that since the right to education is
a fundamental right, school education has a public element in it and the Court
can always issue a mandamus to enforce a public duty in matters of education.
He submitted that in K.
Krishnamacharyulu and Others vs. Sri Venkateswara Hindu College of Engineering and
Another [(1997) 3 SCC 571] employees of a non-aided private educational institution
claimed parity in pay-scales with the employees of Government institutions and this
Court held that the employees had an enforceable right and there was an element
of public interest in such a claim and the teachers of a private unaided institution
is entitled to avail the remedy provided under Article 226 of the Constitution and
they cannot be denied the same benefits which were available to other teachers working
in Government institutions.
7.
Learned
counsel for the appellants submitted that the School is provisionally
affiliated to the Council for the Indian School Certificate Examinations and the
conditions of provisional affiliation of schools prescribed by the Council for the
Indian School Certificate Examinations stipulate in clause (5)(b) that the salary
and allowances and other benefits of the staff of the school must be comparable
to that prescribed by the State Department of Education. He referred to the report
of the Education Commission 1954-66 to the Ministry of Education, Government of
India, recommending that the scales of pay of school teachers belonging to the same
category but working under different managements such as government, local bodies
or private managements should be the same and this principle of parity should be
adopted forthwith.
He submitted that
sub-section (3) of Section 23 of the Right of Children to Free and Compulsory
Education Act, 2009 (for short `the 2009 Act') provides that the salary and allowances
payable to, and the terms and conditions of service of, teachers shall be such as
may be prescribed. He referred to Section 38(2)(l) of the 2009 Act which provides
that the appropriate Government may, by notification, prescribe the salary and allowances
payable to, and the terms and conditions of service of, teacher under sub-section
(3) of section 23. He submitted that the appropriate Government as defined in Section
2(a) of the 2009 Act, namely, the State Government, therefore, can issue a notification
prescribing the salary and allowances payable to, and the terms and conditions
of service of, teacher, under sub-section (3) of section 23 of the 2009 Act.
8.
Learned
counsel for the respondent nos.1 and 2, on the other hand, supported the impugned
judgment of the Division Bench of the High Court. He further submitted that if the
School is made to pay to its teachers the same salary and allowances of
teachers of Government schools and Government aided schools, it will have to increase
the school fees and this would affect the students whose parents cannot afford
higher school fees.
9.
In
our considered opinion, the Division Bench the High Court has rightly held in
the impugned judgment that the teachers of private unaided minority schools had
no right to claim salary equal to that of their counter parts working in
Government schools and Government aided schools. The teachers of Government schools
are paid out of the Government funds and the teachers of Government aided
schools are paid mostly out of the Government funds, whereas the teachers of private
unaided minority schools are paid out of the fees and other resources of the private
schools.
Moreover, unaided private
minority schools over which the Government has no administrative control because
of their autonomy under Article 30(1) of the Constitution are not State within the
meaning of Article 12 of the Constitution. As the right to equality under
Article 14 of the Constitution is available against the State, it cannot be claimed
against unaided private minority schools. Similarly, such unaided private schools
are not State within the meaning of Article 36 read with Article 12 of the
Constitution and as the obligation to ensure equal pay for equal work in
Article 39(d) is on the State, a private unaided minority school is not under
any duty to ensure equal pay for equal work.
10.
In
Frank Anthony Public School Employees' Association v. Union of India & Ors.
(supra), relied on by learned counsel for the appellants, the scales of pay and
other terms and conditions of service of teachers and other employees of the Frank
Anthony Public School, New Delhi, which was a private unaided minority
institution, compared very unfavourably with those of their counterparts of the
Delhi Administration Schools and the Frank Anthony Public School Employees' Association
sought equalization of their pay-scales and conditions of service with those of
teachers and employees of Government schools. Sections 8 to 11 of the Delhi School
Education Act dealt with the terms and conditions of service of employees of
recognized private schools.
Section 10 of the Delhi
School Education Act provided that the scales of pay and allowances, medical facilities,
pension, gratuity, provident fund and other prescribed benefits of the employees
of the recognized private schools shall not be less than those of the corresponding
status in schools run by the appropriate authority. Section 12 of the Delhi School
Education Act, however, provided that the provisions of Sections 8 to 11 including
Section 10 were not applicable to unaided minority institutions.
The case of teachers
of Frank Anthony Public School was that if Sections 8 to 11 were made
applicable to them, they would at least be as well off as teachers and other employees
of Government schools. The Frank Anthony Public School Employees' Association therefore
challenged Section 12 of the Delhi School Education Act as discriminatory and violative
of Article 14 of the Constitution and this Court held that Section 12 of the
Delhi School Education Act insofar as it makes the provisions of Sections 8 to
11 inapplicable to unaided minority schools is discriminatory. This was thus a
case in which the employees of unaided minority institutions were not given the
bene
fits available to
employees of other private institutions under Sections 8, 9, 10 and 11 of the
Delhi School Education Act only on the ground that unaided minority
institutions enjoy autonomy of administration under Article 30(1) of the Constitution
and this Court held that this could not be a rational basis for differentiation
of service conditions, pay and other service benefits between employees of unaided
minority institutions and the employees of other private schools and the Court declared
Section 12 as discriminatory.
In other words, the State
by making a statutory provision in Section 12 of the Delhi School Education Act
which was discriminatory, had violated the mandate to the State under Article 14
of the Constitution not to deny the equal protection of the laws within its
territories. This decision in the case of Frank Anthony Public School
Employees' Association v. Union of India & Ors. (supra) does not assist the
appellants in any manner because the guarantee of equality, as we have said, is
not available against an unaided private minority school.
11.
We
also do not think that the Court could issue a mandamus to a private unaided school
to pay the salary and allowances equal to the salary and allowances payable to
teachers of Government schools or Government aided schools. This is because the
salary and allowances of teachers of a private unaided school is a matter of
contract between the school and the teacher and is not within the domain of
public law. In Sushmita Basu & Ors. v. Ballygunge Siksha Samity & Ors.
[(2006) 7 SCC 680], the teachers of a recognized private school known as Ballygunge
Siksha Sadan in Calcutta filed a Writ Petition in the High Court of Calcutta praying
for issuance of writ of mandamus directing the authorities of the school to fix
the salary of teaching and non-teaching staff of the school and to remove all anomalies
in the scales of pay as recommended by the
Third Pay Commission as
extended to other Government aided schools and Government schools and this Court
held that in the absence of statutory provision no such direction can be issued
by the High Court under Article 226 of the Constitution. Where a statutory
provision casts a duty on a private unaided school to pay the same salary and
allowances to its teachers as are being paid teachers of Government aided schools,
then a writ of mandamus to the school could be issued to enforce such statutory
duty. But in the present case, there was no statutory provision requiring a
private unaided school to pay to its teachers the same salary and allowances as
were payable to teachers of Government schools and therefore a mandamus could not
be issued to pay to the teachers of private recognized unaided schools the same
salary and allowances as were payable to Government institutions.
12.
In
K. Krishnamacharyulu and Others vs. Sri Venkateswara Hindu College of Engineering
and Another (supra), relied upon by the learned counsel for the appellants, executive
instructions were issued by the Government that the scales of pay of Laboratory
Assistants as non-teaching staff of private colleges shall be at par with the government
employees and this Court held that even though there were no statutory rules, the
Laboratory Assistants as non- teaching staff of private college were entitled to
the parity of the pay-scales as per the executive instructions of the Government
and the writ jurisdiction of the High Court under Article 226 of the Constitution
is wide enough to issue a writ for payment of pay on par with government
employees. In the present case, there are no executive instructions issued by
the Government requiring private schools to pay the same salary and allowances to
their teachers as are being paid to teachers of Government schools or Government
aided schools.
13.
We
cannot also issue a mandamus to respondent nos.1 and 2 on the ground that the conditions
of provisional affiliation of schools prescribed by the Council for the Indian
School Certificate Examinations stipulate in clause (5)(b) that the salary and
allowances and other benefits of the staff of the affiliated school must be comparable
to that prescribed by the State Department of Education because such conditions
for provisional affiliation are not statutory provisions or executive instructions,
which are enforceable in law. Similarly, we cannot issue a mandamus to give effect
to the recommendations of the report of Education Commission 1964-66 that the scales
of pay of school teachers belonging to the same category but working under different
managements such as government, local bodies or private managements should be the
same, unless the recommendations are incorporated in an executive instruction
or a statutory provision. We, therefore, affirm the impugned judgment of the Division
Bench of the High Court.
14.
We,
however, find that the 2009 Act has provisions in Section 23 regarding the qualifications
for appointment and terms and conditions of service of teachers and sub-section
(3) of Section 23 of the 2009 Act provides that the salary and allowances
payable to, and the terms and conditions of service of, teachers shall be such
as may be prescribed. Section 38 of the 2009 Act empowers the appropriate Government
to make rules and Section 38(2)(l) of the 2009 Act provides that the appropriate
Government, in particular, may make rules prescribing the salary and allowances
payable to, and the terms and conditions of service of teachers, under
sub-section (3) of section 23. Section 2(a) defines "appropriate Government"
as the State Government within whose territory the school is established.
The State of Himachal
Pradesh, respondent no.3 in this appeal, is thus empowered to make rules under sub-section
(3) of Section 23 read with Section 38(2)(l) of the 2009 Act prescribing the salary
and allowances payable to, and the terms and conditions of service of, teachers.
Article 39(d) of the Constitution provides that the State shall, in particular,
directs its policy towards securing that there is equal pay for equal work for both
men and women. Respondent no.3 should therefore consider making rules under Section
23 read with Section 38(2)(l) of the 2009 Act prescribing the salary and allowances
of teachers keeping in mind Article 39(d) of the Constitution as early as
possible.
15.
With
these observations, the appeal is disposed of. There shall be no order as to
costs.
.............................J.
(R. V. Raveendran)
.............................J.
(A. K. Patnaik)
New
Delhi,
August
11, 2011.
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