Satimbla Sharma & Ors vs St.Paul Sr.Secondary School & Ors

Mrs. Satimbla Sharma and Ors. ... Appellants

Versus

St. Paul's Senior Secondary School and Ors. ... Respondents

J U D G M E N T

A. K. PATNAIK, J.

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

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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

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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

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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

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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

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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

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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

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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

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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

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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-

11 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.

12 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

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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 benefits 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

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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

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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

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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

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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

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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

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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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