Shantiniketan Hindi Primary School vs Pal Hariram Ramavtar And Ors

Non-reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1095 OF 2010 (Arising out of SLP(Civil)No. 21627 of 2005)

SHANTINIKETAN HINDI PRIMARY SCHOOL .... Appellants(s)

Versus

PAL HARIRAM RAMAVTAR AND ORS. .... Respondent(s)

JUDGEMENT

K.S.Radhakrishnan, J.

Leave granted.

2. Shantiniketan Educational Trust claiming to be a minority institution

is running two primary unaided schools, one in Gujarati medium and the

other in Hindi medium, in State of Gujarat. Respondent nos. 1- 4 were

working as teachers in those schools. Their services were terminated on

05.07.1996 on the ground that they had absented from duties without

informing the Management which according to the management amounted

to gross indiscipline. Against the order of termination of service they filed 2

Application no. 241 of 1996 before the Gujarat Primary Education Tribunal.

While they were in service they had filed Application nos. 3 of 1993, 30 of

1993 and 193 of 1994 before the said Tribunal claiming parity of pay and

allowances as per government rules applicable to the untrained teachers.

All the applications were heard together by the Tribunal and a common

order was passed on 14.07.2000 quashing the termination orders and

directing reinstatement with full salary and other benefits from the date of

termination till the date of the order with a further direction to pay the salary

and other benefits applicable to untrained teachers as per Government

Rules, from the dates of their appointment. The Management filed a Writ

Petition being Special Civil Application No.6918 of 2001 which was

dismissed by learned Single Judge of the Gujarat High Court on

19.02.2002 which was affirmed by the Division Bench vide order dated

30.10.2004. Aggrieved by the same this appeal has been preferred by the

employer school.

3. Ms. Manisha T. Karia, learned counsel appearing for the

appellant submitted that the Tribunal as well as the High Court has

committed a grave error in ordering reinstatement with back-wages and

also giving a direction to the Management to pay the salary from the date of 3

appointment as per Government Rules. Learned counsel also submitted

that the appellant institute is a minority institution entitled to protection

under Article 30 of the Constitution of India. Learned counsel further

submitted that respondent nos. 1- 4 were unqualified, appointed as

temporary teachers purely on adhoc basis on a fixed salary of Rs.724/- per

month and they were not qualified trained teachers falling under para 6 of

the Schedule `F' of Bombay Primary Education Rules 1947. Further it was

also stated that the Trust was managing two primary schools, one in

Guajarati medium and the other in Hindi medium. Owing to paucity of funds

and due to lack of requisite number of students, the schools had to be

closed down for the years 1995-96 and 1996-97. Learned counsel further

submitted that the direction given by the Tribunal to pay the full salary and

other benefits to respondents as per Govt. rules would cause considerable

financial strain on the schools and might lead to the closing down of the

schools. Learned counsel further submitted that respondent nos. 1 to 4

were untrained and unqualified teachers and the direction given to reinstate

those teachers are illegal. Learned counsel further submitted that the

Management had followed relevant rules before terminating the services of

respondent nos. 1 to 4.

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4. Mr. Nachiketa Joshi, learned counsel appearing for respondent

nos.1- 4 submitted that the Management has committed a grave error in

terminating the services of the respondents on flimsy reasons. Learned

counsel further submitted that respondents' services were terminated since

they had approached the Tribunal for pay and allowances as per

Government Rules applicable to untrained teachers. He also submitted

that the procedure laid down under the Bombay Primary Educational Act

and Rules were not followed before terminating the services of respondents

and hence the Tribunal was justified in ordering reinstatement with full

salary and allowances and also giving a direction to the Management to

revise the pay and allowances as per Government Rules applicable to

untrained teachers.

5. The appellant is a recognized unaided Primary School

governed by the provisions of the Bombay Primary Education Act 1947.

The 1st Respondent, herein a graduate was appointed as Assistant Primary

Teacher in the Hindi Medium of the School on 5.6.1987. 2nd respondent,

who was possessing the qualification of SSC was appointed in the school

as a Teacher for the course of Handicraft and Book binding on 8.7.1985.

The 3rd respondent was appointed as Assistant Teacher in the Gujarati 5

Medium of the school on 22.6.1986 and the 4th respondent was appointed

on Assistant Primary Teacher in the Gujarati medium on 5.6.1987. They

were discharging their duties without any complaint from any quarters.

Noticing that they were not getting the pay and allowances as per

Government Rules applicable to untrained teachers, they approached the

Tribunal and filed application nos.3 of 1993 and 30 of 1993 for a direction

to the Management to pay the salary and allowances as per Government

Rules. Apparently, irked by such demand, their services were terminated

by the Management on the ground that they had absented from duty

without informing the Management which amounted to gross indiscipline.

The Tribunal after an elaborate discussion of the various contentions raised

by the parties and also examining the provision of Bombay Primary

Educational Act, 1947 and the Gujarat Amendment Rules 1978 came to the

conclusion that the order of termination was bad since the Management

had not followed by proper procedure in terminating their services. Further,

it was also found that the respondents were entitled to get the pay and

allowances as per Government Rules applicable to untrained teachers.

6. The main contention raised by the Management before us

was respondents were unqualified to hold the post and also that they were 6

not trained teachers. We notice that the reason for termination of services

was not that they were unqualified or untrained teachers but that they had

absented from duties. Assuming that they had absented from duties even

then admittedly procedure laid down under Clause 13 and 18 of Schedule

`F' of the Bombay Primary Education Rules, 1949 had to be followed before

terminating their services. The Tribunal and the High Court had therefore

rightly held that the orders of termination of services of the respondents

was bad in law.

7. Rule 106A of the Bombay Primary Education Rules deals with

the application for recognition. Sub-rule 2 of Rule 106-A states that every

application under sub-rule 1 shall be sent to the authorized officer by

registered post with acknowledgment due together with an undertaking in

writing that the conditions of employment of teachers in the private primary

schools shall be those as specified in Schedule 'F' appended to these

rules. Schedule 'F' deals with the model conditions of employment of

teachers in the private schools in the State of Gujarat which forms part of

Rule 106A of the Rules. Clause (v) of sub-rule 4 states that no primary

school shall be recognized or continued to be recognized unless the rates

of tuition fee, pay-scales and allowances of the teaching staff shall be such

as may be approved by the Government from time to time. Following the 7

above mentioned provisions, the Tribunal, on facts found that the

respondents were working as teachers in the School for over ten years but

they were paid only a consolidated monthly pay of Rs.724 per month,

which was found to be not in accordance with rules. Tribunal in our view

has correctly come to the conclusion that the respondents-teachers are

entitled to get pay and allowances which are applicable to untrained

teachers as per Government Rules.

8. Under the above circumstances, we find no reason to interfere

with the order passed by the Tribunal which was confirmed by the High

Court. Further, we notice that when this court had granted stay of the

judgment vide orders dated 13.1.2006, recorded the statement of counsel

for the management that it had disbursed Rs. 2 lakhs towards arrears of

salary. Needless to say that amount would be adjusted towards salary due

to the respondents. Considering the financial difficulties pointed out by the

counsel appearing for the Management and the fact that the School had to

be closed down for the years 1995-96 and 1996-97, and considering the

fact that there were unauthorized absences, we are of the view that the

respondents 1-4 are entitled to get only 50% of the salary and other

benefits applicable to the untrained teachers as per Government Rules 8

from the date of appointment till the date of reinstatement after adjusting

the above-mentioned amount. Ordered accordingly.

9. The appeal is disposed of as above.

....................................J. (R.V. Raveendran)

....................................J. (K.S. Radhakrishnan) New Delhi;

February 01, 2010