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2000 DIGILAW 446 (MAD)

S. Paul Rose v. State of Tamil Nadu and Others

2000-04-18

E.PADMANABHAN

body2000
Judgment :- The Order of the Court was as follows : The petitioner, a teacher in the 5th respondent school prays for the issue of writ of mandamus directing the 5th respondent to calculate the petitioner's basic pay with all permitted allowances and all other attendant benefits from the year 1989 till date as per the Government scale of pay according to Code of Matriculation Schools and recognition order dated 14-8-1990 passed by the second respondent herein and disburse the same to the petitioner. Notice of motion was ordered by this Court on 12-4-1999. Subsequently on 8-10-1999 the writ petition was admitted. With the consent of counsel for the petitioner as well as the respondents, the writ petition itself was taken up for final disposal on 21-3-2000. Heard Mr. R. Dharmaraj, counsel for the writ petitioner, Mr. A. Paramasivam, Government Advocate appearing for the respondents 1 to 4 Mr. B. Baskaran, counsel for the 5th respondent. The petitioner was appointed as a teacher in the 5th respondent School on 15-7-1988 at the first instance and his services were subsequently extended. The school was upgraded as High School during the year 1992. The petitioner had worked as B.T. (Mathematics) Assistant. The petitioner on reaching the age of superannuation had demitted the office on his submitting the resignation letter with three months notice. The petitioner was a confirmed teacher in the 5th respondent school. The only and substantial question raised by the petitioner is whether the petitioner is entitled to be paid salary on part with Teachers employed in Government Schools in the cadre of B.T. Assistant ? The learned counsel for the petitioner referred to the Code of Regulation framed by the State Government for Matriculation Schools. The said code prescribes the qualifications for the staff and also provides that the staff in Matriculation Schools will be paid on par with the scales of pay prescribed by the State Government and they are eligible for movement to Selection Grade after 10 years of service as in other recognised schools.Based upon the said Code of Regulation, the said only contention had been advanced by the writ petitioner. So long as the petitioner was working in the 5th respondent school he had not been paid at the rates at which his counterparts employed in the Government Schools were being paid. Concedingly, the petitioner also did not make any demand all these years. So long as the petitioner was working in the 5th respondent school he had not been paid at the rates at which his counterparts employed in the Government Schools were being paid. Concedingly, the petitioner also did not make any demand all these years. Only during December 1998 a demand has been made by the petitioner claiming arrears of difference of wages. For over ten years the petitioner had been in employment of the 5th respondent School. All these years, he did not claim such a benefit. The school came to be upgraded as High School during the year 1992. Admittedly, the 5th respondent School had not paid the scales of pay as prescribed in the said Regulations but the petitioner was paid lesser scales of pay. While referring to the revision of scales of pay as notified by the Government for B.T. Assistant, the Counsel for the petitioner persuades this Court to issue a direction to pay the difference and arrears at the revised rate of scales of pay as revised from time to time commencing from his initial date of appointment. Per contra, the counsel for the respondent contended that the 5th respondent school caters to the needs for poor section. It has no income. It is very difficult to run the school and that it is impossible for the 5th respondent School to pay salary and allowances as per the Government scales of pay. It is also contended that the 5th respondent School, a private school caters to the needs of middle class and lower class families and that most of the students are socially and educationally handicapped and the school has been started with a vision and mission to uplift the status of the uneducated society. It is further pointed out that the 5th respondent school cannot be compared to other leading schools like DAV, Don Bosco and other Government Schools or other private recognised schools where the Government sanctions teaching grant. It is contended that the petitioner is not entitled to any relief prayed for in this respect.The point raised in this writ petition is by now well settled. It is true that the 5th respondent is not receiving any grant. The 5th respondent school while getting recognition had undertaken to implement the Government scales of pay as well as to implement the regulations framed for Matriculation schools. It is true that the 5th respondent is not receiving any grant. The 5th respondent school while getting recognition had undertaken to implement the Government scales of pay as well as to implement the regulations framed for Matriculation schools. Despite such an undertaking and the recognition being subject to such undertaking given by the 5th respondent, the 5th respondent had not implemented the same. The petitioner also had not made a demand earlier. Only just before his resignation, he had made such a demand. Though a contention has been raised that no writ is maintainable against a private school like the 5th respondent, the legal position as to maintainability of writ against private school is by now well settled. The Apex Court in K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engineering reported in (1998 Lab IC 405) held that remedy is available under Art. 226 even in respect of a private college and not under Industrial Disputes Act, besides holding that the staff employed in Private School would be entitled to pay parity with the Government. The Apex Court held thus (at page 406 of Lab IC) : "It is not in dispute that executive instructions issued by the Government have given them the right to claim the pay scales so as to be on par with the Government employees. The question is : when there is no statutory rules issued in that behalf, and the Institution, at the relevant time, being not in receipt of any grant-in-aid; whether the writ petition under Art. 226 of the Constitution is not maintainable ? In view of the long line of decision of this Court holding that when there is an interest created by the Government in an Institution to impart education which is a fundamental right of the citizens, the teachers who teach the education gets an element of public interest in the performance of their duties. As a consequence, the element of public interest requires to regulate the conditions of service of those employees on par with Government employees. In consequence, are they also not entitled to the parity of the pay scales as per the executive instructions of the Government ? As a consequence, the element of public interest requires to regulate the conditions of service of those employees on par with Government employees. In consequence, are they also not entitled to the parity of the pay scales as per the executive instructions of the Government ? It is not also in dispute that all the persons who filed the writ petition along with the appellant had later withdrawn from the writ petition and thereafter the respondent-management paid the salaries on par with the Government employees. Since the appellants are insisting upon enforcement of their right through the judicial pressure, they need and seek the protection of law. We are of the view that the State has obligation to provide facilities and opportunities to the people to avail of the fight to education. The private institutions cater to the needs of the educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the orders issued by the Government. The question is as to which forum one should approach. The High Court has held that the remedy is available under the Industrial Disputes Act. When an element of public interest is created and the institution is catering to that element, the teacher, the arm of the institution is also entitled to avail of the remedy provided under Art. 226; the jurisdiction part is very wide. It would be different position, if the remedy is private law remedy. So they cannot be denied the same benefit which is available to others. Accordingly, we hold that the writ petition is maintainable. They are entitled to equal pay so as to be on par with Government employees under Art. 39(d) of the Constitution." The Apex Court in Frank Anthony P.S.E. Association v. Union of India reported in (1987 Lab IC 427) while considering the provisions of the Delhi School Education Act and the constitutional provisions of Arts. 30(1), Art. 14 held that pay scales of employees of recognised private school shall not be less than employees of schools run by appropriate authority as it is aimed at safeguarding excellence of institution. 30(1), Art. 14 held that pay scales of employees of recognised private school shall not be less than employees of schools run by appropriate authority as it is aimed at safeguarding excellence of institution. The Apex Court also considered the contention of minority school that if they have to pay higher salary and allowance to the members of the staff the institution may have to close down, and it has been held that such a contention is worthless and does not deserve consideration. In this respect, Chinnappa Reddy, J. as he then was, speaking for the Bench held thus :- "17. Apart from the learned Judges who constituted the Nine Judge Bench, other learned Judges have also indicated the same view in the leading case of the Kerala Education Bill the Constitution Bench observed that, as then advised, they were prepared to treat the clauses which were designed to give protection and security to the ill paid teachers who were engaged in rendering service to the nation as permissible regulations. The observations were no doubt made in connection with the grant of aid to educational institutions but that cannot make any difference since, aid, as we have seen, cannot be made conditional on the surrender of the right guaranteed by Art. 30(1). In State of Kerala v. Mother Provincial, it was said that to a certain extent the State may regulate conditions of employment of teachers. In All Saints High School v. Government of Andhra Pradesh, Chandrachud, C.J., expressly stated that for the maintenance of educational standards of an institution it was necessary to ensure that it was competently staffed and, therefore, conditions of service prescribing minimum qualifications for the staff, their pay-scales, their entitlement, other benefits of service and the safeguards which must be observed before they were removed or dismissed from service or their services terminated were permissible measures of a regulatory character. Kailasam, J. expressed the same view in almost identical language. Kailasam, J. expressed the same view in almost identical language. We, therefore, hold that S. 10 of the Delhi Education act which requires that the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not be less then those of the employees of the corresponding status in schools run by the appropriate authority and which further prescribes the procedure for enforcement of the requirement is a permissible regulation aimed at attracting competent staff and consequently at the excellence of the educational institution. It is a permissible regulation which in no way detracts from the fundamental right guaranteed by Art. 30(1), to the minority institutions to administer their educational institutions. Therefore, to the extent that S. 12 makes Section inapplicable to unaided minority institutions it is clearly discriminatory.23. We must refer to the submissions of Mr. Frank Anthony regarding the excellence of the institution and the fear that the institution may have to close down if they have to pay higher scales of salary and allowances to the members of the staff. As we said earlier the excellence of the institution is largely dependent on the excellence of the teachers and it is no answer to the demand of the teachers for higher salaries to say that in view of the high reputation enjoyed by the Institution for its excellence, it is unnecessary to seek to apply provisions like S. 10 of Anthony Public School. On the other hand, we should think that the very contribution made by the teachers to earn for the institution the high reputation that it enjoys should spur the management to adopt at least the same scales of pay as the other institutions to which S. 10 applies. Regarding the fear expressed by Shri Frank Anthony that the institution may have to close down we can only hope that the management will do nothing to the nose to spite the face, merely to put the teachers in their proper place. Regarding the fear expressed by Shri Frank Anthony that the institution may have to close down we can only hope that the management will do nothing to the nose to spite the face, merely to put the teachers in their proper place. The fear expressed by the management here has the same ring as the fear expressed invariably by the management of every industry that disastrous results would follow which may even lead to the closing down of the industry if wage scales are revised." In State of Haryana v. Rajpal Sharma, reported in (1996 Lab IC 2727) a Division Bench of the Apex Court held that Teachers in privately managed aided schools are also entitled to the same scales of pay and privileges as available to their counterparts in Government schools. In that respect, it has been held thus (at pages 2727-2728 of Lab IC) :- "The question of parity in pay scales between the teachers of a recognised aided school and the teachers of a Government school, as in the present case, came up for consideration in the case of Haryana State Adhyapak Sangh v. State of Haryana. This Court came to the conclusion that the teachers of aided schools must be paid the same pay scale and dearness allowance as teachers in Government schools for the entire period served by them and that the expenditure on that account should be apportioned between the State and the Management in the same proportion in which they share the burden of the existing emoluments of the teachers. The aforesaid decision of this Court was considered again by a three-Judge Bench in the case of Haryana State Adhyapak Sangh v. State of Haryana and by way of clarifying the earlier decision, this Court observed (SCC p. 310 para 6) :" These observations leave no scope for doubt that this Court has directed that the teachers of aided schools must be paid the same scales of pay and dearness allowance as teachers in Government schools and that the said payment must be made for the entire period claimed by the appellants and the petitioners in these cases." In the circumstances, in the light of the above pronouncements, it is clear that the 5th respondent has to implement the pay scales as revised from time to time by the State Government for the teachers employed in the Government schools. An identical view has been taken by this Court in W.P. Nos. 19116 of 19120 of 1997 date 13-8-1999 (reported in 2000 (2) Mad LW 486) in V. Venkatachalapathy v. Vellore Co-operative Sugar Mills Matriculation School. In the present case the petitioner claims the arrears of such revision and difference right from the date of initial appointment, which commenced on 15-7-1988. All these years, the petitioner did not put forward such a plea nor he had chosen to raise such a demand. Only on the eve of resignation such a demand has been made and following the same, the present writ petition has been filed. The claim of the petitioner for the earlier years being highly belated, stale and even barred by limitation cannot be sustained at all and hence he is not entitled to actual benefits. But at the same time, the pay scales have to be revised notionally from time to time and he would be entitled to arrears of difference in pay as revised from time to time by the State Government and he should be paid the actual monetary benefit only for the period of three years prior to date of filing of the writ petition and not for any period earlier thereto. The writ petition has been filed on 8-4-1999. As such any claim made beyond three years being a money claim will be barred by limitation. As such the petitioner will be entitled to claim the difference in arrears for the period commencing from 1-4-1996 onwards and till date of his demitting the office.In the circumstances, the writ petition is allowed in part and the 5th respondent is directed to revise the scales of pay payable to the petitioner from time to time on par with the scales of pay notified by the State Government in respect of identical teachers employed in Government schools and pay the arrears of difference only for the period commencing from 1-4-1996 and till the petitioner had demitted the office. The 5th respondent is granted three months time to work out and pay the arrears of difference to the writ petitioner. The 5th respondent is granted three months time to work out and pay the arrears of difference to the writ petitioner. If the 5th respondent fails to pay the arrears of difference within a period of three months, the 5th respondent will be liable to pay interest at 12% p.a. on such amount accrued due since the date of filing of the writ petition and till date of actual disbursement of the arrears. The parties shall bear their respective costs. Petition partly allowed.