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2011 DIGILAW 690 (GAU)

Makanmi Kengoo v. Union of India

2011-08-12

ANIMA HAZARIKA

body2011
JUDGMENT Anima Hazarik, J. 1. Heard Dr. J.L. Sarkar, learned Counsel assisted by Mr. S.N. Tamuli, learned Counsel appearing for the Petitioners. Also heard Mr. SC Shyam, learned Central Government Counsel ('CGC' for short) appearing on behalf of the Respondents. 2. The Petitioners, 89 in number, are employees (teaching and non-teaching) of Assam Rifles Public School ('ARPS' for short), Laitkar, Shillong. They have moved this Court by filing the instant writ petition with a prayer for issuing writ in the nature of mandamus and/or certiorari or any other appropriate writ or order or direction to the Respondents to implement the recommendations made by the 6th Central Pay Commission ('CPC' for short) in respect of Pay and Allowances w.e.f. 01.01.2006 in ARPS and to pay the emoluments to the Petitioners, accordingly, along with increased Dearness Allowance from July, 2009 in terms of the recommendations of 6th Code of Civil Procedure, payment of which have been withheld after June 2009 with arrears of pay and allowances w.e.f. 01.01.2006 and fixation of pay w.e.f. 01.04.2008 with arrears and grant other service benefits including retirement benefit at par with civilian employees of Government of India and employees of Kendriya Vidyalaya Sangathan ('KVS' for short) as well as Jawahar Navodaya Vidyalaya ('JNV' for short). 3. The Petitioners pleaded case is that ARPS was established in the year 1980 and is affiliated to the Central Board of Secondary Education ('CBSE' for short). Assam Rifles has pervasive financial and administrative control over ARPS as the main source of funding the institution, land, building, salaries of employees is made from Assam Rifles through grants, subsidy, etc. It has been stated by the Petitioners that ARPS is governed by "Assam Rifles Public School Rules" and due to pervasive financial and administrative control of Assam Rifles, the institution, i.e. ARPS is an authority within the meaning of Article 12 of the Constitution of India, catering to the needs of public interest of education. 4. Dr. Sarkar, learned Counsel appearing for the Petitioners has submitted that pay scales of teaching and non-teaching staffs of the ARPS has been at par with the scales of pay of the similarly situated employees of the Central Government Schools as per recommendation of the Code of Civil Procedure and accordingly, by office order dated 15.7.1998 the pay scale at par with Central Govt. Scale (5th PC) has been given effect to and they are getting the same pay scale at par with other Central Govt. Employees, KVS as well as JNV. The governing body, managing committee of ARPS have always been just and fair and have treated the employees of the ARPS at par with other Central Govt. Employees and pay and allowances are being paid as per Code of Civil Procedure recommendation. The same will also be evident from the open advertisement while recruiting the employees in the year 2007, when advertisement was made for the Post Graduate Teacher ('PGT' for short) and Hostel Superintendent with closing date of application as 15th May, 2007 wherein scale of pay was shown as per 5th Code of Civil Procedure, the 6th Code of Civil Procedure scale were at that time not implemented. The 6th Code of Civil Procedure scale has been given effect to by the Government of India later w.e.f. 1.1.2006 retrospectively with arrears. The post of Principal of ARPS is also filled up by open advertisement in 2001 allowing the 5th Code of Civil Procedure scale. The learned Counsel has further submitted that the Central Govt. Civilian employees of the KVS and JNV have been receiving pay scale and allowances as per 6th Code of Civil Procedure w.e.f. 1.1.2006. But, the pay scale under 6th Code of Civil Procedure has been granted to the Petitioners w.e.f. 1.4.2008 whereas the Central Govt. has already accepted the recommendation of 6th Code of Civil Procedure for implementation and has implemented the same for all concerned. Therefore, there is No. reason as to why the Petitioners are being denied the same. The dearness allowances (DA) has been paid to the Petitioners at par with Central Govt. Civilians up to June, 2009 but thereafter, the same has been kept in abeyance and the Petitioners are being given less DA due to non-implementation of the same as per Central Govt. announcement from time to time. Thus, the Petitioners have submitted a representation before the authority requesting therein to allow the pay and allowances and other service benefits as per recommendation of 6th pay commission on the ground that similarly situated employees under Govt. of India and KVS as well as JNV are getting the pay and allowance as recommended by the 6th pay commission. Thus, the Petitioners have submitted a representation before the authority requesting therein to allow the pay and allowances and other service benefits as per recommendation of 6th pay commission on the ground that similarly situated employees under Govt. of India and KVS as well as JNV are getting the pay and allowance as recommended by the 6th pay commission. However, No. order being passed and/or No. action being taken on the representation so submitted, the Petitioners have approached this Court with the aforesaid prayer. It has further been submitted that the Petitioners are entitled for the same under rules and bye-laws. 5. Dr. Sarkar, learned Counsel for the Petitioners while supporting the claim of the Petitioners has also taken me through various documents annexed to the writ petition as well as to the affidavit-in-reply filed by the Petitioners. Drawing my attention to the Minutes of the Managing Committee Meeting held on June 18, 1991 vide Annexure-B to the writ petition, it has been strenuously urged by the learned Counsel for the Petitioners that the employees have been extended all the service benefits in terms of the recommendations made by the Code of Civil Procedure from time to time. Further, drawing my attention to the certificate vide Annexures-D and E respectively to the writ petition, it has been urged that the Petitioners, for all practical purposes, are employee of Assam Rifles and therefore, they are entitled to all the benefits in respect of their pay and allowances as per recommendations made by the 6th Code of Civil Procedure. 6. A common affidavit-in-opposition has been filed by the Respondents through the Principal, ARPS, contending therein that the writ petition is not maintainable in law, in view of the fact that ARPS is a private institution, registered under the Societies Registration Act, 1860, established with aim and objectives, inter alia, to promote education amongst the children of Assam Rifles officers, employees and public. According to the Respondents the management of the school is fully under the control of the Managing Committee which is constituted in accordance with the provisions of the Article of Association of the society. According to the Respondents the management of the school is fully under the control of the Managing Committee which is constituted in accordance with the provisions of the Article of Association of the society. It has further been contended that neither the Ministry of Home Affairs of the Union of India nor the Director General of Assam Rifles have any administrative or financial control over the management of the school, more so, the financial requirement of the school is met from the tuition fee and other fees collected from the students and therefore, the Respondent school is not amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India. The writ petition is, therefore, liable to be dismissed being not maintainable. 7. Mr. Shyam, learned CGC upon relying the affidavit-in-opposition has further contended that the school is under the full financial control, management and administrative control of the Managing Committee consisting of senior officers of Assam Rifles in their personal capacity and State Government Officers, the guardian representatives and the representatives chosen from the members of the teaching staff and there is No. financial and administrative control by the Union of India or any other authorities as envisaged under Article 12 of the Constitution of India and is, therefore, not amenable to the writ jurisdiction. Mr. Shyam has placed reliance upon the case of SK Banerjee v. Union of India and Ors. reported in 1997 (1) GLT 451, wherein this Court has held that ARPS does not come within the meaning of Article 12 of the Constitution of India and submits that the said decision still holds the field in absence of challenge of the same before the higher court. 8. Since a preliminary objection in respect of maintainability of the writ petition has been raised by the Respondents, it has become expedient for this Court to arrive at a conclusion as to whether ARPS is a state within the meaning of Article 12 of the Constitution of India? The question of entering into merit in respect of Petitioners' prayer for issuance of writ in the nature of mandamus for extending the benefits as prayed for will arise only in the event of answering the question of maintainability of the writ petition in the affirmative. 9. The question of entering into merit in respect of Petitioners' prayer for issuance of writ in the nature of mandamus for extending the benefits as prayed for will arise only in the event of answering the question of maintainability of the writ petition in the affirmative. 9. With regard to the preliminary objection raised by the Respondents on the question of maintainability of the writ petition, learned Counsel for the Petitioners submits that ARPS is receiving monetary assistance in the form of subsidy, budget deficit on recurring account, capital account, building account, for purchasing generator set, etc. from the Head Quarter, Director General, Assam Rifles ('DGAR' for short). In support of his contention, the learned Counsel for the Petitioners has taken me through the minutes of the Governing Body meeting held on 25th March, 2002 (Annexure-Q to the rejoinder) In paragraph 8 of the said minutes it has been shown as to how monetary assistance has been received from HQ, DGAR by the management of the school. It is also argued on behalf of the Petitioners that ARPS is affiliated to CBSE and this fact by itself is a proof that ARPS is amenable to writ jurisdiction of this Court. 10. I have heard the learned Counsel appearing for the parties at length on the question of maintainability of the petition. I have also perused the documents which have been strongly relied upon by the learned Counsel appearing for the parties on the question of maintainability of the writ petition. 11. From the points of arguments advanced regarding question of maintainability of the writ petition, it would be necessary to answer first as to whether a writ is maintainable against the ARPS and whether it falls within the categories of other authorities under Article 12 of the Constitution of India. 12. It is not in dispute that ARPS is discharging a solemn duty by imparting education to the children. However, although the learned Counsel for the Petitioners has drawn my attention to various documents annexed to the writ petition as well as affidavit-in-reply filed on behalf of the Petitioners, none of those documents indicate that ARPS is getting any financial assistance on regular basis from the Government of India or HQ, DGAR. However, although the learned Counsel for the Petitioners has drawn my attention to various documents annexed to the writ petition as well as affidavit-in-reply filed on behalf of the Petitioners, none of those documents indicate that ARPS is getting any financial assistance on regular basis from the Government of India or HQ, DGAR. From some of those documents, it of course appears to me that ARPS has been extended occasional financial assistance from time to time by HQ, DGAR only to meet certain expenditures in running ARPS; but for that reason only ARPS cannot be termed as 'State' within the meaning of Article 12 of the Constitution of India, more so, when the Petitioners are paid their salaries by the management of ARPS from the tuition fee and other fee collected from the students of the school, and not by the Central Government or State Government. Apart from that, on perusal of the relevant rules, namely, Assam Rifles Public School Rules which governs the management and functioning of ARPS it becomes crystal clear that ARPS is a private institution for all practical purposes and registered under the Societies Registration Act, 1860. From the powers and functions of the Governing Body of ARPS as stipulated under Rule 2.8 of the said Rules, one can arrive at the safe conclusion that ARPS is a private institution, more so, the management of the school is fully under the control of the Managing committee which is constituted in accordance with the provisions of the Article of Association of the society. Neither the Home Ministry, Union of India nor the Director General of Assam Rifles has had any administrative or financial control over the management of the school. The Governing Body of the School comprised of the Governor of Assam as Patron, Director General of Assam Rifles as Chairman, Deputy Director General of Assam Rifles as Vice Chairman, Secretary, Department of Education, Government of Meghalaya-Member, all Deputy Inspector Generals of Ranges -Member, the Principal, Assam Rifles Public School-Secretary. The Chairman may nominate any other members. The tenure normally should be two years which could be extended at the discretion of the Governing Body. The school also has a Managing committee to control and oversee the matters concerning day to day management of the school. The Managing committee consists of Senior Officers of Assam Rifles in their personal capacity and State Govt. The tenure normally should be two years which could be extended at the discretion of the Governing Body. The school also has a Managing committee to control and oversee the matters concerning day to day management of the school. The Managing committee consists of Senior Officers of Assam Rifles in their personal capacity and State Govt. Officers, the guardian representatives, and the representatives chosen from among the members of the teaching staff. 13. In support of his submission, learned Counsel appearing for the Petitioners has placed reliance upon the decision of the Apex Court in K. Krishnamacharyulu and Ors. v. Shri Venkateswara Hindu College of Engineering and Anr. reported in (1997) 3 SCC 571 , wherein at para 4, the Apex Court held as thus: ...In view of the long line of decisions 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 get 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? 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 right to education. The private institutions cater to the needs of providing 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. The private institutions cater to the needs of providing 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, being the arm of the institution, is also entitled to avail of the remedy provided under Article 226; the jurisdiction part is very wide. It would be a different position, if the remedy is a private law remedy.... Perusal of the decision in K. Krishnamacharyulu (supra) would make it clear that when an element of public interest is created and the institution is catering to that element, the teacher, being the arm of the institution, is also entitled to avail of the remedy provided under Article 226; however, it would be a different position, if the remedy is a private law remedy. The above ratio laid down by the Apex Court was followed by this Court in the case of Dipankar Dey and Ors. v. State of Assam and Ors. (WP (C) No. 5521/2009) decided vide judgment and order dated 30.03.2010. 14. The correct position to decide as to whether a particular organization attracts Article 12 of the Constitution, the court must have regard to various factors, such as, functional character being governmental in essence, plenary control residing in Government or its officers, financial resources and of the State being the chief funding source, prior history of the same activity having been carried on by Government and made over to the new body, the composition of the body being dominated by the Government representatives, the presence or absence of deep and pervasive control by the Government over the organization. 15. In the instant case, the school is run by a society. The object of the society is to impart education to the children of Assam Rifles personnel though there are provisions for admitting students from outside. This is mainly not for general public. The boarding fee and tuition fee received from the students are major source of income. From the materials available on record, it cannot be said that the Government has any control whatsoever over the school. 16. This is mainly not for general public. The boarding fee and tuition fee received from the students are major source of income. From the materials available on record, it cannot be said that the Government has any control whatsoever over the school. 16. In view of the above, in the considered opinion of this Court, the Assam Rifles Public School is not an instrumentality of the "State" within the meaning of Article 12 of the Constitution of India and as such the writ petition is found to be not maintainable. 17. However, before parting with the case, I would like to put on record that so far the instant case is concerned, I find that ARPS is affiliated to CBSE. Granting affiliation by CBSE is governed by the CBSE Affiliation Bye-laws. Clause 3(v) of the said Bye-laws, amongst others, stipulates that the school in India must pay salaries and admissible allowances to the staff not less than the corresponding categories of employees in the State Government schools or as per scales etc. prescribed by the Government of India. In other words, payment of salaries and admissible allowances to the staff of the institution concerned not less than the corresponding categories of employees in respective State Government schools or as per scales, etc. prescribed by the Government of India, is a condition precedent for granting affiliation to such institution by CBSE and therefore, it can be safely presumed that the affiliation to ARPS was granted by the CBSE only on promise to implement the said provision of the bye-laws, more so, the Petitioners were getting the pay and allowances earlier in terms of the recommendations of 5th Code of Civil Procedure which is not denied or controverted by the Respondents. This Court thus hopes and trusts that the authority would examine the claims of the Petitioners and redress their grievance, inasmuch as, on their promise to implement the provision of Clause 3(v) of the bye-laws, the school was affiliated to CBSE. 18. The writ petition is disposed of with the above findings and observations. 19. Considering the facts and circumstances of the case, the parties are left to bear their own costs.