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2016 DIGILAW 1700 (GUJ)

Anilbhai C. Shukla v. Pushpaben Ramanlal Patil

2016-08-09

ABHILASHA KUMARI

body2016
JUDGMENT : Abhilasha Kumari, J. 1. Mr. R.R. Vakil, learned advocate for the petitioners, prays for permission to amend the memorandum of the petition by adding Article "226" of the Constitution of India. Permission to do so is granted. The necessary amendment be carried out forthwith. 2. The challenge in this petition under Articles 226 and 227 of the Constitution of India is to the judgment dated 10.03.2011 of the Gujarat Primary Education Tribunal, Ahmedabad ("the Tribunal"), passed in Application No. 19 of 1996, whereby the Tribunal has allowed the application of respondent No. 1 herein and directed that she be paid the regular pay-scale paid to a Government teacher. 3. Petitioner No. 1 is the Managing Trustee of Amar Jyoti Kelavani Trust and petitioner No. 2 is the Principal of Amar Jyoti Vidya Vihar Primary School, run by petitioner No. 1. Respondent No. 1 is a teacher working in petitioner No. 2 school. Respondent No. 1 possesses the qualifications of SSC PTC. Respondent No. 1 filed Application No. 19 of 1996 before the Tribunal with a prayer to declare the action of the petitioner school in not giving salary to her in consonance with the Government pay-scale as unjust, illegal and arbitrary. After hearing the parties, the Tribunal passed the impugned order, partly allowing the application preferred by respondent No. 1 and declaring that she is entitled to the pay-scale and allowances as approved by the State Government from time to time. A direction was also given to disburse the amount by an account payee cheque within three months from the date of receipt of the judgment. Aggrieved by the said order of the Tribunal, the petitioners have approached this Court. 4. Mr. R.R. Vakil, learned advocate for the petitioners, has submitted that all appointments in the primary school run by petitioners are made as per Clause 1 of Schedule F of the Bombay Primary Education Rules, 1949 ("the Rules"). However, respondent No. 1 was not appointed after following the procedure delineated in the said clause. There are a total of seven teachers in the school and the appointment of respondent No. 1 has been made as per the class and teacher ratio. It is admitted by respondent No. 1 that her appointment has not been made after following the prescribed procedure. There are a total of seven teachers in the school and the appointment of respondent No. 1 has been made as per the class and teacher ratio. It is admitted by respondent No. 1 that her appointment has not been made after following the prescribed procedure. Hence, as the appointment of respondent No. 1 has not been made in accordance with the procedure, she is not entitled to the regular pay-scale granted by the State Government to its teachers. It is submitted that in the above view of the matter, it is clear that the Tribunal has failed to appreciate the fact that Clause 9 of Schedule F, which pertains to "scale of salaries" is applicable only to those teachers who are appointed after following the procedure prescribed in Clause 1 of the said Schedule. The Tribunal, therefore could not have arrived at the conclusion that respondent No. 1 is entitled to the scale and pay and allowances as approved by the State Government from time to time as she has not been appointed after following due procedure. 5. Learned counsel for the petitioners has next submitted that the Tribunal has stated, in Paragraph-7 of the impugned judgment that respondent No. 1 was appointed without the issuance of a public advertisement or without any application being made. In spite of the same, the Tribunal has passed the impugned order granting the Government scale to respondent No. 1. 6. It is further submitted that 'teacher' means one who is appointed by following the procedure prescribed by the Rules and if a teacher is not appointed in accordance with the provisions of the Rules, then such teacher cannot get the benefit under the Act or Rules. It is, therefore prayed that the order of the Tribunal be quashed and set aside. 7. In support of the above submissions, reliance has been placed upon a judgment of this Court dated 05.04.2002, in the case of Principal - P.K. Baria v. District Education Officer -Special Civil Application No. 7017 of 1989 [Coram: D.S. Sinha, CJ (as His Lordship then was)], wherein it is stated as below: "..... No teacher who is appointed otherwise than in accordance with the procedure prescribed by the Act can be termed as teacher for the purpose of the Act. No teacher who is appointed otherwise than in accordance with the procedure prescribed by the Act can be termed as teacher for the purpose of the Act. If the teacher is not appointed in accordance with the provisions of the Act, the provisions of Section 36 of the Act cannot be held to be attracted. Thus, reliance by the Tribunal upon the provisions of Section 36 is misplaced. Consequently, the declaration that the termination of the services of Mr. Nat Chandubhai Gulabbhai was illegal being contrary to the provisions of Section 36(1) of the Act cannot be upheld. There being no material on record supporting it, the finding that Mr. Nat Chandubhai Gulabbhai was duly appointed is held to be perverse, rendering the impugned judgment and order unsustainable." 8. Learned advocate for the petitioners has relied upon a judgment of the Supreme Court in the case of Mrs. Satimbla Sharma & Ors. v. St. Paul's Senior Secondary School and Ors., AIR 2011 SC 2926 , wherein it is held as under: "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 15 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." 9. The petition has been forcefully opposed by Ms. Tejal Vashi, learned advocate for respondent No. 1 by submitting that there is no illegality in the judgment of the Tribunal, inasmuch as it has relied upon Clause 9 of Schedule F of the Rules wherein it is stated that the "scales and allowances payable to the teacher shall be such as may be approved by the State Government from time to time". It is submitted that the school run by the petitioners has been recognized by the State Government, therefore, the petitioners are bound to pay the salary to respondent No. 1 that is in consonance with the pay and allowances as approved by the State Government. 10. It is further submitted that the Tribunal has rightly noted in Paragraph-9 of the impugned order that in Rule 106(A)(4) of the Rules, there is a stipulation that no private primary school shall be recognized or continued to be recognized until it fulfills the requirement, among other things, the rates of tuition fees, the pay scales and allowances of the teaching staff as may be approved by the Government from time to time. In this view of the matter, as respondent No. 1 has been appointed as a teacher by the petitioners in their school and has been working ever since 1983, they are bound to give the same pay-scale and allowances to her as may be approved by the State Government. 11. Learned counsel for respondent No. 1 has further submitted that the appointment of respondent No. 1, or the manner in which she has been appointed, has never been under challenge before the Tribunal and nor has it been challenged by the petitioners as of date. 11. Learned counsel for respondent No. 1 has further submitted that the appointment of respondent No. 1, or the manner in which she has been appointed, has never been under challenge before the Tribunal and nor has it been challenged by the petitioners as of date. Therefore, the aspect that the appointment of respondent No. 1 may not have been made in accordance with the Rules would not come in the way of her entitlement to receive salary as approved by the State Government. 12. It has further been submitted that the amendment to Rule 106(A)(5) that is relied upon by the petitioners before the Tribunal is dated 27.09.2006, which is much later than the date on which respondent No. 1 approached the Tribunal in the year 1996. Hence, the said amendment which had not been enacted when respondent No. 1 filed the application before the Tribunal would not apply to her. 13. Distinguishing the judgments relied upon by learned counsel for the petitioners, it is submitted that in the judgment in the case of Principal - P.K. Baria v. District Education Officer (supra), the case before this Court was that of termination of the services of the petitioner therein whose appointment had been made without following the procedure prescribed by the Act. However, this is not the case in the present matter where there is no challenge to the legality or validity of the appointment of respondent No. 1. Hence, this judgment would not be applicable in the present case. 14. Insofar as the judgment in the case of Mrs. Satimbla Sharma & Ors. v. St.Paul's Senior Secondary School and Ors. (supra) is concerned, it is submitted that the said judgment has been rendered in the context of a minority institution and not a private unaided recognized school, therefore, not being a minority institution, this judgment would also not be applicable in the present matter. 15. It is, therefore prayed that the petition be rejected. 16. Mr. Niraj Ashar, learned Assistant Government Pleader has appeared for respondent No. 3 and has submitted that in the impugned order, the Tribunal has rightly relied upon the provisions of Clause 9 of Schedule-F to the Rules wherein it is clearly stated that the scales of pay and allowances payable to the teachers shall be such as may be approved by the State Government from time to time. This is one of the conditions precedent to the recognition granted by the State Government to the school run by the petitioners, therefore this Rule would have to be followed by the petitioners. 17. It is submitted that Clause 9 of Schedule-F has not been amended and would apply to all schools whether aided or unaided. However, the amendment to Rule 106(A)(5) of the Rules would not be applicable to the petitioners as the said amendment has been made in September, 2006 whereas the respondent No. 1 filed the application before the Tribunal in the year 1996. 18. It is further submitted that the petitioners cannot take the benefit of their own wrong, inasmuch as they admit that proper procedure was not followed during the appointment of respondent No. 1. However, this aspect cannot be pressed to the advantage of the petitioners as it shows their own conduct. 19. On the basis of the above submissions, it is prayed that the petition be rejected. 20. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, the impugned order of the Tribunal and other documents on record. 21. The crux of the dispute between the petitioners and respondent No. 1 is the amount of salary and pay-scale to be paid to the said respondent. 22. It is not in dispute that respondent No. 1 was appointed as an Assistant Teacher in the primary school run by petitioner Trust in June 1983. She has been working throughout and is still in service with the petitioners. The petitioner school is a registered unaided private primary school. Respondent No. 1 possesses the qualifications of SSC PTC. Initially, respondent No. 1 was being paid fixed salary of Rs. 200/- per month which was gradually increased to Rs. 900/- per month by the time she approached the Tribunal by filing the application. It is pointed out by learned counsel for respondent No. 1 that during the pendency of the application before the Tribunal, respondent No. 1 was being paid Rs. 1,500/- per month. The grievance of the said respondent is that she be paid salary and allowances as payable to the teaching staff as approved by the State Government from time to time. 23. The Tribunal has partly-allowed the application of respondent No. 1 mainly on two grounds. 1,500/- per month. The grievance of the said respondent is that she be paid salary and allowances as payable to the teaching staff as approved by the State Government from time to time. 23. The Tribunal has partly-allowed the application of respondent No. 1 mainly on two grounds. The first ground is the principle of "quantum meruit" which, according to the Tribunal, is applicable because the petitioner has to be paid the proper value for the services she has rendered by discharging duties of a full-time Assistant Teacher, considering the fact that she also possesses the requisite qualifications. 24. The second ground that has weighed with the Tribunal is that as per Clause 9 of Schedule-F of the Rules, the petitioner school is bound to pay the scale of pay and allowances payable to the regular teachers as approved by the State Government from time to time. 25. The main argument put forth by learned counsel for the petitioners is that Clause 9 of Schedule-F would be applicable only to those teachers who have been appointed as per the prescribed procedure in Clause 1 of Schedule-F. In the case of respondent No. 1, the procedure as prescribed in Schedule-F has not been followed, therefore, she is not entitled to the benefits of Clause 9. 26. In order to examine the rival contentions, it would be fruitful to advert to the relevant provisions of the Rules and the Schedule. 27. Rule 106(A) of the Rules occurs in Chapter VII under the heading "Approved Schools". The school of the petitioner Trust is a private unaided school but it is recognized under the Rules. Without such recognition, the school would not be in a position to run. Rule 106(A)(1) deals with the application for recognition and provides for the requirement of the school to apply to the Authorized Officer to establish the primary school. 28. Rule 106(2), being relevant, is reproduced below: "(2) Every application under sub-rule (1) of this rule shall be sent of to the authorised officer by registered post with acknowledgment due together with an undertaking in writing that the conditions of employment of the teachers in the private primary school shall be those as specified in Schedule "F" appended to these rules together with a fee of Rs. 1000." 29. 1000." 29. Certain other conditions are laid down in Rule 106(A)(3) and Rule 106(A)(4) pertaining to the requirement to be fulfilled by the private primary school before it can get recognition. Rule 106(4)(v) is relevant and reads thus: "(v) The rates of tuition fees, the pay scales and allowances of the teaching staff shall be such as may be approved by the Government from time to time" 30. From the above, it can be gauged that the requirement of Rule 106(A)(4) stipulates the requirements that are necessary to be fulfilled as conditions precedent if a primary school desires to be recognized, to retain its recognition or to obtain recognition. One such requirement is that the rates of the tuition fees, the pay-scales and allowances of the teaching staff shall be such as may be approved by the Government from time to time. A perusal of Rule 106(A)(2) makes it clear that the application for recognition of the school sent under the sub-rule is required to meet with the conditions specified in Schedule-F. 31. Schedule-F to these Rules lays down the "Model conditions of employment of teacher in private schools in the State of Gujarat". Clauses 1 to 3 of Schedule-F have been relied upon by learned counsel for the petitioners and read as below: "1. Manner of appointment of teachers: (1) A person to be appointed as a teacher in a private school shall not be less than 18 years of age. (2) The managing body of the trust or the society shall constitute for the purpose of selecting teachers for appointment in the schools a selection committee consisting of the following persons, namely:- (i) one representative of the managing body of the trust or the Society; (ii) the head master of the school; (iii) one representative of the Administrative Officer. (3) A candidate for the post of teachers in the school shall submit his application to the Head of the School giving detailed information in regard to his qualifications, previous educational experience, etc. Copies of the application and the copies of orders of appointment shall be kept on the school record. Every employee whether temporary or on probation or posted in a permanent vacancy shall be given a clear order of appointment with a copy of the conditions governing the employment and there shall remain with the employee. Copies of the application and the copies of orders of appointment shall be kept on the school record. Every employee whether temporary or on probation or posted in a permanent vacancy shall be given a clear order of appointment with a copy of the conditions governing the employment and there shall remain with the employee. The orders of appointment shall clearly mention whether the appointment is temporary, probationary or permanent, the scale of salary and the duration of appointment in case it is either temporary or on probation. 2. Letter of acceptance of appointment- A person selected for appointment as a teacher in the school shall address a letter of acceptance to the management if he accepts the conditions mentioned in the letter of appointment and the general conditions of service. (Note - Models of (1) Form of application with the accompaniments, (2) order of Appointment and (3) letter of acceptance referred to above shall be as in annexure 'A' annexed thereto). 3. Temporary and permanent teacher - A teacher appointed for a definite period in a post which is not clearly vacant shall be temporary employee: Provided that a temporary teacher on completion of two year's service shall be treated as a permanent teacher." 32. On the other hand, Clause 9 of the said Schedule has been relied upon by respondent No. 1 and has also weighed with the Tribunal. It reads thus: "9. Scale of salaries - Salaries of pay and allowances payable to the teacher shall be such as may be approved by the State Government from time to time." 33. The Schedule lays down the Model Conditions for employment of teacher in private schools in the State, as also the procedure to be followed by a private school in selecting and appointing teachers. There appears to be no manner of doubt that the appointment of respondent No. 1 has not been made by following the prescribed procedure as no advertisement was issued by the school, no applications were invited and no interviews were held by the Selection Committee. However, respondent No. 1 came to be appointed as an Assistant Teacher in the recognized primary school run by the petitioners. However, respondent No. 1 came to be appointed as an Assistant Teacher in the recognized primary school run by the petitioners. As per Rule 106(A)(4)(v), as a condition precedent for the recognition of a private primary school, it is necessary that the school shall follow the rates of tuition fees, the pay-scales and allowances to the teaching staff as per the rates that may be approved by the Government from time to time. Exactly following this provision is Clause 9 in Schedule-F which also states that the scale of pay and allowances payable to the teaching and non-teaching staff shall be such as may be approved by the Government from time to time. As Clause (v) of Rule 106(A)(4) is part of the conditions required to be met and fulfilled by the school seeking recognition, it follows that such condition is binding on the said school. Moreover, the word 'shall', as used in Clause 9 to Schedule-F has a mandatory connotation. The aspect whether the school has followed the due procedure in appointing the teaching staff or not would not be relevant in this case as such action is that of the school itself and cannot be attributed to respondent No. 1. 34. In order to obtain recognition the petitioner school is bound to follow the provisions of Rule 106(A)(1) to (4) in their entirety, failing which there may be a cause to withdraw the recognition of the said school. The manner in which the teaching staff has been appointed has nothing to do with the clear stipulation in Rule 106(A)(4)(v) that the school is required to pay the pay-scales and allowances of the teaching staff as approved by the State Government. It does not specify that only those teaching staff will be paid the pay and allowances as approved by the State Government, who have been appointed after following the due procedure. Appointment and the mode thereof is in the hands of the petitioners whereas the payment of salary and allowances as approved by the State Government is a condition precedent for the recognition of the school itself. 35. It is significant to note that in the present case, there is no challenge to the appointment of respondent No. 1. In fact, there never has been any such challenge at the behest of the petitioners, even during the proceedings in the Tribunal. 35. It is significant to note that in the present case, there is no challenge to the appointment of respondent No. 1. In fact, there never has been any such challenge at the behest of the petitioners, even during the proceedings in the Tribunal. On the other hand, the petitioners have retained the services of respondent No. 1, who is still working with them. As rightly pointed out by the learned Assistant Government Pleader, it is the fault of the petitioners, themselves, in not following the due procedure. Having committed the said fault, they cannot take advantage of it and deny respondent No. 1, the salary and allowances that they are bound to give as per Rule 106(A)(4)(v) of the Rules and Clause 9 of Schedule F to the Rules. 36. Insofar as the judgment in the case of Principal - P.K. Baria v. District Education Officer (supra), is concerned, it has clearly been passed in a case where the services of the petitioner therein had been terminated and the Tribunal had reinstated the petitioner. This Court took into consideration the aspect that the appointment of the petitioner therein was not made in accordance with law and the procedure prescribed by the provisions of Section 35 of the Gujarat Secondary Education Act, which was applicable in the case. In that context, it was held that a teacher has to be appointed by following the prescribed procedure and if that had not been done, the Tribunal could not have ordered reinstatement. This judgment would not be applicable to the facts of the present case as neither have the services of the petitioner been terminated and nor is there a challenge to the mode and manner of her appointment. 37. In Mrs. Satimbla Sharma & Ors. v. St.Paul's Senior Secondary School and Ors. (supra), relied upon by learned counsel for the petitioners, the Supreme Court was dealing with an unaided private minority school. One of the factors that weighed with the Supreme Court in the said judgment, as can be discerned from the discussion in Paragraph-9 is that, the Government has no administrative control over unaided private minority schools because of their autonomy under Article 30(1) of the Constitution of India and they are not 'State' within the meaning of Article 12 of the Constitution. In the present case, there is a certain amount of control of the State Government on private unaided primary schools such as the petitioners, who are required to fulfil certain conditions in getting recognition to run the schools. Moreover, in the judgment, the Supreme Court has noticed, in Paragraph 11, that has been reproduced above, that the salary and allowances of teachers of private unaided school are a matter of contract between the school and the teacher and not within the domain of public law. In the present case, it is not the case of the petitioners that any contract has been entered into between them and respondent No. 1. Therefore, this judgment would not be applicable to the facts of the present case. 38. Though the Tribunal has also pressed into service, the principle of "quantum meruit", this Court would not be inclined to go into this aspect because it does not appear to be relevant in view of the above discussion. However, the reliance placed by the Tribunal on Rule 106(A)(4)(v) is appropriate and on this ground, the impugned judgment deserves no interference. The conclusion arrived at by the Tribunal is just and proper and cogent reasons have been given in support of the same. 39. For the aforestated reasons, the petition fails and is rejected. As a consequences of the above, the directions issued by the Tribunal in the judgment dated 10.03.2011, passed in Application No. 19 of 1996, would come into force. Rule is discharged. There shall be no orders as to costs.