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2022 DIGILAW 2121 (BOM)

Maria Aramita Vas v. Director Of Education

2022-09-22

BHARAT P.DESHPANDE, M.S.SONAK

body2022
JUDGMENT M. S. Sonak, J. - Heard the learned counsel for the parties. 2. The learned counsel agree that a common judgment and order could dispose of all these petitions since substantially the common issues of law and fact arise. Accordingly, the learned counsel suggest that Writ Petition No.1937 of 2021 (F) may be treated as the lead petition. 3. The Petitioners seek a writ of mandamus to Respondent No.1 (Director of Education) to direct Respondent Nos. 2 and 3 to comply with the mandate of Section 13 of the Goa, Daman and Diu School Education Act, 1984 (the said Act). 4. The Petitioners have pleaded that Respondent No.3 - said school, which is established and managed by Respondent No.2, is a recognized school in terms of Section 5 of the said Act. Section 13 of the said Act, inter alia, stipulates the scales of pay and allowances, pension, gratuity, provident fund, and other prescribed benefits of the employees of a recognized private school shall not be less than those of the employees of the corresponding status in the schools run by the Government. 5. The Petitioners claim that Respondent Nos. 2 and 3, consistent with the mandate of Section 13 of the said Act, paid to the Petitioners, who are teachers employed in a recognized school, pay and allowances in terms of recommendations of the Sixth Pay Commission. The Petitioners pointed out that such payment brought their pay and allowances on par with employees of the corresponding status in the Government run schools. 6. The Petitioners further pleaded that when it came to implementing the recommendation of Seventh Pay Commission Scales, however, Respondents Nos. 2 and 3 refused to pay in terms of Seventh Pay Commission Scales. The Petitioners submit that thereby the Petitioners began to receive pay and allowances lesser than those of the employees of the corresponding status in the schools run by the Government. 7. The Petitioners represented the Respondents, including Respondent No.1 (Annexure - H Colly dated 22.02.2021). Since there was no response, the Petitioners have instituted these petitions seeking enforcement of Section 13 of the said Act and consequent payment of pay and allowances in terms of the recommendations of the Seventh Pay Commission so that they are on par with the employees of the corresponding status in the schools run by the Government. 8. The defence of Respondent Nos. 8. The defence of Respondent Nos. 2 and 3 is simply that Section 13 of the said Act applies to "recognized" schools. They submit that Respondent No.3 - School was never a recognized school since its inception in 1982. They submit that at no stage did Respondent Nos.2 and 3 apply for recognition under the provisions of the said Act. In the absence of Respondent No.3 - School being a recognized school, the provisions of Section 13 of the said Act would not apply. Mainly on this ground, Respondents Nos. 2 and 3 urged the dismissal of these petitions. 9. Mr. J. E. Coelho Pereira, learned Senior Advocate for the Petitioners, submits that the documents on record are sufficient to infer that Respondent No.3 - School ( the said school) is indeed a recognized school. In the alternate, he submits that since the said school was established after obtaining permission from the Director of Education, the same should be deemed a recognized school before the said Act entered into force. He relied on Rule 36 of the Goa, Daman and Diu School Education Rules, 1986, to submit that all existing recognized schools have been recognized under the 1986 Rules. 10. Mr. Pereira referred to several documents on record, urging that the said school was indeed a recognized school. He also relied on All Goa Private Schools Pre-Primary and Primary Teachers' Association and others Vs State of Goa and others, 1990 Mh. L.J. 353. K. Krishnamacharyulu and others Vs Sri Venkateswara Hindu College of Engineering and another, (1997) 3 SCC 571 . Raskar Vidya Damodar (alias) Smt. Bhujbal Vidya Vs Maharashtra Arogyamandal and others, 2000(4) L.L.N.771. Satimbla Sharma and others Vs St Paul's Senior Secondary School and others, (2011) 13 SCC 760 and Frank Anthony Public School Employees' Association Vs Union of India and others, (1986) 4 SCC 707 in support of his contentions. 11. Based on all this, Mr. Pereira submitted that rule be made absolute in all these petitions. 12. Mr. S. G. Desai, learned Senior Advocate for Respondent Nos. 2 and 3 reiterated that the said school was not recognized. He submitted that no single document exists to show that the said school or its management ever applied for recognition or granted recognition. Therefore, he presents that there can be no estoppel against the law. 12. Mr. S. G. Desai, learned Senior Advocate for Respondent Nos. 2 and 3 reiterated that the said school was not recognized. He submitted that no single document exists to show that the said school or its management ever applied for recognition or granted recognition. Therefore, he presents that there can be no estoppel against the law. He submits that in the absence of the said school being recognized, there is no question of provisions of Section 13 applying to the said school. 13. Mr. Desai submitted that earlier, the Mormugao Port Trust (M.P.T.) used to give grants to the said school based upon which the said school would pay its teachers' pay and allowances in terms of the recommendations of the various Pay Commissions, including the Sixth Pay Commission. He, however, submitted that this was not due to any legal compulsion but because the said school believed in payment of decent wages to its employees. Mr. Desai pointed out that after the stoppage of mining in the State of Goa, the M.P.T. fortunes dwindled, and grants were stopped. He submitted that the said school would now not be in a financial position to pay salary corresponding to recommendations made by Seventh Pay Commission. He reiterates that Section 13 of the said Act does not apply to the said school. Consequently, there is no liability to pay the same pay and allowances as offered to corresponding employees in the Government schools. He relied on the Correspondent/Principal Arokiamada Matriculation Higher Secondary School Udumalai Road, Pollachi Vs Tmt. T. Sorubarani (deceased) and others, WP No.1307 of 2009 decided on 15.10.2015. Sushmita Basu and others Vs Ballygunge Siksha Samity and others, (2006) 7 SCC 680 and Satimbla Sharma and others Vs St Paul's Senior Secondary School and others, (2011) 13 SCC 760 in support of his contentions. 14. The rival contentions now fall for our determination. 15. From the pleadings, there is no dispute that the said school was established in 1982 as an unaided private primary school. There is on record the communication dated 22.01.1982 addressed by the President of Respondent No.2 society to the Director of Education seeking permission to start a primary school ( Ist to IVth standard) beginning with the Ist and IInd standards during the ensuing academic year, i.e. June 1982. 16. There is on record the communication dated 22.01.1982 addressed by the President of Respondent No.2 society to the Director of Education seeking permission to start a primary school ( Ist to IVth standard) beginning with the Ist and IInd standards during the ensuing academic year, i.e. June 1982. 16. The Assistant Director of Education, vide communication dated 03.04.1982, permitted the Respondent No.2 society to open a new school by granting permission to commence standard I and standard II in English medium w.e.f. the Academic year 1982-83, provisionally subject to the following conditions:- "1. Floor of the school building is cemented. 2. Necessary furniture, Library books and teaching aids should be made available by 15-5-82. 3. The teachers should be paid as per the scale of pay laid down by the Department.'' 17. The record also bears out a communication dated 20.07.1982 addressed by the Secretary of the Respondent No.2 society, confirming that the society has fulfilled the conditions set out in the communication dated 03.04.1982 and started the primary school with effect from 16.06.1982. This communication was addressed to the Assistant Director of Education. 18. The record also bears out a communication dated 19.01.1983 addressed by the President of Respondent No.2 society seeking permission to start standards III and IV from the academic year 1982- 83. By communication dated 12.04.1983, the Assistant Director of Education permitted the Respondent No.2 society to start the IIIrd standard from 1983-84. However, no permission was granted to start standard IV for want of enrollment details. The record also bears out that by communication dated 12.04.1984, permission was granted to open standard IVth in the academic year 1984-85. 19. Thus, from the above documents/correspondences on record, it is clear that the said school was established even before the Goa School Education Act and the rules entered into force from 14.11.1986. 20. Before the subject Act entered into force, the relationship between the Directorate of Education and School management was governed by the grant-in-aid Code for secondary schools, colleges and other educational institutions, except the primary schools. Thus, the grant-in-aid Code did not in terms apply to primary schools. Section I of Chapter II of the grant-in-aid Code refers to "Rules of Recognition". However, these rules apply only to secondary schools and not primary schools. 21. Thus, the grant-in-aid Code did not in terms apply to primary schools. Section I of Chapter II of the grant-in-aid Code refers to "Rules of Recognition". However, these rules apply only to secondary schools and not primary schools. 21. None of the counsel appearing in the matters could point out or refer to provisions of any statute or Code that may have provided for "Recognition" to primary schools before the said Act or the said Rules entered into force with effect from 14.11.1986. 22. The said Act and the said Rules entered into force on 14.11.1986. Section 2(i) of the said Act defines "existing school" to mean a recognized school which is in existence at the commencement of this Act. The expression "recognized school" is defined under Section 2 (t) to mean a school recognized by the appropriate authority. The expression "appropriate authority" is defined under Section 2(e) to mean the Administrator or any other officer authorized by him in this behalf. 23. Section 5 of the said Act provides for "Recognition of schools". The same reads as follows:- "(5) Recognition of schools.- (1) The appropriate authority may, on an application made to it in the prescribed form and in the prescribed manner, recognize any school: Provided that no school shall be recognized unless- (a) it has such funds to ensure its financial stability which regulate payment of salaries and allowances and other benefits to its employees as prescribed; (b) it has a scheme of management as required by section 6; (c) it has suitable or adequate accommodation and sanitary facilities having regard among other factors, to the number, age and sex of the pupils attending it; ?(d) it provides for approved courses of study and efficient instructions; (e) it has teachers with prescribed qualification; (f) it has the prescribed facilities for physical education, library service, laboratory work, workshop practice and co-curricular activities; and (g) it. gives an undertaking that it will follow the provisions of this Act and the rules made thereunder. (2) Every application for recognition of a school shall be entertained and considered by the appropriate authority and the decision thereon shall be communicated to the applicant within a period of four months from the date of the receipt of the application and where recognition is not granted, the reasons for not granting such recognition shall also be communicated to the applicant within the said period. (3) Where the managing committee of a school obtains recognition by fraud, misrepresentation or suppression of material particulars, or where, after obtaining recognition, the school fails to continue to comply with any of the conditions specified in the proviso to sub-section (1), the authority granting the recognition may, after giving the managing committee of the school a reasonable opportunity of showing cause against the proposed action, withdraw the recognition granted to such school under sub-section (1). (4) The recognition granted under sub-section (1) shall not, by itself, entitle any school to receive aid. (5) Every existing school which is receiving aid as on the date of coming into force of this Act shall be deemed to have been recognized under this section and every such school shall be subject to the provisions of this Act and the rules made thereunder: Provided that where any such school does not satisfy any of the conditions specified in the proviso to sub-section (1), the prescribed authority may, by order, require the school to satisfy such conditions and such other conditions as may be prescribed within the period specified in the order and if any such condition is not satisfied within the period so specified, recognition may be withdrawn from such school: Provided further that where any recognized school does not at the commencement of this Act, satisfy any of the conditions specified in the proviso to sub-section (1), the prescribed authority may, by order, require the school to satisfy, within the period specified therein such conditions and such other prescribed conditions as may be specified in the order and if any such condition is not satisfied within the period so specified recognition may be withdrawn from such school. [(6) The prescribed authority may, by order, grant recognition to any school which had not obtained recognition earlier for any genuine reasons if the school satisfies the conditions specified in the proviso to sub-section (1) and makes an application in the prescribed form and in the prescribed manner for recognition.] 24. Chapter IV of the said Act is concerned with terms and conditions of service of employees of recognized private schools. This chapter presently comprises Sections 11, 12 and 13. Section 11 is concerned with terms and conditions of service of employees of recognized private schools. Section 12 provides that a Code of Conduct shall govern the employees of the recognized schools. This chapter presently comprises Sections 11, 12 and 13. Section 11 is concerned with terms and conditions of service of employees of recognized private schools. Section 12 provides that a Code of Conduct shall govern the employees of the recognized schools. Section 13 is concerned with the salaries of employees. 25. Section 13 of the said Act reads as follows:- "13. Salaries of employees.- The scales of pay and allowances, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognized private school shall not be less than those of the employees of the corresponding status in schools run by the Government: Provided that where the scales of any pay and allowances, pension, gratuity, provident fund and other prescribed benefits of the employees of any recognized private school are less than those of the employees of the corresponding status in the schools run by the Government, the Director shall direct, in writing, the managing committee of such school to bring the same up to the level of those of the employees of the corresponding status in schools run by the Government: Provided further that the failure to comply with the such direction shall be deemed to be non-compliance with the conditions for continuing recognition of an existing school and the provisions of section 5 shall apply accordingly: Provided also that in each recognized school, which does not receive any aid, there shall be a Fund, to be called "the Employees Retirement Benefit Fund", and there shall be credited to that fund every contributions made by the school and the employees towards retirement benefits.'' 26. Chapter IV of the Goa, Daman and Diu School Education Rules, 1986 (the said Rules) is concerned with "Recognition of Schools". Rule 36 of the said Rules reads as follows:- "36. Form and manner of application for recognition. - Every private school seeking recognition shall make an application, in Form I to the Directorate of Education, or the authority subordinate to him as authorized by him and every such application shall either be delivered to the appropriate authority through an individual or sent to that authority by Registered post acknowledgement due. However, all existing recognized schools, subject to the provisions of these rules, shall be deemed to have been recognized under these rules.'' 27. However, all existing recognized schools, subject to the provisions of these rules, shall be deemed to have been recognized under these rules.'' 27. From the above provisions, it is evident that the scales of pay and allowances, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognized private school shall not be less than those of the employees of the corresponding status in schools run by the Government. Provided that where the scales of any pay and allowances, pension, gratuity, provident fund and other prescribed benefits of the employees of any recognized private school are less than those of the employees of the corresponding status in the schools run by the Government, the Director shall direct, in writing, the managing committee of such school to bring the same up to the level of those of the employees of the corresponding status in schools run by the Government: Provided further that the failure to comply with the such direction shall be deemed to be non-compliance with the conditions for continuing recognition of an existing school and the provisions of section 5 shall apply accordingly: Provided also that in each recognized school, which does not receive any aid, there shall be a Fund, to be called "the Employees Retirement Benefit Fund", and there shall be credited to that fund every contributions made by the school and the employees towards retirement benefits. 28. Therefore, the crucial issue involved in these petitions is whether the said school is a "recognized private school". Mr. Desai conceded that if the said school is indeed a recognized private school, Section 13 of the said Act will apply. Accordingly, the said school will be obliged to pay the Petitioners the scales of pay and allowances that shall not be less than those of the employees of the corresponding status in schools run by the Government. However, he contended that the said school, though a private unaided school, is not a recognized school. Mr. Pereira, however, contended that the said school is a recognized school. 29. As noted earlier, the said school was established between 1981 and 1984, i.e. before the said Act entered force w.e.f. 14.11.1986. Since there was no concept of recognition of a primary school before the said Act came into force, there is no document evidencing such recognition. Mr. Pereira, however, contended that the said school is a recognized school. 29. As noted earlier, the said school was established between 1981 and 1984, i.e. before the said Act entered force w.e.f. 14.11.1986. Since there was no concept of recognition of a primary school before the said Act came into force, there is no document evidencing such recognition. However, as noted earlier, the said school was started after obtaining permission from the Directorate of Education, Government of Goa. The permissions were granted for the commencement of each class w.e.f. respective academic years as stated in the said permissions. This is one of the circumstances to be considered for determining whether the said school was a recognized school. 30. The record further states that the Secretary of Respondent No.2 applied to the Director of Education on 25.04.2012 seeking permission to open a new division to the existing four divisions to standard I at the said school. In this communication, the Secretary stated that the current number of students in standard I are 176 and the said school has the room and the infrastructure required for the new division. 31. The Deputy Director of Education, vide his communication dated 21.08.2012, granted the said school permission for an additional class I division from the academic year 2012-2013 onwards. The record also bears out that the Additional Director of Education, by communication dated 13.03.2013 informed the Secretary of the Respondent No.2 that the said school being an "Un-aided recognized English Medium School", management may take necessary action for appointment of Counsellors in the said school. 32. The Headmistress of the said school, by communication dated 27.01.2017, submitted to the Deputy Director of Education the names of members of Respondent No.2 society as per the scheme of management for the said school. By communication dated 22.02.2017, the Deputy Director of Education approved the school managing committee under Rule 46 of the Goa Schools Education Rules for two years w.e.f. 16.06.2015 to 31.05.2017. 33. The Petitioners have produced on record a Government of Goa publication containing a list of recognized institutions in the State of Goa 2018-2019. Accordingly, the name of the said school is found against Entry No.20. 34. The Petitioners have also placed on record a feasibility report prepared by the Assistant District Educational Inspector ( ADEI) for recognition of said school under the R.T.E. Act, 2009. Accordingly, the name of the said school is found against Entry No.20. 34. The Petitioners have also placed on record a feasibility report prepared by the Assistant District Educational Inspector ( ADEI) for recognition of said school under the R.T.E. Act, 2009. This report states that the said school is recognized. Additionally, this report states that the said school has been recognized by the Directorate of Education vide letter No. D.E./Acad/I/SEZ/MORG/16/82/822 dated 12.04.1984. 35. In the context of the above letter No. D.E./Acad/I/SEZ/MORG/16/82/822 dated 12.04.1984, we had by our order dated 01.04.2022 directed the Director of Education to file an affidavit dealing with the contents of writ petitions. Further, we had directed the Director of Education to specifically indicate whether the said school has been granted recognition or not vide the above letter. Respondents Nos. 2 and 3, along with their affidavit, have produced a copy of one letter dated 12.04.1984. The said letter does not bear the number "822". The said letter is issued by the Assistant Director of Education granting the said school permission to open standard IVth from the academic year 1984-1985. 36. In compliance with our order dated 01.04.2022, Shailesh Zingde, the Director of Education, has filed a common affidavit in all these petitions. Paragraph 5 of this affidavit reads as follows: "5. I say that the letter No. D.E./Acad/I/SEZ/MORG/16/82/822 dated 12/04/1984 as reflected in annexure - B of affidavit in rejoinder dated 14/12/2021 is not traceable in the records of the respondent No.1 despite of genuine efforts. However the Deepvihar Primary School Sada is considered as a recognized unaided institution and therefore the name of the Deepvihar Primary School Sada is listed in Mormugao Taluka at serial No.20 in the list of recognized Educational Institutions maintained by the respondent No.1.'' 37. The above affidavit proceeds to state that the Respondent No.2 society sought and obtained permission from the Directorate of Education to open a new division and get approval from the school management committee from time to time. The affidavit also refers to the communication dated 13.03.2013 addressed by the Additional Director of Education to the Secretary of Respondent No.2 informing that the said school was an "Un-aided recognized English Medium school". The affidavit also refers to the communication dated 13.03.2013 addressed by the Additional Director of Education to the Secretary of Respondent No.2 informing that the said school was an "Un-aided recognized English Medium school". Based on the above affidavit, the learned Additional Government Advocate submitted that the said school was a recognized school and, therefore, bound to comply with the mandate of Section 13 of the said Act. 38. The record also bears out that the Manager of the said school vide his communication dated 06.12.2019 addressed to the Director of Education had stated that the said school is a private unaided school recognized by the Directorate of Education. The management follows all the guidelines set by the Education Department. The staff is paid salaries on par with the Goa Government employees. Based on this statement and other information furnished, the said school, through its Manager, sought approval of fee structure for the academic year 2020-2021. 39. Therefore, even though none of the parties have placed on record any specific letter or communication from the Directorate of Education recognizing the said school, the above-cited documents/correspondences are sufficient to reasonably infer that the said school was and is indeed a recognized school. Certain letters from the said school admit that the said school is a recognized school. Based on the premise that the said school is a recognized school, the said school has sought and obtained permission from the Directorate of Education to open a new division, approve fee structure, and even appoint Counsellors. Contemporary documents, like feasibility report etc., also refer to the school being recognized. 40. Respondents Nos. 2 and 3 have also proceeded on the basis that the said school was a recognized school. This is evident from the circumstance that the said school, through its Manager, even as late as 06.12.2019, not only asserted that it was a private unaided school recognized by the Directorate of Education but further that the staff was paid a salary on par with the Goa Government employees. The record bears out that at least up to the implementation stage of the Sixth Pay Commission Scale, there was parity between pay and allowances of staff in the said school and employees of the corresponding status in Government schools. This position was not even disputed by Respondent Nos. 2 and 3. 41. The record bears out that at least up to the implementation stage of the Sixth Pay Commission Scale, there was parity between pay and allowances of staff in the said school and employees of the corresponding status in Government schools. This position was not even disputed by Respondent Nos. 2 and 3. 41. If the said school was not recognized, then there was no question of the school seeking permissions and approvals for fee structure, scheme of management and even opening of additional division. From all this, it can be inferred that the said school was and is a recognized school. Therefore, the circumstance that, at this point in time, the Director of Education cannot trace the document referred to in paragraph 5 of the Director's affidavit is insufficient to conclude that the said school was or is not a recognized school. 42. Rule 36 of the said Rules, as noted above, inter alia provides that all existing recognized schools, subject to the provisions of these rules, shall be deemed to have been recognized under these rules. While there is no dispute about the said school being in existence on 14.11.1986 when the said Act and the said Rules entered into force, there is a dispute about the said school being recognized on the said date. As noted earlier, before the said Act and the said Rules entered into force, there does not appear to have been any provision or concept of formal recognition of primary schools. Therefore, it is reasonable to proceed on the basis that the expression "recognized" in the context of existing primary schools would mean the primary schools that were established after obtaining due permission from the Directorate of Education and such primary schools were functioning in terms of guidelines issued or terms and conditions imposed by the Directorate of Education from time to time. This is an additional reason for holding that the said school was a recognized school when the said Act and the said Rules entered into force. 43. Since the said school was a recognized school, the provisions of Section 13 of the said Act will apply to the said school and its employees. Accordingly, the Director of Education also accepts that the said school is a recognized school bound by Section 13 of the said Act. 44. 43. Since the said school was a recognized school, the provisions of Section 13 of the said Act will apply to the said school and its employees. Accordingly, the Director of Education also accepts that the said school is a recognized school bound by Section 13 of the said Act. 44. The first proviso to Section 13 provides that where the scales of any pay and allowances, pension, gratuity, provident fund and other prescribed benefits of the employees of any recognized private school are less than those of the employees of the corresponding status in the schools run by the Government, the Director shall direct, in writing, the managing committee of such school to bring the same up to the level of those of the employees of the corresponding status in schools run by the Government. The second proviso provides further that the failure to comply with such direction shall be deemed to be non-compliance with the conditions for continuing recognition of an existing school, and the provisions of section 5 shall apply accordingly. 45. Now that we have found that the said school is a recognized school and further since it is the case of the Directorate of Education that the said school is a recognized school, a mandamus is liable to issue to the Director of Education to act in terms of the first proviso and second proviso to Section 13 of the said Act. Accordingly, after receiving representations/demands for justice on 22.02.2021, the Director of Education should have acted in terms of the two provisos to Section 13 since it is the Director's case that the said school is a recognized school. 46. In fairness, we must record that even the said school, up to a point in time, was paying its employees the same pay and allowances as being paid to employees of the corresponding status in the Government schools. Mr. Desai submitted that the said school would receive aid from the M.P.T. He pointed out that after the collapse of the mining industries in the State of Goa and the reduction of exports, the M.P.T. stopped paying the grants, thereby rendering it financially challenging for the said school to pay salary and allowances based on the recommendation of the Seventh Pay Commission. Mr. Mr. Desai submitted that if the said school is required to pay its teachers the Pay Scales recommended by the Seventh Pay Commission, then the said school might have to close down. 47. Respondent Nos. 2 and 3 will have to sort out their problems with the M.P.T. We are sure that if Respondent Nos. 2 and 3 apprise the M.P.T. of the legal position in the context of Section 13 of the said Act and the difficulties faced by it, the M.P.T. will consider restoring the grants. Ultimately, the said school educates mainly the children of M.P.T. employees. In any case, stoppage of grants by the M.P.T. or financial difficulties can hardly be a ground for non-compliance with the provisions of Section 13 of the said Act. 48. In All Goa Private Schools Pre-Primary and Primary Teachers' Association ( supra), the unaided school had contended that the State Government could not compel the institutions to pay salaries equivalent to the salary received by the Government teachers since the institutions, though desirous, cannot afford to pay the same. The financial position as reflected in audited budgets was presented before the Division Bench of this Court in the said matter. The unaided institutions also contended that they might have to close down the schools if they were obliged to pay their teachers' salaries equivalent to the salaries received by the Government teachers. 49. The Division Bench referred to similar contentions raised before the Hon'ble Supreme Court in the case of Frank Anthony Public School Employees' Association (supra) and held as follows in paragraph 12, which reads as follows:- "12. It was contended that in the face of disentitlement to receive grant-in-aid, the State Government cannot compel the institutions to pay salary equivalent to the salary received by the Government Teachers, since the institutions, though desirous, cannot afford to pay the same. Our attention was invited to certain figures from the audited budgets showing the weak financial position and the losses incurred in managing those schools and on that basis a submission was made that result of being compelled to pay equal salary would inevitably result in the closure of the schools. Such an argument was advanced even before the Supreme Court and it was dealt with in the following manner: "We must refer to the submission of Mr. Such an argument was advanced even before the Supreme Court and it was dealt with in the following manner: "We must refer to the submission 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 section 10 of the Delhi School Education Act to the Frank 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 section 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'. 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". We have nothing more to add.'' 50. Mr. Desai also contended that in terms of the decision of the Hon'ble Supreme Court in T.M.A. Pai Foundation and others Vs State of Karnataka and others, (2002) 8 SCC 481 Respondents Nos. 2 and 3 had the right to establish an educational institution and further determine the salary payable to its teachers and staff. Mr. Desai contended that any insistence that Respondent Nos. 2 and 3 pay salaries on par with the Government employees would force Respondent Nos. 2 and 3 to close down the said school. Mr. Desai submitted that this would amount to infringement of right guaranteed under Article 19(1)(g) of the Constitution. 51. Mr. Desai contended that any insistence that Respondent Nos. 2 and 3 pay salaries on par with the Government employees would force Respondent Nos. 2 and 3 to close down the said school. Mr. Desai submitted that this would amount to infringement of right guaranteed under Article 19(1)(g) of the Constitution. 51. A somewhat similar contention based on Article 19(1)(g) of the Constitution was rejected by the Division Bench in All Goa Private Schools Pre-Primary and Primary Teachers' Association ( supra). The relevant observations in paragraph 13 read as follows:- "13. One of the submissions before us was that obligation upon the financially weak schools to pay salary at the rates fixed for Government teachers in the absence of Government aid was violative of management's right under Article 19(1) (g) of the Constitution in the light of Directive Principles of State Policy contained in Article 39(b) - We do not see any merit in the submission, which seems to be based upon the ratio of the Lord Krishna Sugar Mills Ltd., and another Vs The Union of India and another, A.I.R. 1959 SC 1124. That case related to the Sugar Export Promotion Act, 1958. Validity of provision of fixation of price of sugar meant for export at lower rates was upheld on the ground that countervailing additional rates were allotted on sale for internal use. Certain observations in Bapuji Educational Association Vs State, I.L.R. 1985 Karnataka 80, were also pressed into service in support of the contention. The said Karnataka High Court decision relates to the Karnataka Educational Institution ( Prohibition of Capitation) Act, 1984. Proviso to section 3 of the said Act empowers the Government to fix certain number of seats as free seats and to prescribe the maximum limit of capitation fee in respect of other seats. The said provision was held to be not violative of Article 19(1)(g) inter alia holding that the rates of capitation fee compensated the loss occasioned by keeping certain number of seats as free seats. Section 5(4) of the said Act provided for funds to be applied by minority school management as per the prescription of the Government. That restriction was not held to be a regulatory measure and was held to be an unreasonable restriction not in the interest of general public, upon rights guaranteed under Article 19(1) (g).'' 52. Section 5(4) of the said Act provided for funds to be applied by minority school management as per the prescription of the Government. That restriction was not held to be a regulatory measure and was held to be an unreasonable restriction not in the interest of general public, upon rights guaranteed under Article 19(1) (g).'' 52. In K. Krishnamacharyulu (supra), the Hon'ble Supreme Court held that the petition by the employees of the non-aided private educational institution seeking parity in pay scales with teachers from the aided institution was maintainable where the statute mandated such equality. A similar view was taken by the Division Bench of this Court in Raskar Vidya Damodar (supra). 53. Satimbla Sharma (supra) and Sushmita Basu (supra) are distinguishable because there were no statutory provisions mandating parity in those matters. The Hon'ble Supreme Court, therefore, held that in the absence of any statutory provisions requiring parity, no mandamus could be issued directing the school management to pay salaries on par with the Government teachers or to implement Pay Commissions recommendations. In the present matters, the statutory provision in Section 13 of the said Act makes all the difference. 54. The Correspondent/Principal Arokiamada Matriculation Higher Secondary School (supra) was also a case where there was no statutory provision mandating parity. Therefore, relying upon Satimbla Sharma (supra) and Sushmita Basu (supra), the Division Bench of Madras High Court declined the relief of parity. Thus, for the reasons discussed above, even this decision is distinguishable. 55. For all the above reasons, therefore, we allow these petitions and issue a writ of mandamus to the Director of Education to direct, in writing, Respondent Nos. 2 and 3 to bring the scales of pay and allowances of its employees up to the level of those of the employees of the corresponding status in the schools run by the Government. In case of failure to comply, the Director will have to act in terms of the second proviso to Section 13 of the said Act. The Director of Education must issue necessary directions in terms of the first proviso to Section 13 of the said Act as expeditiously as possible and, in any case, within two months from today. 56. The rule is made absolute in each of the petitions in the above terms. There shall be no order for costs.