Punjab-Haryana High Court
S.B. Saini Educational Society vs Union Of India (Uoi) And Ors. on 29 February, 1996
Equivalent citations: (1996)113PLR787
Author: R.P. Sethi
Bench: R.P. Sethi, R.L. Anand
JUDGMENT R.P. Sethi, J.
1. Advisor to Administrator of Union Territory, Chandigarh, decided that the practice of giving No Objection for affiliation with the I.S.C.E. and C.B.S.E. should be stopped forthwith until the concerned institutions seek recognition from the Education Department of the Union Territory, Chandigarh. It was further directed that while giving recognition/affiliation to schools, necessary condition may be imposed for payment of salary to the staff on Government pattern. The petitioners-Societies, who are running private schools for imparting education to the students, feeling aggrieved of the aforesaid directions, as incorporated in Annexure P-24, have filed the present petition with prayer of quashing the impugned order or in the alternative to issue a command to the respondents to give them grant-in-aid for payment of salaries to their staff on Government pattern. It was further prayed that the respondents be directed to allow the students of the petitioners-Schools to appear in the annual examinations of Middle, Matric and + 2 Classes.
2. It is submitted that the petitioners/Institutions are un-aided schools in the Union Territory, Chandigarh. The schools are stated to be recognised by the Education Department and affiliated with the Central Board of Secondary Education. They have claimed to be following the norms laid down by the Education Department of the Union Territory, Chandigarh, including the pattern of the fee to be charged from the students and the salary paid to the teachers. Petitioners No. l and 2 are claimed to have applied to respondents No. 2 and 3 for recognition of their school initially upto Primary Classes and on 7.3.1972, their school was recognised. Thereafter the recognition was granted upto middle standard and matriculation. It is submitted that there is neither any Education Code nor any Board to govern the educational institutions to conduct the examinations of High and 10 + 2 Classes, either by issuing No-Objection certificate or through the Education Department. The aforesaid two writ petitioners are stated to have applied for affiliation with Central Board of Secondary Education, New Delhi. The application was duly recommended and forwarded by respondent No. 3. Respondent No. 4 is stated to have deputed a committee to inspect the school, which submitted its report on 13.1.1973 (Annexure P1.). Affiliation was thereafter granted by the Central Board of Secondary Education on 26.3.1973 vide Annexure P.13. The said affiliation is stated to have been continued from time to time. In the letters of recognition/affiliation, respondents No. 2 and 3 are stated to have mentioned that the salaries to the staff of the schools should be suitably increased. The aforesaid petitioners claim to have suitably increased the salaries of their staff from time to time. Respondent No. 2 is stated to have passed an order dated 25.2.1991 to the effect that all the schools in the Union Territory were required to get recognition from the Education Board, Chandigarh, which was made a pre-requisite for affiliation with the C.B.S.E. or I.S.C.E. The petitioner-schools are alleged to have been granted affiliation by the C.B.S.E. on the recommendation of respondents No. 2 and 3.
3. By the impugned order, it was directed that the practice of giving No - Objection Certificate for affiliation should be stopped forthwith unless the institution seeks recognition from the concerned Education Department. The schools were to be under an obligation to pay salaries to their staff on Government pattern. It is submitted that such a condition was illegal, invalid and ultravires. According to the petitioners, the Union Territory is alleged to have adopted the Punjab Education Code, which does not prescribe any condition of payment of salary to the staff by the unaided recognised schools on the Government pattern. It is further submitted that the condition for affiliation by respondent No. 4 did not initially provide for payment of salary to the staff of the schools on Government pattern. The respondents are alleged to be interfering with the management of the schools by passing the orders, like the impugned order in the present petition. It is further alleged that the respondents No. 2 to 4 have made a common cause to harass the managements of unaided schools on one pretext or the other.
4. Claim of the petitioners has been resisted by respondents No. 1 to 3 on various grounds as detailed in their reply. It is submitted that the Central Board of Secondary Education had imposed a pre-requisite condition to the effect that the recognition should be granted to only such schools, who were paying salaries to their staff, which was not less than the salary of the corresponding categories of the employees in the State Government Schools or as per scales etc prescribed by the Government of India. Passing of the various orders, as relied upon by the petitioners has been admitted but it is submitted that the recognition/affiliation granted to the petitioners was only provisional. It is further contended that the petitioner-schools were charging fee from their students of their own. It was obligatory for them to provide facilities to their students. The provisional recognition is stated to have been rightly withdrawn, as the conditions prescribed in Annexure P24 are not being complied with by the petitioners.
5. In reply filed on behalf of respondent No. 4, it is submitted that the similarly situated un-aided schools as the petitioners are, have been paying salaries to their teachers in accordance with the Bye-laws of the Central Board of Secondary Education. The schools of the petitioners No. 2 and 4 were disaffiliated w.e.f. 1990-91 in accordance with the aforesaid bye-laws, after observing the due process of having issued notices, reminders and affording proper opportunities as per law. It is further stated that similarly affiliation of petitioner No. 6 was withdrawn w.e f. 1991-92. Proper notices are also alleged to have been issued in the leading newspapers for information of parents of the students. Keeping in view the career of the students, they were permitted to appear in the examination held in March, 1992. It is stated that petitioner No. 2 did not comply with the provisions of byelaws, but approached the Deputy Minister for Education and Culture, who permitted their students to appear in the examination held in March, 1993 as a special case. The affiliation to the petitioners/schools is stated to have been granted provisionally earlier for fixed periods, subject to their compliance of clause 2(k)(ii) of the Handbook of Recognition of Institutions, 1970. The provisional recognition was granted by the Government subject to the conditions, including the condition for increase of salaries of the staff of the schools. Under the norms for affiliation, it is necessary that the teachers of the institution are paid adequate salary, which should not be less than those of the corresponding categories of employees of the Government schools of the State or the Union Territory, in which the institution is located.
6. In the replications filed on behalf of the petitioners, averments made by the respondents in the written statements have been denied and the pleas projected in the writ petition reiterated.
7. During the pendency of the proceedings, writ petition on behalf of petitioners No. 5 and 6 was permitted to be withdrawn vide court order dated 26.10.1994. Petitioners No. 3 and 4 have also filed Civil Miscellaneous 10788/1994 for permission to withdraw the writ petition. Some of the teachers of the petitioners-institutions have also filed CM No. 2572/1995 for being impleaded as party-respondents with prayer to allow them to resist the claim of the petitioners and for issuing of directions to the petitioners for payment of salary on Government pattern.
8. We have heard learned counsel for the parties at length and perused the record.
9. Some of the admitted facts of the case are that all the petitioners are privately managed un-aided schools, being run by various societies. The staff of such schools is not being paid salaries as are being paid to the staff of the Government schools located within the Union Territory, Chandigarh. Recognition/affiliation granted to petitioners was provisional, from time to time and they have been admitting students at their own risk and responsibility, despite declaration made by the respondents that such students shall not be permitted to appear in the exanimations till the petitioners/institutions are recognised/affiliated according to the conditions contained in Annexure P.24. The petitioners have been obtaining orders from time to time for permission to the students to appear in the examinations. The petitioners after exploiting the sympathies for the students are proved to have deprived their staff of the salaries, to which they are entitled on Government pattern. The petitioners have not referred to violation of any fundamental or legal right.
10. Clause 2(k)(ii) of the Handbook for Recognition of Institutions 1970 Edition provides:
"The salary scales and allowances of the teachers of the institution should be adequate and in any case not lower than those of the corresponding category of teachers of the Government schools of the State or the Union Territory in which the institution is located."
11. The aforesaid condition clearly envisages that the salary scales and allowances of teachers in the institutions seeking recognition/affiliation, should be adequate and in no case lower than those of corresponding category of teachers of Govt. schools. Without compliance of the mandatory directions the petitioners want issuance of directions, as prayed for by them. A critical analysis of the facts of the present case shows that the petitioners have no right in law or in equity.
12. It has been vehemently argued by learned counsel for the petitioners that as their clients had been granted recognition/affiliation, the respondents were not justified in withdrawing the same without compliance of the mandatory provisions of law and the principles of natural justice. This argument is without any substance. The petitioners have not placed on record anything to show that they were ever granted permanent recognition/affiliation. The provisional recognition/affiliation granted to the petitioners had not conferred any right upon them. The appropriate authority was well within its power to direct them to comply with the directions as prescribed by the Board for the purpose of recognition/affiliation and on petitioners' failure to comply with the said directions, the authority had rightly refused to grant them any further extention. Recognition/affiliation granted provisionally could not be termed to be a substantive or permanent recognition/af- filiation.
13. The petitioners cannot claim that they had any fundamental or legal right to establish and run an institution. The Supreme Court in Unni Krishanan and Ors. v. State of Andhra Pradesh, JT 1993(1) S.C. 474 held:-
"We must, however, make it clear, and which is of crucial importance herein, that the right to establish and educatidnal institution does not carry with it the right to recognition or the right to affiliation. In St. Xaviers College v. Gujarat, 1975(1) S.C.R. 173 it has been held uniformly by all the nine learned judges that there is no fundamental right to affiliation. Ray, CJ., stated that this has been "the consistent view of this court." They also recognised that recognition of affiliation is essential for a meaningful exercise of the right to establish and administer educational institutions. Recognition may be granted either by the Government or any other authority or body empowered to accord recognition. Similarly, affiliation may be granted either by the University or any other academic or other body empowered to grant affiliation to other educational institutions. In other words, it is open to a person to establish an educational institution, admit students, impart education, conduct examination and award certificates to them. But he, or the educational institution has no right to insist that the certificates or degrees (if they can be called as such) awarded by such institution should be recognised by the State muchless have they very right to say that the students trained by the institution should be admitted to examinations conducted by the University or by the Government or any other authority, as the case may be. The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and/or affiliation is not a matter of course nor it is a formality."
14. The authority empowered to accord recognition or affiliation has a right to impose such conditions/restrictions, which are deemed to be reasonable and proper .Such conditions/restrictions imposed cannot be set-aside or quashed unless shown to be in violation of the fundamental or legal rights, unreasonable or unfair. The petitioners in the instant case have failed to show that the condition imposed vide Annexure P 24 was in any way either violative of the fundamental rights or unreasonable and unfair. On the other hand, the respondents were justified in imposing of such a condition, which is intended to put a curb on the exploitation of the teachers, who on account of unemployment, are not in a position to get Government job and when under compelled circumstances they join the private institutions, are forced to accept salaries lower than what are paid to their counterparts in the Government institutions. Payment of lower salaries like this not only amounted to exploitation of the unemployed educated youth but also likely to adversely affect the academic carrier of the students taught by them. The petitioners are shown to have left no stone unturned to inflate their money bags by exploiting sympathy of all concerned in favour of the students. In the name of the students, they have succeeded in protracting litigation and under the garb of litigation, continue their educational institutions despite non-recognition/affiliation.
15. It has been brought to our notice that during the pendency of the writ petition, a number of interim orders were obtained either by the petitioners themselves or through their students for permission to appear in the examinations as an interim measure.
16. In CM 1137/1994 filed in CWP 13297/1993, this Court on 28.2.1994 permitted the students of the petitioners to appear in the Matriculation Examination commencing from 2.3.1994 on the condition that the petitioner-institution shall inform the students that they shall be appearing in the examination at their own risk and responsibility and subject to the result of the writ petition.
17. Similarly in CM 9439/1994 filed in this very petition, it was observed, "It is thus, evident that the petitioners were not prepared to fulfill their conditional obligation to pay salary to the teachers at par with those being paid to the Government teachers. Prima facie, they have no right to run the institution."
18. In the Letters Patent Appeal filed against the said order, learned counsel for the petitioners submitted that his clients were prepared to comply with the condition regarding payment of salary to the teaching community at par with the Government pay scales w.e.f. 1.10.1994. In view of that submission, a direction was issued to the respondents to supply admission forms to the writ petitioners for facilitating their appearance in the examination being conducted in March, 1995. The said order was however, again subject to the result of the Letters Patent Appeal.
19. Learned counsel for the petitioners has also half-heartedly argued that in case the impugned order Annexure P-24 is not quashed, his clients are entitled to the grant-in-aid for the purpose of making payment of salaries to their staff on Government pattern. The argument cannot be accepted inasmuch as nothing has been placed on the record to show that any of the petitioners has ever applied for grant-in-aid, affording an opportunity to the respondents to consider its case for such grant. Otherwise also, the Supreme Court in 'Shri Anandi Mukta Sadguru Shree Mutajee Vandasjiswami Suvarna Jayanti Mahotsav Samarak Trust v. V.R. Rudani, AIR 1989 S.C. 1607 had held that under the relationship of master and servant, the management was primarily responsible to pay the salary and other benefits to the employees. The management could not say that unless and until the State compensates, it would not make full payment to the staff. A Division Bench of this Court in 'Hindu College Governing Council and Anr. v. N.D. Malhotra and Anr., 1993(1) S.L.R. 757 held:-
"The only point canvassed by the counsel for the appellants was with regard to directions to Government as sought in the writ petition that 95% aid be provided to privately managed Government aided colleges also towards meeting their liability for payment of gratuity to their employees. In support, counsel sought to contend that the words 'salary' in this context deserve to be construed as inclusive of rights flowing from salary like gratuity, dearness allowance and interim relief. No such construction is indeed warranted. The expression 'salary' and 'gratuity' have a well established different and distinct meaning and they cannot, therefore, be treated as being part of the same, i.e. within the expression 'salary' alone."
20. Similar view was taken by another Division Bench of this Court in Ajmer Singh-Ex Principal v. State of Punjab and ors., Civil Writ Petition No. 3464 of 1995, decided on February 7, 1996. In view of the settled position of law, no direction can be issued to the respondents for passing orders to give grant-in-aid to the petitioners-institutions.
21. Under the circumstances, we find that the petitioners-institutions had no right to admit students for appearance in the examinations conducted by the Central Board of Secondary Education and I.S.C.E. and such students admitted in violation of the mandatory directions, as contained in Annexure P 24, had no right to appear in the examinations. Accordingly, the writ petition is dismissed with costs, which were assessed at Rs. 1,000/-. However, it is directed that the result of only such candidates shall be declared, who were permitted to appear on the basis of Court order dated 12 10.1994 in Civil Miscellaneous No. 1606/1994 (filed in Letters Patent Appeal No. 1050/1994). This judgment shall, however, not prevent the petitioners/Institutions from applying for fresh recognition/affiliation and if they comply with the requisite conditions, the appropriate authorities may accord them the recognition/affiliation. If such recognition/affiliation is "granted, the students studying in the petitioners/institutions shall be held eligible to appear in the future examinations.
22. In view of the directions of Hon'ble Supreme Court in Special Leave Petition Nos. 19526 and 19840 of 1994, dated 25th January, 1995, Civil Writ Petition No. 7802 of 1994 and Letters Patent Appeal No. 1050 of 1994 shall stand disposed of in terms of this judgment. All the other Civil Miscellaneous applications filed in the case shall also be deemed to have been disposed of.