Gujarat High Court
M.M.L. Shah High School vs State Of Gujarat And Ors. on 4 July, 2003
Equivalent citations: (2003)3GLR2367
Author: H. K. Rathod
Bench: H.K. Rathod
JUDGMENT H. K. Rathod, J.
1. At the outset, this Court would like to quote observations made by the Apex Court relevant to the present case, in case of D. S. Nakara v. Union of India, 1983 (1) SCC 305;
"14. We would like to point out that the philosophy of this Court as evolved in the cases we have referred to above is not that of the Court, but is ingrained in the Constitution as one of the basic aspects and if there was any doubt on this there is no room for that after the Preamble has been amended and the Forty-second Amendment has declared the Republic to be a socialistic one. The judgments, therefore, do nothing more than highlight one aspect of the constitutional philosophy and make an attempt to give the philosophy of flesh and blood.
15. Jawaharlal Nehru, the first Prime Minister of this Republic while dreaming of elevating the lot of the common man of this country once stated -
"Our final aim can only be a classless society with equal economic justice and opportunity to all, a society organised on a planned basis for the raising of mankind to higher material and cultural levels. Everything that comes in the way will have to be removed gently, if possible; forcibly if necessary, and there seems to be little doubt that coercion will often be necessary."
Recently also, the observations referred to above, have been by the Apex Court in case of Balbir Kaur v. Steel Authority of India, reported in 2000 AIR SCW 1745. Certain observations of this Judgment, important to refer, are quoted as under -
"These were his prophetic words about three decades back. More than a quarter of century has run out since he left us, but there has yet been no percolation in adequate dose of the benefits the constitutional philosophy stands for to the lower strata of society. Tolstoy wrote :
The abolition of slavery has gone on for a long time. Rome abolished slavery. America abolished it and we did, but only the words were abolished, not the thing."
Perhaps what Tolstoy wrote about abolition of slavery in a large sense applies to what we have done to the constitutional ethos. It has still remained on paper and is contained in the book. The benefits have not yet reached to the common man. What Swami Vivekananda wrote in a different context may perhaps help a quicker implementation of the goal to bring about the overdue changes for transforming India in a positive way and in fulfilling the dreams of the Constitution fathers. These were the words of the Swami :
"It is imperative that all this various yogas should be carried out in practice. Mere theories about them will not do any good. First, we have to hear about them; then we have to think about them. We have to reason the thought out, impress them on our minds and meditate on them; realise them, until at last they become our whole life. No longer will religion remain a bundle of ideas or theories or an intellectual assent; it will enter into our very self. By means of an intellectual assent, we may today subscribe to many foolish things, and change our minds altogether tomorrow. But true religion never changes. Religion is realisation; not talk, nor doctrine, nor theories, however beautiful they may be. It is being and becoming, not hearing or acknowledging. It is the whole soul's becoming changed into what it believes. That is religion."
9. As a matter of fact the constitutional philosophy should be allowed to become a part of every man's life in this country and then only the Constitution can reach everyone and the ideals of the Constitution trainers would be achieved since the people would be nearer the goal set by the Constitution - an ideal situation but a tar cry presently."
Heard learned Advocate Mr. D. P. Kinariwala appearing on behalf of the petitioner-School management.
1. By way of this petition, the petitioner has challenged the order passed by the Gujarat Secondary Education Tribunal at Ahmedabad in Application No. 298 of 1999 dated 24th March, 2003, whereby the Tribunal has allowed the said application filed by the respondent-teacher holding that applicant-the respondent No. 3 is entitled to receive salaries of Assistant Teacher as per the Government Rules for the period from 1st July, 1998 to 10th May, 1999 from the school management. The Tribunal has also directed that the school management shall pay the same from their own funds within a period of three months from the receipt of this judgment.
2. Learned Advocate Mr. Kinariwala for the petitioner has only raised the sole legal contention that the Tribunal having no jurisdiction to examine this issue inasmuch as the respondent No. 3 was not appointed according to the procedure prescribed under Section 35 of the Gujarat Secondary Education Act, 1972 [for short "the Act"]. To substantiate this legal contention raised on behalf of the petitioner, learned Advocate Mr. Kinariwala has relied upon decision of the Apex Court in case of Phool Badan Tiwari & Ors. v. Union of India & Ors., reported in 2003 AIR SCW 2340.
2.1 Apart from above sole legal contention relying on the facts, it is also contended that the respondent No. 3 was working honorary with the school management and the school management has not appointed the respondent No. 3. However, it is emphasized that no appointment order was issued by the school management in favour of the respondent No. 3, and therefore, since it was an irregular appointment, the respondent No. 3 is not entitled to salaries in the regular scale, as has been fixed as per Government Rules.
2.2 While relying on the facts and ratio laid down in the decision of the Apex Court in case of Phool Badan Tiwari (supra) referred to above, it is contended that persons working in Handicraft Centres under a Scheme of Railway Department, who were not appointed pursuant to any rules of recruitment or orders issued by Railways, but who were employees on part-time basis and who were paid a meagre amount as remuneration per month and commission on basis of work done, in such set of facts, it is held that such employees are not the Railway employees, and consequently, Central Administrative Tribunal would have no jurisdiction to hear their application for regularisation of their . services. However, learned Advocate Mr. Kinariwala relied on the observations made by the Apex Court in Para 8 of the aforesaid decision.
2.3 Except the contentions recorded above, no other contention nor any other submission made by the learned Advocate Mr. Kinariwala on behalf of the petitioner.
3. On perusal of the order impugned in this petition, filed under Arts. 226 and 227 of the Constitution, it transpires that the Tribunal has examined the question which was raised by the respondent in the application filed seeking remuneration for the work which he had rendered as Assistant Teacher for the period from 1st July, 1998 to 10th May, 1999. It may be noted that the respondent No. 3 has personally remained present before the Tribunal and conducted the matter being party-in-person. According to the facts discussed by the Tribunal, the petitioner is the registered private secondary school and is aided by the State Government. Before the Tribunal, oral evidence led by the respective parties. It has come on record that the respondent was possessing all requisite qualification of B.Sc., B.Ed., and since the post of Science teacher was vacant in the school, Vice President and Chairman of the Trust asked the respondent No. 3 to work as Assistant teacher, and accordingly, the respondent No. 3 herein-the applicant joined duties on 1-7-1998 and work for full time workload of Science teacher was taken from him, and thus, the respondent No. 3 taught the students of 8th, 9th and 10th Standards during the period from 1-7-1998 to 10-5-1999. It was case of the respondent No. 3 that he was getting full workload and every week about 30 periods were being taken by him and a separate muster roll was being maintained for him where he was signing. It was also case of the respondent that he was sincerely attending to his duties and was also taking extra classes in the interest of students and institution and as a consequence thereof in the said year the result of the S.S.C. was 98%. However, it is case of the respondent that he was not paid any amount towards his remuneration. Thereafter, on 20th March, 1999 the school had issued a public advertisement for filling up the said post on which the respondent was working. Pursuant to the said advertisement, the respondent No. 3 made application and he was also called for interview, but he was not selected and appointed. Thereafter, the applicant respondent No. 3 had represented to the Trust on date 12-7-1999 for payment of remuneration for the period from which he had worked and as the same was not paid, he filed application before the Tribunal. Even before the Tribunal, the respondent No. 3 relied upon the certificate issued by the school management indicating that the applicant was serving in the school as honorary teacher without remuneration.
3.1 It is pertinent to note that on behalf of the petitioner-School management, as such, no oral evidence was led before the Tribunal. The respondent. No. 3 was (sic.) came to be cross-examined by the petitioner. But detailed reply was submitted by the petitioner before the Tribunal. The contentions raised by the petitioner before the Tribunal that the applicant was never given any appointment order to work as Assistant Teacher in the school and signatory of the document submitted by the applicant at Exh. A on record of the application, is not an authorised person. It was contended that since the post of Science teacher was vacant in the school, with an expectation that he would be appointed and regularised on that post, the applicant himself had offered to serve in the school as Assistant teacher on honorary basis, but nobody had ever told him to do so. It was also contended in the reply filed by the school management that some of the students of the school were going to him for tuition and out of tuition the applicant was earning about Rs. 2000-2500/- per month, and therefore, with a hope and desire of getting job in the school and also to get some money through tuitions and also to gain some experience, the applicant on his own agreed to work in the school on honorary basis without salaries required to be rejected. It is also contended by the school management that the applicant was called for to appear in the interview and was interviewed also, but he was not selected on merits, and therefore also, he cannot have any grievance about the same.
4. I have perused the order impugned in this petition passed by the Tribunal below application preferred by the applicant - respondent No. 3 herein. It transpires, that taking into consideration the contentions of the rival sides raised before the Tribunal and considering the oral and documentary evidence led before the Tribunal, the Tribunal has appreciate the merits of the application while coming to the conclusion in Para 5. According to the observations made by the Tribunal, at the relevant time, a post of Science teacher was available with the school management. It was clear before the Tribunal that the applicant respondent No. 3 herein, having the qualification of B.Sc., B.Ed., had worked on the said post for the period from 1-7-1998 to 10-5-1999. However, it was (sic.) not become clear before the Tribunal that whether the applicant had out of his desire on being appointed in the school, joined the school on his own on honorary basis or the school had in order to avoid the inconvenience to the students asked the applicant to discharge duties, but it was undisputed before the Tribunal that the applicant had worked for the period from 1-7-1998 to 10-5-1999. As such, no appointment order produced by the applicant on record, and therefore, the Tribunal has concluded that the appointment of the applicant was never made in accordance with rules. But the fact remained that the applicant had worked for the period of 10 months in the school. On the very important aspect of "Honorary Services', the Tribunal, taking into consideration the provisions of the Gujarat Secondary Education Act and the Regulations, concluded that the concept of honorary service is not recognised under the Act and the Regulations. It is also observed that if one takes services of a person, the same will have to be reimbursed and remunerated. The Tribunal, however, observed that when such dispute comes to the Court, and it is established that a person has discharged his duties for a particular period, then unless the employer establishes that it was a honorary service without remuneration offered by the concerned employee, it is not possible to accept that submission. In my opinion, the Tribunal has not committed any mistake while arriving at such conclusion.
4.1 It is pertinent to note that the Tribunal has rightly considered the actual working of ten months service rendered by the applicant on the "quantum meruit principle" means value for the labour because before the Tribunal, it is not proved that the applicant had offered to serve the school without any remuneration as honorary teacher. The Tribunal also considered that the applicant is holding the requisite qualifications for being appointed as a regular teacher in the subject as per the Rules. Admittedly, the respondent had served for ten months with the school management, and therefore, considering the principle of "quantum meruit", the Tribunal has considered that the applicant would be entitled to receive remuneration for the period for which he had worked. However, Tribunal has clearly concluded that the petitioner-School management has not proved with the help of the legal evidence that the applicant had agreed to work without salaries and therefore, the principle of quantum meruit would certainly apply in the facts of this case while awarding the remuneration for the said period. It may be appreciated that the respondent No. 3 undisputedly was holding the requisite qualification for being appointed as regular teacher as per the Rules. Thus, considering all these aspects, the Tribunal has allowed the application and granted benefits to the present respondent the regular salaries prescribed by the Government from time to time for the post of Assistant Teacher for the period from 1st July, 1998 to 10th May, 1999. Thus, it is clear finding of fact and undisputed fact before the Tribunal, and thus, undisputedly the respondent had served in the school management for aforesaid period of ten months and in the facts and circumstances of the case, the school management cannot deny regular scale salaries prescribed by the Government from time to time, rightly held by the Tribunal.
5. However, learned Advocate Mr. Kinariwala for the petitioner has placed reliance on the decision of the Apex Court in case of Phool Badan Tiwari & Ors. v. Union of India & Ors. reported in 2003 AIR SCW 2340. This Court has gone through the facts of this case and the ratio laid down by the Apex Court in the aforesaid case. It requires to be noted that this Court is in full agreement with the ratio laid down in the aforesaid decision of the Apex Court. However, with all respects, the authority cited before this Court, would not be applicable in the facts of the present case. In the case before the Hon'ble Apex Court, the question was, whether Central Administrative Tribunal having jurisdiction to grant any relief in favour of the employees those who have worked on part-time basis in Handicraft Centres under the Scheme of Railway Department who were not appointed pursuant to any rules of recruitment or orders issued by Railways. This is not the controversy in the present case. The Tribunal having jurisdiction and even the jurisdiction of the Tribunal was not challenged by the petitioner before the Tribunal. It is observed that Tribunal can direct the school management to pay difference of salaries on the basis of "quantum meruit principle" and even on the principle of "equal pay for equal work" which is recognised and permitted by Article 14 of the Constitution of India being the fundamental rights of the citizens. However, a person who has been appointed irregularly as Assistant Teacher not in accordance with Section 35, such person cannot get any such benefit under the cover and ambit of Section 36 of the Act, but that does not mean that the Tribunal having no jurisdiction to examine the claim of the applicant for regular salary prescribed by the Government from time to time or difference of salaries of the teacher while working with the school management. Therefore, with due respect, the judgment cited before this Court and reliance placed on the decision by the learned Advocate Mr. Kinariwala is not helpful to the case of the petitioner and the same is not applicable to the facts of the present case.
6. Having regards to the order passed by the Tribunal and considering the facts and circumstances of the case and appreciations made by the Tribunal, according to my opinion, the Tribunal has rightly passed the order in favour of the respondent granting benefits of salaries as per regular scale or difference of salaries on the basis of the regular scale for the aforesaid period. The Tribunal has rightly given reasonings in support of the conclusion, and as such, there is not procedural irregularity by the Tribunal. The finding of the Tribunal based upon undisputed facts and there is no slightest error committed by the Tribunal, which in any way, does not warrant any interference by this Court while exercising the jurisdiction under Arts. 226 and 227 of the Constitution, and therefore, there is no substance at all in the present petition and the same deserves to be rejected at the threshold accordingly.
6.1 Therefore, considering the appreciations made by the Tribunal and the undisputed fact that the respondent No. 3 had worked for the period of ten months upto the date of termination of his services and considering the Regulations 24 of the Gujarat Secondary Education Regulations, 1974, there is no doubt that the respondent No. 3 is entitled to regular salary as per the pay-scale fixed by the Government from time to time. Thus, the Tribunal has rightly directed the petitioner to pay the salaries for said period for which the respondent No. 3 had actually worked, and therefore, in my opinion, the Tribunal has not committed any error while passing such order. On the contrary, when it is not proved before the Tribunal that the applicant had not (sic.) worked as honorary, it can be said that the exploitation of the respondent No. 3 at the hands of the petitioner for aforesaid actual working period, has been rightly appreciated and dealt with properly while awarding the salaries in accordance with regular scale for the period the applicant actually worked with the petitioner management. Therefore also, on this count, no any error committed by the Tribunal, and as such, no interference is required while exercising the jurisdiction under Arts. 226 and 227 of the Constitution of India, and hence, there is no substance in the present petition which requires to be rejected accordingly.
7. However, before parting with this judgment, this Court would like to make some observations which has come to the notice of this Court while dealing with such matters day-to-day, and therefore, intends to pass certain directions on the State. It is well recognised under the Rules that the schools are given recognition after about five years as per the Grant-in-aid Code Rules. Initially, the schools are not given grants by the Government, and therefore, salaries to the employees which mostly include the teachers, are required to be paid by the school from their own funds. Therefore, the modus operandi of several schools as noticed by this Court, in several cases that initially for about a period of five years, they will continue the school by engaging teachers on fixed remuneration and in many cases, salaries are not being paid or salaries are not paid in accordance with Rules before the schools receive the grants from the Government. Ultimately, in many cases, this practice has given rise to exploitation of the teachers in the entire field of education. It is noticed that the modus operandi of the school management is to first retain the staff including the teachers not putting them in regular pay-scale salaries as prescribed by the Government from time to time and the result thereof, the school management used to pay fixed salary of Rs. 1000-2000 per month to the teachers. It is known to all that the teachers are the first parents to build up well manner, society, and they are the foundations of construction of the well educated society and the Nation as a whole. But because of the unemployment in the State and the country, such teachers are surrendering to the terms of the management and this precarious situation has been exploited by the school management by paying them fixed salary to the teachers for a period about five years. This is not all so. The most disturbing modus operandi of the some of the school management which has come to notice that such school managements who are about to receive the grant-in-aid from the Government, used to give advertisement for the posts of such teachers for regular appointment as per provisions of Section 35 of the Gujarat Secondary Education Act, 1972. In pursuance of such advertisements given by the school management, the teachers who have really toiled in the interest of the students and the institution as a whole and really worked hard to build up the reputation of the school to enable the school management to get grant-in-aid, apply in pursuance of such advertisements. But in most of the cases, it is evident that such teachers who are already working and teaching the students of the very school, are being called for to appear before the Selection Committee but these teachers are not being selected by the Selection Committee. This Court fails to understand as to who, all such teachers are not being appointed as per the prescribed procedure under Section 35 of the Act at the outset and initial stage of commencement of the school and why fresh teachers are being appointed at the verge when the school management is about to receive the grants from the Government. The usual conduct, trend and the strategy of many school managements, as noticed, not to select such employees who are already working during last five with the very school management. I fail to understand the situation and the conduct of the school management that when the very school management which is already experienced and satisfied with the work of such employees, as to why such employees and / or teachers are not being selected by the Committee in the interview. The only reason behind this, because the school managements would only select the candidates who are prepared and ready to meet with the collective bargaining principle, otherwise, the persons will not be selected by the management. Similarly, in the facts of this case also, the teacher who is respondent No. 3 here, was not selected by the school management in the interview held for selection of a candidate for being appointed as regular teacher in the subject of Science. This is nothing but clear exploitation of such employees, more particularly teachers, during this initial period of five years. Not only this, this practice seems to have openly permitted by the Government, in other words, it seems that the Government has no check over this practice normally bring followed by the most of the school managements, and as such, this is not being checked and verified by the Government at the time while releasing the grant in favour of such school management after a period to five years. Thus, in number of cases, we have come across the cases that for initial five years, during which, the school requires to be maintained and run by the management at their own or from their own funds, and during this period of five years, either the teachers are being paid less or even in worst cases, the teachers are not being paid under the guise of "honorary service" as evident in the case. It is reiterated that the concept and convention of "Honorary Service" by the teachers is not recognised and permitted under the Act and the prevalent Regulations. It is general impression that even the Government is not making any inquiry at the time of sanction of the grant that during this five years period, whether the teachers and staff so employed before the sanction of the grant, have been actually paid regular salaries as per the Government Rules and Regulations or whether they are paid less or were retained on fixed salaries. This liberal attitude of the State, has ultimately promoted exploitation impliedly, in other words, this practice seems to have, on the other hand, permitted by the State Government. That even after the sanction of the grant, the Government, is not making inquiry in this regard. Therefore, according to my opinion, the Education Department should not release and sanction the grant in favour of such institutions without ascertaining the fact that how many teachers have been appointed by the school management during this last five years, whether the teachers and the staff so employed before the sanction of the grant, to run the school, have been actually paid regular salaries as per the Government Rules and Regulations or whether they were paid less or were retained on fixed salaries.
7.1 It is also duty of the Education Department to see that initial period of five years from inception of school, they must run and manage affairs of school according to the law. If any action or decision is contrary to law, grant should not be released to them. For ascertaining this aspect, State Authority must hold discreet inquiry before releasing the grant to such school. The tactics of school management to pay less and fix salary to such teacher and at the time of selection of teacher, the practice and method of "collective bargaining" must have to be totally stopped or required to be curbed immediately. Because non-a-days to run the school, it has became good as well as easy profitable business without investing fund. The said profit is covered from grant given by the State Authorities and from the fees of students. In such circumstances, how the teacher can build up the career of students and Nation as a whole, when he is not able to build up his career in fixed and less salary. There is shortage of teachers in the State of Gujarat in the schools. But school authority cancelling selection process two or three times for finding out well established and sound economic teacher, so he may agree to their terms of collective bargaining. Number of teachers remain unemployed due to their poor economic condition. In such process, the immediate officer who has power is District Education Officer and the said officer is also taking active part in permitting exploitation and while endorsing decision of collective bargaining of school management. These facts are known to everybody but no one raise objection as they do not have any voice or power to curb such activities. This is hard reality impliedly ignored by the higher State authorities.
7.2 In my opinion, it is the first duty of the State in its Education Department, to ascertain all these aspects and the record from the school management, being the condition precedent at the, time of release of grant in favour of the school management. Therefore, at the time of sanction of the grant from the Government, unless the school management satisfies that during last five years, the teachers and the staff employed by the school management have been paid the regular salary as per the scales prescribed by the Government Rules from time to time, otherwise, grant should not be released in favour of such school management. However, in the events of any such irregularity or violation in payment of regular salary to the teachers or payment of fixed salary to the teachers, the State through its Education Department should restrict or proceed slowly while sanctioning the grant to such school management to curb the existing menace at the hands of school management in the entire field of education. It is most regretting that the menace at of collective bargaining prevailing in the education field, which is known to everybody and the same is accepted widely having become necessary evil in the society because of alarming unemployment situation in the State and ultimately, such unemployed qualified teachers are bowing down to such evil, otherwise, they will not be able to get job in the school management. This menace in the field of education has ultimately resulted in promotion of tuition practice and other irregularities. This is the hard reality, may not be aware by the State of Gujarat. Therefore, according to my opinion, the State Government in its Education Department has failed in discharge of its statutory duties to have control over such exploitation of the teachers, and such exploitation can be said to be unfair labour practice adopted by the school management. For this, in my opinion, some control is absolutely required by the State Education Department to have strict vigil over the school managements who were and have been indulging in such tactics just to pass on initial period of five years by hook or crook by appointing fixed salaried teachers and other staff and to get the grants from the State Government after period of five years. Otherwise, failure in compliance of such liabilities by the school management would promote exploitation, unfair labour practice and tuition practice out of school, as also, other irregularities which will ultimately lead to filing of innumerous litigations by the deprived teachers seeking their rights protected under the law. Therefore, in my opinion, it is duty of the State Government to see that there should be no release of grant of such management which do not comply with the Rules and Regulations in regard to regular salaries as per the Government Rules to the teachers and the other staff employed by the school management before sanction of the grant from the Government.
7.3 Therefore, in above view of the matter, the State Government through the Chief Secretary and the Secretary, Education Department, so also, the Commissioner of Higher Education are directed to take effective steps that all the school managements seeking registration of grant-in-aid school and the grants from the State Government, shall comply the following aspects :
(1) The teachers and the other staff should be recruited at the inception and commencement of the school as required under Section 35 of the Gujarat Secondary Education Act, 1974 and not at the fag-end after about completion of five years at the time of sanction of the grants from the State Government.
(2) To inquire, in all past cases of school managements, which have been sanctioned the grants by the Government, the aspect that how many teachers appointed by the school management during the last five years before sanction of the grant, whether all the teachers and the staff so employed before the sanction of the grant, have been actually paid regular salaries as per the Government Rules and Regulations or less or were retained on fixed salaries. Take effective steps to remove discrepancies in regard to regular salaries, if found in cases of the school managements.
(3) To inquire, in all cases of the school managements which are presently under consideration for sanction of grants from the Government, the aspect that how many teachers have been appointed by the school management during the last five years, whether all the teachers and the staff so employed by this time, have been actually paid regular salaries as per the Government Rules and Regulations or they are paid less or they are retained on fixed salaries, and to take all effective steps for necessary compliance by the school managements in regard to regular salaries to all teachers and staff.
(4) For all such cases of the school management in future, to take effective steps by passing necessary instructions to all school managements, who are under pipeline seeking grants to comply with such directions before sanction of the grants from the State, Therefore, the State Government, through the Chief Secretary and the Secretary, Education Department, so also, the Commissioner of Higher Education are directed to prepare a detailed report on the aspect listed at serial No. (1) to (4) above, and place the same before this Court for perusal and take effective steps for compliance, within some reasonable time in the larger interest of justice. Failure in compliance, could invite serious view in the matter.
8. For the reasons recorded in the aforesaid Paragraphs, there is not substance in the present petition, which deserves to be rejected at the threshold and the same is rejected accordingly.
Directions issued on the State to be complied with forthwith accordingly.
The Registry of this Court is directed to send a copy of this order immediately to the State Government, through, the Chief Secretary and the Secretary, Education Department, so also, the Commissioner of Higher Education, Gandhinagar, without fail.