Bombay High Court
2 vs The State Of Maharashtra on 27 June, 2014
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
WP No.1949/2012
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 1949 OF 2012.
1. Mahadeo s/o Pandurang More,
Aged about 31 years, Occ - Service,
2. Rekha Bhimrao Mhaske More,
Aged about 42 years, Occ - Service,
3. Pradip Shankarrao Deshmukh,
Aged about 38 years, Occ - Service,
4. Manoj Hiralal Nimbalkar,
Aged about 38 years, Occ - Service,
5. Santosh Bhimrao Deshmukh,
Aged about 31 years, Occ - Service,
6. Rajesh Shankarrao Wani,
Aged about 37 years, Occ - Service,
7. Nilkanth Saligram Ingale,
Aged about 38 years, Occ - Service,
8. Ku. Geeta Ramdeo Tiwari,
Aged about 45 years, Occ - Service,
9. Vijay Ravindra Pawar,
Aged about 30 years, Occ - Service,
10. Rama Tukaramji Patil,
Aged about 45 years, Occ - Service,
11. Ku. Rohini Shivajirao Jadhav,
Aged about 38 years, Occ - Service,
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WP No.1949/2012
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12. Ku. Anjali Bhaskarrao WAre,
Aged about 35 years, Occ - Service,
13. Shobha Laxman Ingale,
Aged about 40 years, Occ - Service,
14. Sheshrao Sampat Jadhav,
Aged about 35 years, Occ - Service,
15. Ku. Vidya Ramdas Jangal,
Aged about 32 years, Occ - Service,
16. Ku. Archana Atmaram Bhutekar,
Aged about 32 years, Occ - Service,
17. Ku. Priti John Shende,
Aged about 28 years, Occ - Service,
18. Mohan Bhaurao Dhandar,
Aged about 45 years, Occ - Service,
19. Nana Sukhdeo Ingale,
Aged about 50 years, Occ - Service,
20. Ravindra Santosh Barde,
Aged about 30 years, Occ - Service,
21. Raju Narayan Jadhao,
Aged about 40 years, Occ - Service,
22. Vimal Pralhad Jadhao,
Aged about 47 years, Occ - Service,
23. Sunil Madhukar Sawale,
Aged about 32 years, Occ - Service,
All petitioners resident of c/o. Manoj Hiralal
Nimbalkar, Mahavir Nagar, Buldhana,
District Buldhana. .... PETITIONERS.
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WP No.1949/2012
3
VERSUS
1. The State of Maharashtra,
through its Secretary, Department
of School Education, Mantralaya,
Mumbai - 32.
2. The Director of Education,
(Secondary and Higher Secondary)
Central Building, Pune-1.
3. The Deputy Director of Education,
Amravati Division, Amravati.
4. The Education Officer (Secondary)
Zilla Parishad, Buldhana.
5. Servite Generalate,
41, 42 Tank Band Road, Nungambakkam,
Chennai 600 034, through its Secretary.
6. The Principal,
Saint Joseph's English School,
Sundarkhed, Buldhana.
7. The Congregation of the Sisters,
of Our Lady of Dolours,
Bhadola Road, Buldhana,
through its Secretary. ....RESPONDENTS
.
-----------------------------------
Mr. Rohit Deo with Mr. P.B. Patil, Advocates for Petitioners.
Mr. D.B. Patel, Asstt. Govt. Pleader for Respondent Nos. 1 to 4.
Mr. M.G. Bhangde Senior Advocate with Shri R.M. Bhangde,
Advocate for Respondent Nos. 6 and 7.
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WP No.1949/2012
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CORAM : B.P. DHARMADHIKARI
AND P.R. BORA, JJ.
Date of Reserving the Judgment : 05.05.2014.
Date of Pronouncement : 27.06.2014.
JUDGMENT. (Per B.P. Dharmadhikari, J)
1. In this writ petition filed under article 226 of Constitution of India, the petitioner teachers seek salary as per the pay scale prescribed by State Government through its resolution dated 21st May 2010 extending 6th wage revision to teaching and non-teaching staff of unaided non-
government i.e. private educational institutions. They are working with respondent no.7, which is an unaided private minority School. It is not in dispute that respondent no.5 is a minority educational society while respondent no.7 is the school which has been recognized by State Government as per the provisions of Secondary School Code as revised in 1979, (hereinafter referred to as "SS Code" for short). Permission to open school has been given on 17 August 1991 and as per clause 2 of that permission, management is obliged to pay wages to teachers in the pay ::: Downloaded on - 02/07/2014 23:50:26 ::: WP No.1949/2012 5 scales as prescribed by State Government from time to time. It is in this background that on 23.04.2012, a notice for final disposal of writ petition came to be issued. Accordinglly, we have heard learned Advocate Rohit Deo with Advocate P.B. Patil for petitioners, learned AGP D.B. Patel for respondent nos. 1 to 4 and learned Senior Advocate M.G. Bhangde with Advocate R.M. Bhangde for the respondent management and school finally, with consent by issuing Rule and making it returnable forthwith.
Briefly following are the submissions of respective parties: -
Submissions of Petitioners : -
2. Clause 2 in permission letter dated 17th August 1991 is binding on respondent management and school. Attention is also invited to rule 3.2, 3.2.9 and 3.2.10 of SS code to urge that said provisions of are statutory in nature and binding on management/school. Petitioners further submit that none of them is paid as per government instructions in prescribed pay scale.
Attention is invited to defense of management/school that State Government cannot prescribe pay scale as it will be violative of art. 30 of Constitution of India.
3. (2002) 8 SCC 481- (T.M.A. Pai Foundation and Ors. vs. State of Karnataka and Ors.) is relied upon heavily by petitioners to point out ::: Downloaded on - 02/07/2014 23:50:26 ::: WP No.1949/2012 6 how 11 questions have been framed by Hon'ble Apex Court therein to resolve such challenge and are answered. Answer recorded against question 5 -C is stated to be material for deciding this controversy. AIR 1987 SC 311- (1986) 4 SCC 707- (Frank Anthony Public School Employees' Assn. v. Union of India) and earlier judgment of Constitution Bench of Hon'ble 9 Judges in case of Ahmedabad St. Xavier's College Society v. State of Gujarat reported at (1974) 1 SCC 717 - AIR 1974 SC 1389 are also relied upon to demonstrate significance of terms and conditions of recognition and affiliation in this connection. Observations of Hon'ble Apex Court in (2005) 5 Supreme 544-(2005) 6 SCC 537- (P.A. Inamdar vs. State of Maharashtra and Ors.) are also pressed into service by advocate Deo. Satimbla Sharma v. St Paul's Senior Secondary School, (2011) 13 SCC 760-2011 (5) All MR 927 is cited to demonstrate how it considers entirely different scenario and therefore, cannot be used against petitioners. Three judgments delivered by the Delhi are also placed on the record urging that those judgments distinguish the consideation in Satimbla Sharma v. St Paul's Senior Secondary School [supra] and hence, said precedent, in present facts, is of no assistance to management.
Learned Single Judge of the Delhi High Court Shri Valmiki J. Mehta has delivered these judgments on 13th February 2013, 14th February 2013 and 1st May 2013 in WP (civil) 8748 of 2010, 12132/2009 and 1104 of 2011 ::: Downloaded on - 02/07/2014 23:50:26 ::: WP No.1949/2012 7 respectively with connected matters. Judgment of Hon'ble Apex Court in case of Sindhi Education Society v. Govt. (NCT of Delhi)- reported at (2010) 8 SCC 49 is also relied upon by him.
4. Learned counsel submits that T.M.A. Pai [supra] does not render all regulatory measures void and executive instructions or directions which have statutory flavor need to be followed even by the minority institute.
Our attention is drawn to Section 16 of Maharashtra Employees Of Private Schools [Regulation of Conditions of Service] Act 1977, (hereinafter referred to as "the 1977 Act" and "1981 Rules" framed thereunder).
Section 4 [1] of 1977 Act prescribes conditions of service read with [3] and [4]. The duty to pay salary in prescribed pay scales is alleged to flow from this statutory provision as also conditions of recognition. Support is drawn from observations of Hon'ble Apex Court in (2005) 13 SCC 407- (Shivaji Shikshan Prasarak Mandal and Ors. vs. State of Maharashtra and Ors.) It is also pointed out that on 13 October 2011, respondents have offer more wages.
Submissions on behalf of Respondent Management/School: -
5. Shri Bhangde, learned Senior Advocate, at the outset, submits that his arguments are on based on various grounds of defense which are in ::: Downloaded on - 02/07/2014 23:50:26 ::: WP No.1949/2012 8 alternative and without prejudice to each other. By pointing out (1996) 1 SCC 338 at page 341 - (Madras Metropolitan Water Supply) and Sewerage Board v. R. Rajan, (1996) 1 SCC 338, at page 340, where the Hon'ble Apex Court in para 8 while accepting that expression of any opinion on the question of powers of the Managing Director, the Board or the Government in the matter of imposition of penalties under the regulations was unnecessary at that stage, opined that the Board cannot complain of it when it itself had invited the decision of the Division Bench of High Court on the said question. However, Hon'ble Apex Court refused to make any pronouncement on such an academic question and left it open.
Advocate Bhangde urges that his effort should not be treated as an invitation to this Court to adjudicate on those grounds. He repeats that though no case has been made out by petitioners, only to assist the court, the correct position in relation to whole dispute is being explained. He has invited attention of court to case/cause as pleaded and prayer clauses in memo of writ petition. According to him, only grievance made is that service conditions must be as prescribed in 1977 Act and then there is reference to executive instructions. Word "prescribed" has got a definate significance and therefore indicates 1981 Rules. Pay scales demanded by petitioners are not supported by 1981 Rules and pleadings do not contain any reference to SS code or to terms and conditions of recognition. Entire ::: Downloaded on - 02/07/2014 23:50:26 ::: WP No.1949/2012 9 arguments advanced on the basis of SS Code therefore need to be discarded. To point out implication of use of word "prescribed", our attention is drawn to provisions of section 2 [17] which defines word "prescribed" and section 2 [23] which defines word "Rule". According to him, Government letter dated 17th of August 1991 therefore refers to 1981 Rules and not to any GR. As the statutory provisions occupies the field, executive instructions cannot prevail.
6. SOR of 1977 Act is pressed into service to demonstrate that object there is to statutorily define service conditions of staff in private schools.
Scheme of Section 4 read with Section 16 [2] [b] regulating pay scale is also pressed into service to urge that government resolution cannot substitute "Rules" in this respect. Rule 7 and schedule B of 1981 Rules is read out to buttress this contention. Advocate Bhangde also submits that petitioners nowhere argue that they are not getting salary as per said Schedule B.
7. Without prejudice and in alternative, he invites attention to GR dated 21st May 2010 to demonstrate that clause 2 therein contemplates application of Maharashtra Civil Services (Revised Pay) Rules, 2009 with suitable changes therein to private schools. He points out decision as to ::: Downloaded on - 02/07/2014 23:50:26 ::: WP No.1949/2012 10 mode and manner or regarding the number of installments in which the arrears are to be paid by the non-government permanently unaided schools is to be reached jointly by parents-teachers association and President/ Secretary/ Headmaster of School or Society. This GR does not amend 1981 Rules and therfore, schedule "C" prescribing the pay scales has not undergone any change. While enacting 1977 Act, the State Legislature was aware of SS Code andSection 15 of it is the transitory provision. Rule 4(1)
(d) and (2)(f) are the relevant Rules and as such, SS Code can not survive thereafter. The terms and conditions in recognition order also consequentially mandate compliance with 1977 Act and 1981 Rules only.
Hence, in any case the respondent management and school has to follow the said Act/Rules and insistence of petitioners for adherence to SS Code is erroneous.
8. He adds that action under Section 4(3) of 1977 Act is possible only if Rules framed underSection 16 are violated and petitioners do not even plead such violation. Schedule "C" is still not amended to incorporate revised pay scales as per VIth wage revision and thus, 1981 Rules do not oblige management or school to pay as per VIth wage revision. Hence, none of the prayers in the petition can be granted and writ petition must be dismissed. Shri Bhangde submits that this renders the other arguments of ::: Downloaded on - 02/07/2014 23:50:26 ::: WP No.1949/2012 11 Advocate Deo merely academic. He, however, without prejudice to this legal position, proceeds to deal with other contentions of the petitioner.
9. According to Advocate Bhangde paragraphs 48,72, 73, 82,137,139 and answer to question 5(c) in T.M.A. Pai Foundation and Ors. vs. State of Karnataka and Ors.(supra) must be read together and it does not support petitioners at all. Same only show that service conditions can not be part of process of recognition or affilation, and conditions of service can be prescribed only if and when government aid is given to a school. Earlier views of Hon'ble Apex Court in Frank Anthony Public School Employees' Assn. v. Union of India and Ahmedabad St. Xavier's College Society v.
State of Gujarat (both supra), are not valid after T.M.A. Pai Foundation and Ors. vs. State of Karnataka and Ors. (supra). Moreover it considers question of payment of that quantum of wages which in industrial / labour laws is identified as living wage and is always in excess of minimum wage.
He relies upon 1969 (1) SCC 266- (Workmen v. Gujarat Electricity Board
- (1969) 1 SCC 266, at page 269), where it is stated that if the claim be for a minimum wage, the employer must pay that wage in order to be allowed to continue the industry; and, in such a case, the capacity of the industry to pay is irrelevant. However, if the industry is already paying the minimum wage, and the claim is for fair wage or living wage, the capacity ::: Downloaded on - 02/07/2014 23:50:26 ::: WP No.1949/2012 12 of the industry to pay is a very important factor and the burden above the minimum wage can only be justifiably imposed, if the industry is capable of meeting that extra burden. He submits that here as per this larger bench of Hon'ble Apex Court, paying capacity is relevant as what is being demanded by the petitioners is either a living wage or fair wage.
10. He submits that P.A. Inamdar vs. State of Maharashtra and Ors. (supra) lays down the general principles without reference to any facts while consideration in T.M.A. Pai Foundation and Ors. vs. State of Karnataka and Ors. (supra) is case specific. In Sindhi Education Society v. Govt. (NCT of Delhi), (supra), the Hon'ble Apex Court does not consider an unaided minority school and paragrph 94 therein shows that law settled therein applies to an aided school only. Satimbla Sharma v. St Paul's Senior Secondary School [supra] considers the controversy in relation to unaided minority school and therefore, clinches the issue. He challeges the bare statement made by the petitioners that this Apex Court ruling is distinguished in three Delhi High Court judgments (supra) and reads out those three judgments to substantiate it. He further contends that in Shivaji Shikshan Prasarak Mandal and Ors. vs. State of Maharashtra and Ors. (supra), arguments were advanced under an impression that Vth wage revision pay-scales apply automatically and no body was alive to the ::: Downloaded on - 02/07/2014 23:50:26 ::: WP No.1949/2012 13 need of amendment to 1981 Rules or its schedule "C". Orders of Hon'ble Apex Court in WP 2460 of 1982 and connected matters dated 11.03.2003 are pressed into service by him to show that though the matters were covered by the judgment in T.M.A. Pai (supra), need of amendment to enactments or rules is recognized therein to bring the same in consonance with T.M.A. Pai (supra). Hon'ble Apex Court has also clarified that as and when any dispute arises, same should be dealt with in appropriate forum in appropriate proceedings. 2013 (4)Mh.L.J. 612 - 2013 (8)LJSOFT 91- (Maharashtra University of Health Sciences, Nashik Vs. Kalicharan s/o Ramdas Tripathi and ors.) is relied upon to urge that such judgment of Hon'ble Apex Court comes into operation automatically. To show the law on the knowledge to State Legislature about existing legal provisions, he draws support from (2010) 10 SCC 744- (Competition Commission of India v. SAIL), AIR 1961 SC 1170- (J.K. Cotton Pinning and Weaving Mills Co. Ltd vrs State Of Uttar Pradesh and Others). (1999) 7 SCC 76- (Gobind Sugar Mills Ltd. v. State of Bihar), (2007) 11 SCC 756- (Ghaziabad Zila Sahkari Bank Ltd. v. Addl. Labour Commr). and 1984 Mh.L.J. 598-1984 (1) LJSOFT 185 - (Kranti-Smrati Adhyapak Vidyalaya, Satara Vs. Ashok Bandopant Lomate and others) , are relied upon to state that MEPS Act, 1977 is special legislation while SS Code is general one and therefore general provision must yield to special enactment.
::: Downloaded on - 02/07/2014 23:50:26 ::: WP No.1949/2012 1411. Advocate Bhangde also relies upon (1993) Suppl. 1 SCC 708- M.G. Pandke v. Municipal Council Hinganghat, Distt. Wardha and 2012 (3) All M.R. 609 [FB] (Shikshan Mandal and Ors. vs. State of Maharashtra) to urge that SS Code does not have statutory force or flavour and hence, 1977 Act prevails over it. Earlier Full Bench reported at 2009 (5) Mh.L.J. 969 [FB] (Shikshan Prasarak Mandal, Pune and Ors. vs. State of Maharashtra) is pressed into service to show that it contains law in cinflict with later 2012 full bench and later full bench failed to note it. He also draws anology from the illustration of certified standing orders to plead that the same lack statutory character and cites (1995) 5 SCC 75- (Rajasthan SRTC v. Krishna Kant). He submits that thus SS Code has to pave way for 1977 Act.
12. Pointing out the Full Bench judgment in 2010 (6) Mh.L.J. 901 (FB)-- 2011 (1) LJSOFT 55 - (Tanaji Madhukar Barbade Vs. State of Maharashtra and ors .) , management and school argue that only Rules ie 1981 Rules can regulate the pay scales and not SS Code. Judgment of Hon'ble Apex Court reported at 2012 (6) SCC 1 (Society for Unaided Private Schools of Rajasthan v. Union of India); dealing with Right of Children to Free and Compulsory Education Act, 2009 with relevant ::: Downloaded on - 02/07/2014 23:50:26 ::: WP No.1949/2012 15 provisions of said 2009 Act are relied upon to urge that any law presribing the pay scales for teachers in employment of respondent School would be void under Article 30 of the Constitution of India. Hence, neither 1977 Act with 1981 Rules nor SS Code can and do apply. It is also stated that SS Code applies to standards Vth to Xth while the respondent no.7 has also got classes from nursery, K.G. I and II and standards I to IV. As these classes are not subject to SS Code, according to him, the adjudication of present controversy by this Court, if favourable to staff, will not benefit the others and will be restricted to teachers engaging classes from standard Vth to Xth.
13. He adds that unsatisfactory financial position of respondent school to shoulder the burden of 6th wage revision is relevant and must be scrutinized as the question is not of minimum wage but of fair wage. Need of construction of new school buildings and fund requirement therefor are also pointed out through reply affidavit. Copies of balance sheet as on 31.3.2012, 31.3.2013 and possible contingent burden in case petition is allowed, for year 2012, is pointed out by Advocate Bhangde to demonstrate absence of paying capacity with employer. He also points out the additional salary or enhanced wages paid and received by most of employees from the month of December, 2013 as per agreement. He concludes by pointing out that Rule 23 of 1981 Rules prohibits tutions and ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 16 still, petitioners, taking advantage of reputation of school and their employment, are earning handsomely by taking private tutions.
Submissions on behalf of Respondent Nos. 1 to 4 :--
14. AGP Shri Patel submits that as per Section 4(3) of 1977 Act, it was for respondent nos. 5 and 7 to disclose basis on which salary is being paid to its employees like petitioners. Enhanced salary may call for hike in tution fees and hence, representative of parents should have been joined as party respondent to this writ petition. Petitioners also never disclosed the receipt or otherwise of Vth wage revision. Hence, it will be in the interest of all if the petitioners and management put their case before the Director of Education and a concilliation is attempted.
Reply Submissions of Petitioners : -
15. Advocate Deo states that T.M.A. Pai Foundation and Ors. vs. State of Karnataka and Ors. (supra) approves Frank Anthony Public School Employees' Assn. v. Union of India as also earlier judgment of constitution bench of Hon'ble 9 Judges in case of Ahmedabad St. Xavier's College Society v. State of Gujarat (supra). It permits laying down of service conditions and pay scales of unaided minority schools without impinging upon constitutional right under Article 30. He submits that the ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 17 Minority view in (2012) 6 SCC 1- (Society for Unaided Private Schools of Rajasthan v. Union of India) does not speak about an unaided minority institution and as per majority view therein, Section 23 of 2009 Act applies.
16. Question of status of SS Code as statutory or otherwise never arose before the Full Bench in Shikshan Prasarak Mandal, Pune and Ors.
vs. State of Maharashtra while it arose specifically and called for answer by later Full Bench in Shikshan Mandal and Ors. vs. State of Maharashtra. He also states that semantics should not matter, as SS Code is held enforceable through a writ. Rule 4(f) of 1981 Rules casts obligation on headmaster to follow SS Code. Rule 4(2)(d) also gives recognition to SS Code. Rules 4.1, 5.1, 5.2, 7.1 to 7.5 of SS Code are also relied upon by him. Law puts duty on Director of Education to take note of such breaches and to initiate necessary coercive steps as per law. Pleadings in writ petition pin-point injustice and the grievance of petitioners is correctly understood by the management and school. Thus, the respondents have not been put to or even plead any prejudice. Prayer clauses in writ petition are read out and by pointing out prayer (h) which requests the Court to grant any other suitable relief, learned Counsel states that this Court is competent to do complete justice between parties and to give suitable relief as deemed just as per law to the petitioners. AIR 1962 SC 1161- (Satya Narain Singh v.
::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 18Distt. Engineer, PWD) and AIR 1977 SC 237 -State of Haryana v.
Haryana Coop. Transport Ltd.= (1977) 1 SCC 271, are relied upon to buttress these submissions.
17. According to him, Tanaji Madhukar Barbade Vs. State of Maharashtra and ors.(supra), is of no use to respondent nos. 5 to 7 here as GR dated 21.05.2010 sought to be executed by these petitioners, has sanction of both 1977 Act and SS Code. Vth wage revision was extended to all other schools on the strength of similar GR. Schedule "C" to 1981 Rules was last amended in 1989 as per IVth wage revision. The law does not require any amendment to said Schedule "C" on every ocassion of wage revision. In any case, as Vth wage resvision was implemented by the executive instructions like GR dated 21.05.2010 only, State is competent to cure such minor technicalities by issuing suitable GR. He therefore seeks relief in terms of prayer clauses in writ petition.
Consideration .
18. In T.M.A. Pai Foundation and Ors. vs. State of Karnataka and Ors. (supra) in para 55, Hon'ble Apex Court observes that while granting recognition to private unaided institution, authority can lay down conditions consistent with requirement to ensure excellence of education.
::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 19Such conditions may be minimum qualification a teacher must posses to safeguard quality of education, the courses of study, curricula and infrastructure. This judgment also shows a finding that essence of a private educational institution is the autonomy it must have in the management and administration. This judgment also notes the inherent difference in the administration of private unaided institutions and the government-aided institutions. Hon'ble Apex Court points out that in the latter case, the Government will have greater say in the administration, including admissions and fixing of fees, while in the case of a private unaided institutions, maximum autonomy in the day-to-day administration has to be with the private unaided institutions. Hon'ble Apex Court holds that bureaucratic or governmental interference in the administration of such an institution will undermine its independence. Hon'ble Apex Court declares that-
" While an educational institution is not a business, in order to examine the degree of independence that can be given to a recognized educational institution, like any private entity that does not seek aid or assistance from the Government, and that exists by virtue of the funds generated by it, including its loans or borrowings, it is important to note that the essential ingredients of the management of the private institution include the recruiting students and staff, and the ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 20 quantum of fee that is to be charged."
This judgment in para 72-73 also shows consequential enhancement in government's powers in case of private aided non-minority institution.
Hon'ble Apex Court observes --
"In many States, there are various statutory provisions to regulate the functioning of such educational institutions where the States give, as a grant or aid, a substantial proportion of the revenue expenditure including salary, pay and allowances of teaching and non-teaching staff. It would be its responsibility to ensure that the teachers working in those institutions are governed by proper service conditions. The State, in the case of such aided institutions, has ample power to regulate the method of selection and appointment of teachers after prescribing requisite qualifications for the same. Ever since In Re, Kerala Education Bill, 19572 this Court has upheld, in the case of aided institutions, those regulations that served the interests of students and teachers. Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institutions. In other words, rules and regulations that promote good administration and prevent maladministration can be formulated so as to promote the efficiency of teachers, ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 21 discipline and fairness in administration and to preserve harmony among affiliated institutions. At the same time it has to be ensured that even an aided institution does not become a government-owned and controlled institution. Normally, the aid that is granted is relatable to the pay and allowances of the teaching staff. In addition, the management of the private aided institutions has to incur revenue and capital expenses. Such aided institutions cannot obtain that extent of autonomy in relation to management and administration as would be available to a private unaided institution, but at the same time, it cannot also be treated as an educational institution departmentally run by Government or as a wholly owned and controlled government institution and interfere with constitution of the governing bodies or thrusting the staff without reference to management. Other aided institutions
73. There are a large number of educational institutions, like schools and non-professional colleges, which cannot operate without the support of aid from the State. Although these institutions may have been established by philanthropists or other public-spirited persons, it becomes necessary, in order to provide inexpensive education to the students, to seek aid from the State. In such cases, as those of the professional aided institutions referred to hereinabove, the ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 22 Government would be entitled to make regulations relating to the terms and conditions of employment of the teaching and non-teaching staff whenever the aid for the posts is given by the State as well as admission procedures. Such rules and regulations can also provide for the reasons and the manner in which a teacher or any other member of the staff can be removed. In other words, the autonomy of a private aided institution would be less than that of an unaided institution."
19. We have referred to these paragraphs as Shri Bhangade, learned Senior Advocate for respondent has relied upon them to urge that when the school is run by minority and not receiving grants, answer given to question 5(C) in para 161 can not be construed as enabling the State Government to precribe the pay scales. That answer which is relied upon by the petitioners reads :--
"-161 : -- ...... ---- ....... -------- ----- Question 5. (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees, etc. ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 23 would interfere with the right of administration of minorities?
Answer- So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.
For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a judicial officer of the rank of District Judge. The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 24 principal of any educational institution.
Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative control of the management over the staff.
Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee."
Earlier paragraphs relied upon by the Senior Advocate for respondent obviously do not militate with the emphatic answer given by the Hon'ble Apex Court in para 161. Respondent minority institution has placed before us its balance sheets or profit-loss accounts to point out absence of paying capacity in them and we may have a look into the same at appropraite juncture.
20. In (2006) 7 Supreme 300 (Sushmita Basu and Ors. vs. Ballygunge Siksha Samiti and Ors.), school of Respondent no.1 was not receiving any aid from the Government, but, got from it only the dearness allowance component of the approved teachers working in the school. The recommendations of the First Pay Commission and of the Second Pay Commission, though they did not cover private unaided schools, were ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 25 implemented by that school as part of the agreement with the teachers. The management also implemented the Third Pay Commission in the sense that the salaries of the teachers were hiked in terms of the said report, but it refused to give retrospective effect to the enhancement with effect from 1-1- 1988. Complaining about the refusal of the management to implement the recommendations of the Third Pay Commission with effect from 1-1-1988 retrospectively, the teachers went to court. It was admitted that there was no statutory provision, rule or binding order, but teachers referred to the decision of Hon'ble Apex Court in Frank Anthony Public School Employees' Assn. v. Union of India1 and submitted that the principle recognized therein should be applied to teachers like the appellants as well. Appellant Teachers also conceded that there was no provision corresponding to Section 10 of the Delhi School Education Act, 1973 in the Bengal Act. But the submission was that the appellants were approved teachers and they were also doing the same work as teachers of government schools and aided schools and in the circumstances "equal pay for equal work" principle be directed to be implemented and in that context the appellants could be granted relief.
Respondent school pointed out that it had also implemented the recommendations of the Fourth and Fifth Pay Commissions, though it was not bound to do so and there could be no grievance that teachers are being paid salaries that are not comparable with that of the teachers of ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 26 government schools and aided schools. With reference to the pleadings, it was pointed out by it that the teachers of the first respondent institution, in fact, were enjoying some additional benefits not available to teachers of government institutions and aided institutions. It was also pointed out that out of the very many teachers in the school, only three of them, the appellants before Supreme Court had refused to enter into an agreement with the first respondent and as observed by Supreme Court in Reserve Bank of India v. C.N. Sahasranaman2 the fact that a few are not satisfied, was no ground for interference by court or for grant of relief in their favour when by and large the position adopted by the institution appeared to be fair and just and was accepted by all other teachers. Hon'ble Apex Court found merit in these submissions of the respondents. In the absence of a statutory provision, Hon'ble Apex Court did not agree with the appellants that interference by the High Court under Article 226 of the Constitution was warranted in the case. It concluded that there had been just treatment of the teachers by the first respondent institution and there was no reason to interfere even on the ground that the appellants were being treated unfairly by their employer, the educational institution, or on the basis that it was a case in which the conscience of the court should be shocked, compelling it to enter the arena to afford relief to the teachers.
::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 2721. In AIR 1987 SC 311- (1986) 4 SCC 707 (Frank Anthony Public School Employees' Assn. v. Union of India), earlier judgment of constitution bench of Hon'ble 9 Judges in case of Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717 - AIR 1974 SC 1389 finds consideration. In this 1987 judgment in paras 14 to 16 and 23 it is observed :--
" 14. The principal controversy between the parties centred around Section 10 which requires that "the scales of pay and allowances, medical facilities, pension, gratuity, provident fund, and other prescribed benefits of the employees of the recognised private school shall not be less than those of the corresponding status run by the appropriate authority". The submission on behalf of the respondents was that the right to appoint members of staff being an undoubted right of the management and the right to stipulate their salaries and allowances etc. being part of their right to appoint, such right could not be taken away from the management of a minority institution. The learned Additional Solicitor- General very fairly stated before us that there was no case in which it had been held that the right to pay whatever salaries and allowances they liked and stipulate whatever conditions they liked was part of the right to administer the minority ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 28 institutions under Article 30(1) of the Constitution. On the other hand as we shall immediately point out there are observations to the contrary.
15. In the Nine-Judge Bench case 4 Ray, C.J.
and Palekar, J. as we have already seen, expressed the view that the conditions of employment of teachers was a regulatory measure conducive to uniformity, efficiency and excellence in educational courses and did not violate the fundamental right of the minority institutions under Article 30. Jaganmohan Reddy, J. and Alagiriswami, J. who agreed with the conclusions of Ray, C.J. did not say anything expressly about salary, allowances and other conditions of employment of teachers. Khanna, J. expressed the view that to a certain extent the State may also regulate the conditions of employment of teachers and added that it would be permissible to make regulations for ensuring the regular payment of salaries before a particular date of the month. The latter statement of Khanna, J., it was contended for the respondents, limited the extent of the right of the State to regulate the conditions of employment of teachers. We cannot agree with this contention. The statement that the State may make ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 29 regulations for ensuring the regular payment of salaries before a particular date of the month was in addition to what was said earlier that to a certain extent the State may also regulate the conditions of employment of teachers. In fact, while dealing with the question of disciplinary control, Khanna, J. also said that provisions calculated to safeguard the interest of teachers would result in security of the tenure and that would inevitably attract competent persons for the posts of teachers. The same thing may be said about better scales of pay and decent conditions of service. Mathew, J. with whom Chandrachud, J. agreed also indicated that economic regulations, social welfare legislation, wage and hour legislation and similar measures, where the burden was the same as that borne by others would not be considered on abridgement of the right guaranteed by Article 30(1). Thus, we see that most of the learned Judges who constituted the nine-Judge Bench were inclined to the view that prescription of conditions of service which would have the effect of attracting better and competent teachers would not be considered violative of the fundamental right guaranteed by Article 30(1) of the Constitution. That would rightly be so because the mere prescription of ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 30 scales of pay and other conditions of service would not jeopardise the right of the management of minority institutions to appoint teachers of their choice.
16. The excellence of the instruction provided by an institution would depend directly on the excellence of the teaching staff, and in turn, that would depend on the quality and the contentment of the teachers. Conditions of service pertaining to minimum qualifications of teachers, their salaries, allowances and other conditions of service which ensure security, contentment and decent living standards to teachers and which will consequently enable them to render better service to the institution and the pupils cannot surely be said to be violative of the fundamental right guaranteed by Article 30(1) of the Constitution.
The management of a minority Educational Institution cannot be permitted under the guise of the fundamental right guaranteed by Article 30(1) of the Constitution, to oppress or exploit its employees any more than any other private employee. Oppression or exploitation of the teaching staff of an educational institution is bound to lead, inevitably, to discontent and deterioration of the standard of instruction ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 31 imparted in the institution affecting adversely the object of making the institution an effective vehicle of education for the minority community or other persons who resort to it. The management of minority institution cannot complain of invasion of the fundamental right to administer the institution when it denies the members of its staff the opportunity to achieve the very object of Article 30(1) which is to make the institution an effective vehicle of education.
23. We must refer to the submissions 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 ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 32 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."
22. In (2005) 5 Supreme 544-(2005) 6 SCC 537, (P.A. Inamdar vs. State of Maharashtra and Ors.) in para 106, Hon'ble Apex Court observes as under:-- (para 103 of SCC)-
"103. To establish an educational institution is a fundamental right. Several educational institutions have come up. In Kerala Education Bill6 "minority educational institutions"
came to be classified into three categories, namely,
(i) those which do not seek either aid or recognition from the State; (ii) those which want aid; and (iii) those which want only recognition but not aid. It was held that the first category protected by Article ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 33 30(1) can "exercise that right to their hearts' content" unhampered by restrictions. The second category is most significant. Most of the educational institutions would fall in that category as no educational institution can, in modern times, afford to subsist and efficiently function without some State aid. So it is with the third category. An educational institution may survive without aid but would still stand in need of recognition because in the absence of recognition, education imparted therein may not really serve the purpose as for want of recognition the students passing out from such educational institutions may not be entitled to admission in other educational institutions for higher studies and may also not be eligible for securing jobs. Once an educational institution is granted aid or aspires for recognition, the State may grant aid or recognition accompanied by certain restrictions or conditions which must be followed as essential to the grant of such aid or recognition.
This Court clarified in Kerala Education Bill6 that "the right to establish and administer educational institutions" conferred by Article 30(1) does not include the right to maladminister, and that is very obvious. Merely because an educational institution belongs to a minority it cannot ask for aid or recognition though running in unhealthy ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 34 surroundings, without any competent teachers and which does not maintain even a fair standard of teaching or which teaches matters subversive to the welfare of the scholars. Therefore, the State may prescribe reasonable regulations to ensure the excellence of the educational institutions to be granted aid or to be recognised. To wit, it is open to the State to lay down conditions for recognition such as, an institution must have a particular amount of funds or properties or number of students or standard of education and so on. The dividing line is that in the name of laying down conditions for aid or recognition the State cannot directly or indirectly defeat the very protection conferred by Article 30(1) on the minority to establish and administer educational institutions. Dealing with the third category of institutions, which seek only recognition but not aid, Their Lordships held that "the right to establish and administer educational institutions of their choice" must mean the right to establish real institutions which will effectively serve the needs of the community and scholars who resort to these educational institutions. The dividing line between how far the regulation would remain within the constitutional limits and when the regulations would cross the limits and be vulnerable is fine yet perceptible and has been demonstrated in ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 35 several judicial pronouncements which can be cited as illustrations. They have been dealt with meticulous precision coupled with brevity by S.B. Sinha, J. in his opinion in Islamic Academy2. The considerations for granting recognition to a minority educational institution and casting accompanying regulations would be similar as applicable to a non-minority institution subject to two overriding considerations: (i) the recognition is not denied solely on the ground of the educational institution being one belonging to minority, and (ii) the regulation is neither aimed at nor has the effect of depriving the institution of its minority status."
23. The Hon'ble Apex Court observes in Cochin University of Science and Technology v. Thomas P. John, (2008) 8 SCC 82, at page 89 :
"13. We have also gone through the judgments cited 1 several by the learned counsel. In T.M.A. Pai case questions as to the rights of minority institutions to manage their own affairs were taken up, one of the significant questions being the right to determine and levy fee. Question 5(c) and its answer are reproduced below: (SCC pp. 589-90, para 161) ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 36 "161. ... Q. 5. (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and Principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities?
A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board have to be complied with, but in the matter of day-
to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.
For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 37 mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a judicial officer of the rank of District Judge. The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a Principal of any educational institution.ig Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative control of the management over the staff.
Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee."
24. Similarly, the Hon'ble Apex Court in Mumtaz Post Graduate Degree College v. University of Lucknow - (2009) 2 SCC 630 , observes that :
"27. Our attention has also been drawn to a recent decision of this Court in Malankara Syrian Catholic College v. T. Jose10 wherein it was held: (T. Jose ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 38 case10, SCC pp. 399-400, paras 19-21) "19. The general principles relating to establishment and administration of educational institution by minorities may be summarised thus:
(i)-(ii) * * *
(iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).
(iv)-(v) * * *
20. Aided institutions give instruction either in secular education or professional education. Religious education is barred in educational institutions ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 39 maintained out of the State funds. These aided educational minority institutions providing secular education or professional education should necessarily have standards comparable with non- minority educational institutions. Such standards can be attained and maintained only by having well- qualified professional teachers. An institution can have the services of good qualified professional teachers only if the conditions of service ensure security, contentment and decent living standards.
That is why the State can regulate the service conditions of the employees of the minority educational institutions to ensure quality of education. Consequently, any law intended to regulate the service conditions of employees of educational institutions will apply to minority institutions also, provided that such law does not interfere with the overall administrative control of the management over the staff."
25. Sindhi Education Society v. Govt. (NCT of Delhi),(supra), according to the respondent nos. 5 to 7 deals with only aided schools and hence, law therein is not relevant in present challenge. We are unable to agree with this stand. Portion highlighted below from paragraphs 92 to 94 show that the Hon'ble Apex Court was considering minority institutions, whether aided or unaided. This judgment does not show that providing for ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 40 pay scales in any way encroaches upon the right of minority and it also does not change the law as settled earlier in this regard. Hon'ble Apex Court observes :
" 92. The right under clause (1) of Article 30 is not absolute but subject to reasonable restrictions which, inter alia, may be framed having regard to the public interest and national interest of the country. Regulation can also be framed to prevent maladministration as well as for laying down standards of education, teaching, maintenance of discipline, public order, health, morality, etc. It is also well settled that a minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and, at the same time, would be required to admit a reasonable extent of non- minority students, to the extent, that the right in Article 30(1) is not substantially impaired and further, the citizen's right under Article 29(2) is not infringed.
93. A minority institution may have its own procedure and method of admission as well as the selection of students but it has to be a fair and transparent method. The State has the power to ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 41 frame regulations which are reasonable and do not impinge upon the basic character of the minority institutions. This Court, in some of the decisions, has taken the view that the width of the rights and limitations thereof of even unaided institutions, whether run by a majority or by a minority, must conform to the maintenance of excellence and with a view to achieve the said goal indisputably, the regulations can be made by the State.
94. It is also equally true that the right to administer does not amount to the right to maladminister and the right is not free from regulations. The regulatory measures are necessary for ensuring orderly, efficient and sound administration. The regulatory measures can be laid down by the State in the administration of minority institutions. The right of the State is to be exercised primarily to prevent maladministration and such regulations are permissible regulations. These regulations could relate to guidelines for the efficiency and excellence of educational standards, ensuring the security of the services of the teachers or other employees, framing rules and regulations governing the conditions of service of teachers and employees and their pay and allowances and prescribing course of study or syllabi of the nature of books, etc. Some of the impermissible regulations ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 42 are refusal to affiliation without sufficient reasons, such conditions as would completely destroy the autonomous status of the educational institution, by introduction of outside authority either directly or through its nominees in the governing body or the managing committee of a minority institution to conduct its affairs, etc. These have been illustrated by this Court in State of Kerala v. Very Rev. Mother Provincial26, All Saints High School v. Govt. of A.P.20 and T.M.A. Pai case8."
26. After perusal of these cases we find that any law intended to regulate the service conditions of employees of aided educational institutions equally applies to minority aided or unaided institutions also, provided that such law does not interfere with the overall administrative control of the management over the staff. Law or Rules prescribing the service conditions or their pay scales are only regulatory in nature and do not impinge upon the basic character of the minority institutions. Except for urging the inability to pay, the respondents have not shown how payment of revised wages prejudices its basic nature. Financial problems is also found not a valid defence to deny fair treatment to the staff in paragraph 23 of Frank Anthony Public School Employees' Assn. v. Union of India (supra) by the Hon'ble Apex Court.
::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 4327. In Satimbla Sharma v. St Paul's Senior Secondary School, (2011) 13 SCC 760, at page 768, Hon'ble Apex Court observes :
"23. We also do not think that the Court could issue a mandamus to a private unaided school to pay the salary and allowances equal to the salary and allowances payable to teachers of government schools or government-aided schools. This is because the salary and allowances of teachers of a private unaided school is a matter of contract between the school and the teacher and is not within the domain of public law.
24. In Sushmita Basu v. Ballygunge Siksha Samity 7 the teachers of a recognised private school known as Ballygunge Siksha Sadan in Calcutta filed a writ petition in the High Court of Calcutta praying for issuance of writ of mandamus directing the authorities of the school to fix the salary of teaching and non-teaching staff of the school and to remove all the anomalies in the scales of pay as recommended by the Third Pay Commission as extended to other government-aided schools and government schools and this Court held that in the absence of statutory provision no such direction can be issued by the High Court under Article 226 of the ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 44 Constitution.
25. Where a statutory provision casts a duty on a private unaided school to pay the same salary and allowances to its teachers as are being paid to teachers of government-aided schools, then a writ of mandamus to the school could be issued to enforce such statutory duty. But in the present case, there was no statutory provision requiring a private unaided school to pay to its teachers the same salary and allowances as were payable to teachers of government schools and therefore a mandamus could not be issued to pay to the teachers of private recognised unaided schools the same salary and allowances as were payable to teachers of government institutions.
26. In K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engg.6, relied upon by the learned counsel for the appellants, executive instructions were issued by the Government that the scales of pay of Laboratory Assistants as non-teaching staff of private colleges shall be on a par with the government employees and this Court held that even though there were no statutory rules, the Laboratory Assistants as non-teaching staff of private college were entitled to the parity of the pay scales as per the executive instructions of the Government and the writ jurisdiction of the High ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 45 Court under Article 226 of the Constitution is wide enough to issue a writ for payment of pay on a par with government employees. In the present case, there are no executive instructions issued by the Government requiring private schools to pay the same salary and allowances to their teachers as are being paid to teachers of government schools or government-aided schools.
27. We cannot also issue a mandamus to Respondents 1 and 2 on the ground that the conditions of provisional affiliation of schools prescribed by the Council for the Indian School Certificate Examinations stipulate in Clause (5)(b) that the salary and allowances and other benefits of the staff of the affiliated school must be comparable to that prescribed by the State Department of Education because such conditions for provisional affiliation are not statutory provisions or executive instructions, which are enforceable in law. Similarly, we cannot issue a mandamus to give effect to the recommendations of the Report of Education Commission 1964-1966 that the scales of pay of school teachers belonging to the same category but working under different managements such as Government, local bodies or private managements should be the same, unless the recommendations are incorporated in an executive ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 46 instruction or a statutory provision. We, therefore, affirm the impugned judgment of the Division Bench of the High Court.
28. We, however, find that the 2009 Act has provisions in Section 23 regarding the qualifications for appointment and terms and conditions of service of teachers and sub-section (3) of Section 23 of the 2009 Act provides that the salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed.
Section 38 of the 2009 Act empowers the appropriate Government to make rules and Section 38(2)(l) of the 2009 Act provides that the appropriate Government, in particular, may make rules prescribing the salary and allowances payable to, and the terms and conditions of service of teachers, under sub-section (3) of Section 23. Section 2(a) defines "appropriate Government" as the State Government within whose territory the school is established.
29. The State of Himachal Pradesh, Respondent 3 in this appeal, is thus empowered to make rules under sub-section (3) of Section 23 read with Section 38(2)(l) of the 2009 Act prescribing the salary and allowances payable to, and the terms and conditions of service of, teachers. Article 39(d) of the Constitution provides that the State shall, in ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 47 particular, direct its policy towards securing that there is equal pay for equal work for both men and women. Respondent 3 should therefore consider making rules under Section 23 read with Section 38(2)(l) of the 2009 Act prescribing the salary and allowances of teachers keeping in mind Article 39(d) of the Constitution as early as possible."
28. Thus this precedent shows that where a statutory provision casts a duty on a private unaided school to pay the same salary and allowances to its teachers as are being paid to teachers of government-aided schools, then a writ of mandamus to the school could be issued to enforce such statutory duty. The writ jurisdiction of the High Court under Article 226 of the Constitution is wide enough to issue a writ for payment of pay on a par with government employees. But in the case before the Apex Court, there were no executive instructions issued by the Government requiring private schools to pay the same salary and allowances to their teachers as are being paid to teachers of government schools or government-aided schools. But then it can not be forgotten that Hon'ble Court also directed respondent no.3 State of Himachal Pradesh to consider making rules under Section 23 read with Section 38(2)(l) of the 2009 Act prescribing the salary and allowances of teachers keeping in mind Article 39(d) of the Constitution as early as possible. P.A. Inamdar vs. State of Maharashtra and Ors. (supra) ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 48 shows that once an educational institution seeks recognition, the State may grant recognition accompanied by certain restrictions or conditions which must be followed as essential to its grant. Thus this judgment does not help the minority institution in any way. More over, here Section 4 of 1977 Act read with Rule 6 of 1981 Rules also do not make any distinction between aided and un-aided schools or non-minority and minority schools qua scales of pay mentioned in Schedule "C" of the 1981 Rules.
29. Whether State of Maharashtra can regulate service conditions like pay scale or salary of the staff of Respondent unaided minority school?
Respondent Management itself has relied upon the SOR of MEPS Act. SOR shows need felt by the State Legislature to give statutory basis to various executive orders regulating the service conditions. Hon'ble Apex Court in M.G. Pandke vs. Municipal Council, Highanghat -- 1993 Suppl. (1) SCC 708 in para 7,8 and 13 observes as under :-- "SS code not itself statutory but in nature of executive instructions". Full Bench of this Court in 2012 (3) All MR 609 [FB] (Shikshan Mandal and Ors. vs. State of Maharashtra) in paras 3 and 4 has considered this judgment of Hon'ble Apex Court and then in para 5, the affidavit filed by principal secretary of State of Maharashtra which by placing reliance upon the said judgment stated that provisions in SS code have statutory status. In para 6, this Full Bench ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 49 accepted this position and noted that even according to State of Maharashtra, said provisions have stattutory status. In 2009 (5) Mh.L.J. 969 [FB] (Shikshan Prasarak Mandal, Pune and Ors. vs. State of Maharashtra) in paras 9 and 10 has noted that is not a statutory document but it is in the nature of executive directions or guidelines and non-
stattuory in character.
30. In (2005) 13 SCC 407- (Shivaji Shikshan Prasarak Mandal and Ors. vs. State of Maharashtra and Ors.) the appellant before the Hon'ble Apex Court Shivaji Shikshan Prasarak Mandal was a public charitable trust registered under the Bombay Public Trusts Act. The said Trust is running thirteen schools and Respondent nos. 4 to 17 in said appeals were the teachers working in one of the unaided schools- a residential public school with lodging and boarding facilities at Ahmed-Nagar district run by the appellant Trust. It was started to cater to the needs of the children of sugarcane factory workers and farmers. Respondent nos. 4 to 17 filed Writ Petition No. 767 of 2000 before the High Court of Bombay claiming that they were entitled to the benefit of revision of pay scales under the relevant rules on the basis of the recommendations of the Fifth Pay Commission. The appellant management contended that they were not liable to pay the salary and allowances prescribed under the Fifth Pay Commission. Hon'ble ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 50 Apex Court noticed that under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, as per Section 3(1) the provisions of the Act apply to all private schools, whether receiving any grant-in-aid from the State Government or not. Section 16 stated that the State Government may by notification in the Official Gazette, make rules for carrying out the purposes of this Act and Section 16(2)(a) says that the State Government may by the Official Gazette prescribe minimum qualification for recruitment of employees of private schools (including its procedure); (b) their scales of pay and allowances. There was no dispute that these provisions of the Regulation Act are applicable to the appellant school. Supreme Court held that the Division Bench of the High Court was justified in holding that the appellant school was liable to pay the salary and allowances on the basis of the Fifth Pay Commission recommendations and are bound by MEPS Act. Though this judgment does not consider the impact of minority nature, it definitely declares that receipt of grants has no relevance in so far as application of MEPS Act/Rules or pay structure prescribed thereunder. As there can not be different yard-sticks for minority and non-minority, scales of pay prescribed in Schedule "C" of 1981 Rules are available to petitioners also.
31. In para 23 of Frank Anthony Public School Employees' Assn. v.
::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 51Union of India (supra) Hon'ble Apex Court observes that the very contribution made by the teachers to earn the high reputation for the institution that it enjoys should inspire the management to adopt at least the same scales of pay as the other institutions. Regarding the fear that the institution may have to be closed down, which respondent no. 7 has reiterated before us, the Hon'ble Apex Court expressed that the management would do nothing to the nose to spite the face, merely to "put the teachers in their proper place". Obervations in P.A. Inamdar vs. State of Maharashtra and Ors. (supra) show that once an educational institution is granted aid or aspires for recognition, the State may grant aid or recognition accompanied by certain restrictions or conditions which must be followed as essential to the grant of such aid or recognition. The considerations for granting recognition to a minority educational institution and casting accompanying regulations would be similar as applicable to a non-minority institution subject to two overriding considerations: (i) the recognition is not denied solely on the ground of the educational institution being one belonging to minority, and (ii) the regulation is neither aimed at nor has the effect of depriving the institution of its minority status. In Sushmita Basu and Ors. vs. Ballygunge Siksha Samiti and Ors. (supra), Hon'ble Apex Court has looked into various factors like absence of statutory provision, extensions of various pay revisions voluntorily by management, ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 52 acceptance thereof by the majority of staff, some other perks not available in other institutions, quantum of wages etc. Here, we get the order of State Government granting recognition to the respondent minority school. Terms and conditions thereof are binding upon the management and meant for welfare of employees. Full Bench of this Court in Shikshan Prasarak Mandal, Pune and Ors. vs. State of Maharashtra (supra), in paras 9 and 10 notes that SS code is not a statutory document but it is in the nature of executive directions or guidelines and non-stattuory in character. But then the order granting recognition is a basic document which brings into existence the school for respondent minority institution as also for petitioners. It is this recognition which can be cancelled if respondent nos. 5 to 7 violate these terms and conditions. Construing said permission in the backdrop of SS code and various sections in 1977 Act is essential to comprehend its legal properties. This exercise is also called for to weigh the defence that after 1977 Act / 1981 Rules, the SS code stands repealled.
Here, the respondents do not dispute applicability of 1977 Act and 1981 Rules.
32. Order dated 17.08.1991 issued by the respondent no.1 State Government granting permission to respondent no.5 to establish respondent no. 7 School in which the petitioners before us work is not in dispute. By ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 53 said document permission has been given to several primary schools including respondent no. 7 to start from first standard in June 1991 on "permanent no-grant basis" i.e. as unaided schools as a "special case" subject to said schools fulfilling the terms and conditions stipulated therein.
Condition no. 2 therein, amongst other things, obliges the respondent management to pay wages and allowances to teachers like petitioners at rates stipulated by the State Government. Rule 3.1 of SS Code requires the management permitted to open new school to apply in duplicate for recognition of the school to the Deputy Director through Education Officer in form given in appendix two. Item 7 therein seeks information about pay of the staff members, their scales of pay and a copy in support is required to be submitted. Rule 3.2 stipulates the conditions which must be satisfied while seeking recognition. As per its sub-rule (9), the pay scales, allowances and conditions of service of staff and amenities provided should be according to instructions issued by the "Department" from time to time or management has to undertake to adopt the rates of fees and the pay scales and allowances laid down and provide necessary amenities within time specified by the "Department". Chapter 1 of SS Code which contains definitions in its clause (10) states that "Department" means the Department dealing with Education in Mantralaya or the Directorate, as the case may be. Thus, the very first order giving birth to respondent no.7 ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 54 School or the procedure to be gone through thereafter to give effect to it or to instill life therein, all show an acceptance of the obligation to pay the wages in scales, allowances according to instructions issued by the "Department" from time to time. Rule 3.3(i) of SS Code governs the management of a school not in receipt of any grant in aid which fails to abide by the Rules or Orders of the Department already in force or issued from time to time or which fails to set right the any irregularity by them, within stipulated period in spite of a specific warning to do so. Such management has to deposit with State Government such amount as may be prescribed by the Director with due regard to the merit of the case. Said deposit is liable to be forfeited in part or full, if there is no satisfactory compliance under Rule 3.3(ii). Rule 3.3(iii) enables the Director to ask for fresh deposit or larger deposit or to make up for forfeited amount after such action. Rule 3.3(iv) is about withdrawal of recognition if management is found to persist in its defaults. The liability to pay as per the instructions of State Government issued from time to time is therefore an obligation inherited by the respondent no.7.
33. Now question is whether such an obligation due to executive instructions or SS Code continue after coming into force of 1977 Act and 1981 Rules? Admittedly, 1981 Rules i.e. Rule 4 or Schedule "C" with it are ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 55 not amended after 1989 to incorporate revised pay scales as per Vth or VIth pay revision reports. The State Government has however disbursed salary grants to private aided schools as per these revisions. Thus, no prejudice is suffered by any school receiving grant in aid. Full Bench judgment in case of Tanaji Madhukar Barbade Vs. State of Maharashtra and ors.,(supra), after perusal of the provisions of 1977 Act held that the vacancy in private school is to be filled in the manner "prescribed" and the said term "prescribed is defined by Section 2(17) to mean prescribed by rules.
Section 16 of the Act contains rule making power of the State Government and Section 16 (2)(d) envisaged Rules on the other conditions of service of employees including leave, superannuation, re-employment and promotion;" Full Bench found that it ruled out the possibility of a provision being made in relation to promotion in a private school by a Government Resolution. It noted settled principal of law that when a thing is permitted to be done in a particular manner, it can be done only in that manner and all other modes of doing it are prohibited by necessary implications. When in exercise of this rule making power, the State Government has framed rules which make provision for recruitment in private school and also make provision for filling in certain posts by promotion, the Government Resolution dated 15th April, 1991 does not apply to private school and can not govern the promotions therein.
::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 5634. Two precedents relied upon by Advocate Deo need mention here.
In Satya Narain Singh v. Distt. Engineer, PWD, (supra), the petitioner confined himself at the stage of arguments in the High Court to the relief of abatement because of change of circumstances which took place between the date of filing his petition and its hearing. Hon Apex Court found that he did so evidently upon a misunderstanding of the legal position with regard to the scope of the notification of 16-3-1925. However, the appellant raised an alternative contention in his statement of the case to the effect that the roadways buses carrying the passengers were used by the Government for carrying on a commercial undertaking and that; therefore, they do not come within the exemption made by the notification of the year 1925. In view of this and of the fact that the petition contained a prayer for grant of "other relief" has not been amended and is thus in its original form, Hon'ble Apex Court saw no difficulty in granting appropriate relief to the appellant. Thus, though the petition was not suitably amended due to subequent event, as necessary facts and grievance were already pleaded and a general or residuary prayer was made, Hon'ble Apex Court took its coginzance. In State of Haryana v. Haryana Coop. Transport Ltd., (supra), Hon'ble Apex Court holds that to strike down usurpation of office is the function and duty of High Courts in the exercise of their constitutional powers under ::: Downloaded on - 02/07/2014 23:50:27 ::: WP No.1949/2012 57 Articles 226 and 227. The mere circumstance that the first respondent did not in so many words ask for the writ of quo warranto could not justify the argument that the appointment was being challenged collaterally in a proceeding taken to challenge the award. Considering the averments in the writ petition,Hon'ble Apex Court holds that the main and real attack on the award was the ineligibility of Shri Gupta to occupy the post of a Judge of the Labour Court, in the discharge of whose functions the award was rendered by him. The relief of certiorari asked for by the writ petition was found inappropriate but then by clause (c) of para 16, the High Court was invited to issue such other suitable writ, order or direction as it deemed fit and proper in the circumstances of the case. Hon'ble Court states that there is no magic in the use of such prayer as a formula. The facts necessary for challenging Shri Gupta's appointment were stated clearly in the writ petition and the challenge to his appointment was expressly made on the ground that he was not qualified to hold the post of a Judge of the Labour Court.
35. Thus when the respondents in this Court are in position to understand the grievance made and meet it effectively, the technical objections like absence of an express plea can not result in denial of relief, if it is otherwise open and available under law. Arguments of the respondents ::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 58 noted by us supra as also their reply on affidavit, does not indicate denial of an effective opportunity to defend to the respondents. Respondent nos. 5 to 7 have also nowhere argued that a particular plea open in defence could not be argued or then, some material could not be produced or presented by them due to omission of petitioners to refer to SS Code in writ petition.
Though, these respondents have advanced various arguments in the alternative, that by itself is not an indication of any prejudice. On the contrary, it shows how liberty to defend is effectively utilized. Judgment of Hon'ble Apex Court in Madras Metropolitan Water Supply and Sewerage Board v. R. Rajan, (supra) does not enable the party like these respondents with complete knowledge of challenge which has not suffered any prejudice, to take such technical stand in a bid to avoid the scrutiny of its action in writ jurisdiction. Moreover, here these respondents have also urged alternatively that SS Code has expired after coming into force of 1977 Act. This by itself negates possibility of any prejudice to the said respondents.
36. Here, it will be proper to consider the relevant provisions, both of SS Code and of 1977 Act. SS Code, in chapter I, Rule 1 defines School to mean a secondary or higher secondary school. Rule 4 defines High School to mean a School which prepares students for Secondary School Certificate ::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 59 exam conducted at the end of Xth standard. Such school may also impart instructions from standard Vth onwards. For present purposes, it is sufficient to note that it does not include a primary school. Pay scales of teaching and non-teaching staff are regulated by Rule 68.5 of its Chapter III, Section II which states that the same have to be as laid down by the State Government from time to time. As per this rule, pay scales applicable to all categories of teachers with effect from 01.04.1976 are given in Appendix Fifteen. Thus, this appendix does not point out pay-scales for non-
teaching staff. Thus, SS Code does not emanate from state legislature as a legislation and does not deal with the primary schools or staff thereof. As against this 1977 Act or Act III of 1978, in Section 2(19) defines primary school to mean a school in which primary education is imparted. Section 2(18) defines primary education to mean education imparted in such subjects and upto such standards as may be determined by the State Government from time to time, located either in a primary or secondary school. Section 2 (16) defines Pre-school center to mean an institution by whatever name called providing education to children between three to six years. Section 2 (20) defines private school to mean a recognized school established by a management other than a local authority or the Government. Section 2(21) defines recognized to mean recognized by the Director, the Divisional Board or the State Board, or by any officer ::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 60 authorised by him or any such board. Section 2 (24) defines School to mean primary school, secondary school, higher secondary school, junior college or any other institution by whatever name called. Section 2(17) explains "prescribe" to mean as prescribed by rules while Section 2 (23) defines "Rules" to mean rules as made by the State Government under 1977 Act.
Section 3(1) is the important provision through which the State Legislature pronounces that provisions of 1977 Act apply to all Schools within the State whether receiving grant in aid from State or not. Section 3 (2) specifically stipulates that notwithstanding anything in said sub-section (1), the provisions of 1977 Act do not apply to recruitment of the Head of a minority school and any other person not exceeding three, who are employed in such school and whose names are notified by the management to the Director or the Deputy Director for said purpose. Thus limited exemption given to minority is expressly stated by the Legislature itself implying thereby that the other provisions of 1977 Act or 1981 Rules do apply to even un-aided minority schools. Section 2(13) defines minority school to mean a school established and administered by the minority having right to do so under Art. 30 (1) of the Constitution of India.
Respondent no.7 in which petitioners are working happens to be such a minority school is the fact not in dispute. It is also not in dispute that neither the 1977 Act nor 1981 Rules framed thereunder contain any ::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 61 provision or procedure for granting permission to open the school or for recognising / de-recognising it, for sanctioning and regulating the government aid or grants to such school and for approving the appointments made or services of teaching/non-teaching staff for their admissibility to receipt of wages through salary grants from the State Government. Section 4 of 1977 Act deals with terms and conditions of service of employees of private schools.
37. Relevant part of said Section 4 of 1977 Act reads as under :--
"4(1) : Subject to the provisions of this Section, the State Government may make Rules providing for the minimum qualification for recruitment (including its procedure), duties, pay, allowances, post retirement of other benefits and other conditions of service of employees of Private Schools and for reservation of adequate number of posts for Members of the Backward Classes :
Provided that, neither the pay nor the rights in respect of leave of absence, age of retirement and post retirement benefits and other monetary benefits of an employee in the employment of an existing Private School on the appointed date shall be varied to the disadvantage of such employee by any such Rules."::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 62
Sub-section (3) contemplates a situation in which the existing pay scales and allowances or other benefits of the employees of a private school are less favourable than as provided in 1981 Rules. The Director, in such an eventuality, can call upon the management to bring it to the level as prescribed in Rules. He can specify time-limit within which compliance is to be made and extend it also. Failure to comply "may" lead to withdrawal of recognition to the School in manner as provided in sub-section (4). This "recognition" to be withdrawn is under SS Code only.
38. Section 16 of 1977 Act is the Rule making power of the State Government. It reads :--
"S.16. Rules : (1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :
(a) the minimum qualifications for recruitment of employees of private schools (including its procedure);
(b) their scales of pay and allowances;
(c) their post-retirement and other benefits;
(d) the other conditions of service of such employees ::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 63 including leave, superannuation, re-employment and promotion;
(e) the duties of such employees and Code of Conduct and disciplinary matters;
(f) the manner of conducting inquiries;
(g) any other matter which is required to be or may be prescribed.
(2A) The power to make rules under clauses (a) to
(d) conferred by sub-section (2) shall include the power to give retrospective effect to the rules or any of them but no retrospective effect shall be given to any rule so as to prejudicially affect the interest of any person to whom such rule may be applicable. (3) All rules made under this Act shall be subject to the condition of previous publication."
Sub-section (4) of Section 16 mandates that every such rule shall be laid , as soon as may be, after it is made , before each house of State Legislature for a total period of thirty days while it is in session. Both houses have the power to either agree to modify or annul the Rules so made. We are not concerned with the niceties or further details of this sub-section. What is important to note is the power with representative of people to let the "Rule" operate as framed or to modify it or then to annul it. Implication flowing from the words "the condition of previous publication." shall be considered little later.
::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 6439. At this stage, the relevant rule ie rule 7 of 1981 Rules needs to be perused. Said Rule is as under :--
"7. Scales of pay and allowances --
(i) The scales of pay for full time as well as part time Heads, Assistant Heads, Supervisors, Teachers and the non-teaching staff in the primary schools, secondary schools including high schools, Junior College and Junior College of Education shall be as specified in Schedule "C".
(ii) The allowances such as dearness allowance, compensatory local allowance and house rent allowance admissible from time to time at place of duty to the full time employee of a school, shall be payable at the rates and according to such rules as are sanctioned by the Government specifically to the employee of private schools.
(iii) The rate of dearness allowance applicable to part time teaching and non-teaching staff in schools including night schools be such as may from time to time be determined by the Government by general or special order. "
Thus, Rule 7 accords different treatment to pay-scales and allowances. By virtue of its sub-rule (i) above dealing with only "scales of ::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 65 pay", Schedule "C" which specifies only pay-scales for various cadres and not allowances, becomes part of 1981 Rules itself. Legislative scheme allowing an alteration or change in rate of "allowances" like dearness allowance, compensatory local allowance and house rent allowance as per sub-rule (ii) and (iii) above, is not apparently attracted when it comes to scales of pay laid down in Schedule "C". Thus Schedule "C" with pay scales therein forms part of 1981 Rules and new or increased scales of pay can not become part of said schedule or Rule, unless the 1981 Rules are amended by following the procedure of "previous publication".
40. Condition of previous publication in Rule 16(3) above obliges adherence procedure stipulated in Section 24 of the Bombay General Clauses Act. We find it convenient to draw support from 1978 Mh.L.J. 502
- 1977 (1) LJSOFT 142- (Dharamsi Morarji Chemical Co. Ltd., Bombay Vs. Ambernath Nagarpalika Parishad Ambernath and another), where the Division Bench of this Court explains steps to be taken to comply with "previous publication" as under :--
"20. It is not possible for us ------- ........
------------ ............... --------- all rules have to be notified. The rules must be such as they are consistent with the Act and they carry out the ::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 66 purposes of the Act. [See sub-section (2)]. Under subsection (3) the rules made under the Act are subject to the condition of previous publication.
When it is provided that the rules under the Act are subject to previous publication, the procedure which is required to be adopted in such a case is prescribed under section 24 of the Bombay General Clauses Act, 1904.
In brief the procedure is that a draft of the proposed rules is to be published for the information of persons likely to be affected thereby and when the draft is published, along with the draft a notice specifying the date after which the draft will be taken into consideration has to be published and the authority having the power to make the rules is duty bound to consider any objection or suggestions which may be received by it with respect to the draft before the date so specified. Therefore, before any rule could be made as contemplated by the proviso, objections have to be invited to the rules and those objections have to be considered. Then under sub- section (4) the rules have to be placed before each House of the State Legislature and the Legislature has the power to make any modification in the rules. Elaborate procedure is, therefore, prescribed for making the appropriate rules."::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 67
41. We have already seen above the legislative design in Rule 7 of 1981 Rules. State Government has been denied power to vary scales of pay in Schedule "C" through executive fiat. Thus schedule "C" itself being part of 1981 Rules, unless and until the rules are amended by following the process stated in Section 16(3), new pay scales can not be read into and become part of that schedule. So long as private aided schools are concerned, the enhancement of pay does not result in any loss or prejudice to them and as such enhanced wages are paid directly by the State to employees, no cause of action accrues to such schools. Opportunity of raising the objection may be availed only by unaided schools whose budget may be adversely affected by such rise. As the schedule "C" is not amended after 1989, scales of pay prescribed by Vth or VIth wage-revision reports for State Government employees are not part of 1981 Rules and coercive measures stipulated in Rule 6 are not open.
42. Question precisely is whether SS Code or any GR issued thereunder can operate after 1977 Act came into force and whether any such GR/directive can be issued by State Government thereafter invoking any other source of power. Whether 1977 Act with 1981 Rules form a special enactment as against the SS Code is the crux of controversy. Before proceeding to adjudicate upon it, it is worth while to advert to some ::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 68 precedents. Following paragraphs in judgment of Hon'ble Apex Court in Gobind Sugar Mills Ltd. v. State of Bihar,(supra) show the perspective to be adopted :--
"9. It is to be noted here that the incidence of taxation is on the purchase of sugarcane, as in the Finance Act. This section nowhere says that the levy of purchase tax therein is in addition to the levy under the Finance Act. Therefore, it is seen that this Act specifically provides for levy of purchase tax on sugarcane and it is not applicable to levy of purchase tax on any other goods which are otherwise taxable under the Finance Act. The Sugarcane Act also provides for regulation of production, supply and distribution of sugarcane. Thus, it is an enactment which is specifically meant for the control of the activities of production, supply and regulation of sugarcane, including the levy of purchase tax. So far as the activity of levy of purchase tax on sugarcane is concerned, both the Acts, namely, the Finance Act and the Sugarcane Act operate in the same field. Therefore, the Sugarcane Act being a special Act pertaining to all aspects of the control of sugarcane as well as levy of purchase tax, the same will have to be construed as a special enactment with reference to sugarcane.::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 69
10. While determining the question whether a statute is a general or a special one, focus must be on the principal subject-matter coupled with a particular perspective with reference to the intendment of the Act. Keeping in mind this basic principle, we will have to examine the provisions of the two Acts to find out whether it is possible to construe harmoniously the provisions of Section 4 of the Finance Act and Section 49 of the Sugarcane Act. If it is not possible then an effort will have to be made to ascertain whether the legislature had intended to accord the levy on sugarcane a special treatment vis-à-vis the levy of purchase tax on other items, and a further endeavour will have to be made to find out whether Section 49 of the Sugarcane Act excludes the applicability of the levy under Section 4 of the Finance Act. On a perusal of the provisions of the above Acts including the objects of the two Acts, it could be seen that the two enactments in question contemplate levy of purchase tax. While the Finance Act empowers the State to levy all commercial taxes generally, the Sugarcane Act empowers the levy of purchase tax only on sugarcane. In this background, there can be no doubt that the legislature intended to enact a special enactment for the purpose of levy of purchase tax with reference to sugarcane under the ::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 70 Sugarcane Act to the exclusion of such levy under the Finance Act. Once we come to the conclusion that this is the intention of the legislation then the rule "general provision should yield to special provision" is squarely attracted."
Judgment in case of Ghaziabad Zila Sahkari Bank Ltd. v. Addl.
Labour Commr.(supra), reveals similar application of mind :--
"61. The general legal principle in interpretation of statutes is that "the general Act should lead to the special Act". Upon this general principle of law, the intention of the U.P. Legislature is clear, that the special enactment U.P. Cooperative Societies Act, 1965 alone should apply in the matter of employment by cooperative societies to the exclusion of all other labour laws. It is a complete code in itself as regards employment in cooperative societies and its machinery and provisions. The general Act, the U.P. Industrial Disputes Act, 1947 as a whole has and can have no applicability and stands excluded after the enforcement of the U.P. Cooperative Societies Act. This is also clear from necessary implication that the legislature could not have intended head-on conflict and collision ::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 71 between authorities under different Acts.
--------.........---------.
63. Also if we refer to the general principles of statutory interpretation as discussed by G.P. Singh, in his treatise on Principles of Statutory Interpretation, we can observe that, a prior general Act may be affected by a subsequent particular or special Act if the subject-matter of the particular Act prior to its enforcement was being governed by the general provisions of the earlier Act. In such a case the operation of the particular Act may have the effect of partially repealing the general Act, or curtailing its operation, or adding conditions to its operation for the particular cases.
The distinction may be important at times for determining the applicability of those provisions of the General Clauses Act, 1897, (the Interpretation Act, 1889 of UK, now the Interpretation Act, 1978) which apply only in case of repeals."
One can not forget that 1977 Act is the first and only enactment of the State Legislature holding the field while the provisions in SS Code on service conditions may at the most constitute a subordinate statutory provision. Thus the two do not stand on same pedestal to warrant any such comparison and appreciation.
::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 7243. In the light of these judgments of Hon'ble Apex Court, we refer to the Division Bench judgment of this Court in Kranti-Smrati Adhyapak Vidyalaya, Satara Vs. Ashok Bandopant Lomate and others, (supra). The Division Bench finds that by the 1977 Act, the School Code as a whole is not repealed and the right conferred by the SS Code upon the management to file an appeal survived. There the Director of Education had placed reliance on the circular issued by the Government of Maharashtra containing governments view that all such appeals stood terminated in the absence of any statutory provision saving them. Court held that said direction issued by the Government of Maharashtra was a misunderstanding and as the 1977 Act did not repeal the SS Code, the question of saving clause did not arise. By the 1977 Act, certain rights are conferred upon the employees of the private schools and Division Bench states that to that extent, the provisions of the SS Code might stand abrogated. It holds that the provisions on matters not covered by the 1977 Act, but covered under the SS Code cannot be deemed to be repealed even by implication. In the absence of repeal of Rule 77.10 (b) of the SS Code, either expressly or by necessary implication, the right of the employer-
management to file an appeal against the order passed by the Deputy Director is held to survive. We may mention here that till 1987,Section 15 of 1977 Act employed language which envisaged transfer of pending ::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 73 appeals filed by only an employee as per SS Code to the School Tribunal constituted under Section 9 thereof. After this judgment, by Maharashtra Act 30 of 1987 words " or, as the case may be, of management" have been inserted in Section 15 with stipulation that said words would be deemed to be always there. Thus, all appeals pertaining to either removal, otherwise termination, dismissal, reduction in rank or supersession while making an appointment by promotion filed either by the employee or by management and pending before the Director got shifted to the School Tribunal after 1977 Act. Its section 9 expressly restricts the right to approach School Tribunal to an aggrieved employee. Thus intention of State Legislature to bring all disputes on matters provided for in Section 9 before School Tribunal exclusively and to that extent obliterate SS Code, is clearly spelt out. Consideration in Full Bench judgment of this Court in Tanaji Madhukar Barbade Vs. State of Maharashtra and ors.,(supra), is also conducive to same conclusion.
44. When viewed in this backdrop, reference to some provisions in 1977 Act or 1981 Rules by Advocate Deo to urge that same accept entire SS Code to be in vogue, is misconceived. Said provisions nowhere save any stipulation in SS Code inconsistent with 1977 Act and when field pertaining to "service conditions" is found to be fully covered or occupied by legislative ::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 74 enactment, the repeal or an eclipse of such an inconsistent stipulation in a subordinate instrument will have to be presumed. Here, we find that a competent legislation has occupied completely the field of scales of pay of teaching as also non-teaching staff in all private schools vide Section 4 r/w Section 16, Rule 6 and Schedule "C" and the schools/education not subjected to SS Code are also covered in its sweep. As such, the GR dated 21.05.2010 or any other similar circular or decision regarding pay scales not taken in the mode and manner prescribed by 1977 Act or 1981 Rules;
can not be treated as valid and binding on the respondent nos. 5 to 7. In so far as respondent nos. 5 to 7 are concerned, part of their school was only covered under SS Code and primary school was not regulated by it. Also non-teaching staff was left out of order dated 17.08.1991 granting permission to the school of the respondent nos. 5 to 7. Now service conditions of entire staff, teaching and non-teaching either in primary or secondary Schools employed by them are subject matter of only one enactment i.e. 1977 Act. We have already compared relevant provisions of SS Code and 1977 Act or 1981 Rules. Thus, in any case, so far as service conditions are concerned, 1977 Act is the only enactment holding the field while the provisions in SS Code on service conditions do not emanate from the State Legislature. Even if debate about statutory nature or binding force of SS Code is overlooked, 1977 Act with 1981 is more comprehensive. It not ::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 75 only occupies the full field available but is the only mandate from the State Legislature. It is therefore a complete code which regulates the pay scales of petitioners. Hence, scales of pay as mentioned in Schedule "C" must be given to them. But then, any scales of pay not forming part of Schedule "C"
can not be made applicable to petitioners. Hence, only solution in this situation is to amend the scales of pay mentioned in Schedule "C". After such an amendment only, petitioners can aspire for the scales of pay in said schedule. Corrective steps or coercive action also become possible against management only after such amendment to Schedule "C".
45. Reference to Right of Children to free and compulsory education Act,2009 and to judgment by Hon'ble Three Judges of Apex Court in Society for Unaided Private Schools of Rajasthan v. Union of India;
supra need not be delved into in view of the findings already reached by us above. In any case, the latest Constitution Bench judgment of Hon'ble Apex Court does not necesitate an elaborate discussion thereof atleast here. The Constitution Bench of Hon'ble Apex Court has in its reportable judgment dated 06.05.2014 in W.P. (C) 416 of 2012 , 152 of 2013, 60 of 2014 etc. considered the reference made by a three-Judge Bench vide order dated 06.09.2010 in Society for Unaided Private Schools of Rajasthan v. Union of India and Anr. [(2012) 6 SCC 102] to a Constitution Bench. As per the ::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 76 reference order, the Constitution Bench had to decide on the validity of clause (5) of Article 15 of the Constitution inserted by the Constitution (Ninety-third Amendment) Act, 2005 with effect from 20.01.2006 and on the validity of Article 21A of the Constitution inserted by the Constitution (Eighty-Sixth Amendment) Act, 2002 with effect from 01.04.2010. The matter in which occasion to refer arose has itself been disposed of by the very same three Hon'ble Judges and that final judgment is reported at 2012 (6) SCC 1 (Society for Unaided Private Schools of Rajasthan v.
Union of India); (supra). Hon'ble Constitution Bench holds that none of the rights under Articles 14, 19(1)(g) and 21 of the Constitution have been abrogated by clause (5) of Article 15 of the Constitution and that the (Ninety-third Amendment) Act, 2005 of the Constitution inserting clause (5) of Article 15 of the Constitution is valid. It then proceeds to consider the issue of validity of Article 21A of the Constitution. It did not find any merit in submissions made on behalf of the non-minority private schools that Article 21A of the Constitution and the 2009 Act violates their right under Article 19(1)(g) of the Constitution. Coming to consideration of the Article 30(1) of the Constitution, Hon'ble Constitution Bench points out that it has repeatedly held that the State has no power to interfere with the administration of minority institutions and can make only regulatory measures and has no power to force admission of students from amongst ::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 77 non-minority communities, particularly in minority schools, so as to affect the minority character of the institutions. Hon'ble Court declares that if the 2009 Act is made applicable to minority schools, aided or unaided, the right of the minorities under Article 30(1) of the Constitution will be abrogated.
Therefore, the 2009 Act insofar as it is made applicable to minority schools referred in clause (1) of Article 30 of the Constitution, is ultra vires the Constitution. The majority judgment in Society for Unaided Private Schools of Rajasthan v. Union of India and Anr. (supra) holding that the 2009 Act applied to aided minority schools is found to be not correct, to that extent. Thus 2009 Act insofar as it applied to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is declared ultra vires the Constitution. This judgment therefore reaffirms the earlier law that State Government can only make regulatory measures for aided or unaided minority schools.
46. We, therefore find that unless and until scales of pay sought for by the petitioners find birth in Schedule "C" appended to the 1981 Rules, a direction to extend the same to them can not be issued. GR dated 21.05.2010 at Annex. B with the writ petition does not bring about this effect. This GR however shows that by similar executive fiat, vide GR issued on 12.06.2009, very same pay scales have been applied to aided private ::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 78 schools. We have already held that the aided private managements do not suffer any legal injury on that count. We have also noted the stand of Respondent nos. 5 to 7 in reply that from November,2013, decision to enhance salary of 28 staff members is already reached. Employee till then receiving Rs. 9925/- per month (highest wage) is paid Rs 13134/- per month while employee receiving Rs. 3000/- per month (lowest) is sanctioned Rs. 5500/- per month. All other employes draw salary between the said highest and lowest figures. According to School, if VIth wage revision is allowed, it needs to provide Rs. 1,07,67,360/- for year 2012 only. It claims that it has paid Rs. 53,72,697/- already on account of wages.
It has also shown its total fee collection and accounts to demonstrate how it is not feasible for an unaided minority school like it to agree to extend VI th wage revision. Paragraph 4 of the affidavit in reply filed by the respondent no.7 shows purchase of land for Rs. 63,50,880/- on 29.11.2011 and ongoing construction of a new school building worth Rs. 4 Crores.
Contribution received from respondent no.6 school and other schools at village Hingoli is stated to be the only available source for this. We do not wish to go into these facets at this stage as amendment to Schedule "C" to propose new scales of pay, is subject to procedure laid down in Section 16(3) and (4) of 1977 Act. These respondents can raise suitable objections when the proposed amendment is duly notified under Section 16(3) r/w ::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 79 Section 24 of the Bombay General Clauses Act. We, therefore, at this stage, do not find it appropriate to consider the relevance of paying capacity of the respondents or then nature of wages, as demanded by petitioners, either as minimum wage or living/fair wage. Hon'ble Apex Court in an order passed on 11.03.2003 in WP 2460 of 1982 and connected matters has clarified that as and when any such problem arises, same should be dealt with in appropriate forum in appropriate proceedings.
47. Thus, the fact the petitioners do not get salary in any pay scale whatsoever is writ large. Salary paid to them form December,2013 appears to be a fixed sum without any allowances. In any case, it is also not just as it appears to be less than even minimum wage for employees like peons, clerks, laboratory attendants and assistants, accountants who may qualify as skilled or unskilled workman/employee under Section 2 (S) of the Industrial Disputes Act, 1947 or under Section 3 (13) of the Bombay Industrial Relations Act, 1946. It will be therefore appropriate to direct the State Government to initiate suitable steps to make wage revision on lines of GR dated 21.05.2010 binding on unaided private schools like respondent no.7 through Section 16 of 1977 Act. This exercise be completed within 4 months from today. Till then, respondents shall pay to petitioners increased salary at the rate as is offered to others from December, 2013 and its receipt ::: Downloaded on - 02/07/2014 23:50:28 ::: WP No.1949/2012 80 or payment shall not prejudice the rights, defenses and contentions of the parties in relation to amended scales of pay in Schedule "C".
48. Writ petition is, thus partly allowed by making Rule absolute accordingly in aforesaid terms, with no order as to costs.
JUDGE JUDGE
Dragon
Dhuriya PS
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