Gujarat High Court
Joshi Tushar Tansukhbhai And Ors. vs State Of Gujarat on 23 July, 2003
Equivalent citations: (2003)3GLR2424
Author: P. B. Majmudar
Bench: P.B. Majmudar
JUDGMENT P. B. Majmudar, J.
1. On the ground of disparity in the pay-scale, the petitioners who are serving as Shikshan Sahayak/Vahivati Sahayak/Sathi Sahayak in secondary/higher secondary schools have approached this Court by way of this petition.
2. The petitioners herein are serving in various Secondary Schools/Higher Secondary Schools as Shikshan Sahayak/Vahivati Sahayak/Sathi Sahayak, and by filing this petition, they are claiming parity, in the matter of pay-scales with other employees, who, according to them, are similarly situated. Demand for "Equal Pay for Equal Work" is also pressed into service by the present petitioners on the ground that the petitioners are discharging the same functions and same duties at par with other secondary school employees, in the State, like assistant teacher, administration employee and peon.
The principal grievance of the petitioners is that since the petitioners have been recruited after following the procedure prescribed under the Gujarat Secondary Education Act, 1972, by appointing them as Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak, they are required to be given same pay-scale, which is given to the employees, like assistant teacher, administration employee and peon, who are also similarly recruited by following the procedure of Section 35 of the Gujarat Secondary Education Act and the Rules made thereunder.
3. In order to consider the grievance of the petitioners, the Scheme, under which the petitioners are appointed, is required to be considered. The State Government has framed a Scheme, by Resolution No. B.M.S. 1199-741(2)-G dated 2-7-1999. The said Scheme is in relation to recruitment of Education Assistant, Administrative Assistant, and Co-assistant in private secondary/higher secondary schools. The Resolution is issued by the Education Department of the State of Gujarat. By Resolution dated 25-10-1989, the State Government decided to provide grant-in-aid to the private secondary/higher secondary schools, and subsequently, formed a study group for the reconsideration in the said behalf in order to put control in the Government expenditure. Accordingly, the study group submitted its report to the State Government. By the said Resolution, the State Government accepted the recommendations of the study group and decided that recruitment of Educational Assistant, Administrative Assistant and Co-assistant in the private secondary schools/higher secondary schools will be made in the same method in which the recruitment of Assistant Teacher, Administration employee and Peon is being done at present (i.e. at the time when the Resolution is passed). After completing the term of five years, from the sixth year, the person, who is employed in the said way, will be given all admissible benefits in his pay-scale and in this way, the employees mentioned in the above cadres will be made permanent as Assistant Teacher, Administration employee (Clerk), and Class IV employee (Peon). As per the Resolution, the Educational Assistant is to be paid Rs. 4,000/- in the secondary section, Educational Assistant in the higher secondary Section will be paid Rs. 4,500/- and administrative assistant in the school is to be paid Rs. 2,500/-and Co-assistant in the school will be paid Rs. 1,500/- per month. This amount is to be treated as ad hoc honorarium for five years, with a condition that they should render satisfactory services during the aforesaid period. By the introduction of the aforesaid Scheme, the Government decided to make initial appointment of the concerned persons on the post of Educational Assistant, Administrative Assistant and Co-assistant, as the case may be, with a fixed honorarium attached to the post and after completion of five years' service satisfactorily, such person is to be absorbed as a regular teacher in the secondary/ higher secondary school. So far as petitioners 1 to 14 herein are concerned, they were recruited as per the said Scheme as Shikshan Sahayak (Education Assistant), and so far as petitioners 15 to 17 are concerned, they were recruited as Sathi Sahayak (Peon - Class IV employee). It is not in dispute that all these petitioners have been recruited as per the aforesaid Scheme, which is introduced by way of Resolution dated 2-7-1999, which is at page 56 of the compilation (Annexure 'C' to the petition). It is required to be noted that the petitioners have been appointed after following the procedure prescribed under Section 35 of the Gujarat Secondary Education Act, and after having been selected on the aforesaid respective posts, they have been appointed in various secondary/higher secondary schools, as the case may be.
After accepting their appointments on a fixed honorarium, as per the Resolution, now they have knocked the doors of this Court, with a prayer that they are discharging similar duty, like regularly recruited assistant teacher, administration employee and peon, as the case may be, in a school. According to the petitioners, on the principle of "Equal Pay for Equal Work", they should be given the same pay-scale which is available to the teacher or peon or even other office clerk, etc., and the same pay-scale should be given to them since they are discharging the same duty. It is also the say of the petitioners that the action of the State Government in giving them fixed honorarium of Rs. 4,000/- / Rs. 4,500/- / Rs. 2,500/- / Rs. 1,500/- is discriminatory and arbitrary and that once they have been recruited for discharging their duty, either as a teacher, as a clerk or as a peon, as the case may be, they are required to be paid the same pay-scale, which other teachers, peons and clerks are getting in the secondary schools. It is also the say of the petitioners that when they have undergone the same recruitment process, which is required to be undergone by teachers/peons/clerks, as per the provisions of the Secondary Education Act, there is no reason to give an appointment on a fixed honorarium for a period of five years. It is also prayed by the petitioners that, in any case, instead of keeping the petitioners and such other category of employees on a fixed honorarium for a period of five years, the said period may be curtailed, by reducing the period of five years to two years. This prayer is made in clause (B) of Paragraph 31 of the petition. It is also the grievance of the petitioners that the aforesaid period of five years, after which regular posting is given to such category of employees, is not taken into account for the purpose of gratuity and other retiral dues of the employees and that the aforesaid period is also required to be considered at the time of calculating the total length of service of such employees for the purpose of getting retiral benefits.
4. Mr. Y. N. Oza, learned Senior Advocate appearing for the petitioners, has vehemently contended that these petitioners are discharging the same duties that are being discharged by their counterparts in other secondary schools/higher secondary schools, who are serving as assistant teacher, administration employee and peon, as the case may be, and since they are doing the same work, the State is bound to pay the same pay and same benefit, which is given to other teachers/peons/clerks, as according to Mr. Y. N. Oza, the appointment is made after following the same procedure and that there is no reason to discriminate the petitioners from getting similar benefit of pay-scale, which is given to the other teachers/peons/clerks.
Mr. Y. N. Oza has also relied upon certain judgments of the Apex Court as well as of this Court to substantiate his say that it is not open for the State to discriminate the employees doing similar type of work and that the Government is required to maintain parity of pay if identical duty is performed by the petitioners, along with other teachers, clerks and peons, as the case may be, in a secondary school.
It is also argued by Mr. Y. N. Oza that the said Scheme is unconstitutional and is violative of the provisions of the Gujarat Secondary Education Act, as there is no provision in the Act for recruitment of Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak. It is also submitted by Mr. Y. N. Oza that once a person is appointed, after following the procedure under Section 35 of the Gujarat Secondary Education Act, 1972, he is required to be paid the pay prescribed for the post in question and no work can be taken from the Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak, by giving him fixed honorarium. He submitted that unless there is an amendment to the Gujarat Secondary Education Act, 1972, more particularly, in Section 35 of the Act, persons cannot be appointed as Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak as per the Resolution in question. Mr. Y. N. Oza also submitted that the Resolution, is therefore, violative of Arts. 14 and 16 of the Constitution of India and it violates the Constitutional right of "equal pay for equal work".
5. Mr. A. D. Oza, learned Government Pleader, who is appearing for the State Government, on the other hand, has supported the Scheme. Mr. A. D. Oza pointed out that after completion of the initial five years of service, the petitioners are required to be straightaway absorbed to the post of teacher/clerk/peon, as the case may be, and on satisfactory completion of five years' service, they are not required to undergo selection test, again, and on the basis of their earlier selection as Education Assistant, Administrative Assistant and Co-assistant, they are straightaway required to be absorbed as Teacher, Clerk, and Peon, as the case may be. Mr. A. D. Oza submitted that at the time of reviewing the grant-in-aid policy, the Government had appointed a Study Group and after considering the report of the Study Group, ultimately, the said Scheme is framed by the Resolution in question. It is submitted by Mr. A. D. Oza that, initially, on appointment as Education Assistant, Administrative Assistant and Co-assistant, as the case may be, such person is to be paid on a fixed honorarium and such person will have to work on such fixed honorarium for a period of five years, and thereafter, straightaway, they are to be absorbed in the regular pay-scale, by classifying them as teacher/clerk/peon, on satisfactory performance during the aforesaid five years' period.
6. Mr. A. D. Oza, learned G.P., submitted that, now, initially, before getting regular appointment as an Assistant Teacher, Administration Employee and peon, one will have to get appointment on a fixed honorarium for a period of five years and after gaining experience for the aforesaid period of five years, such person then will be absorbed as an Assistant Teacher, Clerk, and Peon. He further submitted that, now, in view of the Scheme, no person will be appointed directly as a teacher/clerk/peon, and on completion of five years' service, the said person will be appointed as Assistant Teacher, Clerk or Peon.
7. Mr. A. D. Oza pointed out that, in the State of Gujarat, all the teachers are paid salary under the grant-in-aid policy, by paying the salary by way of cheque in favour of the concerned teacher, directly.
Mr. A. D. Oza also further pointed out that there are so many posts of Assistant Teacher, Administration Employee and Peon, which are lying vacant since years and these posts could not be filled in due to paucity of funds. He submitted that in order to generate more employment and with a view to having financial discipline, the said Scheme is introduced. He submitted that there is a laudable object behind framing the said Scheme. He submitted that this Resolution would apply to the aided institutions as full salary grant is given by the Government to such grant-in-aid institutions, which receive Government grant in the matter of payment of salary.
Mr. A. D. Oza, learned G.P., further submitted that the petitioners themselves have applied in response to the advertisement published for appointment to the posts in question and having taken benefit of employment under the Scheme, now, it is not open for them to make any grievance in this behalf. Mr. A. D. Oza also further submitted that by virtue of the said Scheme, the Government is now in a position to fill up so many vacant posts and the problem of providing employment to qualified teachers is solved to a considerable extent, for which he has also given figures. Mr. A. D. Oza also further submitted that after getting appointment on a fixed honorarium for a fixed period, on completion of such period, the petitioners and such other employees are secured of their employment and the aforesaid period of five years is counted as if it is a training period, for which they are getting fixed honorarium. He submitted that, after gaining appropriate experience for five years, the petitioners and such other teachers and staff members are to be given regular pay-scale on gaining appropriate experience for a period of five years. He also further submitted that there is a reasonable classification between those teachers, who are getting regular scale on completion of five years' period, and those persons, who have been initially recruited on a fixed honorarium basis. Under the circumstances, it is submitted that there is absolutely no discrimination and considering the nature of the Scheme, and the laudable object behind the Scheme, it cannot be said that the same is unconstitutional in any manner. Under the circumstances, it is prayed by the learned G.P. that the petition is required to be dismissed.
Mr. A. D. Oza, learned G.P., has relied upon the decision of this Court (Coram : N. N. Mathur, J.) in Special Civil Application No. 5218 of 1998 in which a similar Scheme, which is framed for recruitment of teachers in primary schools, is upheld by this Court. Mr. A. D. Oza, therefore, submitted that, since the issue is concluded by the decision of the learned single Judge, this Court may not give any relief to the present petitioners and the petition may be dismissed.
8. I have considered the arguments of the learned Advocates for both the sides and I have also examined the Scheme. I have also considered various judgments cited by both the sides for the purpose of substantiating their respective say in the matter.
9. The first question which requires consideration is whether the petitioners are entitled to get parity in the matter of pay-scale with regularly recruited assistant teachers/clerks/peons; whether the State Government is empowered to frame such Scheme, for recruitment of Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak on a fixed honorarium; and whether exercise of such powers can be considered as de hors the provisions of the Gujarat Secondary Education Act, 1972?
So far as the Scheme in question is concerned, as discussed earlier, the same was introduced after considering the report of the Study Group. The State Government, with a view to generating more employment and with an object of filling up all vacant posts in the secondary schools in the State and also with a view to taking care of financial burden, has introduced the said Scheme. It is not in dispute that the Scheme in question is applicable to recruitment in a secondary or higher secondary school, which is an aided institution, and wherein the State is required to give financial help, in the form of grant-in-aid in the matter of payment of salary. It is also not in dispute that, now, in every secondary school/higher secondary school, there is a direct payment Scheme, by which the payment of salary is made by the Government, directly.
10. So far as the recruitment of a teacher in a secondary school is concerned, Section 35 of the Gujarat Secondary Education Act provides as under :-
"Sec. 35. Registered private secondary schools to have Selection Committees :-(1) For every registered private secondary school there shall be following two committees, namely :-
(a) a school staff selection committee for the purpose of recruiting the teaching staff of the school other than the head master,
(b) a special school committee for the purpose of recruiting the head master, and for the purpose of the initial recruitment of the head master and the teaching staff of a school started after the appointed day.
(2) The school staff selection committee shall consist of the following members, namely :-
(i) Two representatives of the management of the school to be nominated by the management.
(ii) The head master of the school;
(iii) In the case of a school the total number of teachers in which is more than six, two teachers to be elected by the teachers of the school from amongst themselves, and in the case of a school the total number of teachers in which is or is less than six, one teacher to be elected by the teachers of the school from amongst themselves; and
(iv) One representative of the Board to be nominated by the Board.
(3) The special school committee shall consist of the following members, namely :-
(i) Two representatives of the management of the school to be nominated by the management.
(ii) Two representatives of the Board to be nominated by the Board.
(4) Subject to the provisions of sub-sec. (1) of Section 34, the school staff selection committee or as the case may be, the special school committee shall select persons for appointment as teachers of the school from amongst the persons who are qualified to be appointed as such in accordance with the regulations made in this behalf :
Provided that for the purpose of such selection preference shall be given to a protected teacher, if he is otherwise eligible.
(5) The special school committee shall select persons for appointment to the post of head master of the school from amongst persons referred to in sub-sec. (4) or from amongst the teachers in the school :
Provided that for the purpose of such selection, preference shall be given to a senior teacher serving in the school or schools under the same management, if he is otherwise eligible and suitable.
(6) Whenever the persons from amongst whom a teacher or a head master is to be selected includes a person who is related to any member of the governing body or other body in charge of the management of the school or to any member of the school staff selection committee, or, as the case may be, the special school committee, the member concerned of such committee, shall disclose the fact of such relationship to the members of the committee and if any such person is selected by the committee, his selection shall be subject to approval by an officer of the Board authorised in that behalf. Such approval shall be sought by the committee within a week from the date of selection of the persons concerned and the authorised officer of the Board shall communicate his decision within fifteen days from the date of receipt of the reference by him.
(7) Any appointment of a head master or a teacher made in contravention of the provisions of this Section shall be ineffective.
Explanation :- For the purpose of sub-sec. (6), a person shall be said to be related to a member if he is related to him in any of the following capacities namely :-
Son, grandson, son-in-law, brother, daughter, grand-daughter, wife, nephew, first cousin (paternal or maternal), wife's brother, sister's husband, husband, husband's brother, husband's sister, wife's sister, daughter-in-law, and sister-in-law."
It is required to be noted that for recruiting a teacher, recruitment is required to be made after following the said procedure and a candidate is required to be selected by way of selection process envisaged in the said provision. It is, no doubt, true that neither under the Gujarat Secondary Education Act, 1972 nor under the Rules, is there any reference about the post of Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak. However, so far as the aforesaid provision in the Gujarat Secondary Education Act is concerned, it provides for recruitment of a teacher, who, after being selected after going through the aforesaid selection process, is to be appointed as a teacher of the school. However, in view of the submission of the learned G.P. that the said procedure is not given a goby, because a person, who is appointed under the Scheme, cannot be appointed in the regular scale as an assistant teacher, administration employee and peon, unless he is selected as per the procedure prescribed under Section 35 of the Act. It is not in dispute that, under the Scheme, such Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak, as the case may be, is to be selected only as per the procedure prescribed under Section 35 of the Act, and only thereafter, he is to be appointed even on a fixed honorarium for gaining experience for a period of five years. The only departure under the Scheme is that now the initial appointment will be made on a fixed honorarium and on completing the aforesaid so-called training period, straightaway, the person is to be appointed as an assistant teacher, administration employee and peon, as the case may be, and, thereafter, again, he is not required to go through the procedure of Section 35 of the Act. The learned G.P., has fairly conceded that, moment five years' stipulated period is over, a selected candidate is straightaway required to be given regular posting and regular pay-scale and five-year period is prescribed only to see that he gets appropriate experience as a teacher. Mr. A. D. Oza has also submitted that, as per the Scheme, now, no person can be appointed in Grant-in-aid school as a teacher, clerk or peon unless such person is having five years' experience as per the Scheme. He submitted that even a teacher, clerk and peon can be appointed in a secondary school only if he is having five years' experience and not otherwise, and in such a case, by way of transfer, such person can be appointed from the said category to any other school.
Mr. A. D. Oza further pointed out that, in a given case, if a teacher, with five years' experience, is available as per the ratio prescribed in the Resolution, he/she can be appointed as a direct recruit, but even for such a direct recruit, five years' experience is a must.
11. It is required to be noted that, on completion of five years' period, by which a person can get appropriate experience in teaching activity, he is straightaway to be absorbed as a regular assistant teacher, administration employee and peon, as the case may be, in a regular scale. Considering the aforesaid object behind framing the policy, it cannot be said that the Scheme in question is in any way discriminatory, because, all the persons, who are recruited initially under the Scheme in aided schools, as Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak, are all treated equally in the matter of fixed remuneration and all have equal rights for straightaway getting regular appointment on completion of five years. In my view, therefore, there is a reasonable classification between those Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak, who have been recruited initially for a period of five years for the purpose of getting experience and those assistant teacher, administration employee and peon, who are placed in a regular scale, on completion of five years' period. Accordingly, both these classes are different. Apart from that, even the nomenclature of the said two categories of employees is different, as the person, who is recruited under the Scheme initially, will be given the posting order as "Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak", and the one, who is in the regular scale, after completing five years' period will be designated as an "assistant teacher, administration employee and peon". In my view, therefore, it cannot be said that, simply because both the categories of employees, are discharging same functions, from day one, all are required to be paid the same pay-scale. It cannot be said that the Government has no power to insist for gaining experience for a certain period before a person is given regular pay-scale by giving regular appointment on completion of the so-called training period prescribed. It cannot be said that the State has no power to insist upon experience before qualifying a person as a regular "assistant teacher, administration employee and peon", as the case may be.
So far as the recruitment process is concerned, as rightly pointed out by Mr. A. D. Oza, learned G.P., that, after completion of five years' period, straightaway, a person is to be appointed as an assistant teacher, administration employee and peon, and for that purpose, if he is selected by following the procedure under Section 35 of the Act, there is nothing wrong in it, as, according to him, it is not necessary to follow the said procedure again on completion of five years' period. In my view, in view of the provisions of Section 35 of the Act, Government has no power even to give regular appointment after completion of five years' period, unless the procedure prescribed under Section 35 is followed, i.e. selection through the Staff Selection Committee, etc. Simply because procedure of Section 35 is followed for recruiting Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak, as the case may be, it cannot be said that, initially, the said Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak, cannot be appointed on a fixed term period, on honorarium basis, and straightaway, such person is required to be classified as an assistant teacher, administration employee and peon, as the case may be, especially when, on completion of the said period, such person is required to be appointed as assistant teacher, administration employee and peon, as the case may be. In the further affidavit-in-reply filed by the State Government, through the Under Secretary of the Education Department, it is pointed out as under :
"5. I further say that in view of the conditions mentioned in the appointment order principle of equal work equal pay will not apply in the present case as the "Shikshan Sahayak" equated with the experienced skilled teacher. The Pay Commission has prescribed different pay-scales for the different categories of teaching staff. Under these circumstances also the aforesaid principle will not be applicable in the present case.
6. I further say that looking to the conditions of service and appointment the "Shikshan Sahayak" are going to be promoted/converted in the category of regular teacher automatically after certain period. The petitioners have also accepted this condition, and therefore, only after conversion only the present 'Shiksan Sahayak' will be entitled for the higher pay and not before."
Mr. A. D. Oza, therefore, submitted that a person will get status of regular assistant teacher, administration employee and peon, as the case may be, only after getting five years' experience and till then, for five years, he will remain as Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak.
12. Considering the object behind framing this Scheme as well as considering the fact that, on completion of requisite period of five years, a person will be absorbed in a regular pay-scale, in my view, no fault can be found with the Scheme in question. It is not a case wherein, within the same set of employees, i.e. those who have been recruited on the basis of the said Scheme, there is a difference of pay or honorarium, in any manner. There is also no discrimination between those teachers who have completed five years' service, and those employees, who are to be classified as assistant teacher, administration employee and peon, as the case may be, after completion of five years' training as per the Scheme, in the matter of pay-scale. In the instant case, there is a distinction between two sets of employees, i.e., those who are within five years of service and who are recruited on payment of honorarium, and those who have gained such experience and who are serving as experienced assistant teacher, administration employee and peon. The present petitioners and such category of employees have to wait for five years' period for getting regular scale, as they are in the process of getting experience for a period of five years and after getting sufficient experience, straightaway, they are to be classified as assistant teacher, administration employee and peon, as the case may be, in the regular pay-scale.
13. At this stage, reference is required to be made to certain decisions cited by Mr. Y. N. Oza, in order to substantiate his say that on the basis of the principle of "Equal Pay for Equal Work", the State is bound to give regular pay to the petitioners, as they are discharging the same duty like the one performed by other assistant teacher, administration employee and peon, who are in regular pay-scale.
Mr. Y. N. Oza has relied on the decision of the Apex Court in Randhir Singh v. Union of India & Ors., 1982 (1) SCC 618. In the aforesaid judgment, the petitioner before the Supreme Court was a driver-constable in the Delhi Police Force under the Delhi Administration and his demand was for the pay-scale at par with other drivers in the service of the Delhi Administration. In the said case, it has been held by the Supreme Court that the drivers in the Delhi Police Force perform the same functions and duties as other drivers in service of the Delhi Administration and the Central Government. It was found that the duties of drivers and constables of Delhi Police Force were more onerous. It has been held by the Supreme Court that the principle of "equal pay for equal work" is not an abstract doctrine, but one of substance. The higher qualifications or experience for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the Officers into two grades, with distinct scales of pay. In the said judgment, it has been observed by the Hon'ble Supreme Court as under in Paragraph 7 :
"7. Our attention was drawn to Binoy Kumar Mukerjee v. Union of India, Makhan Singh v. Union of India & Ors., where reference was made to the observations of this Court in Kishori Mohanlal Bakshi v. Union of India describing the principle of equal pay for equal work as an abstract doctrine which had nothing to do with Article 14. We shall presently point out how the principle, "equal pay for equal work" is not an abstract doctrine but one of substance. Kishori Mohanlal Bakshi v. Union of India is not itself of any real assistance to us since what was decided there was that there could be different scales of pay for different grades of a service. It is well known that there can be and there are different grades in a service, with varying qualifications for entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade. The higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. The principle of equal pay for equal work would be an abstract doctrine not attracting Article 14 if sought to be applied to them."
In the instant case, as pointed out above, the Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak were initially placed on a fixed pay for an initial period of five years and after getting sufficient experience, they are to be straightaway classified as a regular assistant teacher, administration employee and peon, etc., and they are accordingly to be given regular grade on completion of five years' initial period. It can, therefore, be said that there is a reasonable classification between those like the present petitioners, who are placed for five years' training on a fixed honorarium basis, by which they can get experience, and those who are serving as assistant teacher, administration employee and peon on regular scale on completion of five years' period.
Mr. Y. N. Oza thereafter relied upon the decision of the Apex Court in Dhirendra Chamoli & Anr. v. State of U. P., 1986 (1) SCC 637. In the aforesaid decision, number of persons were engaged by the Nehru Yuvak Kendra as casual workers on daily wage basis and though they were performing the same work as was performed by the Class IV employees appointed on regular basis, they were not being given the same salary and allowances. The Hon'ble Supreme Court held that since they are discharging the same type of work, which is performed by other Class IV employees, they must get the same salary and other conditions of service as Class IV employees. It is found that it makes no difference whether they are appointed on sanctioned post or not.
Mr. Y. N. Oza, then, relied on the decision of the Apex Court in Surinder Singh & Anr. v. Engineer-in-Chief, C.P.W.D. & Ors., 1986 (1) SCC 639, wherein the Apex Court has held that the daily wage workers of C.P.W.D. are entitled to the wages equal to regular and permanent employees employed by the Department since they are doing identical work.
Mr. Y. N. Oza, learned Advocate for the petitioners, relied upon the decision of the Apex Court in State of H. P. v. H. P. State Recognised & Aided Schools Managing Committees & Ors., 1995 (4) SCC 507. The Apex Court has observed as under in Paragraphs 8, 9 and 10 :
"8. The aided schools teach the same syllabus and curriculum, prescribe the books and courses as per Government directions and prepare the students for the same examinations for which the students studying in Government schools are prepared. The qualifications of the teachers are prescribed by the State Government and the appointments are made with the approval of the State Government. The fees levied and concessions allowed are strictly in accordance with the instructions issued by the Education Department of the State Government from time to time. The Managing Committees of aided schools are approved by the State Government and two members of the Committee are appointed by the Education Department. The service conditions of the teachers including disciplinary proceedings and award of punishment etc., are governed by the Rules framed by the State Government.
9. It is, thus, obvious that the State Government has a deep and pervasive control on the aided schools. The Government schools and the aided schools -specially after the Kothari Commission Report - have always been treated on at par. It has been authoritatively laid down by this Court that the teachers working in the aided schools are entitled to the same salaries and allowances as are being paid to the teachers in the Government schools. In Haryana State Adhyapak Sangh v. State of Haryana, Pathak, C.J., speaking for this Court held (SCC 573, Para 3) "In our opinion, the teachers of aided schools must be paid the same pay-scale and dearness allowance as teachers in the government schools for the entire period claimed by the petitioners.".
This judgment was subsequently interpreted by this Court in Haryana State Adhyapak Sangh v. State of Haryana, where Agarwal, J. speaking for the Court observed as under : (SCC 314, Para 10) "The judgment of this Court dated 28-7-1988 also accepts the principle of parity in the matter of salaries and dearness allowance of teachers employed in aided schools and those employed in Government schools and there is nothing in the judgment which indicates that the said principle of parity is to be applied up to 31-12-1985 only, and not thereafter. In the circumstances, we are of the view that the direction of this Court in the judgment dated 28-7-1988 must be construed to mean that the respondents are required to maintain such parity and to revise, from time to time, the pay-scales and dearness allowance of the teachers employed in aided schools as and when the pay-scales and dearness allowance of teachers employed in Government schools are revised. It is, therefore, incumbent upon the respondents to revise the pay-scales of teachers employed in the aided schools so as to bring the same at par with the pay-scales of the teachers employed in Government schools with effect from 1-1-1986 and fix the salaries of the teachers employed in aided schools in the revised pay-scales with effect from 1-1-1986 and pay the salaries and dearness allowance to these teachers on that basis."
10. It is, therefore, late in the day to say that the teachers in the aided schools are not entitled to parity in the matter of salary, allowance, etc., with their counterparts in the Government schools. The question, for our consideration, however, is whether the State Government or the Management is to meet the consequent expenditure."
So far as the instant case is concerned, under the Scheme, the Government has provided regular pay-scale to an assistant teacher, administration employee and peon, after completion of five years' period and during that period, all such Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak, as the case may be, are to be treated at par, and after completing five years, they are to be absorbed as regular teacher, with proper nomenclature as "assistant teacher, administration employee and peon". Under the circumstances, those who are recruited as Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak, as the case may, are to be treated as separate class as compared to the other experienced teachers, who have put in the requisite service and after completion of five years, they are to be absorbed as regular assistant teacher, administration employee and peon, as the case may be, on a regular scale and they are a special class altogether.
24th July, 2003 Mr. Y. N. Oza has also relied on the decision of the Apex Court in State of Maharashtra v. Manubhai Pragai Vashi & Ors., 1995 (2) GLH 422 (SC), wherein it is held by the Hon'ble Supreme Court that the private law colleges recognised by the Government cannot be singled out in the matter of Grant-in-aid Scheme. It is also held that paucity of funds is no answer and that the Government is bound to give grant to law colleges under the Directive Principles of State Policy.
On behalf of the petitioners, Mr. Y. N. Oza, learned Senior Advocate, has placed reliance on the decision of the Apex Court in State of Haryana & Ors. v. Rajpal Sharma & Ors., 1996 (5) SCC 273. The Apex Court has held that the teachers in privately managed aided schools are entitled to the same scale of pay and privileges as available to their counterparts in Government Schools. It has been held by the Hon'ble Supreme Court as under in Paragraph 5 :
"5. In Chaman Lal v. State of Haryana, the question for consideration was whether teachers who started as basic trained teachers and later acquired the higher qualification would be entitled to higher scales of pay? This Court considered the recommendations of the Kothari Commission and different circulars of the State of Haryana and came to hold that those teachers who acquired the higher qualification would be entitled to the higher scales of pay as soon as they acquired the qualification irrespective of the date when they were adjusted against posts of Masters. In this case, no doubt the appellants were teachers of a Government school. The question of parity in pay-scales between the teachers of a recognised aided school and the teachers of a Government school, as in the present case, came up for consideration in the case of Haryana State Adhyapak Sangh v. State of Haryana. This Court came to the conclusion that the teachers of aided schools must be paid the same pay-scale and dearness allowance as teachers in Government schools for the entire period served by them and that the expenditure on that account should be apportioned between the State and the Management in the same proportion in which they share the burden of the existing emoluments of the teachers. The aforesaid decision of this Court was considered again by a three-Judge Bench in the case of Haryana State Adhyapak Sangh v. State of Haryana and by way of clarifying the earlier decision, this Court observed (SCC page 310 para 6) :
"These observations leave no scope for doubt that this Court has directed that the teachers of aided schools must be paid the same scales of pay and dearness allowance as teachers in Government schools and that the said payment must be made for the entire period claimed by the appellants and the petitioners in these cases."
In Para 12 of the judgment the Court issued the following directions :
(i) The pay-scales of the teachers of Government-aided schools shall be revised so as to bring them on at par with the pay-scales of teachers of Government schools with effect from 1-4-1979 and the differential amount as a result of such revision in pay-scales shall be paid in four six-monthly instalments, the first instalment being payable by 30-6-1990.
(ii) The teachers of the Government-aided schools shall be paid additional dearness allowance on the basis of the revised pay-scales with effect from 1-4-1979 to 31-12-1985 and the arrears of such additional dearness allowance found payable as a result of such revision shall be paid along with the last part of the five instalments of additional dearness allowance which is to be paid in September, 1990.
(iii) The parity in the pay-scales and dearness allowance of teachers employed in aided schools and those employed in Government schools shall be maintained and with that end in view the pay-scales of teachers employed in Government-aided schools shall be revised and brought on at par with the pay-scales and dearness allowance payable to the teachers employed in Government schools with effect from 1-1-1986.
(iv) As from 1-4-1990 the teachers employed in aided schools shall be paid the same salary and dearness allowance as is paid to teachers employed in Government schools.
(v) The arrears of pay and dearness allowance payable as a result of such revision for the period from 1-1-1986 to 31-3-1990 shall be paid in four six-monthly instalments, the first such instalment being payable by 30-6-1990."
Mr. Y. N. Oza then relied on the decision of the Hon'ble Supreme Court in Chandigarh Administration & Ors. v. Rajni Vali & Ors., 2000 (2) SCC 42. In the said decision, it has been held by the Apex Court as under in Paragraph 6 :
"6. The position has to be accepted as well settled that imparting primary and secondary education to students is the bounden duty of the State Administration. It is a constitutional mandate that the State shall ensure proper education to the students on whom the future of the society depends. In line with this principle, the State has enacted statutes and framed rules and regulations to control/regulate establishment and running of private schools at different levels. The State Government provides grant-in-aid to private schools with a view to ensure smooth running of the institution and to ensure that the standard of teaching does not suffer on account of paucity of funds. It needs no emphasis that appointment of qualified and efficient teachers is a sine qua non for maintaining high standards of teaching in any educational institution. Keeping in mind these and other relevant factors, this Court in a number of cases has intervened for setting right any discriminatory treatment meted out to teaching and non-teaching staff of a particular institution or a class of institutions. To notice a few such decisions on the point, we may refer to the case of Haryana State Adhyapak Sangh v. State of Haryana in which this Court issued a direction that the State Government will also take up with the management of the aided schools the question of bringing about parity between the teachers of aided schools and the teachers of Government schools for the period following that to which the thirty-five instalments relate, so that a claim for payment may be evolved after having regard to the different allowances claimed by the petitioners. In the case of Haryana State Adhyapak Sangh v. State of Haryana, a Bench of three learned Judges of this Court, clarifying the judgment in Haryana State Adhyapak Sangh v. State of Haryana issued a direction, inter alia, that the parity in the pay-scales and dearness allowance of teachers employed in aided schools and those employed in Government schools shall be maintained and with that end in future the pay-scales of teachers employed in Government schools shall be revised and brought on at par with the aided schools and dearness allowance payable to the teachers employed in Government schools with effect from 1-1-1986."
It has also been further observed by the Hon'ble Supreme Court that the State Administration cannot shirk its responsibility of ensuring proper education in schools and colleges on the plea of lack of resources.
14. Mr. A. D. Oza, learned Government Pleader, on the other hand, submitted that the Scheme is evolved by the Government as per the new grant-in-aid policy. He has also pointed out that this Scheme is applicable only to those schools which are getting grant-in-aid from the State Government. It is also submitted that the main objective is to provide as much employment as possible and to see that no school is left without availability of adequate teachers, He also further submitted that the Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak, as the case may be, are to be treated as a special class and all of them, on completion of the maximum period of five years, are to be absorbed on regular scale. It is also submitted by Mr. Oza, learned Government Pleader, that if vacancies are available, in a given case, such regular appointment can be given even within a period of two or three years, as the case may be, and in no case, such benefit can be delayed for more than five years from the date of original appointment, on fixed honorarium. He further submitted, that therefore, there is a reasonable classification, and therefore, the Scheme is not offending Article 16 of the Constitution of India, especially when the petitioners have been appointed under the Scheme on the basis of public advertisement, in response to which they have applied and they are a separate class altogether. He submitted that even the nomenclature of the post is different and that there is nothing wrong, if, at the initial stage, for getting experience of teaching, fixed honorarium is given. He submitted that, therefore, the petitioners cannot be given the pay-scale at par compared with other regular assistant teacher, administration employee and peon, as the case may be, who are given regular scale after getting necessary experience.
15. Mr. A. D. Oza has also relied upon the decision of the Hon'ble Supreme Court in Andhra Pradesh Special Teachers & Ors. v. State of Andhra Pradesh & Ors., 1988 (2) LLN 1938, copy of which is also placed on record. In the aforesaid matter, the State of Andhra Pradesh recruited special teachers under a Scheme intended to impart basic education. Such special teachers under the Scheme were paid a fixed salary of Rs. 398/- per month (which works out to 3/4th of the basic salary of the regular teachers). On behalf of such special teachers, a claim was made for getting "equal pay for equal work" on the ground that they are teachers in the same way as other teachers in the service of the State and no distinction should be made and they should not be discriminated against in the matter of pay-scale. The State of Andhra Pradesh, in its return, has disclosed the fact that the special teachers were recruited under the special Scheme and that the nature of the work as also the condition of service are not indeed the same as those of regular teachers, though teaching is the common factor. A stand was also taken by the Government that the State Government intends to regularise all these teachers in course of time, depending upon the availability of vacancies, either in the regular schools or under the special Scheme. Considering the Scheme in question, it has been observed by the Supreme Court as under in Paragraphs 5 and 6 :
"5. In the specific circumstances indicated, we do not think this is a fit case where the principle of equal pay for equal work should be applied. If it is made so, the Scheme itself is bound to collapse and what has been intended to be a mode to educate the illiterates in the society will fail. We would not accordingly issue any writ or direction and dispose of the writ petition by recording the assurance of the learned Advocate General that within three years at the most, the service of those special teachers would be regularised.
6. A sum of Rs. 398-00 per month is certainly a very inadequate income for a teacher. We commend to the Government to enhance it by fixing a minimum Rs. 500-00 per month."
16. Mr. A. D. Oza, learned G.P., relied on a Division Bench judgment of this Court in Special Civil Application No. 6155 of 1999. The said matter pertains to a Public Interest Litigation filed by the Ahmedabad Jilla Madhyamik Shikshak Sangh v. State of Gujarat. In the said petition, the same resolution was under challenge. Therein, a Division Bench of this Court (Coram : K. G. Balakrishnan, C.J., as His Lordship then was and M. S. Parikh, J.), after considering the provisions of Section 36 of the Gujarat Secondary Education Act, 1972, held as under :-
"Going by the Resolution, it appears that it is a policy decision of the Government. The honorarium or remuneration payable to the persons so appointed under the Scheme is a matter which can be considered by the Government and the petitioner-Association can make suitable representation to the Government. As regards other conventions raised, we are not entering any finding on merits as the persons actually appointed by the Scheme are not before us. We leave open that the petitioner-Association can make any suitable representation to the Government regarding the impugned Resolution. Without prejudice to such right, we dispose of this Special Civil Application."
17. Mr. A. D. Oza has also relied upon the decision of a learned single Judge of this Court (Coram : N. N. Mathur, J.) in Special Civil Application No. 5218 of 1998, wherein a Scheme framed by the Government for recruitment of primary teachers on fixed remuneration was under challenge. The said Scheme was challenged on the ground that it violates the provisions of the Bombay Primary Education Act and as per the Scheme, a person can be appointed as a Primary Teacher by way of a consolidated pay of Rs. 2,000/- in Balguru Scheme and Rs. 2,500/- under the Vidya Sahayak Scheme. The Scheme was attacked on the ground that it is discriminatory and it is in violation of Arts. 14 and 16 of the Constitution of India. After considering the various provisions of the Act and considering the Schemes in question, in Paragraph 14, the learned single Judge has observed at the bottom portion :-
"The problem needs a pragmatic approach to solve it. The subject Schemes are not substitution of Scheme of appointment of Primary School Teachers under the Act of 1947, but effort is being made to meet the exigencies of situation, to achieve the Constitutional obligation. There is reflection of seriousness towards the fulfilling the obligation from the steps taken and budgetary provision made as referred in the earlier part of this order. The Vidya Sahayak Scheme intends to provide teachers to all Primary Schools and also provide employment to unemployed P.T.C. pass, in the existing situation is in larger public interest, and as such it cannot be said to be unfair. It is also to be borne in mind that the incumbents have studied only upto S.S.C. and undergone one year training of P.T.C. They are in age-group of 18 to 26 years. The Government has promised to give appointment to all the selected or absorbed Vidya Sahayaks within five years."
Mr. Y. N. Oza, learned Senior Advocate, at this stage, submitted that so far as the judgment of the learned single Judge (Coram : N. N. Mathur, J.), is concerned, since the learned single Judge has not dealt with various points and in view of the various Supreme Court judgments, the said judgment is required to be referred to the Division Bench.
However, relying upon the aforesaid observations, of the learned single Judge, Mr. A. D. Oza, learned Government Pleader, submitted that if similar type of Scheme is approved by this Court, having found that it is not unfair, this Court cannot take a contrary view, as there is hardly any difference between the said Schemes, which were challenged before the learned single Judge in the aforesaid Special Civil Application, and the Scheme which is under consideration in the present Special Civil Application. It is, therefore, submitted by the Government Pleader that in view of the decision of the learned single Judge (Coram : N. N. Mathur, J.), approving the Schemes framed for recruitment as Balguru and Vidya Sahayak, as well as considering the observations of the Division Bench of this Court, wherein this very Scheme was under challenge by way of public interest litigation and wherein the Division Bench found that the policy involved is a policy decision, no relief can be granted to the petitioners.
18. As observed earlier in this judgment, the principal object behind framing the Scheme is to solve the problem of unemployment within a reasonable period. It is required to be noted that Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak, who applied in response to the advertisement, have been recruited on a fixed honorarium for a period of five years initially with an assurance that they are to be accommodated in the regular pay-scale at the end of the period of five years. As pointed out earlier, during that period, such Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak can gain experience before being classified as a regular assistant teacher, administration employee and peon under the regular Scheme. So far as the regular assistant teacher, administration employee and peon are concerned, they are a separate class and after gaining experience, they are getting the appropriate pay-scale. The initial appointment of the petitioners and such appointees is mainly for getting experience before they can become assistant teacher, administration employee and peon, and after gaining experience, they are also put at par with other assistant teacher, administration employee and peon. Under the circumstances, it cannot be said that there is any discrimination between two sets of employees, and, in my view, there is a reasonable classification so far as the present petitioners and other experienced assistant teacher, administration employee and peon are concerned.
19. In a matter of fixation of pay and honorarium, as the case may be, the Government can always consider the experience part, and as observed by the Apex Court in Andhra Pradesh Special Teachers & Ors. v. State of Andhra Pradesh & Ors., 1988 (2) LLN 1938, where, under the Scheme, such recruitments have been made on a fixed salary, in my view, the Scheme framed by the State Government for recruitment of Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak cannot be said to be in any manner discriminatory or arbitrary. It cannot be said that it is, in any way, contrary to the provisions of the Secondary Education Act, as after going through the initial process of selection, the selected person is not required to undergo the procedure again, and straightaway, they are to be designated as assistant teacher, administration employee and peon, in the regular scale. The Scheme is evolved with the object of solving the unemployment problem and with an object to see that no school may be left without the help of an assistant teacher, administration employee and peon.
20. Even otherwise, as a single Judge, I am also bound by the decision of another single Judge in Special Civil Application No. 5218 of 1998, as identical type of Scheme, which was framed for recruitment of primary teachers, is upheld by this Court (Coram : N. N. Mathur, J.). Even a Division Bench in Special Civil Application No. 6155 of 1999, while dealing with a Public Interest Litigation, has clearly observed that this is a matter coming under the realm of "Policy Decision". Apart from the said aspect, in my view, when the Scheme is framed with an object to provide employment, and even as pointed out by Mr. Oza, the State is able to provide employment after introduction of the Scheme in question, for which he has relied upon certain figures, and considering the fact that, after completing the required period, such persons are straightaway to be absorbed as regular assistant teacher, administration employee and peon, in my view, no fault can be found with the Scheme in question. Under the circumstances, I do not find any substance in the challenge to the Scheme dated 2-7-1999. The said Scheme is accordingly upheld.
21. However, before parting with this judgment, I am of the opinion that considering the cost of living and considering the fact that it may not be possible for a person to sustain on a fixed honorarium/pay for a period of five years, it is recommended that the State Government may consider fixation of such honorarium at a higher rate gradually so that the person concerned, who is appointed under the Scheme, may not be required to suffer financial difficulties. It is hoped that the State Government will consider this aspect in a proper manner by considering the question of increasing the honorarium suitably. During the course of the hearing, it is submitted by the learned Advocate for the petitioners, that even after getting the regular appointment, the earlier period will not be considered for pensionary and such other benefits. However, this aspect can also be considered by the State Government appropriately because in my view, once a person is appointed after going through the regular selection process, his earlier period of service may not be treated as wiped out for the purpose of determining the pension and other retiral benefits. It is hoped that the said aspect also will be considered by the State Government expeditiously so that the Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak, who are recruited under the Scheme may not get frustrated. It is also recommended by this Court that the period of five years may also be suitably reduced to three years or so, so that a person appointed as Shikshan Sahayak, Vahivati Sahayak and Sathi Sahayak, may not get frustrated on remaining on a fixed honorarium for a long period. However, it is left to the wisdom of the State to consider whether it is possible to accept this recommendation and the State may consider this aspect appropriately.
22. Subject to the aforesaid observations, the Scheme framed by the Government is upheld, and consequently, the Special Civil Application is dismissed. Rule is discharged with no order as to costs.