Madras High Court
S. Pappa And Ors. vs Government Of Tamil Nadu And Ors. on 30 July, 1999
Equivalent citations: (1999)3MLJ347
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. The issues raised in all the writ petitions are common in nature. Therefore, the same are being disposed of by the following common Order. The writ petitions are Secondary Grade Teachers Aided Schools, Secondary Grade Teachers Association, Private Aided Primary Middle School Managers and Teachers Association. Generally the petitioners have sought for directions by calling for the records relating to the following Government Orders issued by respondent/Government of Tamil Nadu and consequential Order of Director of School Education:
(1) G.O.Ms.No. 1524, Education, dated 12.11.1990, (2) G.O.Ms.No. 1669, Education, dated 13.12.1990, (3) G.O.Ms.No. 20, Education, dated 8.1.1993, (4) G.O.Ms.No. 494, Education, dated 19.5.1993, (5) G.O.Ms.No. 279, Education, dated 9.4.1996, (6) G.O.Ms.No. 5, Education, dated 6.1.1997 and (7) G.O.Ms.No. 365, School Education, dated 20.8.1997.
As stated earlier all the contentions in these writ petitions are identical and common in nature. For the convenience, I shall refer the case of the petitioners in W.P.No. 221 of 1991. The first petitioner in that writ petition, who is a secondary grade teacher, was appointed as secondary grade teacher on 20.4.1990 as approved by the District Educational Officer in his letter dated 26.5.1990 and is working in Sivanthi Vinayakar Elementary School, Mamspuram. Likewise, petitioners 2 to 7, working in different aided private management schools, were appointed on 4.6.1990, 2.7.1990, 29.6.1990, 9.7.1990 respectively and their appointments were approved by the District Educational Officer. Petitioners 6 and 7 were also appointed as such and their appointments were approved by the District Educational Officer. After passing secondary grade teacher training course and after completion of the said course, they were appointed as secondary grade teachers in the respective schools in the sanctioned vacancy in the scale of pay of Rs. 1,200 p.m. as fixed by fifth pay commission. They are being paid Rs. 1,200 p.m. with usual allowances, as admissible to the post of secondary grade teacher. While so, the school managements announced that the scale of pay has been reduced to a consolidated sum of Rs. 800 p.m.; and the amount which so far was paid excess is liable to be refunded and in future the petitioners will be paid only a consolidated sum of Rs. 800 p.m. When it was enquired with the managements for this sudden change, they relied upon a circular issued by the Director of School Education on 14.11.1990 in Rc.No. 89688 080/90-1, which in turn relies upon a Government Order issued by the Government in G.O.Ms.No. 1524, Education, dated 12.1.1990. It is further stated that as per the said Government Order, the vacancies of secondary grade teachers now available and which are likely to arise in the academic year 1990-91 in Government Municipal, Corporation, Township, Panchayat Union and Aided Schools on account of retirement, resignation and promotions shall be filled only by posting incumbents on consolidated pay of Rs. 800 p.m. Though the Government Order in question will not apply to the already sanctioned post, the post of secondary grade teacher since has been now stated as class by itself as secondary grade (Junior) cannot be equated with that of the posts which are already in existence in the time scale of pay. If this Government Order is to be intercept with those posts, then the said Government Order is liable to be quashed as arbitrary and discriminatory in nature, violative of Articles 14 and 16 of the Constitution of India. The persons who are now working as secondary grade geachers are governed by Special Rules and their pay is governed by the Rules framed under Article 309 of the Constitution of India. By executive instructions the same cannot be altered. Further, the sanctioned posts have been stated as secondary grade (Junior). The respondents want to apply the Government Order to the persons who are working like the petitioners, the Government Order is arbitrary, illegal inasmuch as it reduces the scale of pay which is being paid by Government now. It is further stated that the post now described as secondary grade (Junior) has not been distinguished from the present secondary grade teachers. So long as the posts are same and qualifications are similar, there cannot be two sets of scale of pay. Further, the nature of work for the secondary grade teachers either who are already working or now introduced as secondary grade (Junior) in the consolidated sum are same. Both the teachers are taking classes which they could take. The hours of work are also same. So, as per the law laid down by the Supreme Court, there cannot be different pay for the same category of persons doing similar work. Therefore, the newly introduced consolidated pay to the persons who are working similarly to that of the persons who are already working is arbitrary and liable to be struck down, because the rule of law which governs the field is, equal work, equal pay. It is also stated that the petitioners were appointed in regular vacancy and the same are not the posts which are being described as Secondary Grade (Junior). In the Government Order it is stated that the vacancies on account of retirement, resignation, death etc. shall also be filled up only by consolidated emoluments of Rs. 800 p.m. the post concerned in respect of such vacancies shall be deemed to have been downgraded as the post of Secondary Grade (Junior), which again is per se arbitrary, illegal. In such circumstances, having no other remedy, the petitioners have approached this Court. Similar contentions have been raised in the other writ petitions; hence I am not traversing the same.
2. On behalf of the respondents, first respondent has filed a common counter affidavit in the above batch of writ petitions. The stand taken by the respondents is briefly stated hereunder: Prior to the year 1989, there were a large number of private self-financing Secondary Grade Teacher Training Institutions running in the State of Tamil Nadu and in every year large number of candidates were coming out successfully on completion of such Teacher Training Course from the Institutions. Therefore, thousands of Secondary Grade Teacher Training qualified candidates were left unemployed seeking opportunities for employment. It is further stated that the Government having intended to give employment avenue to the unemployed candidates who are qualified with Secondary Grade Teacher Training course and also to upgrade the standard of education, took a policy decision that in addition to the post of Secondary Grade Teachers as stipulated in the Rule, to create a new Order of posts, namely, the Secondary Grade (Junior) Teachers on contractual temporary basis for a period of two years on a consolidated pay of Rs. 800 per month. Accordingly, the Government having considered the then financial budgetary provision, issued Orders in G.O.Ms.No. 846, Education, dated 25.6.1990, as to supplement the Rule, creating 1200 new Secondary Grade (Junior) Teachers posts to be filled up with qualified Secondary Grade Teacher Training candidates on a contractual temporary basis for a period of two years on a consolidated pay of Rs. 800 per month and these posts have to be distributed among the schools under all kinds of managements including Government, local body (Municipality/Corporation/Township/Panchayat Union) and Private Aided Schools. It is further stated that in Order to adopt uniformity in the recruitment of Secondary Grade Teacher posts and that of the recruitment of the newly created 1200 additional posts, the Government issued Orders in G.O.Ms.No. 1524, Education, dated 12.11.1990, directing that apart from the 1200 newly created Secondary Grade Teachers (Junior) posts, the posts which have fallen vacant due to retirement, resignation and death, etc., shall be deemed to have been downgraded as posts of Secondary Grade (Junior) Teacher and therefore these posts shall also be filled up only on consolidated emolument of Rs. 800 per month, for an initial period of two years from the respective dates of filling up with new appointees. It also insists that the various appointing authorities should obtain written agreement from the appointees expressing their specific willingness to work on the consolidated emoluments indicated and a contract agreement would be entered into with every such appointee. As per the contract, it is open to the appointing authority or any higher authority to terminate the services of those persons by giving three months notice.
3. The Government in G.O.Ms.No. 1669, Education, dated 13.12.1990, have issued Orders that as in the case of down gradation of Secondary Grade Teachers posts as per G.O.Ms.No. 1524, Education, dated 12.11.1990, vacant posts of Specialist Teachers such as Physical Education Teacher, Drawing Masters, Craft Instructors, Sewing Mistress, Music Teachers etc., drawing the Secondary Grade Scale of pay in Government, Local body (Municipal/Corporation/Township/Panchayat Union) and Aided Schools in 1990-91 on account of retirement, resignation, death etc., shall be deemed to have been downgraded as posts of Secondary Grade (Junior) Teachers and these vacancies shall be filled up only on the basis of the consolidated pay of Rs. 800 per month. Subsequently, on the basis of representations made by various Teachers Associations and various Private Aided School Managements, the Government have taken a policy decision to dispense with the recruitment of Secondary Grade (Junior) Teachers on contract basis on consolidated pay, and issued Orders in G.O.Ms.No. 20, Education, dated 8.1.1993, according to which, the Secondary Grade (Junior) Teachers, who were recruited during the year 1990-91 and 1991-92 on a fixed pay for a period of two years are brought into regular scales of pay with effect from 1.9.92. In G.O.Ms.No. 495, Education, dated 19.5.1993 have issued Orders extending the benefit and regularising the services of the B.T. Assistant (Junior/Tamil Pandit (Junior)/P.G. Assistant (Junior) who were appointed during 1990-91 and 1991-92 on contract basis and on fixed pay in terms of G.O.Ms.No. 1524, Education, dated 12.11.1990, and brought them into regular scales of pay with effect from 1.9.1992 as that of the benefit extended to the Secondary grade (Junior) Teachers as per G.O.Ms.No. 20, Education, dated 8.1.1993. Similarly the Government in G.O.Ms.No. 279, Education, Science and Technology Department, dated 9.4.1996 issued Orders regularising the Specialist Teachers who were appointed as Junior Grade Specialist Teachers on contractual temporary basis on consolidated emoluments of Rs. 800 per month in Government Schools, and brought them into regular scale of pay from 1.9.1992 as Ordered in the case of Secondary Grade (Junior) Teachers but the monetary benefit shall be given with effect from the date of issue of Government Order that is from 9.4.1996. In view of the various Orders of this Court, the Government in G.O.Ms.No. 5, Education, Science and Technology Department, dated 6.1.1997, have extended the monetary benefit from 1.9.1992 to the specialist teachers who were regularised from 1.9.1992, but given monetary benefit only from 9.4.1996, subject to the outcome of the main writ petition. Thereafter, as per the proposal of the Director of School Education, the Government issued Orders in G.O.Ms.No. 365, School Education, dated 20.8.1997 regularising the services of specialist teachers appointed in all Government Aided High and Higher Secondary Schools from 1.9.1992 with monetary benefit from 9.4.1996.
4. It is further stated that being the parties and. executants of the contract, the teachers and the managements of the institutions are bound by the terms of the contract and they cannot now come out from the contractual liabilities. The scheme under the impugned Government Orders is applicable not only to private aided schools but also applicable to schools under all kinds of Managements viz., Government, Municipality, Township/Panchayat Union Schools etc. Likewise the down grading of the post is done to avoid disputes being raised relating to seniority between teachers appointed under the newly created posts and those who are appointed in the vacancy in the existing post. There were no discrimination in the mode of recruitment or selective test. There were also no discrimination on the basis of religion, race, sex, descent, caste, culture and place of birth, etc. Therefore, the allegation that the impugned Government Orders violate the provisions of Articles 14 and 16 are totally wrong, baseless, misconceived and misconstrued. It is also stated that the grant-in-aid code does not confer any right on the management of any Educational Institution to get aid from the Government. As per Section 14(ii)(e) of the Tamil Nadu Recognised Private Schools Act, the Government is empowered to fix the grant at such rate and for such purpose as may be prescribed. Under Section 14(ii)(a) and (d), the payment of grant is subject to the availability of fund and the Rules, Orders and notification issued by the Government from time to time. The impugned Government Orders do not discriminate the minority institutions as the Government Orders are applicable to all the institutions irrespective of status that is Government schools, Municipality school etc. Therefore, the allegations that the impugned Government Orders violate the provisions of Articles 30(1) and 30(2) of the Constitution of India are totally wrong and baseless. The contention of the petitions that the Government cannot plead paucity of funds and downgrade the approved sanctioned posts and that it would be contrary to the Judgment of the courts and violative of Article 30(2) are denied by the respondents. The contentions that the impugned Government Orders hit Article 39(d) of the Constitution of India is also untenable. The impugned Government Orders were purported for a scheme to create more posts of teachers and therefore the quality and standard of Education would be considerably improve but would not cause suffering as alleged by the petitioners. The impugned Government Orders were purported for a scheme to create more posts of teachers and therefore the quality and standard of Education would be considerably improved. The Government introduced the scheme of creating new posts, of Junior Teachers in the interest of unemployed candidates and also for the welfare of the students and for the welfare of State for having high standard of education. With these averments, they prayed for dismissal of the writ petitions.
5. In the light of the above pleadings, I have heard Mr. C. Selvaraju, Mr. N. Paul Vasanthakumar, Mr. R. Ganesan, Mr. Joseph Thatheus Jerome, Mr. P. Peppin Fernando, Mr. R. Sasidharan, Mr. G. Geremiah, Mr. S. Muthurama-lingam, Mr. Ramajagadeesan, Mr. Kamalanathan, Mr. S.V. Pandiarajan and Mr. M.V. Krishnan for petitioners and Mr. T.R. Rajagopalan, Additional Advocate General for respondents.
6. The main points raised by the learned Counsel for the petitioners are as follows:
(i) Whether G.O.Ms.No. 1524, Education (M) Department, dated 12.11.1990 is valid as it creates a new post, namely, Secondary Grade (Junior) teacher which is not in the cadre both under the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (hereinafter referred to as "the Act") and the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 (hereinafter referred to as "the Rules"). The impugned 'Government Order is illegal and ultra vires the provisions of the Act and the Rules; accordingly the same is liable to be struck down.
(ii) Once a legislature intervenes to enact a law relating to conditions of service, the power of the executive including the President or the Governor as the case may be is totally displaced on the principle of "Doctrine of occupied field". In the instant case legislature has already occupied the field and enacted law as referred to above which includes service conditions. Therefore, the impugned Order is without jurisdiction.
(iii) The Government have no power under the Act to issue such executive instructions to downgrade the post;
(iv) The impugned Government Order is discriminatory and violative of principles of equal pay for equal work, since for doing the same work with same qualification, Rs. 800 per month alone is being paid to teachers;
(v) Whether G.O.Ms.No. 20, dated 8.1.1993 is valid, giving regular pay to Secondary Grade Teachers from 1.9.1992 irrespective of the date of appointment?
(vi) Whether G.O.Ms.No. 365, School Education, dated 20.8.1997 is valid giving regular scale to Special Teachers with monetary benefits from 9.4.1996?
(vii) Downgrading a post which is created by way of an executive Order is violative of Section 19 read with Rule 15 of the Rules? Without amending the Rules, it is not possible for the Government to downgrade the Secondary Grade (Junior) teacher.
(viii) Even the policy decision of the Government cannot offend the Constitution, particularly Articles 14, 16 and 39 of the Constitution of India; and
(ix) Unreasonable clause in the contract entered into between the parties who are not equal in bargaining power cannot be sustained and any agreement affecting fundamental rights is void and not binding.
7. The contentions raised by learned Additional Advocate General are summarised hereunder:
(i) The petitioners have not challenged G.O.Ms.No. 846, Education, dated 25.6.1990 wherein the Government have sanctioned 1200 new Secondary Grade (Junior) Teachers posts to be filled up with qualified Secondary Grade Teacher Training candidates on a contractual temporary basis for a period of two years on a consolidated pay of Rs. 800.
(ii) G.O.Ms.No. 1524, Education, dated 12.11.1990 creates equality among the particular group of persons;
(iii) 1 here is no discrimination or arbitrariness in the action of the Government as contended.
(iv) Even the so-called restriction is only for a period of two years;
(v) Power to issue directions rests with the Government; accordingly they are justified in passing the impugned Orders. The Government is also entitled to regulate the aspects regarding the payment of grants.
(vi) As per the Rules, in a given situation grant or aid can be reduced by the Government. In any event inasmuch as the teachers and the management have entered into agreements, they cannot have any grievance against the Government; hence the writ petitions filed by the teachers are not maintainable; and
(vii) The contention regarding violation of Article 39 (d) of the Constitution is untenable.
8. I have carefully considered the rival submissions.
9. Before considering the rival submissions made by the petitioners and the learned Additional Advocate General, it is worth-while to refer certain provisions from the Act and the Rules. Section 14 of the Act speaks about payment of grant. It runs as follows:
14. Payment of grant: (1) Notwithstanding contained in this Act or in any other law for the time being in force, or in any decree, Order or direction of any court or other authority,
(i) no private school shall, only on the ground of having been granted recognition underthis Act, be entitled to any grant or other financial assistance from the Government;
(ii) the Government may, subject to,
(a) the availability of funds;
(b) the norms and conditions specified in the Grant-in-aid Code of Tamil Nadu Education Department;
(c) the condition that every private school receiving any grant or financial assistance, from the Government levies and collects from the pupils only such fee, charge or other payment as may be specified by the competent authority, which shall not be in excess of the fee, charge or other payment, levied and collected from the pupils studying in the schools or institutions established and administered or maintained by the State Government, or any local authority in the locality;
(d) the rules, Orders and notifications issued by the Government, from time to time; and
(e) such other conditions as may be prescribed, pay to the private school grant or other financial assistance at such rate and for such purposes as may be prescribed.
(2) The Government may withhold permanently or for any specified period the whole or part of any grant referred to in Sub-section (1) in respect of any private school,
(i) which does not comply with any of the provisions of this Act or any rules made or directions issued thereunder in so far as such provisions, rules or directions are applicable to such private school, or
(ii) in respect of which the pay and allowances payable to any teacher or other person employed in such private school are not paid to such teacher or other person in accordance with the provisions of this Act or the rules made thereunder, or
(iii) Which contravenes or fails to comply with any such condition as may be prescribed.
(3) Before withholding the grant under Sub-section (2), the Government shall give the educational agency an opportunity of making its representation.
10. Appointment of teachers of the private school, fixation of their pay and definition of their duties etc., are defined in Section 18(1)(b) of the Act as follows:
18. Functions of the school committee and responsibility of educational agency under the Act: (1) Subject to the provisions of this Act and the rules made thereunder, the school committee shall have the following functions, namely:
(a) x x x
(b) to appoint teachers and other employees of the private school, fix their pay and allowances and define their duties and the conditions of their service; and
(c) x x x
11. Qualifications, conditions of service, etc., of teachers as defined in Section 19 are as follows:
19. Qualifications, conditions of service, etc., of teachers and other persons employed in private schools : The Government may make rules regulating the number, qualifications and conditions of service (including promotion, pay, allowances, leave, pension, provident fund, insurance and age of retirement and rights as respect disciplinary matters) of the teachers and other persons employed in any private school.
12. Section 20 is as follows:
20. Appointment of teachers and other employees in private schools : (1) No person who does not possess the qualifications prescribed under Section 19 shall on or after the date of the commencement of this Act, is employed as teacher or other employee in any private school.
(2) Nothing contained in this section or any rule made thereunder shall apply to any person who, on or before the date of the commencement of this Act is employed as teacher or other employee in any private school.
13. As regards qualifications, conditions of service, it has been stated in Rule 15 as follows:
Rule 15 : Qualifications, conditions of service of teachers and others persons: (1) The number of teachers and other persons employed in a private school shall not exceed the number of posts sanctioned by Director of School Education from time to time, with reference to the academic requirements, teacher-pupil ratio and overall financial considerations.
(2) (i) The school committee of every private school enter into an agreement with the teacher or other persons in Form VII (A) or VII (B) if the appointment is for a period exceeding three months.
(ii) Three copies of the agreement shall be executed, one copy shall be furnished to the teacher or other person concerned, the other copy shall be retained by the School Committee and the third copy shall be forwarded to the District Educational Officer.
(3) In a regular vacancy a full qualified candidate shall be appointed only on a regular basis. However, in a temporary vacancy, i.e., leave vacancy, deputation for training or suspension of the teacher's certificate, a teacher or other person may be appointed for a specified period. In such cases the agreement to be executed shall being Form VII (B).
In additional to these, Annexure V prescribes qualifications for appointment as teachers in private schools. It prescribes qualifications for all teachers including Secondary Grade Teacher.
14. It is explained in the counter-affidavit of the Government that prior to the year 1989 there were a large number of private self-financing Secondary Grade Teacher Training Institutions running in the State of Tamil Nadu and in every year large number of candidates were coming out successfully on completion of such teacher training course from the Institutions and that therefore, thousands of Secondary Grade Teacher Training qualified candidates were left unemployed seeking opportunities for employment. It is also explained that the Government having intended to give employment avenue to the employed candidates who are qualified with Secondary Grade Teacher Training course and also to upgrade the standard of education, took a policy decision that in addition to the post of Secondary Grade Teachers as stipulated in the Rule, to create a new Order of posts, namely, the Secondary Grade (Junior) Teachers on contractual temporary basis for a period of 2 years on a consolidated pay of Rs. 800 per month. In Order to achieve the above object, according to the Government taking note of the then financial budgetary provision, issued Orders in G.O.Ms.No. 846, Education, dated 25.6.1990, creating 1200 new Secondary Grade (Junior) Teachers posts to be filled up with qualified Secondary Grade Teachers Training candidates on a contractual temporary basis for a period of two years on a consolidated pay of Rs. 800 per month and these posts have to be distributed among the schools under all kinds of managements including Government, local body (Municipality/Corporation/Township/Panchayat Union) and Private Aided Schools. As stated by the learned Additional Advocate General, none of the petitioners has questioned the said Government Order, namely, G.O.Ms.No. 846, Education, dated 25.6.1990. They are all aggrieved by the subsequent Orders commencing from G.O.Ms.No. 1524, Education, dated 12.11.1990. I have already narrated the salient features of various Government Orders while explaining the stand of the Government as indicated in the counter-affidavit of the first respondent. In G.O.Ms.No. 1524, Education, dated 12.11.1990 the Government issued Orders directing that apart from the 1200 newly created Secondary Grade Teachers (Junior) posts, the posts which have fallen vacant due to retirement, resignation and death, etc., shall be deemed to have been downgraded as posts of Secondary Grade (Junior) Teacher and therefore, these posts shall also be filled up only on consolidated emolument of Rs. 800 per month, for an initial period of two years from the respective dates of filling up with new appointees. I have already extracted the relevant provisions from the Act and the Rules. Section 19 enables the Government to make Rules regulating the number, qualifications and conditions of service (including promotion, pay, allowances, leave, pension, provident fund, insurance and age of retirement and rights as respect disciplinary matters) of the teachers and other persons employed in any private school. Rule 15 prescribes qualifications, conditions of service of teachers and other persons. Among other clauses, Sub-rule (3) of Rule 15 says that in a regular vacancy a fully qualified candidate shall be appointed only on a regular basis. Form VII-A is the agreement form in respect of permanent teachers, while Form VII-B is in respect of temporary teachers. As per Rule 15(6) of the Rules, the teachers and other persons employed in private schools shall possess the qualifications specified in Annexure-V. Annexure-V contains the names of the posts and the qualifications required to those posts. A careful perusal of the above referred provisions of the Act, Rule and the Annexure would go to show that the matters relating to service of a teacher are occupied by Legislature. In other words, appointments of teachers, defining of their nature of service etc., are governed by statutory provisions, namely, Act, Rules, Annexure etc., A perusal of those provisions shows that they do not contain a post called Secondary Grade (Junior) Teacher as specified in G.O.Ms.No. 846, Education, dated 25.6.1990 and G.O.Ms.No. 1524, Education, dated 12.11.1990. Further, the latter Government Order downgraded the post of Secondary Grade teacher as Secondary Grade (Junior) teacher. In para 2 (i) of the said Government Order it is stated that the vacancies arising in the cadre of Secondary Grade Teachers in Government Local Body (Municipal/Corporation/Township Panchayat at Union and Aided Schools in 1990-91 on account of retirement, resignation, death etc., be filled up only on the consolidated emoluments of Rs. 800 p.m. It further says that the posts concerned in respect of all such vacancies shall be deemed to have been downgrade as posts of Secondary Grade (Junior) on consolidated emoluments of Rs. 800 p.m. for an initial period of two years, from the respective dates of filling up with new appointees. I have already stated that as per the Legislation, the post available is in the cadre of Secondary Grade teacher. Now the Government by the impugned Government Order, have downgraded the said post as Secondary Grade (Junior) Teacher. At this juncture, learned Additional Advocate General would contend that in the absence of any challenge to G.O.Ms.No. 846, dated 25.6.1990, the Government is competent to issue directions to upgrade or reduce the post and regulate payment of grants to various Institutions. No doubt, Section 14 of the Act empowers the Government to issue directions with regard to payment of grant. However, in the light of the statutory provisions referred to above, particularly the service of the teachers, as rightly contended, without amending the statutory Rules, the Government cannot "downgrade" the post as Secondary Grade (Junior) Teacher. The first decision referred to by the learned Counsel for the petitioners on this aspect is a Division Bench decision of this Court reported in G. Rajesh v. State of Tamil Nadu and others, 1995 Writ L.R. 389. In this decision, the writ petitioner before the Division Bench sought for issue of a Writ of Mandamus directing the respondents therein to give effect to G.O.Ms.No. 466, dated 8.6.1994 admit him in I Year M.B.A., course under Sports quota. Anna University is established under the Anna University Act, 1978. It conducts several courses leading to Graduation and Post-Graduation. M.B.A., course is one such to which only Engineering Graduates can seek admission. The last date for submitting the application was 6.5.1994. Entrance Examination was held on 29,5.1994. The result of the entrance examination was published on 20.7.1994, whereas Government Order in G.O.Ms.No. 466 came to be issued on 8.6.1994. The classes for I Semester commenced on 8.8.1994 and it was over in the month of November, 1994. The petitioner did not secure marks above the cut-off marks in the entrance examination. Therefore, he could not be admitted. However, the petitioner claimed admission under sports quota. The direction issued by the State Government in the form of Government Order related to reservation for Scheduled Caste, Scheduled Tribe and Backward Class candidates. However, G.O.Ms.No. 466, dated 8.6.1994 came to be issued for reservation of two per cent of the seats for the Post Graduate courses in the colleges and Universities in Tamil Nadu. The case of the petitioner is that as the State Government has got the power under Article 162 of the Constitution of India to issue directions of the nature contained in the impugned G.O.Ms.No. 466, dated 8.6.1994 and such Government Order is the law, it is binding upon the University and as such, the University cannot afford to disobey it and cannot refuse to give one seat for sports quota, and the petitioner being the only candidate coming for admission under the sports quota, he is entitled to be admitted to the M.B.A. course. On the contrary, it is the contention of the University that as per Section 6(3) of the Act, it is not at all open to the State Government to issue any direction, which falls outside the scope of Sub-section (3) of Section 6 of the Act, that the direction relating to reservation for sportsmen is not-covered by Sub-section (3) of Section 6 of the Act. Government Order in G.O.Ms.No. 466, dated 8.6.1994 is not binding upon the University, since the course is a professional course and the Government Order in question is not intended to apply to professional course and the petitioner, having not secured the required percentage of marks, is not entitled to a admission. It is also the stand of the State Government that G.O.Ms.No. 466, dated 8.6.1994 is not intended to apply to the professional course, because following the said Government Order, further action is not taken to apply the said Government Order to professional course. In the light of the said factual position, after framing necessary points for consideration, the Division Bench has made the following conclusion:
. . . It is settled position of law that when the field is occupied by the Statute, executive power cannot be exercised. Sub-section (3) of Section 6 specifically provides that the State Government can issue directions regarding the reservation of seats for the students belonging to Scheduled Castes, Scheduled Tribes and Backward Classes. It is not possible to hold that the State Government, in exercise of its executive power, can issue a direction to the University to reserve seats for students falling under the sports category. It is, no doubt, true that the executive power, under Article 162 of the Constitution of India, extends to all matters to which the legislative power extends. But once that Legislative power is exercised and the field is occupied by the law, passed by the legislature, unless that law is amended, the executive power cannot be exercised contrary to those contained in the law. Sub-section (3) of Section 6 of the Act is the law relating to reservation of seats for a particular class or category, and there is no scope in that to add another category other than Schedule Caste, Schedule Tribe and Backward Class. Reservation for sports category is an additional class or category, which cannot be held to fall within Sub-section (3) of Section 6 of the Act. There is no other word or provision in Sub-section (3) of Section 6 of the Act which can be interpreted by applying the rule of ejusdem generis. Hence, we are of the view that, in the light of the provisions contained in Sub-section (3) of Section 6 of the Act, it is not open to the State Government to issue a direction for reservation to other categories other than specified in Section 6(3) of the Act. However, such a direction, if approved by the Syndicate, would be binding upon the University. In the instant case, the Government Order in G.O.Ms.No. 466, dated 8.6.1994 is not approved by the Syndicate. First point is answered accordingly.
It is clear from the said decision that when the field is occupied by the statute, executive power cannot be exercised. I have already stated that in our case also, the field has already been occupied by the legislature? and in the absence of any specific legislation by way of amendment, the Government cannot modify the statute by way of executive power, viz., by issuing the impugned Government Order to down grade the, existing post and also to create a post called Secondary Grade (Junior) Teacher. The dictum laid down by the Division Bench is directly applicable to our case.
15. The same position has been reiterated by the Hon'ble Supreme Court in the case of J. and K. Public Service Commission v. Narinder Mohan . The following observation of their Lordships is relevant:
7. Existence of statutory Rules is not a condition precedent to appoint an eligible and fit person to a post. The executive power is co-extensive with legislative power of the State and under Article 162, the State can create civil posts and fill them up according to executive instructions consistent with Articles 14 and 16 of the Constitution. It is settled law that once statutory rules have been made, the appointment shall be only in accordance with the rules. The executive power could be exercised only to fill in the gaps but the instructions cannot and should not supplant the law, but would only supplement the law. The Governor exercising the power under proviso to Section 125 (Article 309 of the Constitution of India) made the rules which do not expressly give the power to the State Government to make ad hoc appointments. No such rule has been brought to our notice. No express power was conferred and in fact cannot be conferred to relax the rules of recruitment. Having made the rules the executive cannot fall back upon its general power under Article 162 to regularise the ad hoc appointments under the Rules. Rule 9(3) empowers only to relax the qualification of age in particular exigencies which cannot be called in aid to relax the rules of recruitment . . .
16. In the case of A.B. Krishna v. State of Karnataka , similar question was considered by the Hon'ble Supreme Court and the conclusion of their Lordships arrived at in para 14 is as follows:
Applying the above principles to the instant case, it will be noticed that the Rules made by the State Government under Section 39 of the Act prescribe the qualifying examination as a condition precedent for promotion to the post of Leading Firemen. These Rules have not been touched, altered or amended and they exist in their original form. What has been done by the Government is that it has amended the General Recruitment Rules by providing therein that any promotion made on the higher post would not be on the basis of examination, if any prescribed, but on the basis of seniority. This is a Rule made by the Executive, namely, the Governor under Article 309 of the Constitution. The amendment in the general recruitment rules would not have the effect of displacing or altering the Rules made under Section 39 of the Fire Force Act, 1964 as the Act of the Legislature would have precedence over any Rule made by the Executive under the Proviso to Article 309.
17. In the case of P. Rajendran v. The Government of Tamil Nadu, 1991 Writ L.R. 694, S. Ramalingam, J., in paragraph 4 has observed thus:
Mr. T. Martin, learned Counsel appearing for the petitioner submitted that the Order of the Government impugned in this writ petition is liable to be quashed for want of jurisdiction. He would state that neither in the provisions of the Tamil Nadu Private Schools (Regulation) Act, 1973 nor in the Rules framed thereunder, power is vested with the Governor to grant relaxation of the requisite qualification as prescribed in G.O.Ms.No. 720, Education, dated 28.4.1981. In view of the said contention, the learned Government Pleader was directed to produce the file of the Government relating to G.O.Ms.No. 888, Education, dated 28.6.1990. The Government has produced the said filed along with a cover note, in which it is stated as follows:
The Director of School Education has recommended to the Government to grant exemption from possessing the requisite experience qualification laid down in the rules governing the post. The Government as a special case, granted exemption in favour of Thiru. S. Backiaraj (7th respondent) in G.O.Ms.No. 888, Education, dated 28.6.1990. It may, however, be mentioned that there is no provision either in the Tamil Nadu Private Schools (Regulation) Act or the rules made thereunder to grant exemption relaxing the qualification laid down for the post." In view of the above statement from the Government, there can be no hesitation in quashing the G.O.Ms.No. 888, Education, dated 28.6.1990 on the ground of want of jurisdiction.
In the light of the above legal position, even though it is stated by the learned Additional Advocate General that power to issue direction rests with the Government, I am of the view that when the field is occupied by the statute, the executive power cannot be exercised. By the impugned government Order the Executive down graded the post of Secondary Grade Teacher created under the statute as Secondary Grade (Junior) Teacher. In such a circumstance, I am in agreement with the contention, raised by the learned Counsel for the petitioners that without amending the Rules, it is not open to the Government to down grade the post of Secondary Grade Teacher.
18. Now I shall consider whether the Government is justified in granting consolidated emoluments of Rs. 800 per month while filling up the post of Secondary Grade Teacher in Government, Local Body (Municipal/Corporation/Township/Panchayat Union) and Aided Schools in the academic year 1990-91 on account of retirement, resignation, promotion, death etc., It is clear from para 2(i) of the impugned Government Order that the posts concerned in respect of all such vacancies from 1991 the persons appointed are entitled for the post of Secondary Grade (Junior) Teachers only a consolidated emoluments of Rs. 800 per month from the respective dates of filling up with the new appointees. It is pointed out that the said Order is per se illegal because the post now described as Secondary Grade (Junior) Teacher has not been distinguished from the present Secondary Grade Teacher. The qualifications are similar for the post of Secondary Grade Teacher and Secondary Grade (Junior) Teacher. The nature of work for the Secondary Grade Teacher, who are already working and the newly introduced Secondary Grade (Junior) Teacher in the consolidated sum are the same. Both the teachers are taking classes which they could take. The hours of work are also same. In other words, by the impugned Order the resultant position would be that there are two classes of Secondary Grade Teachers possessing the the same qualifications and performing the same functions drawing unequal emoluments. The scale of pay applicable to the post of Secondary Grade Teacher is Rs. 1200-30-1560-40-2040. On the other hand, for the very same post by virtue of the Government Order, the persons appointed in the vacant post after the said Government Order would get a consolidated pay of Rs. 800 per month. Hence it is stated that the impugned Government Order which brings about the above result would be violative of Article 39(d) of the Constitution as it would result in unequal payforequal work. It is also demonstrated before me that there are no details regarding the nature of work, period of duty etc., for the persons appointed under the consolidated pay of Rs. 800. Hence for doing the same work, persons appointed prior 1990 would get the time scale of pay of Rs. 1200-30-1560-40-2040 and other allowances and persons appointed in the year 1991 by way of the impugned Government Order would get a consolidated pay of Rs. 800 per month. It is also argued that inasmuch as the contract teachers under the impugned Government Order are doing similar work as being done by the regular teachers, the impugned Order is violative of Articles 14, 16 and 39 of the Constitution of India and also opposed to the principle namely "equal pay for equal work". Now I shall consider various decisions referred to by the learned Counsel for the petitioners on this aspect. In State of Haryana v. Rajpal Sharma , the question of pay parity between privately managed aided schools and their counter-parts in Government schools was considered by Their Lordships of the Supreme Court and the conclusion arrived at by them is as follows:
...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 (1998)4 S.C.C. 571 : 1989 S.C.C. (L and S) 21. 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, 1990 S.C.C. (Supp.) 306 : 1991 S.C.C. (L and S) 307 and by way of clarifying the earlier decision, this Court observed:
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 case.
6. . . . . The positive direction in Haryana State Adhyapak Sangh v. State of Haryana, 1990 S.C.C. (Supp.) 306 : 1991 S.C.C. (L and S) 307 to the effect that 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, leaves no room for doubt about the grant of the said benefit to the respondents herein who are the teachers in privately managed aided schools in Ambala District in the State of Haryana.
It is clear from the said decision that the teachers employed in aided schools shall be paid the same salary and other allowances as is paid to the teachers employed in Government schools if their nature of work is one and the same.
19. In the case of State of U.P. v. Ministerial Karamchari Sangh A.I.R. 1998 S.C. 303, their Lordship have observed thus:
16. It is also settled proposition that the evaluation of such jobs for the purpose of pay scales must be left to expert body and unless there are any mala fides, its evaluation should be accepted. In the case of Federation of All India Customs and Central Excise Stenographers (Recognised) v. Union of India , this Court observed as follows (para 7 of A.I.R.):
Equal pay for equal work is a fundamental right. But equal pay must depend upon the nature of the work done. It cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of vale judgment by those who are charged with the administration in fixing the scale of pay and other conditions of service. So long as such value judgment is made bona fide reasonably on an intelligible criterion which has a rotational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasize that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right.
In our case, the mode of recruitment, qualification, nature and volume of work etc., for the Secondary Grade teacher and newly created post, namely, Secondary Grade (Junior) teacher are one and the same. In such circumstance, the principle of "equal pay for equal work" comes into picture and if there is any disparity, undoubtedly Article 14 is attracted.
20. In the case of Indian Council of Agricultural Research v. A.N. Lahiri , the following conclusion arrived at by Their Lordships is pressed into service:
9. The tribunal has held that the work which the respondent was doing as a scientist was of the same type as was being carried out by scientists who had been inducted in the ARS. Not only that his juniors who were actually working under him, as he was the Head of the Department, and who has joined ARS got the benefit of higher pay scale of Rs. 4500-7300. The nature of work which they were doing was of the same type as was done by their Head of the Department. Qualification wise there was no distinction between the two sets of employees. Their initial source of recruitment was also the same. Their employer was also the same, namely, ICAR. It is the same employer who had two sets of employees, one governed by ARS system of service and the others who were outside ARS but still very much doing the same type of work as scientists and belonging to the same institution, namely, ICAR, of course forming a separate wing of employees. Under these circumstances, therefore, the doctrine of Equal Pay for Equal Work got squarely attracted . . . .
21. In the case of State of Haryana v. Ram Chander reported in A.I.R. 1997 S.C. 2468, their Lordships of the Supreme Court, after explaining the principle of "Equal Pay for Equal Work" and after cataloguing certain salient features have arrived at the following conclusion (para 12 and 13):
12. . . These aspects deal with the quality of work. So far as the quantity of work is concerned it is well established that in school cadre in Education Department a Lecturer teaches 30 periods in a week, one period is of 40 minutes' duration, i.e., 20 hours in a week whereas the Language Teachers like the respondents teaching in technical institutes teach for 24 hours in a week, one period being of one hour's duration, i.e., 24 hours in a week. Thus even quantitatively the work which the respondents do is more intensive as compared to the work done by their counterpart teachers in higher secondary schools. That the difference in the nomenclature between the two sets of employees, namely, language Teachers like the respondents in technical institutes and Lecturers in higher secondary schools does not represent any substantial cleavage in the quantity and quality of work done by both these sets of employees.
13. In the light of these salient features which are well established on record there would be no escape from the conclusion that but for the difference in educational qualifications both these sets of employees are similarly circumscribed. So far as the educational qualifications' difference is concerned that would have, as noted above, made some vital difference but for the fact that the appellants themselves in their own wisdom thought it fit to ignore this difference in the educational qualifications by offering a uniform time scale of Rs. 1640-2900 to all Post-Graduate Lecturers in higher secondary schools. For all these reasons no fault can be found with the decision rendered by the High Court especially in the light of the latter developments at the end of the appellants themselves who treated all these teachers at par by promulgating the Revised Pay Rules in the light of the recommendations of the Pay Revision Committee as well as Pay Anomalies Commission as noted in details by us earlier.
22. In the case of Swapan Kumar v. Tapas Chakravorty , their Lordships in para 14 have observed thus:
Thus, there is much force in the contention of Shri Satish Chandra that as in the main wing of Inspectors of Factories there are electrical experts, mechanical experts and civil experts, in the chemical wing there are chemical experts. According to us, the learned single Judge of the High Court was right in stating that if electrical, mechanical and civil engineers could form part of one cadre, so could, chemical engineers. Even so, we would agree with the learned Solicitor General that by giving the directions, in question, the High Court almost revised the recruitment, rules which was not within its competence. We also agree that by directing the State to make available the higher post to Deputy Chief Inspector of Factories (Chemical) a legal error was committed, as the same amounted to laying down conditions of service of Government employees, which either the State Legislature in exercise of its powers under Article 309 of the Constitution, or the State Government in exercise of the power under the proviso to that article can do. However, on being satisfied that a strong case for forming a common cadre for all exists, we require the State Government to apply its mind to this aspect of the matter and, so too, to make available the same pay scale to all types of Inspectors of Factories. The distinction which has been; repeatedly highlighted by the learned Solicitor General in the working of different \ wings is, according to us, a distinction without a difference. This submission of the learned State counsel has, therefore, not impressed us.
23. In State of H.P. v. Recognised and Aided Schools Managing Committees , their Lordships of the Supreme Court has held that the teachers in the Aided private schools are entitled to parity in pay and allowances with their counter-parts in Government schools.
24. In the case of Alvaro Noronha Ferriera v. Union of India , their Lordships while considering the aspect as regards principle of "Equal Pay for Equal Work", have made the following conclusion:
para. 11: The parameters for invoking the said principles would include, inter alia, nature of the work and common employer. There can be no two views that the nature of work of District and Sessions Judges is the same though in some areas pendency of cases would be higher than others. Differences in the backlog are not uncommon even in two different stations of the same territory, nay, in two different courts of the same station. Such lopsidedness is hardly the ground to conclude that the nature of work done by one Judicial Officer at one place is different from other. The duty hours would be substantially the same, the powers to be discharged are in no way different, whether they are District Judges in Goa or in Delhi. It would be a futile exercise to make an endeavour for drawing a distinction between the work pattern at the two different places, for such differences are discernible everywhere. But that would not make the nature of work different. It was not necessary to cast the burden of proof on the appellants to establish "the pendency of litigation or the norms filed for disposal of cases by the Delhi Court to enable comparison between the nature of duties and the responsibilities carried by the officers of the Delhi Territory and the Goa Territory.
In that case, the District Judges working in Delhi and in Goa are being paid differently. After holding that both of them are doing the same type of work, their Lordships have directed the Union of India to disburse the arrears of pay to the appellants therein (District Judges from Goa) on par with their counterparts in the Union-Territory of Delhi during the period between 1.3.1982 and 31.3.1987 and the same was Ordered to be disbursed within six months from the date of judgment.
25. In the case of Surinder Singh and another v. Engineer in Cheif C.P. W.D. and others (1986)1 L.L.J. 403, their Lordships of the Supreme Court after reiterating the principle of "Equal Pay for Equal Work", have held that as per Article 39 of the Constitution of India equal pay for equal work should be paid from the date of employment and the Government cannot postpone it.
26. In the case of Karnataka State Private College Stop-Gap Lecturers Association v. State of Karnataka and others (1993)1 L.W. 25, the Hon'ble Supreme Court has held that an appointment may be temporary or permanent, but the nature of work being same, fixation of salary to a temporary teacher by adopting a different method of payment from that of a regular teacher is violative of Article 14 of the Constitution of India.
27. I have already stated that the scale of pay applicable to the post of Secondary Grade Teacher is Rs. 1200-30-1560-40-2040 and the aid scale of pay continues to apply and govern those Secondary Grade posts which are continued to be manned by teachers who are qualified to hold the said post on the date of the impugned Government Order. On the other hand, by the impugned Government Order, a few posts borne on the category of Secondary Grade teacher which becomes vacant on account of retirement, resignation, death etc., are to be filled up with persons possessing the same qualifications with a consolidated pay of Rs. 800 per month. The resultant position would be that there would be two classes of Secondary Grade Teachers possessing the same qualifications and performing the same functions drawing unequal emoluments. In the absence of any such clarification or details in the impugned Government Order with regard to different types of work or lesser work, undoubtedly the impugned Order violates Article 39(d) of the Constitution of India and it would result in unequal pay for equal work. Accordingly the impugned Government Order and the consequential direction of the Director of School Education are liable to be struck down as being ultra vires the Constitution. Even though it is stated on behalf of the respondents that the said reduction is only for a period of two years, in the light of what is stated above, I am unable to accept the contra argument of the learned Additional Advocate General and sustain the contention raised by the learned Counsel for the petitioners.
28. The other, attack on the side of the petitioners is that in view of less bargaining power on the part of the unemployed Secondary Grade teachers all of them were forced to execute an agreement as directed by the Government. Learned Additional Advocate General by drawing my attention to the Agreement executed by the employer, namely, School Management and the employee for appointment to the post of Secondary Grade (Junior) Teacher on consolidated emolument, would contend that in the light of various clauses therein, it is not open to the present writ petitions, and according to him, the same are not maintainable. In this regard, it is contended on behalf of the petitioners that in view of lack of bargaining power, the teachers were forced to execute the agreement due to poverty and unemployment, any agreement affecting fundamental rights is void and not binding. A perusal of the agreement would show that all the Secondary Grade (Junior) Teachers have agreed to abide by certain terms and conditions including a consolidated pay of Rs. 800 per month for a period of two years on duty. Apart form this, it is also contended that having executed a valid agreement abiding by certain terms and conditions on the principle of waiver, the teachers cannot agitate the same before this Court. As rightly pointed out, there is no question of waiver of fundamental rights. In this regard, the following observation by Their Lordships of the Supreme Court in Basheshar Nath v. I.T. Commissioner , is, pressed into service:
It is absolutely clear on a perusal of Article 13(2) of the Constitution that it is a constitutional mandate to the State and no citizen can by any act or conduct relieve the State of the solemn obligation imposed on it by Article 13(2) and no distinction can be made at all between the fundamental rights enacted for the benefit of the individual and those enacted in the public interest or on grounds of public policy.
29. In the case of Central Inland Water Transport Corporation v. Brojo Nath Ganguly The Hon'ble Supreme Court has held that the terms of contract of employment which is unfair unconscionable and against the fundamental rights is void even if it is accepted by the employees. In the said decision, one of the terms in the contract, namely, that even the service of the permanent employee can be terminated by notice with 3 months' salary. Likewise the workman can also leave the employer by adopting the same method. The said clause was considered by the Supreme Court. After highlighting the entire case laws from United States, United Kingdom as well as earlier decisions of the Supreme Court, their Lordships after posing so many questions, have concluded thus: (page 215 in para 89) should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of 19th Century theories? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong strample underfoot the rights of the weak? We have a Constitution for our country. Our Judges are bound by their oath to "uphold the Constitution and the laws" The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances.
I have already observed that at the time of passing of the impugned Government Order, even according to the Government, there were thousands of qualified trained Secondary Grade Teachers waiting for employment. In such a situation, they have no other option except to accept and abide by all conditions mentioned in the agreement. Even though the said agreement is to be executed by the School Management and the teacher, the terms and conditions have been drafted and formulated by the Education Department of the Government. Undoubtedly, the unemployed teachers are in a position of unequality of bargaining power which is the result of great disparity in the economic strength of the contracting parties. In other words, among the two, one of the parties namely, the Secondary Grade (Junior) Teacher is a weaker party and he has no choice but to give his assent to a contract and to sign the same in token of his acceptance, however, unfair unreasonable and unconscionable a clause in that contract or form or rules as observed in the Central Inland Water Transport Corporation case . Asking the weaker party to execute an agreement which contains unconscionable clauses is void and not binding. In such a situation, this Court is competent to strike down the unfair and unreasonable terms in the agreement entered into between the parties who are not equal in bargaining power. This position has been enunciated by the Hon'ble Supreme Court in the following decisions:
(i) Central Inland Water Transport Corpn. Ltd. v. Brojonath A.I.R. 1986 S.C. 1573. (ii) Delhi Transport Corporation v. DTC Mazdoor Congress . (iii) Uptron India Ltd. v. Shammibhan .
Even though it is stated by the learned Additional Advocate General that the said agreement is only between the teacher and the school Management, for the reasons mentioned above, irrespective of the agreement, I am of the view that the teachers are entitled to challenge the impugned Government Orders as violative of Article 14 of the Constitution of India and Section 23 of the India Contract Act. Accordingly; the contentions raised by the learned Counsel for the petitioners on this aspect are well-founded.
30. The learned Additional Advocate General by pointing out the provisions relating to sanctioning of grant or aid, would contend that the Government is well within their power to regulate with regard to the grants or aid and that in a given situation grant or aid can be reduced. In support of the above contention, he very much relied on an unreported decision of P. Shanmugam, J., in Writ Petition No. 6781 of 1993 etc., batch dated 22.3.1999, a decision of S.S. Subramani, J., in W.P.No. 8588 of 1995 etc., batch dated 25.8.1998 and in North Arcot Ambedkhar and Sambuvayar District Recognised Private Aided Primary and Middle Schools Managers and Teacher Managers Association v. The State of Tamil Nadu ,1 have already extracted the relevant provisions from the Act and Rules relating to sanctioning of grant/aid. Even though the learned Counsel for the petitioners have contended that it is not open to the Government to reduce the grant or do away with the payment of grant or aid, the provisions contained in Section 14 of the Act and Rule 11 of the Rules undoubtedly support the stand taken by the learned Additional Advocate General. In other words, in a given situation, it is open to the Government to refuse to provide grant or aid to a particular Institution. Considering the grievance of the petitioners who are mostly teachers, I am of the view that it is unnecessary to go into the said aspect in detail in these writ petitions. No doubt, some of the managements have also filed writ petitions questioning the very same Government Orders. If the other points are acceptable, it is unnecessary to go into the said aspect. Further, it is stated that against all the decisions, namely, W.P.No. 6781 of 1993 etc., batch, dated 22.3.1999, St. Stephen Middle School v. State of Tamil Nadu; W.P.No. 8588 of 1995 etc., batch, North Arcot Ambedkar and Sambuvarayar Distirct Registered Private Aided Primary and Middle Schools Manager and Teacher Managers Association v. The State of Tamil Nadu, dated 25,8.98 and , writ appeals have been filed. Even otherwise, after going through those decisions, I am of the view that they are not directly applicable to the issues in our cases. W.P.No. 6781 of 1993 etc., batch dated 22.3.1999, relate to payment of grant to Education Institutions. The learned single Judge of this Court has upheld the stand of the Government, viz., its inability to provide financial assistance to private schools in view of the present financial position. The question raised in W.P.No. 8588 of 1995 etc., batch dated 25.8.1998 relates to payment of salary to a teacher appointed in a leave vacancy. In the light of the factual position, I am of the view that those decisions are not helpful to either of the parties. In , the question that was decided relates to fixation of staff strength which we are not concerned in the present batch of writ petitions. By pointing out a Division Bench decision of this Court reported in C. Stephenson Roobasingh v. State of Tamil Nadu and others, 1993 Writ L.R. 544, it is contended on behalf of the respondents that power to issue directions rests with the Government. Absolutely there is no dispute with regard to the competency of the Government in the matter of implementation of various Act and Rules framed thereunder. At the same time, it is to be seen whether the statutory provisions or Constitutional mandate are violated while exercising such power.
31. Learned Additional Advocate General by relying on a decision in the case of Union of India v. No. 664950 IM Havildar/Clerk would contend that the impugned Government Orders create equality among the particular group of persons and absolutely there is no discrimination or arbitrariness. In the said decision, the benefit of study leave not making available to the other category of officers except Commissioned Officers in the Army was challenged as violative of Articles 14 and 16. In reply to the said contention it is seen from the particulars furnished by the Army Authorities that for officers of other ranks, there are other institutions where courses are conducted for these categories personnel and by sending them for these courses, proper care is taken to ensure efficiency in the Armed Forces. In fact, the petitioner therein had admitted that two weeks' computer course in Jodhpur University was organised by the Army Authorities. Apart from this, it has also been stated in the counter that there cannot be any dispute that the character and duties of Junior Commissioned Officers and Non-Commissioned Officers are different as compared to that of Regular Commissioned officers. In such circumstance, on the facts of that case, Their Lordships have concluded that if the competent authority thought it fit and proper that the case for study leave for Commissioned Officers should be considered and this benefit should not be given to other categories of officers, as for this category Army Authorities take adequate care for training them in their own institutions or outside, it cannot be said that the impugned Order No. 11 of 1987 is arbitrary or irrational. The facts in that decision are distinguishable and the same cannot be applied to the facts of our cases. I have already demonstrated that down-grading the post of Secondary Grade Teacher as Secondary Grade (Junior) Teacher and asking both of them, namely, the existing Secondary Grade Teacher and the newly appointed Secondary Grade (Junior) Teacher doing same work, however, on a consolidated pay of Rs. 800 p.m. is not founded on intelligible differential and the same has no relation with the object sought to be achieved. Broadly speaking, the concept of equality has an inherent limitation arising from the very nature of the guarantee under the Constitution and those who are similarly circumstanced are entitled to equal treatment. If there is a rational classification consistent with the purpose for which such classification was made, equality is not violated. Article 16 of the Constitution does not bar a reasonable classification of employees or reasonable tests for selection. Equality of opportunity of employment means equality as between the members of the same class of employees and not equality between the members of separate independent classes. Thus it could be held that Article 14 read with Article 16(1) accords right to an equality or an equal treatment consistent with the principles of natural justice. In other words, an employee in a public employment also must not be arbitrarily, unjustly and unreasonably be deprived of his/her livelihood which is ensured in continued employment till it is terminated in accordance with just, fair and reasonable procedure. Otherwise any law or rule in violation thereof is void. Though, there are certain detail in the counter affidavit of the first respondent such as policy decision of the Government, paucity of fund, giving employment avenue to the unemployed candidates, etc., nothing has been elicited in the impugned Government Orders. As observed by the Division Bench of this Court in K. Arunachalam v. State , an Order has to be sustained on the reasons given in the Order and not on the basis of the subsequent reasons given in the counter affidavit. Likewise, even though it is stated in many places that the first impugned Order as well as the subsequent Orders were emanated in view of the policy decision of the Government, it is settled law that even the policy decision cannot violate the fundamental rights enshrined in Articles 14 and 16 of the Constitution of India. In this regard, it is worthwhile to refer a decision of the Hon'ble Supreme Court reported in K. Narayanan v. State of Karnataka (1991)1 S.C.C. (Supp.) 44, wherein their Lordships have held thus:
... A policy decision taken by the Government is not liable to interference, unless the court is satisfied that the rule-making authority has acted arbitrarily or in violation of the fundamental rights guaranteed under Articles 14 and 16....
I have already demonstrated how the impugned Order is violative of Articles 14, 16 and 39(d) of the Constitution of India.
32. It is also held by the Hon'ble Supreme Court in Surinder Singh v. Engineer in Chief, C.P.W.D. (1986)1 L.L.J. 403, that in terms of Article 39 of the Constitution of India equal pay for equal work should be paid from the date of employment and the Government cannot postpone the equal pay to a latter date.
33. Though all appointments for the post of Second Grade Teachers and others posts were brought into regular scales of pay with effect from 1.9.1992 in G.O.Ms.No. 20, Education Department, dated 8.1.1993 and G.O.Ms.No. 495, Education-M 1 -Department, dated 19.5.1993, the monetary benefits were given only form 9.4.1996 i.e., the date of the Order, No. 279, Education, dated 9.4.1996. For the reasons mentioned in the earlier paragraphs, I hold that all the persons for whom appointments were made under G.O.Ms.No. 1524, Education, dated 12.11.1990 and G.O.Ms.No. 1669, Education, dated 13.12.1990 be given regular scale of pay from the respective date of appointment and they are also entitled monetary benefits from the date of their respective initial appointment. No reason was assigned in G.O.Ms.No. 279, Education, dated 9.4.1996 and G.O.Ms.No. 5, Education, dated 6.1.1997 for giving monetary benefit only with effect from 9.4.1996, when all the teachers and other persons, appointed earlier, are getting time scale of pay and performing the same work. Though the Government after realising the mistake, brought all those persons into regular scale of pay with effect from 1.9.1992, the reasons for giving monetary benefit from 9.4.1996 is not explained. In the absence of any reason, the action of the Government cannot be sustained. As a matter of fact, learned Additional Advocate General is also not in a position to sustain the Order giving monetary benefit from 9.4.96. As observed in Surinder Singh v. Engineer in Chief C.P. W.D. (1986)1 L.L.J. 403 in terms of Article 39(d), equal pay for equal work should be paid from the date of employment and without any reason much less acceptable reason, the Government cannot postpone the equal pay and fix a future date arbitrarily.
34. Under these circumstances, the impugned Government Orders down-grading the posts of Secondary Grade Teacher and Specialist Teacher drawing Secondary Grade scale of pay as Secondary Grade (Junior) Teacher and Specialist Teacher (Junior) respectively on consolidated emoluments of Rs. 800 per month in Government, Local Body (Municipal/Corporation/Township/Panchayat Union) and Aided Schools in the year 1990-91 on account of retirement, resignation, death etc., are void. All appointments made in pursuance of the impugned Government Orders shall be treated as regular appointments and the petitioners are entitled to regular time-scale of pay with effect from the date of their respective initial appointments and not from the date as indicated in the Government Orders. The impugned Government Orders and other Orders/proceedings issued thereto are quashed. Consequently all the writ petitions are allowed. No costs in all the writ petitions. All the interim petitions are closed.