Bombay High Court
Maximiana Fernandes And Anr. vs The Director Of Education And Ors. on 30 September, 1994
Equivalent citations: 1995(4)BOMCR115
JUDGMENT G.D. Kamat, J.
1. The essential controversy in this batch of writ petitions instituted by teachers is whether Pre-primary education is included within the meaning of "school" under the Goa, Daman and Diu Education Act, 1984 and whether the action of the Government in not providing grant-in-aid to Pre-primary schools is discriminatory.
2. This controversy has arisen as a result of new policy introduced by the State Government in providing grant to non-Government Primary schools so as to bring the Primary school teachers on par with teachers in Government Primary schools viz. scales of pay and other service conditions.
3. To appreciate the controversy in these petitions, it is useful to set out the historical back-ground. Goa became a part of Union of India upon liberation in December, 1961. Prior to liberation of Goa, the education policy recognized learning Portuguese. For that purpose, the Government had established Primary schools with Portuguese as medium of instruction in some places in Goa and the Apex Education was available at an institution called Lyceum. No post-graduation educational facility was available except for a school in Medicine and courses like Pharmacy and Teaching. Despite Government policy, Primary schools with Marathi as medium existed of which generally Hindus took advantage and then shifted to Portuguese or English medium schools. A large number of Secondary schools with English medium existed in Goa which were at first affiliated to the University of Bombay and subsequently to the S.S.C. Board, Poona. The result was the students in Goa had to take centres like Bombay, Poona, Belgaum and Dharwar for S.S.C. Examination. Upon completion of S.S.C. Examination, those desiring of having higher education had to necessarily go out of Goa and the concentration was at places like Bombay, Belgaum, Poona and Dharwar. All these private Primary and Secondary schools were started either by individuals or missionaries or other voluntary Organizations which were run on fees collected from students with the result the teachers were paid inadequate and low salaries.
4. Things rapidly changed once the liberation of Goa took place. Regard being had to the Directive Principles as enshrined in the Constitution of India, a number of schools were established by the Government as also by private Managements. Colleges were also started with affiliation to the University of Bombay. Diocesan Society started Pre-primary and Primary schools.
With a view to encourage and develop school and College education and to regulate them in exercise of powers conferred by Clause (2) of Goa, Daman and Diu (Administration) Removal of Difficulties Order, 1962, Rules were enacted known as the Grant-in-aid Code for Secondary schools, Colleges and other educational institutions, except the Primary schools in the then Union Territory of Goa, Daman and Diu. The Department of Education had to grant recognition to schools as also required to permit starting of new schools. Various regulatory provisions were made in the Code. With a view to ameliorate service conditions of the teachers, for the first time, security for jobs was provided against dismissal, retrenchment and in matters of payment of salaries to the teachers. With a view to lighten the financial burden upon the privately managed schools, a new pattern of financial assistance was introduced. Schools were permitted to charge reasonable fees with ceiling from the students and the Government reimbursed the schools to the extent of 66.66% of the expenditure. This pattern continued upto 31st March, 1972. From 1st of April, 1972, the financial pattern was modified and Government bore 100% salaries of the teachers with Managements' contribution of Provident Fund. Collection of fees from students of Secondary schools was stopped and by way of maintenance grant, the non-Government schools were paid 10% of the total salaries and Rs. 10/- per child per annum by way of maintenance grant. This pattern introduced a uniform scales of pay to graduate and non-graduate teachers with or without training qualifications on par with Government scales.
Having found that a large number of teachers got stagnated in the scale upon reaching the maximum scale, selection grade was introduced, but however, restricted to 15% of the teachers in the category of both graduate and non-graduate teachers.
5. This pattern, it appears, continues till this date despite the Grant-in-aid Code came to be revoked with the enforcement of Goa, Daman and Diu School Education Act, 1984 which was enacted by the Legislature of Goa and brought into force with effect from 14th November, 1986. The Primary schools which were kept out of the grant-in-aid under the Grant-in-aid Code, 1962 were continued as such. In other words, Primary schools did not get any financial assistance. The result was the Management of the primary schools charged fees to the students as also there was no question of enforcing any uniform scales of pay insofar as the Primary schools were concerned. There was a large disparity in the pay-scales of Primary teachers in different Managements as also no question of yearly increments and no security of job. The result was sometime hire and fire policy was also in vogue.
6. A large number of Government Primary schools had been set up in the then Union Territory as a result of which there was a great disparity not only in pay-scales between Government employed Primary school teachers on one hand and teachers of the privately owned primary schools on the other, but also in service conditions. Such disparity was not only common in Goa but it appears that prevailed outside Goa too.
7. This disparity was made the bone of contention before the Supreme Court by Frank Anthony Public Schools Teachers Association. A writ petition filed by the said Association came to be disposed of by the Supreme Court on 17-11-1986 by which on viewing the provisions of Delhi Education Act, 1973 a direction was given to the Management of Frank Anthony Public School to pay to the teachers salaries of pay and bring the service conditions on par with corresponding Government schools. This judgment of the Supreme Court became the basis of the writ petition instituted by All Goa Private Schools (Pre-primary and Primary Teachers) Association and others. Accordingly a Writ Petition bearing No. 302 of 1988 was instituted whereby a challenge was thrown in the first place to section 14 of the Education Act, 1984 as also a prayer directing the private Management to pay scales to Primary teachers on par with the scales paid to Government Primary teachers in the Territory. A Division Bench of this Court disposed of that petition on 7th/8th November, 1989 whereby a direction was made that Primary teachers are entitled to scales irrespective of aid on par with salaries paid to Government Primary teachers. Sub-section (1) of section 14 of the Goa Act was also struck down as being ultra vires Article 14 of the Constitution except to the extent it makes inapplicable section 11(2) to unaided minority schools. A direction was also given to the State Government to enforce the provisions of certain sub-sections of sections 11 and 13 as against the private Management.
8. The Management of the private schools in Goa were unable to face the burden of the enhanced scales of pay of their Primary school teachers on the ground that the collection of fees cannot make both the ends meet with the result that the Primary schools faced the danger of being closed down.
9. In 1987 Goa became an independent State within the Union by virtue of the Constitutional amendment as from 30th May, 1987. Upon appreciation of difficulties of the Managements conducting Primary school education, a new policy was introduced whereby it was held out that those Primary schools which would introduce mother tongue Konkani as a medium of instruction shall be entitled to grant-in-aid. The introduction of mother tongue as a medium of instruction was sought to be brought about in a phased manner starting with the 1st standard for the year 1990-91. By Circular No. 61 dated 21st of May, 1990 this policy was to be put into effect. The medium of instruction at primary stage in all Government and non-Government recognized schools was to be the mother tongue of the child, i.e., Konkani/Marathi/regional language of the State. The Circular further stated that as far as the existing Primary schools are concerned, medium of instruction in Konkani/Marathi/regional language shall be introduced with effect from academic year 1990-91 in a phased manner beginning with Standard I from June, 1990. The result was that there could not be any admission to English medium Standard I. The Government also devised training facilities to teachers of non-Government Primary schools to enable them to switch over from English to mother tongue. This new policy was held out to be also in consonance with Rule 6 of the Goa, Daman and Diu Schools Education Rules, 1986. For that matter, Rule 6 reads as under :--
"Teaching in the school at the primary stage shall as far as practicable be in the mother tongue of the child unless the parents or guardian of the child requests otherwise in writing.
Proviso ... ... ... ...
Proviso ... ... ... ..."
Schools switching over to Konkani as a medium of instruction were assured pattern of assistance viz. salary grant. Primary schools which did not want to introduce Konkani as a medium of instruction and prepared to remain without financial assistance were permitted to raise fees for Standard I to II Rs. 40/- per month and Standard III and IV Rs. 50/- per month. The schools were accordingly directed to make their option before 10th June, 1990 and give information in proforma "A". Information regarding students strength of the schools and teachers had to be given in proforma "B". The pattern of financial assistance is 100% salaries of teachers and the Primary schools are at liberty to charge fees at the rate of Rs. 15/- per month per child by way of maintenance. Disparity of financial assistance however exists between Primary (I to IV) and so-called Secondary (V to X) schools.
10. By an Order bearing No. DE/Acad.I/Policy Decision/Medium/P/34/90/35 dated 14th November, 1990 the Director of Education directed that the Government proposed to release grants to non-Government recognized Primary schools which have switched over to regional language/mother tongue as a medium of instruction for the academic year 1990-91, at the same time assuring the Management of the schools that whichever school switched over to regional language for the next academic year 1991-92 would be also entitled to grants with retrospective effect from June, 1990 but those schools which will switch over subsequently would be entitled to get grants only prospectively. Needless to say that the grants to be released to meet the expenditure was on pay and allowances to teachers at the rate of 100% of the approved scales as laid by the Government from time to time. A further condition was brought about that the staffing pattern of aided Primary schools will be on par with Government Primary schools and no other expenditure shall be admissible for further release of grants and the schools were, however, allowed to collect fees at Rs. 10/- per month from students but there was an embargo brought about that no other fees or donations shall be received. A further Circular was issued on 16th of August, 1991 by which the Management of the Primary schools were called upon to submit their claims.
11. Claims were preferred by the Management which it appears created quite a rumpus and brought about a large number of complications viz. entitlement to Government-approved scales in schools which were having Pre-Primary and Primary classes. Since these two sections had been all along out of purview of financial aid pattern there was no distinction made between the teachers teaching in Primary and Pre-primary sections. A large number of teachers who were recruited depending upon the exigencies were asked to teach either in Primary or Pre-primary classes without any fixed principles/norms. Then again teachers who taught at Pre-primary level were made to teach in Primary and Primary teachers were made to take classes in Pre-primary sections in the absence of any fixed norms. It appears that since the Primary and Pre-primary sections were not recognized as such by the Government, there was no fixed recruitment policy with the result there was no eligibility conditions insofar as the educational qualifications were concerned as also training qualifications. Large number of Primary teachers had not been trained at all and, secondly, there was no distinction between graduate teachers and non-graduate teachers nor, for that matter, training qualifications, degree or diploma. With a view to resolve this tangle the Government was forced to issue a Circular on 13th September, 1991. The Government decided that seniority should be the criterion and the seniority of the teacher to be reckoned from the date of appointment. This Circular also stated that whatever cases decided earlier will have to be reviewed in the light of the new policy decision and the teachers who were found to be in excess on the application of student-teacher ratio as existing in the Government schools were liable to be retrenched, at the same time holding out that retrenched teachers would be absorbed in available vacancies on humanitarian grounds.
12. With a view to contend that there is no distinction made between Primary and Pre-primary teachers, it has been urged that the Act of 1984 does not make any distinction between a Pre-primary and a Primary or Middle school or Secondary and Higher Secondary schools. This has been urged to show that there cannot be any disparity between the pay of Pre-primary teachers and Primary teachers.
Several provisions of the Act of 1984 and Rules of 1986 made thereunder are shown in support of the contention that the Pre-primary is included in Primary schools and/or part of it and once recognized, all the sections-Pre-primary, Primary, Middle and Secondary get recognized. It may be mentioned in the first instance that Act of 1984 does not in specific terms say that Pre-primary and Primary schools shall not be eligible for receiving grant-in-aid. But such a provision is, however, made in Rule 49 which states as under :
"Every application for Grant-in-aid by a School Management having a Society registered under Societies Registration Act, 1860 shall be made in Form II and shall be addressed to the Director of Education or any officer authorised by him in this behalf and every application for the yearly assessment of grants shall be made in Form prescribed by the Director of Education.
Provided that no pre-primary or primary school shall be held eligible for receiving grant-in-aid."
A bare reading of this Rule will make it clear that the School Management is entitled to make an application for grant-in-aid addressed to the Director of Education in the prescribed form. The proviso, however, says that Pre-primary and Primary school shall not be eligible for receiving grant-in-aid. As the Rule stands, it is clear that in the matter of grant-in-aid, Pre-primary and Primary schools were put on par.
The Act of 1984 in section 2 contains various definitions and under section 2(u) a school is defined to include a Pre-primary, Primary, Middle, Secondary and Higher Secondary schools and also includes any other institution which imparts education or training below the degree level but does not include an institution which imparts technical education.
13. Learned Counsel in support of the petitions have banked upon this definition to say that when the school includes Pre-primary, there is no scope for the Government to exclude Pre-primary from affording grant-in-aid. For that matter, under section 2(t) a 'recognized school' would mean a school recognized by the appropriate authority. Section 5 empowers the appropriate authority to accord recognition to any school upon an application made. Predicates are mentioned, the fulfilment of which makes the prescribed authority to grant recognition under the Act. Section 7 contemplates aid to only schools which are recognized. Section 11 speaks of terms and conditions of service of employees of recognized private schools whereby Government is empowered to make Rules regulating the recruitment laying down minimum qualifications for recruitment and service conditions of employees of recognized private schools. Section 12 speaks of Code of Conduct to be prescribed and upon breach of which disciplinary action to be prescribed. Section 13 lays down as under :--
"The scales of pay and allowances, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not be less that those of the employees of the corresponding status in schools run by the Government :
Provided that where the scales of any pay and allowances, pension, gratuity, provident fund and other prescribed benefits of the employees of any recognised private school are less than those of the employees of the corresponding status in the schools run by the Government, the Director shall direct, in writing, the managing committee of such school to bring the same up to the level of those of the employees of the corresponding status in schools run by the Government :
Provided further that the failure to comply with such direction shall be deemed to be non-compliance with the conditions for continuing recognition of an existing school and the provisions of section 5 shall apply accordingly :
Provided also that in each recognised school, which does not receive any aid, there shall be a fund, to be called "the Employees Retirement Benefit Fund", and there shall be credited to that Fund every contributions made by the school and the employees towards retirement benefits."
14. From the aforementioned it is clear that the scales of pay, allowances, pension, gratuity etc. are brought on par with the teachers of the corresponding status in schools run by the Government.
15. The contention, therefore, now is whether Pre-primary or Primary schools both are on par with Secondary schools and therefore there can be no distinction made except in violation of Article 14 of the Constitution.
16. Article 45 of the Constitution of India prescribes that the State shall endeavour to provide for free and compulsory education to all children until they complete the age of 14 years. This Article though found in part IV of the Constitution it is contended that it is nothing short of a mandate and has to be read along with Article 21 of the Constitution, i.e., "right to life". It is, therefore, submitted by the learned Counsel that this mandate was recognized even before the Supreme Court delivered the judgment in Unni Krishnan, J.P. and others v. State of Andhra Pradesh and others etc. etc., , for the State Government in Rule 5 of the Rules under the heading "free education" stipulated that the Administrator shall make suitable arrangements for imparting free school education for all children upto the age of 14 years. In Sub-rule (2) it is stated "except as otherwise provided in Rule 144 no school maintained or aided by Government shall levy any fee or other charges in relation to the education of the children studying upto 10th class".
Not much efforts are necessary to view that in terms of Rule 5 the Government is under a mandate to impart, in the first place, free education to all children upto the age of 14 years and, secondly, an embargo in the matter of collection of fees from students studying upto 10th class which class leads to the Secondary School Certificate Examination and which examination is the first public examination in the life of a student. It is indeed true that in Rule 144 of the Rules, scales of fees, the rate of tuition fees and term fees have also been mentioned. Under item at serial No. 1 the reference is to Pre-primary till Standard IV. As against this entry tuition fees and term fees are nil. For Standards V to VII, term fee prescribed is Rs. 5/- and from Standard VIII to XII it is Rs. 8/-. As far as tuition fee is concerned it is prescribed at the rate of Rs. 20/- for XI and Rs. 30/- for XII Standard. Admission fee between Rs. 5/- and Rs. 8/- has been prescribed for Standards V, VI, VII, VIII, IX and X. Pre-primary and Primary unaided schools are allowed to charge tuition fees upto Rs. 10/- per month and unaided Secondary schools tuition fee is upto Rs. 15/- per month, that too, with the prior approval of the Director of Education.
17. Since the School includes a Pre-primary school or section of a school which caters to Primary, Middle and Secondary and when Rule 144 also makes reference to Pre-primary, an argument is sought to be raised that it is an additional ground to hold that pre-primary is also included and recognized for all purposes inclusive of grant-in-aid and, therefore, the action of the Government to now restrict grant-in-aid to Primary schools thereby discriminating Pre-primary is not at all justified. The second argument is when the Constitution and the Rules provide that the education upto the age of 14 years is free and when a child desires to have Pre-primary education such education must also be free and, therefore, it is incumbent upon the Government to see that Pre-primary education is also made a free education to all students below the age of 14 years and with a view to sustain such Pre-primary education it is clearly incumbent upon the Government to aid these Pre-primary schools and if that is not done it goes counter to the Directive Principles enshrined in Part IV of the Constitution of India.
18. Referring to the decision of the All Goa Private Schools, Pre-primary and Primary Teachers Association and others v. State of Goa and others, 1990(1) Goa Law Times 47, Mr. Nadkarni sought to contend that a Division Bench of this Court did not make any distinction between Pre-primary and Primary schools. It was then fairly pointed that the Division Bench had no occasion to adjudicate, but however, observed that in the absence of any challenge the Court cannot go into the legal aspects. It was further pointed out that in that report an observation was made that there are many States in this country where there is no distinction made between Pre-primary, Primary, on one hand, and Secondary schools, on the other, but the Division Bench, however, left the matter for the State to give a fresh thought on the subject. It was, therefore, submitted that a time has now come for this Court to decide that there can be no distinction between various sections in school, be it Pre-primary, Primary, Middle or Secondary.
19. The judgment in Unnikrishnan's case, 1993(1) J.T. 474, was profusely relied upon. It is true that in this decision the Supreme Court laid down that the citizens of this country have a fundamental right to education and the said right flows from Article 21. But however, the Supreme Court held that that right is not an absolute right and its contents and parameters have to be determined in the light of Articles 45 and 41. It was also observed that every child citizen of this country has a right to free education until he completes the age of 14 years and thereafter his right of education is subject to the limits of economic capacity and development of the State. Upon reading several passages, it was contended that the whole thrust in the case is that the State has to fulfil its obligation to render free education to every child under 14 years of age. Since Pre-primary education starts from the bottom, it was contended that that becomes a part of the first formal education which cannot be ignored. Do not go by what prevails in other States but find out what is the normal education in Goa and if the Constitutional mandate so requires make that education free upto the age of 14 years, was the hallmark of the arguments in the petitions on behalf of the protagonists.
20. The learned Advocate General, the learned Counsel appearing for the respondents, has sought to make, in the first place, a distinction between Pre-primary education, on one hand, and education commencing from Primary section, on the other hand. For that matter, it was contended that Pre-primary education is simply a luxury. For formation and development of a child the real education starts only at the Primary level. It was sought to be pointed out that, ordinarily, the Pre-primary education consists of what is known as Montersorie and Kindergarten which, at any rate, is no education at all, except that it consists of learning some sort of hygiene and discipline. In any case, it was pointed out that only wards below age of 5 receive Pre-primary education which is at all times restricted to affluent class.
Section 18 of the Act says that a child who has not attained the age of 5 years on or before 1st day of June (subsequently changed to 1st October) of the year in which the admission is sought shall be admitted to Class I or an equivalent class or in higher class than Class I in a recognized school. It is now pointed out that the real education begins when the child completes the age of 5 years and that is the time when the Primary education starts. It is, therefore, contended that in any case though the definition of a school may include Pre-primary as a section of that school, the Act and the Rules do not recognize the Pre-primary section and, therefore, the pre-primary section of a school cannot be considered as part of school which is recognized for the purposes of this Act and when this be the position, it is contended that Pre-primary does not become entitled to any aid or that the Pre-primary cannot be brought within the fold so as to entitle to grant-in-aid. The thrust is that Pre-primary education is not recognized.
21. We have already mentioned earlier that as an aftermath of the judgment in Frank Anthony's case, A.I.R. 1986 S.C. 311, the Goa Government as a matter of policy decided that the school conducting Primary classes are eligible for grant-in-aid, that is to say, that the teachers are entitled to scales of pay as are available to their counterparts in schools run by the Government and the Government thought of paying salary to the Private schools on those basis subject, however, to the condition that in accordance with the mandate of the Act the schools switch over to the mother tongue Konkani or Marathi or some other regional language as the case is. The result today is that aided private schools which impart Primary education are brought on par with Middle and Secondary schools in the matter of pay scales and also in the matter of payment of salaries. The first of the questions to ask is merely because Article 45 of the Constitution and Rule 5 of the Rules of 1986 mandates imparting free school education upto the age of 14 years would also include Pre-primary education. In our view the Pre-primary education can by no stretch of imagination be considered to be an education required for the progress and development of a child and our finding is that the real education starts from Standard I which is the 1st class in the Primary section. There is enough justification to hold that Pre-primary education for children below the age of 5 years is nothing but a luxury and where, in reality, there is no academic education in the strict sense. The other aspect is whether a child below the age of 5 is liable to be taxed except at the peril of development of the child at some future date. Experience has shown that children starting education early in life-extremely intelligent children excluded-merely because their parents are in the race, have subsequently shown either disinterest in education or their progress is slower in higher classes. The National Policy on Education of Government of India which has envisaged the starting point of education after the completion of 5 years and which has been incorporated in Rule 5 of the Goa Education Rules has come after experience. Viewed thus, it is inconceivable that any education prior to 5 years of age can at all be considered as education of a school.
22. We now come to the next facet of the argument: whether the Act of 1984 and the Rules of 1986 made thereunder recognize Pre-primary schools so as to become recipients for grant-in-aid. In our view, answer to this question must be in the negative. Though it is true that under the definition of section 2(u) "school" includes a Pre-primary school along with Primary, Middle and Secondary school, such a definition is merely inclusive definition and it does not give a lever in the hands of the protagonists to contend that Pre-primary school is recognized by the Act. On the contrary, upon looking to various provisions which we have already seen it becomes clear that what is recognized as an education starts from Primary level. Coming back to Rule 5 it is again clear that no child can go to 1st Standard which is the starting point of Primary school unless the child attains the age of 5 years as on 1st of October of the year in which the admission is sought. Therefore, Pre-primary education is out of the purview before the age of 5. Secondly, it is impossible to accept that the parents will introduce a child in Pre-primary section at the age of 5 when the child can adequately take up education in the 1st Standard of the Primary education. Rule 144 though makes a provision as if to show that the school shall not charge any tuition fees or admission fees for Pre-primary section, the Act and the Rules do not recognize Pre-primary education.
23. Indeed it is true that the definition of "school" in section 2(u) includes a Pre-primary, Primary, Middle, Secondary and Higher Secondary schools, but in our view, that definition is of a general nature. Though the definition of a "school" which includes Pre-primary is wide in nature, the same should be restricted in its application to the recognition of a school mentioned elsewhere in section 7 of the Act. The reason as to why Pre-primary was included in the definition of "school" under section 2(u) is to suggest that the Government has power to regulate even Pre-primary education within the State. Section 7 of the Act in clear terms says that aid shall be given only to recognized schools and once the Pre-primary section is not a recognized school or a section of a school, it does not become entitled to aid.
We are fortified in the view we have taken by some expert opinion. For instance, the Ministry of Human Research and Development, Department of Education, Government of India, while laying down National Policy on Education as late as 1992, observed in para 3.3, part III, as under :-
"The National System of Education envisages a common educational structure. The 10+2+3 structure has now been accepted in all parts of the country. Regarding the further break-up of the first 10 years efforts will be made to move towards an elementary system comprising 5 years of primary education and 3 years of upper primary, followed by 2 years of High School. Efforts will also be made to have the +2 stage accepted as a part of school education throughout the country."
It is true that in the decision of Unni Krishnan J.P. and others v. State of Andhra Pradesh and others etc. etc., , the Apex Court held that right of education is implicit in the right to life and, therefore, every child has a right to free education upto the age of 14 years, but thereafter, the obligation for the education is subject to the limits of its economic capacity and development.
What is however not less important to notice is that while turning to the expression "Education at all levels" which was extracted from Mohini Jain's, case , the Supreme Court observed that education at all levels cannot include higher education but needs to be confined to Article 45 of the Constitution. On a parity of reasoning, therefore, when the National policy on education and the policy of the Goa Government is to afford education for children who are beyond the age of 5 as on 1st October of the year in which admission is sought in the 1st Standard, it is inconceivable that Pre-primary education can be included in a school.
24. It must be also borne in mind that no privately owned school as of right can claim financial assistance from the Government and this has been well recognized by authorities of the courts. This apart, it may be mentioned that in the decision of The Principal and others v. The Presiding Officer and others, , it has been held that between a recognised school and a school affiliated to Central Board of Secondary Education, New Delhi, it is only the recognised school by the Department of Education that is entitled to financial assistance, and this much has been clearly stated in section 7 of Goa Act. Once Pre-primary school is not recognized there is no question of such a school section becoming entitled to financial assistance. It is, therefore, clear that the scheme and object of the Act of 1984 does not include Pre-primary education for the purposes of its recognition or treats Pre-primary education as part of the school from Standards I to X + XI and XII. It must be, therefore, concluded that when Pre-primary education and the school section are kept out of the recognition as a class, there is no discrimination merely because schools conducting classes from Primary to Higher Secondary education are made amenable to financial assistance. There is no discrimination whatever.
25. We have already mentioned elsewhere in the judgment the scramble for approved scales by the teachers when from the academic year 1990-91 the Government by way of policy decision decided grant-in-aid to schools imparting Primary education in Konkani medium. Large number of schools, most of which belonged to Diocesan Society, had been conducting both Pre-primary and Primary education. Since prior to 1990 in the absence of uniform service conditions and scales of pay or any uniform recruitment policy, teachers were recruited and made to teach either in Primary or Pre-primary section or in both. Second aspect was that Primary teachers were made to teach in Pre-primary sections and vice-versa. In certain situations we came across very senior teachers teaching in Pre-primary sections because they were good at looking after youngsters continued where they were whereas the just recruited teachers were assigned the duties at the Primary section. From the academic year 1990-91 as a result of the Government policy freshly recruited teachers started getting salaries on par with teachers run by the Government. The disparity was such that it made difference in several hundreds of rupees. Teachers in Pre-primary and Primary schools were paid meagre salaries and, in any case, such salaries never exceeded Rs. 800/- whereas a teacher in Government service was getting anywhere around Rs. 2000/- per month. By virtue of sheer accident a newly recruited teacher who was assigned Primary section was to receive such a jump in the monthly packet which is bound to leave heartburning insofar as teachers who were recruited earlier and again by sheer accident were made to teach in pre-Primary section. The Government devised by virtue of Circular issued on 14th August, 1990 the rule of seniority. The result was even teachers who were teaching in Pre-primary schools in some cases were made entitled to new pay scales and they were sought to be brought in the Primary section. These are the basis upon which this batch of writ petitions were filed by persons who were left out and by others who thought that they cannot be excluded.
26. The fate of each of the petitions depends on its own facts which need to be appreciated on the material produced but it is not possible for this Court to dispose of these petitions unless this Court endeavours to go into the facts which in many petitions are also under dispute.
27. During the course of the hearing we have come across some orders made by the Officers of the Education Department which are incongruous to one another. It has, therefore, become necessary for this Court to lay down adequate guidelines so that the guidelines thus laid down shall not only take care of the present batch of petitions but also will meet future eventualities, if any. No less important is when the guidelines are uniformly followed and applied to the facts of a given case, the decisions made will become uniform. The laying down of the guidelines is also necessary so that the tangle presented in various petitions is resolved and the teachers do not become victims of either arbitrariness or involuntary action on the part of the Management and also on the part of the Department.
28. While laying down the guidelines it must be borne in mind that recruitment of teachers is provided for under Chapter VIII vide Rule 74 onwards. Rule 78 prescribes the qualifications not only for recruitment but also for promotion of teaching staff while laying down the categories in column No. 2 from Principal downwards. Rule 87 under the title "Seniority" reads as under:-
"(1) Seniority of employees in each category shall be determined by the order of merit in which they were selected for appointment to the concerned post, and those selected on an earlier occasion being ranked senior to these selected later.
(2) Inter-se seniority between direct recruits and promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on quotas of vacancies reserved for direct recruitment and promotion respectively. In case of doubts, the detailed instructions issued by the Government in this behalf in respect of Government servants shall be followed, and, wherever there is a dispute the case shall be referred to the Director of Education and his decision in the matter shall be final."
From the aforesaid it is clear that the seniority is to be reckoned from the date of appointment and those selected on earlier occasion are ranked senior to those selected later. It is, therefore, not possible to ordinarily by-pass seniority which is always recognized in service jurisprudence. We have already mentioned elsewhere that prior to the academic year 1990-91 and before Primary schools were recipient of financial assistance, schools which had both Primary and Pre-primary sections interchanged the teachers to teach in one or the other section.
Having found that in some cases teachers from Primary section were made to teach in Pre-primary and vice versa, it is necessary to take into consideration some claims made. From justice-oriented approach it is required to sort out those matters also. If the transfers had been in long existence then it is difficult to disturb such an arrangement. A notional date will have to be fixed so that the transfers inter se Primary and Pre-primary are confined and not made to go haywire. In our judgment, the date on which the Education Act was enforced be held as the crucial date for such eventualities viz. 14th November, 1986. These positions will have to be borne in mind for the purposes of guidelines we propose to give.
29. On a correct perspective and appraisal of all aspects of the matter, we propose to lay down the following guidelines :-
(1) The principle of seniority of a teacher cannot be given a go-by. The seniority of a teacher viz. the date of first appointment must be reckoned from the date of the appointment.
(2) If two teachers are appointed on the same date and they have taken the assignment on the same day, the teacher who has superior educational qualifications and/or Degree/Diploma in teaching shall have to be reckoned senior to the other. If all things are equal, the inter se seniority of a teacher shall be based upon the age. A teacher older in age shall come first.
(3) A teacher appointed to Primary section and continued to teach in that section until 1990-91 such teacher shall remain in the Primary section. Any teacher who had been teaching in Primary section and transferred to Pre-primary section after 16th November, 1986 shall be entitled to be brought back to Primary section and the seniority will be reckoned from the date of original appointment.
(4) A teacher appointed to Pre-primary section if made to teach in Primary section and who continues to teach in that section for the academic year 1990-91, in that case that teacher (i) can be accommodated in Primary section reckoning the seniority from the date of bringing her in that section and provided she falls within the student-teacher ratio; (ii) in the event there is no place for her in the Primary section on the basis of student-teacher ratio, she will have to be reverted to the Pre-primary section.
(5) When the appointment letter of a teacher does not indicate to what section appointment was made, the case of such teacher shall be covered in the light of the Guidelines already indicated above.
(6) A teacher transferred from one school to another in a different place under the same Management, the seniority of such teacher shall be reckoned from the date of original appointment provided it is found that practice of transfer from one school to another was in vogue.
30. As we mentioned earlier on an application of the above guidelines, it is not possible for this Court in writ jurisdiction to appreciate facts or go into the disputed questions. We, therefore, do not propose to go into the facts of writ petitions and leave the matter to be decided in the light of guidelines given. The Director of Education is directed to appoint a Committee of 3 Officers of the Department preferably 1 Deputy Director, who shall be the Chairman, and 2 Assistants Director of Education, who shall go into each and every case covered under the petitions. Such a Committee shall dispose of the individual cases by adhering to the guidelines set out in this judgment. The Committee to decide the cases covered under these writ petitions within a period of 3 months from today. Whatever interim orders made in the petitions shall stand until the matters are decided in terms of the directions made.
Petitions accordingly disposed of and Rule made as indicated in each of the petitions. Parties are, however, left to bear their own costs.