Karnataka High Court
S.S. Anand And Others vs The Management Of Mahatma Gandhi Vidya ... on 27 January, 1998
Equivalent citations: 1998(3)KARLJ293
Author: Tirath S. Thakur
Bench: Tirath S. Thakur
ORDER
1. The short question that falls for consideration in these writ petitions is whether the petitioners are entitled to the benefit of the pay scales admissible to employees holding equivalent posts in the Government Educational Institutions. The question arises against the following backdrop.--
The petitioners are working as non-teaching employees of the respondent-Society, who has among other Institutions established what is known as Dayanandasagar College of Engineering at Bangalore. The College, it is not in dispute, is recognised by the Government of Karnataka and the All India Council for Technical Education. It is affiliated to the Bangalore University under the Karnataka State Universities Act, 1976.
2. The grievance of the petitioners is that they have been working as permanent non-teaching employees for more than 10 years in the aforementioned College against different posts such as Instructors, Programmers, Clerks, Mechanics, Helpers and Attenders in various Departments of Engineering. They were appointed initially on a consolidated salary ranging from Rs. 150/- to Rs. 1500/- depending upon the post held by them, which payment was in no way commensurate with the nature of the work assigned to them or equivalent to the scale of pay attached to similar posts in Government Institutions. Regular pay scales were denied to the petitioners and so were the annual increments despite their long service. The Institution has not maintained even the requisite Service Registers nor has any leave benefit been given to them as per the rules and the norms prescribed by the Department of Technical Education. The Management, it is alleged, had despite repeated requests and representations, failed to consider the petitioners' claim for grant of regular pay scales, thereby causing severe financial hardship and insecurity to them. A mandamus directing sanction and disbursement of the pay scale admissible to employees working against similar posts in Government Institutions has been claimed in the above background.
3. The respondents have contested the claim made by the petitioners. The objections filed by them point out that the petitioners had been appointed from time to time without following the regular method of recruitment. It is urged that most of the petitioners do not fulfil the conditions of eligibility prescribed for the equivalent post in the Government Institutions. The appointments of the petitioners, it is alleged, were made purely on humanitarian grounds and even though they are being paid a consolidated salary, the same was by no means a small amount. A statement enclosed with the objections sets out in detail the particulars of the service rendered by the petitioners, the salary being paid to them and whether or not they possess the requisite qualification prescribed for the post. Since the Institution is not getting any grant from the State Government, the respondents apprehend that any direction for payment of regular pay scales to the petitioners would mean an unbearable financial burden for them.
4. I have heard Counsel for the parties.
5. Rule 5 of Karnataka Private Educational Institutions Rules, 1978 relates to the scales of pay admissible to employees of Private Educational Institutions and reads thus.--
"Scale of pay.--The scale of pay of an employee of an Institution shall not be lower than the scale of pay of an employee of a corresponding post in the Government Educational Institutions".
6. The term 'Institution' occurring in the Rules has been defined by Rule 2(i) to mean a Private Educational Institution. The said expression is in turn defined by Section 2(d) of the Karnataka Private Educational Institutions Act, 1975 to mean an Educational Institution which is not owned by the State Government or the Central Government, a local authority or, any other authority designated or sponsored by the State Government or the Central Government or a local authority but which is recognised by the State Government and includes a college affiliated to the Karnataka University or the Mysore University or the Mysore University not similarly owned but does not include a University College. The provisions of the act aforementioned although repealed by Section 146 of the Karnataka Education Act, 1983, sub-section (3) of Section 146 provides that all Rules, orders, notifications etc., made or issued before the commencement of this Act and in force on the date of such commencement providing for or relating to any of the matters for furtherence of which the said Act is enacted shall continue to remain in force and effective as if the same have been made under the corresponding provisions of the 1983 act unless and until superseded by anything done or any action taken or any notification, grant-in-aid code, rule, order, appointment etc., issued under the said Act. It is not in dispute that no rules have been made under the 1983 Act. Consequently, the provisions of Rule 5 of the repealed Karnataka Private Educational Institutions (Discipline and Control) Act, 1975 continue to be effective and in force as if the said Rule had been framed under the corresponding provisions of the 1983 Act. The expression Private Educational Institution has been defined even under the 1983 Act to mean any educational institution imparting education established and administered or maintained by any body of persons, but does not include an educational institution established and administered by the Central or the State Government or any local authority or any other authority designated by the Central or the State Government or any Institution established and administered by the University or Institutions providing or imparting only religious instructions or imparting instructions, for which there is no approved syllabi or course of studies. Keeping in view the wide definition given to the expression 'Private Educational Institution' both under the 1975 Act as also the Karnataka Education Act, 1983, it cannot be denied that the respondent-Institution is a private educational institution within the meaning of both the enactments aforementioned. In fairness to Mr. Subba Rao, it must be mentioned that even he did not dispute that position. In that view, therefore, the provisions of Rule 5 would squarely apply to the cases of the petitioners, who are in the light of the said provision entitled to the pay scales that cannot be lower than the ones admissible to employees holding corresponding posts in the Government Educational Institutions. To the same effect is the decision of a Single Bench of this Court in W.P. Nos. 9845 to 9865 of 1996, disposed of on 20th of November, 1996, where Bakthavatsalam, J., as his lordship then was observed as under.--
Though the rule making power is found in the enactment, which came into force during June, so far no rule has been framed under the new enactment. As such Rule 5 as extracted above continues to hold the field. If it is so, there cannot be any dispute that the petitioners are entitled to the same scale of pay of an employee of the corresponding post in the Government Educational Institutions. Surely the petitioners cannot be denied the benefit by the 4th and 5th respondents. As pointed out by the Counsel for the petitioners the Supreme Court has taken the view in State of Haryana and Others v Rajpal Sharma and Others, that teachers in privately managed aided Schools are entitled to the same scale of pay and privileges as available to their counterparts in Government Schools. The Supreme Court while affirming a judgment of the Punjab and Haryana High Court has enunciated the principle while considering the principle of equal pay for equal work. So I have no doubt the petitioners are entitled to the very same pay as stated in Rule 5 as extracted above".
7. Reference may also be made to the decision of the Supreme Court in Haryana State Adhyapak Sangh and Others v State of Haryana and Others . In that case also, the petitioners were teachers employed in various recognised aided private institutions in the State of Haryana. They claimed parity in pay scale with teachers employed in Government Schools placing reliance upon recommendations of Kothari Commission, which had been constituted to examine the conditions of service of teachers with the object of improving the standards of education in the Country. Their Lordships upheld the contention that in the light of the recommendations made by the Commission the scales of pay of School Teachers belonging to the same category but working under different Managements such as Government, local bodies or Private Organisations should be the same and directed that the Teachers of aided Schools must be granted the same scales of pay and dearness allowance as were being paid to teachers in the Government Schools. This decision was clarified by their Lordships in Haryana State Adhyapak Sangh and Others v State of Haryana , where clearcut directions were issued with regard to the implementation of the earlier order inter alia for the grant of pay scales to teachers working in Government aided School at par with those of their counter parts in Government Schools.
8. In the instant case, although the College established by the respondent-Society does not get any aid from the State Government, the obligation to grant pay scale not lower than those admissible to employees working on equivalent posts in Government Institutions unequivocally flows from Rule 5 of the Rules referred to earlier. Both on the strength of the said provision as also keeping in view the fact that the respondent-Institution is performing a public function and discharging an obligation, which is otherwise cast upon the Government the claim for equivalence in pay scales made by the petitioners must be upheld.
9. Mr. Subba Rao, however, contended that the provisions of Rule 5 of the rules aforementioned would have no application to cases where the employees were appointed contrary to the provisions of Rule 3. He urged that no employee could have in terms of Rule 3 secured employment with the respondents without possessing the requisite qualifications prescribed for the past. By reference to the statement produced by the respondents, he urged that only 19 persons out of a total of 39 petitioners possess the requisite qualifications prescribed for the posts held by them. Even the cases of these 19 employees could also be considered only in stages and after proper screening for deciding whether they were fit to continue in employment. As regards others, who did not qualify for appointment, they should according to Mr. Subba Rao, be prepared to face retrenchment by the Management.
10. A perusal of the statement produced by the respondents shows that the service rendered by the petitioners varies from 10 months to 17 years. That being so, it is perhaps too late for the respondents to argue that those, who have given the best part of their lives to the Institution can still be treated as improperly appointed even after such long service rendered by them only because their initial appointment was defective by reason of their not possessing the prescribed qualifications. The respondents have not placed on record copies of the appointment orders issued in favour of the petitioners nor is it their case that any one of them is on probation or has been appointed subject to his or her producing evidence regarding the requisite qualifications. It is also not their case that the appointments made were on contract basis or for a limited period. It is therefore safe to assume that appointments made by the respondents were regular and meant to continue till those appointed retired on superannuation. The version of the respondents that the appointments in question were made on humanitarian grounds does not make any material difference for whatever may have been the reasons underlying the appointments, the fact remains that those appointed have continued working as employees of the respondents and have been discharging the functions attached to the posts against which they were appointed. Having taken the petitioners in their employment and having utilised their services in connection with the institution run and managed by the Society, it is not open to either the Society or the Institution to oppose the grant of pay scales legitimately admissible to these employees. It is indeed unfortunate that despite a statutory provision to that effect, the respondents have somehow continued the non-teaching staff on payment of a consolidated salary for years together. The fact that the petitioners are not given any increments nor even the leave and other benefits admissible to the employees working in Government Institutions lends support to their case that the Institution and the Society have exploited their economic condition and the compulsions, under which they were forced to continue working without being able to lay a proper claim for payment of what was otherwise due to them. I have therefore no difficulty in holding that the petitioners were and continue to be entitled to the same pay scales as are admissible to employees working in Government Institutions on equivalent posts.
11. The next question then is whether a mandamus can be issued to the respondents to grant the requisite pay scales, keeping in view the fact that the respondent is a Society over which the State Government does not exercise any control of plenary nature. The question need not detain us for long for the same stands authoritatively answered by the decision of the Supreme Court in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Others v V.R. Rudani and Others, where the Court was considering the question whether a mandamus could be issued against a Trust running a College. Their Lordships held that the expression 'any person or authority' used in Article 226 of the Constitution are not confined only to statutory authorities and instrumentalities of the State, but cover any other person or body performing public duty and that what is important is the nature of the duty imposed on the body judged in the light of the positive obligation owed by the person or the authority to the person affected. The Court declared that if a positive obligation exists, a mandamus cannot be denied and that mandamus was a very wide remedy, which could be easily available to reach injustice wherever it is found. The following passage from the decision is apposite.
"The law relating to mandamus has made the most spectacular advance. Article 226 conform wide powers as the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226 writs can be issued to any person or authority. It can be issued for the enforcement of any of the fundamental rights and for any other purpose. The term 'Authority' used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words 'any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of the positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied. It may be pointed out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. The judicial centered over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Article 226".
(emphasis supplied)
12. Respectfully following the above, I hold that a mandamus can be issued in the present case against the respondents.
13. Mr. Vasanth Kumar next argued that this Court ought to issue a mandamus straightaway directing the respondents to grant to the petitioners the benefit of the pay scales as claimed by them in the petition from the year the obligation arose under Rule 5, supra. He also submitted that keeping in view the economic condition of the employees and the long exploitation suffered by them at the hands of the respondents, it is appropriate that a direction for payment of not only the current salary as per the pay scales admissible to employees working against equivalent post in Government Institutions is issued but a direction for payment of the arrears given. I am not however inclined to go that far. I say so because the question of equivalence of the post held by the petitioners with those in the Government Institutions would require a comprehensive exercise, by reference to the relevant rules and the nature of the duties assigned to those holding the posts being equated. In my opinion, it is more proper to leave that exercise to be carried out by the respondents within a time frame fixed by this Court. The question as to whether the petitioners would be entitled to any arrears is also better left open to be determined by the respondents reserving liberty to the petitioners to agitate the matter in a separate writ petition depending upon the view which the respondents may take after examining the issue in the context of their own financial position and the extent of burden which the grant of pay scales may involve.
14. In the result, I allow these writ petitions in part and declare that the petitioners are entitled to the same pay scales as are admissible to employees working on equivalent posts in Government Engineering Colleges. I further direct the respondents to examine and place the petitioners in the pay scale admissible to them on the above basis within a period of 4 months from today. The respondents shall also consider the question of payment of arrears and should any such decision be unacceptable to the petitioners or any one of them, they shall be entitled to agitate the issue in separate proceedings. The writ petitions are accordingly disposed of with the above directions leaving the parties to bear their own costs.