Ryan International School ... vs State Of U.P. And 2 Ors
2019 Latest Caselaw 4401 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 43
 

 
Case :- WRIT - A No. - 63430 of 2014
 
Petitioner :- Ryan International School Employees Welfare Assoc. And 39 Ors.
 
Respondent :- State Of U.P. And 2 Ors
 
Counsel for Petitioner :- Amit Negi
 
Counsel for Respondent :- C.S.C.,J Nagar,Jaideep Bedi,Mritunjay Tiwari,Pratik J Nagar,Smt Supriy P Nagar,Supriya Pratik Nagar,Surendra Prasad Sharma
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. Petitioners in this writ petition includes the association of teachers employed in Ryan International School as well as the teachers of the institution itself. A prayer is made in this petition to command the respondent no.3 institution to implement 6th Pay Commission report submitted in respect of Government employees, in its entirety, and to release the amount of arrears, which has not been paid to them so far from January, 2006 to September, 2009. It is the case of petitioners that the respondent no.3 institution has already implemented the recommendation of 6th Pay Commission report, and therefore the teachers are being paid salary as per it. Submission is that while doing so, the institution has not released arrears from January, 2006 to September, 2009. Petitioners, therefore, submit that a writ of mandamus be issued to respondent no.3 institution to release the arrears alongwith interest.

2. Respondent no.3 institution is admittedly a minority institution which is affiliated to Central Board of Secondary Education (CBSE). At the outset, an objection is taken to the maintainability of writ petition against respondent no.3 institution by Sri J. Nagar, learned Senior Counsel assisted by Sri Pratik J. Nagar, Advocate, appearing for the institution concerned.

3. In reply, reliance is placed by Sri Amit Negi upon a Full Bench judgment of this Court in Roychan Abraham Vs. State of U.P. and others, 2019 (3) ADJ 391, wherein the Larger Bench of this Court while answering the reference has held the writ petition filed against a private unaided minority institution also to be maintainable. Learned counsel for the respondents upon confronted with it submits that he does not intent to press the objection raised with regard to maintainability of the writ petition, without conceding the proposition itself. In that view of the matter, this Court is not required to examine the issue of maintainability and the writ petition is entertained, accordingly.

4. The issue that arises for determination in the facts of the present case is as to whether this Court in exercise of jurisdiction under Article 226 of the Constitution of India is required to issue a writ of mandamus commanding the respondent minority institution to release the arrears of 6th Pay Commission report to the teachers from January, 2006 to September, 2009?

5. Law is settled that a writ of mandamus would be issued in exercise of jurisdiction under Article 226 of the Constitution of India only to enforce the legal right of the petitioners. Whether the petitioners have a legal right to be paid salary as per the 6th Pay Commission report would thus require examination.

6. The respondents have filed a counter affidavit in which right of petitioners to be paid salary as per 6th Pay Commission report is denied. It is asserted that there is no right vested in the petitioners to receive salary as per 6th Pay Commission report on account of any provision existing in law. Sri S.P. Sharma appearing for the CBSE also states that the bye-laws of CBSE requires every institution to frame rules for payment of salary equivalent to the teachers of Central and State Government institutions.

7. The issue, as to whether teachers of unaided institution are entitled to salary equivalent to pay Commission report meant for Central and State Government employees with retrospective report, is no longer res integra. The question in that regard has been examined by the Apex Court in Sushmita Basu Vs. Ballygunge Siksha Samity, (2006) 7 SCC 680. Teachers of private unaided educational institutions were seeking benefit of 3rd Pay Commission recommendations meant for the Central Government employees. The Apex Court observed as under in para 4 and 5 of the judgment in Sushmita Basu (supra):-

"4. In this context, we must also notice that the Writ Petition in the High Court is filed for the issue of a writ of mandamus directing a private educational institution to implement the recommendations of the Third Pay Commission including their implementation with retrospective effect. Even the decision relied on by learned counsel for the appellants, namely, K. Krishnamacharyulu & Ors. Vs. Shri Venkateswara Hindu College of Engineering and Anr. [(1997) 2 S.C.R. 368] shows that interference under Article 226 of the Constitution of India to issue a writ of mandamus by the court against a private educational institution like the first respondent herein, would be justified only if a public law element is involved and if it is only a private law remedy no Writ Petition would lie. We think that even going by the ratio of that decision, a writ of mandamus could not have been issued to the first respondent in this case.

5. We must remember that the profession of teaching is a noble profession. It is not an employment in the sense of it being merely an earner of bread and butter. A teacher fulfils a great role in the life of the nation. He is the 'guru'. It is the teacher, who moulds its future citizens by imparting to his students not only knowledge, but also a sense of duty, righteousness and dedication to the welfare of the nation, in addition to other qualities of head and heart. If teachers clamour for more salaries and perquisites, the normal consequence in the case of private educational institutions, if the demand is conceded, would be to pass on the burden to the students by increasing the fees payable by the students. Teachers must ask themselves whether they should be the cause for putting education beyond the ken of children of parents of average families with average incomes. A teacher's profession calls for a little sacrifice in the interests of the nation. The main asset of a teacher is his students former and present. Teachers who have lived up to ideals are held in great esteem by their disciples. The position of the Guru, the teacher, in our ethos is equal to that of God (Matha Pitha Guru Daivam). The teachers of today must ensure that this great Indian concept and the reverential position they hold, is not sacrificed at the altar of avarice."

8. The issue again came up for consideration in Satimbla Sharma and others Vs. St. Paul's Senior Secondary School and others, (2011) 13 SCC 760, wherein following observations have been made in para 27 to 29 by the Apex Court:-

"27. We cannot also issue a mandamus to respondent nos.1 and 2 on the ground that the conditions of provisional affiliation of schools prescribed by the Council for the Indian School Certificate Examinations stipulate in clause (5)(b) that the salary and allowances and other benefits of the staff of the affiliated school must be comparable to that prescribed by the State Department of Education because such conditions for provisional affiliation are not statutory provisions or executive instructions, which are enforceable in law. Similarly, we cannot issue a mandamus to give effect to the recommendations of the report of Education Commission 1964-66 that the scales of pay of school teachers belonging to the same category but working under different managements such as government, local bodies or private managements should be the same, unless the recommendations are incorporated in an executive instruction or a statutory provision. We, therefore, affirm the impugned judgment of the Division Bench of the High Court.

28. We, however, find that the 2009 Act has provisions in Section 23 regarding the qualifications for appointment and terms and conditions of service of teachers and sub-section (3) of Section 23 of the 2009 Act provides that the salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed. Section 38 of the 2009 Act empowers the appropriate Government to make rules and Section 38(2)(l) of the 2009 Act provides that the appropriate Government, in particular, may make rules prescribing the salary and allowances payable to, and the terms and conditions of service of teachers, under sub-section (3) of section 23. Section 2(a) defines "appropriate Government" as the State Government within whose territory the school is established.

29. The State of Himachal Pradesh, respondent no.3 in this appeal, is thus empowered to make rules under sub-section (3) of Section 23 read with Section 38(2)(l) of the 2009 Act prescribing the salary and allowances payable to, and the terms and conditions of service of, teachers. Article 39(d) of the Constitution provides that the State shall, in particular, directs its policy towards securing that there is equal pay for equal work for both men and women. Respondent no.3 should therefore consider making rules under Section 23 read with Section 38(2)(l) of the 2009 Act prescribing the salary and allowances of teachers keeping in mind Article 39(d) of the Constitution as early as possible."

9. In Sushmita Basu (supra) and Satimbla Sharma (supra), the Apex Court has declined the plea raised by teachers of unaided institutions for payment of salary equivalent to the Government employees. The private unaided institutions do not get any budgetary support from the State or Central Government and are expected to generate their own funds. Imposing any obligation upon such institutions to pay salary equivalent to State or Central Government employees may otherwise fasten huge liability which they may not be able to bear. It would result in institutions being either shut down due to shortage of funds or pass on the liability upon the students. Both the exigencies would not be in the best interest of promoting cause of education.

10. Learned counsel for the petitioners places reliance upon the provisions of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 read with Rule 20 of the Right of Children to Free and Compulsory Education Rules, 2010, to submit that petitioners are entitled to salary equivalent to Government employees. The provisions, in that regard, are reproduced hereinafter:-

"Section 23. Qualifications for appointment and terms and conditions of service of teachers- (1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorized by the Central Government, by notification, shall be eligible for appointment as a teacher.

(2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification:

Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years.

Provided further that every teacher appointed or in position as on the 31st March, 2015, who does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of four years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017.

(3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed.

Rule 20. Salary and allowances and conditions of service of teachers.- (1) The Central Government or the appropriate Government or the local authority, as the case may be, shall notify terms and conditions of service and salary and allowances of teachers of schools owned and managed by them in order to create a professional and permanent cadre of teachers.

(2) In particular and without prejudice to sub-rule (1), the terms and conditions of service shall take into account the following, namely:-

(a) accountability of teachers to the School Management Committee;

(b) provisions enabling long-term stake of teachers in the teaching profession.

(3) The scales of pay and allowances, medical facilities, pension, gratuity, provident fund, and other prescribed benefits of teachers shall be at par for similar qualification, work and experience."

11. Learned counsel for the petitioners has also placed reliance upon Clause 3(v) of the Affiliation Bye-laws of Central Board of Secondary Education, which reads as under:-

"3.(v) The school in India must pay salaries and admissible allowances to the staff not less than the corresponding categories of employees in the State Government schools or as per scales etc. prescribed by the Government of India $ or as per the conditions laid down by the State Government. The schools outside India should pay salaries not lower than those of the teachers in government schools in that country or not less than the salaries and foreign allowances payable to KVS teachers if officially posted to that country. A certificate to this effect should be obtained from the Indian Diplomatic Mission."

12. Learned counsel for the petitioners has placed reliance upon the judgment of the Apex Court in K. Krishnamacharyulu Vs. Sri Venkateshwara Hindu College of Engineering, 1998 AIR (SC) 295 to submit that teachers of unaided institutions are also entitled to salary equivalent to Government employees. The judgment in K. Krishnamacharyulu (supra) has already been considered by the Apex Court in its subsequent judgments in Sushmita Basu (supra) and Satimbla Sharma (supra). Their Lordships having taken note of the judgment in K. Krishnamacharyulu (supra) observed as under in para 26 of the judgment in Satimbla Sharma (supra):-

"26. In K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engg. [(1997) 3 SCC 571 : 1997 SCC (L&S) 841], relied upon by the learned counsel for the appellants, executive instructions were issued by the Government that the scales of pay of Laboratory Assistants as non-teaching staff of private colleges shall be on a par with the government employees and this Court held that even though there were no statutory rules, the Laboratory Assistants as non-teaching staff of private college were entitled to the parity of the pay scales as per the executive instructions of the Government and the writ jurisdiction of the High Court under Article 226 of the Constitution is wide enough to issue a writ for payment of pay on a par with government employees. In the present case, there are no executive instructions issued by the Government requiring private schools to pay the same salary and allowances to their teachers as are being paid to teachers of government schools or government-aided schools."

(emphasis supplied)

The facts are identical in this case also, as there is no instructions issued by the Government requiring private schools to pay same salary and allowances to their teachers as are being paid to teachers of Government schools or Government aided schools.

13. So far as the argument urged with reference to the affiliation bye-laws of Central Board of Secondary Education is concerned, it would be appropriate to refer to an observation made by the Apex Court in Co-operative Central Bank Limited Vs. Industrial Tribunal, Hyderabad, AIR 1970 SC 245, wherein the Apex Court has observed that the bye-laws of a society would not be statutory in nature. Although the bye-laws would govern the rights of the parties but for any violation thereof a writ would not lie. To similar effect is an observation of the Apex Court in The Rajasthan State Road Transport Corporation and another Vs. Krishna Kant Etc., 1995 (5) SCC 75, wherein the Apex Court while dealing with a case of violation of standing orders framed under the Industrial Employment (Standing Orders) Act, 1946 has observed that though the provisions of the standing orders bind the parties but for any violation thereof, a writ would not lie. The bye-laws of the CBSE would be binding upon the institution concerned, but for any violation of the provisions thereof a writ petition would not lie nor a mandamus can be issued to enforce the provisions of the bye-laws itself with regard to the service conditions of the teachers employed in affiliated schools. It is always open for the CBSE to take appropriate action for violation of the provisions of its bye-laws, but that would not require this Court to issue a writ of mandamus to enforce the provisions of the bye-laws of CBSE.

14. So far as the provisions of the RTE Act, 2009 and the Rules are concerned, there is no provision shown to the Court, which imposes a statutory obligation upon an unaided minority institution to pay salary at par with the salary payable to the teachers of Government institutions. The constitutional validity of the Act of 2009 was also assailed before the Apex Court in Pramati Educational & Cultural Trust and others Vs. Union of India and others, (2014) 8 SCC 1. The Constitution Bench of the Apex Court while upholding the constitutional validating of the Act has clearly recognized the right of minority institution, inasmuch as the provisions of the Act have been made inapplicable upon such minority institution. The provisions of Section 23 of the Act of 2009 read with Rule 20, therefore, would not be of any help to the petitioners' cause, since the provisions of the Act itself would not be applicable upon the minority institution. No provision otherwise is shown, which obligates a private minority institution to pay salary to teachers as per the 6th Pay Commission report.

15. In view of the aforesaid discussion, this Court is of the considered view that neither under the Act of 2009 nor under the provisions of the bye-laws of the CBSE the petitioners would be entitled to issuance of a writ of mandamus to command respondent no.3 to release arrears of 6th Pay Commission report to the petitioners, even when the writ petition is entertained. There are, moreover, no statutory interdict issued by any competent authority, in law, requiring the third respondent to pay salary as per 6th Pay Commission. The judgment of the Delhi High Court rendered in Writ Petition (C) No.6470 of 2010, dated 12.8.2013, is also liable to be distinguished as The Director of Education, Delhi, in that case, had issued such a circular on 11.2.2009 under the Delhi School Education Act and Rules, 1973, which is not the case in hand.

16. Writ petition, accordingly, fails and is dismissed. No order is passed as to costs.

Order Date :- 13.5.2019

Anil

(Ashwani Kumar Mishra, J.)