Safir Ahmed And Ors. vs Lt. Governor, National Capital ...
1998 Latest Caselaw 829 Del

JUDGMENT

K. Ramamoorthy, J.

1. The 12 petitioners who were working in the Crescent Education School, Darya Ganj, New Delhi, had claimed the following reliefs:

issue a writ of mandamus or any other appropriate writ quashing the service agreements kept at Annexure A3 of this petition;

to issue appropriate writ, direction, directing respondents 3 and 4 to afford the pay and allowances and other benefits to the petitioners at par with any other aided and recognised educational institutions,

to issue any appropriate, writ, direction, directing the respondents 1 and 2 to have the school under respondent No. 4 inspected and to taking appropriate act on against respondent No. 3 under the law for violation of the Delhi School Education Act, in allowing discriminatory treatment to their employees.

2. The School is un-aided. The learned Counsel for the petitioners submitted that under Section 10 of the Delhi School Education Act & Rules, 1973, the petitioners are entitled to all the benefits enjoyed by the other educational institutions. The learned Counsel for the petitioners relied upon the judgment of Supreme Court reported in Frank Anthony Public School Employees' Association v. Union of India and Ors., . The learned Counsel relied upon para 13 of the judgment. Para 13 reads as under:

"... Thus, there, now appears to be a general and broad consensus about the content and dimension of the Fundamental Right guaranteed by Article 30(1) of the Constitution. The right guaranteed to religious and linguistic minorities by Article 30(1) is two-fold, to establish and to administer educational institutions of their choice. The key to the Article lies in the words " of their own choice".

These words indicate that the extent of the right is to be determined, not with reference to any concept of State necessity and general societal interest but with reference to the education institutions themselves, that is, with reference to the goal of making the institutions "effective vehicles of education for the minority community or other persons who resort to them". It follows that regulatory measures which are designed towards the achievement of the goal of making the minority educational institutions effective instruments for imparting education cannot be considered to impinge upon the right guaranteed by Article 30(1) of the Constitution. The question in each case is whether the particular measure is, in the ultimate analysis, designed to achieve such goal, without of course nullifying any part of the right of management in substantial measure. The provisions embodied in Sections 8 to 11 of the Delhi School Education Act may now be measured alongside the Fundamental Right guaranteed by Article 30(1) of the Constitution to determine whether any of them impinges on mat fundamental right. Some like or analogous provisions have been considered in the cases to which we have referred. Where a provision has been considered by the nine judge Bench in Ahmedabad St.

Xaviers College v. State of Gujarat (supra), we will naturally adopt what has been said therein and where the nine-Judge Bench is silent we will have recourse to the other decisions...."

3. The learned Counsel for the petitioners referred to Rule 130 of the Delhi School Education Rules, 1973. In the counter affidavit filed by respondents 3 and 4, it is stated that the petitioners had entered into an agreement with the Management and under Section 15 of the Delhi School Education Act & Rules, 1973. Those agreements have been forwarded to the administrator. The petitioners have not made out any case for the entitlement of the pension and gratuity. Regarding the challenge of the service agreement, it is stated that the petitioners had not raised any objection with reference to the agreements while they were in service and now after the retirement they had chosen to challenge the service. It is stated in the counter affidavit that the petitioner No. 9 resigned from the job.

4. Section 10 of the Delhi School Education Act & Rules, 1973 reads as under:

(1) The scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not be less than those of the employees of the corresponding status in schools run by the Appropriate Authority:

Provided that where the scales of pay and allowances, medical facilities, 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 appropriate authority, the appropriate authority 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 Appropriate Authority:

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 4 shall apply accordingly.

(2) The Managing Committee of every aided school shall deposit, every month, its share towards pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits with the Administrator and the Administrator shall disburse, or cause to be disbursed, within the first week of every month, the salaries and allowances to the employees of the aided schools.

5. It is not disputed by respondents 3 and 4 that the service agreement has been executed in accordance with Section 15 of Delhi School Education Rules, 1973. The learned Counsel for the petitioners referred to Rules 130 which reads as under:

Rule 130 -- Contract of Service:

 (1)     Every contract of service, referred to in Sub-section (1) of Section 15, shall be entered into the form specified in the scheme of management before the employees is called upon to join this duties. 
 

 (2)     A copy of the contract of service referred to in Sub-section (1) of

    Section 15, shall be forwarded to Administrator by the Managing Committee of the concerned unaided minority school either by registered post, acknowledgement due, or by a messenger within thirty days from the date on which the contract is entered into. 
 

 (3)    On receipt of a copy of the contract of service, the Administrator shall cause the particulars of such contract to be entered in a register to be maintained for the purpose, to be known as the 'Register of Contracts' 
 

 (4)    The Administrator shall also cause the copies on contracts received by him to be preserved in such manner as he may specify. 
 

 (5)     If on a scrutiny of the copies of contract received by him, the Administrator is of opinion that the contract does not comply with the provisions of Sub-section (3) of Section 15, he may draw the attention of the school concerned to the deficiencies in the contract and require the school to modify the contract so as to bring it in conformity with the provisions of Sub-section (3) of Section 15, and thereupon the school shall take urgent steps for the rectification of the contract. 
 

 (6)    When a contract, has been rectified under Sub-rule (5), a copy of the contract, as so rectified shall be forwarded to the Administrator for registration and on receipt of the copy of such contract the Administrator shall cause the contract to be registered in the manner specified in Sub-rule (3).  
 

 6. Respondents 3 and 4 are obliged in law to pay pension to the retired teachers. The Supreme Court in Frank Anthony Public School Employees' Association v. Union of India & Ors., (supra) held : 

"... Apart from the learned Judges who constituted the nine-Judge Bench, other learned Judges have also indicated the same view. In the leading case of the Kerala Education Bill, (AIR 1958 SC 956) the Constitution Bench observed that, as then advised, they were prepared to treat the clauses which were designed to give protection and security to the ill-paid teachers who were engaged in rendering service to the nation as permissible regulations. The observations were no doubt made in connection with the grant of aid to educational institutions but that cannot make any difference since, aid, as we have seen, cannot be made conditional on the surrender of the right guaranteed by Article 39(1). In State of Kerala v. Mother Provincial, (supra), it was said that to a certain extent the State may regulate conditions of employment of teachers. In All Saints High School v. Govt. of Andhra Pradesh, , Chandrachud, C.J. expressly stated that for the maintenance of educational standards of an institution it was necessary to ensure that it was competently staffed and, therefore, conditions of service prescribing minimum qualifications for the staff, their pay-scales, their entitlement, other benefits of service and the safeguards which must be observed before they were removed or dismissed from service or their services terminated were permissible measures of a regulatory character. Kailasam, J. expressed the same view in almost identical language. We,

therefore, hold that Section 10 of the Delhi Education Act which requires that the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not be less than those of the employees of the corresponding status in schools run by the Appropriate Authority and which further prescribes the procedure for enforcement of the requirement is a permissible regulation aimed at attracting competent staff and consequently at the excellence of the educational institution. It is a permissible regulation which in no way detracts from the fundamental right guaranteed by Article 30(1), to the minority institutions to administer their educational institutions. Therefore, to the extent that Section 12 makes Section 10 inapplicable to unaided minority institutions, it is clearly discriminatory...."

Therefore, there is an obligation on the part of the Authorities who are running the school to pay pension and also gratuity to the petitioners. In this view of the matter, the petitioners would be entitled to payment of pension and gratuity. Relating to the challenge on the service agreement that is not permissible. The petitioners are bound by the terms of the agreement with reference to the quantum of pay. Therefore, the challenge on the service agreement is not sustainable. In view of the dictum laid down by the Supreme Court in Frank Anthony Public School Employees' Association v. Union of India and Ors., the petitioners are entitled to gratuity and pension, according to pay drawn by them at the time of the resignation or retirement. Accordingly, respondents 3 and 4 are directed to pay pension and other allowances payable to the petitioners on par with the other educational institutions on the basis of the last pay drawn. Respondents 3 and 4 are also directed to continue pay pension to the petitioners. Respondents 3 and 4 also pay the arrears of pension and other allowances payable to the petitioners. Respondents 3 and 4 shall also pay interest on the arrears @ 12% per annum from the dates when the amount become payable to the petitioners reckoning the date of resignation or the retirement. The writ petition stands allowed to the above extent. There shall be no order as to costs.