Delhi High Court

All India Confederation Of The ... vs Union Of India & Others on 4 July, 2008

Author: Vipin Sanghi

*                   HIGH COURT OF DELHI : NEW DELHI

             Judgment reserved on: 31.10.2007
%            Judgment delivered on: 04.07.2008

+                   W.P. (C ) No. 2040/1995


       All India Confederation of the Blind ...   Petitioner
                               Through: Mr. P.N. Lekhi, Sr. Advocate
                                            with Mr.Rajan Chaurasia &
                                            Mr. Jaspreet Singh Rai, Advs.

                          versus


       Union of India & Others                 ..... Respondents
                                  Through:     Mr. Rajive Mehra, Adv.


CORAM

HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE VIPIN SANGHI

1.     Whether the Reporters of local papers
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?           Yes

3.     Whether the judgment should                  Yes
       be reported in the Digest?

VIPIN SANGHI, J.

1. In this petition under Article 226 of the Constitution of

India, the petitioner seeks a writ of mandamus, directing the

respondent not to treat teachers/employees of organisations run by

the petitioner differently from teachers/employees of similar

organisations run by the respondents in the matter of pay scales, on

the ground that the nature of work undertaken by both classes of

teachers/employees are identical. A consequential declaration is

sought that the pay sanctioned for the employees of the petitioner is

arbitrary, discriminatory and unreasonable.

2. The petitioner society is registered under Andhra Pradesh

(Telengana Area) Public Societies Registration Act, 1950 and has 18

affiliates all over the country providing educational and rehabilitative

services for the blind. The petitioner states that it is an organisation

which provides a wide range of educational, vocational and

adjustment-training facilities, both to the congenitally blind as well as

persons who may have developed visual handicaps later in life, in a

systematic manner.

3. Union of India (Respondent No.1) has framed a scheme

which provides for assistance in the form of grant-in-aid to eligible

voluntary organisations/institutions to cover upto 90% of the

expenditure incurred by voluntary organisations such as the petitioner,

under specified heads, including salaries of the staff employed by

such organisations. With the help of such assistance the petitioner

claims that it has been able to run educational institutions like

Captain Chandan Lal School for the Blind and The Shorthand Training

Programme at Rohini. The Respondent No.1 also runs and funds

organisations and institutes similar to that of the Petitioner, like

National Institute of the Visually Handicapped, Dehradun (hereinafter

referred to as NIVH). Respondent No.2, being the Govt. of National

Capital Territory of Delhi, runs similar government schools for the

blind.

4. The petitioner submits that the educational curriculum of

the blind is far more onerous and demanding than teaching students

not suffering from any such disability and this system of education is

known as "Special Education". However, the petitioner contends that

staff employed by the petitioner get 1/3rd the pay sanctioned to staff of

the NIVH and the government schools for the blind run by the

Respondent No.2. Thus, the Petitioner craves parity in pay scales

invoking the principle of equal pay for equal work. It is also the

grievance of the Petitioner that the policy formed by the Government

only provides for a consolidated salary and no scale of pay is

prescribed, nor any other allowances/benefits are provided for.

5. The Petitioner has placed on record various comparative

charts showing the difference in pay between the staff employed by

NIVH and Respondent No.2 on the one hand, and the staff employed

by the petitioner on the other hand. The Petitioner in order to further

its submissions takes aid of the "Scheme of Integrated Education for

the Disabled Children 1992", which provides for assistance to State

Governments/UT Administrations/autonomous organisations having

experience in the field of education and/or rehabilitation of the

disabled, the agencies through which the said scheme is purported to

be implemented. The said scheme seeks to provide disabled students

with an opportunity to integrate in the mainstream educational system

in the form of common schools in place of special schools. The scheme

further provides (a) teacher-pupil ratio of 1:8 (b) basic qualifications

required for appointment as Special Teachers, and (c) scales of pay for

such special teachers along with special allowance admissible to them.

The petitioner relies upon the stipulation regarding scales of pay, as

laid down in the said scheme in Clause 12.3, which states that "The

same scales of pay as available to the teachers of the corresponding

category in that State/UT will be given to Special Teachers". It further

provides for payment of special pay, in recognition of the special type

of duties that such teachers discharge.

6. The petitioner pleads that the work undertaken by it is

facing insurmountable difficulties regarding retention of staff, since

inferior scales of pay do not make employment under the petitioner an

attractive proposition. The grant-in-aid granted by the Respondent

no.1 can only go upto 90% of the approved expenditure incurred by it

since, under the policy, specific basic pay is sanctioned for each type

of teacher/employee employed by voluntary organisations and the

grants are admitted, accordingly. The petitioner pleads that it does

not have the funds to make the balance 10% payment to its

employees and continue the work started by it. The petitioner claims

that in the face of this resource crunch, it is confronted with the

prospect of having to close down its services.

7. In its reply respondent No.1 has stated that the grant-in-aid

is sanctioned upto 90% of the expenditure approved by the Ministry

and not upto 90% of the total expenditure incurred by the voluntary

organisation. The grant-in-aid covers 90% of the approved basic pay

of the staff employed by a Voluntary Organisation, and that there is no

provision for allowance like DA, HRA etc. Furthermore, the respondent

submits that the scheme under which grant-in-aid is considered,

prescribes compensation in different ranges depending upon the

qualification of the incumbent. No parity can be drawn between the

employees of autonomous organisations fully aided by the

Government and under its administrative and financial control, and

employees of a voluntary organisation to which Government provides

only limited assistance. The Respondent also contends that one of the

conditions of the said scheme is that the grant-in-aid may be

considered only upto 90% of the expenditure approved by the Ministry

and is admissible to such a voluntary organisation, which has the

capability of meeting the remaining expenditure either through its own

resources or through voluntary effort. If an organisation is not able to

meet its balance expenditure, it is not eligible for grant-in-aid from the

Ministry. The respondent points out that the petitioner had made the

proposal for getting grant-in-aid and also receives the amount after

expressly accepting this condition.

8. The petitioner in its rejoinder maintains that the employees

of the organisation run by it are entitled to parity in all emoluments in

addition to basic pay. The petitioner maintains that the disparity in

the pay scale is apparent from a bare perusal of the appended

comparison charts, and therefore, it claims equality of pay.

9. By an order dated 20.01.1997, this Court had asked the

petitioner to file an affidavit bringing out the comparison between the

pay of employees of the petitioner and the respondent and their work

and responsibilities. We have taken the affidavit dated 06.02.1997

filed in response to that order into consideration. The Union of India,

during the pendency of the petition, came out with a new

comprehensive scheme, and an additional affidavit in this respect was

allowed to be filed vide order dated 09.09.2002. The Union of India

has filed a comprehensive affidavit dated 20.09.2002 of Sh. P.K. Ravi,

Under Secretary to the Govt. of India, Ministry of Social Justice and

Empowerment. In the said affidavit the respondent submits that at

the time when the petition was filed, the Ministry of Social Justice and

Empowerment (formerly known as "Ministry of Welfare") had five

distinct schemes, dealing with the welfare of handicapped/disabled

persons through non-government organisations. Of these five

schemes, four schemes envisaged, inter alia, the grant of aid for

salaries/honorarium to be paid to the employees/personnel of the

NGOs. At the time of filing of the petition the petitioner NGO was

receiving grants-in-aid towards contribution in respect of salaries/

honourarium for its personnel under two schemes, viz. "Scheme of

Assistance to Organizations for the Disabled" for its project called

"Braille Shorthand and Typing Training Programme", and under

"Scheme of Assistance to Voluntary Organizations for Special School

for Handicapped Children" for its Chander Lal Special School for Blind.

10. A new umbrella scheme called "Scheme to Promote

Voluntary Action for Persons with Disabilities" was introduced and

made effective from 1999-2000, which substituted the earlier schemes

under which petitioner was receiving aid. The said scheme was

formulated to fulfill the obligations cast on the Government under the

Persons with Disabilities (Equal Opportunities, Protection of Rights and

Full Participation) Act, 1995. The respondent submitted that the

assistance/grant provided by the Central Government was not

unlimited and was tendered and fixed on the twin criteria of firstly,

merits of each case and secondly, availability of the funds from the

overall budget allocated for welfare activities for physically

handicapped/disabled person. It has been stated that when the grant-

in-aid was sanctioned to the petitioner, it was made clear that "the

grant-in-aid from the Central Government will be tendered on the

merits of each case and will not exceed 90% of the non-recurring and

recurring expenditure. The remaining expenditure will be normally

borne by the organisation". The respondent emphasizes that the

figure of 90% grant-in-aid is with reference to the eligible and

approved amount of expenditure, and not the total amount of its

expenditure, incurred by the NGO. Therefore, the 90% of the

approved allocation was the ceiling limit under the earlier scheme,

which could not be enhanced any further under the schemes which

were prevalent earlier as well as the new scheme. However, under

the new scheme the budgetary allocations have been substantially

increased in comparison to the allocation prevalent at the time of the

filing of the petition. Over the years the number of organisations

receiving aid have gone up. It is also submitted that since state has

limited resources and private organisations are capable of raising their

own resources, unnecessary burden should not be imposed upon the

Respondent. It is also submitted that the Respondent has never

questioned the desirability or entitlement to higher honorarium of the

personnel employed by the NGOs.

11. The respondents further submit that, in any event, the

qualifications prescribed for employees of voluntary organisations are

more relaxed when compared to Government institutions and

institutions such as NIVH. In NIVH there are specific requirements

relating to various aspects such as the number of posts in the

organisation; scale of pay; whether the post is a selection post or a

non-selection post; age limit for direct recruitment; method of

recruitment; educational qualification for direct recruitment;

experience required for direct recruitment etc. In clear

contradistinction, the schemes under which the grants-in-aid are given

to the voluntary organisations do not contemplate or provide any rules

for recruitment of finalisation of pay scales for the personnel of such

organisations. Therefore, there can be no parity in posts or in pay.

Further, having agreed to abide by the terms and conditions of the

scheme, and having obtained an advantage under the same, it is no

longer open to the petitioner to question the norms of assistance

under the scheme.

12. From the record, it appears that the qualifications/

experience required for teachers/employees of NIVH/Government

schools were also higher than those laid down for a voluntary

organisations. We may reproduce hereinbelow the composite position

extracted from Annexure P-4 to the writ petition, which is as follows:

Sl. Name of the post Qualification fixed Qualification fixed by N.I.V.H.

 No.                        by Welfare Ministry
                               for voluntary
                               organizations
 1.    Braille Instructor   Graduate from          Degree from a recognised
                            recognized             Indian or Foreign University
                            University. Sound      (relaxable in the case of blind
                            knowledge of           candidates      otherwise    well
                            Braille.               qualified. Sound knowledge of
                                                   Bharati and Standard English
                                                   Braille including the ability to
                                                   read and write fluently English
                                                   and at least one Indian
                                                   language.
                                                   2 years teaching experience.
 2.    Mobility Training Degree/Diploma/           Formal Training from and
       Instructor        Certificate in            institute of repote and 3 years
                         Orientation of            experience of work with the
                         Mobility                  blind.

 3.    Typing Instructor/ Matriculation or         Matriculation   or    equivalent
       Vocational         equivalent               examination.
       Instructor         Certificate course in    Typing speed in English of 40
                          related trade.           words per minute.
                                                   Typing speed in Hindi 30 words
                                                   per minute.
                                                   2 years experience of teaching
                                                   Hindi and English Typewriting.

 4.    Teacher/Trained Degree from a               Graduate in Art/Science/Sanskrit
       Graduate Teacher recognized                 (according to the nature of
                        University.                vacancy).
                        Decree in Teaching         Diploma     in    Teaching     or
                        of Handicapped.            Equivalent 2 years experience
                                                   as teacher preferably in any
                                                   institution for the blind, or
                                                   Diploma in Teaching the Blind.
                                                   Knowledge of Bharati and
                                                   Standard       English    Braille
                                                   (Visually Handicapped no bar)





  5.   Junior    Teacher/ Matric.                  High School, Higher Secondary
      Asstt. Teacher     Diploma in               School or equivalent.
                         Teaching or              Junior Training Certificate or
                         Handicapped.             equivalent    or    Montessorie
                                                  trained.
                                                  2 years experience as a teacher.
                                                  Diploma    or    Certificate  in
                                                  Teaching the Blind.

 6.   Cook                  Experience in         Thorough knowledge of cooking
                            Cooking               Vegetarian and Non-vegetarian
                                                  meals.
                                                  At least 3 years experience in
                                                  cooking.

 7.   Braille Shorthand                           A good Bachelor's Degree
      Instructor (Hindi)/                         (relaxable in the case of
      Braille Instructor                          candidates      otherwise well
                                                  qualified)
                                                  Thorough knowledge of Bharati
                                                  Braille.
                                                  Hindi Braille Shorthand speed
                                                  80 w.p.m.
                                                  2 years teaching experience of
                                                  Hindi Braille Shorthand in a
                                                  reputable Institution.
 8.   Music Instructor/                           Sound knowledge of vocal &
      Music Teacher                               Instrumental Music and ability to
                                                  teach.
                                                  Decree or Diploma in Music.
 9.   Chokidar/             No qualification is
      Watchman              required
 10. Sweeper                No qualification is
                            required
 11. Aya                    Matriculation/ Hr.
                            Sec.

13. The additional affidavit dated 06.02.1997 filed by the

petitioner gives the difference in the pay in respect of different

categories of staff in the petitioner organisation and in the

corresponding governmental organisations. There is no doubt that the

governmental pay/pay scales are higher than those paid by the

petitioner. The question is, can the petitioner demand as a matter of

an enforceable right that the respondents provide the grants-in-aid to

the extent that the petitioner is able to pay the same scale of salary

and other allowances, such as DA, HRA etc. as is admissible to

personnel employed in Government Organisations/Autonomous

Organisations such as the NIVH. Both sides have relied upon a few

decisions which shall be dealt with presently.

14. Having considered the submissions of the parties, we are

not inclined to agree with the aforesaid submission of the petitioners.

Firstly, we may note that the employees of the petitioner organisation

are not the employees of the Government. The two employer being

distinct, resort to Article 14 to seek parity of pay is, therefore,

misconceived. Admittedly, the educational qualifications and

experience for the various posts prescribed by the Government for

institutions established, run and managed by it or for autonomous

organisations such as the NIVH are higher than those prescribed for

similar posts in the NGOs/voluntary organisations such as the

petitioner. It is settled law that even where the employer is the same,

to be able to seek pay parity on the principle of "equal pay for equal

work", one of the essential ingredients that is required to be met is

that the educational qualifications/experience prescribed in the similar

posts are the same. Since this condition is not met, this is another

reason why the employees of the petitioner organisation cannot seek

pay parity with the employees of Government established, run and

managed schools and of autonomous institutions. Reference may be

made to the decision of the Supreme Court in "S.C. Chandra v.

State of Jharkhand" (2007) 8 SCC 279. In CA Nos.6595, 6602-03

and 6601 of 2005, the writ petitioners-appellant, who were serving as

secondary school teachers in a school sought parity in their pay scales

with pay scale of Government secondary school teachers or with

Grade-I and Grade-II Clerks of Bharat Cooking Coal Limited (BCCL).

They also sought facilities such as provident fund, gratuity, pension

and other retiral benefits and also prayed that the State Government

should take over the management of Ramkanali School under the

provisions of the Bihar Non-Government Secondary Schools (Taking

Over the Management and Control) Act, 1981. The BCCL contested

the aforesaid claims on the ground that the said school was not owned

by BCCL. It was run by a managing committee. The petitioners were

not appointed by BCCL and were not employees of BCCL. BCCL used

to release the non-recurring grants to the privately managed schools

on the recommendations of the welfare committee subject to certain

conditions. This non-recurring grant and aid did not make the school a

part of the management of BCCL and any teacher in such privately

managed school could not be said to be a employee of BCCL thereby

entitling him to all benefits as are available to regular employees of

BCCL.

15. From the aforesaid, it would be seen that the factual

background in S.C. Chandra (supra) was quite similar to the one in

hand. The Supreme Court dismissed the appeal preferred by the

petitioner-appellant S.C. Chandra, against the decision of the Division

Bench of the Jharkhand High Court. There are two concurring

judgments, one rendered by A.K. Mathur, J. and the other by

Markandey Katju, J. In his decision A.K. Mathur, J. observed:

"11...................................... Firstly, the school is not being managed by the BCCL as from the facts it is more than clear that the BCCL was only extending financial assistance from time to time. By that it cannot be saddled with the liability to pay these teachers of the school as being paid to the clerks working with BCCL or in the Government of Jharkhand. It is essentially a school managed by a body independent of the management of BCCL. Therefore, BCCL cannot be saddled with the responsibilities of granting the teachers the salaries equated to that of the clerks working in BCCL.

12. Learned counsel for the appellants have relied on Article 39(d) of the Constitution. Article 39(d) does not mean that all the teachers working in the school should be equated with the clerks in the BCCL or Government of Jharkhand. For application of the principle of equal pay for equal work. There should be total identity between both groups i.e. the teachers of the school on the one hand and the clerks in BCCL, and as such the teachers cannot be equated with the clerks of the State Government or of the BCCL. The question of application of Article 39(d) of the Constitution has recently been interpreted by this Court in State of Haryana and Ors. v. Charanjit Singh and Ors. [(2006) 9 SCC 321] wherein their Lordships have put the entire controversy to rest and held that the principle, 'equal pay for equal work' must satisfy the test that the incumbents are performing equal and identical work as discharged by employees against whom the equal pay is claimed. Their Lordships have reviewed all the cases bearing on the subject and after a detailed discussion have finally put the controversy to rest that the persons who claimed the parity should satisfy the court that the conditions are identical and equal and same duties are being

discharged by them. Though a number of cases were cited for our consideration but no useful purpose will be served as in Charanjit Singh (supra) all these cases have been reviewed by this Court. More so, when we have already held that the appellants are not the employees of BCCL, there is no question seeking any parity of the pay with that of the clerks of BCCL."

16. Markandey Katju, J. in his concurring view takes note of

various other decisions of the Supreme Court including the decision in

"State of Haryana v. Tilak Raj" (2003) 6 SCC 123, "State of

Haryana & Ors. v. Charanjit Singh & Ors." (2006) 9 SCC 321,

wherein it has been held that the principle of "equal pay for equal

work" can be invoked only if there is a complete and wholesale

identity between two groups and that even if the employees of the two

groups are doing identical work, they cannot be granted equal pay, if

there is no complete and wholesale identity. The two groups of

employees may be doing the same work, yet they may be given

different pay scales if the educational qualifications are different or if

the nature of job, responsibilities, experience, method of recruitment

etc. are different. His Lordship proceeded to hold that: -

"13............... fixing pay scales by Courts by applying the principle of equal pay for equal work upsets the high Constitutional principle of separation of powers between the three organs of the State. Realizing this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an expert committee appointed by the Government instead of the Court itself granting higher pay).

14. It is well settled by the Supreme Court that only because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide Government of West Bengal v. Tarun K. Roy and others, (2004) 1 SCC 347."

17. In fact, what the petitioner is seeking is the enhancement

of the grant-in-aid provided by the Government. The Government is

granting aid which, inter alia, covers upto 90% of the approved

expenditure incurred by the voluntary organisations towards the basic

salary paid to the staff. The voluntary organisations have to meet the

remaining expenditure incurred, inter alia, towards the salary of the

staff from out of its own resources. This policy of the government

merely lays down a reasonable formula evolved by the Government to

arrive at the figure of grant-in-aid that it would provide to an

organisation under its scheme. It is open to the voluntary

organisations to pay from its own resources to its staff not only the

balance 10% basic salary, but also other components such as DA,

HRA, CCA, Gratuity etc. There is no prohibition against the voluntary

organisations making payment to its staff of the aforesaid components

over and above the payment of the basic salary.

18. It is to be borne in mind that the Government has come

out with various schemes from time to time to encourage voluntary

organisations/NGOs to undertake social causes, such as providing

educational and vocational support to the disabled. The funds

allocated by the Government are distributed amongst the various

organisations, which are being managed independently, in order to

fulfill its obligation to provide support to the disabled. It is for the

Government to evolve its policy with regard to the extent of assistance

that it may render to voluntary organisations/NGOs. Such policies are

devised keeping in view the availability of resources, the number of

organisations deserving of assistance, and other relevant factors. It is

for the Government to evolve the criteria on the basis of which the

grants are to be disbursed. Of course, the criteria has to be

reasonable and cannot be arbitrary or discriminatory. It cannot be

said that the criteria fixed by the Government for disbursement of

grant-in-aid, inter alia, being 90% of the basic salary of the staff of the

voluntary organisations/NGO is discriminatory or arbitrary. It is not the

petitioner's case that it has been discriminated against in the matter

of disbursement of grant-in-aid when compared to any other similar

organisation. The petitioner organisation cannot seek to compare

itself with Government run schools and institutions such as the NIVH

for the simple reason that Government run institutions and NIVH are

wholly established, managed and run by the Government by following

a transparent mechanism governed by a set of rules with regard to the

number of sanctioned posts, the recruitment rules prescribing

educational qualifications and experience criteria for such posts, the

method of recruitment, discipline and conduct rules and the like,

whereas the institutions run by the voluntary organisations/NGOs such

as the petitioner are entirely established, run and managed by the

concerned organisation, which are not bound to follow any set of rules,

as aforesaid. The criteria fixed by the Government for disbursement

of grant-in-aid can also not be said to be arbitrary. The object of

grant-in-aid is not to meet the entire expenditure of the organisation

under any particular head, but to provide financial assistance to the

extent the resources of the Government permit.

19. We are not dealing with the question, whether the

disparity in the educational qualifications, which were prescribed by

the Ministry of Welfare, is reasonable or not. That is not the challenge

before us. The petitioner is not seeking parity in the prescription of

educational qualifications/experience requirements or the recruitment

rules in this petition.

20. Reliance placed on Clause 12.3 of the "Scheme of

Integrated Education for the Disabled Children 1992", which states

that the same scales of pay as available to the teachers of the

corresponding category in the State/UT will be given to special

teachers, appears to be misplaced. Clause 4 of the same scheme

shows that the scheme makes a conscious distinction between State

Government/UT Administration/Autonomous Organisations of stature

on the one hand, and voluntary organisations on the other hand.

While the scheme is to be implemented though the State

Governments/UT Administration/Autonomous Organisations, the

assistance of voluntary organisations may also be taken to implement

the scheme. The petitioner is a voluntary organisation. The said

scheme is primarily to be implemented by the Governments and by

Autonomous Organisations, and the prescription about salaries

pertains to such organisations/institutions, and not to voluntary

organisations.

21. Mr. P.N. Lekhi, learned senior counsel appearing for the

petitioner has placed strong reliance on "State of H.P. v. H.P. State

Recognised and Aided Schools Managing Committees & Ors."

(1995) 4 SCC 507 in support of his submission. The question raised

before the Supreme Court in this decision was whether recognised and

aided private schools were entitled to received grants-in-aid to meet

95% of the net expenditure to enable them to pay to the teachers

employed by them salary equal to that being paid to the counterparts

of such teachers in Government schools. The Supreme Court

answered this question in the affirmative i.e. in favour of the teachers

seeking parity. The Court struck down the maximum limit of grant-in-

aid fixed by the Government in pursuance of the powers under Rule

47(2) of the Himachal Pradesh (Grant-in-Aid) Rules, which prescribed a

maximum limit on the amount of admissible grant-in-aid. On the face

of it this decision appears to support the submission of Mr. Lekhi.

However, on a deeper scrutiny one finds material differences in the

facts and circumstances of that case that the facts of the present

case. The Supreme Court while arriving at its decision took note of the

fact that the Central Government had appointed Kothari Commission

to examine the service conditions of the teachers with the object of

improving the standard of education in the country. Kothari

Commission had, inter alia, recommended that the scales pf pay of

school teachers working under different managements such as

government, local bodies or private management should be the same.

Almost all the States in the country including the State of Himachal

Pradesh had agreed to implement the recommendations of the Kothari

Commission. The State of Haryana had also followed the same policy.

The State of Himachal Pradesh had framed the Himachal Pradesh

(Grant-in-Aid) Rules in conformity with the recommendations of the

Kothari Commission and Rules 45-Q and 45-J of the said Rules read as

follows:

"45-Q. Management shall introduce such scales of pay and allowances for teachers and to other staff members as are prescribed by the Government for corresponding staff in government schools.

45-J. That the income from subscription, endowments and other sources (excluding fees) suffices to ensure that the management can contribute at least 5 per cent of the net expenditure from their own funds after the school is aided."

22. Because of the aforesaid Rules, the Supreme Court held

that the State of Himachal Pradesh was committed to implement the

Kothari Commission recommendations regarding parity in the pay

scales of the teachers working in Government schools and the aided

schools. The Government order passed under Rule 47(2) of the

Himachal Pradesh (Grant-in-Aid) Rules, which fixed the maximum limit

of the grant-in-aid to be provided to the aided schools, however, came

in the way of compliance of Rules 45-Q and 45-J, as aforesaid. The

Court enforced the obligation of the State under Rules 45-Q and 45-J

and as also the constitutional obligation of the State to provide free

education to children till they complete the age of 14 years and

quashed the imposition of maximum limit for the disbursement of

grants-in-aid to the aided schools as being arbitrary and unjustified. In

the course of its judgment in paragraphs 8 & 9 the Supreme Court

noted as follows:

"8. The aided schools teach the same syllabus and curriculum, prescribe the books and courses as per Government directions and prepare the students for same examinations for which the students studying in government schools are prepared. The qualifications of the teachers are prescribed by the State Government and the appointments are made with the approval of the State Government. The fees levied and concessions allowed are strictly in accordance with the instructions issued by the Education Department of the State Government from time to time. The Managing Committees of aided schools are approved by the State Government and two members of the Committee are appointed by the Education Department. The service conditions of the teachers including disciplinary proceedings and award of punishment etc. are governed by the Rules framed by the State Government.

9. It is, thus, obvious that the State Government has a deep and pervasive control on the aided schools. The government schools and the aided schools - specially after the Kothari Commission Report - have always been treated on a par..................................."

(emphasis added)

23. The aforesaid extract highlights the difference in factual

background in the said case from the facts of the present case. Unlike

in the said case, the qualifications of the teachers prescribed for

voluntary organisations and those prescribed for Government

Organisations/Autonomous Institutions are remarkably different. The

appointments made by voluntary organisations do not require the

approval of the State Government. The fees levied or concessions

allowed by the voluntary organisations are not fixed under the

instructions of the Government. The Government apparently has no

role to play in the management of the voluntary organisations. The

service conditions of the teachers including disciplinary proceedings

and award of punishment to the employees of voluntary organisations

are not governed by the rules framed by the State Government. It

cannot be said that there is governmental control, much less a deep

and pervasive control, on the institutions run by voluntary

organisations such as the petitioner. Therefore, this decision is of no

avail to the petitioners. The decision of the Supreme Court in "State

of Punjab & Ors. v. Om Parkash Kaushal & Ors." (1996) 5 SCC

325 relied upon by the petitioners is of no avail. In fact this decision

supports the view that we are taking. With effect from 1.12.1967, on

the basis of the Kothari Commissions recommendation the pay scales

of the teachers of the privately managed aided schools were revised

and brought at par with the teachers of the same status in the

government service. The Punjab legislature enacted the Punjab

Privately Managed Recognised Schools, Employees (Security of

Service) Act, 1979. Section 7 of the said Act granted parity to the

private teachers in the matter of scales of pay and Dearness

Allowance with the Government teachers. This act came into force on

23.01.1981. Prior to that under executive instructions the teachers

employed in privately managed aided schools in the State of Punjab

were given parity with Government teachers only in respect of pay

scales and Dearness Allowances. The other conditions of service

relating to the Government teachers were not extended to such

teachers of privately managed government aided schools. In the year

1960, the Government issued instructions whereunder teachers with

masters degree working in government schools, who had acquired

qualifications of M.A./M.Sc./M.D. (third division) became entitled to one

increment, and those who acquired the said qualification with first

division and second division, became entitled to three increments.

Subsequently in the year 1979, the Government withdrew the 1960

instructions. The existing recipients of such benefits were, however,

spared. The teachers of privately managed aided schools in the State

of Punjab sought parity regarding pay scales and Dearness Allowances

between private school teachers and Government teachers since

01.12.1967, on the ground that they had acquired the higher

qualification prior to 1979, in terms of 1960 instructions. The Supreme

Court rejected this contention on the ground that Section 7 of the

aforesaid Act, which granted parity to private school teachers and

teachers of Government aided schools in the matter of scales of pay

and Dearness Allowances with Government school teachers came into

force only on 23.01.1981. Prior to that, under executive instructions

the teachers of privately run aided schools were given parity with

Government teachers only in respect of pay scales and Dearness

Allowances, and other conditions of service relating to the Government

teachers were not extended to the respondents. In the present case,

the petitioners have not been able to show any provision of law which

mandates that it is the obligation of the State to pay the same salary

to the teachers of voluntary organisations, working to educate the

disabled and handicapped with the teachers working in Government

schools and Autonomous Institutions.

24. The decision of the Supreme Court in "State of U.P. &

Anr. v. U.P. Polytechnic Diploma Shikshak Sangh & Anr."

(2001) 10 SCC 643 also relied upon by the petitioner also does not

advance the case of the petitioners. The said decision is a short order,

which merely applies its earlier decision in State of H.P. (supra) to

grant relief to the Assistant Lecturer in Government aided

polytechnics, by holding that they would be entitled to the same

scales as granted to the Assistant Lecturers in Government

polytechnics. Since we have distinguished the aforesaid decision in

State of H.P. (supra), even this decision is of no avail to the

petitioners.

25. The decision of the Supreme Court in "State of Haryana

& Ors. v. Champa Devi & Ors." (2002) 10 SCC 78 relied upon by

the petitioners also is of no avail. This decision also goes contrary to

the submission of the petitioners. While noticing that teachers of

privately managed aided schools are entitled to the same scale of pay

and Dearness Allowances as teachers of Government schools, when it

came to dealing with the other claims of the teachers of privately

managed aided schools which had been extended to Government

employees under various circulars, the Supreme Court held that the

High Court had committed an error in granting those benefits to the

employees of private aided schools. The Supreme Court relied on its

decision in Om Parkash Kaushal (supra), wherein the Court had

examined the question as to what is the meaning of "parity in

employment" and came to the conclusion that all the incentives

granted to employees of Government cannot be claimed as a matter

of right by the employee under private management, as that would

not be within the expression "parity in employment". The Court held

that the scale of pay and Dearness Allowance granted to a

Government servant or to a teacher of a Government school can be

claimed as a matter of right by the teachers of a private aided school,

but not the other incentives which the government might confer on its

employees. Applying the same principle, it cannot be said that the

petitioners are entitled to claim parity with Government teachers or

teachers in Autonomous Institutions.

26. In Haryana State Adhyapak Sangh & Ors. Etc. v.

State of Haryana & Ors., AIR 1988 SC 1663, the Supreme Court,

while declining to go into the claim of other benefits like HRA, CCA

etc., directed the respondents to evolve a scheme to bring about

parity between the teachers of aided schools and teachers of

Government schools having regard to various allowances. However,

the Court refused to grant such allowances to the teachers of aided

schools, till such a scheme was in place. But with regard to the scale

of pay and DA the court unequivocally indicated that the teachers of

aided schools must be put on the same pedestal as their counterparts

in the Government schools.

27. It seems that when it comes to the question of parity in

pay scales and all other benefits like DA, HRA, CCA etc. the deciding

factor is whether such scales of pay and allowances have been

expressly provided for by the rules and regulations. In case they have

been provided for, then, the Courts have ruled in favour of parity to

the extent of such pay scales and allowances being provided for.

However, when such scales of pay and allowances have not been

provided for, like in the cases of Haryana State Adhyapak Sangh

(supra) and Om Prakash Kaushal (supra), the Court has either asked

the concerned parties to come up with a scheme solely for the

purpose of bringing about parity in pay, or have simply refused to

allow parity between the allowances which have been provided for and

the ones which have not been provided for. However, in the present

case, since the posts are not at par in view of the difference in

qualification for appointment etc. this question may not even arise for

determination.

28. The decision of this Court in "Bimla Rani & Ors. v.

Appellate Authority Equal Remuneration Act, 1976 & Ors." 113

(2004) DLT 441 relied upon by the petitioners also does not serve the

cause of the petitioners. That was a case dealing with employment

under the same employer. A lady employee who had earlier been

enlisted amongst the male employees and was being given a higher

salary, was subjected to reduction of her pay when it was realised that

she was a lady. The said action was challenged by the petitioner

Bimla Rani by placing reliance on Section 7(1)(b) of the Equal

Remuneration Act, 1976. The facts of that case are not similar to the

facts of the present case and even the principle of law invoked in that

case has no application to the present case. Lastly, Mr. Lekhi invoked

the principle of legitimate expectation. He submitted that the

petitioner and its employees have legitimate expectation that they

would be disbursed grants-in-aid by the Government so that the

employees of the petitioner could be paid salary and allowances at the

same rate at which their counterparts in the Government and

autonomous bodies are being paid, since they are discharging the

same nature of duties. He relies on "U.P. Avas Evam Vikas

Parishad v. Gyan Devi (dead) by LRs & Ors." (1995) 2 SCC 326,

wherein the issue before the Supreme Court was whether a local

authority/company, for whose purpose land is being acquired, has a

right to appear and adduce evidence in proceedings before Collector

and the reference Court for determination of compensation. In

paragraph 41 of the said decision (in the judgment R.M. Sahai, J.) the

Supreme Court observed: -

"In situations where even though a person has no enforceable right yet he is affected or likely to be affected by the order passed by a public authority the courts have evolved the principle of legitimate expectations. The expression which is said to have originated from the judgment of Lord Denning in Schmidt v. Secy. of State for Home Affairs (1969) 2 Ch. 149 is now well established in public law. In Attorney-General of Hong Kong v. Ng Yuen Shiu (1983) 2 A.C. 629 Privy Council applied this principle where expectations were, "based upon some statement or undertaking by or on behalf of, the public authority", and observed:

"Accordingly 'legitimate expectations' in this context are capable of including expectations which go beyond enforceable legal rights, provided they have come reasonable basis'. 'A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment" Halsbury's Laws of England, 4th Edn., Vol. 1 (1), re-issue para

81."

29. We are afraid, we cannot agree with this submission of

the petitioner. The principle of legitimate expectation has no

application in the facts of this case. The respondents, while granting

aid to the petitioners had in no uncertain terms made it clear that the

grant-in-aid would, inter alia, include 90% of the expenditure incurred

by the voluntary organisations towards salaries of the staff employed

by such organisations and as approved by the Government. There

was no ambiguity in the representation made by the Government that

90% of the approved expenditure is the maximum aid that the

Government would provide and under the schemes it was also made

clear that the voluntary organisations should be in a position to meet

the remaining expenditure from out of its own accruals and

collections. It cannot, therefore, be said that the petitioners

entertained a legitimate expectation towards receiving higher grants

from the Government to be able to pay to its employees, higher

salaries or other allowances at par with those admissible to

Government employees/teachers and employees of autonomous

institutions such as the NIVH.