Ms.Sadhna Payal & Ors. vs Director Of Education & Anr.
2010 Latest Caselaw 93 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                      W.P. (C ) NO. 5046/99

                      Judgment delivered on :11 January, 2010




Ms.Sadhna Payal & Ors.                            ......Petitioners

                     Through:Mr. Ashok Aggarwal for the petitioner.

                          Versus

Director of Education & Anr.                      ..... Respondent

                     Through: Mr. Sanjiv Sachdeva for respondent
                              no.2.
                              Ms. Sujata Kashyap for respondent
                              no.1.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR,

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

2. To be referred to Reporter or not?                         Yes

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


KAILASH GAMBHIR, J. (ORAL)

1. By this writ petition filed under Article 226 of the

Constitution of India the petitioners seek directions to

respondent no.2 for the implementation of the

recommendations of the 5th Pay Commission and for the

payment of their revised salaries and other benefits w.e.f.

1.1.1996.

2. Brief facts relevant for deciding the present petition

are that the petitioners are teachers in respondent no.2 school

which is affiliated to C.B.S.E. The Director of Education, GNCT

issued order dated 21.10.1997 stating that the Government of

India has implemented the recommendations of the 5th Pay

Commission notifying the revised pay scales of various

categories of teachers in Part-B, hereby endorsing the same

and instructing all the concerned to fix the same and the same

be effective from 1.1.1996. Earlier C.B.S.E had already issued a

circular dated 22.07.1997 to the same effect. Therefore, as per

the above mentioned two circulars read with Section 10 of the

Delhi School Education Act, the petitioners are entitled to be

paid their revised pay scales and other benefits from 1.1.1996.

However, the respondent no.2 school has

implemented them from 1.4.1997 and not from 1.1.1996.

3. Mr. Sanjiv Sachdeva counsel appearing for the

respondent no.2 submitted that the respondent no.2 in fact has

already implemented the recommendations of the 5th Pay

Commission w.e.f. 1.4.97 since no specific directions were given

by the GNCT to the respondent no.2 to implement the 5th Pay

Commission from 1.1.1996 and therefore, the said

recommendations were implemented when the fee hike was

permitted by the High Court. Counsel also drew attention of

this court to the Circular dated 21.10.1997 issued by the

Directorate of Education, GNCT, which was made applicable

only to the Govt. schools or Govt. aided schools and not to the

public schools. Counsel further submitted that there will be a

huge burden on the respondent no.2 school, if now directions

are given to the school to implement the said

recommendations. Counsel further submitted that even other

public schools have implemented the said recommendations

after 1997.

4. Ms. Sujata Kashyap counsel for respondent no.1

submitted that the said circular dated 21.10.97 was applicable

with all force to all the public schools. Counsel further submitted

that there were 19 public schools under Zone 7 and out of these

19 schools, five public schools have already implemented the

5th Pay Commission w.e.f. 1st January, 1996 and one school has

already paid arrears of the revised salary and other benefits

w.e.f. 1.1.1996. Counsel further submitted that the Directorate

of Education had already issued show cause notices to 11

schools vide letter dated 2.12.2009, calling upon them to show

cause as to why they have not paid the revised salary w.e.f.

1.1.1996. Counsel further submitted that action against all the

said defaulting schools is under consideration in terms of

Section 24 of Delhi School Education Act 1973.

5. Refuting the contentions of the respondent, counsel

for the petitioner submitted that it is not the choice of the public

schools to take their own decision and decide the date as per

their own whims and fancies, as under the mandate of Section

10 of Delhi School Education Act the implementation has to be

at par so far all the recognized aided or unaided schools are

concerned. In support of his arguments counsel for the

petitioner placed reliance on the judgment of the Apex Court in

Haryana State Minor Irrigation Tubewells Corp. & Ors. Vs. G.S.

Uppal & Ors. 2008(7) SCALE 44, wherein the Apex Court took a

view that even if a corporation is running under losses, the

same cannot obviate its liability not to pay the revised salary

w.e.f.1.1.86.

6. I have heard learned counsel for the parties at

considerable length and perused the records.

7. It is not in dispute that the recommendations made

by the 5th Pay Commission were to be implemented

w.e.f.1.1.1996. The Directorate of Education, GNCT vide their

Circular dated 21.10.1997, notified all the concerned schools

to implement the recommendations of the 5th Pay Commission

w.e.f. 1.1.1996 and as per the copy of the Circular placed on

record the same was not separately sent to the Heads of the

various public schools which in fact should have been sent, but

in any event of the matter, it is not in dispute that the

respondent no.2 has already implemented the

recommendations of the 5th Pay Commission w.e.f. 1.4.1997

and not from 1.1.1996. The said period has been selected by

the respondent no.2 school based on the fact that the fee hike

was permitted by the High Court from the said date. Counsel for

the respondent no.2 did not place any document or material on

record to show that any direction was given by the High Court

to pay the revised salaries w.e.f. 1.4.1997 or any direction to

link fee hike with the pay revision. I, therefore, do not find any

justification in the decision of the respondent no.2 to revise the

salary from 1.4.1997 and not from the date stipulated by the

Government in the 5th Pay Commission i.e. 1.1.1996.

8. Indisputably, under Section 10 of Delhi School

Education Act and the Rules framed thereunder the scales of

pay and allowances and other facilities payable to the

Government or aided schools cannot be less than those of the

employees or the teachers employed in the corresponding

schools run by various trusts and managing committees. It

would be worthwhile to produce the said Section here :

"10. Salaries of employees- (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 school 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 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 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 month, 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."

9. It is therefore, manifest from above that the teachers

of respondent no.2 school are also entitled to the benefit of the

revision in their pay scale and other benefits at par with the

other teachers employed in Government or aided schools as per

the mandate of Section 10 of the Delhi School Education Act

and the Rules framed there under.

10. The argument of the counsel for respondent no.2

that the revision of the salary was linked with the fee hike does

not hold good as the recommendations of the 5th Pay

Commission are to be implemented in its entirety and more

over once the Government has not taken any different stand

with regard to the public schools, therefore, there was no option

available to the respondent but to implement the said

recommendations at par with the other schools. The

Directorate of Education has already sent show cause notices to

various such schools in Zone No.7 calling upon them to

implement the recommendations of the 5th Pay Commission

effective from 1.1.1996 or to face action under Section 24 of

the Delhi School Education Act 1973.

11. The argument of the counsel for respondent no.2

that there will be a huge burden on the respondent no.2 school,

if now directions are given to the school to implement the said

recommendations can not sustain in the light of the judgment

of the Apex Court in Haryana State Minor Irrigation

Tubewells Corp. & Ors. Vs. G.S. Uppal & Ors. 2008(7)

SCALE 44 where it held:

"24. The plea of the appellants that the Corporation is running under losses and it cannot meet the financial burden on account of revision of scales of pay has been rejected by the High Court and, in our view, rightly so. Whatever may be the factual position, there appears to be no basis for the action of the appellants in denying the claim of revision of pay scales to the respondents. If the Government feels that the Corporation is running into losses, measures of economy, avoidance of frequent writing off of dues, reduction of posts or repatriating

deputationists may provide the possible solution to the problem. Be that as it may, such a contention may not be available to the appellants in the light of the principle enunciated by this Court in M.M.R. Khan v. Union of India [1990]1SCR687 and Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union : (2000)ILLJ1618SC

.........................

Thereafter, nothing appears to have happened which may justify the differential treatment. Thus, the Corporation cannot put forth financial loss as a ground only with regard to a limited category of employees. It cannot be said that the Corporation is financially sound insofar granting of revised pay scales to other employees, but finds financial constraints only when it comes to dealing with the respondents, who are similarly placed in the same category. Having regard to the well reasoned judgment of the Division Bench upholding the judgment and order of the learned Single Judge, we are of the view that the impugned judgment warrants no interference inasmuch as no illegality, infirmity or error of jurisdiction could be shown before us"

12. Hence, in the light of the above discussion, I am of

the considered view that the petitioners are entitled to the

revision in their salaries and other benefits as contemplated in

the 5th Pay Commission. Accordingly, directions are given to

the respondent no.2 to re-fix the salaries of the petitioners in

terms of the recommendations of the 5th Pay Commission and

pay their arrears and other benefits within a period of three

months from the date of this order.

With the above directions, the present petition

stands disposed of.

JANUARY 11, 2010      KAILASH GAMBHIR,J
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