Delhi High Court
Dhanwant Kaur Butalia & Ors. vs Guru Nanak Public School & Ors. on 14 January, 2016
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on : 14.01.2016
+ LPA 499/2013
DHANWANT KAUR BUTALIA & ORS. ..... Appellants
Through: Mr.M.S.Butalia, Advocate
versus
GURU NANAK PUBLIC SCHOOL & ORS. ..... Respondents
Through: Mr.T.K.Tiwari, Adv. for R-1 and R-2.
Mr.R.A.Iyer, proxy counsel for
Mr.Gautam Narayan, ASC with
Ms.Neelam Sehrawat, DEO for
R-3/DOE.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
C.M.No.26633/2015 (for early hearing)
For the reasons mentioned in the application, it is allowed.
Appeal heard with consent of counsel for the parties.
LPA 499/2013
1. The appellant is aggrieved by an order of the learned Single Judge
dated 23.05.2013 whereby her claim for increase of salary consequent to
implementation of the 6th Pay Commission's (6PC) recommendations, in the
respondent's school concerned was rejected.
2. The facts of the case are not in dispute. The appellant was working
for the first respondent school till she superannuated on 31.03.2008. Along
with two others, she approached this Court in W.P.(C) 2165/2012
complaining against legality of the school's pay fixation and also urging that
the arrears of salary and allowances which had to be increased in the light of
the 6 PC's recommendations, have not been carried out. The learned Single
Judge, heard learned counsel for the parties, directed that in the light of the
previous order i.e. T.P.Singh vs. Guru Harkishan Public School & Ors.
W.P.(C) 12132/2009 decided on 14.02.2013, the second and third writ
petitioners were entitled to pay fixation in the revised scale recommended
and implemented pursuant to the 6PC recommendations. The learned Single
Judge expressly referred to the Government of NCT of Delhi's order dated
11.02.2009 and further directed that the arrears were to be paid within a
period of three months.
3. Mr. Bhutania, learned counsel for the petitioner contended that the
impugned judgment is erroneous as firstly it ignores the mandate of Section
10 of the Delhi School Education Act, 1973, and secondly that the previous
orders and judgments of this court have consistently ruled that unaided
schools - like the first respondent, have an obligation to ensure that
emoluments of teachers and other members of staff are at par with what is
paid to the teachers in schools established and maintained by the
administration i.e. Government of NCT of Delhi. In this regard learned
counsel relied upon the order of a learned Single Judge in Deepika Jain vs.
Rukmini Devi Public School & Ors. W.P.(C) 237/2013 decided on
23.09.2013; Gurvinder Singh Saini vs. Guru Harkishan Public School and
Ors. (W.P.(C) 12372/2009 decided on 02.09.2011, the order of Division
Bench of this Court in Guru Harkishan Public School & Anr. vs.
Gurvinder Singh Saini & Anr. (LPA 58/2012 decided on 05.09.2012),
Guru Harkishan Model School vs. Uma Walia & Ors. (LPA 659/2013
decided on 09.09.2013) and the order in Yadvinder Kaur vs. Guru Nanak
Public School & Anr. (W.P.(C) 4807/2013 decided on 06.01.2014)
4. Learned counsel for the first respondent highlights that the school is
administered by a minority, entitled to the protection guaranteed under
Article 30 (1) of the Constitution of India and that inherent with its
autonomy is the right to charge the fee appropriate from its students. He
submits that as a consequence the cut-off date recommended and accepted
by the Government of NCT of Delhi for implementation of the 6th Pay
Commission's recommendation, cannot be interfered with. The cut-off date
according to him is 01.04.2008 by virtue of the Government of NCT of
Delhi's letter dated 11.02.2009. Learned counsel relied upon the decision of
a Division Bench of Bombay High Court in Sunanda vs. State of
Maharashtra 2000 LawSuit (Bom) 761 and urged that the concept of equal
pay for equal work is inapplicable at least in the case of schools and
educational institutions entitled to protection of Article 30 (1). He
emphasizes that autonomy of the schools not to charge fees or claim
amounts from its pupils is to be preserved and cannot be interfered with or
else, the minority character and that autonomy would inevitably be eroded if
directions to pay arrears and fix salaries in accordance with the 6PC
recommendations were to be accepted from 01.01.2006. Learned counsel
also relies upon the observations of the larger Constitution Bench judgment
in TMA Pai Foundation vs. State of Karnataka 2002 (8) SCC 481.
5. This court has considered the submissions. The previous ruling in
Uma Walia's case (supra) had highlighted the effect of Section 10 which
reads as follows:
"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."
6. The Court also notices that the pre-existing Section 12 which had
excluded the application of Section 10 and other provisions of the Chapter,
to unaided minority schools was set aside by the Supreme Court in Frank
Anthony School Employees Association vs. Union of India & Ors. AIR
1987 SC 311. The Supreme Court expressly considered the impact of
Section 10 and whether it had the effect of eroding the minority character of
schools entitled to protection under Article 30 and concluded that it did not.
The said judgment has been constantly followed and it was not overruled but
was approved in TMA Pai Foundation's case (supra). Section 10 with its
consequential resultant mandate is that scales of pay, allowances, medical
facilities, gratuity, provident fund "and other prescribed benefits" which
employees of "corresponding status" in schools of the appropriate
government are to be granted to employees of all unaided schools.
7. This ipso facto ought to clinch the case in favour of the present
appellant. Section 10 is a statutory purity and also a minimum standard
which all recognized schools have to adhere to.
8. The management in the present instance relied upon the directions/
the letter of the Government of NCT of Delhi dated 11.02.2009 which states
as follows:
"In exercise of the powers conferred under sub section 3
of Section 17, sub section 3 of Section 24 of the Delhi
School Education Act, 1973 read with sub sections 4 and 5
of Section 18 of the Delhi School Education Act, 1973 and
with Rules 50, 51, 177 and 180 of the Delhi School
Education Rules, 1973 and all other powers enabling me in
this behalf and in continuation of the previous orders
no.DE.15/Act/Duggal.Com/203/99/23039-23988 dated
15.12.1999, F.DE.15/Act/2K/243/KKK/883-1982 dated
10.02.2005 and No.DE.15/Act/2006/738-798 dated
02.02.2006. I, Chandra Bhushan Kumar, Director of
Education, Government of NCT of Delhi hereby give the
following directions to all the recognized unaided private
schools in the National Capital Territory of Delhi for the
implementation of the recommendations of the 6th Central
Pay Commission w.e.f. the academic session 2008-09 and to
meet the financial requirement arising therefrom:
1. A fee hike is not mandatory for recognized
unaided schools in the NCT of Delhi.
2. All schools must, first of all, explore the possibility
of utilizing the existing reserves to meet any shortfall in
payment of salaries and allowances, as a consequence of
increase in the salaries and allowances of employees.
3. If any school feels it necessary to hike the Tuition
Fee, it shall present its case, along with detailed financial
statements indicating income and expenditure on each
account, to the Parent Teacher Association to justify the
need for any hike. Any increase in Tuition Fee shall be
effected only after fulfilling this requirement and further
subject to the cap prescribed in paragraph 4 below.
4. All schools have been placed in five (5) categories
based on their monthly Tuition Fees at present. Increase in
the Tuition Fee, as mentioned below, is permitted with effect
from 1 September 2008 for those schools who need to raise
additional funding for additional requirement on account of
the implementation of the 6th Central Pay Commission
recommendations:-
Category Existing Tuition Fee Proposed increase in
(per month) Tuition Fee
(maximum limit)
(per month)
1. Upto Rs.500/- P.M. Rs.100/- p.m.
2. Rs.501/- to Rs.1,000/- Rs.200/- p.m.
3. Rs.1,001/- to Rs.1,500/- Rs.300/- p.m.
4. Rs.1,501/- to Rs.2,000/- Rs.400/- p.m.
5. Above Rs.2,000/- Rs.500/- p.m.
5. There shall not be any further increase in the Tuition Fee
beyond the limit prescribed in para 4 hereinabove, till
March 2010.
6. The parents shall be allowed to deposit the arrears on
account of the above Tuition Fee effective from 1st
September, 2008 by 31st March, 2009.
7. The arrears for meeting the requirement of salary etc.
from 1st January, 2006 to 31st August, 2008 as per 6th
Central Pay Commission recommendations will be paid by
the parents subject to the limitation prescribed below:-
Category Existing Tuition Fee Arrears Total
(per month) (1st Instalment) (2nd Instalment) (i+ii)
(i) (ii)
1. Upto Rs.500/- P.M. Rs.1000/- Rs.1,000/- Rs.2,000/-
2. Rs.501/- to Rs.1250/- Rs.1250/- Rs.2,500/-
Rs.1,000/-
3. Rs.1,001/- to Rs.1,500/- Rs.1,500/- Rs.1,500/- Rs.3,000/-
4. Rs.1,501/- to Rs.2,000/- Rs.1,750/- Rs.1,750/- Rs.3,500/-
5. Above Rs.2,000/- Rs.2,250/- Rs.2,250/- Rs.4,500/-
The First instalment may be deposited by 31st March
2009 and the second by 30th September 2009. Schools,
however are at liberty prescribe later dates.
8. Teachers and other employees shall be paid the first
instalment of their arrears @ 40% of the total amount by
30th April 2009 by the schools. The second instalment of
arrears i.e. the remaining 60% shall be paid by 31st October
2009.
9. No school student, who is appearing in Board
examination, shall be denied admit card, school leaving
certificate or any other document, or be disallowed from
appearing in the Board Examination on account of any non-
payment or delayed payment arising out of this order.
10. A Grievance Redressal Committee has been
constituted with the Director (Education) as the
Chairperson with two other Members and one Charted
Accountant. Any school or parent, who is aggrieved by the
order shall approach the Grievance Redressal Committee,
along with the head of the Parent Teacher Association,
within 30 days from the issue of the Order. The school
shall present the accounts of the school before the
Committee. The Committee shall resolve each grievance
brought before it.
11. The schools should not consider the increase in fee
to be the only source of augmenting their revenue. They
should also venture upon other permissible measures for
increasing revenue receipts.
12. The amount of fee collected between January 2006
and August 2008 and utilized for purposes other than
payment of salary / allowances or organizing curricular
activities should be considered as amount available for
payment of arrears and the liability of arrears for the
purpose of recovery from students should be taken as
reduced to that extent.
13. Interest on deposits made as a condition precedent
to the recognition of the schools and as pledged in favour of
the Government should also be utilized for payment of
arrears in the present case.
......"
9. This circular/letter was preceded by other circulars dated 30.08.2008,
11.09.2008, 22.09.2008 and 15.10.2008. The circular of 22.09.2008
enclosed the copy of Office Memorandum/letter dated 11.09.2008. This
referred to the Central Government office Memorandum of dated
30.08.2008. The said memorandum categorically stated as follows:
"2
(iii) In terms of the CCS (RP) Rules, 2008, there shall
be a uniform date of increment i.e. 1st July of the year after
implementation of the revised pay structure. Consequently,
in the case of employees whose date of next increment falls
on 1.1.2006, the increment will be drawn in the pre-revised
scale and pay fixed in accordance with the tables after
including the increment. The next increment in the revised
pay structure in such cases will be drawn on 1st July, 2006."
10. The said office memorandum of 30.08.2008 also referred to the
Central Civil Service Revised Pay Rules, 2008. The effect of all these office
memoranda (dated 11.09.2008, 22.09.2008 and 15.10.2008) is that the
managements of all private recognized schools aided as well as unaided had
to implement the 6PC Recommendations, in the manner stipulated by
Section 10 of Delhi Education Act. Circular dated 15.10.2008 was
categorical in this regard. It reads as under:
"Section 10 (1) of Delhi School Education Act 1973
provides that:
"The scales of pay and allowances, medical facilities,
pension, gratuity, provident fund and other prescribed
benefits of the employees of a recognized private school
shall not be less than those of the employees of the
corresponding status in school run by the appropriate
authority."
Therefore, the Management of all private recognized,
(Aided as well as unaided) schools are directed to
implement the Sixth Pay Commission recommendations -
fixation of pay and payment of arrears in accordance with
circular no.30-3(17)/Cood/Cir/2008 dated 22.09.2008 vide
which it has been implemented in r/o employees of
Government Schools.
This issue with prior approval of competent Authority."
11. A co-joint reading of all circulars would immediately reveal that the
6PC recommendations were accepted and the Central Government
formulated the revised pay rules with effect from 01.01.2006. The rules
were published in 2008. Nevertheless, the entitlement following from it
accrued to all with effect from 01.01.2006. The only exception was that
certain types of allowances i.e. HRA, children's education allowance,
special compensatory allowance etc. were to be paid prospectively with
effect from 01.09.2008 (refer para 3 of OM dated 30.08.2008). In all other
respects, the pay parity mandated for government of NCT teachers was to
apply to teachers and staff members of unaided schools - minority and non-
minority schools.
12. So far as reliance placed upon the judgment of the Bombay High
Court in Sunanda's case (supra) is concerned, we notice that the claim for
general pay parity in the absence of any statutory entitlement unlike under
Section 10 here which categorically mandates pay parity. The reference to
TMA Pai Foundation's case (supra) too, in our opinion, is in apposite. The
court there expressly overruled Unnikrishnan vs. State of Andhra Pradesh
1993 SC 2173 which had sought to regulate fee structure in educational
institutions. The Supreme Court in TMA Pai' Foundation's case (supra)
held that such fee regulations by the court was uncalled for and held that all
private school, especially minority schools are at liberty to charge such
reasonable fees as may be as may be necessary having regard to the kind of
education they offer to their pupils.
13. In the present case, Section 10 remains on the statute book; it was
declared to be applicable to all unaided schools including minority schools,
from 1986 onwards i.e. with the declaration of the law in Frank Anthony
School Employees Association's case (supra). There is no dispute that the
6PC recommendations were to be implemented from the date the
Government of NCT implemented it. Such being the case, the respondent
school in the present case could not have claimed ignorance of application
of Section 10 and stated that it was obliged to pay arrears or implement the
6PC recommendations with effect from the date later than that applicable in
the case of Government of NCT teachers and teaching staff in its schools.
14. As a consequence and in the light of the previous order of this court in
Gurvinder Singh Saini's case (supra) and Uma Walia's case (supra) the
impugned order and judgment of learned Single Judge is hereby set aside.
The respondent is directed to disburse all the arrears of salary and
allowances payable pursuant to 6PC recommendations - to the appellant
except those expressly denied by virtue of the Central Government's Office
Memorandum dated 30.08.2008, within six weeks from today.
15. The appeal is allowed in the above terms.
S. RAVINDRA BHAT
(JUDGE)
DEEPA SHARMA
(JUDGE)
JANUARY 14, 2016
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