Madras High Court
P.Thangamuthu Nadar vs The Director Of School Education on 7 October, 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.10.2021
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P. Nos.18786 & 25921 of 2008
and
M.P. Nos.1 & 1 of 2008
P.Thangamuthu Nadar ...Petitioner in W.P. No.18786 of 2008
Mr.S.Arulanandaraj ...Petitioner in W.P. No.25291 of 2008
Vs.
1.The Director of School Education,
College Road, Chennai – 6.
...1st Respondent in W.P. No.18786 of 2008
2.The Director of Matriculation School,
College Road, Chennai – 6.
...1st Respondent in W.P. No.25921 of 2008
3. Archdiocean Board of Education,
Pondicherry, rep. by its Secretary,
Bishop House, Pondicherry.
...2nd Respondent in W.P. No.25921 of 2008
4.St. Paul’s Matriculation Higher Secondary School,
rep. by its Correspondent and Principal,
ThanthaiPeriyar Road, Block-4, Neyveli – 607 801.
... 2nd Respondent in W.P. No.18786 of 2008
...3rd Respondent in W.P. No.25921 of 2008
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Prayer in W.P. No.18786 of 2008: Writ Petition filed under Article 226 of the
Constitution of India praying to issue Writ of Certiorarified Mandamus to call
for the records relating to the order No.SPS/05/MEMO/2002-08 dt.1.2.08
passed by the 2nd respondent recovering HRA and Pension from the petitioner
salary, quash the same and to direct the 2nd respondent to pay the petitioner
annual increment that fell due in June 2008, EL encashment for the year 2007,
the Special Pay 50/- from Dec.2007 and the Special Grade Pay the P.G. Assistant
with arrears from June 2008 with 18% interest, Award costs.
Prayer in W.P. No.25921 of 2008: Writ Petition filed under Article 226 of the
Constitution of India praying to issue Writ of Certiorarified Mandamus to call
for the records relating to the order dated 25.07.2008 of the 3rd respondent, quash
the same, and consequently direct the 2nd and 3rd respondents to pay the
Petitioner Annual Increment, Earned Leave, Encashment as given to others in
the 3rd respondent school and D.A. as given to other Government Teachers,
Award costs.
For Petitioners: Mr.V.AjoyKhose
For Respondents : Mr.C.Selvaraj
Government Advocate – R1 and R2
Mr.Arokiasamy –
R2 in W.P. No.18786 of 2008
R3 in W.P. No.25921 of 2008
Ms.Arul Mary
R2 in W.P.No.25921 of 2008
COMMON ORDER
The petitioner in W.P.No.25921 of 2008 seeks a quash of order dated
25.07.2008 passed by St. Paul’s Matriculation Higher Secondary School/R3 and
claims service benefits such as annual increments, surrender and earned leave
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and dearness allowance. She further prays that she be permitted to continue in
service till the age of 60 years. The petitioner in W.P.No.18786 of 2008 seeks
quash of order dated 01.12.2008 relating to deduction of House Rent Allowance
and Pension from her salary and a direction to St. Paul’s Matriculation Higher
Secondary School/R2 to pay him annual increments, encashment of earned leave
for the year 2007, Special Pay from December, 2007 and Special Grade Pay for
PG Assistant along with arrears from June, 2008 at 18% interest.
2. Both the petitioners are employed with R2/R3 School/. R2/R3 is
admittedly, a Matriculation School and a preliminary objection is raised on the
maintainability of these writ petitions by Mr.Arokiasamy, learned counsel
appearing for the School. He relies upon a decision of a Full Bench of this Court
in the case of Correspondent/Principal, Arokiamada Matriculation Higher
Secondary School, Pollachi V. T.Sorubarani (deceased) and others ((2015) 8
MLJ 257). The prayer in that writ petition was for a Mandamus directing the
respondents to grant parity of pay between the remuneration paid to
Matriculation School Teachers who had approached the Court, and Government
School Teachers.
3. The school in that case was also a Matriculation Higher Secondary
School as in the present case, and the question that arose was the impact and
weightage to be attributed to the Code of Regulations of Matriculation Schools
upon the functioning of the schools.The question that fell for the consideration
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of the Full Bench was in regard to whether private educational institutions could
be prevailed upon to ensure equal pay for equal work for the teaching staff in
their employ, as compared with the teachers in government schools.
4. Private schools come under the purview of the Directorate of
Matriculation Schools, governed by the Code of Regulations of Matriculation
Schools (in short ‘code’). The Bench noted that after the VIth Pay Commission
had raised the monthly remuneration of Government school teachers, there was
a clarion call for raising the salaries of private school teachers to the same level.
5. The Bench took note of the judgments of the Hon’ble Supreme Court in
the case of T.M.A Pai Foundation V. State of Karnataka (AIR 2003 SC 355),
and P.A.Inamdar V. State of Maharashtra (AIR 2005 SC 3226), whereunder the
fundamental right conferred by Article 30(1) of the Constitution of India upon
linguistics and religious minorities to establish and administer educational
agencies of their choice through transparent merit-based system of education
and regulation of a reasonable fee structure, was reiterated. A ceiling had been
imposed upon the collection of tuition fee, and a Fee Monitoring Committee
appointed for the State of Tamil Nadu following the direction in Islamic
Academy of Education.
6. The very issue that concerned the Full Bench, as to whether a
regulation may be imposed upon the management and administration of a
Matriculation School, came to be considered in the case of T.M.A.Pai
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Foundation and question number 5 and the answer thereto are relevant in this
context, reading as follows:
Q.5. (c) Whether the statutory provisions which regulate the facets of
administration like control over educational agencies, control over governing
bodies, conditions of affiliation including recognition/withdrawal thereof, and
appointment of staff, employees, teachers and Principal including their service
conditions and regulation of fees, etc. would interfere with the right of
administration of minorities?
A. So far as the statutory provisions regulating the facets of administration are
concerned, in case of an unaided minority educational institution, the
regulatory measure of control should be minimal and the conditions of
recognition as well as the conditions of affiliation to an university or board
have to be complied with, but in the mater of day-to- day management like the
appointment of staff, teaching and non-teaching, and administrative control
over them, the management should have the freedom and there should not be
any external controlling agency. However, a rational procedure for the
selection of teaching staff and for taking disciplinary action has to be evolved
by the management itself.
For redressing the grievances of employees of aided and unaided institutions
who are subjected to punishment or termination from service, a mechanism
will have to be evolved, and in our opinion, appropriate tribunals could be
constituted, and till then, such tribunals could be presided over by a Judicial
Officer of the rank of District Judge.
The State or other controlling authorities, however, can always prescribe the
minimum qualification, experience and other conditions bearing on the merit of
an individual for being appointed as a teacher or a principal of any
educational institution.
Regulations can be framed governing service conditions for teaching and other
staff for whom aid is provided by the state, without interfering with the overall
administrative control of the management over the staff.
Fees to be charged by unaided institutions cannot be regulated but no
institution should charge capitation fee.
7. The Bench held, in conclusion, that the Code was merely a set of
Regulations which enabled the administration of Matriculation Schools, they
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had no statutory effect and could not be enforced in a court of law. Since the
Government did not exercise any administrative control in that regard, reliance
on various Articles of the Code that provide for/suggested parity of pay between
Government school teachers and private school teachers were held to be of no
assistance to those petitioners. The Full Bench categorically held that the salary
structure followed in unaided institutions is a matter of contract between the
teacher and school, and fell outside the domain of public law.
8. Bearing in mind the prayer, which was for a mandamus, and the relief
sought by the petitioners, the Writ was held not to be maintainable, placing
reliance upon the judgments of the Hon’ble Supreme Court in the case of
Sushmita Basu V. Ballygunge Siksha Samity ((2006) 7 SCC 680) and Satimbala
Sharma V. St. Paul’s Senior Secondary School (8 MLJ 554). At paragraph 23
thereof, the Bench states that a Writ of Mandamus may be issued only if an
element of public law were involved.
23: 'We also do not think that the Court could issue a mandamus to a
private unaided school to pay the salary and allowances equal to the salary
and allowances payable to teachers of Government schools or Government
aided schools. This is because the salary and allowances of teachers of a
private unaided school is a matter of contract between the school and the
teacher and is not within the domain of public law.'
9. Per contra, Mr.Khose relies upon two subsequent judgments of the
Hon’ble Supreme Court in the case of Janet Jeyapaul V. SRM University and
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others ((2015) 16 SCC 530) and Secretary, Mahatma Gandhi Mission and
another V. Bhartiya KamgarSena and others ((2017 4 SCC 449).
10. In the case of Janet Jayapaul (supra), the institution in question was a
Deemed University and an objection was raised as to maintainability of the writ
petition. The Hon’ble Supreme Court made a distinction between a private
entity engaged in private functions and one that is engaged in rendering a public
duty or functionality. The imparting of education being a public duty and the
respondent in that case falling within the sweep of the University Grants
Commission Act, 1956, the writ petition was held to be maintainable.
11. In the case of Mahatma Gandhi Mission (supra), the Maharashtra
Universities Act, 1994 and the Rules framed thereunder vested power in the
State Government to regulate the service conditions of the staff in unaided,
affiliated, private colleges. The Bench crystallised the issue as a determination
of legal rights of teaching and non-teaching staff of unaided Engineering
Colleges, to receive pay in terms of the recommendations of the Pay
Commission.
12. In conclusion, the Bench saw no justification in excluding non-
teaching employees of unaided educational institutions from the benefit of Pay
Commission recommendations seeing as the benefit of revised pay scales was
available to non-teaching employees of aided educational institutions. Such
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discrimination was found to be violative of Article 14 of the Constitution of
India.
13. The observations from paragraph 83 are relevant and deal with the
many facets of the doctrine of equality and after detailed discussion of a
plethora of decisions, the artificial classification created between different
classes of citizens engaged in a similar kind of duty have been eschewed and
eliminated.
14. The Court categorically states that such artificial classification that
would lead to a discriminatory application of law must be nullified, such as the
distinction made between aided and unaided educational institutions. The point
that the educational institutions in question did not receive any funding/aid from
the State, therefore, made no difference to the Court that compelled the
appellants, in conclusion, to work out remedies and find ways and means to
meet the financial liability arising out of their obligations with their employees.
15. Thus, and relying upon the aforesaid judgments, learned counsel for
the petitioner would say that the decision of the Full Bench in the case of
Correspondent/Principal, Arokiamada Matriculation Higher Secondary School,
Pollachi no longer holds the field, since it has been impliedly differed with by
subsequent judgments of the Hon’ble Supreme Court as aforesaid.
16. I have heard learned counsel and studied the case files and judicial
precedents cited, carefully.
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17. The Full Bench was persuaded to reject the prayer for mandamus
based on the position that accepting the petitioner’s case for parity would
indirectly force the private institution to surrender the fundamental right
guaranteed to it in regard to its management of the school. The right to carry on
business is enshrined and guaranteed under the Constitution and this has
weighed substantially with the Bench. The question that arose for the
consideration of the Full Bench is thus different and distinct from the prayer in
the matters before me.
18. In Janet Jeyapaul,the decision of the learned single Judge dated
08.04.2013 was rendered prior to the decision of the Full Bench. The question
of maintainability of the writ petition was discussed in detail by Hon’ble Justice
V.Ramasubramanian (as be then was) holding the matter to be maintainable and
directing SRM University to reinstate Janet Jeyapaul in service. The operative
portion of the decision in regard to maintainability reads thus:
‘MAINTAINABILITY:
14.There is no dispute on facts that the first respondent is a deemed
University recognised in terms of Section 3 of the University Grants
Commission Act, 1956. It is an entirely self-financing institution and it does
not receive any grant-in-aid.
15.In K.Krishnamacharyulu vs. Sri Venkateswara Hindu College of
Engineering (1997 (3) SCC 571). 7 persons employed on daily wages as Lab
Assistants in a Private College, approached the High Court by way of a writ
petition, seeking equal pay. At that time, the College was not in receipt of any
grant-in-aid. Answering the question whether a writ under Article 226 is
maintainable or not, the Supreme Court pointed out:-
“In view of the long line of decisions of this Court holding that
when there is an interest created by the Government in an
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the citizens, the Teachers who impart the education get an
element of public interest in the performance of their duties. As
a consequence, the element of public interest requires
regulation of the conditions of service of those employees on a
par with Government employees.”
16.Going further, the Supreme Court opined in the aforesaid case that
the Teachers duly appointed to a post in the Private Institution also are
entitled to seek enforcement of the orders issued by the Government. The
Court held as follows:
“When an element of public interest is created and the institution
is catering to that element, the Teacher, being the arm of the
institution, is also entitled to avail the remedy provided under
Article 226; the jurisdiction is very wide.”
Having opined so, the Supreme Court also said something, which left
some space for future exploitation. The space so left read as follows:-
“It would be a different position, if the remedy is a
private law remedy.”
Eventually, the writ petition was held maintainable.
17.In Amir-Jamia and Others vs. Desharath Raj (ILR 1969 Delhi
202), a Division Bench of the Delhi High Court was concerned with the
question as to whether Jamia-Millia, registered as a Society under the
Societies Registration Act, receiving substantial grant-in-aid, but maintained
as an autonomous body, was amenable or not to the jurisdiction of the High
Court under Article 226.
18.After finding that the institution in question became an University
in terms of Section 3 of the University Grants Commission Act, 1956 and
after taking note of the various provisions of the University Grants
Commission Act, which entitled the University Grants Commission to
exercise control over such Universities, the Division Bench of the High Court
came to the conclusion that Jamia-Millia was discharging a State function
and that in doing so, it could not be regarded as a private institution. The
Division Bench opined that Jamia-Millia was discharging a public function
and hence it was subject to public duties and rights. Eventually, the Court
held as follows:-
“(7) To sum up, a body of persons may become a
public authority either because in its inception it is created by
a statute or because the Governmental authority is conferred
upon it later either by statute or even by executive action. The
governmental authority to confer degrees on its students was
the right derived by the Jamia Millia from a notification
issued by the Government under the University Grants
Commission Act, though Jamia Millia had existed before the
notification as a privately formed institution. From the
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Millia under a statute which expressly called it an
“authority” there can be little doubt that it was an authority
of a public nature and as such amenable to the jurisdiction of
this Court under Article 226. Our decision to regard it as a
public authority is, therefore, fully covered by the principles
underlying Article 226 and Article 12 of the Constitution,
though we may be adding a new example of the principle. The
novelty is concerned only with the fact that the Jamia Millia
became a public authority not because it was created by a
statute, but because it was recognised as a University and
given the power to confer degrees under the statute.”
19.Incidentally, the Division Bench also held in the penultimate
paragraph of its decision that educational institutions no less than other
public authorities are bound to observe rules of natural justice before
exercising the drastic powers of expulsion of students and that if they failed
to do so, the Court would be compelled to intervene.
20.In Prof. Dr.V.Ganeshan vs. Central Institute of English and
Foreign Languages (2000 (1) ALT 519), a learned Judge of the Andhra
Pradesh High Court was concerned with a challenge to the appointment of a
person as a Rector and the delegation of certain powers and duties of the
Vice Chancellor to him. The institute involved in the said case was registered
as a Society under the Andhra Pradesh Societies Registration Act, but it was
established by the Ministry of Human Resources Development, Government
of India. The institution had the status of a deemed University. After taking
note of several decisions, including the decision of the Supreme Court in
Unni Krishnan, the learned Judge of the Andhra Pradesh High Court held
that the Central Institute of English and Foreign Languages was an authority
within the meeting of Article 12 of the Constitution, since it was conferred the
power to grant Diplomas and Degrees and also since the entire financial
assistance was provided by the Central Government.
21.In Dr.Kailash Bihari vs. Birla Institute of Technology
(MANU/JH/1223/2003), the initiation of disciplinary proceedings, the
appointment of an Advocate as Enquiry Officer and the suspension of a
Assistant Professor came under challenge. Before the Division Bench, the
question of maintainability of the writ petition was also raised. But the issue
of maintainability was decided against the institution by the Division Bench
of the Jharkhand High Court, solely on the basis of the decision of the
Supreme Court in K.Krishnamacharyulu.
22.In centre for Police Research vs. Brahma Chellaney
(MANU/DE/071/2010), the termination of service of a Research Professor
employed in the Centre for Policy Research was upheld by a learned Judge of
the Delhi High Court. The Centre filed an appeal and before the Division
Bench, the question of maintainability was pressed. Though several decisions
of various Courts were noted by the Division Bench, the Division Bench
ultimately followed the triple test laid down by the Supreme Court in Binny
Ltd vs. V.Sadasivan (2005 (6) SCC 657), to come to the conclusion that the
writ petition was maintainable. The triple test was (i) whether the private
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body was discharging a public function (ii) whether the decision sought to be
corrected or enforced was in the discharging of a public function and (ii)
whether the public duty imposed is or is not of a discretionary character. The
Court also took note of the observation of the Supreme Court that the scope
of Mandamus is determined by the nature of duties to be enforced rather than
the identity of the authority against whom it is sought. Eventually, the
Division Bench pointed out in paragraph 37 of its decision as follows:-
“37.We are, thus, unequivocally of the view that in
matters of service conditions including of appointment and
termination and grievances arising therefrom the scrutiny
under Article 226 of the Constitution of India cannot be
excluded having a public element and thus the learned single
Judge was right in coming to the conclusion that the matter
could be examined under Article 226 of the Constitution of
India.”
23.However, Ms.B.Saraswathi, learned counsel for the first
respondent relied upon a few decisions in support of her contention that the
writ petition is not maintainable. Now let me have a look at those decisions.
24.In Sunil Kumar Saxena vs. Holy Cross Ashram Higher Secondary
School (CDJ 2009 MPHC 664), the oral termination of the services of a
Teacher of a Higher Secondary School, was in dispute. The single Judge
dismissed the writ petition as not maintainable and the Teacher filed an
appeal before the Division Bench of the Madhya Pradesh High Court. The
Division Bench, after taking note of the decision in K.Krishnamacharyulu,
referred to the decision of the Supreme Court in S.K.Varshney vs. Principal,
Our Lady of Fatima Higher Secondary School (Civil Appeal No.8783 of 2003
decided on 19.7.2007) and held that though a writ petition against an
unaided educational institution is maintainable, the termination of services of
the employee of such an institution does not involve an element of public law.
Therefore, the Division Bench held the writ petition to be not maintainable.
25.In M.Mahendrani vs. The Branch Manager, Citicorp Finance
India Limited (CDJ 2010 MHC 594), M.Jaichandren, J., held that a writ
petition filed against a private Non-Banking Finance Company, was not
maintainable. In Dr.A.Safiullah vs. The Director of Collegiate Education
(W.P.No.14796 of 2009 decided on 14.7.2011), K.Chandru, J., held that the
termination of the services of a Lecturer by a minority educational
institution, cannot be set aside.
26.But the decisions cited by the learned counsel for the first
respondent have no application to the question on hand. The decision of the
Division Bench of the Madhya Pradesh High Court in Sunil Kumar Saxena,
did not take note of the fact that even the claim for parity of pay scales was
held to have an element of public law, in K.Krishnamacharyulu. The decision
of the learned Judge of this Court in Mahendrani, did not deal with the
appointment to an educational institution governed by the provisions of the
University Grants Commission Act, 1956. Similarly, the judgment of
K.Chandru, J., is also not applicable, since it dealt with an employee of the
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self-financing section of a minority educational institution. There is a vast
distinction between a self-financing University which is declared as a deemed
University under the University Grants Commission Act, 1956 and a minority
college to which some of the provisions of the Tamil Nadu Private Colleges
(Regulation) Act, 1976, do not apply.
27.Even the decision of S.Nagamuthu, J., in J.VargheseRiju vs. The
Director of Collegiate Education (W.P.No.12391 of 2012 decided on
17.9.2012), is not applicable, since the learned Judge did not go into the
question whether the management of Loyola College was amenable to the
writ jurisdiction or not. Therefore, the decisions cited by the learned counsel
for the first respondent, are not of any assistance.
28.On the contrary, it is clear from the decision in
K.Krishnamacharyulu, and the decisions of the Delhi High Court, cited
supra, that the recruitment of Teachers to University which are declared to
be so by virtue of Section 3 of the University Grants Commission Act, 1956,
is certainly a public function, governed and regulated by Statute. Therefore,
it is no more open to Universities like the first respondent to question the
jurisdiction of this Court, in matters of this nature. Hence, the first issue
regarding maintainability is answered in favour of the petitioner.’
19. The matter thereafter travelled in Writ Appeal at the instance of SRM
University and the Bench rendered its decision on 04.07.2013 reversing the
order under appeal. Janet Jeyapaul then carried the matter to the Hon’ble
Supreme Court in Civil Appeal No.14553 of 2105, and the appeal came to be
allowed on 15.12.2015, the Bench holding that a Deemed University is an
‘authority’ within the meaning of Article 12 of the Constitution of India,
amenable to Writ Jurisdiction. This judgment was rendered after the decision of
the Full Bench.
20. The Hon’ble Supreme Court held that judicial review of the discharge
of public functions by an authority which was not a public authority was
permissible. The order passed by SRM University terminating the services of a
member of its teaching staff was held to be amenable to Writ jurisdiction. The
Bench noted that the institution was engaged in imparting education and higher
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studies to students at large, which constitutes a public function. Moreover, it
was a Deemed University under Section 3 of the University Grants Commission
Act.
21. The alternate contention of the University before the Bench was that
the petitioner was liable to be relegated to the District Judge for redressal of her
grievances. The suggestion was held to be unworkable as the direction of the
Constitution Bench in T.M.A.Pai Foundation (supra) to the effect that Tribunals
be formulated ‘remained a pipe dream’, and since that Writ Petition had been
entertained as early as in 2003.
22. The third/second respondent before me is a Matriculation School
which receives no aid, whereas, SRM University is a Deemed University, as
defined under the University Grants Commission Act. However, the larger
question which appears to have persuaded the Hon’ble Supreme Court both in
the case of Janet Jeyapaul(supra) as well as Mahatma Gandhi Mission (supra)
in holding the writ petitions maintainable was that the institutions in question
are engaged in imparting education, which is a public duty.
23. The distinction sought to be drawn between private and other schools
engaged in the dissemination of education pales into insignificance in the light
of the judgments discussed above. The irrefutable conclusion to be drawn is that
while a writ of mandamus will not lie as against a private educational institution,
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recourse to the remedy of judicial review, is always available to an aggrieved
stakeholder in the system of private education, in appropriate circumstances.
24. The argument that an authority is not a public authority, amenable to
writ jurisdiction is not unique to schools alone and has been raised in the context
of other entities, such as banks and other agencies. In this context, the Hon’ble
Supreme Court in the case of Zee Telefilms Limited and another v. Union of
India and others (2005 4 SCC 649) states, Thus, it is clear that when a private
body exercises its public functions even if it is not a State, the aggrieved person
has a remedy not only under the ordinary law but also under the Constitution,
by way of a writ petition under Article 226. The tests laid down by the Hon’ble
Bench in this regard are as below:
....
In our view, the complex problem has to be resolved keeping in view the
following further tests :
i) When the body acts as a public authority and has a public duty to perform;
(ii) When it is bound to protect human rights.
(iii) When it regulates a profession or vocation of a citizen which is otherwise a
fundamental right under a statute or its own rule..
(iv) When it regulates the right of a citizen contained in Article 19(1)(a) of the
Constitution of India available to the general public and viewers of the game of
cricket in particular.
(v) When it exercises a de facto or a de jure monopoly;
(vi) When the State out-sources its legislative power in its favour;
(vii) When it has a positive obligation of public nature. These tests as such had
not been considered independently in any other decision of this Court.
We, thus, would have to proceed to determine the knotty issues involved therein
on a clean slate.
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These traditional tests of a body controlled financially, functionally and
administratively by the Government as laid down in Pradeep Kumar Biswas
(supra) would have application only when a body is created by the State itself
for different purposes but incorporated under the Indian Companies Act or
Societies Registration Act.
25. Thus, if an act of omission or commission by a private entity falls
within the domain of public duty, writ jurisdiction may be revoked. Courts have,
also cautioned that merely became an authority is a public authority or a private
authority rendering public/state functions, will not make it amenable to writ
jurisdiction as the specific act of omission or commission must also be
established to be one that impacts larger public cause/ contain an element of
public functionality.
26. The above specific and fine distinction, in my view, would not have
the same rigour in the case of an educational institution for two reasons: one, the
character of education as a public duty and second, as on date, there are no
special tribunals/courts to address such grievances. Till such time the special
courts/tribunals are constituted, it is the constitutional Courts that must fill that
need, as appropriate.
27. Private schools form the backbone of the system of school education
in Tamil Nadu. The stake holders in the private school system cannot be left
with no remedy in regard to lapses/errors in the functioning of such institutions.
All the more, for the reason that the dissemination of education constitutes a
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public/state function, which in this case is ably and substantially supported by
the private school system of education.
28. Reliance upon the decision of the Full Bench will not advance the case
of the respondents herein as what was sought therein was a mandamus directing
the respondents to accord parity in the pay of teachers in private institutions with
those of teachers in Government institutions. It was in those circumstances, that
the Bench rejected the plea holding that no mandamus could be granted as
sought for.
29. The judgments in the case of TMA Pai Foundation and P.A.Inamdar
protect the rights of private institutions such that no mandamus, contrary to the
observations contained in the judgments would lie. This is the position as
applied and settled by the Full Bench. However, judicial review of proceedings
in private schools, including matriculation schools are permissible.
30. The writ petitions are held to be maintainable. The Full Bench, while
rejecting the plea for mandamus has opined that it was high time that a separate
Tribunal be constituted or a Court to be designated as a Special Court to deal
with issues and disputes arising from service conditions of teaching staff in
private institutions. In light of discussion as above, it would be appropriate and
high time indeed that the State look into the constitution of a specialized
Tribunal, either by way of conversion of existing Courts into competent Special
courts or by way of constitution afresh, to adjudicate upon the disputes relating
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to the functioning of educational institutions.
31. On merits, the challenge is to two orders which deal with the
quantification of Leave entitlement, House Rent Allowance and other monetary
emoluments which the petitioners claim they are entitled to. There is no doubt
that the school is bound to compute the emoluments in a proper manner.
However and having said that the writ petitions are maintainable, this Court is
not inclined to enter into the arena of computation of benefits, as neither the
applicable terms and conditions qua the petitioners and the schools nor the
particulars of the amount claimed are before the Court and the Court cannot be
called upon to render a finding in vaccum.
32. However, no recovery of any alleged dues as proposed shall be
effected from the petitioners in the light of the judgment of the Hon’ble Supreme
Court in the case of State of Punjab & Others vs. Rafiq Masih (White Washer),
as such recovery is imminent upon their retirement. The directions of the
Hon’ble Supreme Court in this regard are set out at paragraphs-12, 13 and 14
extracted below:
‘…………
12. It is not possible to postulate all situations of hardship, which
would govern employees on the issue of recovery, where payments have
mistakenly been made by the employer, in excess of their entitlement. Be
that as it may, based on the decisions referred to herein above, we may, as
a ready reference, summarise the following few situations, wherein
recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV
service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to
https://www.mhc.tn.gov.in/judis/ within one year, of the order of recovery.
retire
(iii) Recovery from employees, when the excess payment has been
made for a period in excess of five years, before the order of recovery is
issued.
(iv) Recovery in cases where an employee has wrongfully been
required to discharge duties of a higher post, and has been paid
accordingly, even though he should have rightfully been required to work
against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that
recovery if made from the employee, would be iniquitous or harsh or
arbitrary to such an extent, as would far outweigh the equitable balance of
the employer's right to recover.
13. We are informed by the learned counsel representing the
appellant- State of Punjab, that all the cases in this bunch of appeals,
would undisputedly fall within the first four categories delineated
hereinabove. In the appeals referred to above, therefore, the impugned
orders passed by the High Court of Punjab and Haryana (quashing the
order of recovery), shall be deemed to have been upheld, for the reasons
recorded above.
14. The appeals are disposed of in the above terms’
33. Further, the respondents in counter state that the petitioners have been
permitted to work till the age of 60 years. Thus this grievance of the petitioners
stands addressed in their favour. In summary, the impugned orders are
confirmed except to the extent indicated above. These writ petitions are disposed
as above. No costs.
07.10.2021
Sl
Index:Yes/No
Speaking order/Non-speaking order
To
1.The Director of School Education,
College Road, Chennai – 6.
2.The Director of Matriculation School,
https://www.mhc.tn.gov.in/judis/
College Road, Chennai – 6.
DR. ANITA SUMANTH, J.
sl
W.P. Nos.18786 & 25921 of 2008
and
M.P. Nos.1 & 1 of 2008
07.10.2021
https://www.mhc.tn.gov.in/judis/
