Two questions presented for consideration in this appeal by special leave, at the instance of the appellants--Oriental Bank of Commerce and its General Manager - are: (one) whether in terms of regulation 17 of Oriental Bank of Commerce Officer Employees (Discipline and Appeal) Regulations, 1982 (for short, `the 1982 Regulations'), the appellate authority is required to accord personal hearing to the respondent in a departmental appeal; and (two) 1 whether the order dated June 4, 2004 passed by the appellate authority in the appeal preferred by the respondent under regulation 17 suffers from infirmity for want of reasons.

                                                                                REPORTABLE





                  IN THE SUPREME COURT OF INDIA

                   CIVIL APPELLATE JURISDICTION


                    CIVIL  APPEAL NO. 128 OF 2007





Oriental Bank of Commerce & Anr.                                .... Appellants


                                    Versus


R.K. Uppal                                                       ....Respondent




                                 JUDGMENT


R.M. Lodha, J.





              Two questions presented for consideration in this appeal


by special leave,  at the instance of the appellants--Oriental Bank of


Commerce and its General Manager - are:   (one) whether in terms


of   regulation   17   of   Oriental   Bank   of   Commerce   Officer   Employees


(Discipline   and   Appeal)   Regulations,   1982   (for   short,   `the   1982


Regulations'),   the appellate authority is required to accord personal


hearing   to   the   respondent   in   a   departmental   appeal;   and   (two)




                                                                                     1


whether   the   order   dated   June   4,   2004     passed   by   the   appellate


authority in the appeal preferred by the respondent  under regulation


17 suffers from infirmity for want of reasons.


2.             The brief facts leading to the above questions are these :


the respondent--R.K. Uppal (hereinafter referred to as `delinquent')


faced   departmental   inquiry   under   regulation   6   of   the   1982


Regulations for acts of omission and commission committed by him


while   working   as   Senior   Manager/Incumbent   In-charge   at   19-D,


Chandigarh   Branch.       The   article   of   charges   served   on   the


delinquent contained four charges, namely : (I) between the period


September 14,  1999  to  December 20, 1999,  while recommending


sanction       of       credit       facilities   and   further   enhancements   in   the


account of M/s. Dunroll Industries Limited,  the  delinquent   failed  to


ensure       that       the       proposal       has     been   properly


appraised/processed   and   all   the  relevant information has  been


recorded   in   the   process   note;   (II)   the     delinquent       recommended


release   of   working   capital   facilities   aggregating   to Rs. 64 lac


in   the   account   of   M/s.   Dunroll   Industries   Limited       for       the   unit


located     at   Sikandarabad   (UP)   at   a   distance   of   approximately   300


k.m.   from   the   branch     although   the   monitoring   of   unit   at   such   a




                                                                                          2


distant   place   was   not   possible;   (III)   the   delinquent   recommended


enhancement   of   Rs.   175   lac   in   the   Bank   Guarantee   limit   on


November   17,   2000       in   the   account   of   M/s.   Dunroll   Industries


Limited   without   ensuring   satisfactory   conduct   of   the   account   and


without   going   into   the   details   of   the   transactions   and   implications


thereof   and   (IV)   the   delinquent     released   credit   facilities   in   the


account of M/s. Dunroll Industries Limited without complying with the


terms of sanction.


3.            On March 17, 2003,  Shri M.K. Ghosh, Commissioner for


Departmental   Inquiries,   Central   Vigilance   Commission,   was


appointed   inquiring   authority   to   inquire   into   the   above   charges


levelled against the delinquent.


4.            The   delinquent   submitted   his   reply   and   denied   the


charges.   The   inquiring   authority   after   recording   the   evidence


submitted its report on November 11, 2003. Charge I and Charge II


were held to be partly proved while Charge III and Charge IV were


held to be proved.


5.            The   findings   and   report   of   the   inquiring   authority   were


sent to the delinquent who in response  submitted his representation


on   December   15,   2003.     The   disciplinary   authority   concurred   with




                                                                                     3


the   findings   of   the   inquiring   authority   and   keeping   in   view   the


seriousness   of   charges   and   gravity   of   the   proved   conduct,   it


imposed   the   penalty   of   dismissal   vide   order   dated   February   14,


2004.


6.            The delinquent preferred   appeal under regulation 17 of


the   1982   Regulations   assailing   his   dismissal   order   on     diverse


grounds   and   also   requested   for   grant   of   personal   hearing.   The


appellate   authority   rejected   the     delinquent's     request   for   personal


hearing and dismissed his appeal vide its order dated June 4, 2004.


7.            The   delinquent   challenged   the     order   of   penalty   dated


February   14,   2004     and   also   the   order   of   the   appellate   authority


before the High Court of Punjab and Haryana. The Division Bench of


that   Court   vide   its   order   dated   January   23,   2006   allowed   the


delinquent's   writ   petition   partly   and   set   aside   the   order   of   the


appellate authority and remitted the matter back to it with a direction


to pass a reasoned order after giving an opportunity of hearing to the


petitioner.   It is this order which is impugned in the present appeal.


8.            We   have   heard   Mr.   K.N.   Bhatt,   senior   counsel   for   the


appellants and Mr. Ram Lal Roy, counsel for the respondent.





                                                                                     4


Re :  Question (one)


9.              Regulation 17 of the 1982 Regulations reads as follows:-


        "17. Appeals :


        (i)      An   officer   employee   may   appeal   against   an   order

                 imposing upon him any of the penalties specified in

                 regulation   4   or   against   the   order   of   suspension

                 referred   to   in   regulation   12.   The   appeal   shall   lie   to

                 the Appellate Authority.


        (ii)     An appeal shall be preferred within 45 days from the

                 date   of   receipt   of   the   order   appealed   against.   The

                 appeal shall be addressed to the Appellate Authority

                 and   submitted   to   the   authority   whose   order   is

                 appealed   against.   The   authority   whose   order   is

                 appealed   against   shall   forward   the   appeal   together

                 with its comments and the records of the case to the

                 Appellate   Authority.   The   Appellate   Authority   shall

                 consider whether the findings are justified or whether

                 the   penalty   is   excessive   or   inadequate   and   pass

                 appropriate   orders.   The   Appellate   Authority   may

                 pass   an   order   confirming,   enhancing,   reducing   or

                 setting aside the penalty or remitting the case to the

                 authority which imposed the penalty or to any other

                 authority with such direction as it may deem fit in the

                 circumstances of the case....."                              




10.             The   High   Court   has   taken   a   view   that   regulation   17   of


the  1982  Regulations   impliedly  requires  that   a   delinquent   who  has


preferred   appeal   is   afforded   an   opportunity   of   personal   hearing   by


the   appellate   authority.       While   taking   such   view,   the   High   Court


relied on a decision of this Court in Ram Chander v. Union of India &



                                                                                             5


Ors.1  and a Full Bench decision of that Court in  Ram Niwas Bansal


v. State Bank of Patiala & Anr.2 .


11.              We shall refer to the above   two decisions first. In  Ram


Chander's case1  before this Court, the appellant who was employed


as   Shunter,   Grade   `B'   in   the   Railways   was   removed   from   service


after holding disciplinary inquiry wherein his guilt of misconduct was


held to be proved. The inquiry officer proceeded ex-parte against the


delinquent   as   he   did   not   appear   and   recorded   a   finding   that


misconduct   was   proved.   The   disciplinary   authority   (General


Manager)   concurred   with   the   view   of   the   inquiry   officer;     formed   a


provisional view that penalty of removal should be imposed on him


and   issued   a   show   cause   notice   to   the   delinquent   in   this   regard.


This time, the delinquent did respond to the show cause notice and


submitted   his   explanation.     The   disciplinary   authority   was   not


satisfied with the delinquent's response and imposed the penalty of


removal. The delinquent preferred a departmental appeal before the


Railway Board under the relevant Rules. His appeal was dismissed


by   the   appellate   authority.   The   delinquent   then   challenged   the


orders of the appellate authority and disciplinary authority before the




1 (1986) 3 SCC 103

2 (1998) (4) SLR 711



                                                                                       6


High Court in a writ petition. The writ petition was dismissed and so


also   the   Letters   Patent   Appeal   preferred   by   him.   The   matter   then


reached   this   Court   in   an   appeal   by   special   leave.   Inter   alia,   the


contention   of   the   delinquent   before   this   Court   was   that   it   was


incumbent   upon   the   appellate   authority   to   afford   him   personal


hearing   before   his   appeal   was   decided.   Construing   the   relevant


Rules,   namely,   Rule   18(ii)   of   the   Railway   Servants   (Discipline   &


Appeal)   Rules,   1968   and   Rule   22(2)   of   the   said   Rules,   this   Court


held (at pages 117-118)  as under :




        "25.   ..........Such   being   the   legal   position,   it   is   of   utmost

        importance   after   the   Forty-Second   Amendment   as

        interpreted by the majority in Tulsiram Patel [(1985) 3 SCC

        398] case that the appellate authority must not only give a

        hearing   to   the   government   servant   concerned   but   also

        pass a reasoned order dealing with the contentions raised

        by him in the appeal. We wish to emphasize that reasoned

        decisions   by   tribunals,   such   as   the   Railway   Board   in   the

        present   case,   will   promote   public   confidence   in   the

        administrative   process.   An   objective   consideration   is

        possible only if the delinquent servant is heard and given a

        chance   to   satisfy   the   authority   regarding   the   final   orders

        that   may   be   passed   on   his   appeal.   Considerations   of   fair

        play and justice also require that such a personal hearing

        should be given.


        26.  In the result, the appeal must succeed and is allowed.

        The judgment and order of a learned Single Judge of the

        Delhi   High   Court   dated   August   16,   1983   and   that   of   the

        Division Bench dismissing the letters patent appeal filed by

        the appellant in limine by its order dated February 15, 1984

        are   both   set   aside,   so   also   the   impugned   order   of   the



                                                                                       7


         Railway   Board   dated   March   11,   1972.   We   direct   the

         Railway   Board   to   hear   and   dispose   of   the   appeal   after

         affording a personal hearing to the appellant on merits by a

         reasoned order in conformity with the requirements of Rule

         22(2)   of   the   Railway   Servants   (Discipline   and   Appeal)

         Rules,   1968,   as   expeditiously   as   possible,   and   in   any

         event, not later than four months from today."




In our opinion, in Ram Chander's case1,  this Court has not laid down


as   an   absolute   proposition   that   in   matters   of   departmental   appeal


against the punishment order of a disciplinary authority, the appellate


authority must invariably afford personal hearing to a delinquent.


12.             Insofar as,  Punjab and Haryana High Court is concerned,


it   is   true   that   in  Ram   Niwas   Bansal2    while   dealing   with   a   similar


regulation,   i.e.   regulation   70   of   the   State   Bank   of   Patiala   (Officers)


Service Regulations, 1979, the Full Bench of that Court has read into


such rule a provision of right of personal hearing to a delinquent  but


we   find   it   difficult   to   approve   that   view.     As   a   matter   of   fact,   the


judgment   of   this   Court   in   the   case   of  State   Bank   of   Patiala   Vs.


Mahendra Kumar Singhal3 was not brought to the notice of that Court


nor   that   judgment   was   adverted   to   which   lays   down   in   clear   terms


that the rule of natural justice does not necessarily in all cases confer





3 (1994) Supp (2) SCC 463



                                                                                             8


a right of audience at appellate stage.  This is what this Court said (at


page 464)  in Mahendra Kumar Singhal3 :


             "2.  Heard   counsel   on   both   sides.   The   respondent   was

           visited   with   the   punishment   of   dismissal   from   service.   He

           filed   a  departmental  appeal   which   came   to  be   dismissed,

           whereupon   he   moved   the   High   Court   by   way   of   a   writ

           petition. The High Court quashed the order of the appellate

           authority on the ground that no personal hearing was given

           before   the   appeal   was   dismissed.   The   matter   was,

           therefore, remitted to the appellate authority to dispose of

           the   appeal   after   hearing   the   delinquent   personally.   It   is

           against the said order that the present appeal is filed.


           3. No rule has been brought to our attention which requires

           the appellate authority to grant a personal hearing. The rule

           of natural justice does not necessarily in all cases confer a

           right of audience at the appellate stage. That is what  this

           Court   observed   in  F.N.   Roy  v.  Collector   of   Customs,

           Calcutta  [1957   SCR   1151   =   AIR   1957   SC   648].   We,

           therefore,   think   that   the   impugned   order   is   not   valid.   Our

           attention was, however, drawn to the decision in Mohinder

           Singh   Gill  v.  Chief   Election   Commissioner,   New   Delhi

           [(1978) 1 SCC 405] wherein observation is made in regard

           to   the   right   of   hearing.   But   that   was   not   a   case   of   a

           departmental   inquiry,   it   was   one   emanating   from   Article

           324   of   the   Constitution.   In   our   view,   therefore,   those

           observations are not pertinent to the facts of this case."




    13.      In Union of India and Anr. v. Jesus Sales Corporation4,  this


    Court   was   concerned   with   an   appeal   that   was   filed   against   the


    judgment of the Full Bench of the Delhi High Court holding that an


    oral hearing has to be given by appellate authority before taking a


    decision under 3rd proviso to sub-section (1) of Section 4-M of the



4 (1996) 4 SCC 69



                                                                                             9


Imports   and   Exports   (Control)   Act,   1947.   The   Court   noticed


Section   4-M   of   that   Act   and   in   paragraph   3   at   page   73   of   the


Report   framed   the   question   as   to   whether   the   requirement   of


hearing   to   the   appellants   has   to   be   read   as   an   implicit   condition


while   construing   the   scope   of   3rd  proviso   to   sub-section   (1)   of


Section 4-M.  This Court held (at pages 74-75)  as under :


     "5.  The   High   Court   has   primarily   considered   the   question

     as to whether denying an opportunity to the appellant to be

     heard before his prayer to dispense with the deposit of the

     penalty is rejected, violates and contravenes the principles

     of natural justice. In that connection, several judgments of

     this Court have been referred to. It need not be pointed out

     that   under   different   situations   and   conditions   the

     requirement of compliance of the principle of natural justice

     vary. The courts cannot insist that under all circumstances

     and  under different statutory provisions personal hearings

     have   to   be   afforded   to   the   persons   concerned.   If   this

     principle   of   affording   personal   hearing   is   extended

     whenever statutory authorities are vested with the power to

     exercise discretion in connection with statutory appeals, it

     shall   lead   to   chaotic   conditions.   Many   statutory   appeals

     and   applications   are   disposed   of   by   the   competent

     authorities who  have been vested  with powers  to dispose

     of the same. Such authorities which shall be deemed to be

     quasi-judicial authorities are expected to apply their judicial

     mind   over   the   grievances   made   by   the   appellants   or

     applicants   concerned,   but   it   cannot   be   held   that   before

     dismissing   such   appeals   or   applications   in   all   events   the

     quasi-judicial   authorities   must   hear   the   appellants   or   the

     applicants, as the case may be. When principles of natural

     justice   require   an   opportunity   to   be   heard   before   an

     adverse   order   is   passed   on   any   appeal   or   application,   it

     does   not   in   all   circumstances   mean   a   personal   hearing.

     The   requirement   is   complied   with   by   affording   an

     opportunity   to   the   person   concerned   to   present   his   case

     before   such   quasi-judicial   authority   who   is   expected   to



                                                                                    10


apply his judicial mind to the issues involved. Of course, if

in   his   own   discretion   if   he   requires   the   appellant   or   the

applicant   to   be   heard   because   of   special   facts   and

circumstances of the case, then certainly it is always open

to   such   authority   to   decide   the   appeal   or   the   application

only   after   affording   a   personal   hearing.   But   any   order

passed after taking into consideration  the  points  raised in

the appeal or the application shall not be held to be invalid

merely  on  the   ground   that   no   personal   hearing   had   been

afforded.   This   is   all   the   more   important   in   the   context   of

taxation   and   revenue   matters.   When   an   authority   has

determined   a   tax   liability   or   has   imposed   a   penalty,   then

the requirement that before the appeal is heard such tax or

penalty   should   be   deposited   cannot   be   held   to   be

unreasonable as already pointed out above. In the case of

Shyam Kishore v. Municipal Corpn. of Delhi [(1993) 1 SCC

22]  it   has   been   held   by   this   Court   that   such   requirement

cannot be held to be harsh or violative of Article 14 of the

Constitution so as to declare the requirement of pre-deposit

itself as unconstitutional. In this background, it can be said

that normal rule is that before filing the appeal or before the

appeal is heard, the person concerned should deposit the

amount which he has been directed to deposit as a tax or

penalty.   The   non-deposit   of   such   amount   itself   is   an

exception which has been incorporated in different statutes

including   the   one   with   which   we   are   concerned.   Second

proviso to sub-section (1) of Section 4-M says in clear and

unambiguous   words   that   an   appeal   against   an   order

imposing   a   penalty   shall   not   be   entertained   unless   the

amount of the penalty has been deposited by the appellant.

Thereafter   the   third   proviso   vests   a   discretion   in   such

appellate   authority   to   dispense   with   such   deposit

unconditionally   or   subject   to   such   conditions   as   it   may

impose in its discretion taking into consideration the undue

hardship which it is likely to cause to the appellant. As such

it can be said that the statutory requirement is that before

an appeal is entertained, the amount of penalty has to be

deposited by the appellant; an order dispensing with such

deposit   shall   amount   to   an   exception   to   the   said

requirement of deposit. In this background, it is difficult to

hold that if the appellate authority has rejected  the prayer

of   the   appellant   to   dispense   with   the   deposit

unconditionally or has dispensed with such deposit subject


                                                                                   11


         to   some   conditions   without   hearing   the   appellant,   on

         perusal of the petition filed on behalf of the appellant for the

         said purpose, the order itself is vitiated and is liable to be

         quashed being violative of the principles of natural justice.




14.             Thus,   in    Jesus   Sales   Corporation4,   it   was   held   by   this


Court   that   under   the   relevant   rule,   it   was   not   obligatory   upon   the


appellate authority to  hear the appellant.


15.             In  Ganesh   Santa   Ram   Sirur  v.  State   Bank   of   India   and


Anr.5,   the   appellate   authority   proposed   to   enhance   the   penalty


imposed   upon   the   delinquent   by   the   punishing   authority.   The


disciplinary   authority   recommended   to   the   punishing   authority   the


punishment   of   reduction   in   substantive   salary   at   one   stage.   The


punishing authority accepted the recommendation of the disciplinary


authority   and   imposed   the   punishment   accordingly.   The   appellate


authority proposed to enhance the penalty to an order of removal. In


this context, inter alia, one of the contentions raised before this Court


was that the order of removal from service could not be sustained as


no   personal   hearing   was   given   to   the   delinquent   before   the


enhancement   of   punishment   even   though   personal   interview   was


specifically   asked   for.   The     Court   noticed   various   judgments   of   this


Court   including   the   Constitution   Bench   judgment   in  Managing


5 (2005) 1 SCC 13



                                                                                      12


Director, ECIL, Hyderabad and others v.  B. Karunakar and Ors.6  and


also   the   judgment   of   the   Punjab   and   Haryana   High   Court   in  Ram


Niwas Bansal2. In paragraph 31 at page 29 of the Report,  it was held


that the approach and test adopted in  B. Karunakar6    should govern


all   cases   where   the   complaint   is   not   that   there   was   no   hearing,   no


notice and no opportunity  but one of not affording the proper hearing


that is adequate or a full hearing or violation of a procedural rule or


requirement governing that inquiry. We have not been able to discern


anything   in  Ganesh   Santa   Ram  Sirur5  that   lays   down   that   the


appellate authority must, in all cases of departmental appeal, afford


personal hearing to the delinquent.


16.             Be   it   noted   that    the   principal  question   for   consideration


in  B.   Karunakar6            was   whether   the   report   of   the   inquiry


officer/authority   who/which   is   appointed   by   the   disciplinary   authority


to hold an inquiry   into the charges against the delinquent employee


is   required   to   be   furnished   to   the   employee   to   enable   him   to   make


proper   representation   to   the   disciplinary   authority   before   such


authority arrives at its own finding with regard to guilt or otherwise of


the   employee   and   the   punishment,   if   any,   to   be   awarded   to   him.


While   dealing   with   this   question   and   its   diverse   facets,   the     Court


6  (1993) 4 SCC 727



                                                                                       13


exhaustively considered the principles of natural justice in the context


of furnishing the report of the inquiry officer/authority to the delinquent


employee.  B. Karunakar6 does not deal with the question of necessity


of   affording   a   personal   hearing   to   a   delinquent   by   the   appellate


authority.


17.             Mr. K.N. Bhatt, learned senior counsel for the appellants


cited a Single Bench decision of   Andhra Pradesh High Court in  Y.


Malleswara   Rao  v.  Chief   General   Manager,   State   Bank   of   India,


Hyderabad & Ors.7. In that case the delinquent was  visited with the


penalty of removal from service. The concerned delinquent preferred


appeal   before   the   appellate   authority   and   one   of   the   contentions


raised before the High Court was that the appellate authority failed to


afford a personal hearing to the delinquent and, therefore, the order


of the appellate authority suffered from transgression of an essential


principle   of   natural   justice.   The   Single   Judge   of   the   High   Court


referred   to   decisions   of   this   Court   in  Mahendra   Kumar   Singhal3,


Jesus Sales Corporation4 and  Ganesh Santa Ram Sirur5 and also the


decision   of   Full   Bench   of   Punjab   and   Haryana   High   Court   in  Ram


Niwas   Bansal2.   The   Single   Judge   also   referred   to   few   decisions   of


other High Courts   and followed the proposition propounded by this


7 2006 LAB. I.C. 1384



                                                                                  14


Court   in  Mahendra   Kumar   Singhal3    viz;   that   in   the   absence   of   the


specific   requirement   by   the   relevant   rules,   there   is   no   right   to   a


personal   hearing   at   the   appellate   stage   and   the   rules   of   natural


justice do not require that in all cases a right of audience should be


provided at the appellate stage.


18.             It is now fairly well settled that the requirements of natural


justice must depend on the circumstances of the case, the nature of


the   inquiry,   the   rules   under   which   the   tribunal   is   acting,   the   subject


matter   that   is   being   dealt   with   and   so   forth.     In   the   words   of


Ramaswami, J. (Union of India & Anr.  v. P.K. Roy & Ors.8) the extent


and application of the doctrine of natural justice cannot be imprisoned


within   the   straitjacket   of   a   rigid   formula.     The   application   of   the


doctrine   depends   upon   the   nature   of   jurisdiction   conferred   on   the


administrative   authority,   upon   the   character   of   the   rights   of   the


persons   affected,   the   scheme   and   policy   of   the   statute   and   other


relevant circumstances disclosed in the particular case.


19.             A   right   of   appeal   is   not   an   inherent   right.     None   of   the


facets of natural justice requires that there should be right of appeal


from any decision. The extent of power of an appellate forum and the


mode   and   manner   of   its   exercise   can   always   be   provided   in   the


8 AIR 1968 SC 850



                                                                                            15


provision   that   creates   such   right.     Insofar   as   provision   of   appeal   in


regulation 17 of the 1982 Regulations is concerned, it must be stated


that the said provision affords to an employee  right of appeal against


an   order   imposing   upon   him   any   of   the   penalties   specified   in


regulation   4   or   against   the   order   of   suspension   referred   to   in


regulation 12.   It provides for limitation within which the appeal  is to


be   preferred.     As   per   the   said   provision,   the   appeal   must   be


addressed to the   appellate authority and submitted to the authority


whose   order   is   appealed   against.     The   authority   whose   order   is


appealed  against is  required  to  forward the appeal  together  with its


comments and also the record of the case to the appellate authority.


The appellate authority then proceeds with the consideration   of the


appeal and considers   whether the findings are justified; whether the


penalty   is   excessive   or   inadequate   and   passes   appropriate   order


confirming,   enhancing,   reducing   or   setting   aside   the   penalty   or


remitting the case to the authority that imposed the penalty or to any


other   authority   with   such   direction   as   it   may   deem   fit   in   the


circumstances of the case.   The appeal provision in regulation 17 of


the 1982 Regulations does not expressly provide for personal hearing


to   the   appellant.     Is   the   right   of   personal   hearing   to   the   appellant




                                                                                        16


implicit in the provision?  We think not.  In our considered view,  in the


absence of personal  hearing to the appellant, it cannot be said  that


the   very   right   of   appeal   is   defeated.     One   situation   is,   however,


different.   Where   the   appellate   authority   proposes   to   enhance   the


penalty,   obviously, the   appellate authority must issue   notice to the


delinquent    asking  him  to  show cause    why    penalty   that  has  been


awarded   to   him   must   not   be   enhanced   and       give   him   personal


hearing.  It is so because the appellate authority seeks to inflict such


punishment   for   the   first   time   which   was   not   given   by   the


disciplinary/punishing authority.  Although there are no positive words


in   regulation   17,   requiring   that   the   appellant   shall   be   heard   before


enhancement of the penalty, the fairness and natural justice require


him to be heard.


20.            It is true that in Ganesh Santa Ram Sirur5,  this Court did


not   accept   the   contention   of   the   delinquent   relating   to   non-grant   of


personal   hearing   to   him   by   the   appellate   authority   before   the


enhancement of the punishment.   But it was so in the peculiar fact-


situation   of   the   case.     First,   this   Court   observed   that   Charge   5   of


granting   loan   to   the   spouse   under   SEEUY   Scheme   in   violation   of


Rule   34(3)   of   the   State   Bank   of   India   (Supervising   Staff)   Service




                                                                                       17


Rules was found by the appellate authority more serious and grave in


nature.       Secondly   and   more   importantly,   the   Court   noticed   that


delinquent in his appeal before the appellate authority admitted that


he had committed misconduct of disbursing the loan to his wife in a


Scheme which was  meant for educated unemployed youth.    To our


mind, thus, there is no inconsistency in the judgment of this Court in


Ganesh Santa Ram Sirur5              and our statement above that where the


appellate   authority   proposes   to   enhance   the   penalty,   the   appellate


authority must issue notice to the delinquent and give  him personal


hearing.


21.            However,   personal hearing may not be required   where


the appellate authority, on consideration of the entire material placed


before   it,     confirms,   reduces   or     sets   aside   the   order   appealed


against.   Regulation 17 of the 1982 Regulations does not require that


in all situations   personal hearing must be afforded to the delinquent


by   the   appellate   authority.   The   view   taken   by   the   Full   Bench   of


Punjab and Haryana High Court   in the case of  Ram Niwas Bansal2


is   too   expansive   and   wide   and   cannot   be   held   to   be   laying   down


correct   law   particularly   in   light   of     the   judgment   of   this   Court   in


Mahendra Kumar Singhal3 .  We answer this question accordingly.




                                                                                       18


Re : Question (two)





22.           The   High   Court   has   faulted   the   order   of   the   appellate


authority  also  on  the  ground  of it  being a  non-speaking order.     Is it


so?   We   have   carefully   perused   the   order   of   the   appellate   authority


and we find that the order dated June 4, 2004 cannot be labelled as a


non-speaking order.  The order does not suffer from the vice of non-


application of mind. The appellate authority has addressed the points


raised in the appeal and critical to the decision, albeit briefly. It is true


that the appellate authority must record reasons in support of its order


to indicate that it has applied its mind to the grounds raised but it is


not   the   requirement   of   law   that   an   order   of   affirmance   by   the


appellate   authority   must   be   elaborate   and   extensive.   Brief   reasons


which   indicate   due   application   of   mind   in   decision   making   process


may   suffice.   Each   ground   raised   in   the   appeal   has   been   dealt   with


briefly as would be apparent   from the following consideration of the


matter by the appellate authority:


        "The   contention   of   the   appellant   that   no   departmental

        action   can   be   taken   against   him   during   pendency   of

        criminal   proceedings   before   the   Court   is   not   tenable;     as

        departmental   enquiry   is   independent   of   criminal

        proceedings and as such there is no bar to pass the order





                                                                                       19


of   punishment   by   the   Disciplinary   Authority   during   the

pendency of criminal proceedings.


The appellant has alleged that Inquiring Authority has erred

in holding the imputation 2 & 3 under Article of Charge No.

1 as proved. On carefully perusing the evidence brought on

record   of   the   enquiry   and   other   related   record,   I  find   that

Disciplinary           Authority         has         fully         considered

evidence/submissions made by the appellant and based on

that the article of charge no. 1 is held partly proved against

the   appellant.   This   does   not,   however,   mean   that   the

Disciplinary   Authority   has   in   anyway   exonerated   the

appellant   of   this   charge.   Hence,   I   do   not   find   any

force/substance in the allegation of the appellant. I find that

on the basis of evidence adduced in the inquiry, article of

charge no. 1 has been rightly held as partly proved against

the appellant.


The   appellant   has   further   contended   that   PO   had   not

furnished   any   proof   of   his   having   recommended   the

proposal   to   the   Regional   Office.   I   have   perused   the

relevant   record   and   evidence   adduced   in   respect   of   the

charge. It is evident from Ex. MEX 10/6 (which is admitted

document in the enquiry) that the appellant had sent letter

dated   24-10-2000   based   on   which   Regional   Office

permitted the party to avail facility for unit at Sikandrabad

which was 300 kms away from Chandigarh and in this way,

it   was   not   possible   for   the   branch   to   monitor   the   unit   at

such   a   distant   place.   Although   the   appellant   has   not

disputed reference of letter dated 24-10-2000 in Ex. MEX

10/6, yet due to its non-production  by the PO, the IA has

held this charge as partly proved. On the basis of evidence

brought   on   record   of   enquiry   and   after   considering

submission   of   appellant,   I   find   that   Disciplinary   Authority

has rightly held article of charge no. 2 as partly proved and

contention  of the appellant  that this charge should be set

aside is devoid of any merit.


The   appellant   has   contended   that   he   had   recommended

the   proposal   keeping   in   view   the   General   Manager's

instructions.   The   appellant   had   neither   produced   any

document   nor   adduced   any   evidence   in   his   defence   to

substantiate this fact. However, during general examination


                                                                                    20


by the Inquiring Authority, he has admitted that he had no

exposure   of   processing   of   the   guarantees   and   proposal

was   analysed   at   Regional   Office   and   he   had   just

recommended   it.   This   clearly   shows   that   the   appellant

recommended   enhancement   of   bank   guarantee   limit   of

Rs. 175 lacs in the account of M/s. Dunroll Industries Ltd.

without   ensuring   satisfactory   conduct   of   the   account   and

without   going   into   details   of   transaction   and   implications

thereof.   After   carefully   analyzing   the   evidence   adduced

during   the   enquiry,   I   find   that   the   article   of   charge   no.   3

against the appellant is rightly held proved by Disciplinary

Authority.   I   therefore,   do   not   find   any   merit/force   in   the

allegations of the appellant.


The   Appellant   has   contended   that   common   seal   on   all

documents   had   been   affixed   and   all   the   documents   are

valid. On careful perusal of documents ME-23/1/2 and after

evaluating   evidence   of   PW-1   during   regular   hearing   held

on 20-9-2003, I observe that article of charge no. 4 against

the  appellant in respect of releasing credit  facilities in the

account   of   M/s.   Dunroll   Industries   Ltd.   without   complying

with   terms   of   sanction   is   rightly   held   proved   by   the

Disciplinary Authority. Hence I do not find any force/merit in

contention of the appellant that article of charge no. 4 has

been wrongly upheld by the Inquiring Authority.


The   appellant   has   also   referred   to   some   pending   enquiry

proceedings against him in respect of charge sheet dated

12-8-2003   in   the   matter   of   Bankarpur   Cold   Storage   and

has contended that it is against principles of natural justice

to take into account past service record without valid legal

grounds. After perusing relevant enquiry record, I find that

Disciplinary   Authority   in   his   order   has   referred   to   certain

lapses/irregularities   attributable   to   the   appellant   for   the

misconduct   committed   by   him   while   posted   as   Sr.

Manager/Incumbent   In-charge,   B/O   19-D,   Chandigarh.

Having   regard   to   imposition/inflictment   of   penalty   of

dismissal   on   the   appellant   w.e.f.   14-2-2004   by   the

Disciplinary   Authority   under   Regulation   4(j)   of   Oriental

Bank   of   Commerce   Officer   Employees   (Discipline   &

Appeal) Regulations, 1982 it was  not open to the bank to

pursue pending charge sheet dated 12-8-2003 against the

appellant   as   referred   to   in   the   appeal.   Disciplinary


                                                                                      21


        Authority,   therefore,   has   rightly   stated   in   his   order   dated

        14-2-2004   that   "no   action   is   required   to   be   taken   at   this

        stage" in relation to this charge sheet. Hence, I do not find

        any   force/merit   in   the   allegations   of   the   appellant   that

        Disciplinary Authority has taken into account the matter of

        pending   inquiries   in   respect   of   charge   sheet   dated   12-8-

        2003. As such, there is no violation of principles of natural

        justice as alleged."  
         


Having   discussed   the   matter   as   above,   the   appellate   authority   held


that   on   consideration   of   the   inquiry   record   and   facts   and


circumstances of the case,  the findings and the order dated February


14,   2004   passed   by   disciplinary   authority   are   based   on   evidence


brought on record of inquiry and not founded on past record or any


other matter not connected with inquiry as alleged by the delinquent


in   the   appeal.   Consequently,   the   appellate   authority   concurred   with


the   view   of   the   disciplinary   authority   and   found   no   justification   to


interfere with the penalty awarded by the disciplinary authority.


23.           The   order   of   the   appellate   authority,   by   no   stretch   of


imagination can be said to suffer from vice of lack of reasons.     We


answer question no. (two) in the negative.


24.           In our view, the High Court was clearly in error in setting


aside   and   quashing   the   order   dated   June   4,   2004   passed   by   the


appellate authority and in directing the appellate authority to pass a





                                                                                          22


reasoned order after giving an opportunity of hearing to the petitioner


(respondent herein).


25.           The appeal is, accordingly, allowed and the judgment and


order   dated   January   23,   2006   passed   by   the   High   Court   of   Punjab


and Haryana is set aside. The parties shall bear their own costs.





                                                            .........................J.

                                                                (Aftab Alam)




                                                            ........................ J.

                                                                 (R.M. Lodha)




NEW DELHI.

AUGUST 11, 2011.





                                                                                  23

the Wage Board Award recommending revised scales of pay was not clear if the advance increments were to continue and the Anomaly Committee after considering the matter had recommended that the benefit of advance increments should be given to employees who graduated or passed the Accounts Examinations on or before 30.06.1971 and that those who have passed the concerned examinations after this date shall not be eligible for this benefit. In the proceedings of the meeting of the OSEB held on 12.05.1973 it was also made clear that the OSEB accepted the recommendations of the Anomaly Committee not to allow advance increments in the case of employees who had obtained the degree or passed the Accounts Examinations subsequent to 30.06.1971. If respondent Nos. 1 to 5 desired to challenge this

                                                               Reportable


              IN THE SUPREME COURT OF INDIA



                CIVIL APPELLATE JURISDICTION


               CIVIL APPEAL NO. 6904 OF 2011

          (Arising out of S.L.P. (C) NO.12901 OF 2008)

                                     

Orissa Power Transmission Corporation Ltd.       ... Appellant



                                 Versus



 Khageswar Sundaray & Ors.                                         ... Respondents





                                 O R D E R


A. K. PATNAIK, J.




      Leave granted.



2.    This   is   an   appeal   against   the   order   dated   18.12.2007



      of the Division Bench of the Orissa High Court in OJC



      No.5768 of 1994.



3.      The   facts   very   briefly   are   that   the   Orissa   State


      Electricity   Board   (for   short   `the   OSEB')   decided   in   its



      meeting held on 02.05.1970 that Lower Division Clerks



      (for short `the LDCs') in the Circles, Divisions and Sub-



      Divisions   of   the   OSEB   shall   be   granted   two   advance



      increments   in   the   time-scale   of   pay   attached   to   the


                            2




post   on   their   becoming   graduates   while   in   service.



Accordingly,   an   office   order   was   passed   by   the



Secretary of the OSEB on 17.06.1970 and LDCs of the



OSEB   would   be   granted   two   advance   increments   on



their   becoming   graduates   while   in   service.     On



03.10.1970,   a   Tripartite   Settlement   was   entered   into



by   the   OSEB   with   the   Employees   Unions   regarding



revision of wages of the employees of the OSEB and on



30.06.1971 an office order was issued by the Secretary



of the OSEB giving the details of the revised scales of



pay,   dearness   allowance   and   house   rent   allowance



admissible   to   the   employees   of   the   OSEB   as   on



01.04.1969.   Thereafter   in   terms   of   settlement   dated



03.10.1970,   the   OSEB   constituted   an   Anomaly



Committee   which   was   to   examine  inter   alia  the   issue



with   regard   to   advance   increments   in   the   revised



scales   of   pay   for   employees   who   became   graduates



while   in   service.         The   Anomaly   Committee



recommended  inter   alia  that   two   advance   increments



which   were   given   to   LDCs   working   in   the   different



Circles,   Divisions   and   Sub-Divisions   of   the   OSEB   in


                                 3




the  Pre-revised   scale   of  Rs.80-135   may   be   given   such



advance   increments   in   the   revised   scale   of   pay   when



the   employees   become   graduates   or   pass   Accounts



Examinations   on   or   before   30.06.1971   and   such



advance   increments   may   not   be   given   to   those



employees   who   become   graduates   or   pass   Accounts



Examinations   subsequent   to   30.06.1971.                           The



recommendations   of   the   Anomaly   Committee   were



considered   by   the   OSEB   in   its   meeting   held   on



12.05.1973          and         the         OSEB         accepted         the



recommendations   of   the   Anomaly   Committee   saying



that the employees, who graduated or passed Accounts



Examinations   on   or   before   30.06.1971,   would   be



eligible for such two advance increments.  The decision



of   the   OSEB   was   followed   by   a   Circular   dated



16.07.1973   clearly   saying   that   the   benefit   of   advance



increments shall be allowed in the revised pay-scale to



the employees who have graduated or have passed the



Accounts Examinations on or before 30.06.1971.   The



respondent   Nos.1   to   5,   who   have   been   working   as



LDCs   under   the   OSEB,   passed   the   graduate


                                     4




      examinations   in   the   years   1974,   1975   and   1976   and



      were   not   granted   two   advance   increments   by   the



      OSEB.



4.    Aggrieved,   the   respondent   Nos.1   to   5   filed   a   writ



      petition   before   the   Orissa   High   Court   being   OJC



      No.1428 of 1979 and the writ petition was disposed of



      by   the   High   Court   with   a   direction   to   the   OSEB   to



      dispose of the representations of the respondent Nos. 1



      to 5.   Pursuant to the direction of the High Court, the



      OSEB   rejected   the   representations.                Thereafter,



      respondent Nos.1 to 5 filed another writ petition being



      OJC   No.2237   of   1981   claiming   two   advance



      increments.     The   OSEB   in   its   counter-affidavit   filed



      before   the   High   Court   stated   that   the   earlier



      notification   of   1970   under   which   two   advance



      increments were given to employees of the OSEB who



      graduated   while   in   service   had   been   withdrawn.     The



      High   Court   in   its   order   dated   12.04.1989   held   that



      since the basis of the relief claimed by respondent Nos.



      1   to   5   was   the   notification   of   1970   which   had   been



      withdrawn,   the   High   Court   cannot   grant   any   relief   to


                                    5




      the respondent Nos. 1 to 5 but reserved liberty to the



      said   respondents   to   challenge   the   legality   of   the



      decision   of   the   OSEB   taken   in   its   meeting   held   on



      12.05.1973   confining   the   benefit   of   advance



      increments   to   those   employees   who   had   become



      graduates   or   passed   Accounts   Examinations   on   or



      before 30.06.1971.   The respondent Nos. 1 to 5 filed a



      fresh writ petition being OJC No.5768 of 1994 praying



      for quashing the decision of the OSEB in 1973 and the



      office   order   dated   16.07.1973   confining   the   benefit   of



      advance increments in the revised scales of pay to the



      employees who graduated or had passed the Accounts



      Examinations on or before 30.06.1971.



5.    The   High   Court   allowed   the   writ   petition   being   OJC



      No.5768   of   1994   by   the   impugned   order   dated



      18.12.2007.     In   the   impugned   order,   the   High   Court



      observed   that   respondent   Nos.   1   to   5   will   get   the



      benefit of only Rs.6/- in their monthly pay.   The High



      Court   held   that   other   employees   similarly   placed   like



      the   respondent   Nos.1   to   5  had   been  given   the   benefit



      and   there   should   not   have   been   any   discrimination


                                6




and they should not have been denied the same benefit



of two advance increments.   The High Court also held



that  the proceedings of the  meeting of  the OSEB held



on   12.05.1973   in   which   the   decision   to   grant   two



advance   increments   to   the   employees   who   had



graduated   or   had   passed   the   Accounts   Examinations



on   or   before   30.06.1971   did   not   disclose   any   reason,



far less any justifiable reason, to confine the benefit of



the   two   advance   increments   only   to   the   employees



fulfilling   the   criteria   by   a   cut-off   date   and   hence   the



decision   of   the   OSEB   was   arbitrary.     The   High   Court



accordingly   quashed   the   decision   of   the   OSEB   taken



on   12.05.1973   so   far   as   respondent   Nos.   1   to   5  were



concerned   and   directed   that   two   advance   increments



be   notionally   given   to   respondent   Nos.   1  to   5  in   their



Pre-revised scale of pay with effect from the respective



dates   they   acquired   the   degree   qualifications   in   the



year 1974-1976 and on that basis fix their current pay



and   pay   their   current   salary   accordingly.     The   High



Court, however, observed that the impugned order will


                                      7




      be   confined   to   only   respondent   Nos.   1   to   5   and   shall



      not be a precedent for others.



6.    We have heard learned counsel for the parties and we



      find   that   in   the   proceedings   of   the   meeting   of   the



      OSEB   held   on   12.05.1973,   it   is   stated   that   the   Wage



      Board Award recommending revised scales of pay was



      not   clear   if   the   advance   increments   were   to   continue



      and   the   Anomaly   Committee   after   considering   the



      matter   had   recommended   that   the   benefit   of   advance



      increments   should   be   given   to   employees   who



      graduated or passed the Accounts Examinations on or



      before 30.06.1971 and that those who have passed the



      concerned   examinations   after   this   date   shall   not   be



      eligible   for   this   benefit.     In   the   proceedings   of   the



      meeting   of   the   OSEB   held   on   12.05.1973   it   was   also



      made   clear   that   the   OSEB   accepted   the



      recommendations   of   the   Anomaly   Committee   not   to



      allow   advance   increments   in   the   case   of   employees



      who   had   obtained   the   degree   or   passed   the   Accounts



      Examinations   subsequent   to   30.06.1971.                          If



      respondent   Nos.   1   to   5   desired   to   challenge   this


                                     8




      decision of the OSEB as arbitrary and discriminatory,



      they should have placed sufficient materials before the



      court   to   demonstrate   that   the   cut-off   date   of



      30.06.1971   adopted   by   the   OSEB   was   arbitrary   and



      discriminatory and that the decision of the OSEB was



      violative   of   Article   14   of   the   Constitution.     In   the



      impugned   order,   the   High   Court   has   not   referred   to



      any   such   materials   and   has   instead   held   that   the



      proceedings   of   the   meeting   of   the   OSEB   did   not



      disclose any  reason, far less  any justifiable reason,  to



      confine   the   benefit   of   two   advance   increments   to



      employees   who   graduated   or   passed   the   Accounts



      Examinations on or before 30.06.1971.



7.    We   are   of   the   considered   opinion   that   the   view   taken


      by   the   High   Court   that   in   the   absence   of   any   reason



      given by the decision of the OSEB in its meeting held



      on 12.05.1973 to fix the cut-off date of 30.06.1971 for



      becoming   a   graduate   or   passing   the   Accounts



      Examinations for an employee to be entitled to the two



      advance   increments,   its   decision   was   arbitrary   and



      discriminatory is not sustainable in law.  The OSEB as


                                     9




      the   employer   was   fully   with   its   powers   to   decide   the



      cut-off date for the employee to become a graduate or



      passing   the   Accounts   Examinations   to   be   eligible   to



      the   two   advance   increments   in   the   revised   scales   of



      pay and the decision of the OSEB could not be held to



      be  arbitrary  only  because  the   reason  for  decision   was



      not   stated   in   the   proceedings   of   the   meeting   of   the



      OSEB in which the decision was taken.   This Court in



      State   of   Bihar   and   Others  vs.  Ramjee   Prasad   and



      Others [(1990) 3 SCC 368] held:



      "the choice of date cannot be dubbed as arbitrary

      even if no particular reason is forthcoming for the

      same   unless   it   is   shown   to   be   capricious   or

      whimsical or wide off the reasonable mark".




8.    In   a   recent   case   in  National   Council   for   Teacher



Education   and   Others  vs.  Shri  Shyam   Shiksha   Prashikshan



Sansthan   and   Others  [(2011)   3   SCC   238]   this   Court   after



referring   to   various   earlier   authorities   on   the   point   in



Sushma   Sharma   (Dr.)  vs.  State   of   Rajasthan  [1985   supp.



SCC 45], UGC vs. Sadhana Chaudhary [(1996) 10 SCC 536],



Ramrao  vs.  All   India   Backward   Class   Bank   Employees



Welfare   Association  [(2004)   2   SCC   76]   and  State   of   Punjab


                                         1




vs.  Amar Nath  Goyal  [(2005) 6 SCC 754] has reiterated this



position   of   law   and   has   held   the   cut-off   dates   specified   in



clauses   (4)   and   (5)   of   Regulation   5   of   the   National   Council



for   Teacher   Education   (Recognition   Norms   and   Procedure)



Regulations, 2007 to be valid.



9. We,   therefore,   allow   this   appeal   and   set   aside   the



   impugned order of the Division Bench of the High Court



   and   dismiss   the   writ   petition   of   respondent   Nos.   1  to   5.



   There shall be no order as to costs.





                                                      .............................J.

                                                            (R. V. Raveendran)




                                                      .............................J.

                                                            (A. K. Patnaik)

New Delhi,

August 11, 2011.

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 15 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. In Sushmita Basu & Ors. v. Ballygunge Siksha Samity & Ors. [(2006) 7 SCC 680], the teachers of a recognized private school known as Ballygunge Siksha Sadan in Calcutta filed a Writ Petition in the High Court of Calcutta praying for issuance of writ of mandamus directing the authorities of the school to fix the salary of teaching and non-teaching staff of the school and to remove all anomalies in the scales of pay as recommended by the Third Pay Commission as extended to other Government aided schools and Government schools and this Court held that in the absence of statutory provision no such direction can be issued by the High Court under Article 226 of the Constitution. Where a statutory provision casts a duty on a private unaided school to pay the same salary and allowances to its teachers as are being paid teachers of Government aided schools, then a writ of mandamus to the school could be issued to enforce such statutory 16 duty. But in the present case, there was no statutory provision requiring a private unaided school to pay to its teachers the same salary and allowances as were payable to teachers of Government schools and therefore a mandamus could not be issued to pay to the teachers of private recognized unaided schools the same salary and allowances as were payable to Government institutions.

                                                          Reportable


              IN THE SUPREME COURT OF INDIA



               CIVIL APPELLATE JURISDICTION


              CIVIL APPEAL NO. 2676 OF 2010


Mrs. Satimbla Sharma and Ors.                          ...     Appellants



                                 Versus



St. Paul's Senior Secondary School and Ors.    ... Respondents





                         J U D G M E N T


A. K. PATNAIK, J.


      This   is   an   appeal   against   the   judgment   dated



25.07.2008   of   the   Division   Bench   of   the   High   Court   of



Himachal   Pradesh,   Shimla,   in   Letters   Patent   Appeal   No.48



of 2004.



2.    The facts very briefly are that in 1923 the respondent


      No.1-School   (for   short   `the   School')   was   initially



      established   as   a   mission   school   by   the   respondent



      No.2.     The   School   adopted   the   10+2   system   in   1993



      and   is   presently   affiliated   to   the   Himachal   Pradesh



      Board   of   School   Education.     Before   independence   in



      1947   the   School   was   receiving   grant-in-aid   from   the


                                     2




      British   Indian   Government   and   thereafter   from   the



      Government of India upto 1950.   From 1951 to 1966,



      the   School   received   grant-in-aid   from   the   State



      Government   of   Punjab.     After   the   State   of   Himachal



      Pradesh   was   formed,   the   School   received   grant-in-aid



      from the Government of Himachal Pradesh during the



      years   1967   to   1976.     From   the   year   1977-1978,   the



      School   has   not   been   receiving   any   grant-in-aid   from



      the Government of Himachal Pradesh and the teachers



      of the School are being paid less than the teachers of



      Government schools and Government aided schools in



      the State of Himachal Pradesh.



3.    Not satisfied with their salary and allowances, some of


      the   teachers   of   the   School   filed   a   Writ   Petition,   CWP



      No.1038   of   1996,   in   the   High   Court   of   Himachal



      Pradesh   for   a   direction   to   pay   the   salary   and



      allowances   at   par   with   the   teachers   of   Government



      schools   and   Government-aided   schools   and   by



      judgment   dated   11.10.2004   the   learned   Single   Judge



      of   the   High   Court   of   Himachal   Pradesh   allowed   the



      Writ Petition and directed the respondent nos.1 and 2


                                   3




      to pay to the writ petitioners salary and allowances at



      par   with   their   counter-parts   working   in   the



      Government schools from the dates they were entitled



      to   and   at   the   rates   admissible   from   time   to   time.



      Aggrieved by the judgment of the learned Single Judge,



      the respondent nos.1 and 2 filed Letters Patent Appeal



      No.48 of 2004 (for  short `the LPA')  before  the  Division



      Bench   of   the   High   Court   and   by   the   impugned



      judgment dated 25.07.2008, the Division Bench of the



      High   Court   set   aside   the   judgment   of   the   learned



      Single   Judge   and   dismissed   the   Writ   Petition   of   the



      appellants.



4.    Learned   counsel   appearing   for   the   appellants


      submitted that the appellants do the same work as the



      teachers of Government schools and Government aided



      schools and yet are being paid lower than the teachers



      of Government schools and Government aided schools.



      He further submitted that the Himachal Pradesh State



      Government   Recognized   Aided   Schools   Teachers'



      Association and others had filed Writ Petitions, C.W.P.



      No.413   of   1989   and   414   of   1989,   in   the   Himachal


                               4




Pradesh High Court for appropriate writs/directions to



the   State   Government   to   pay   95%   of   the   grant-in-aid



towards   approved   expenditure   in   a   school   year   to   the



privately   managed   recognized   schools   borne   on   the



grant-in-aid   list   with   a   view   to   enable   the



managements of such schools to pay the teachers and



allied   staff   of   the   schools,   the   same   pay   scales   and



allowances   as  are   paid   to   their   counter-parts   working



in   the   Government   schools   in   the   State   of   Himachal



Pradesh   and   by   order   dated   09.09.1992,   a   Division



Bench of Himachal Pradesh held that teachers of such



private   recognized   aided   schools   are   entitled   to   same



emoluments   as   received   by   their   counter-parts   in   the



State   Government   and   allowed   the   writ   petitions   and



directed the State Government and the management of



the   private   recognized   aided   schools   to   work   out   the



emoluments   of   the   teachers   and   pay   the   same   to



teachers   of   the   private   recognized   aided   schools.   He



further   submitted   that   against   the   order   dated



09.09.1992 of the Division Bench of Himachal Pradesh



High Court, the State of Himachal Pradesh came up in


                                      5




      appeal   to   this   Court   in   Civil   Appeal   Nos.   1233   and



      1234   of   1993   but   this   Court   dismissed   these   two



      appeals   on   10.05.1995.     He   vehemently   argued   that



      only with a view to wriggle out from the liability to pay



      salary   and   allowances   to   its  teachers   and   staff   at  par



      with the salary and allowances of Government schools,



      the   School   has   unilaterally   decided   to   stay   out   of   the



      grant-in-aid   scheme   since   1977-1978.     He   submitted



      that   the   learned   Single   Judge   rightly   held   in   his



      judgment dated 11.10.2004 in C.W.P. No.1038 of 1996



      filed   by   the   petitioners   that   the   School,   which   had



      been receiving grant-in-aid till 1977-1978, could not of



      its own volition stop to receive grant-in-aid and rightly



      directed the School to pay to the appellants salary and



      allowances   at   par   with   their   counter-parts   working   in



      the Government schools.



5.    Learned counsel for the appellants submitted that the


      Division   Bench   of   the   High   Court   has   set-aside   the



      judgment   of   the   learned   Single   Judge   after   taking   an



      erroneous   view   in   the   impugned   judgment   that   the



      School   was   under   no   obligation   to   have   accepted   the


                             6




grant-in-aid which would have led to diminution of its



rights   guaranteed   under   Article   30(1)   of   the



Constitution.     He   further   submitted   that   the   Division



Bench   of   the   Himachal   Pradesh   High   Court   has   also



sustained   the   contention   of   the   School   that   the



teachers  of  private  recognized   schools  had  no  right  to



claim   salary   equal   to   that   of   their   counter-parts



working in Government schools and Government aided



schools.  He submitted that Rule 45-Q of the Grant-in-



Aid   Rules   of   the   State   of   Himachal   Pradesh   provides



that   management   shall   introduce   such   scales   of   pay



and   allowances   for   teachers   and   other   staff   members



as   prescribed   by   the   Government   for   corresponding



staff in Government schools.   He submitted that if the



teachers   of   Government   aided   schools   are   entitled   to



same   salary   and   allowances   as   the   teachers   of   the



Government schools, there is no reason as to why only



the   teachers   of   private   unaided   schools   should   be



denied   the   salary   and   allowances   of   Government



schools.   He submitted that if the pay and allowances



of   the   teachers   of   private   minority   schools   such   as


                                      7




      respondent no.1 are not made the same as that of the



      pay and allowances of the teachers of the Government



      schools and Government aided schools, the teachers of



      private minority schools will suffer discrimination and



      their right to equal pay for equal work under Article 14



      read   with   Article   39(d)   of   the   Constitution   will   be



      violated.     He   relied   on   the   decision   of   this   Court   in



      Frank Anthony Public School Employees' Association  v.



      Union   of   India   &   Ors.   [(1986)   4   SCC   707]   wherein



      Section   12   of   the   Delhi   School   Education   Act   which



      made the provisions of Section 10 providing for parity



      of scales of pay and allowances of the employees of the



      recognized private schools with that of the schools run



      by   the   appropriate   authority   inapplicable   to   unaided



      minority institutions as discriminatory.



6.    Learned   counsel   for   the   appellants   submitted   that   in



      State of H.P. vs.  H.P. State Recognised & Aided Schools



      Managing   Committees   and   Others  [(1995)   4   SCC   507]



      this   Court   relying   on  Mohini   Jain  case   [(1992)   3   SCC



      666] held that the right to education is a fundamental



      right guaranteed under Part-III read with Part-IV of the


                                    8




      Constitution   of   India.     He   submitted   that   since   the



      right   to   education   is   a   fundamental   right,   school



      education has a public element in it and the Court can



      always issue a mandamus to enforce a public duty in



      matters   of   education.     He   submitted   that   in  K.



      Krishnamacharyulu   and   Others  vs.  Sri   Venkateswara



      Hindu   College   of   Engineering   and   Another  [(1997)   3



      SCC 571] employees of a non-aided private educational



      institution   claimed   parity   in   pay-scales   with   the



      employees   of   Government   institutions   and   this   Court



      held that the  employees  had an enforceable  right and



      there was an element of public interest in such a claim



      and   the   teachers   of   a   private   unaided   institution   is



      entitled to avail the remedy provided under Article 226



      of   the   Constitution   and   they   cannot   be   denied   the



      same   benefits   which   were   available   to   other   teachers



      working in Government institutions.  



7.    Learned counsel for the appellants submitted that the


      School is provisionally affiliated to the Council for the



      Indian   School   Certificate   Examinations   and   the



      conditions   of   provisional   affiliation   of   schools


                              9




prescribed   by   the   Council   for   the   Indian   School



Certificate Examinations stipulate in clause (5)(b) that



the   salary   and   allowances   and   other   benefits   of   the



staff   of   the   school   must   be   comparable   to   that



prescribed by the State Department of Education.   He



referred   to   the   report   of   the   Education   Commission



1954-66   to   the   Ministry   of   Education,   Government   of



India,   recommending   that   the   scales   of   pay   of   school



teachers   belonging   to   the   same   category   but   working



under   different   managements   such   as   government,



local   bodies   or   private   managements   should   be   the



same   and   this   principle   of   parity   should   be   adopted



forthwith.  He submitted that sub-section (3) of Section



23   of   the   Right   of   Children   to   Free   and   Compulsory



Education Act, 2009 (for short `the 2009 Act') provides



that   the   salary   and   allowances   payable   to,   and   the



terms   and   conditions   of   service   of,   teachers   shall   be



such   as   may   be   prescribed.     He   referred   to   Section



38(2)(l)   of   the   2009   Act   which   provides   that   the


appropriate   Government   may,   by   notification,



prescribe   the   salary   and   allowances   payable   to,   and


                                    10




      the   terms   and   conditions   of   service   of,   teacher   under



      sub-section   (3)   of   section   23.     He   submitted   that   the



      appropriate   Government   as   defined   in   Section   2(a)   of



      the   2009   Act,   namely,   the   State   Government,



      therefore,   can   issue   a   notification   prescribing   the



      salary   and   allowances   payable   to,   and   the   terms   and



      conditions of service of, teacher, under sub-section (3)



      of section 23 of the 2009 Act.



8.    Learned   counsel   for   the   respondent   nos.1   and   2,   on


      the   other   hand,   supported   the   impugned   judgment   of



      the   Division   Bench   of   the   High   Court.     He   further



      submitted   that   if   the   School   is   made   to   pay   to   its



      teachers the same salary and allowances of teachers of



      Government schools and Government aided schools, it



      will   have   to   increase   the   school   fees   and   this   would



      affect the students whose parents cannot afford higher



      school fees.



9.    In our considered opinion, the Division Bench the High


      Court has rightly held in the impugned judgment that



      the   teachers   of   private   unaided   minority   schools   had



      no right to claim salary equal to that of their counter-


                               11




parts working in Government schools and Government



aided   schools.       The   teachers   of   Government   schools



are paid out of the Government funds and the teachers



of Government aided schools are paid mostly out of the



Government   funds,   whereas   the   teachers   of   private



unaided minority schools are paid out of the fees and



other   resources   of   the   private   schools.     Moreover,



unaided   private   minority   schools   over   which   the



Government   has   no   administrative   control   because   of



their autonomy under Article 30(1) of the Constitution



are   not   State   within   the   meaning   of   Article   12   of   the



Constitution.  As the right to equality under Article 14



of   the   Constitution   is   available   against   the   State,   it



cannot   be   claimed   against   unaided   private   minority



schools.     Similarly,   such   unaided   private   schools   are



not   State   within   the   meaning   of   Article   36   read   with



Article 12 of the Constitution and as the obligation to



ensure equal pay for equal work in Article 39(d) is on



the   State,   a   private   unaided   minority   school   is   not



under any duty to ensure equal pay for equal work.


                                      12




10.           In     Frank   Anthony   Public   School   Employees'



       Association  v.  Union   of   India   &   Ors.   (supra),   relied   on



       by learned counsel for the appellants, the scales of pay



       and   other   terms   and   conditions   of   service   of  teachers



       and   other   employees   of   the   Frank   Anthony   Public



       School,   New   Delhi,   which   was   a   private   unaided



       minority institution, compared very unfavourably with



       those of their counterparts of the Delhi Administration



       Schools   and   the   Frank   Anthony   Public   School



       Employees'   Association   sought   equalization   of   their



       pay-scales   and   conditions   of   service   with   those   of



       teachers   and   employees   of   Government   schools.



       Sections   8   to   11   of   the   Delhi   School   Education   Act



       dealt   with   the   terms   and   conditions   of   service   of



       employees of recognized private schools.  Section 10 of



       the   Delhi   School   Education   Act   provided   that   the



       scales   of   pay   and   allowances,   medical   facilities,



       pension, gratuity, provident fund and other prescribed



       benefits   of   the   employees   of   the   recognized   private



       schools   shall   not   be   less   than   those   of   the



       corresponding status in schools run by the appropriate


                              13




authority.   Section   12   of   the   Delhi   School   Education



Act, however,  provided  that the provisions  of Sections



8   to   11   including   Section   10   were   not   applicable   to



unaided minority institutions.   The case of teachers of



Frank Anthony Public School was that if Sections 8 to



11 were made applicable to them,  they would at least



be   as   well   off   as   teachers   and   other   employees   of



Government   schools.     The   Frank   Anthony   Public



School   Employees'   Association   therefore   challenged



Section   12   of   the   Delhi   School   Education   Act   as



discriminatory   and   violative   of   Article   14   of   the



Constitution and this Court held that Section 12 of the



Delhi   School   Education   Act   insofar   as   it   makes   the



provisions of Sections 8 to 11 inapplicable to unaided



minority schools is discriminatory.       This was thus a



case   in   which   the   employees   of   unaided   minority



institutions   were   not   given   the   benefits   available   to



employees of other private institutions under Sections



8, 9, 10 and 11 of the Delhi School Education Act only



on the ground that unaided minority institutions enjoy



autonomy   of  administration  under  Article  30(1)  of the


                                      14




       Constitution and this Court held that this could not be



       a rational basis for differentiation of service conditions,



       pay   and   other   service   benefits   between   employees   of



       unaided   minority   institutions   and   the   employees   of



       other   private   schools   and   the   Court   declared   Section



       12   as   discriminatory.     In   other   words,   the   State   by



       making a statutory provision in Section 12 of the Delhi



       School   Education   Act   which   was   discriminatory,   had



       violated   the   mandate   to   the   State   under   Article   14   of



       the Constitution not to deny the equal protection of the



       laws within its territories. This decision in the case of



       Frank Anthony Public School Employees' Association  v.



       Union   of   India   &   Ors.   (supra)   does   not   assist   the



       appellants   in   any   manner   because   the   guarantee   of



       equality,   as   we   have   said,   is   not   available   against   an



       unaided private minority school.



11.        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


                               15




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.



In  Sushmita Basu & Ors. v.  Ballygunge Siksha Samity



& Ors. [(2006) 7 SCC 680], the teachers of a recognized



private   school   known   as   Ballygunge   Siksha   Sadan   in



Calcutta   filed   a   Writ   Petition   in   the   High   Court   of



Calcutta   praying   for   issuance   of   writ   of   mandamus



directing the authorities of the school to fix the salary



of teaching and non-teaching staff of the school and to



remove   all   anomalies   in   the   scales   of   pay   as



recommended   by   the   Third   Pay   Commission   as



extended   to   other   Government   aided   schools   and



Government   schools   and   this   Court   held   that   in   the



absence   of   statutory   provision   no   such   direction   can



be   issued   by   the   High   Court   under   Article   226   of  the



Constitution.  Where a statutory provision casts a duty



on a private unaided school to pay the same salary and



allowances to its teachers as are being paid teachers of



Government   aided   schools,   then   a   writ   of   mandamus



to the school could be issued to enforce such statutory


                                     16




       duty.   But in the present case, there was no statutory



       provision requiring a private unaided  school to pay to



       its   teachers   the   same   salary   and   allowances   as   were



       payable   to   teachers   of   Government   schools   and



       therefore   a   mandamus   could   not   be   issued   to   pay   to



       the teachers of private recognized unaided schools the



       same   salary   and   allowances   as   were   payable   to



       Government institutions.



12.             In  K.   Krishnamacharyulu   and   Others  vs.  Sri



       Venkateswara   Hindu   College   of   Engineering   and



       Another (supra), relied upon by the learned counsel for



       the   appellants,   executive   instructions   were   issued   by



       the   Government   that   the   scales   of   pay   of   Laboratory



       Assistants   as   non-teaching   staff   of   private   colleges



       shall   be   at   par   with   the   government   employees   and



       this   Court   held   that   even   though   there   were   no



       statutory   rules,   the   Laboratory   Assistants   as   non-



       teaching   staff   of   private   college   were   entitled   to   the



       parity   of   the   pay-scales   as   per   the   executive



       instructions   of   the   Government   and   the   writ



       jurisdiction of the High Court under Article 226 of the


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       Constitution   is   wide   enough   to   issue   a   writ   for



       payment of pay on par with government employees.  In



       the   present   case,   there   are   no   executive   instructions



       issued by the Government requiring private schools to



       pay   the   same   salary   and   allowances   to   their   teachers



       as are being paid to teachers of Government schools or



       Government aided schools.



13.          We   cannot   also   issue   a   mandamus   to   respondent


       nos.1   and   2   on   the   ground   that   the   conditions   of



       provisional   affiliation   of   schools   prescribed   by   the



       Council for the Indian School Certificate Examinations



       stipulate in clause (5)(b) that the salary and allowances



       and   other   benefits   of   the   staff   of   the   affiliated   school



       must   be   comparable   to   that   prescribed   by   the   State



       Department of Education because such conditions for



       provisional   affiliation   are   not   statutory   provisions   or



       executive   instructions,   which   are   enforceable   in   law.



       Similarly,   we   cannot   issue   a   mandamus   to   give   effect



       to   the   recommendations   of   the   report   of   Education



       Commission   1964-66   that   the   scales   of   pay   of   school



       teachers   belonging   to   the   same   category   but   working


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       under   different   managements   such   as   government,



       local   bodies   or   private   managements   should   be   the



       same, unless the recommendations are incorporated in



       an executive instruction or a statutory provision.   We,



       therefore,   affirm   the   impugned   judgment   of   the



       Division Bench of the High Court.



14.         We, however, find that the 2009 Act has provisions


       in   Section   23   regarding   the   qualifications   for



       appointment   and   terms   and   conditions   of   service   of



       teachers and sub-section (3) of Section 23 of the 2009



       Act provides that the salary and allowances payable to,



       and   the   terms   and   conditions   of   service   of,   teachers



       shall be such as may be prescribed.  Section 38 of the



       2009   Act   empowers   the   appropriate   Government   to



       make   rules   and   Section   38(2)(l)   of   the   2009   Act


       provides   that   the   appropriate   Government,   in



       particular, may make rules prescribing the salary and



       allowances payable to, and the terms and conditions of



       service of teachers, under sub-section (3) of section 23.



       Section   2(a)   defines   "appropriate   Government"   as   the



       State Government within whose territory the school is


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       established.           The   State   of   Himachal   Pradesh,



       respondent  no.3 in  this  appeal,  is  thus empowered  to



       make   rules   under   sub-section   (3)   of   Section   23   read



       with   Section   38(2)(l)   of   the   2009   Act   prescribing   the


       salary   and   allowances   payable   to,   and   the   terms   and



       conditions   of   service   of,   teachers.   Article   39(d)   of   the



       Constitution   provides   that   the   State   shall,   in



       particular,   directs   its   policy   towards   securing   that



       there   is   equal   pay   for   equal   work   for   both   men   and



       women.   Respondent   no.3   should   therefore   consider



       making   rules   under   Section   23   read   with   Section



       38(2)(l)   of   the   2009   Act   prescribing   the   salary   and


       allowances of teachers keeping in mind Article 39(d) of



       the Constitution as early as possible.



15.          With   these   observations,   the   appeal   is   disposed   of.


       There shall be no order as to costs.





                                                      .............................J.

                                                           (R. V. Raveendran)




                                                      .............................J.

                                                           (A. K. Patnaik)

New Delhi,

August 11, 2011.  


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