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
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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
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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
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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
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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
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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
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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
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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-
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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.
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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
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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
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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
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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
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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
17
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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