Case Law Details
Bharat Mata Saraswati Bal Mandir Senior Secondary School Vs Vinita Singh And Ors. (Delhi High Court)
The Delhi High Court considered an appeal against the judgment dated 14.12.2021 whereby a learned Single Judge allowed a writ petition filed by three teachers seeking implementation of the 7th Central Pay Commission (7th CPC) recommendations.
The respondents had been working on a regular basis in the appellant school. Pursuant to the recommendations of the 7th CPC, the Directorate of Education (DOE) issued a notification dated 17.10.2017 directing all private recognised schools to implement the revised pay structure. As the appellant school did not extend the benefit of the 7th CPC to the respondents, they filed a writ petition before the High Court. The learned Single Judge directed the school to grant the benefits and salaries in terms of the 7th CPC and further held that the respondents were entitled to arrears with effect from 01.01.2016. The school challenged that judgment in the present appeal.
The appellant school contended that it was an unaided private school and was therefore not amenable to writ jurisdiction. Relying upon Mary’s Education Society and Another v. Rajendra Prasad Bhargava and Others, it argued that although an unaided school may discharge a public duty by imparting education, judicial review under Article 226 is available only where a public law element exists and not for enforcing a contract of personal service. The appellant further submitted that even if the writ petition was maintainable, arrears from 01.01.2016 could not have been granted since the writ petition had been filed only on 31.08.2020, and arrears beyond three years were barred by limitation. Reliance was placed on Union of India and Others v. Tarsem Singh and Rushibhai Jagdishbhai Pathak v. Bhavnagar Municipal Corporation.
The High Court held that the writ petition was maintainable as it involved a public law element. It observed that the teachers were seeking enforcement of Section 10(1) of the Delhi School Education Act, 1973, which mandates that the scales of pay, allowances and other prescribed benefits of employees of recognised private schools shall not be less than those of employees of corresponding status in schools run by the appropriate authority. The writ petition also sought enforcement of the DOE notification dated 17.10.2017 directing recognised private schools to implement the recommendations of the 7th CPC. The Court referred to the observations of the Supreme Court in Mary’s Education Society, which recognised that Article 226 is maintainable where a body discharging public duties is sought to be compelled to perform obligations involving a public law element. Accordingly, it concluded that the teachers’ writ petition was maintainable.
On the issue of delay and laches, the Court held that the writ petition was not barred since the cause of action was recurring. Referring to Union of India v. Tarsem Singh, it observed that the Supreme Court itself had clarified that claims relating to payment of pay could be entertained despite delay as they do not affect third-party rights. The Court further held that Rushibhai Jagdishbhai Pathak did not assist the appellant because that case concerned a higher grade pay scale in the next promotional post, which was not the issue in the present case.
The High Court reiterated that the relief claimed by the respondents was payment of salary in accordance with the 7th CPC. It observed that Section 10 of the Delhi School Education Act, 1973 requires recognised private schools to provide pay scales and other benefits not less than those available to employees of corresponding status in government schools. It further noted that the DOE notification dated 17.10.2017 directed all recognised schools to implement the recommendations of the 7th CPC. The Court held that teachers of unaided private recognised schools are entitled to the same pay and emoluments as teachers in government schools in terms of the statutory obligation under the Act and that recognised private schools cannot evade this statutory responsibility.
Holding that the appeal lacked merit, the High Court dismissed the appeal and the accompanying application, with no order as to costs.
Cases Discussed
- Mary’s Education Society and Another Vs. Rajendra Prasad Bhargava and Others (SC), 2022 SCC OnLine SC 1091
- Rushibhai Jagdishbhai Pathak Vs. Bhavnagar Municipal Corporation (SC), 2022 SCC OnLine SC 641
- Union of India and Others Vs. Tarsem Singh (SC), (2008) 8 SCC 648
- Apollo Tyres Ltd. v. C.P. Sebastian (SC), (2009) 14 SCC 360
- Binny Ltd. v. V. Sadasivan (SC), (2005) 6 SCC 657
- K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engg. (SC), (1997) 3 SCC 571
- Satimbla Sharma v. St Paul’s Senior Secondary School (SC), (2011) 13 SCC 760
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
Keeping in view the averments in the application, the delay in filing the present appeal is condoned.
Accordingly, the application stands disposed of.
LPA 601/2022 & CM APPL.45447/2022
1. Present appeal has been filed challenging the judgment and order dated 14th December, 2021, whereby the writ petition filed by three teachers seeking payment of 7th Central Pay Commission (hereinafter referred to as ‘7th CPC’) has been allowed.
RELEVANT FACTS
2. The relevant facts are that respondents 1 to 3 have been working in the appellant school on regular basis. Pursuant to recommendations of the 7th CPC, respondent No.5/Directorate of Education (DOE) issued notification dated 17th October, 2017, whereby all the private recognized schools were asked to implement the same. Since the benefit of the 7th CPC was not extended by the appellant school, Respondents 1 to 3 approached this Court by filing a writ petition.
3. By the impugned judgment dated 14th December 2021, the learned Single Judge directed the school to grant benefits/salaries to respondents 1 to 3 herein, in terms of provisions of the 7th CPC and further held that they were entitled to arrears thereof w.e.f. 1st January 2016. Thus, the present appeal has come to be filed by the school.
ARGUMENTS BY LEARNED COUNSEL FOR THE APPELLANT
4. Learned counsel for the appellant-school submits that the appellant-school is not amenable to writ jurisdiction as it is an unaided private school. In support of his submission, he relies upon the judgment of the Supreme Court in Mary’s Education Society and Another Vs. Rajendra Prasad Bhargava and Others, 2022 SCC OnLine SC 1091, wherein it has been held as under:-
“36. It needs no elaboration to state that a school affiliated to CBSE which is unaided is not a State within Article 12 of the Constitution of India [see Satimbla Sharma v. St Paul’s Senior Secondary School, (2011) 13 SCC 760 : (2012) 2 SCC (L&S) 75]. Nevertheless the school discharges a public duty of imparting education which is a fundamental right of the citizen [see K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engg., (1997) 3 SCC 571 : 1997 SCC (L&S) 841]. The school affiliated to CBSE is therefore an “authority” amenable to the jurisdiction under Article 226 of the Constitution of India [see Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657 : 2005 SCC (L&S) 881]. However, a judicial review of the action challenged by a party can be had by resort to the writjurisdiction only if there is a public law element and not to enforce a contract ofpersonal service. A contract of personal service includes all matters relating to the service of the employee — confirmation, suspension, transfer, termination, etc. [see Apollo Tyres Ltd. v. C.P. Sebastian (2009) 14 SCC 360 : (2009) 5 SCC (Civ) 358 : (2010) 1 SCC (L&S) 359].”
5. He further states that even if the writ petition is held to be maintainable, no direction for payment of arrears thereof w.e.f. 1st January, 2016 could have been passed, inasmuch as, the petitioners had approached this Court by preferring the writ petition on 31st August, 2020. He submits that the claim for recovery of arrears beyond the period of three years is barred by law of limitation. In support of his submission, he relies upon the judgment of the Supreme Court in Union of India and Others Vs. Tarsem Singh, (2008) 8 SCC 648, wherein it has been held as under:-
“7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date offiling of the writ petition.”
6. He also relies upon the judgment of the Supreme Court in Rushibhai Jagdishbhai Pathak Vs. Bhavnagar Municipal Corporation, 2022 SCC OnLine SC 641, wherein the judgment of the Union of India and Others Vs. Tarsem Singh (supra) has been reiterated. The relevant portion of the judgment is reproduced hereinbelow:-
“16. In the facts of the present case, it is accepted that the respondent-Corporation had accepted the interpretation rendered by the High Court of Gujarat to the Scheme whereby the appellants, on financial upgradation, would be entitled to the higher grade pay-scale of the next promotional post, which is Rs. 5,000-8,000/- in the present case. As noted above, the impugned judgment of the Division Bench accepts the said position and grants the appellants the said pay-scale but restricts the benefit from the date of the judgment of the Single Judge in the Writ Petitions filed by the appellants, that is, with effect from 31st July 2018. The Division Bench should not have taken the date of the decision/judgment of the Single Judge for grant of the said benefit in view of the decision and ratio in Tarsem Singh (supra) which has been followed in several other decisions. That apart, the date of the decision of the Single Judge is a fortuitous circumstance. Only the date offiling of the writ petition is relevant while examining the question of delay and laches or limitation. The appellants would, in consonance with the case law referred to above, be entitled to the arrears for three years before the date offiling of the Writ Petitions.”
COURT’S REASONNING
AS THE WRIT INVOLVES A PUBLIC LAW ELEMENT, IT IS MAINTAINABLE
7. Having heard learned counsel for the appellant, this Court is of the view that the writ petition filed by the three teachers is maintainable as it involves a public law element, inasmuch as, the original writ petitioners were seeking the implementation of Section 10(1) of the Delhi School Education Act, 1973 (DSE Act, 1973) which reads as under:-
“10. Salaries of employees.—(1) The scales ofpay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not be less than those of the employees of the corresponding status in schools run by the appropriate Authority………………”
8. In fact, the writ petitioners by way of the underlying writ petition were also seeking enforcement of circular/order/notification dated 17th October, 2017 issued by DOE directing the schools to make payment of salaries to teachers in accordance with 7th CPC. In fact, in the case of St. Mary’s Education Society (Supra), Supreme Court has categorically held as follows:
“75.1. An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge ofpublic function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public.”
9. Consequently, this Court is of the view that the writ petition filed by teachers is maintainable.
WRIT IS NOT BARRED BY DELAY AND/OR LACHES
10. This Court is further of the view that the writ petition filed by the original writ petitioners is not barred by delay and/or laches, inasmuch as, the cause of action is a recurring one.
11. In Union of India vs. Tarsem Singh (supra), the Supreme Court has itself clarified by way of an example that if the issue relates to payment of pay, relief should be granted in spite of delay as it does not affect third party rights.
12. Further, the judgment in Rushibhai Jagdishbhai Pathak Vs. Bhavnagar Municipal Corporation (supra) offers no assistance to the appellant as it deals with a case of higher grade pay scale in the next promotional post and which is not the case in the present instance.
CONCLUSION
13. To conclude, it is reiterated that the reliefs claimed by the respondents in the writ petition were for payment of full salary as per recommendations of 7th Section 10 of the DSE Act provides that the scale of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of a recognized private school shall not be less than those of the employees of the corresponding status in the government school. The DOE in accordance with the DSE Act, 1973 has issued notification dated 17th October, 2017 directing that all recognized schools shall implement the recommendations of 7th CPC. In view thereof, it is the undisputed position of law that teachers of unaided private schools are entitled to the same pay and emoluments as those of government schools, in terms of the obligation enjoined upon the private recognized schools under the DSE Act, 1973. The schools cannot evade their statutory responsibility and are bound to pay the statutory dues.
14. Consequently, this Court is of the view that the present appeal is bereft of merit. Accordingly, the present appeal and application are dismissed but with no order as to cost.
Author Bio
