ivil Appeal Nos
2366 67 of 1988 etc
From the Judgment and order dated 2121985 of the Punjab and Haryana High Court in CWP No 5353 of 1984
Pankaj Kalra BS Gupta PC Kapur and section Mitter for the Appellants
Rajinder Sachar DK Garg Mahabir Singh and AK Goel for the Respondents
The Judgment of the Court was delivered by PATHAK CJ
Special leave to appeal is granted in both the special leave petitions
The petitioners are teachers employed in various recognised aided private schools in the State of Haryana
The schools are maintained under private management
They receive financial aid from the State Government
The petitioners have come to Court alleging that teachers employed in Government aided private schools are entitled to parity with the teachers employed in Government schools in the matter of pay scales and other emoluments such as Dearness Allowance House Rent Allowance City Compensatory Allowance 684 Medical Reimbursement and Gratuity etc
It appears that prior to A 1967 there was considerable disparity in the emoluments of teachers employed in the same State and the Government of India appointed the Kothari Commission to examine the conditions of service of teachers with the object of improving the standards of education in the country
Among other things the Kothari Commission recommended 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 organisations should be the same
Almost all the States including the State of Haryana decided to implement the recommendations of the Kothari Commission
The State of Haryana declared in January 1968 that the revised rates suggested by the Kothari Commission would be made effective from 1 December 1967 and that the grades of teachers of privately managed schools would be revised on the pattern of the grades of teachers working in Government schools
As the deficit between the original grades and the revised grades was found too burden some for the managements of the aided schools to bear the State decided to meet the increased expenditure entirely in regard to Pay and Dearness Allowance
The State Government followed the principle of parity between the teachers working in aided schools and Government schools until 1979
In 1979 the pay scale of teachers in Government schools was revised by the State after the report of the Pay Commission but in the case of the teachers of aided schools the revision was effected two years later
The petitioners allege that the salary and other emoluments paid to the teachers of aided schools have fallen far behind the emoluments paid to the teachers in Government schools and this Court should interfere in order to remove such discrimination
We are told that there are about sixty thousand teachers in Government schools while a mere four thousand teachers are employed in aided schools
According to the petitioners to provide education in schools is the constitutional responsibility of the Government and this is reflected in the deep and pervasive control exercised by the Government over the running of aided schools
It is pointed out that the control is exercised over almost all areas of management
The Committee of management has to be approved by the State Government so have the strength of the teaching and the other staff as well as the qualifications and other conditions of eligibility for appointment to the staff
The mode of selection and the determination of seniority are subject to the directions of the State Government and teachers cannot be dismissed removed or reduced in rank without the prior approval of the State authorities
The tuition fee as well as free ships concession and scholarships are fixed by the State Government which is also empowered to give instructions in 685 regard to the time table working hours pupil ratio attendance and workload
The financial resources and the heads of income and expenditure are indicated by the State Government
We have heard learned counsel for the parties at considerable length and we find general agreement between the parties that there is no reason for discrimination between the teachers employed in aided schools and those employed in Government schools so far as the salaries and Additional Dearness Allowances are concerned
The State Government does not accept the claim to parity in respect of other heads of allowance put forward by the petitioners
We were at one time disposed to ruling on the question whether the responsibility for providing education in schools belongs to the State Government and therefore whether there is a corresponding responsibility on the State Government to ensure that in aided schools the teachers are entitled to the same emoluments as are provided for teachers in Government schools
We do not however propose to enter upon this question in these cases as we are satisfied from the developments which have followed after the hearing on the merits that it would be more appropriate to dispose of these cases by a short order
The State Government has expressed its readiness to reimburse the payment of ten instalments of the Additional Dearness Allowance but not the twenty five Additional Dearness Allowance instalments released after 1 April 1981
It appears that the grant in aid given by the State Government to these aided schools covers the deficit to the extent of seventy five per cent of the approved expenditure
The approved expenditure extends to the salaries paid to the teaching and non teaching staff which includes the Pay and Dearness Allowance and Interim Relief before 1 April 1981 and the Pay and Additional Dearness Allowance beyond 1 April 1981 the deficit expenditure minus income and certain other items but does not include House Rent Allowance Medical Allowance City Compensatory Allowance and the other heads claimed by the petitioners
In our opinion the teachers of aided schools must be paid the same pay scale and Dearness Allowance as teachers in Government schools for the entire period claimed by the petitioners and that the expenditure on that account should be apportioned between the State and the Management in the same proportion in which they share the burden of the existing emoluments of the teachers
The State Government meets the Dearness Allowance liability to the extent of seventy five per cent of the amount
Ten instalments representing the State Government s liability shall be paid by the State Government in two equal parts the first part being payable within three months from today and the remaining part being pay 686 able by 31 March 1989
The State Government shall also pay the remaining twenty five instalments the entire amount being payable in five equal parts each part being paid every six months the first such part being payable by 30 September 1989
The State Government shall not be liable to pay for the period covered by these 35 instalments any amount on account of House Rent Allowance City Compensatory Allowance and the other allowances claimed by the petitioners
The State Government will also take up with the managements of the aided schools the question of bringing about parity between the teachers of aided schools and the teachers of Government schools for the period following that to which the aforesaid thirty five instalments relate so that a scheme for payment may be evolved after having regard to the different allowances claimed by the petitioners
In the case of teachers who have retired or who have died in service during the pendency of these cases payment of the first ten instalments shall be made to the retired teachers and to the legal representatives of the deceased teachers within three months from today
The appeals and the writ petitions are disposed of accordingly
HLC Appeals  Petitions disposed of


Summary:
Sub para ii of para 620 of the Railway Pension Manual empowers the competent authority to remove a railway servant from service any time after he has completed 30 years of qualifying service
Clause h of Rule 2046 FR 56 of the Indian Railway Establishment Code empowers the appointing authority to retire in Public interest i Class I and Class II railway servant who had entered Government Service before the age of 35 years after he has attained the age of fifty years and ii in any other case after he has attained the age of 55 years
Clause k of the said rule confers absolute right on the appointing authority to retire a railway servant in Class III service who is not governed by the Pension Rules after he has completed thirty years of service
The respondent Class III servant who had joined service in 1950 was compulsorily retired from service by the competent authority in the Railway Administration in exercise of powers under para 620 of the Manual on 14th May 1982
He was born on 2391929 and was to continue in service till he completed 58 years of service
The writ petition filed by him questioning the validity of the said order and also of para 620 of the Manual was dismissed by the Single Judge
In appeal before the Division Bench it was contended for him that i Rule 2406 of the Rules having been framed under the proviso to Article 309 of the Constitution and being a compendious code with regard to compulsory retirement that provision alone could be invoked and not para 620 of the Manual which is in the nature of an executive 742 order ii since rule 2046h opens with a non obstante clause and para 620 of the Manual does not state that the said rule shall prevail notwithsanding any other provision to the contrary rule 2046h of the Rules cannot be made subject to para 620 of the Manual and iii there being two separate provisions with regard to compulsory retirement namely clause h of rule 2046 of the Rules and para 620 of the Manual in the absence of any guidance as to when and which rule could be invoked in a given case both the provisions would be inapplicable and he could not be compulsorily retired
The High Court held that para 620 of the Railway Pension Manual was void and ineffective
It took the view that since rule 2046h of the Rules was not applicable as the respondent had not attained the age of 55 years on the date he was compulsorily retired he could not have been compulsorily retired
Allowing the appeal by special leave and remanding the case to the High Court  HELD 11 Para 620 of the Railway Pension Manual is valid
The High Court was not right in taking the view it did
749A 12 There is no inconsistency between rule 2046 of the Rules and para 620 of the Railway Pension Manual
Clause h of rule 2046 of the Rules empowers the competent authority to retire compulsorily a railway servant on his attaining the age specified therein
That clause has no reference to the length of service put in by a railway servant concerned
Clause k of the said rule under which the appointing authority can retire a person in the public interest after a railway servant has completed 30 years of service applies to a railway servant holding a Class III post and who is not governed by pension rules
Para 620 of the Manual applies to all railway servants governed by the pension rules
Railway servants holding Class I or Class II posts who cannot be retired under clause k of rule 2046 of the Rules can be retired on their completing 30 years of qualifying service if they are governed by the pension rules
Similarly railway servants holding Class III posts and who are governed by the pension rules to whom clause k of rule 2046 of the Rules is not applicable can also be retired on their completing 30 years of qualifying service
Thus the area of operation of para 620 of the Railway Pension Manual is different from that of clauses h and k of rule 2046 of the Rules
748D G 13 Para 620 of the Railway Pension Manual which has been framed by the Union Government in exercise of its executive power under Article 73 of the Constitution should therefore be treated as supple 743 mentary to rule 2046 of the Rules and given due effect since there is no statutory provision or a rule framed under the proviso to Article 309 of the Constitution which is inconsistent with it
748G H 2
Since the respondent had raised some other contentions with regard to the validity of the impugned order of retirement in the petition and the High Court has not expressed its opinion on those contentions the case is remanded to the Division Bench of the High Court to dispose of the appeal afresh in the light of the submissions to be made by the respondent on the other contentions raised by him
749C