IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.8271 OF 1999 1.SURENDRA MISHRA, S/O LATE JGARNATH MISHRA, R/O VILLAGE ASHOPUR, POLICE STATION DANAPUR, DISTRICT PATNA AT PRESENT HEADMASTER SANSKRIT UCHH VIDYALAYA, ANDHARI, POLICE STATION SAHAR, DISTRICT BHOJPUR. 2.JAWAHAR LAL JHA, S/O LATE HARI PRASAD JHA, R/O VILLAGE JHAKHARA, POLICE STATION SARAI RANJAN, DISTRICT SAMASTIPUR, AT PRESENT ASSISTANT TEACHER OF SRI RAMLALA SARB DARSHAN SANSKRIT UCHH VISYALAYA, NARGHOGHI, POLICE STATION SARAI RANJAN, DISTRICT SAMASTIPUR. 3.GRIND MOHAN MISHRA PARAMHANS, S/O SRI HARIKANT MISHRA, R/O VILLAGE KAMLA POLICE STATION UJIYARPUR, DISTRICT SAMASTIPUR, AT PRESENT ASSISTANT TEACHER OF GANDHI SANSKRIT PRATHMIC SAH MADHYAMIK VIDYALALAYA, KAMLA POLICE STATION UJIYARPUR, DISTRICT SAMASTIPUR. …………………PETITIONERS. VERSUS 1.THE STATE OF BIHAR. 2.THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA. 3.THE SECRETARY/COMMISSIONER, THE PRATHMIK, MADHYAMIK AND ADULT EDUCATION, DEPARTMENT OF EDUCATION, GOVERNMENT OF BIHAR, PATNA, VIKASH BHAWAN, PATNA. 4.THE SPECIAL DIRECTOR, SECONDARY EDUCATION INCHARGE SANSKRIT EDUCATION, GOVT. OF BIHAR, PATNA, DEPARTMENT OF EDUCATION, VIKASH BHAWAN, PATNA. 5.THE SECRETARY/COMMISSIONER, FINANCE GOVT. OF BIHAR, PATNA, DEPARTMENT OF FINANCE. 6.THE BIHAR SANSKRIT SHIKSHA BOARD, BORING CANAL ROAD, PATNA. 7.THE CHAIRMAN, BIHAR SANSKRIT SHIKSHA BOARD, BORING CANAL ROAD, PATNA. 8.THE SECRETARY, BIHAR SANSKRIT SHIKSHA BOARD, BORING CANAL ROAD, PATNA. 9.THE DISTRICT EDUCATION OFFICER, BHOJPUR, DISTRICT BHOJPUR. 10.THE DISTRICT EDUCATION OFFICER, SAMASTIPUR, DISTRICT SAMASTIPUR. ………………………RESPONDENTS. ----------- 05/ 30.08.2011 Heard Mr. Suresh Kumar Ishwar, learned counsel for the petitioner and 2 learned counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “That this is an application for issuance of an appropriate writ in the nature of certiorari for quashing the Sankalp/ Resolution NO. 13/B.3-06/94- Shiksha 285 dated 12.04.1999 issued by the respondent no. 3, The Secretary, Secondary Prathamik and Adult Education, Department of Education, Government of Bihar, Patna as contained in Annexure-3 to this writ application by which the Teaching and Non-teaching staffs of recognized Government added Sanskrit and Madarsa Schools have been given the fifth pay Revision Pay Scale from 01.01.1986. But the monetary benefits would be given from 01.04.1998 unlike the teachers/non teaching staffs of taken over middle and High Schools in which the monetary benefit of fifth pay revision scale have been given from 01.03.1989. And further also for quashing the Item NO. 4 (Kha) of the same Sankalp/resolution dated 12.04.1999 by which the Teaching and Non-Teaching Staffs of Sanskrit and Madarsa Non Government added Schools including the petitioner/the petitioners schools have been given the fifth pay revision pay scale by fixing the dearness allowances only 71%. The aforesaid fixation is less than which the petitioner and their teaching and non teaching staffs were getting before the aforesaid IVth fixation by the respondent as Annexure-1. Whether the teaching and non teaching staffs of taken over Middle and High Schools have been given the monetary benefit of the fifth pay revision pay scale from 01.03.1989 with the benefits of dearness allowances as according to their pay and that has been increased time to time and they were getting the said dearness allowance. And further also for issuance of an appropriate writ in the nature of Mandamus for directing and commanding the respondents to give benefits of the 3 fifth pay revision pay scale from 01.03.1989 as Government Middle and High Schools to the petitioners and their Teaching and Non-teaching Staffs of the petitioners-schools. And further for directing respondents to give benefits of the dearness allowances to the petitioners and their teaching and non- teaching staffs as Government Middle and High Schools from 01.03.1989. And further for directing and commanding the respondents to give the benefits of salary and allowances of Central Pay scale to the petitioners and their teaching and non-teaching staffs of the petitioners Schools as Government Middle and High School. And further to direct the respondents to take final decision regarding payment of salary and allowance of the Central Pay Scale to the petitioners and their staffs in their Schools as Government Middle and High Schools within the reasonable time because the decision of Fifth Pay revision pay scale has been taken after long time back about ten years.” Mr. Ishwar would submit that since, the petitioner is being paid the salary and emoluments of the teachers of the recognized Sanskrit School by the Bihar Sanskrit Shiksha Board, it would be also bound to pay the same pay scale as is admissible to the teachers of the Government Schools. He has accordingly, assailed the impugned resolution of the Finance Department in view of the resolution of the Education Department dated 12.04.1999, whereby and whereunder, the pay scale of Fifth Pay Revision 4 Committee adopted for the Government employees has been made applicable w.e.f., from 01.04.1998 in cases of recognized non- government Madarsa/Sanskrit Schools, Mr. Ishwar would also explain that once the Government had taken a decision to grant aid for payment of salary to the teachers of the recognized Madarsa and Sanskrit Schools, it could not distinguish them on the plea of admissibility or date of enforcement which had to also remain the same as was made applicable in the case of teachers of the Government Schools. For this purpose he would place reliance on the judgment of the Apex Court in the case of Haryana State Adhyapak Sangh and Others vs The State of Haryana and Others with Raj Singh and Others etc., vs State of Harayana and another, reported in AIR 1988 SC 1663 and in the case of Haryana State Adhyapak Sangh and Others vs The State of Haryana and Others, reported in AIR 1990 SC 968 as also the order of the learned Single Judge of this Court in the case of Madhav Mahaseth & ors vs State of Bihar & Ors, reported in 1998(1) PLJR 803. On the other hand, learned counsel 5 for the State has relied on the averments made in the counter affidavit, wherein, it has been stated that the 429 Sanskrit Schools are not Government Schools and therefore, when they were functioning under the private Managing Committee, their burden of payment of salary and emoluments including the Dearness Allowance has to be decided by the Government as per its own financial committment. Explaining the justification of Annexure-3, learned counsel for the State has stated that when the Government has decided to extend the same benefit of pay scale as given to the teachers of the Government School it had to also classify the date, inasmuch as, the Government had to first arrange funds for the payment of salary of its own teachers in the Government Schools, whereafter it could also meet the payment of salary by way of aid or grant to the private Schools. In the light of aforesaid submissions the first and foremost question for consideration, in this case would be as to whether at any point of time the Government had taken any decision to make payment of salary to the Sanskrit Schools 6 by any statutory enactment laying down that as and when the Government would enhance the salary of the teachers of the Government Schools, it would also do so in the case of teachers of the Sanskrit School. There is no dispute that no statutory provision has been made in this regard till date and the payment of salary to the teachers of recognised private Sanskrit School is still governed by executive decisions. The Government for the first time in the year 1981 while reimbursing the grant in aid by substituting the earlier provision for payment of difference of salary beyond what was paid by the Managing Committee, had undertaken the liability for payment of full salary in the prescribed pay scale against the sanctioned post. Such executive decision which had come into force w.e.f., 01.04.1981, did not envisage that as and when the Government would enhance the pay scale of the teachers of the Government School it would also do so for the teachers of the Sanskrit Schools. It has to be taken into account that while the appointment in the Government 7 School is made under the mandate of Article 14 and 16 of the constitution of India no such procedure is followed in the appointment of the teachers of private recognised Sanskrit Schools. In case of private recognised Sanskrit Schools it is the Managing Committee which makes the appointment and its approval is accorded by the Sanskrit Shiksha Board only for the purposes of release of grant in aid. Apart from the basic difference in the manner of appointment even the teaching in the two schools cannot be said to be the same. In Government Schools teaching is being made on the modern subjects whereas in the Sanskrit Schools it is the oriental form of imparting education only in the subject of Sanskrit. As a matter of fact, only one teacher in the primary School and three teachers in the Madhayamik School are supposed to carry out the work of modern subject. It would thus be seen that there is also a great difference in the teaching curriculum of the two Schools. Equal pay for equal work cannot be only allowed on the ground that the teachers of the Government School and the 8 teachers of the private School are doing the same work of teaching. The concept of equal pay for equal work has its own limitations and therefore, at least this Court is not impressed with the submission that the teachers of the private School would be entitled for same pay scale as to the teachers of the Government Schools. The reliance placed by the learned Counsel for the petitioner on the judgment of the Apex court, in both the cases of Haryana State Adhyapak Sangh (supra) is also wholly misplaced inasmuch as it has been held therein that the pay scale of the teachers of aided Schools should be the same as that of the Government Schools but then the expenditure on that count should also be equally apportioned between the management of such Schools and the Government. It is therefore, clear that in the case of State of Haryana there was an entirely a different case on fact contrary to what was/is prevailing in the State of Bihar. In the State of Haryana certain installments of Dearness Allowance was to be met by the State Government only to the extent of 75 per cent of the approved 9 expenditure and thus the Judgment of the Apex Court in both the cases of Haryana State Adhyapak Sangh (supra) far from supporting the case of the petitioner would actually go against them, inasmuch as, in the State of Bihar the management of Sanskrit Schools does not even bear any expenditure towards payment of salary after 01.04.1981. As noted above before 01.04.1981 only the difference of salary was being paid by the State and probably at that stage the liability of the State would have been in the same terms as that was laid down in the case of State of Harayana (supra) but from 1.4.1981 the position is entirely different when the government has to pay full salary to the employee of recognised Sanskrit school. As with regard to the judgment of learned Single Judge in the case of Madhav Mahaseth (supra), this court would find that the teachers of Government aided middle School had moved this Court for being given the same Government pay scale and from the same date. In the case of Government aided Primary Schools the position is entirely different, inasmuch 10 as, in view of the Non-government Take Over and Control Rules 1976, the Government has taken a conscious decision of not only recognizing the status of aided Schools but also while nationalizing most of the Primary and Middle Schools, the status of such aided schools had been left untouched which did not want to become Government Primary School. It was in this regard that the whole issue was examined by this Court and therefore, in absence of any statutory provision, this Court is not in a position to extend the same benefit to the teachers of the Sanskrit Schools for whom there is no decision to grant aid. It is one thing that the deficit grant is being given to the Sanskrit Schools and the same cannot be equated with the aided institutions like Primary Schools. This court would fail in its duty if it does not take into account that recently in the case of Minority Secondary Teachers Association vs The State of Bihar & Ors, reported in 2011(3) PLJR 543, this Court by applying the principles under Article 29 and 30 of the Constitution of India has held that since the Government has taken a 11 decision on Minority Institutions for extending the same benefit as in the case of Teaching and Non-teaching employees of the Government Schools, the Government will also be bound to follow the same cut off date for grant of same financial benefit. Considering the fact that the aforementioned judgment in the case of Minority Secondary Teachers Association has become final, this Court would direct the respondents to consider as to whether when such benefit has been given to the teachers of the aided Primary Schools as also the minority Secondary Schools can the same be denied only to the teachers of Sanskrit Schools. In that view of the matter, this Court would expect that the Principal Secretary of the Education Department would obtain the orders of the State Government on this specific issue and in case, the same is negatived in the case of recognized Sanskrit Schools the competent Authority shall also disclose the reasons for the same. It is made clear that this Court has merely remitted the matter back for 12 reconsideration on limited issues and has not decided the claim of the teachers of the Sanskrit Schools for being given the same date of enforcement of their pay scale. This exercise by the Principal Secretary must be completed within a period of six months from the date of receipt/production of a copy of this order. With the aforementioned observation and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)