IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 1381/2002 Reserved on 25.4.2007 Date of decision 25.5.2007 Deepika Vashisht …Petitioners. Versus State of H.P. & others. …Respondents Coram The Hon’ble Mr. Rajiv Sharma, J. Whether approved for reporting ?1.Yes For the petitioners : Mr.Ajay Mohan Goel, Advocate. For the respondent No.1,2 & 4 : Mr. M.S.Chandel, A.G. with Mr. M.A. Khan and Ms. Meenakashi, Dy. As, G. For the respondent No.3: Mr. Balwant Kukreja, Advocate. ___________________________________________________________ Rajiv Sharma, J. By way of this petition, the following reliefs have been sought for:- “Declare the act of the respondent school of not promoting the staff of Primary School i.e. three JBT Teachers to the senior wing of the school, as per the orders of the respondent-State, and reflecting them as JBT Teachers, thus making petitioner surplus as seventh JBT teacher for a strength of 183 students in the Primary School and issuing her one month notice dated 19.8.2002 intimating her that her services are no more required from 19.9.2002 onwards without the prior approval of the Deputy Director of Education of the Zone as arbitrary, discriminatory, illegal and hence unconstitutional and quash the impugned order dated 19.8.2002. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. 2 Direct the respondent school not to terminate the services of the petitioner in the school as a JBT teacher pursuant to the impugned office order dated 19.8.2002. Direct the respondents to produce before the Hon’ble Court the relevant record of the case and to pay to the petitioner the cost of the petition. Any other relief which the Hon’ble Court deems fit may kindly be granted in favour of petitioner, in the interest of justice.” The necessary facts for the adjudication of the present petition are that the State of H.P. has framed the Rules called “the H.P. Non- Government Institution (Grant-in-Aid) Rules, 1997. As per appendix-II, the Himachal Pradesh Privately Managed Rules, 1987 have been framed separately. Rule 1 prescribes the minimum qualification for recruitment to the aided posts shall be the same as may be prescribed by the Government for similar category of posts in Government Institutions from time to time. Rule 2 provides that all appointments to the aided posts shall be made by the Managing Committee in the following manner: “Appointing authority shall advertise in both English and Vernacular daily newspapers in the State, vacancy or vacancies to be filled in by giving full particulars thereof including the requisite qualifications, number of vacancies to be filled in and the last date by which the applications may be submitted; In the alternative the names of suitable candidates may be obtained through the employment exchange. The recommendations for appointment of the candidates shall be made by a Sub-Committee consisting of five members of managing committee and a representative/nominee of H.P. Education Department. The members of the sub-committee other than Departmental Nominee shall be appointed by the managing committee.” Rule 6 provides that subject to any rule that may be made in this behalf, no employee shall be dismissed, removed nor shall his services be 3 otherwise terminated except with the prior approval of the Deputy Director of the zone and any employee who is dismissed, removed or reduced in rank within a time scale may, within three months from the date of communication to him or the order of such dismissal, removal or reduction appeal against such order to the Director (Education) (Primary) to the Government of H.P. The order of Director has been made final. In sequel to the H.P. State Privately Managed Recognised/Aided School Employees (Security of Service) Rules, 1997, the petitioner was appointed as JBT Teacher in the Primary Wing of respondent No.3 school on a fixed pay of Rs. 4550/- plus other allowances as applicable from time to time. This appointment has been made consequent upon the final clearance received under Shiksha-Shimla/Prathmik(2-4) (a)(1)2/96-II- 5410-11 dated 30.8.2001 after her appointment had already been approved by the “Sub- Committee”. The petitioner pursuant to order dated 1st September, 2001 started teaching in the Primary Wing of respondent No.3 school. It is pertinent to refer at this stage the communication dated 28.7.2000 and the relevant portion of the same is reproduced as under: “On the subjection mentioned above, you are informed by way of appended letter of Director of Education No.EDN HP (5) (C) (10) 17/98 dated 29.8.1998 that the Grants Committee has decided that in your school the proposed posts of Shastri/Language Teachers/Physical Education teacher under the Grant In Aid will be filled from amongst the trained graduate teachers of your school as per seniority list sent to you vide this office letter No.Edu. Shimla (2) (B) (GIA) 11/97- 23905-06 dated 19.6.98. Thus on the said posts adjustments are ordered as under: Sr.No. Name of Teacher Date of appointment/ Date of training Posted as presently Posted to the post of 1. Nisha Sharma BA B.Ed. Against JBT (Pry.)1.6.09/ 20.3.89 Against JBT(Pry. wing) Language teacher/Shastri. In High Wing 4 2. Kamlesh Bhandari B A B.Ed. 20.9.80/ 15.9.89 Shastri in High wing. Shastri/ Language teacher in middle wing. 3. Girja Sharma B.A. B.Ed. 15.2.891/ 19.9.90 Language teacher Middle wing. PET in middle wing. 4. Avinash Kaur B.Ed. 12.7.95/ 4/82 PET inmiddle wing JBT in Primary wing. You are requested to give effect to the above changes and intimate this office immediately and after the changes in case excess amount has been paid to any employee, recover the same and only then make payments to the employees.” It is evident from the reading of letter dated 28.7.2000 that one Nisha Sharma appointed against JBT post in primary wing was to be shifted to high wing. The petitioner’s services were terminated vide memo dated 19th August, 2002 on the ground that the matter regarding her appointment as JBT Teacher was referred to the Director Primary Education for his approval/remittance under the grant-in-aid rules, but the approval/pay has been refused by the Director. The petitioner was relieved on 19.8.2002. Mr. Ajay Mohan Goel, Advocate appearing on behalf of the petitioner has vehemently argued that the termination of the petitioner vide Annexure P-7 dated 19.8.20002 is arbitrary since no prior permission has been obtained as stipulated under rule 6(b) of the H.P. State Privately Managed Recognised/Aided School Employees (Security of Service) Rules, 1997. Mr. Ajay Mohal Goel then submitted that as per Grant-in-Aid Rules known as H.P. Non-Government Institution (Grant-in-Aid) Rules, 1997, it was the duty cast upon the respondent No.3 school to implement order dated 28.7.2000 in its entirety meaning thereby that one Ms. Nisha was to be posted in the High Wing resultantly making one vacancy available in the primary wing. He has also argued that besides Nisha 5 Sharma, two JBT Teachers, namely, Narender Kumar and Raj Sharma had been ordered to be posted/promoted to the High Wing by the respondent No.2 but the same has not been given effect to by the respondent No.3. Mr. M.S. Chandel, learned Advocate General has stated that the grant-in-aid is released strictly as per the students- teachers ratio. Mr. Balwant Kukreja, Advocate appearing on behalf of respondent No.3 has argued that the order of termination dated 19.8.2002 is in accordance with law. He has further argued that the termination of the petitioner is as per the condition No.7 of the appointment letter which stipulates that the appointment can be terminated at any time by one month notice from either side without assigning any reason. I have heard the parties and perused the records. It is evident from the reading of office order dated 1st September, 2001 that the petitioner’s selection for the post of JBT Teacher had already been approved by the “Recruitment Committee” and the final clearance was received under letter dated 3.8.2001. In this view of the matter it was not permissible for the respondent No.3 school to terminate the services of the petitioner on 19th August, 2002. It is evident from rule 6(b) of the H.P. State Privately Managed Recognized/Aided School Employees (Security of Service) Rules, 1997 that before dismissal/ removal prior approval of the Deputy Director of Education is required. Admittedly, no prior approval has been sought by the respondent No.3 school before terminating the services of the petitioner and the same is thus bad in law. In view of the terms and conditions provided, all the teachers are to be regulated under H.P. State Privately Managed Recognised/Aided School Employees (Security of Service) Rules, 1997. The services of the petitioner could not have been terminated as per 6 clause 7 of the appointment letter as submitted by Mr. Ajay Mohan Goel. Even the termination letter Annexure P-7 dated 19th August, 2002 is couched in a very deceptive language. What is mentioned in the memorandum dated 19.8.2002 is that the matter regarding her appointment as JBT Teacher in the school was referred to the Director Primary Education for his approval/remittance of her pay under the Grant- in-Aid and the requisite approval/pay has been refused by the Director. The petitioner’s appointment has already been approved by the competent authority vide letter Shiksha-Shimla/Prathmik(2-4) (a)(1)2/96-II-5410-11 dated 30.8.2001 after her selection was recommended by the “Sub- Committee”. Thus, there was no legal compulsion for the respondent No.3 to seek fresh approval from the Directorate as far as the appointment of petitioner was concerned. The matter is required to be looked into from another angle also. The Deputy Director had sent a direction to the respondent No.3 school on 28.7.2002. The contents of which have already been noted above, on the basis of which one Ms. Nisha Sharma was to be upgraded in High Wing from Primary Wing. The respondent No.3 school had not implemented the order of District Education Officer resulting in loss of one post in Primary Wing. Had Ms. Nisha Sharma been upgraded in High Wing, the petitioner could have always been accommodated against the 6th vacancy. It is a duty cast upon the respondent No.3 school to obey the directions issued by the Education Department as per the H.P. Non-Government Institution (Grant-in-Aid) Rules, 1997. It is stipulated in clause ‘M’ that the rules of the Department and directions as given by the Department from time to time so far as they are applicable to the aided schools are complied with. It is also provided under the rules that no grant will be given to the school not fulfilling the requirements quoted in the Rules. Surprisingly the 7 respondents-State has not taken any action for non-compliance of the directions issued by the District Education Officer to the respondent No.3 school on 28.7.2000. The non-implementation of the directions issued on 28th July, 2000 has prejudiced the petitioner as is evident from the proceedings of the meeting of the Grant in Aid Committee held on 26.4.2002. What is stated with regard to respondent No.3 school in the committee was that for the enrolment of 218 students 6 teachers were eligible for reimbursement of grant-in-aid whereas the management has claimed the grant in aid for 7 teachers. Consequently, the committee has not entertained the claim of 7th teacher i.e. petitioner. Had Ms. Nisha Sharma been shifted to High Wing, the petitioner could have been accommodated against the 6th posts resultantly becoming available. It is clarified that the appointment of the petitioner once approved by the competent authority was not dependent on the release of grant-in-aid. Respondent No.3 school had arbitrarily terminated the services of the petitioner after being appointed in accordance with law. It was nowhere mentioned in the appointment letter that her appointment was dependent on the release of grant-in-aid by the State. Similarly, communication dated 18th September, 2002 is illegal. No directive as mentioned in this memo dated 18th September, 2002 has been placed on record. The Directorate has only made observations to the effect that the committee did not entertain the claim of 7th teacher i.e. petitioner. This does not suggest that the Director has directed the termination of the petitioner as projected in memo dated 18th September, 2002. Mr. Balwant Kukreja, Advocate appearing on behalf of respondent No.3 has also argued that the writ will not lie against the private school. The respondent No.3-school is discharging the public functions and is also getting Grant-in-Aid from the State Government. Thus, the writ will 8 lie for enforcement of fundamental and legal rights against respondent No.3. Hon’ble Supreme Court has held in Manmohan Singh V. Commissioner, U.T. AIR 1985 SCC 364 that the aided school receiving 95% of expenses by way of grant from the public exchequer and whose employees have received the statutory protection under the Act and which is subject to the regulations made by the Education Department of the union Territory of Chandigarh as also the appointment of Head Master to be valid must be approved by the Director of Public Instruction, would certainly be amenable to the jurisdiction of the High Court. Their Lordships of the Hon’ble Supreme Court have held as under: “The High Court declined to grant any relief on the ground that an aided school is not other authority under Article 12 of the Constitution and is therefore not amenable to the writ jurisdiction of the High Court. The High Court clearly overlooked the point that Deputy Commissioner and Commissioner are statutory authorities operating under the 1969 Act. They are quasi-judicial authorities and that was not disputed. Therefore, they will be comprehended in the expression ‘Tribunal as used in Article 227 of the Constitution which confers power of superintendence over all courts and tribunals by the High Court throughout the territory in relation to which it exercises jurisdiction. Obviously, therefore, the decision of the statutory quasi-judicial authorities which can be appropriately described as tribunal will be subject to judicial review namely a writ of certiorari by the High Court under Article 227 of the Constitution. The decision questioned before the High Court was of the Deputy Commissioner and the Commissioner exercising powers under S. 3 of the 1969 Act. And these statutory authorities are certainly amenable to the writ jurisdiction of the High Court. The matter can be viewed from a slightly different angle as well . After the decision of the Constitution Bench of this Court in Ajay Hasia V. Khalid Mujib Sehravardi, (1981) 2 SCR 9 79: (AIR 1981 SC 487) the aided school receiving 95% of expenses by way of grant from the public exchequer and whose employees have received the statutory protection under the 1969. Act and who is subject to the regulations made by the Education Department of the Union Territory of Chandigarh as also the appointment of Headmaster to be valid must be approved by the Director of Public Instruction, would certainly be amenable to the writ jurisdiction of the High Court. The High Court unfortunately, did not even refer to the decision of the Constitution Bench in Ajay Hasia’s case rendered on November 13, 1980 while disposing of the writ petition in 1983. In Ajay Hasia’s case Bhagwati J; speaking for the Constitution Bench inter alia observed that ‘the financial assistance of the State is so much as to meet almost entire expenditure of the corporation; it would afford some indication of the corporation being impregnated with governmental character.’ Added to this ‘the existence of deep and pervasive State control which may afford an indication that the Corporation is a State agency of instrumentality.’ Substituting the words ‘public trust’ in place of the ‘corporation’ the reasons will mutatis mutandis apply to the school. Therefore, also the High Court was in error in holding that the third- respondent school was not amenable to the writ jurisdiction of the High Court.” The Hon’ble Supreme Court has held in Francis John Vs. Director of Education and others 1989 Supp (2) SCC 598 that any private school which receives aid from the Government under Grant-in-Aid Code cannot escape from the consequences flowing from the breach of the Code. Their Lordships of the Hon’ble Supreme Court have held as under: “In the instant case also we are concerned with the Grant-in- aid Code. The decision which was challenged before the High Court was the order of the Director of Education dated July 12, 1984 which is fully extracted above. It is further seen that a copy of the above order has been communicated by the Director of Education not merely to the management of the school but also to the Zonal Officer, North Educational Zone, Mapsa and the Grant-in-aid Section 10 of the Directorate of Education. If the impugned orders of the Director of Education and of the Disputes Settlement Committee to which he had referred the case are set aside then the order of termination of service of the appellant, which receives aid from the government under the Grant-in-aid Code, which is promulgated not merely for the benefit of the management but also for the benefit of the employees in the school for whose salary and allowances the government was contributing from the public funds under the Grant- in-aid Code cannot escape from the consequences flowing from the breach of the Code and particularly where the Director of Education who is an instrumentality of the State is participating in the decision making process. Under these circumstances we find that the High Court was wrong in upholding that the orders of the Director of Education and of the Disputes Settlement Committee were not amenable to the jurisdiction of the High Court under Article 226 of the Constitution since the matter squarely falls within the principles laid down by this Court in Tikaram case.” The Hon’ble Supreme Court in Rajsoni V. Air Officer Incharge Administration, (1990) 3 SCC 261 has held as under: “The recognized private schools in Delhi whether aided or otherwise are governed by the provisions of the Act and the Rules. The respondent-management is under a statutory obligation to uniformly apply the provisions of the Act and the Rules to the techers employed in the school. When an authority is required to act in a particular manner under a statute it has no option but to follow the statue. The authority cannot defy the statute on the pretext that it is neither a State nor an “authority” under Article 12 of the Constitution of India.” Similarly, the Hon’ble Supreme Court has held in K. Krishnamacharyulu and others V. Sri Venkateshwara Hindu College of Engineering and another (1997) 3 SCC 571 that when an element of public interest is created and the institution is catering to that element, the teacher, the arm of the institution is also entitled to avail of remedy 11 provided under Article 226. The Lordships of the Hon’ble Supreme Court have held as under: “The admitted position is that the appellant and six others had been appointed on daily wages to the post of Lab Assistants as non-teaching staff of the respondent-private college. They were being paid daily wages. A writ petition and appeal seeking equal pay having been dismissed, they have filed the present appeal for direction to pay them equal pay for equal work on a par with the other government employees. It is not in dispute that executive instructions issued by the Government have given them the right to claim the pay scales so as to be on a par with the government employees. The question is when there are no statutory rules issued in that behalf, and the institution, at the relevant time, being not in receipt of any grants-in-aid; whether the writ petition under Article 226 of the Constitution is not maintainable? In view of the long line of decisions of this Court holding that when there is an interest created by the Government in an institution to impart education, which is a fundamental right of the citizens, the teachers who impart the education get an element of public interest in the performance of their duties. As a consequence, the element of public interest requires regulation of the conditions of service of those employees on par with government employees. In consequences, are they also not entitled to the parity of the pay scales as per the executive instructions of the Government? It is not also in dispute that all the persons who filed the writ petition along with the appellant had later withdrawn from the writ petition and thereafter the respondent-Management paid the salaries on a par with the government employees. Since the appellants are insisting upon enforcement of their right through the judicial pressure, they need and seek the protection of law. We are of the view that the State has obligation to provide facilities and opportunities to the people to avail of the right to education. The private institutions cater to the need of providing educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to 12 seek enforcement of the orders issued by the Government. The question is as to which forum one should approach. The High Court has held that the remedy is available under the Industrial Disputes Act. When an element of public interest is created and the institution is catering to that element, the teacher, being the arm of the institution, is also entitled to avail of the remedy provided under Article 226; the jurisdiction part is very wide. It would be a different position, if the remedy is a private law remedy. So, they cannot be denied the same benefit which is available to others. Accordingly, we hold that the writ petition is maintainable. They are entitled to equal pay so as to be on a par with government employees under Article 39 (d) of the Constitution.” In a recent pronouncement, the Hon’ble Court in Shivaji Shikshan Prasark Mandal and others Vs. State of Maharashtra and others (2005) 13 SCC 407 has held that the teachers of provide unaided school were entitled to revised pay scales and allowance on the basis of the recommendations of the Fifth Pay Commission. Their Lordships of the Hon’ble Supreme Court have held as under: “Learned Senior Counsel appearing for the appellant Trust has contended that the Trust is not getting any aid from the Government and the teachers are not liable to be paid as per the government orders issued by the Government. It is contended that the Government order issued is not applicable to the unaided institutions. The Government order is produced as Annexure R-3 which says that keeping in view all the Central Government decisions about the Fifth Pay Commission recommendations Maharashtra State has appointed a Commission and that the revised pay scales will be implemented for the teachers and non-teaching staff of the government and non-government schools both primary/secondary/higher secondary and also teachers and non-teaching staff of the training colleges. It may also be noticed that under the Maharashtra Employees of Private Schools (Conditions of Service )Regulation Act, 1977, section 3 (1) says that the provisions of the Act shall apply to all 13 private schools in the State of Maharashtra, whether receiving any grant-in-aid from the State Government or not. Section 16 further states that the State Government may by notification in the Official Gazette, make rules for carrying out the purposes of this Act and Section 16 (2) (a) says that the State Government may by the Official Gazette prescribe minimum qualification for recruitment of employees of private schools (including its procedure); (b) their scales of pay and allowances. There is no dispute that these provisions of the Regulation Act are applicable to the appellant school. Learned Senior Counsel for the appellant contended that the appellant school is distinct as it is not receiving any aid. Even in the case of government order regarding pension, it is specifically stated that the government order is not applicable to the schools which are not getting aid from the Government. We do not think that the said government order has any application to the facts of this case. The Division Bench of the High Court was justified in holding that the appellant school was liable to pay the salary and allowances