IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 9090 of 2003 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- M M L SHAH HIGH SCHOOL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 9090 of 2003 MR DP KINARIWALA for Petitioner No. 1 .......... for Respondent No. 1-3 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 04/07/2003 ORAL JUDGEMENT At the outset, this Court would like to quote observations made by the Apex Court relevant to the present case, in case of D.S.Nakara V. Union of India [1983] 1 SCC 305; "14. We would like to point out that the philosophy of this Court as evolved in the cases we have referred to above is not that of the Court but is ingrained in the Constitution as one of the basic aspects and if there was any doubt on this there is no room for that after the Preamble has been amended and the Forty-second Amendment has declared the Republic to be a socialistic one. The judgments, therefore, do nothing more than highlight one aspect of the constitutional philosophy and make an attempt to give the philosophy a reality of flesh and blood. 15. Jawaharlal Nehru, the first Prime Minister of this Republic while dreaming of elevating the lot of the common man of this country once stated : "Our final aim can only be a classless society with equal economic justice and opportunity to all, a society organised on a planned basis for the raising of mankind to higher material and cultural levels. Everything that comes in the way will have to be removed gently, if possible; forcibly if necessary, and there seems to be little doubt that coercion will often be necessary." Recently also, the observations referred to above, have also been by the Apex Court in case of Balbir Kaur v. Steel Authority of India, reported in 2000 AIR SCW 1745. Certain observations of this Judgment, important to refer, are quoted as under : " These were his prophetic words about three decades back. More than a quarter of century has run out since he left us but there has yet been no percolation in adequate does of the benefits the constitutional philosophy stands for to the lower strata of society. Tolstoy wrote : "The abolition of slavery has gone on for a long time. Rome abolished slavery. America abolished it and we did but only the words were abolished, not the thing." Perhaps what Tolstoy wrote about abolition of slavery in a large sense applies to what we have done to the constitutional ethos. It has still remained on paper and is contained in the book. The benefits have not yet reached the common man. What Swami Vivekananda wrote in a different context may perhaps help a quicker implementation of the goal to bring about the overdue changes for transforming India in a positive way and in fulfilling the dreams of the Constitution fathers. These were the words of the Swami : "It is imperative that all this various yogas should be carried out in practice. Mere theories about them will not do any good. First we have to hear about them; then we have to think about them. We have to reason the thought out, impress them on our minds and mediate on them; realise them, until at last they become our whole life. No longer will religion remain a bundle of ideas or theories or an intellectual assent; it will enter into our very self. By means of an intellectual assent, we may today subscribe to many foolish things, and change our minds altogether tomorrow. But true religion never changes. Religion is realisation; not talk, nor doctrine, nor theories, however beautiful they may be. It is being and becoming, not hearing or acknowledging. It is the whole soul's becoming changed into what it believes. That is religion." 9. As a matter of fact the constitutional philosophy should be allowed to become a part of every man's life in this country and then only the Constitution can reach everyone and the ideals of the Constitution framers would be achieved since the people would be nearer the goal set by the Constitution - an ideal situation but a far cry presently." Heard learned advocate Mr.D.P.Kinariwala appearing on behalf of the petitioner - school management. #. By way of this petition, the petitioner has challenged the order passed by the Gujarat Secondary Education Tribunal at Ahmedabad in Application No.298 / 1999 dated 24th March, 2003, whereby the tribunal has allowed the said application filed by the respondent Teacher holding that applicant - the respondent No.3 is entitled to receive salaries of Assistant Teacher as per the Government Rules for the period from 1st July, 1998 to 10th May, 1999 from the school management . The tribunal has also directed that the school management shall pay the same from their own funds within a period of three months from the receipt of this judgment. #. Learned advocate Mr.Kinariwala for the petitioner has only raised the sole legal contention that the tribunal having no jurisdiction to examine this issue inasmuch as the respondent No.3 was not appointed according to the procedure prescribed under Section 35 of the Gujarat Secondary Education Act, 1974 [ for short "the Act" ]. To substantiate this legal contention raised on behalf of the petitioner, learned advocate Mr.Kinariwala has relied upon decision of the Apex Court in case of PHOOL BADAN TIWARI AND OTHER V. UNION OF INDIA AND OTHER reported in 2003 AIR SCW 2340. 2.1 Apart from above sole legal contention relying on the facts, it is also contended that the respondent No.3 was working honorary with the school management and the school management has not appointed the respondent No.3. However, it is emphasized that no appointment order was issued by the school management in favour of the respondent No.3 and therefore, since it was an irregular appointment, the respondent No.3 is not entitled to salaries in the regular scale, as has been fixed as per Government Rules. 2.2 While relying on the facts and ratio laid down in the decision of the Apex Court in case of PHOOL BANDAN TIWARI referred to above, it is contended that persons working in Handicraft Centres under a Scheme of Railway Department, who were not appointed pursuant to any rules of recruitment or orders issued by Railways, but who were employees on part time basis and who were paid a meagre amount as remuneration per month and commission on basis of work done, in such set of facts, it is held that such employees are not the Railway employees and consequently Central Administrative Tribunal would have no jurisdiction to hear their application for regularisation of their services. However, learned advocate Mr.Kinariwala relied on the observations made by the Apex Court in para-8 of the aforesaid decision. 2.3 Except the contentions recorded above, no other contention nor any other submission made by the learned advocate Mr.Kinariwala on behalf of the petitioner. #. On perusal of the order impugned in this petition, filed under Articles 226 and 227 of the Constitution, it transpires that the tribunal has examined the question which was raised by the respondent in the application filed seeking remuneration for the work which he had rendered as Assistant Teacher for the period from 1st July, 1998 to 10th May, 1999. It may be noted that the respondent No.3 had personally remained present before the Tribunal and conducted the matter being party-in-person. According to the facts discussed by the tribunal, the petitioner is the registered private secondary school and is aided by the State Government. Before the tribunal, oral evidence led by the respective parties. It has come on record that the respondent was possessing all requisite qualification of B.Sc., B.Ed. and since the post of Science Teacher was vacant in the school, Vice President and Chairman of the trust asked the respondent No.3 to work as Assistant Teacher and accordingly the respondent No.3 herein - the applicant joined duties on 1.7.1998 and work for full time workload of science teacher was taken from him and thus, the respondent No.3 taught the students of 8th, 9th and 10th Standards during the period from 1.7.1998 to 10.5.1999. It was case of the respondent No.3 that he was getting full workload and every week about 30 periods were being taken by him and a separate muster roll was being maintained for him where he was signing. It was also case of the respondent that he was sincerely attending to his duties and was also taking extra classes in the interest of students and institution and as a consequence thereof in the said year the result of the S.S.C. was 98 %. However, it is case of the respondent that he was not paid any amount towards his remuneration. Thereafter, on 20th March, 1999 the school had issued a public advertisement for filling up the said post on which the respondent was working. Pursuant to the said advertisement, the respondent No.3 made application and he was also called for interview but he was not selected and appointed. Thereafter, the applicant respondent No.3 had represented to the trust on date 12-7-1999 for payment of remuneration for the period from which he had worked and as the same was not paid, he filed application before the tribunal. Even before the Tribunal, the respondent No.3 relied upon the certificate issued by the school management indicating that the applicant was serving in the school as honorary teacher without remuneration. 3.1 It is pertinent to note that on behalf of the petitioner - school management, as such, no oral evidence was led before the Tribunal. The respondent No.3 was came to be cross examined by the petitioner. But detailed reply was submitted by the petitioner before the Tribunal. The contentions raised by the petitioner before the tribunal that the applicant was never given any appointment order to work as Assistant Teacher in the school and signatory of the document submitted by the applicant at Exh.A on record of the application, is not an authorised person. It was contended that since the post of Science Teacher was vacant in the school, with an expectation that he would be appointed and regularised on that post, the applicant himself had offered to serve in the school as Assistant Teacher on honorary basis but nobody had ever told him to do so. It was also contended in the reply filed by the school management that some of the students of the school were going to him for tuition and out of tuition the applicant was earning about Rs.2000-2500/- per month and therefore with a hope and desire of getting job in the school and also to get some money through tuitions and also, to gain some experience, the applicant on his own agreed to work in the school on honorary basis without salaries and therefore, this application demanding salaries required to be rejected. It is also contended by the school management that the applicant was called for to appear in the interview and was interviewed also, but he was not selected on merits and therefore also, he cannot have any grievance about the same. #. I have perused the order impugned in this petition passed by the Tribunal below application preferred by the applicant - respondent No.3 herein. It transpires that taking into consideration the contentions of the rival sides raised before the Tribunal and considering the oral and documentary evidence led before the tribunal, the tribunal has appreciated the merits of the application while coming to the conclusion in para-5. According to the observations made by the Tribunal, at the relevant time, a post of Science Teacher was available with the school management. It was clear before the tribunal that the applicant respondent No.3 herein, having the qualification of B.Sc., B.Ed., had worked on the said post for the period from 1.7.98 to 10.5.99. However, it was not become clear before the tribunal that whether the applicant had out of his desire on being appointed in the school, joined the school on his own on honorary basis or the school had in order to avoid the inconvenience to the students asked the applicant to discharge duties but it was undisputed before the tribunal that the applicant had worked for the period from 1.7.98 to 10.5.1999. As such, no appointment order produced by the applicant on record and therefore, the tribunal has concluded that the appointment of the applicant was never made in accordance with rules. But the fact remained that the applicant had worked for the period of 10 months in the school. On the very important aspect of "Honorary Services", the tribunal, taking into consideration the provisions of the Gujarat Secondary Education Act and the Regulations, concluded that the concept of honorary service is not recognised under the Act and the Regulations. It is also observed that if one takes services of a person, the same will have to be reimbursed and remunerated. The tribunal, however, observed that when such dispute comes to the Court and it is established that a person has discharged his duties for a particular period, then, unless the employer establishes that it was a honorary service without remuneration offered by the concerned employee, it is not possible to accept that submission. In my opinion, the Tribunal has not committed any mistake while arriving at such conclusion. 4.1 It is pertinent to note that the tribunal has rightly considered the actual working of ten months service rendered by the applicant on the "Quantum Merits Principle" means value for the labour because before the tribunal, it is not proved that the applicant had offered to serve the school without any remuneration as honorary teacher. The tribunal also considered that the applicant is holding the requisite qualifications for being appointed as a regular teacher in the subject as per the Rules. Admittedly, the respondent had served for ten months with the school management and therefore, considering the principle of "quantum merits", the tribunal has considered that the applicant would be entitled to receive remuneration for the period for which he had worked. However, tribunal has clearly concluded that the petitioner school management has not proved with the help of the legal evidence that the applicant had agreed to work without salaries and therefore, the principle of quantum merits would certainly apply in the facts of this case while awarding the remuneration for the said period. It may be appreciated that the respondent No.3 undisputedly was holding the requisite qualification for being appointed as regular Teacher as per the Rules. Thus, considering all these aspects, the tribunal has allowed the application and granted benefits to the present respondent the regular salaries prescribed by the Government from time to time for the post of Assistant Teacher for the period from 1st July, 1998 to 10th May, 1999. Thus, it is clear finding of fact and undisputed fact before the tribunal and thus, undisputedly the respondent had served in the school management for aforesaid period of ten months and in the facts and circumstances of the case, the school management cannot deny regular scale salaries prescribed by the Government from time to time, rightly held by the Tribunal. #. However, learned advocate Mr.Kinariwal for the petitioner has placed reliance on the decision of the Apex Court in case of Phool Badan Tiwari and other v. Union of India and others reported in 2003 AIR SCW 2340. This Court has gone through the facts of this case and the ratio laid down by the Apex Court in the aforesaid case. It requires to be noted that this Court is in full agreement with the ratio laid down in the aforesaid decision of the Apex Court. However, with all respects, the authority cited before this Court, would not be applicable in the facts of the present case. In the case before the Hon'ble Apex Court, the question was, whether Central Administrative Tribunal having jurisdiction to grant any relief in favour of the employees those who have worked on part time basis in Handicraft Centres under the Scheme of Railway Department who were not appointed pursuant to any rules of recruitment or orders issued by Railways. This is not the controversy in the present case. The tribunal having jurisdiction and even the jurisdiction of the tribunal was not challenged by the petitioner before the tribunal. It is observed that tribunal can direct the school management to pay difference of salaries on the basis of "quantum merit principle" and even on the principle of "Equal pay for equal work" which is recognised and permitted by the Article 14 of the Constitution of India being the fundamental rights of the citizens. However, a person who has been appointed irregularly as Assistant Teacher not in accordance with Section 35, such person cannot get any such benefit under the cover and ambit of Section 36 of the Act but that does not mean that the tribunal having no jurisdiction to examine the claim of the applicant for regular salary prescribed by the Government from time to time or difference of salaries of the Teacher while working with the school management. Therefore, with due respect, the judgement cited before this Court and reliance placed on the decision by the learned Advocate Mr.Kinariwala is not helpful to the case of the petitioner and the same is not applicable to the facts of the present case. #. Having regards to the order passed by the tribunal and considering the facts and circumstances of the case and appreciations made by the tribunal, according to my opinion, the Tribunal has rightly passed the order in favour of the respondent granting benefits of salaries as per regular scale or difference of salaries on the basis of the regular scale for the aforesaid period. The tribunal has rightly given reasonings in support of the conclusion and as such, there is no procedural irregularity by the tribunal. The finding of the tribunal based upon undisputed facts and there is no slightest error committed by the tribunal, which in any way, does not warrant any interference by this Court while exercising the jurisdiction under Article 226 and 227 of the Constitution and therefore, there is no substance at all in the present petition and the same deserves to be rejected at the threshold accordingly. 6.1 Therefore, considering the appreciations made by the tribunal and the undisputed fact that the respondent No.3 had worked for the period of ten months upto the date of termination of his services and considering the Regulation 24 of the Gujarat Secondary Education Regulations, 1974, there is no doubt that the respondent No.3 is entitled to regular salary as per the pay scale fixed by the Government from time to time. Thus, the tribunal has rightly directed the petitioner to pay the salaries for said period for which the respondent No.3 had actually worked and therefore, in my opinion, the tribunal has not committed any error while passing such order. On the contrary, when it is not proved before the tribunal that the applicant had not worked as honorary, it can be said that the exploitation of the respondent No.3 at the hands of the petitioner for aforesaid actual working period, has been rightly appreciated and dealt with properly while awarding the salaries in accordance with regular scale for the period the applicant actually worked with the petitioner management. Therefore also, on this count, no any error committed by the Tribunal and as such, no interference is required while exercising the jurisdiction under Articles 226 and 227 of the Constitution of India and hence, there is no substance in the present petition which requires to be rejected accordingly. #. However, before parting with this judgment, this Court would like to make some observations which has come to the notice of this Court while dealing with such matters day to day and therefore, intends to pass certain directions on the State. It is well recognised under the Rules that the schools are given recognition after about five years as per the grant-in-aid code Rules. Initially, the schools are not given grants by the Government and therefore, salaries to the employees which mostly include the Teachers, are required to be paid by the school from their own funds. Therefore, the modus operandi of several schools as noticed by this Court, in several cases that initially for about a period of five years, they will continue the school by engaging teachers on fixed remuneration and in many cases, salaries are not being paid or salaries are not paid in accordance with Rules before the schools receive the grants from the Government. Ultimately, in many cases, this practice has, given rise to exploitation of the teachers in the entire field of education. It is noticed that the modus operandi of the school management is to first retain the staff including the teachers not putting them in regular pay scale salaries as prescribed by the Government from time to time and the result thereof, the school management used to pay fixed salary of Rs.1000 - 2000 per month to the teachers. It is known to all that the teachers are the first parents to build up well manner society and they are the foundations of construction of the well educated society and the nation as a whole. But because of the unemployment in the State and the Country, such Teachers are surrendering to the terms of the management and this precarious situation has been exploited by the school management by paying them fixed salary to the teachers for a period about five years. This is not all so. The most disturbing modus operandi of the some of the school management which has come to notice that such school managements who are about to receive the grant-in-aid from the Government, used to give advertisement for the posts of such Teachers for regular appointment as per provisions of Section 35 of the Gujarat Secondary Education Act, 1974. In pursuance of such advertisements given by the school management, the teachers who have really toiled in the interest of the students and the institution as a whole and really worked hard to build up the reputation of the school to enable the school management to get grant-in-aid, apply in pursuance of such advertisements. But in most of the cases, it is evident that such teachers who are already working and teaching the students of the very school, are being called for to appear before the selection committee but these teachers are not being selected by the Selection Committee. This Court fails to understand as to why, all such teachers are not being appointed as per the prescribed procedure under Section 35 of the Act at the out set and initial stage of commencement of the school and why fresh teachers are being appointed at the verge when the school management is about to receive the grants from the Government. The usual conduct, trend and the strategy of many school managements, as noticed, not to select such employees who are already working during last five years with the very school management. I fail to understand the situation and the conduct of the school management that when the very school management which is already experienced and satisfied with the work of such employees, as to why such employees and / or teachers are not being selected by the committee in the