IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.6.2009 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR Writ Petition No.604 of 2004 1.Tmt.T.Sorubarani (deceased) 2.N.Thiruganasambandam, 3.Minor T.Janani Priya, represented by her father and natural guardian N.Thiruganasambandam, 4.Master T.Sankar Balaji, represented by his father and natural guardian N.Thiruganasambandam. (Respondents 2 to 4 were substituted in the place of deceased 1st petitioner as per order dated 28.1.2005 in W.M.P.No.386 of 2005). ... Petitioners vs. 1. The Correspondent/Principal, Arokiamada Matriculation Higher Secondary School, Udumalai Road, Pollachi. 2. The Inspector of Matriculation School, Coimbatore. 3. The Director of School Education, (Matriculation), Chennai-600 006. ... Respondents Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the first respondent to pay regular scale of pay of Rs.1,400/- with other allowances for the post of B.T. Assistant from 1991 and Post Graduate scale of pay of Rs.5,900/- with other allowances from 1997 to 2001 as per direction of the second respondent in proceeding in R.C.No.581/C/2002 dated 1.4.2002. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr. N.Ravichandran For Respondents : Mr.Fr.A.Xavier Arulraj : Mr.A.Suresh Additional Government Pleader (Writ) for R2 and R3 ----- O R D E R The writ petition was originally filed by Tmt.T.Sorubarani, a teacher, who joined in the services of the first respondent school in the year 1989. Her service was terminated in the year 2001. The second respondent issued certain directions to the first respondent school with regard to fixation of pay and other benefits. To implement the same, the writ petition has been filed. Pending writ petition, Tmt.T.Sorubarani died and the legal heirs of the teacher have been impleaded as petitioners 2 to 4. 2. The brief facts of the case is as follows:- Late T.Sorubarani said to be a post graduate teacher qualified in Master of Arts and Master of Philosophy. She also passed Bachelor of Education in the year 1991-92. According to late teacher, she was paid consolidated salary of Rs.650/- per month. At the time of termination of service in the year 2001 she was drawing a sum of Rs.2,000/- as basic pay and Rs.2,098/- as Dearness Allowance. According to the deceased teacher, she is entitled to the Government scales of pay as applicable to the teacher under the Tamil Nadu Education Services. In short, the plea of the teacher was that she was paid lesser salary than what she is entitled to under law. According to the deceased teacher, several representations were made, but, in vain. The deceased teacher filed W.P.No.2218 of 2002 to redress her grievance with regard to the plea for higher salary at least on par with the Government scale of pay. The said writ petition was disposed off on 1.2.2002 directing the Inspector of Matriculation School to consider the representation and pass appropriate orders on merits. Consequent to the direction as above, the second respondent Inspector of Schools passed an order on 1.4.2002 in R.C.No.581/C/2002 directing the first respondent school to pay the Government scales of pay. To implement this order, present writ petition has been filed. First respondent has not chosen to challenge the order of the second respondent. 3. Learned counsel for the petitioners referred to the Code of Regulations for Matriculation Schools for Tamil Nadu, in particular he referred to Chapter-V, Rule 16(ii) and Chapter-VI, Rule 18(ii) and stated that the late teacher is entitled to the Government scales of pay revised from time to time and the salary paid to the late teacher by the first respondent school is far less and is contrary to the https://hcservices.ecourts.gov.in/hcservices/ above stated Regulations. According to the late teacher as stated in the affidavit, she was suffering from cancer and was operated and was under the medical management from 20.3.2001 to March, 2001. She availed leave on medical ground from April, 2001 and subsequently she was leave on loss of pay. According to the first respondent, the deceased teacher was terminated from service in the year 2001 for unauthorised absence. There is no dispute on facts. 4. The first respondent filed a counter-affidavit and stated that the first respondent school is a privately managed minority institution and cannot afford to pay the Government scales of pay. The first respondent school is a non-commercial and non-profitable institution and is being run by the charitable educational religious society. Therefore, according to the first respondent, the Code of Regulations for Matriculation Schools in Tamil Nadu, is only recommendatory in nature and not mandatory. The further contention of the first respondent is that the late teacher in this case has accepted the salary and therefore, cannot seek for higher salary on par with the Government scales of pay. 5. The short question that arise in this case for consideration is whether the deceased teacher is entitled to the benefit of pay parity as per the Government scales of pay revised from time to time. 6. In support of the contention, learned counsel for the petitioners relied upon the Apex Court's decision in Frank Anthony Public School Employee's Association – vs. - Union of India and others reported in AIR 1987 Supreme Court 311 wherein the Apex Court held in paragraphs 17 and 23 as follows:- "17. Apart from the learned Judges who constituted the Nine Judge Bench, other learned Judges have also indicated the view. In the leading case of the Kerala Education Bill, (AIR 1958 SC 956) the Constitution Bench observed that, as then advised, they were prepared to treat the clauses which were designed to give protection and security to the ill paid teachers who were engaged in rendering service to the nation as permissible regulations. The observations were no doubt made in connection with the grant of aid to educational institutions but that cannot make any difference since, aid, as we have seen, cannot be made conditional on the surrender of the right guaranteed by Article 30(1). In State of Kerala – v. - Mother Provincial, (AIR 1970 SC 2079) (supra), it was said that to a certain extent the State may regulate conditions of employment https://hcservices.ecourts.gov.in/hcservices/ of teachers. In All Saints High School v. Govt. of Andhra Pradesh, (AIR 1980 SC 1042), Chandrachud, C.J., expressly stated that for the maintenance of educational standards of an institution it was necessary to ensure that it was competently staffed and, therefore, conditions of service prescribing minimum qualifications for the staff, their pay-scales, their entitlement, other benefits of service and the safeguards which must be observed before they were removed or dismissed from service or their services terminated were permissible measures of a regulatory character. Kailasam,J., expressed the same view in almost identical language. We, therefore, hold that Section 10 of the Delhi Education Act which requires that the scales of pay 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 and which further prescribes the procedure for enforcement of the requirement is a permissible regulation aimed at attracting competent staff and consequently at the excellence of the educational institution. It is a permissible regulation which in no way detracts from the fundamental right guaranteed by Art. 30(1) to the minority institutions to administer their educational institutions. Therefore, to the extent that Section 12 makes Section 10 applicable to unaided minority institutions, it is clearly discriminatory." "23. We must refer to the submissions of Mr.Frank Anthony regarding the excellence of the institution and the fear that the institution may have to close down if they have to pay higher scales of salary and allowances to the members of the staff. As we said earlier the excellence of the institution is largely dependent on the excellence of the teachers and it is no answer to the demand of the teachers for higher salaries to say that in view of the high reputation enjoyed by the institution for its excellence, it is unnecessary to seek to apply provisions like Section 10 of the Delhi School Education Act to the Frank Anthony Public School. On the other hand, we should think that https://hcservices.ecourts.gov.in/hcservices/ the very contribution made by the teachers to earn for the institution the high reputation that it enjoys should spur the management to adopt at least the same scales of pay as the other institutions to which Section 10 applies. Regarding the fear expressed by Shri Frank Anthony that the institution may have to close down we can only hope that the management will do nothing to the nose to spite the face, merely to 'put the teachers in their proper place'. The fear expressed by the management here has the same ring as the fear expressed invariably by the management of every industry that disastrous results would follow which may even lead to the closing down of the industry if wage scales are revised. Order accordingly." Based on the above decision, learned counsel for the petitioners stated that in terms of Chapter-V, Rule 16(ii) of the Code of Regulations for Matriculation Schools, Tamil Nadu, the teacher in this case should be paid at least the Government scales of pay revised from time to time and not less which admittedly is the case on hand. 7. The first respondent does not and cannot dispute that the recognition for running the school has been granted under the Code of Regulations for Matriculation Schools, Tamil Nadu and such recognition is granted under Chapter-II, Rules 9 and 10. Therefore, Chapter-V, Rule 16(ii) automatically comes into operation and will apply to the first respondent school. 8. This Code of Regulations for Matriculation Schools, Tamil Nadu was challenged in W.P.No.197 of 1993 in Tamil Nadu Matriculation and CBSE Schools Teachers' Association - v. - State of Tamil Nadu and others reported in 2002 Writ Law Reporter 688 and the Code of Regulations for Matriculation Schools, Tamil Nadu was upheld by P.SATHASIVAM,J., as he then was. 9. The view expressed by the Matriculation Schools that they are not under law obliged to pay the Government scales of pay was rejected by the learned single Judge in the case of V.Venkatachalapathy and four others – vs. - Vellore Co-operative Sugar Mills Matriculation School rep. by its President, Vellore Sugar Mills and Post, Vellore District and two others reported in 2000(II) CTC 478 and upheld by a Division Bench of this Court in W.A.No.1962 of 2005 etc. batch in Special Officer, Salem Co-op. Sugar Mills Matriculation Higher Secondary School - v. - All Teachers Front & 2 https://hcservices.ecourts.gov.in/hcservices/ others reported in 2008 Writ Law Reporter 676 in which the Division Bench held in para 28 as follows:- "28. As per the consistent view taken by the Supreme Court and in the backdrop of the legal positions laid down, which have been illuminated in its decisions, it must be held that the Matriculation School teachers are entitled to get equal pay on par with the teachers who are working in the Government Schools. This view is judiciously settled conviction. The legally assertive expressions could never be ignored. As far as W.P.No.764 of 2001 is concerned, the non-teaching staff in the third respondent educational institutions are also entitled to get equal pay on par with their counterparts serving in the Government Schools. Therefore, the views expressed by the learned Judges in their respective orders deserve to be confirmed." The contention of the respondent is therefore, rejected. 10. Since the first respondent school is governed by the Code of Regulations for Matriculation Schools, Tamil Nadu and in view of the decisions referred to above, the first respondent has to implement the direction issued by the second respondent. The first respondent is directed to fix the scale of pay guided by Rule 16(ii) in respect of the deceased teacher Tmt.T.Sorubarani for the period in service. The first respondent is further directed to determine and pay the petitioners 2 to 4 as per their entitlement, the salary payable to the deceased teacher as above within a reasonable period of time preferably within a period of four months from the date of receipt of a copy of this order. The Writ Petition is ordered as above. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ts To 1. The Inspector of Matriculation School, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 2. The Director of School Education, (Matriculation), Chennai-600 006. 1 cc To Fr.A.Xavier, Advocate, SR.22377 1 cc To Mr.S.N.Ravichandran, Advocate, SR.22407 1 cc To The Government Pleader, SR.21570 W.P.No.604 of 2004 NSM(CO) SRA(19/6/2009) https://hcservices.ecourts.gov.in/hcservices/