IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA L.P.A. No. 48 of 2004. Judgment reserved on 9.7.2008 Decided on : 25.7.2008 St. Paul’s Senior Secondary School, Palampur & another …… Appellants. VERSUS State of H.P. through Secretary (Education) and others ……. Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting? For the appellant: S/Sh. Rajnish Maniktala & D.N. Sharma, Advocates. For the respondents: S/Sh. P.K. Sharma, Addl. A.G., with Mr. P.M. Negi, Dy. A.G. for respondents No. 1 & 2. S/Sh. Ajay Kumar & Vikas Bhardwaj, Advocates, for respondents No. 3 to 6. Surjit Singh, Judge This Letters Patent Appeal is directed against the judgment, delivered in CWP No. 1038 of 1996. The Writ Petition was filed by 34 teachers working in St. Paul’s Senior Secondary School, Palampur, District Kangra (appellant No. 1). During the pendency of the writ petition, thirty out of original thirty-four writ Whether reporters of Local Papers may be allowed to see the Judgment? …2… petitioners applied for deletion of their names. Their prayer was granted vide order dated 3.12.2003. Remaining four writ petitioners are respondents No. 3 to 6, in the present appeal. Besides St. Paul’s Senior Secondary School (appellant No. 1), Church of North India, Amritsar through Bishop, Church of North India is also an appellant, as the appellant School is under its control. 2. Besides impleading the present appellants as respondents No. 3 and 4, writ petitioners arrayed the State of Himachal Pradesh through Secretary (Education) and Director (Secondary Education) H.P. Shimla as respondents No. 1 and 2 respectively. Reliefs claimed by them were as follows:- “(a) Directing the respondents 1 to 4 to pay to the petitioners salaries which are paid to their counterparts in Government schools, privately managed aided schools in terms of clause 45 (g) of the Education Code and further directing the respondents 1 and 2 to enforce 45 (g) in so far as the respondents 3 and 4 are concerned. (b) Directing the respondents to pay salary and wages to the petitioners at par with Government schools teachers and teachers of aided recognized schools including dearness allowance, interim relief, group insurance, hill compensatory allowance, house rent allowance, leave travel concession, leave encashment, gratuity, provident fund, pension, medical reimbursement etc. (c) Directing the respondents 1 & 2 to enforce the provisions of Appendix III of Education Code and declaring such Code as applicable to all the schools which are recognized, whether they are receiving aid or not and further prohibiting and restraining the …3… respondents 3 and 4 from resorting to the arbitrary practice of hire and fire policy adopted by it. (d) Directing respondents 3 and 4 to place upon this Hon’ble Court records relating to the appointment and salary distribution to the petitioners, the accounts maintained by it in terms of collection of fees etc. and further directing respondents 1 and 2 to place before this Hon’ble Court the records relating to the inspection of schools as provided for in the Code. (e) Any other writ order or direction which this Hon’ble Court may deem just and proper in the facts and circumstances of the case may also be issued in favour of the petitioners and against the respondents. (f) The petitioners humbly pray that the cost of the petition may be awarded in favour of the petitioners and against the respondents.” 3. Facts and grounds on which the aforesaid reliefs were sought, may be summed up thus. St. Paul’s Senior Secondary School, Palampur was established by Keneddy Mission in the year 1923. Initially the school had two classes, i.e. IX and X. Later on middle classes were added to it. In the year 1962 it was made a Higher Secondary School. In the year 1993 the school switched over to 10+2 system of education. The school had been receiving grant in-aid from successive Governments, upto the year 1979. Initially it was the British Government from which grant in-aid was received. Later on Punjab Government used to pay the grant in- aid, as Palampur was part of the erstwhile State of Punjab. After reorganization of the erstwhile State of Punjab, the school had been receiving grant in-aid from the Himachal Pradesh Government upto the year 1979. The Government of Himachal Pradesh has …4… formulated Education Code, under which grant in-aid is given to privately managed recognized schools. According to the said Code, grant-in-aid used to be given by the Government upto the extent of 95 per cent expenditure of recognized private schools. However, there was an upper limit of quantum of grant in-aid. Because of that limit, some schools had not been getting grant in- aid, equivalent to 95 per cent of the total expenditure, including salary of the teachers, with the result that the schools were unable to pay salary to the teachers, equivalent to the salary paid by Government to the teachers employed in its schools. 4. Two writ petitions were filed in this Court in the year 1989, which were registered as CWP No. 413 and CWP No. 414 of 1989, by H.P. State Recognized and Aided Schools Management Committees and some teachers of those schools seeking a direction to the State Government to pay grant-in-aid equivalent to 95% expenditure incurred by the recognized schools, and to do away with the upper limits of quantum of grant-in-aid. Those writ petitions were disposed of, vide judgment dated 9.9.1992 and the following directions were issued:- “From the aforesaid discussion, we are of the opinion that the State cannot pay grant-in-aid as it may choose. It has to do so in discharge of its constitutional obligation. It also flows out of the conjoint reading of the scheme of the Articles of the Education Code to the extent of 95%. In case the State is permitted to run away from this obligation, it would be utmost difficult for these institutions to survive. It cannot shirk its …5… constitutional obligation by asserting that it would not be in a position to meet the huge financial burden. Constitutional obligation is supreme than the plea of financial constraint. The management is not in a position to pay the enhanced salary to the petitioners since it is not in a position to do so beyond 5 per cent of the expenditure, the burden has obviously to fall on the State. The present system of payment is absolutely arbitrary and irrational. It not only militates against the intendment of the constitutional provisions but also defeats the main objects of the Education Code itself. The petitioners are entitled to emoluments payable to their counter-parts in the Government schools and the expenditure has to be met in the ratio of 95 per cent (Government grants) and 5 per cent by the managements. By paying them less means depriving them of their adequate livelihood which is one of the essentials of right to life under Article 21 of the Constitution of India. Now, the question arises, from which date it should be paid? Normally, the petitioners are entitled to emoluments revised from time to time and received by their counter-parts, but noticing that it would create huge burden on the State Exchequer, learned counsel for the petitioners submitted that the petitioners would be satisfied in case the State and the management are directed to pay the same from 13th February, 1988. We think that by this offer the burden on the State can be minimized to a great extent. Accordingly, we allow the writ petitions and direct the State Government and the managements to …6… work out the emoluments of the petitioners in the ratio stated above within a period of four months and pay the same to the petitioners.” 5. State of Himachal Pradesh went in appeal to the Hon’ble Supreme Court. Appeal was dismissed, vide judgment dated 10.5.1995. The operative part of the judgment delivered by the Hon’ble Supreme Court reads as follows:- “We, therefore, agree with the High Court that the imposition of the maximum limit for the disbursement of grants-in-aid to the respondents was arbitrary and unjustified in the facts of the present case. As mentioned above, the respondent – schools are recognized, aided and are under deep and pervasive control of the State Government. The Government is under an obligation to provide the grants-in-aid to the respondent – schools as envisaged under the scheme of the Rules. The High Court has directed the State of Himachal Pradesh to pay 95% grants-in-aid with effect from February, 1988. The High Court judgment was delivered on 9.9.1992. We modify the High Court judgment to the extent that the enhanced grants-in-aid be paid to the aided schools with effect from 1.4.1993.” 6. In the aforesaid two writ petitions State Government filed a directory of all the recognized and aided schools numbering 144. Name of appellant No. 1 also figured therein. 7. A petition, being CMP No. 3892 of 1995 was filed by some of the teachers of 144 schools for the implementation of the aforesaid judgment of this Court, as modified in appeal by the …7… Hon’ble Supreme Court. Following order was passed in that C.M.P. on 17.5.1996:- “Therefore, we direct that current salary of all teachers and allied staff of all the 144 schools, as per judgment of the apex court, shall be paid on the pay day in the month of June, 1996. This shall be done by the State Government by sending their representatives to the schools. The representatives shall go for the first time for such payment and subsequently, it is not necessary to go. If any Managing Committee of any school refuses to accept grant-in-aid from the State Government, we direct that the said Managing Committee shall pay the salary to all the members of the teaching staff and allied staff the salary as per the State Government. The respondents shall inform this Court the names of the schools / managing committees refusing to accept such grants for issuing appropriate directions by this Court, if necessary by taking suo motu action. The arrears shall be paid by 30th September, 1996.” 8. In compliance with the aforesaid order dated 17.5.1996, appellant No. 1 was offered grant-in-aid equivalent to 95% of salary of its teachers, but it refused to accept the same, vide certificate dated 13.12.1995 Annexure PE. As per contents of the certificate, appellant No. 1 had been paying salary to its teachers at appropriate rate and declared that it would continue to pay at such rates in future also and so it did not want to accept 95% grant-in- aid, towards expenditure on the salary of staff. …8… 9. Appellant school then filed an application in this Court, seeking deletion of its name from the directory of 144 schools, as also the list of schools prepared by the Government for payment of grant-in-aid, pursuant to the orders passed by this Court in CWP No. 413 and CWP No. 414 of 1989, as modified by the Hon’ble Supreme Court, in appeals No. 1233 and 1234 of 1993. That application was allowed vide order dated 9.10.1996, but right was reserved to the teachers and other staff of the school to approach the Court in case they felt that they were entitled to financial benefits under the judgment of this Court in the aforesaid Civil Writ Petitions, as modified by the Hon’ble Supreme Court. 10. Teachers of appellant No. 1 school were not being paid salary equivalent to the salary received by their counter-parts working in Government schools. On coming to know that appellant No. 1 had refused to accept the grant-in-aid offered by the Government in accordance with the directions of this Court as also the Hon’ble Supreme Court, despite the fact that they were not being paid salary equivalent to their counter-parts working in the Government schools and in private schools getting grants-in-aid in terms of the aforesaid directions of this Court and the Hon’ble Supreme Court, they filed CWP No. 1038 of 1996. It was alleged that the petitioners had been doing the same kind of work as their counter-parts in Government aided schools and that their school was also a recognized school and grant-in-aid having been ordered to be paid to it by this Court and the Hon’ble Court, as aforesaid, their school (appellant No. 1) was liable to pay them salary at the …9… same rates at which their counter-parts in Government schools were being paid. It was alleged that payment of salary to them at rates lower than those at which their counter-parts in Government schools / Government aided schools were paid, violated the rule of equality besides infringing their fundamental right guaranteed by Article 21 of the Constitution of India. Decision taken by the school, not to accept grant-in-aid, was alleged to be bad and violative of their aforesaid fundamental right. 11. Respondents No. 1 and 2, i.e. the State of Himachal Pradesh and the Director of secondary Education, filed a very brief reply in which it was stated that they had offered grant-in-aid, equivalent to 95% of the salary of its staff to appellant No. 1 school, but its authorities refused to accept the same and filed affidavit Annexure-RA of its Principal Mrs. P.Goldsmith, in which it was declared that the school or its Principal was not party to the case, in which direction had been given for payment of grant-in-aid equivalent to 95% of the salary of the staff of the school, nor did she (the Principal) want to take the grant-in-aid from the Government. 12. Present appellants, who were made respondents No. 3 and 4 in the said writ petition, claimed that appellant No. 1 school was a minority institution and was, therefore, entitled to protection, under Articles 29 and 30 of the Constitution of India and that in exercise of its fundamental rights, the school had the option to decide whether to accept any grant-in-aid from Government, or not. It was also alleged that the name of appellant No. 1 school had …10… wrongly been shown in the directory of the schools recognized by the Government and in receipt of grants-in-aid from the Government, as the school had not been receiving any grant-in-aid since 1979. It was also stated that the writ petition was not maintainable as appellant No. 1 was neither “State” within the meaning of Article 12 of the Constitution of India nor was it an instrumentality of the State. It was pleaded that the claim of the writ petitioners was based on Himachal Pradesh Education Code, which stood rescinded long before the filing of the writ petition. Charts showing the initial salary of some of the writ petitioners and the increase, which took place with the passage of time, were also submitted along-with the reply, with a view to demonstrating that the salary of the writ petitioners was just marginally lower than that of their counter-parts in Government schools and Government aided private schools. It was also stated that the appellant school was not in a position to pay to its staff salary equivalent to their counter- parts in Government institutions, because of financial constraints, and that in case salary at the same rates as payable to Government teachers and other staff was to be paid, the school will have no option, but to close down. 13. On merits it was admitted that the school was established in 1993 and had been receiving grant-in-aid continuously upto the year 1979 from successive Governments. It was, however, not explained why did it (appellant No. 1) decide not to accept grant-in-aid from the Government after 1979 nor was it indicated how the acceptance of the offer of Government of …11… Himachal Pradesh for grant-in-aid, pursuant to the directions issued by this Court and the Hon’ble Supreme Court, could have affected appellant’s minority status or interfered with the protection guaranteed, under Articles 29 and 30 of the Constitution of India. It was admitted that grant was offered but refused. Correctness of certificate Annexure-PE to the effect that teachers of the school were being paid appropriately and grant offered by the Government was not acceptable, was not disputed. 14. Learned Single Judge, vide impugned judgment dated 11.10.2004, allowed the writ petition and directed the present appellants (respondents No. 3 and 4 in the writ petition) to pay to the petitioners salaries and allowances, at par with their counter- parts, working in Government schools, from the dates they were entitled to and at the rates admissible from time to time. Arrears were directed to be paid within three months from the date of judgment. Appellants are aggrieved by the aforesaid judgment and direction contained therein. So they have preferred the present appeal. 15. Learned counsel representing the appellants made the following submissions to buttress the appellants’ plea that the judgment of the learned Single Judge is liable to be reversed, by acceptance of the present appeal. (i) Appellant No. 1, being a private unaided school, enjoying the status of minority institution within the meaning of Articles 29 and 30 of the Constitution of India, writ of mandamus or for that matter any other …12… writ or direction cannot be issued to it, under Article 226 of the Constitution of India. (ii) Respondents No. 3 to 6 (teachers employed by the school) claimed pay equal to their counter-parts in the Government schools on the principle of equal pay for equal work (which principle was not applicable in the present case, on account of the said respondents being employees of a private unaided school) and not on the strength of the direction of this Court in Writ Petitions No. 413 and 414 of 1989 as modified by the Hon’ble Supreme Court in appeal and, therefore, the learned Single Judge was not justified in allowing the writ petition and granting relief to the said respondents (teachers) on the strength of the aforesaid judgment of the High Court delivered in CWPs No. 413 and 414 of 1989. (iii) Direction that was given by the High Court in Writ Petitions No. 413 and 414 of 1989, as modified by the Hon’ble Supreme Court vide judgment dated 10.5.1995, was applicable to only those schools which were in receipt of the grant-in-aid from the Government and since the appellant school had discontinued to receive grant-in-aid long before the filing of the Writ Petitions No. 413 and 414 of 1989, leave alone the passing of judgment by the High Court in those Writ Petitions, direction for payment of salary to the …13… teachers on par with Government teachers, could not have been issued on the strength of the judgment delivered in those writ petitions. (iv) Appellant No. 1 had filed a petition being CMP. No. 3911 of 1996 seeking deletion of its name from the directory of 144 schools because of its being not in receipt of grant-in-aid which was allowed, vide order dated 9.10.1996 and the effect of the said order is that the appellant school is not bound by the judgment delivered in the aforesaid Writ Petitions No. 413 and 414 of 1989 as modified by the Hon’ble Supreme Court, in appeal. (v) Offer of grant-in-aid made by the Government was declined because that would have affected the status of appellant No. 1 as minority educational institution and consequently deprived it of the protection guaranteed by Articles 29 and 30 of the Constitution of India. (vi) Doctrine of equal pay for equal work does not apply in the present case. 16. Elaborating the first submission, learned counsel representing the appellants, argued that appellant school is not a “State” within the meaning of Article 12 of the Constitution of India nor an authority performing the functions of a State, but it is only a private school and thus its status is no better than that of a private person and hence no writ or direction, under Article 226 of the …14… Constitution of India lies against it. When the attention of learned counsel was drawn to the provision of Article 226 of the Constitution of India, a bare reading of which suggests that writ or any direction can be issued to any person, which term implies even a private person and not only for the enforcement of fundamental rights but also for any other purpose and also to a catena of judgments of the Hon’ble Supreme Court to the effect that writ can be issued even to a private person engaged in performance of public functions or public duty, he submitted that the work of imparting education, being performed by appellant No. 1, cannot be equated with a function or duty of public nature. He, however, could not cite any judicial precedent in support of his contention that teaching or imparting of education is not a work of public nature or it is not a public function or public duty. Judgments, he placed reliance upon in support of his submission on the point, pertain to legal entities, which were engaged in commercial activities or business or trade with the sole object of profit making. 17. First judgment he relied upon is reported in (2003) 10 SCC 733, Federal Bank Ltd. Vs. Sagar Thomas and others. In the said judgment no doubt it was held that writ could not be issued against the Federal Bank Ltd., which was a private bank, in a matter pertaining to service dispute of its Manager, but it was not because of the reason that it was a private body. It was held that the function being performed by the bank was not of public nature, but private nature, as the object was to earn profit, for the promoters of the bank. In this very judgment it was held, by relying upon a …15… number of judgments, that a writ petition under Article 226 of the Constitution of India may be maintainable, even against a private body, if such private body is engaged in discharge of a public duty or positive obligation of public nature. 18. Next precedent, upon which the learned counsel placed reliance is G. Bassi Reddy vs. International Crops Research Institute and another, (2003) 4 SCC 225. In the said case services of some employees of a private body, engaged in agricultural research, were terminated. Termination orders were challenged by invoking the jurisdiction of High Court, under Article 226 of the Constitution of India. Question arose whether the writ was maintainable. It was held that the primary activity of the institution was to conduct research and training programme in the sphere of agriculture, purely on voluntary basis, and as such the service was not of public nature; therefore, writ petition was not maintainable. 19. Appellant in the present case is engaged in the activity of imparting education to the children upto 10+2 level. Hon’ble Supreme Court in Mohini Jain vs. State of Karnataka and others, (1992) 3 SCC 666, has held that every citizen of the country has a right to education under the Constitution and the State is under obligation to arrange for the enjoyment of this right, either by establishing educational institutions or by recognizing educational institutions. It has further been held that when the State Government grants recognition to private educational institutions, it creates and fulfils its obligation, under the Constitution. …16… 20. It is not in dispute that appellant No. 1 is a recognized school, though it is a different matter that it opted not to receive grant-in-aid, much before the passing of judgment by this Court in CWPs. No. 413 and 414 of 1989 and refused to accept grant-in-aid, when offered in compliance with the aforesaid judgment. 21. The view taken in Mohini Jain’s case (supra) has been reiterated in State of H.P. vs. H.P. State Recognised & Aided Schools Managing Committees and others, (1995) 4 SCC 507. 22. Contention was raised on behalf of the appellants that a writ petition under Article 226 of the Constitution may be maintainable against a private educational institution, in receipt of grant-in-aid from the Government, because in such a case the Government