IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7139 of 2004 1. BIHAR MINORITIES/AIDED PRIMARY TEACHERS ASSOCIATION, PATNA, THROUGH ITS PRESIDENT, NAMELY, BRAJ KISHORE RAI, S/O SHRI BHANU PRASAD RAI, R/O VILLAGE-NANHAULIA, P.S.- BETTIAH MUFFASIL, DISTRICT-WEST CHAMPARAN, BETTIAH. 2. CHARLEY LAZARUS, S/O LATE LAZARUS OSTA, R/O MUHALLA-CHRISTIAN QUARTER BETTIAH, WEST CHAMPARAN, BETTIAH. 3. MD.ALI, S/O LATE MD.HABIB, R/O VILLAGE- LALPARSA, P.S.-SIKTA, DISTRICT-WEST CHAMPARAN, BETTIAH. …………………PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. THE COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF PRIMARY, SECODNARY AND ADULT EDUCATION, NEW SECRETARIAT, BIHAR, PATNA. 3. THE COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF FINANCE, OLD SECRETARIAT, GOVERNMENT OF BIHAR, PATNA. 4. THE DIRECTOR, PRIMARY EDUCATION, NEW SECRETARIAT, BIHAR, PATNA. 5. THE DISTRICT SUPERINTENDENT OF EDUCATION, WEST CHAMPARAN, BETTIAH. …………………RESPONDENTS. ----------- For the Petitioners : Mr.Ganesh Prasad Singh, Sr.Adv. and Mr.Sanjay Kumar, Adv. For the State : Mr.Shyam Kihsore Sharma, G.P.-V and Mr.Mayank Rukhiyar, AC to GP-V. ------------ 13 28.10.2010 Heard learned senior counsel for the petitioners and learned Government Advocate No.V for the respondents. Petitioner no.1, which is an Association representing the teachers of Minority Aided Primary Schools, and two teachers have filed this writ application in a representative capacity praying for a 2 direction to the respondents to grant the monetary benefit of revision of 5th and 6th pay scales to the teachers of the Minority Aided Schools also with effect from the dates the same have been granted to the teachers of the other Aided Schools. The contention of learned senior counsel for the petitioners is that, though the teachers of Aided Minority Schools have been allowed the 5th Pay Revision and 6th Pay Revision, but the monetary benefits of the same have been made admissible to them from subsequent dates than the dates the same was made admissible to the teachers of other Aided Schools and teachers of Nationalized Schools, inasmuch as, the monetary benefit of 5th Pay Revision, which was implemented from 1.1.1986, was granted to the teachers of Nationalized Schools from 1.4.1989, whereas the same has been granted to the teachers of Aided Schools with effect from 31.3.1993 by Government Resolution No.3268 dated 5.11.1993 (Annexure- 5). Similarly, the monetary benefits of 6th Pay Revision, which was implemented with effect from 1.1.1996, was granted to the teachers of Nationalized Schools from 3 1.4.1997, whereas the same was granted to the teachers of Aided Schools with effect from 1.7.2005 by Resolution of the Government No.470 dated 4.3.2006 (Annexure-9). Learned senior counsel for the petitioners submits that this is discriminatory and violative of Article 14 and 16 of the Constitution of India. He submits that when once the Aided Schools have been equated with the Nationalized Schools for granting them the 5th Pay Revision and 6th Pay Revision, there cannot be any justification for grant of monetary benefits of the same from different dates. In this context, he relies upon a judgment of the Apex Court in the case of Haryana State Adhyapak Sangh & Ors. Vs. State of Haryana and Others (as reported in AIR 1988 SC 1663) and also the subsequent judgment of the Apex Court between the same parties clarifying the position (as reported in AIR 1990 SC 968). He has also referred to a judgment of this Court dated 19.9.1997 passed in CWJC No. 5336 of 1996 to contend that the offending part of the said resolution dated 5.11.1993 already stands quashed by this Court and, therefore, the teachers of the Aided 4 Minority Primary/Middle Schools are also entitled for the monetary benefit of the scales from the dates they were granted to the teachers of Nationalized Schools. When this judgment of this Court was referred to by learned senior counsel for the petitioners on the earlier date, this Court, noticing it, requested the learned counsel for the State to hold a meeting with the officials of the Department, discuss the matter in the light of the said order of this Court and file an appropriate counter affidavit. Accordingly, an affidavit has been filed today. In the affidavit, for treating the teachers of Non Government Minority/ Aided Elementary Schools differently, certain grounds have been mentioned in paragraph 8. For easy reference paragraph 8 of the counter affidavit filed today is reproduced herein below:- “That the answering respondent most humbly submits that the following reasons may well form reasons for classifying the Non Government Minority/Aided Elementary Schools different from the Government Schools:- (a) The teaching & non-teaching Staff of Non Government Minority/Aided Elementary Schools are provided salary in form of „Grant‟ by the State, whereas the teaching and non-teaching staffs of Government Schools are Government 5 Employees as such they are provided salary as per recommendation of finance commission. (b) The mode of appointment of teachers in Non Government Minority/ Aided Elementary Schools and Government Schools is different. The teachers of Non Government Minority/Aided Elementary Schools are appointed directly by their respective managing committee whereas in case of the Government Schools it is under the control of the Commission/the employment units of the Panchayat Raj. (c) The State Government has Zero Control over the teachers of the Non Government Minority/Aided Elementary Schools, whereas the teachers of the Government Schools are under the direct control of the State Government. (d) The Non Government Minority/ Aided Elementary Schools are established by the linguistic and religious minority under the provisions of Article 29 & 30 of the Constitution for strengthening their interest whereas the Government Schools are established under general principal of law and the teachers of the Government Schools are Government Servant with different service conditions. (e) The numbers of Non Government Minority/Aided Elementary Schools are 108, out of which there are 56 religious and linguistic minority and there are 52 Non- Government Aided Elementary Schools under general category. (f) The Non Government Minority/Aided Elementary Schools were recognized w.e.f. 31.03.78 whereas the Non-Government Aided Elementary Schools under general category were recognized w.e.f. 31.03.68. (g) The teachers of Non Government Minority/Aided Elementary Schools are not entitled for G.P.F., Group Insurance Benefits and Leave 6 Encashment after superannuation like the teachers of the Government Schools, however, teachers of both kinds of the schools are entitled to equal pay scale, gratuity, pension, medical benefits, interim benefits, house allowances and etc at par.” The differential treatment meted out to the teachers of the Aided Schools and Aided Minority Schools is based on the resolution of the Government contained in memo no.3268 dated 5.11.1993. The subject matter of the said resolution may be reproduced herein below :- fnukad 31@3@1978 rd izLohd`r ,oa vYila[;d ?kksfÔr lgk;rk izkIr vYila[;d izkjafHkd fon~;ky;ksa ,oa frfFk 31@3@1968 rd izLohd`r lkekU; dksfV ds lgk;rkizkIr izkjafHkd fon~;ky;ksa ds f’k{kdksa ,oa f’k{kdsÙkj deZpkfj;ksa dks ftudk r`rh; ,oa prqZFk iqujhf{kr osrueku esa osru dk fu/kkZj.k Øe’k% funs’kd (izk0 f’k0) ,oa vkUrfjd foÙkh; lykgdkj dh lgefr ls funs’kd (izk0 f’k0) fcgkj }kjk fd;k tk pqdk gS] dsUnzh; osrueku esa iape iqujhf{kr izfrLFkkuh osrueku esa osru fu/kkZj.k ds laca/k esaA The subject matter of the resolution as quoted above and contents of the resolution clearly shows that the teachers of the Aided Schools and Aided Minority Schools were held to be entitled for revision of their pay scales in terms of 5th Pay Revision at par with the teachers of Nationalized Schools. In fact, in so many words resolution no.6021 and 6022 both dated 18.12.1989 were made applicable in the case of teachers of Aided 7 Schools and Aided Minority Schools also. The only differentiation made in the resolution was contained in sub-paragraph 4 of the paragraph 2 of the resolution which reads as follows :- mi;qZDr dksfV ds f’k{kd@f’k{kdsÙkj deZpkfj;ksa ds osru dk fu/kkZj.k 1@1@86 ds izHkko ls fd;k tk;sxk ijUrq vkfFkZd ykHk fnukad 1@4@93 ls ns; gksxkA fnukad 1@1@86 ls 31@3@93 rd dh vof/k ds vUrosZnukfn ds cdk;s dk Hkqxrku ugha fd;k tk;sxkA The above quoted sub-paragraph 4 shows that though the fixation of pay in the revised scales was made admissible to the teachers of Aided Schools and Aided Minority Schools with effect from 1.1.1986, the monetary benefit of the same was made admissible to them from 1.4.1993 only. This resolution was challenged by some of the teachers of some Aided Middle Schools in CWJC No.5336 of 1996. The stand of the respondents made out in the counter affidavit in the case was noticed by the Court, which was similar to the stand taken by the respondents in this case as quoted above. After hearing the parties a learned Single Judge of this Court found that the issue stands clearly settled by the Apex Court in the cases of Haryana State Adhyapak Sangh (supra). Finding the claim of the writ 8 petitioners of the case similar to one as before the Apex Court in the said judgments, learned Single Judge allowed the writ application by order dated 19.9.1997 and in clear terms set aside the portion of the resolution dated 5.11.1993 (as quoted above) by which it was ordered to pay monetary benefits to the teachers and other employees of Aided Primary/Middle Schools with effect from 1.4.1993. The learned Single Judge also clearly held that the petitioners and other similarly situated teachers and employees of Aided Primary/Middle Schools were entitled for the benefits of revision of scale of pay with effect from 1.3.1989 itself. The findings of the learned Single Judge has been quoted in the earlier order in this case dated 28.09.2010 and is again being reproduced here below :- “I set aside the portion of the impugned resolution dated 5.11.1993, by which it has been ordered to pay monetary benefits to the teachers and other employees of Aided Primary/Middle Schools with effect from 01.04.1993. I hold that the petitioners and others similarly situated teachers and employees of Aided Primary/Middle Schools are entitled for revision scale of pay of which fixation is to be made with effect from 01.01.1986 and arrears of salary is to be made with effect 9 from 01.03.1989.” Thus, it is clear that the said sub- paragraph 4 of paragraph 2 of the resolution stands quashed by this Court. It has been fairly disclosed in the counter affidavit filed today that the respondents had preferred an appeal against the said judgment, vide LPA No.1431 of 1998, before a Division Bench of this Court which was dismissed on 10.09.2008. Therefore, clearly, the said judgment of the learned Single Judge has attained finality and has also been implemented. Now the question is if the said judgment has been implemented and the teachers of the Aided Schools have been granted the benefits of the pay revision from the date it has been granted to the Government teachers i.e. from 1.3.1989, then under what circumstances the teachers of Minority Aided Schools can be deprived of the same by taking aid from the said sub-paragraph 4. The Resolution contained in memo no. 3268 dated 5.11.1993 dealt with grant of revised pay scales to teachers of Aided Schools as well as Aided Minority Schools, both. By this Resolution teachers of all Aided Schools, 10 Minority as well as other general schools were clubbed together for grant of the said benefit. The said sub-paragraph 4 of paragraph 2 of the resolution applied to both of them equally. Hence, when once the said sub- paragraph 4 of paragraph 2 of the resolution dated 5.11.1993 stands quashed by this Court, obviously, the same stands quashed in respect of teachers of Minority Aided Schools also. Hence, no discrimination can be made in between the teachers of Minority Aided Schools and General Aided Schools in respect of implementation of the said judgment of this Court. The grounds for discrimination sought to be made out in paragraph 8 of the counter affidavit filed today is substantially covered by the judgment of the learned Single Judge wherein similar stand made out in the counter affidavit was noticed but not accepted in the light of the authoritative pronouncement of the Apex Court in the two judgments rendered in the case of Haryana State Adhyapak Sangh (supra). Nevertheless, to be fair to the respondents, it is appropriate that this Court 11 should consider the grounds as made out in the said paragraph 8, as extracted above. Now so far as reason for classification made in sub- paragraph (d) is concerned, this Court wonders why the same was not raised by the respondents to deny admitting any Minority School for grant-in-aid ? Why they were put at par with the other Non-Government Aided Schools at the first instance itself ? Why by Annexure – 5 pay-scales of all the teachers of all the Aided schools, Minority as well as General, were revised as per the 5th pay revision and at par with the teachers of Nationalized Schools? The deponent of the affidavit, who is Director, Primary Education, and not the Principal Secretary, as directed by this Court by earlier order, should have kept in mind, before raising the objections, as in the said paragraph 8, that in this case the question is only in respect of different dates of grant of monetary benefits of pay-scales, which have been granted by the Government itself, and nothing else. Admittedly (as accepted in sub- paragraph g) in the matters of pay-scale etc. teachers of both Aided schools and Government schools are being treated at par, and the 12 (same) salary is released in the form of „grant‟ (as admitted in sub-paragraph a), then why differentiation in date of implementation only ? The statement of sub-paragraph (b) and (c) are not quite correct. All appointments in Minority Schools also have to be made in accordance with Government rules in respect of eligibility, qualification and mode of appointment and the service conditions, including pay etc. have to be fixed as per the guidelines laid down by the Government, failing which Government is always at liberty to stop the grant. Statements contained in sub-paragraph (e) and (f) are hardly relevant for the issues raised in the case. It must be borne in mind by all concerned that, to successfully meet a challenge to violation of Article 14 of the Constitution of India, the impugned action of the authorities must establish two things, namely that the action was based on some „intelligible differentia‟ and that the said differentia has some „nexus with the object‟ sought to be achieved by the impugned action, failing which the action has to be held arbitrary and discriminatory. Even if the Director, Primary Education has tried 13 to make out some „intelligible differentia‟ between two categories of schools, he has completely failed to show any „object‟ which was sought to be achieved by fixing different dates for grant of monetary benefits of the pay-revision in respect of the said two categories of schools. It may be pointed out again that, in the matter of implementation of pay-scales, the schools are being treated at par, it is only the date for grant of monetary benefits where differentiation is sought to be made. The respondents have completely failed to point out any rationale behind the same. Hence, the same has to be held arbitrary and discriminatory. Moreover, the matter stands settled by the said judgment of this Court, which has admittedly now become final. The same, therefore, has to be applied in the case of Minority Aided Schools also. In the circumstances, this Court does not find any justification in treating the teachers of Minority Aided Schools differently from the teachers of General Aided Schools and Nationalized Schools for the purposes of grant of monetary benefits of the pay-revisions. This Court also finds that once the said sub- 14 paragraph 4 of paragraph 2 of the said Resolution dated 5.11.1993 stands quashed, the same cannot be relied upon by the respondents for treating the teachers of Minority Aided Schools differently. This writ application is, accordingly, allowed. Since the said sub-paragraph 4 of paragraph 2 of the resolution dated 5.11.1993 implementing the 5th Pay Revision in respect of the teachers of Aided Schools already stands quashed, no separate order is required to be passed in that respect. The directions passed by this Court in the said CWJC No. 5336 of 1996 in respect of the grant of 5th Pay Revision to the teachers of the Aided Schools with effect from 1.3.1989 shall be deemed to have been passed in the case of teachers of Minority Aided Schools also. So far as 6th Pay Revision is concerned, the same was implemented by resolution no.470 dated 4.3.2006 (Annexure-9). This resolution is also on similar terms as the earlier resolution dated 5.11.1993. By this resolution the 6th Pay Revision has been made admissible to the teachers of Non- 15 Government Aided Schools also, including Minority Schools, with effect from 1.1.1996. However, the monetary benefit of the same has been allowed to them with effect from 1.7.2005 only. Apparently, on the analogy of the Apex Court judgments in the case of Haryana State Adhyapak Sangh (supra) as well as judgment of the learned Single Judge in CWJC No.5336 of 1996, and for the reasons assigned herein above for holding such differentiation as arbitrary, the part of the resolution no. 470 dated 4.3.2006, granting the monetary benefits to the teachers of Non-Government Aided Schools, including Minority Schools, from a subsequent date i.e. 1.7.2005, is also held arbitrary and discriminatory, and therefore violative Article 14 & 16 of the Constitution of India and the same is quashed and the respondents are directed to grant the benefits of 6th Pay Revision, made admissible by them by the said resolution to the Aided Minority as well as Aided General Schools, from the date the same has been made admissible to the teachers of Nationalized Schools, i.e. with effect from 1.4.1997 itself. The respondents shall take up the exercise for grant of 16 benefits of 5th Pay Revision and 6th Pay Revision to the teachers of the Minority Aided Schools from the respective dates and shall complete the same and release the arrears to them within a period of six months positively from the date of receipt/production of a copy of this order. Arvind/ ( J. N. Singh, J.)