--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITION NO. 6260 / 2010 SMT. BABITA JOSEPH Vs. STATE OF M.P. & 2 OTHERS * * * * * O R D E R ( 23/11/2011) The petitioner before this Court has filed this present writ petition being aggrieved by the termination order dt. 20th October, 2009. The petitioner is serving in the minority institution namely St. Joseph's Convent and the institution is receiving grant in aid. This Court in the case of Yashwant Singh Sikarwar Vs. Teresian Carmel Educational Society and others reported in 2009 (1) MPWN 22 has held that a writ petition lies against the private educational institution only when public law element is involved. In the aforesaid case, discontinuance of a teacher beyond 58 years of age was under challenge. This Court in the aforesaid case in para 8 --- 2 --- has held as under : 8. The order passed by the apex court makesit very clear that in case of retirement and in case of termination, no public law element is involved. The apex court has held that a writ under Article 226 of the Constitution of India against a private educational institution shall be maintainable only if a public law element is involved and if there is no public law element is involved, no writ lies. In the present writ petition, the petitioner is claiming continuance in service beyond 58 years of age and, therefore, there is no question of public law element involved inasmuch as the grievance of the petitioner is of personal nature. Not only this, the apex court has recently in the case of Smt. Satimbla Sharma and others Vs. St. Paul's Senior Secondary School and others (Civil Appeal No. 2676 / 2010) in para 9 to 15 has held as under : 9. In our considered opinion, the Division Bench the High Court has rightly held in the impugned judgment that the teachers of private unaided minority schools had no right to claim salary equal to that of their counter parts working in Government schools and Government aided schools. The teachers of Government schools are paid out of the Government funds and the teachers of Government aided schools are paid mostly out of the Government funds, whereas the teachers of private unaided --- 3 --- minority schools are paid out of the fees and other resources of the private schools. Moreover, unaided private minority schools over which the Government has no administrative control because of their autonomy under Article 30(1) of the Constitution are not State within the meaning of Article 12 of the Constitution. As the right to equality under Article 14 of the Constitution is available against the State, it cannot be claimed against unaided private minority schools. Similarly, such unaided private schools are not State within the meaning of Article 36 read with Article 12 of the Constitution and as the obligation to ensure equal pay for equal work in Article 39(d) is on the State, a private unaided minority school is not under any duty to ensure equal pay for equal work. 10. In Frank Anthony Public School Employees' Association v. Union of In- dia & Ors. (supra), relied on by learned counsel for the appellants, the scales of pay and other terms and conditions of service of teachers and other employees of the Frank Anthony Public School, New Delhi, which was a private unaided minority institution, compared very un- favourably with those of their counter- parts of the Delhi Administration Schools and the Frank Anthony Public School Employees' Association sought equalization of their pay-scales and con- ditions of service with those of teachers and employees of Government schools. Sections 8 to 11 of the Delhi School Education Act dealt with the terms and conditions of service of employees of re- cognized private schools. Section 10 of the Delhi School Education Act provided that the scales of pay and al- --- 4 --- lowances, medical facilities, pension, gratuity, provident fund and other pre- scribed benefits of the employees of the recognized private schools shall not be less than those of the corresponding status in schools run by the appropriate authority. Section 12 of the Delhi School Education Act, however, provided that the provisions of Sections 8 to 11 in- cluding Section 10 were not applicable to unaided minority institutions. The case of teachers of Frank Anthony Pub- lic School was that if Sections 8 to 11 were made applicable to them, they would at least be as well off as teachers and other employees of Government schools. The Frank Anthony Public School Employees' Association there- fore challenged Section 12 of the Delhi School Education Act as discriminatory and violative of Article 14 of the Consti- tution and this Court held that Section 12 of the Delhi School Education Act in- sofar as it makes the provisions of Sec- tions 8 to 11 inapplicable to unaided minority schools is discriminatory. This was thus a case in which the employees of unaided minority institutions were not given the benefits available to employ- ees of other private institutions under Sections 8, 9, 10 and 11 of the Delhi School Education Act only on the ground that unaided minority institutions enjoy autonomy of administration under Article 30(1) of the Constitution and this Court held that this could not be a ra- tional basis for differentiation of service conditions, pay and other service bene- fits between employees of unaided minority institutions and the employees of other private schools and the Court declared Section 12 as discriminatory. In --- 5 --- other words, the State by making a stat- utory provision in Section 12 of the Del- hi School Education Act which was dis- criminatory, had violated the mandate to the State under Article 14 of the Consti- tution not to deny the equal protection of the laws within its territories. This de- cision in the case of Frank Anthony Pub- lic School Employees' Association v. Union of India & Ors. (supra) does not assist the appellants in any manner be- cause the guarantee of equality, as we have said, is not available against an un- aided private minority school. 11. We also do not think that the Court could issue a mandamus to a private un- aided school to pay the salary and allow- ances equal to the salary and allowances payable to teachers of Government schools or Government aided schools. This is because the salary and allow- ances of teachers of a private unaided school is a matter of contract between the school and the teacher and is not within the domain of public law. In Sushmita Basu &amp; Ors. v. Bally- gunge Siksha Samity &amp; Ors. [(2006) 7 SCC 680], the teachers of a re- cognized private school known as Bally- gunge Siksha Sadan in Calcutta filed a Writ Petition in the High Court of Cal- cutta praying for issuance of writ of mandamus directing the authorities of the school to fix the salary of teaching and non-teaching staff of the school and to remove all anomalies in the scales of pay as recommended by the Third Pay Commission as extended to other Gov- ernment aided schools and Government schools and this Court held that in the absence of statutory provision no such --- 6 --- direction can be issued by the High Court under Article 226 of the Constitu- tion. Where a statutory provision casts a duty on a private unaided school to pay the same salary and allowances to its teachers as are being paid teachers of Government aided schools, then a writ of mandamus to the school could be is- sued to enforce such statutory duty. But in the present case, there was no stat- utory provision requiring a private un- aided school to pay to its teachers the same salary and allowances as were pay- able to teachers of Government schools and therefore a mandamus could not be issued to pay to the teachers of private recognized unaided schools the same salary and allowances as were payable to Government institutions. 12. In K. Krishnamacharyulu and Others vs. Sri Venkateswara Hindu College of Engineering and Another (supra), relied upon by the learned counsel for the ap- pellants, executive instructions were is- sued by the Government that the scales of pay of Laboratory Assistants as non- teaching staff of private colleges shall be at par with the government employees and this Court held that even though there were no statutory rules, the Labor- atory Assistants as non- teaching staff of private college were entitled to the parity of the pay-scales as per the executive in- structions of the Government and the writ jurisdiction of the High Court under Article 226 of the Constitution is wide enough to issue a writ for payment of pay on par with government employees. In the present case, there are no execut- ive instructions issued by the Govern- ment requiring private schools to pay the --- 7 --- same salary and allowances to their teachers as are being paid to teachers of Government schools or Government aided schools. 13. We cannot also issue a mandamus to respondent nos.1 and 2 on the ground that the conditions of provisional affili- ation of schools prescribed by the Coun- cil for the Indian School Certificate Ex- aminations stipulate in clause (5)(b) that the salary and allowances and other be- nefits of the staff of the affiliated school must be comparable to that prescribed by the State Department of Education because such conditions for provisional affiliation are not statutory provisions or executive instructions, which are en- forceable in law. Similarly, we cannot issue a mandamus to give effect to the recommendations of the report of Edu- cation Commission 1964-66 that the scales of pay of school teachers belong- ing to the same category but working under different managements such as government, local bodies or private managements should be the same, unless the recommendations are incorporated in an executive instruction or a statutory provision. We, therefore, affirm the im- pugned judgment of the Division Bench of the High Court. 14. We, however, find that the 2009 Act has provisions in Section 23 regarding the qualifications for appointment and terms and conditions of service of teach- ers and sub-section (3) of Section 23 of the 2009 Act provides that the salary and allowances payable to, and the terms and conditions of service of, teachers shall --- 8 --- be such as may be prescribed. Section 38 of the 2009 Act empowers the appropri- ate Government to make rules and Sec- tion 38(2)(l) of the 2009 Act provides that the appropriate Government, in par- ticular, may make rules prescribing the salary and allowances payable to, and the terms and conditions of service of teachers, under sub-section (3) of section 23. Section 2(a) defines &quot;appropri- ate Government&quot; as the State Gov- ernment within whose territory the school is established. The State of Hi- machal Pradesh, respondent no.3 in this appeal, is thus empowered to make rules under sub-section (3) of Section 23 read with Section 38(2)(l) of the 2009 Act prescribing the salary and allowances payable to, and the terms and conditions of service of, teachers. Article 39(d) of the Constitution provides that the State shall, in particular, directs its policy to- wards securing that there is equal pay for equal work for both men and women. Respondent no.3 should therefore con- sider making rules under Section 23 read with Section 38(2)(l) of the 2009 Act prescribing the salary and allowances of teachers keeping in mind Article 39(d) of the Constitution as early as possible. 15. With these observations, the appeal is disposed of. There shall be no order as to costs. Keeping in view the judgment delivered by the apex court and also keeping in view the fact that St. Joseph's Convent is a minority institution which is not receiving any grant in aid, is certainly not amenable to the writ jurisdiction --- 9 --- of this court as termination of the petitioner which is certainly not a public law element is involved. The writ petition is accordingly dismissed. No order as to costs. (S. C. SHARMA) J U D G E KR