Gyan Bharati Vidyapith and Others vs The Director of School Education and Others

Samapti Chatterjee, J.—1. The petitioner has filed the present writ petition assailing the impugned memo dated 29th May, 2002 issued by the Director of School Education, West Bengal.

It was also one of the prayers in the said writ petition that the ROPA rules and reports of the pay commission are not applicable to the petitioner''s school in respect of the pay scale of the teaching and non-teaching staffs.

The brief case of the petitioner is as follows:--

That the petitioner No. 1 is a society registered under Society Registration Act, 1860 and is engaged in establishment, management and running of the school, colleges and educational institutions in the city of Kolkata. Some time in the year 1962, the petitioner No. 1 started Gyan Bharati Vidyapith (hereinafter referred to as the said school) as a junior school which in the year 1965 was upgraded as high school and the said school is recognised by the Board of Secondary Education. Till today the day to day affairs of the schools are controlled and managed by the Managing Committee constituted from time to time under the rules and regulations framed by the petitioner No. 1. The Government of West Bengal only grants Dearness Allowances to the staff and employees approved by the District Inspector of Schools. The memorandum of understanding was also executed on 5th July 1994 for a period of 3 years between the Managing Committee and the teachers and non-teaching staff of the said school. There the teachers and non-teaching staff were given the option to retire at the age of 60 to 65 years and the basic pay of all teaching and non-teaching staff was fixed at the rate recommended by the 2nd Pay Commission.

It is also the case of the petitioner that 3rd and 4th Pay Commission were not applicable to the said school as it is a Dearness Allowance receiving school and not financially controlled by the Government.

It also appears that on and from 1st April, 2000 the teachers and non-teaching staff of the said school was given an increment though the teachers of the said school initially without accepting the increment filed an application under Section 226 of the Constitution of India in this Hon''ble Court against the District Inspector of School but subsequently the increased salary was accepted by the teachers and non-teaching staff of the said school.

The said writ petition was disposed of after exchange of affidavits on October, 2001 by this Hon''ble Court thus directing the Secretary, Education Department (SE), Government of West Bengal to decide why similar policy adopted by the Government in respect of Anglo-Indian and listed schools shall not be adopted in respect of the other schools which are accepting only D.A. from the Government for its approved teachers.

Pursuant to the said order dated 8th October, 2001 the Director of School Education without giving any opportunity of hearing to the parties issued the impugned memo dated 29th May, 2002 informed that all schools receiving D.A. for its approved teaching and non-teaching staff will have to pay salary in the appropriate pay scale from its own resources at the rate prescribed by the State Government.

It was also informed that the D.A. would be disbursed on percentage basis at the rate admissible to other employees of the State Government aided in the education institutions.

Challenging this impugned memo dated 29th May, 2002 the petitioner filed the present writ petition.

Mr. Bhaskar Sen, learned senior counsel appearing for the petitioner''s institution submitted that the institution is only a D.A. receiving institution, not financially controlled by the government. The said school only received financial assistance from the Government towards D.A. against the approved teachers and non-teaching staffs, and not more than that. The school authority takes responsibilities for paying salaries of the teachers and non-teaching staffs of the said school. Therefore, it is not obligatory on the part of the school authority to give monthly salaries of the approved teachers and non-teaching staffs of the said school at par with the other schools like Government aided and Government sponsored schools. But in the case of the petitioner''s institution Government liability towards the approved teachers and non-teaching staffs of the petitioner''s institution is only towards the D.A. and not in respect of the other service benefits. Save and except D.A. all service benefits are borne by the school authority itself.

Mr. Sen further vehemently contended that available fund of the school authority will not provide ROPA benefit to be paid to the teachers and non-teaching staffs of this school at par with the Government aided/sponsored schools as has been recommended by the Government.

Mr. Sen further contended that initially the said institution accepted the recommendation of the ROPA and paid the salaries of the approved teachers and non-teaching staffs as recommended by the ROPA. But at present the fund of the school authority does not permit to grant such ROPA 2009 benefit at par with the Government aided/sponsored schools.

Mr. Sen further contended that in respect of the D.A. receiving schools the management of such school cannot and should not be compelled to accept the pay structure of the Government school as recommended by the ROPA 2009.

Mr. Sen also drew Court''s attention to Paras-4, 5(I)(II), 8, 9 of the affidavit-in-opposition.

Mr. Sen contended that in the affidavit-in-opposition state authority has admitted that ROPA is not applicable to the petitioner''s institution.

Mr. Sen also relied on the Section 2(m)(I) & (II) of the West Bengal Control Expenditure Act, 2005. Section 2(m)(I) & (II) are quoted below:

"(m) "school" means-

(i) a recognised non-Government aided-

(A) secondary school, or educational institution, or part or department of such school or institution, imparting instruction in secondary education, or

(B) higher secondary school, or educational institution (other than a college), or part or department of such school or institution, imparting instruction in higher secondary education, or

(C) Madrasah, or

(D) Primary Teachers'' Training Institution; or

(ii) a recognised non-Government institution which has been imparting instruction in secondary education or higher secondary education or Madrasah education and receiving grant from the State Government in the form of dearness allowance for its teachers and non-teaching staff."

Mr. Sen further contended that practice and procedure and the system prescribes that D.A. receiving schools will be governed by their rules and regulations and not by the Government rules and regulations, therefore, the recommendation of ROPA is not at all binding upon the petitioner''s institution and the petitioner''s institution is only enjoying D.A. from the Government and entire financial liabilities are exclusively borne by the school authority itself. Therefore, the Government has no authority or right to impose such financial burden upon the petitioner''s institution who is not wholly financially controlled by the Government, only D.A. of the approved teachers and non-teaching staffs the said institution have been provided by the Government and nothing else.

In support of his contention Mr. Sen relied on a supreme Court decision reported in , 2011 (13) SCC Page-760 (Satimbla Sharma And Others vs. St. Paul''s Senior Secondary School And Others) Paragraphs-16, 18, 22 & 23 which are quoted below :

"Para-16-In our considered opinion, the Division Bench of 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 counterparts working in government-aided schools are paid mostly out of the government funds, whereas the teachers of private unaided minority schools are paid out of the fees and other resources of the private schools.

Para-18 - In Frank Anthony Public School Employees'' Assn. V. Union of India, relied on by the 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 unfavourably with those of their counterparts of the Delhi Administration Schools and the Frank Anthony Public School Employees'' Association sought equalisation of their pay scales and conditions of service with those of teachers and employees of government schools.

Para-22-In other words, the State by making a statutory provision in Section 12 of the Delhi School Education Act which was discriminatory, had violated the mandate to the State under Article 14 of the Constitution not to deny the equal protection of the laws within its territories. This decision in Frank Anthony Public School Employees'' Assn. V. Union of India does not assist the appellants in any manner because the guarantee of equality, as we have said, is not available against an unaided private minority school.

Para-23-We also do not think that the Court could issue a mandamus to a private unaided school to pay the salary and allowances equal to the salary and allowances of teachers of a private unaided school is a matter of contact between the school and the teacher and is not within the domain of public law."

Mr. Sen further vehemently urged that the school authority on his own implemented recommendation of earlier pay commission in respect of its approved teachers and non-teaching staffs but that does not ipso facto give any right to the approved employees of the petitioner''s institution which is admittedly not financially controlled by the Government save and except accepting D.A. in respect of its approved employees. In support of his contention Mr. Sen relied on a Supreme Court decision reported in , 2006 (7) SCC Page-680 (Sushmita Basu And Others vs. Ballygunge Siksha Samity And Others) Paragraphs-2, 3, and 4 which are quoted below:--

Para-2-There is no dispute that the institution in which the appellants are working is a recognised private educational institution in the State of West Bengal. In the State of West Bengal there are government schools, aided schools and unaided private schools. In this case, we are not concerned with aided schools or government schools. As far as private schools like the one run by Respondent 1 are concerned, they do not receive any aid from the Government, but they do get from the Government dearness allowance component of the approved teachers working in the school. There is no dispute that the recommendations of the First Pay Commission and that of the Second Pay Commission, though they did not cover private unaided schools, were implemented by the schools as part of their agreement with the teachers. Though, the management also implemented the recommendations of the Third Pay Commission in the sense that the salaries of the teachers were hiked in terms of the said report, the institution refused to give retrospective effect to the enhancement. In other words, the institution refused to give effect to the recommendations of the Third Pay Commission with effect from 1-1-1988, as recommended by the Commission and as implemented by the Government.

Para-3-It was mainly complaining about the refusal of the management to implement the recommendations of the Third Pay Commission with effect from 1-1-1988 retrospectively, that the teachers went to court. We asked the learned Senior Counsel for the appellants as to whether there was any Act, statutory rule or even government order directing private unaided educational institutions to implement the recommendations of the Third Pay Commission especially in the context of the fact that the salaries and emoluments of teachers of private unaided institutions were not the subject-matter of reference to the Third Pay Commission. Learned counsel fairly submitted that there was no statutory provision, rule or binding order, but referred to the decision of this Court in Frank Anthony Public School Employees'' Assn. V Union of India and submitted that the principle recognised therein should be applied to teachers like the appellants as well. Learned counsel conceded that there was no provision corresponding to Section 10 of the Delhi School Education Act, 1973 in the Bengal Act. But the submission was that the appellants were approved teachers and they were also doing the same work as teachers of government schools and aided schools and in the circumstances "equal pay for equal work" principle could be directed to the implemented and in that context the appellants could be granted relief. This was met by the learned Senior Counsel appearing for the respondents by pointing out that the institution had not only implemented the recommendations of the Third Pay Commission but has also implemented the recommendations of the Fourth and Fifth Pay Commissions, though it was not bound to do so and there could be no grievance that teachers are being paid salaries that are not comparable with that of the teachers of government schools and aided schools. With reference to the pleadings, it was pointed out by the learned Senior Counsel that the teachers of the first respondent institution, in fact, were enjoying some additional benefits which are not available to teachers of government institutions and aided institutions. It was also pointed out that out of the very many teachers in the school, only three of them, the appellants before us, have refused to enter into an agreement with the first respondent and as observed by this Court in Reserve Bank of India v. C.N. Sahasranaman the fact that a few are not satisfied, is no ground for interference by court or for grant of relief in their favour when by and large the position adopted by the institution is found to be fair and just and is accepted by all other teachers. We find considerable merit in the submissions on behalf of the respondents. In the absence of a statutory provision, we are not in a position to agree with learned counsel for the appellants that interference by the High Court under Article 226 of the Constitution is warranted in this case. We find on the whole that there has been just treatment of the teachers by the first respondent institution and there is no reason to interfere even on the ground that the appellants are being treated unfairly by their employer, the educational institution, or on the basis that this is a case in which the conscience of the court is shocked, compelling it to enter the arena to afford relief to the teachers.

Para-4-In this context, we must also notice that the writ petition in the High Court is filed for the issue of a writ of mandamus directing a private educational institution to implement the recommendations of the Third Pay Commission including their implementation with retrospective effect. Even the decision relied on by learned counsel for the appellants, namely, K. Krishnamacharyulu v. Sri Vendkteswara Hindu College of Engg. Shows that interference under Article 226 of the Constitution of India to issue a writ of mandamus by the Court against a private educational institution like the first respondent herein, would be justified only if a public law element is involved and if it is only a private law remedy no writ petition would lie. We think that even going by the ratio of that decision, a writ of mandamus could not have been issued to the first respondent in this case."

Mr. Sen further vehemently urged that without giving any opportunity of hearing the impugned order dated 29th May, 2002 has been passed ex parte by the Government on the basis of the Court order. But it was the obligatory on the part of the respondent authority, before taking decision on 29th May, 2002 on the basis of the Hon''ble High Court''s order, the petitioner''s institution should have been given opportunity of hearing by the Government authority which is denied here. In support of his contention Mr. Sen relied on a Supreme Court decision reported in , AIR 1990 SC Page-1402 (Km. Neelima Misra v. Dr. Harinder Kaur Paintal and others) Paragraph-19, 22 and 23 which are quoted below:

"Para-19-We find it difficult to accept the reasoning underlying the foresaid view. Before we consider the correctness of the proposition laid down by the High Court we must, at the expense of some space, analyse the distinctions between quasi-judicial and administrative functions. An administrative function is called quasi-judicial hen there is an obligation to adopt the judicial approach and to comply with the basic requirements of justice. Where there is no such obligation, the decision is called ''purely administrative'' and there is no third category. This is what was meant by Lord Reid in Ridge vs. Baldwin (1963) 2 All ER 66, 75-76.

"In cases of the kind with which I have been dealing the Board of Works...was dealing with a single isolated case. It was not deciding, like a judge in a law suit, what were the rights of the persons before it. But it was deciding how he should be treated-something analogous to a judge''s duty in imposing a penalty...So it was easy to say that such a body is performing a quasi-judicial task in considering and deciding such a matter and to require it to observe the essentials of all proceedings of a judicial character the principles of natural justice. Sometimes the functions of a minister of department may also be of that character and then the rules of natural justice can apply in much the same way..."

Para-22-An administrative order which involves civil consequences must be made consistently with the rule expressed in the Latin Maxim audi alteram partem. It means that the decision maker should afford to any party to a dispute an opportunity to present his case. A large number of authorities are on this point and we will not travel over the field of authorities. What is now not in dispute is that the person concerned must be informed of the case against him and the evidence in support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken. Ridge v. Baldwin (1963 (2) All ER 66) (supra); State of Orissa v. Dr. Binapani Dei , (1967) 2 SCR 625 : (AIR 1967 SC 1269).

Para-23-The shift now is to a broader notion of "fairness" or "fair procedure" in the administrative action. The administrative officers are concerned the duty is not so much to act judicially as to act fairly (See: Keshav Mills Co. Ltd. V. Union of India, , (1973-3 SCR 22 at p. 30 AIR 1973 SC 389 at P 393-94): Mohinder Singh Gill v. Chief Election Commissioner, , (1978) I SCC 405 at p-434 (AIR 1978 SC 851 at Pp. 871-72); Swadeshi Cotton Mills v. Union of India , (1981) I SCC 664 : (AIR 1981 SC 818) and Management of M/s. M.S. Nally Bharat Engineering Co. Ltd. v. The State of Bihar (Civil Appeal No. 1102 of 1990 decided on February 9, 1990). For this concept of fairness, adjudicative setting are not necessary, nor it is necessary to have lites inter parties. There need not be any struggle between two opposing parties giving rise to a ''lis''. There need not be resolution of lis inter parties. The duty to act judicially or to act fairly may arise in widely different circumstances. It may arise expressly or impliedly depending upon the context and considerations. All these types of non-adjudicative administrative decision making are now covered under the general rubric of fairness in the administration. But when even such an administrative decision unless it affects one''s personal rights or one''s property rights, or the loss of or prejudicially affects something which would juridically be called at least a privilege does not involve the duty to act fairly consistent with the rules of natural justice. We cannot discover any principle contrary to this concept."

Mr. Sen further contended that the impugned order dated 29th May, 2002 has no manner of application as no opportunity of hearing has been given to the petitioner''s institution by the authority before taking this impugned decision unilaterally.

Mr. Sen also vehemently urged that the impugned notification dated 29th May, 2002 has not been decided either by Hon''ble Justice Bhaskar Bhattacharya (as His Lordship then was) or by Hon''ble Justice Late Barin Ghosh (as His Lordship then was). Therefore, implementation of notification dated 29th May, 2002 in respect of the petitioner''s institution does not and cannot arise. Since the notification has been challenged by the petitioner''s institution in the present writ petition. Therefore, in conclusion Mr. Sen contended that this writ petition should be allowed by quashing the notification dated 29th May, 2002.

Per contra, Mr. Joyotosh Majumder learned Advocate appearing for the State submitted that the order dated 8th October, 2001 passed by the Hon''ble Justice Barin Ghosh (as His Lordship then was) has attained its finality as no one preferred any appeal assailing the said order. Therefore there is no scope to scan the said order as admittedly the same has attained finality. Not only that on the basis of that order the notification dated 29th May, 2002 has been issued by the Government authority.

Mr. Majumder further contended that the petitioner has no option but to implement the said notification dated 29th May, 2002.

Mr. Majumder also vehemently urged that the said institution has already implemented recommendation of the earlier ROPA but in the case of ROPA 2009 the petitioner''s institution has taken an alternative view from their earlier stand which is not accepted in the facts and circumstances of this case.

Mr. Majumder further contended that if the petitioner''s institution does not want to implement the Government pay structure to the employees then the petitioner may forego the benefit of D.A. If the petitioner accepts the benefit of D.A. for their approved employees then the petitioner''s institution has to implement the pay structure recommended by the Government. Therefore, it is the petitioner to take decision whether it would opt for getting benefit of D.A. by implementing the pay structure as recommended for the Government aided/sponsored school or if the petitioner''s institution wants to implement their own pay structure then the petitioner''s institution have no option but to forego the benefit of D.A.

Mr. Majumder further contended that it is the policy of the Government that if any private institution who accept D.A. from the Government for their approved employees then they have to accept the pay structure of the Government sponsored/aided schools.

Mr. Pramit Kr. Ray, learned senior counsel appearing for the private respondent No. 5 to 18 submitted that it is the obligatory on the part of the school authority to implement the pay structure as per Government aided/sponsored schools as recommended by the ROPA 2009.

Mr. Ray further contended that appointments of the D.A. receiving teachers and non-teaching staffs of the said school are also approved by the Government, therefore they are also entitled to get the pay scale as fixed for their counterparts who are working under Government aided/sponsored schools.

Mr. Ray further urged that the school authority cannot bypass their obligation since the school authority is receiving D.A. for their approved teachers and non-teaching staffs. Therefore, school authority is duty bound to implement pay structure of the government aided/sponsored schools.

Mr. Ray also drew my attention to the definition of West Bengal Control Expenditure Act, 2005 under Section 2(m)and Section 13. Section 13 is quoted below:

"Section 13-Power to determine fixation of pay and age of superannuation.-The State Government may,-

(a) determine and approve the case of fixation of pay of the teacher or non-teaching staff of a school in the manner, as may be prescribed;

(b) determine the age of superannuation and the benefits payable after superannuation to the teachers ad non-teaching staff of a school in the manner as may be prescribed."

Therefore, Mr. Ray vehemently contended that fixing of pay of the approved teachers and non-teaching staffs of the D.A. receiving schools also falls under the domain of Government. Therefore, D.A. receiving schools are under obligation to fix scale of pay at par of the teachers and non-teaching staffs with their counterpart who are working under Government sponsored/aided schools.

Mr. Ray further contended that notification dated 29th May, 2002 is nothing but a policy decision adopted by the Government pursuant to the direction given by Hon''ble Justice Barin Ghosh in His Lordship''s order dated 8th October, 2001. Therefore there is remote scope for judicial review of any policy decision adopted by the Government unless it is contrary to public interest and violative of Article 14, 16 and 19(1)(g) and 21 of the Constitution of India.

Mr. Ray thereafter vehemently emphasized on the issue that Sushmita Basu''s case (supra) was on 29th May, 2000. The impugned order dated 29th May, 2002 was issued pursuant to the direction passed by Hon''ble Justice Barin Ghosh in His Lordship''s order dated 8th October, 2001.

Mr. Ray further contended that this notification came under 4th pay commission though the school implemented the 4th pay commission but not in toto. But unfortunately in respect of the 5th pay commission ROPA 2009 the school authority failed and neglected to implement the pay structure as recommended vide ROPA 2009.

Mr. Ray further submitted that by virtue of order dated 18th March, 2014 the present writ petition was dismissed, the order of dismissal was recalled only on 5th June, 2014. Since the teachers and non-teaching staffs of the said institution filed a separate application before this Hon''ble Court for implication of the ROPA 2009 therefore the petitioner took initiative to restore the dismissal order by filing application.

Mr. Ray further vehemently urged that the teachers are discharging equal work like their counterpart who are working under Government sponsored/aided schools but they have been highly discriminated by the school authority since the school authority has not been implementing the pay structure as recommended by the ROPA 2009.

In support of his contention Mr. Ray relied on a Supreme Court decision reported in , 1997 (3) SCC Page-571 (K. Krishnamacharyulu And Others vs. Sri Venkateswara Hindu College of Engineering And Another) Paragraph-4. Extract of the Paragraph-4 is quoted below:

"Para-4-*****In consequence, are they also not entitled to the parity of the pay scales as per the executive instructions of the Government? It is not also in dispute that all the persons who filed the writ petition along with the appellant had later withdrawn from the writ petition and thereafter the respondent-Management paid the salaries on a part with the government employees. Since the appellants are insisting upon enforcement of their right through the judicial pressure, they need and seek the protection of law. We are of the view that the State has obligation to provide facilities and opportunities to the people to avail of the right to education. The private institutions cater to the need of providing educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the orders issued by the Government. The question I as to which forum one should approach. The High Court has held that the remedy is available under the Industrial Disputes Act. When an element of public interest is created and the institution is catering to that element, the teacher, being the arm of the institution, is also entitled to avail of the remedy provided under Article 226, the jurisdiction part is very wide. It would be a different position, if the remedy is a private law remedy. So, they cannot be denied the same benefit which is available to others. Accordingly, we hold that the writ petition is maintainable. They are entitled to equal pay so as to be on a part with government employees under Article 39(d) of the Constitution."

Mr. Ray also relied on a Supreme Court decision reported in , (1986) 4 Supreme Court Cases Page-707 (Frank Anthony Public School Employees'' Association vs. Union of India And Others) Paragraphs-16, 17, 21 & 23.

Mr. Ray further vehemently urged that it is the duty on the part of the school authority to disburse salary to its employees at par with their counterpart.

Mr. Ray also contended that salaries have been given from the fund generated from the monthly fees accepted by the school authority from its students. Therefore, it is not correct that the school authority has to bear extra fund to grant pay scale of the teachers at par with their counterpart who are working under Government aided/sponsored schools as has been projected by Mr. Sen learned Advocate appearing for the petitioner''s institution.

Mr. Ray further contended that even if the school authority has to take an extra financial burden for implementing the pay structure at par with their counterparts who are working at Government aided or Government sponsored schools that would not give any right to the school authority to challenge notification dated 29th May, 2002. In support of his contention Mr. Ray relied on a Supreme Court 5th Bench decision reported in , 2003 (11) SCC Page-614 (Prafulla Kumar Das And Others vs. State of Orissa And Others) Paragraph-45 which is quoted below:

"Para-45-In this case, the petitioners seek benefit to which they are not otherwise entitled. The legislature, in our opinion, has the requisite jurisdiction to pass an appropriate legislation which would do justice to its employees. Even other wise a presumption to that effect has to be drawn. If a balance is sought to be struck by reason of the impugned legislation, it would not be permissible for this Court to declare it ultra vires only because it may cause some hardship to the petitioners. A mere hardship cannot be a ground for striking down a valid legislation unless it is held to be suffering from the vice of discrimination or unreasonableness. A valid piece of legislation, this, can be struck down only if it is found to be ultra vires Article 14 of the Constitution of India and no otherwise. We do not think that in this case, Article 14 of the Constitution is attracted."

Mr. Ray also relied on a Supreme Court decision reported in , 2011 (8) SCC Page-737 (State of Tamil Nadu And Others vs. K. Shyam Sunder And Others) Paragraphs-50 to 52 and 91.

In support of his contention for the proposition of law that an incumbent should not be deprived of equal pay for discharging equal work like his counterparts Mr. Ray relied on Supreme Court decision reported in , AIR 1990 SCC Page-334 (Supreme Court Employees Welfare Association vs. Union of India and others with Supreme Court Fourth Class Employees Welfare Association vs. Union of India and another with S.P. Jain and another vs. Union of India and another) Paragraph-38. Some portion of the Paragraph 38 is quoted below:--

"Para-38-If the classification is proper and reasonable and has a nexus to the object sought to the achieved, the doctrine of ''equal pay for equal work'' will not have any application even though the persons doing the same work are not getting the same pay. In short, so long as it is not a case of discrimination under Art. 14 of the Constitution, the abstract doctrine of ''equal pay for equal work'' as envisaged by Art. 39(d) of the Constitution, has no manner of application, nor is it enforceable in view of Art. 37 of the Constitution. Dhirendra Chamoli v. State of U.P. , (1986) 1 SCC 637 is a case of ''equal pay for equal work'' as envisaged by Art. 14, and not of the abstract doctrine of ''equal pay for equal work''."

Considering the submissions advanced by the learned Advocates appearing for the respective parties and after perusing the records and the decisions relied on by them I find that admittedly the petitioner''s institution has granted benefit of ROPA till 4th pay commission to its teaching and non-teaching staffs. But unfortunately since 5th pay commission i.e. ROPA 2009 the school authority has taken a stand not to extend the benefit of ROPA 2009 to its approved teachers and non-teaching staffs though admittedly the petitioner''s institution has received D.A. for its approved teachers and non-teaching staffs from the Government but curiously the petitioner''s institution is not willing to implement Government pay structure in respect of its approved teachers and non-teaching staffs without any reason whatsoever.

I also find some substance in the submission of Mr. Ray that the salaries of teachers and non-teaching staffs generated from the funds accumulated from the monthly fund of the students. Therefore, it cannot be accepted that the school authority have to accept a huge financial burden if they want to implement the pay structure to its approved teachers and non-teaching staffs at par with their counterparts who are working under Government sponsored/aided schools.

I do not find any force in the argument of Mr. Sen that the petitioner''s institution has the right to accept only the D.A. for its approved teachers and non-teaching staffs but they will not take the liability to implement the pay structure recommended by the 4th pay commission which has already been implemented in case of Government sponsored/aided schools. Nobody can ignore the truth that teachers are the builders of the future citizen of the Nation. Therefore, if they are not benefited and adequately paid for their duties and responsibilities like their counterparts then it is nothing but a clear case of discrimination. All teachers are a section in whole and therefore, their pay structure should be equal. It is not a case that an incumbent who is having higher post is getting higher scale like service matter but in the teaching fraternity all teachers have been discharging the same duties and therefore, they should be paid equally. Therefore, just to avoid any controversy between the teachers working in a D.A. receiving schools and the teachers who are working in Government sponsored/aided schools the Government has taken the stand by issuing the notification dated 29th May, 2002 just to maintain a parity in respect of the salaries amongst the teachers who are working in a D.A. receiving schools or working in a Government sponsored/aided schools.

Now I have to deal with the decisions relied on by Mr. Sen. In the case of Sushmita Basu (supra) it is noticed that admittedly in that matter the order of the Hon''ble Division Bench of our High Court was passed on 29th February, 2000 when there was no statutory provision or even Government order directing private unaided educational institution to implement the recommendation of the 3rd pay commission but in the present case it is evident that by notification dated 29th May, 2002 Government has taken a decision that the private institutions who are only receiving D.A. for their approved employees they have to implement the pay structure as recommended by the ROPA.

It is also noticed in Sushmita Basu''s case (supra) that only 3 teachers have filed the writ petition for implementation of 3rd pay commission with retrospective effect but others are not. But in the case in hand it is an admitted position that private respondent No. 5 to 18 after accepting the notification dated 29th May, 2002 they have questioned the school authority to implement pay structure as has been recommended by the 5th pay commission in their case also. Therefore, this Sushmita Basu & Others case (supra) has no manner of application in the present case in hand.

I also cannot ignore the fact initially the petitioner''s institution have implemented the benefit of ROPA in respect of its approved employees but only from ROPA 2009 they have refused to implement the pay structure as recommended by the pay commission for the teachers of the Government sponsored/aided schools. This vindictive attitude towards the employees of the petitioner''s institution cannot be accepted. In case of Sitambala Sharma and Others (supra) it is noticed that there was also no statutory provision in respect of D.A. receiving schools who are not enjoying any other financial aids from the Government to implement the pay structure as recommended by the pay commission for the Government aided/sponsored schools but in the present case by the notification dated 29th May, 2002 the Government has directed the D.A. receiving unaided private institutions to implement pay structure as recommended by the pay commission for the teachers for Government aided/sponsored schools to maintain a parity in pay structure amongst the teachers who are working under Government aided/sponsored schools and the teachers who are working under the private schools, only receiving Government D.A. for their approved employees and no other financial aides whatsoever. In my considered view since the notification dated 29th May, 2002 is not against the interest of the teachers at large and not against Articles 14 & 16 of the Constitution of India, therefore, the notification dated 29th May, 2002 issued by the Government for betterment of the approved teaching and non-teaching staffs of the D.A. getting school, pursuant to the Hon''ble Court''s order shall not be disturbed.

Considering the above discussion and considering the decisions cited above by the learned counsels I have no hesitation to hold that notification dated 29th May, 2002 does not deserve any interference by this Hon''ble Court. Accordingly, the present writ petition stands dismissed.

However, there will be no order as to costs.

Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties after fulfilling all the formalities.