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Judgment
Honourable Mr. Justice K. Chandru
The writ petition is filed by the petitioner seeking for a direction to the first respondent, i.e., Kallakurichi Cooperative Sugar Mills Matriculation
Higher Secondary School at Moongilthuraipattu to implement the 6th Pay Commission with effect from 1.1.1996 in terms of the G.O.Ms. No.
162, Finance (Pay Cell) Department, dated 13.4.1998 on the basis of the judgment of this court in W.A. No. 461 of 2000, dated 5.9.2001. The
writ petition was admitted on 19.2.2007. Pending the writ petition, in the application for an interim injunction in M.P. No. 1 of 2007, this court
held that no interim orders can be passed on an apprehension and that as and when her services were disturbed, she can approach this court for an
appropriate relief and accordingly dismissed the application on 19.02.2007. In an another application in M.P. No. 2 of 2007, it was recorded that
the petitioner had already resigned from the services of the school and that the interim application was dismissed by an order dated 21.11.2007.
The facts of her resignation and acceptance of resignation and crediting of the gratuity amount in her bank account were filed in the form of an
additional typed set by the petitioner. It was the case of the petitioner that she was working as a B.T. Assistant in Tamil at the relevant time in the
first respondent school. The first respondent school is a Matriculation School governed by the provisions of the Code of Regulation for
Matriculation Schools. They are entitled to get salary paid on par with the scale of pay available to the Government school teachers. Even after
implementation of the 6th Pay Commission in respect of teachers working in the Government schools, the first respondent did not extend the
benefits of that scale and hence the writ petition.
In W.A. No. 461 of 2000 in The Correspondent, Anitha methodist Matriculation School, Vepery Vs. S. Paul Rose and others, a division bench
of this court on 05.09.2001 directed payment of salary to Matriculation school teachers on par with the Government schools. In that case, the
division bench held that G.O.Ms. No. 162, Finance (Pay Cell) department, dated 13.4.1998 will apply to teachers working in Matriculation
schools. Therefore, the teachers should be paid the same wages. In paragraph No. 7, it was observed as follows :
7... by virtue of the operation of the Notification in G.O.Ms. No. 162, dated 13.04.1998, the appellant is obliged to pay the wages to its teachers
on par with the teachers in the service of the Government schools... It is also not in dispute that G.O.Ms. No. 162, dated 13.04.1998 is applicable
to the appellant institution. The said G.O. makes it very clear that the management like that of the appellant are liable to pay to its employees that
wages on par with the employees in the Government Schools as and from 01.01.1996. In such circumstance we do not find any illegality in this
order of the learned Judge the directing the appellant to pay the difference in wages to the first respondent commencing from 01.04.1996 till the
demitted his office.
Though the division bench did not refer to the Code of Matriculation and went on by the admission made by parties, in Code No. 16(ii), it was
stipulated that teachers and non teaching staff in matriculation schools should be paid at least as per the Government scale of pay revised from time
to time. It is this Code which was pressed into service.
The petitioner also placed reliance upon a subsequent judgment of a division bench in Special Officer, Salem Co-op. Sugar Mills Matriculation
Higher Secondary School, Namakkal District Vs. All Teachers Front, rep by its General Secretary, Coimbatore and others reported in 2008 (5)
MLJ 302 and the division bench in paragraph 34 held as follows :
In view of the findings reached by us as for the entitlement of the matriculation school teachers of the petitioner management, the necessary
corollary would be, the directions ought to be held valid by observing the impugned proceedings of the Directorate of Matriculation Schools dated
12.2.2003 is quite in order and legally sustainable. The writ petition does not merit any consideration. Chapter V Article 16 (ii) and Chapter VI
and Article 18(ii) of Code of Regulations for Matriculation Schools are reasonable and held valid.
However, it is brought to the notice of this court that the matter has been taken to the Supreme Court by way of SLP in SLP (Civil) No. 24954
of 2008 and the Supreme Court had granted leave and the matter is pending. But the division bench judgment relating to Salem Cooperative Sugar
Mills Matriculation Higher Secondary school''s case did not consider the legal effects of the Matriculation Code. The Matriculation Code and
Bylaws were framed by the committee appointed by the State Government. The Committee''s bylaws were notified by the State Government as
Code of Regulation for Matriculation Schools. It cannot be held to be statutory in character.
It is necessary to recapitulate the history behind evolving the Code of Matriculation Schools :
7.1 The Matriculation Schools in the State of Tamil Nadu were initially affiliated to the University of Madras created under the Madras University
Act, 1923. Subsequently when Madurai-Kamaraj University was formed, such of the Matriculation Schools operating in Madurai Area and which
were originally under affiliation to the Madras University got their affiliation transferred to the Madurai-Kamaraj University. The Matriculation
Schools which were originally affiliated to the Madras University and Madurai-Kamaraj University were thus excluded by Section 2(7)(c) and
hence the provisions of the Private Schools Act were not available to teachers.
7.2 Subsequently in the first instance by an Ordinance in 1975 (w.e.f. 21.11.1975) and followed by the President''s Act in the year 1976, the
Tamil Nadu Private Colleges (Regulation) Act, 1976 was enacted and rules were also framed thereunder. During July 1976, the Syndicate of the
Madras University by a resolution decided to drop the affiliation of Matriculation Schools as also from conducting the Matriculation Examinations.
7.3 Immediately thereafter, instead of extending the private Schools Act and the Rules framed thereunder, the Government of Tamilnadu during
December, 1976 transferred the control of the Matriculation Schools to a board with the Director of School Education as its Chairman. This
position was affirmed by issuing a G.O. No. 2816, Education, dated 29.12.1976. Subsequently, on the basis of the suggestion of the Director of
School Education the Government of Tamil Nadu ordered the constitution of the Board of Matriculation Schools vide G.O.Ms. No. 1720 dated
25.7.1977 by which they formed the Board and defined terms and conditions and functions of the Board. Thereafter, for the Inspectorate of
Matriculation Schools under the control and supervision of the Director of School Education vide G.O.Ms. No. 2678, Education, dated
29.12.1977 necessary staff and infrastructure was provided.
7.4 The so-called Code applicable to the Matriculation Schools and recognised by the Director of School Education came into force with effect
from 1.6.1978. The Director of School Education purporting to be the Chairman of the Board of Matriculation Schools at a meeting held on
18.12.1978 decided that a ''Code of Regulations'' was to be compiled and for this purpose appointed an eight-member sub-committee and the
draft code was later circulated to all Matriculation Schools under the name and style ''Code of Regulations for Matriculation Schools in Tamil
Nadu.'' But these regulations are not referable to the provisions of the Private Schools Act, and the Rules framed thereunder and remain as more
consolidated executive instructions having no force of law.
In this context it is necessary to refer to a judgment of the Supreme Court in State of Assam and Another Vs. Ajit Kumar Sharma and Others,
wherein, the Supreme Court held that the conditions and instructions even found in the grant-in-aid conferred no right on teachers who week for
enforcement of conditions and in paragraph 12, it was observed as follows :
The main question which falls for decision in this appeal is whether the High Court is right in issuing a writ of mandamus to the State through the
Director directing it not to give effect to the letter of March 20, 1962. It has not been contended on behalf of the appellants that the Rules have
statutory force and the arguments before us have been made on the basis that the Rules have no statutory force and are mere executive instructions
given by the Government to private colleges as a condition for the implementation of pay scales etc. recommended by the University Grants
Commission for private colleges, these scales being apparently higher than those existing from before. It seems to us that the High Court was in
error in granting a writ of mandamus against the State through the Director once it found that the Rules had no statutory force and were mere
administrative instructions for the purpose of giving grant-in-aid to private colleges. What grants the State should make to private educational
institutions and upon what terms are matters for the State to decide. Conditions of these grants may be prescribed by statutory rules; there is
however no law to prevent the State from prescribing the conditions of such grants by mere executive instructions which have not the force of
statutory rules. In the present case the Rules have been framed in order to give revised grants to private colleges to enable them to give higher
scales of pay etc. to their teachers in accordance with the recommendations of the University Grants Commission. The Rules have been held by the
High Court to have no statutory force, and that is not disputed before us. In these circumstances it is clear that the Rules are mere executive
instructions containing conditions on which grants would be made to private colleges to implement the recommendations of the University Grants
Commission as to pay scales etc. of teachers of private colleges. Where such conditions of grant-in-aid are laid down by mere executive
instructions, it is open to a private college to accept those instructions or not to accept them. If it decides not to accept the instructions it will
naturally not get the grant-in-aid which is contingent on its accepting the conditions contained in the instructions. On the other hand, if the college
accepts the conditions contained in the instructions, it receives the grant-in-aid. If however having accepted the instructions containing the
conditions and terms, the college does not carry out the instructions, the Government will naturally have the right to withhold the grant-in-aid. That
is however a matter between the Government and the private college concerned. Such conditions and instructions as to grant-in-aid confer no right
on the teachers of the private colleges and they cannot ask that either a particular instruction or condition should be enforced or should not be
enforced. It is only for the Governing Body of the College to decide whether to carry out any direction contained in mere administrative instructions
laying down conditions for grant-in-aid. Further it is open to the Governing Body not to carry out any such instruction which is not based on rules
having statutory force, and it will then be naturally open to the State to consider what grant to make. But if the Governing Body chooses to carry
out the instruction, it could hardly be said that the instruction was being carried out under any threat. It is certainly not open to a teacher to insist
that the Governing Body should not carry out the instruction. The rules for the purpose of grant-in-aid being '' as in this case '' merely executive
instructions confer no right of any kind on teachers and they cannot apply to the High Court for a mandamus asking for the enforcement or non-
enforcement of the rules, even if indirectly there may be some effect on them because of the grant-in-aid being withheld in whole or in part. Such
mere administrative instructions even though called rules are only a matter between the Governing Body and the State through the Director and
cannot in our opinion form the basis of a petition for writ under Article 226 by a teacher.
(Emphasis added)
The Supreme Court vide its judgment in Shri Vidya Ram Misra Vs. Managing Committee, Shri Jai Narain College, held that even in cases of
termination of such teachers, no writ will lie and it reads as follows :
Whether the decision in Vidyodaya University Council v. Silva is correct or not, in this case, we think there was no element of public
employment, nothing in the nature of an office or status which is capable of protection.
In S.R. Tewari v. District Board, Agra6 this Court formulated the exceptions to the general rule that when there is a termination of a contract of
service, a declaration that the contract of service still subsisted would not be made, by saying:
But this rule is subject to certain well recognised exceptions. It is open to the courts, in an appropriate case, to declare that a public servant who is
dismissed from service in contravention of Article 311 continues to remain in service, even though by so doing the State is in effect forced to
continue to employ the servant whom it does not desire to employ. Similarly, under the industrial law, jurisdiction of the labour and Industrial
Tribunals to compel the employer to employ a worker, whom he does not desire to employ, is recognised. The courts are also invested with the
power to declare invalid the act of a statutory body, if by doing the act, the body has acted in breach of a mandatory obligation imposed by the
statute, even if by making the declaration the body is compelled to do something which it does not desire to do.
In a subsequent judgment in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs.
V.R. Rudani and Others, the Supreme Court in paragraph 15 held that the university''s conditions of affiliation regarding grant of scale of pay can
be enforced in a writ petition :-
If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public
duty mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient
remedy, mandamus cannot be denied. It has to be appreciated that the appellants trust was managing the affiliated college to which public money is
paid as government aid. Public money paid as government aid plays a major role in the control, maintenance and working of educational
institutions. The aided institutions like government institutions discharge public function by way of imparting education to students. They are subject
to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such
institutions, therefore, is not devoid of any public character.3 So are the service conditions of the academic staff. When the University takes a
decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a
private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the
management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.
(Emphasis added)
However, in Francis John Vs. Director of Education and Others, the Supreme Court had considered the scope of grant-in-aid Code and held
in paragraphs 5 and 10 as follows:
From a reading of the relevant rule of the Grant-in-aid Code which is a part of the public law of the land it becomes obvious that the reference
of the dispute between the management of the school and the appellant to the Disputes Settlement Committee was made by the Director of
Education in exercise of the powers conferred on him by the Grant-in-aid Code, which is issued by the government in exercise of its executive
power, even though it may not have been done under a statute. The Director of Education who is a public functionary has given his approval to the
decision of the Disputes Settlement Committee before it was communicated to the school. While granting his approval to the decision the Director
of Education is discharging a governmental function as an authority constituted for the said purpose by the government. It is obvious that the
management, in the circumstances could not have terminated the services of the appellant without the communication received by it from the
Director of Education. In such circumstances it cannot be said that the decision is that of just a private management governed by private law. It is
the part of the process of the public law which affects public exchequer.
10... Any private school which receives aid from the government under the Grant-in-aid Code, which is promulgated not merely for the benefit of
the management but also for the benefit of the employees in the school for whose salary and allowances the government was contributing from the
public funds under the Grant-in-aid Code cannot escape from the consequences flowing from the breach of the Code and particularly where the
Director of Education who is an instrumentality of the State is participating in the decision making process. Under these circumstances we find that
the High Court was wrong in upholding that the orders of the Director of Education and of the Disputes Settlement Committee were not amenable
to the jurisdiction of the High Court under Article 226 of the Constitution since the matter squarely falls within the principles laid down by this
Court in Tikaram case1.
(Emphasis added)
Therefore, the right of teachers to enforce the non statutory Code like Matriculation schools was not considered by the division bench.
The Supreme Court in Sushmita Basu and Others Vs. Ballygunge Siksha Samity and Others, held as follows :
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.
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 India1 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 be 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. Sahasranaman2 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.
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 Venkateswara Hindu College of Engg.3
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.
(Emphasis added)
Subsequently, in Mrs. Satimbla Sharma and Others Vs. St. Paul''s Senior Secondary School and Others, , the Supreme Court approved the
decision in Sushmita Basu''s case (cited supra). The Supreme Court while considering the payment of salary and allowances equal to that of
teachers of Government schools, in paragraphs 23 and 25 had observed as follows :
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 payable to teachers of government schools or government-aided schools. This is because the salary and allowances 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.
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 to
teachers of government-aided schools, then a writ of mandamus to the school could be issued to enforce such statutory duty. But in the present
case, there was no statutory provision requiring a private unaided school to pay to its teachers the same salary and allowances as were payable to
teachers of government schools and therefore a mandamus could not be issued to pay to the teachers of private recognised unaided schools the
same salary and allowances as were payable to teachers of government institutions.
(Emphasis added)
Obviously, the division bench did not have the benefit of the two judgments of the Supreme Court, though at the relevant time, the case of
Sushmita Basu case (cited supra) was very available for consideration by the division bench. In view of the above, this court do not think that any
case is made out to entertain the writ petition. Hence the writ petition will stand dismissed. No costs.