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Judgment
A.P. Shah, J.—The petitioner was serving as a teacher since November, 1968 in an aided private school named "Sarvajanik K. Vidyalaya" at Daman till her retirement on superannuation on 30th April, 1999. The petitioner holds educational and professional qualifications namely, (i) a Master''s Degree of Arts Faculty (ii) a Bachelor''s degree of Arts faculty with second class Honours - B.A. (Hons.) and (iii) a Bachelor''s degree of Education faculty with second class i.e. B.Ed. There were six teachers in the staff of the said school holding post graduate degree. However, admittedly, the petitioner was senior most amongst them. She was placed in the post graduate scale of pay of Rs. 300-600 vide order dated 5th March, 1971. She was later on placed in a still better pay scale of Rs. 350-700 vide order dated 23rd September, 1972 issued by the Administrator. She was thus in the pay scale of Rs. 350-700 for a long time since May, 1972 till February, 1976. In February, 1976, her basic pay which was Rs. 425/- which was subsequently brought down to Rs. 210/ - with effect from 1st March, 1976 and this was in pursuance of a Circular No. 62 dated 1st March, 1976 issued by respondent No. 1 i.e. Director of Education withdrawing the post graduate scale of Rs. 350-700 which has been given to her since 1972 as stated above. The management of the school i.e. respondent No. 4 was informed vide this circular not to pay the petitioner the post graduate scale from the month of March, 1976 onwards. It is this circular which has given rise to the filing of this petition.
The petitioner contends that the impugned circular is illegal and invalid as there is absolutely no justification for refusing to pay the scale which was being given to her right from 1972. She was never informed of the decision to lower her pay scale and no opportunity whatsoever was given to her to personally represent her case. Thus, there was violation of principles of natural justice in issuance of impugned circular. The petitioner, therefore, made several representations but to no effect and hence she was forced to file this petition under Article 226 of the Constitution. She contends that once certain protection or benefits were awarded to her she was certainly to be heard and entitled to be given sufficient and adequate opportunity to show cause against her being deprived of her the said benefits. She further contends that in view of promises and assurances given to her for payment of post graduate scale of pay, the respondents are estopped under the law and are disentitled to lower down her pay scale and in doing so they have abused the powers while issuing the impugned circular. She submits that mere change in teaching the lower class by her does not ipso facto entitle the respondents to revise the pay scale to her detriment when she is the person working in the same scale of pay and performing the same duty of teaching. She further submits that after maintaining for considerable period the upgrading of 20% of posts of teachers in the high school to the post graduate teachers on the strength of the orders of the Competent Authority with the approval of the Government of India, it was wrung on the part of the Director to modify the rule simply on the ground that the Government of India opined that post graduate teachers are to be allowed only in the higher-secondary schools. She submits that upgrading of 20% of the posts of teachers in the aided high schools to the post graduate teachers was maintained for long years and this was, as stated above, with approval of the Government of India. Consequently, it was not within the competence of the Director of Education to inform the heads of all non Government secondary schools that the appointment of the post graduate teachers in the post graduate scale should be suspended. The statement issued on the basis of the said circular of respondent No. 4 on 29th March, 1976 without giving her an opportunity to submit her say is illegal, invalid and unenforceable. She submits that principles of promissory estoppel are attracted in this case as the actual promise was given to her vide order dated 23rd September, 1972 that the said pay scale was subject to the modification by the Third Pay Commission. Consequently, the Government of India, Ministry of Education and Social Welfare are estopped from going back from their promise which they gave by way of conveying their approval to the sanction of the pay scale of Rs. 350-700 with the concurrence of the Ministry of Finance dated 26th November, 1971 and 31st May, 1972. She submitted that the principles of promissory estoppel are unenforceable not only against respondent No. 1 but also against the Education Minister of the Union Territory. She contends that she continued in service of the Government aided private school managed by the fourth respondent only because she was given revised grade of pay scale. She therefore, seeks quashing of the impugned circular 5 dated 1st March, 1976 and further seeks direction to the respondents to restore the post-graduate scale to her.
Originally when the petition was heard by a Bench comprising of Couto and Paunikar, JJ. only respondent No. 4 had filed a return. Respondent No. 4 mainly contended that the petition filed by the petitioner under Article 226 is untenable against the Sarvajanik Vidyalaya as it is not a State and as such no writ could be issued against the said respondents. As far as merits are concerned, It was contended by respondent No. 4 that the petitioner''s pay scale was reduced as per circular dated 1st March, 1976 which is impugned in the present petition and respondent No. 4 had merely carried out instructions and orders issued by respondent No. 1. Consequently, the petitioner had no right to make any grievance against the said respondents. Respondent Nos. 1 and 2 have filed the return after the matter was remitted by the Supreme Court. The main contention raised on behalf of respondent Nos. 1 and 2 is that the Administration of Goa had sought approval for upgrading 20% of total posts with post graduate qualifications but the Union of India had allowed the post graduate teacher''s pay only in higher secondary school and in view of the decision taken by the Union of India, the Administration was required to issue the impugned circular dated 30th March, 1976. It was contended that respondent Nos. 1 and 2 were required to act as per the directions issued by the Union of India as the proposal was rejected by the Union of India, Ministry of Education and Social Welfare department by letter dated 3rd July, 1975, no relief can be given to the petitioner. The proposal of upgrading 20% staff was introduced only after obtaining approval from the local finance department but actual concurrence and approval from the Government of India was awaited and since the Government of India granted approval for post graduate scale only in secondary school, the petitioner is not entitled to claim the post graduate scale. Respondent Nos. 1 and 2 also contended that there cannot be any estoppel in the facts and circumstances of the case. Union of India, however, did not file any reply although adjournments were taken at least on three occasions for filing the reply.
Before we deal with the rival contentions, we may mention that this petition was dismissed by the Division Bench of Couto and Paunikar, JJ. vide order dated 8th March, 1975. Division Bench held that the impugned circular dated 1st March, 1976 issued by the Deputy Director of Education, Government of Goa, Daman and Diu to respondent No. 4 cannot be sustained. However, the Division Bench came to the conclusion that no writ can be issued against the society or school as it is a private party and not a State and in that view of the matter, the Division Bench dismissed the writ petition. The petitioner filed SLP before the Supreme Court which was converted into Civil Appeal No. 4622 of 1985. The Supreme Court vide order dated 16th January, 1987 set aside the order of the Division Bench and remitted the matter directing Union of India to appear before this Court and place all the relevant material for consideration. It was also directed not to take steps for recovery of any amount paid to the petitioner until disposal of the writ petition. We may also mention here that pending hearing of the petition, the petitioner was promoted as a Head Mistress and she retired as Head Mistress on superannuation on 30th April, 1999.
We have heard Shri Naik appearing for the petitioner; Shri Mohta, appearing for respondent Nos. 1 and 2 and Shri Rao for respondent No. 3; and other respondents are not represented. All the learned Counsel agree that issue of maintainability is concluded by decision of the Supreme Court in Vidya Dhar Pande Vs. Vidyut Grih Siksha Samiti and Others, . Supreme Court has held that the higher secondary school though run by a private Trust receiving 100% grant from the Government is amenable to the writ jurisdiction under Article 226 of the Constitution. This view was reiterated in the recent judgment of the Supreme Court in K. Krishnamacharyulu and Ors. v. Sri Venkateswara Hindu College of Engineering and Anr. 1997 SCC 841. The petition filed by the petitioner is thus clearly maintainable.
As far as merits are concerned, it is admitted fact that the petitioner is holding the post graduate degree and she was the senior most amongst the teachers holding the post graduate degree and she was confirmed as a teacher of the said school as per the confirmation order dated 30th August, 1975 issued by respondent No. 4. Her pay scale was revised vide order dated 5th March, 1971 with effect from 27th May, 1970 to Rs. 300-600. It is also not in dispute that vide further order dated 23rd September, 1972, this pay scale was revised to Rs. 350-700 with effect from 25th May, 1970 and this pay scale was given to her as a post graduate teacher and she was receiving this scale of salary since 27th May, 1970 till 1st March, 1976. Infact, it was represented to her that the pay scale given to her was subject to modification by the third Pay Scale Commission as per the order dated 23rd March, 1972. The petitioner was granted higher pay scale as a post graduate teacher in pursuance of the order of the Administrator. These orders were acted upon and the petitioner was actually paid in pursuance of these orders. However, it appears that the letter was issued by the Director of Education to the Manager of all the aided secondary schools that the Government of India has subsequently informed that the post graduate scales are allowed only in higher secondary schools and upgrading of 20% of posts of teachers in high schools to post graduate teachers is erroneous. It was also informed that the teachers drawing the post graduate scale are to be placed in the respective graduate scale for counting their service for which they were paid in Post Graduate scale of pay and by giving them increments in the lower scale for their service in the post graduate scale i.e. the period of service rendered by the teachers in the Post Graduate scale is to be taken into consideration for fixing their basic salary in the graduate scale. It appears that thereafter there was introduction of new formula namely 10+2+3 in the Union Territory of Goa, Daman and Diu by the Education Department. However, this formula was not introduced at Daman till September, 1976 and the petitioner was continued to be paid in the same pay scale as the pay scale of post graduate teacher as the petitioner had already obtained the post graduate degree and was continued in the pay scale of the post graduate teachers. There was no reason or justification for lowering her pay scale on the basis of the impugned circular. Infact, no irregularity was committed by respondent No. 4 in upgrading 20% posts of teachers in the high-school to the post of post graduate teachers as there was no provision in the grant-in-aid from forbidding the management from doing do. Consequently the irregularity alleged to have been committed in upgrading 20% posts of teachers in High School to post graduate teacher is not correct. It can also be said that the same was done for obtaining Government orders when, infact, the pay scale was sanctioned under the written order. Having sanctioned the pay scale from 1972 and even subsequently enhancing the same under written orders, there is no justification for withholding the higher pay scale given to the post graduate teachers including the petitioner. In our view, the directions given in the impugned circular appears to be illegal and unjustified and contrary the provisions of the grant in code and hence the direction to the Government of Goa, Daman and Diu to remove the alleged irregularity in payment of higher pay scale to the teachers holding post graduate qualification cannot be sustained. In fact, similar question arose in the cases of (i) Ravindranath Pai Raiturkar v. The Union of India and 3 Ors., (Special Civil Application No. 66/B of 1976 (ii) Smt. Myrtl Juliet Monteiro D'' Souza v. Mary Immaculate Girls High School and 3 Ors., (Special Civil Application No. 21/B of 1980) and (iii) All Goa Secondary School Teachers Association v. The Union of India and 4 Ors., (Special Civil Application No. 170/B of 1976) and this Court held that the impugned circular was on a total misunderstanding and misreading of the provisions of the grant-in-code and similar directions to the Governor of Goa, Daman and Diu to remove the alleged irregularity to the payment of higher pay scale to the teacher having post graduate qualifications being based on wrong premises was unjustified. These petitions were decided by the Division Bench on 23rd February, 1983.
In view of the foregoing discussion the petition succeeds. Rule is made absolute and the letter issued by the fourth respondent showing the petitioner entitled to lower pay scale are hereby quashed and set aside. The respondents are directed to treat the petitioner as being in the post graduate scale of pay and to pay to the petitioner all her pay and salary and allowances etc. as per the post graduate pay scale. The respondents are also directed to fix the petitioner''s pension in the light of the directions given in this judgment and also to pay provident fund amount of the petitioner due to the petitioner if not already paid. The respondents shall implement this order within a period of four months from today.
In view of the Civil Application No. 2294 of 2000 does not survive and hence rejected. Parties to act on a copy of this order duly authenticated as true copy by the Court Sheristedar.