Kanailal Ghosh and Others vs The State of West Bengal and Others

Samapti Chatterjee, J—The petitioner filed the present writ petition for direction upon the school authority to comply with the Order passed by the Hon''ble Appeal Court and the order passed by the Secretary, School Education Department to grant revision of pay scale to the petitioners in terms of claim made by the petitioners.

The petitioners'' case in brief is as follows:-

That the Emmanuel English School was established in the village and post office Samsi, District- Malda in the year 1982. The petitioners were appointed in the said school from time to time in the post of Assistant Teachers and Petitioner No. 6 was appointed in the post of Clerk-cum-Typist/Accountant. The school authority follows the syllabus and other administrative functions under Council of India School Certificate Examination, New Delhi. But by Memo dated 24th February, 1998 the Deputy Secretary, School Education Department, Government of West Bengal, intimated the Director of the School Education West Bengal Anglo Indian Section that the school education department has no objection to grant of the affiliation of the Emmanuel English School, Samsi, Dist-Malda of its secondary wing for the purpose of preparing its candidates and presenting them for the final Secondary Level Examination of the I.C.S.C Council (Indian School Certificate Examination). Paragraph 6 of the said Memo dated 24th February, 1998 provides that ".....The school will pay its teaching and non-teaching staff emoluments at a rate which will not less than those of their counterparts with equivalent educational qualifications in the State Aided Educational Institution of the State and also will provide the contributory provident fund for the employees as prescribed under the relevant Provident Fund Act/Rules under Government of India."

That on 24th August, 1998 the Council for Indian School Certificate Examination was pleased to affiliate the said Emmanuel English School which was recognised by the State of West Bengal by Code No. WB 172 dated 24th August, 1998 and the Council also granted permanent affiliation of the said school initially up to Class X and thereafter upto Class XII standard.

It is submitted that the school authority has been deducting the provident fund contribution at the respective rates from the salaries of the petitioners as per employees provident fund scheme from 1994-95 till date and the petitioners have been regularly paying the provisional tax to the State of West Bengal accordingly. Since the petitioners had not been paid the salaries and other admissible allowances at par that of the teaching and non-teaching staff of the State Aided Secondary School recognised by the West Bengal Board of Secondary Education, therefore, the petitioners on 23rd February, 2009 made a representation before the State Authorities with a prayer for disbursement of salaries at par with that of the teaching and non-teaching staff appointed in State Aided Institutions, as the petitioners are permanent employees of the said institution and their school has been affiliated under the State of West Bengal vide Memo dated 24th February, 1998. Against that the District Inspector of School (S.E.) Malda vide his letter dated 3rd December, 2009 informed the petitioners that the State Government cannot grant any relief to the petitioners in terms of their prayer for enhancement of emoluments as prayed for.

It is also submitted that since the affiliation of the said school is from 24th February, 1998 the school authority has no longer fulfilled the conditions for recognition as laid down in the code of regulation for Anglo Indian and other State Schools, 1993 by paying the teachers and non-teaching staff emoluments at a rate equivalent to the teaching and non-teaching staff of the State Aided Secondary Schools which is highly arbitrary and bad in law.

It is also submitted that the petitioners have been deprived of granting the scale at par with their counterparts i.e. teaching and non-teaching staff of the Government Aided Secondary Schools. The petitioners also time to time ventilated their grievances before the school authority but all in vain. As a result thereof, the petitioners filed a writ petitioner earlier before this Hon''ble Court being WP No. 647 of 2010. The following relieves were prayed for:-

(a) "Writ/order/direction in the nature of Mandamus should not be issued upon the respondents authorities commending them to pay the salary tot he petitioners serving in Emmanuel English Medium School, P.P. Samsi, District-Malda, not lower than that of those teaching and non-teaching staff approved by the State Government in respect of Government Aided Schools affiliated to the West Bengal Board of Secondary Education as per Code of Regulation of Anglo Indian and other listed Schools, 1993 read with the Memo dated 24.2.1998, marked as Annexure ''P2'' to the application.

(b) Writ/order/direction in the nature of Mandamus should not be issued upon the respondents authorities specially the respondent Nos. 2,3 and 4 to enforce the provisions of the Code of Regulations of Anglo Indian and other listed schools 1993 and by directing the school authority to execute the same by quashing the impugned order dated 3.12.2009, marked as Annexure ''p7'' of the application.

(c) Writ/order/direction in the nature of Mandamus should not be issued upon the respondent authorities commanding them to approve the services of the petitioners being teaching and non-teaching staff of Emmanuel English School, P.O-Samsi, District-Malda and pay the salary and other admissible allowances like the teaching and non-teaching staff working in the schools affiliated under the West Bengal Board of Secondary Education.

(d) Writ/order/direction in the nature of Mandamus should not be issued upon the respondent school authorities commanding them to pay the salary and other admissible allowances at part with the teachers of the State Aided Schools with arrear since 1998 and interest thereof." And many others.

The said writ petition was disposed of on 10th February, 2010 on the ground of delay in approaching the Court. Against that order appeal was preferred being MAT No. 342 of 2010 which was allowed by the Hon''ble Division Bench vide its order dated 28th April, 2012 thus directing the Secretary, School Education Department Government of West Bengal to consider the grievances of the petitioners with regard to the non-payment of emoluments by the school authorities at a rate equivalent to their counterparts with equivalent educational qualification in State Aided Educational Institution of the State at an earlier date positively within a period of 4 (four) weeks from the date of communication of this order after given an opportunity of hearing to the representatives of the petitioners and the school authority.

Thereafter on 28th July, 2010 the Secretary, Government of West Bengal Education Department passed his order thus directing the school authority to pay the emoluments immediately to the employees of the Emmanuel English School at Samsi, District-Malda at a rate equivalent to their counterparts with educational qualifications in State Aided Educational Institutions of State of West Bengal. Since nothing was done by the school authority after the order passed by the Secretary, Education Department, Government of West Bengal on 28th July, 2010. 5th August, 2010 petitioners without finding any alternative made a representation before the school authority for granting equal pay with their counterpart working at Government Aided Schools. But no step was taken to grant the emoluments to the petitioners at par with their counterparts i.e. teachers working at government aided schools having equivalent qualifications like the petitioners.

Hence, the present writ petition.

Mr. Bhattacharya, learned Senior Counsel, appearing for the petitioner submitted that the petitioners are entitled to enjoy equal emoluments with their counterparts who are working with equivalent qualification like the petitioners at the government aided schools.

Mr. Bhattacharya also contended that every time the petitioners were given assurances by the Principal of the said school that their demand would be fulfilled by allowing them equal salaries at par with the counterparts working with the equal qualification at the Government Aided Schools but till today nothing have been done by the authority.

Mr. Bhattacharya also drew my attention to the chart showing how the petitioners have been deprived of from their counterparts as per ROPA 2009 Read with ROPA 1998 which is quoted below:-

In support of his contention Mr. Bhattacharya relied on an Eleven Bench Supreme Court decision reported in (2002) 8 Supreme Court Cases Page-481 Paragraphs-107, 246, 247 and Paragraph-5 (a) at Page 709 (T.M.A Pai Foundation And Others vs State of Karnataka And Others).

Mr. Bhattacharya also relied on a Division Bench Judgment reported in 2000 (1) CHN (CAL) Page-225 Paragraph-18 (The Principal J.D. School vs. A.K. Mazumdar) which is quoted below:-

"Para-18-There cannot be any doubt whatsoever that even the minority institutions within the meaning of Articles 29 and 30 of Constitution of India are not free to do whatever they like. In the name of the Management of the school they can neither mismanage the same nor run an educational institution by way of a commercial pursuit. Thus, the State in a given case, may regulate the functions of all the schools including minority institution except to the extent protected under Article 30 of the Constitution of India by enacting a statute. The Delhi Abibhavak Mahasangh''s Case (supra) must, therefore, be considered in the light of the statute governing the field".

Mr. Bhattacharya also relied on a Division Bench Judgment reported in The Association of Teachers in Anglo Indian School Vs. The Association of Aids of Anglo Indian School in India and others, AIR 1995 Cal 194 , 2002 (2) 9CLJ) Page-393 Paragraphs-24, 29 and 30 (The Association of Heads of Anglo Indian Schools vs The State of West Bengal & Others).

Mr. Bhattacharya further vehemently urged that the school authority is having huge fund therefore, to grant equal emoluments at par with their counterparts having equivalent qualifications at Government Aided Schools is not a tough job on the part of the school authority.

Mr. Bhattacharya also drew my attention to some bank accounts of the school authority wherefrom it is reveled that the school authority has enough financial capacity to grant equal emoluments to the petitioners at par with their counterparts of the Government Aided Schools who are having equivalent qualifications like the petitioners. Therefore, in conclusion Mr. Bhattacharya contended that the writ petition should be allowed by directing the school authority to grant equal pay as per Government Order dated 28th July, 2010 pursuant to the Division Bench order dated 28th April, 2010 passed in MAT No. 342 of 2010.

Mr. Bhattacharya further contended that the respondent school authority should be directed to grant revision of pay scale to the petitioners in terms of claim made by the petitioners in Annexure P4 as quoted above both arrear and current without any delay with further direction upon the respondent school authority to pay the current salary at a rate of Rs. 34,170/- to the petitioner Nos. 1 and 2 and at a rate of Rs. 27,000/- to the petitioner No. 3 and at a rate of Rs. 23040/- to the petitioner No. 4 and at a rate of Rs. 18315/- to the petitioner No. 5.

Mr. Supriya Chattopadhyay, learned Advocate appearing for the State after adopting the submissions advanced by Mr. Bhattacharya submitted that the petitioners are entitled to get the benefits at par with their counterparts who are working at Government Aided Schools with equivalent qualifications like the petitioners. In support of his contention Mr. Chattopadhyay relied on a Single Bench Judgment passed in WP No. 5103 (W) of 2003 (Mahendra Narain Pathak & Others vs the State of West Bengal & Others) which was affirmed by the Division Bench in FMAT No. 369 of 2004 (Sree Digambar Jain Vidyalaya & Anothers vs. Shri Mahendra Narain Pathak & Others) where the Hon''ble Division Bench affirmed the order passed by the Learned Single Judge whereby the Learned Single Judge directed the Digambar Jain School Authority to grant emoluments to the petitioners at par with their counterparts in accordance with law so long the policy of the government being Memo dated 29th May, 2002 is in force.

Per contra, Mr. Partha Banerjee, learned Advocate appearing for the school authority contended that it is not disputed that Memo dated 29th May, 2002 is not applicable in respect of the respondent school. But since the respondent school is governed by Section 2G of the National Commission for minority education therefore, the school is not obliged to accept the pay structure as indicated by the government vide Memo dated 29th May, 2002.

Mr. Banerjee further contended that the petitioners have not been paid only revised D.A as per government rate but basic pay paid to the petitioners is more than government pay structure, as school is paying Rs. 10,300/- but ROPA suggested only Rs. 9000/- . Therefore, school is paying higher than ROPA 2009.

Mr. Banerjee also submitted that since the school is a minority school governed by Article 30, therefore, it is not mandatory on the part of the school authority to grant benefit of ROPA, 2009 in toto in respect of D.A. to the petitioners.

Mr. Banerjee also vehemently urged that since the school is only D.A. getting school and government has no financial control over the said school, save and except the D.A. therefore, the school authority is not at all obliged to extend benefit of ROPA, 2009 to its teaching and non-teaching staff at par with the Government Aided Schools.

After considering the submissions advanced by the learned Advocates appearing for the respective parties and after perusing the records and the decisions cited by the learned advocates I find that there is a major discrimination adopted by the school authority to fix the petitioners pay scale which is reveled from the Page 169 to 186 of the writ petition. The admissible basic pay in respect of the petitioners No. 1 to 4 in the month of August, 1998 was Rs. 6000/- but the petitioners received basic pay Rs. 1780/- in the month of August, 1998 by the government school authority. The admissible basic pay in respect of the petitioner No. 5 the Clerk-cum-Typist in the month of August, 1998 was Rs. 3350/- but the basic pay given by the school authority was Rs. 1420/- which proved gross discrimination adopted by the school authority in respect of the disbursement of salaries to the petitioners.

It is revealed from the chart shown in Annexure P4 Page 123 that admissible salary per annum of the petitioner No. 1 as per ROPA 1998 and 2009 is Rs. 30,25,492/- but the salary drawn by the petitioner No. 1 per annum is Rs. 10,18,613/- therefore, amount due and payable in respect of petitioner No. 1 is Rs. 20,06,879/- . In respect of petitioner No. 2 the admissible salary per annum is Rs. 30,25,492/- but the salary drawn by him is Rs. 10,73,848/- therefore amount due and payable in respect of the petitioner No. 2 is Rs. 19,51,644/- . In respect of petitioner No. 3 the admissible salary per annum is Rs. 23,81,183/- but the salary drawn by him is Rs. 9,51,627/- therefore amount due and payable in respect of the petitioner No. 3 is Rs. 14,29,556/- . In respect of petitioner No. 4 the admissible salary per annum is Rs. 19,24,835/- but the salary drawn by him is Rs. 5,43,840/- therefore amount due and payable in respect of the petitioner No. 4 is Rs. 13,80,995/- . In respect of petitioner No. 5 the admissible salary per annum is Rs. 16,33,390/- but the salary drawn by him is Rs. 8,82,709/- therefore amount due and payable in respect of the petitioner No. 5 is Rs. 7,70,681/- .

I also find from records that pursuant to the Division Bench Judgment after holding hearing the Secretary, Government of West Bengal Education Department vide its order dated 28th July, 2010 directed the school authority to pay emoluments immediately to the employees of the Emmanuel English School at Samsi District-Malda at a rate equivalent to their counterparts with equal education qualifications in State Aided Educational Institutions of the State of West Bengal.

The education with which I am concerned here is the subject matter of directive principles of the State Policy contained in Chapter 4 of the Constitution it is accepted that largely education in this State depends on the aid made available by the State to the institution even the present institutions is also receiving D.A. for its teaching and non-teaching staff at par with their counterparts of the government aided schools. The Managing Committee of such D.A, getting institution had no confusion in establishing the institution. They became members of the Managing Committee in view of the Rule 6 of 1969 Management Rules. The Management Committee of the present school authority is receiving aid from the State to the extent of D.A for the teaching and non-teaching staff of the school. The amount of such aid is equivalent to the amount of D.A. payable to the teaching and non-teaching staff of fully aided institutions.

The difference between the fully aided institutions and partially aided institutions is that the fully aided institutions get D.A as well as the basic salaries by way of aid from the government but D.A. receiving institutions get only the portion of D.A and basic pay of the teaching and non-teaching staff of those D.A receiving institutions are to be borne by the institutions which is not controlled by the State. The government has a safeguard to the child who would be the grown up future citizen, adopted the policy vide Memo dated 29th May 2002 that all the D.A getting institutions have to apply the pay structure to its teaching and non-teaching staff as admissible to the teaching and non-teaching staff of aided government schools with the intention that the child who would be grown up citizen of the State should be provided with the best education by the teachers of the institution where he/she takes admission for education.

But in the present case the Managing Committee of the institution has no interest for the betterment of the students of the said institution.

Not only that the school authorities did not bother to disburse salary at par with the teaching and non-teaching staff of the Government aided school.

I cannot ignore the facts stated in Page-35 of the A/R of the petitioners wherefrom it is reveled that the said institution''s earning for the Session 2015 is Rs. 91,72,880/- from the students. I also cannot shut my eyes to the fact that the respondent school has been registered by the government of West Bengal vide its Memo dated 24th February, 1998 by issuing no objection certificate in favour of the said institution to grant the said institution under the State with a rider in "Serial No. 6" that violation of any of the conditions laid down in sub para-3, 4 and 5 shall entail withdrawal of the no-objection of the State Government with effect from the beginning of the academic year next to that in which such violation is committed. Therefore, now the school authority cannot argue that being the D.A getting school it is not obligatory on their part to accept pay structure as prescribed by the government by introducing the policy in Memo dated 29th May, 2002.

Therefore, the school authority cannot escape from their liabilities to extend benefit of ROPA 1998 and ROPA 2009 to the teaching and non-teaching staff of the said school as prescribed, in the Memo dated 29th May, 2002 as the school is accepting the D.A. for its teaching and non-teaching staff from the State Government. Therefore, I direct the respondent No. 8, Principal, Emmanuel English School, Samsi, District-Malda to pay emoluments immediately to the four teaching staffs and one non-teaching staff of the institution at a rate equivalent to their counterparts with equal educational qualifications in State aided educational institutions of the State of West Bengal by implementing the order dated 28th July, 2010 issued by the Secretary, Government of West Bengal Education Department pursuant to the Division Bench order passed in MAT No. 342 of 2010 dated 28th April, 2010.

Needless to mention here that at the time of paying emoluments to the petitioners at a rate equivalent to their counterparts with equal educational qualifications in state aided educational institutions of the State of West Bengal the school authority will fix the petitioners emoluments as indicated in the Annexure P4 of present writ petition at Page-123.

Since a considerable period of time has already elapsed therefore, entire exercise should be completed by the respondent No. 8 within a period of 8 (eight) weeks from the date communication of this order.

This writ petition is disposed of without any order as to costs.

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