Sebastian vs State of Kerala

K.A. Abdul Gafoor, J.—Petitioners are members of teaching and non-teaching staff of a recognised educational institution. Recognition is form Government in accordance with the statutory provision contained in the Kerala Education Act and Rules. Of course it is an unaided institution as well. No grant is paid form the Government. According to them they are paid so poorly. There is no comparison with salary paid to the teachers and non-teaching staff in aided schools in the private sector or in the Govt. Schools. At the same time, members of all the three groups are performing the same duties and functions. The education is to be imparted by the State. It is upon the sanction granted by the State that recognised institutions are functioning. In such circumstances, all of them shall be paid equally accepting the principle of equal pay for equal work.

2.In order to ensure payment of salary to the teachers of recognised schools, Government have brought in on the statute book the rules in Chapter XIV-AA. Rule 2 thereof provides that,

"The teaching and non-teaching staff of these schools shall be paid salary every month by cheques drawn on managements'' accounts in Nationalised or Scheduled Banks."

This is to ensure the payment of salary at the rate agreed to between the managements of the unaided recognised educational institutions and the members of staff concerned. Rule 2 therefore pre-supposes payment at a particular rate.

The management, the 3rd respondent, had agreed to pay all the teachers, the basic salary in the scales of pay fixed, by State Government for aided school staff with 50% of the DA. This is evident form Ext. P1 which is not disputed by the 3rd respondent. They are collecting huge fees form the students. The details regarding receipts and expenditure and the balance for the years form 1993-1994 to 1999-99 are given in Ground D to the Original Petition. During these years, there was a balance of Rs. 2,68,599/-, Rs. 6,00,364/-, Rs.7,12,950/-, Rs. 6,97,285-, Rs. 6,25,672/- respectively. Thus, huge profit is earned by the management. It is submitted that these facts are not disputed by the 3rd respondent. In such circumstances, the management is bound to pay salary and D.A. to the petitioners in terms of Ext. P1.

This claim is resisted by the 3rd respondent contending that this is not a matter on which a petition under Article 226 of the Constitution can be maintained. In support of this contention, counsel for the 3rd respondent relies on a Division Bench decision in Annamma v. State of Kerala 1994 (1) KLT 309. It is further contended that almost a similar issue had bene considered by a Division Bench in O.P. No. 8060/88 as revealed by Ext. R3(a). The Division Bench in paragraph 10 of the judgment held as follows:

"We are not satisfied that it is necessary or appropriate to direct the Government to bring in rules like those found in Chapter XIV-A of KER to govern recognised unaided schools considering their nature and the nature of the service rendered by teachers in most of those institutions. No grounds are made out for introduction of such rules at this stage since we feel that the rules in Chapter XIV-AA are sufficient safeguards against exploitation or unfair dealing. Our experience also shows that he introduction of Chapter XIV of KER has unnecessarily bred a lot of litigation, at times, even effecting the proper functioning of the schools. We do not think that grounds are made out for directing consideration of the introduction of provisions like the ones in Chapter XIV-A of K.E.R. for the running of the recognised unaided institutions in the State especially now that we are directing implementation of Chapter XIV-AA of KER. We therefore decline any relief in that regard".

No direction can be issued with regard to payment of salary in this case as the Government have not introduced nay provisions with regard to rate of pay and allowances applicable to the aided school teachers or members of non-teaching staff. So, the Original Petition shall fail.

It is true that a Division Bench of this Court in Annamma''s case 1994 (1) KLT 309 held that,

"the mere fact that the school is imparting education to the students cannot make the management a public authority amenable to the writ jurisdiction of this Court".

That was with regard to a case of disciplinary action. In the matter of appointment of teachers and with regard to their discipline, Chapter XIV-AA does not contain any restriction or intervention or possibility of interference by the department as in the case of aided school as contained in the rules in Chapter XIV-A KER. The only rule in Chapter XIV-AA KER, is rule 3 which reads as follows:

"The services of any member of the teacher or non-teaching staff shall not be terminated by the management without conducting a domestic enquiry and without giving the member an opportunity of being heard in that enquiry".

In otherwords, adherence to the principles of fairness and natural justice alone is insisted. That was the circumstance which led to Annamma''s case. In Ext. R3(a) case, petitioners therein wanted a particular scale of pay. The Division Bench noticed that in Chapter XIV-AA no scale has bene prescribed. It was in the above circumstances, the Division Bench directed consideration of "question of providing for revision of the salaries of the teaching and non-teaching staff in recognised unaided schools" and to take a decision thereon. This decision was rendered later than in Annamma''s case.

As pointed out by the counsel for the petitioners, Supreme Court had in a later decision had held as follows in K. Krishnamacharyulu v. Sri. Venkateswara Hindu College of Engineering AIR 1998 SC 295 :

"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 needs of the education 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 is 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, 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 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 entitle dot equal pay so as to be on par with Government employees under Article 39(d) of the constitution."

The decision of the Division Bench in Annamma''s case and the decision in Krishnamacharyulu''s case have to be appreciated in the light of the statutory provisions contained in Rule 2 of Chapter XIV-AA KER, which ensures payment of salary to the teachers by the management of unaided recognised schools. That pre-supposes a rate of pay as agreed to by the management and not as stipulated by the Government. When there i such a statutory provision, necessarily, with respect to non-payment of salary, Writ Petition can be maintained to judicial review, an action or inaction on the part of the authority invested with power to impart education. It is in that perspective the decision of the Supreme Court in Krishnamacharyulu''s case has to be viewed. Thus a distinction has to be drawn with respect to Writ Petition on payment to teachers and that relating to academic matters or disciplinary matters. Viewed in that angle, necessarily the management is performing a duty having a public element as held by the Supreme Court. Necessarily, petitioner can, if there is flagrant violation of Rule 2 Chapter XIV-AA KER, seek a direction for enforcement of that rule in a petition under Article 226 of the Constitution of India.

In this case, there is an agreement in Ext. P1 which is not disputed. What is contended by the management is that this agreement was with some teachers and with some of the non-teaching staff. Several of them who were parties to Ext. P1 had already gone out of service. Ext. P1 cannot be therefore enforced in respect of those who are not parties.

I am unable to agree with this contention. When the management has agreed to pay at the rate mentioned in Ext. P1, they cannot deviate from it, taking into account the rate of pay paid to those working in similar posts in Government and aided schools and functions enjoined on them and the qualifications possessed by the teachers in the service of the 3rd respondent. Whether A was in service at the time of agreement, Ext. P1 or B who claims the same role is not a party to Ext. P1 does not matter much. So that contention of the management cannot be accepted.

When it is an admitted fact that a particular rate of pay is agreed in Ext. P1 by the management, and when there is a statutory provision in Rule 2 of Chapter XIV-AA KER that the management shall pay the salary by crossed cheques drawn against Nationalised banks, necessarily, the pay that shall be paid in terms of Rule 2 is the rate agreed by the Manager. Necessarily this is a case where Article 226 petition shall lie and the management shall be directed to pay salary as agreed in Ext. P1 to the teachers and members of non-teaching staff as the case may be.

This Court in the decision reported in Association of Industrial Training Centres of Kerala v. Director of Training 2000 (3) KLT 116 has also considered the agreement by the management to pay salary to the employees. Of course, that was in respect of recognised and unaided Industrial Training Centres. This Court held that,

"It is as a result of discussion that a decision has been taken in the 31st meeting held on 31.11.1995. No further affidavit or statements has been filed denying this. The management, after having agreed, cannot go back".

Here also the management had agreed as seen form Ext. P1 to pay the teachers and members of non-teaching staff salary at a particular rate viz, the basic pay as is available to aided school employees and 50% DA as is paid to the aided school Staff. Necessarily, that agreement has to be honoured by the 3rd respondent. A direction for payment of salary at the above rate is, hence issued to the 3rd respondent, Manager.

The educational institution is not meant for to amass wealth or to earn profit. Imparting of education or establish of educational institution is a sacred function. Under Article 41 of the constitution of India, education had been recognised as a right, enforcement of which shall be, of course, within the limits of State''s economic capacity. Of course there are also organisations engaged in such function on receiving recognition from Government. Third respondent is one among them. There was no case that the 3rd respondent has applied for and obtained sanction to establish a recognised institution to run it as a business establishment or profit making concern. Nobody will be expected to do so much less the 3rd respondent with a divine back ground. The averments in Ground D to the Original Petition as mentioned above shows that during 1993-94 there was a profit of Rs. 2.68 lakhs, in 1994-95, a profit of Rs. 6 lakhs, in 1995-96, a profit of 7.1 lakhs, in 1997-98, a profit of Rs. 6.9 lakhs and 1998-99, profit of Rs. 6.2. lakhs. The salary paid during the last three years is Rs. 6.8 lakhs, Rs. 6.7 lakhs and Rs. 7.1 lakhs. Thus, the profit is almost equal to the salary being paid by the 3rd respondent. There averments were made by none other than the members of teaching staff and members of non-teaching staff who are really collecting the fees from the students and accounting it. So these averments come directly form the persons who deal with it, rather than the Manager who sees it or rather oversees it. The Manager has not even denied these averments, because it is enforce with maximum truth, perhaps. The Manager, to the reasons best known to him, did not deny these facts. Everyone earning such a huge profit shall pay first to its employees not at an enormous rate, but atleast at the rate agreed to by the management as is reflected in Ext. P1. Thus, this is a fit case for interference.

So the third respondent is directed to pay salary to the members of the teaching and non-teaching staff, the petitioners herein, at the rate as agreed to in Ext. P1 with arrears wherever it arises.

O.P. is allowed. No costs.