High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 9.6.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARWrit Petition No.604 of 20041.Tmt.T.Sorubarani (deceased)2.N.Thiruganasambandam,3.Minor T.Janani Priya, represented by her father and natural guardian N.Thiruganasambandam,4.Master T.Sankar Balaji, represented by his father and natural guardian N.Thiruganasambandam.(Respondents 2 to 4 were substitutedin the place of deceased 1st petitioner as per order dated 28.1.2005 inW.M.P.No.386 of 2005). ... Petitioners vs.1. The Correspondent/Principal, Arokiamada Matriculation Higher Secondary School, Udumalai Road, Pollachi.2. The Inspector of Matriculation School, Coimbatore.3. The Director of School Education, (Matriculation), Chennai-600 006. ... RespondentsWrit Petition is filed under Article 226 of the Constitution ofIndia to issue a Writ of Mandamus directing the first respondent topay regular scale of pay of Rs.1,400/- with other allowances for thepost of B.T. Assistant from 1991 and Post Graduate scale of pay ofRs.5,900/- with other allowances from 1997 to 2001 as per directionof the second respondent in proceeding in R.C.No.581/C/2002 dated1.4.2002. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr. N.RavichandranFor Respondents : Mr.Fr.A.Xavier Arulraj : Mr.A.Suresh Additional Government Pleader (Writ)for R2 and R3 -----O R D E RThe writ petition was originally filed by Tmt.T.Sorubarani, ateacher, who joined in the services of the first respondent school inthe year 1989. Her service was terminated in the year 2001. Thesecond respondent issued certain directions to the first respondentschool with regard to fixation of pay and other benefits. Toimplement the same, the writ petition has been filed. Pending writpetition, Tmt.T.Sorubarani died and the legal heirs of the teacherhave been impleaded as petitioners 2 to 4.2. The brief facts of the case is as follows:- LateT.Sorubarani said to be a post graduate teacher qualified in Masterof Arts and Master of Philosophy. She also passed Bachelor ofEducation in the year 1991-92. According to late teacher, she waspaid consolidated salary of Rs.650/- per month. At the time oftermination of service in the year 2001 she was drawing a sum ofRs.2,000/- as basic pay and Rs.2,098/- as Dearness Allowance.According to the deceased teacher, she is entitled to the Governmentscales of pay as applicable to the teacher under the Tamil NaduEducation Services. In short, the plea of the teacher was that shewas paid lesser salary than what she is entitled to under law.According to the deceased teacher, several representations were made,but, in vain. The deceased teacher filed W.P.No.2218 of 2002 toredress her grievance with regard to the plea for higher salary atleast on par with the Government scale of pay. The said writpetition was disposed off on 1.2.2002 directing the Inspector ofMatriculation School to consider the representation and passappropriate orders on merits. Consequent to the direction as above,the second respondent Inspector of Schools passed an order on1.4.2002 in R.C.No.581/C/2002 directing the first respondent schoolto pay the Government scales of pay. To implement this order,present writ petition has been filed. First respondent has notchosen to challenge the order of the second respondent.3. Learned counsel for the petitioners referred to the Code ofRegulations for Matriculation Schools for Tamil Nadu, in particularhe referred to Chapter-V, Rule 16(ii) and Chapter-VI, Rule 18(ii) andstated that the late teacher is entitled to the Government scales ofpay revised from time to time and the salary paid to the late teacherby the first respondent school is far less and is contrary to the https://hcservices.ecourts.gov.in/hcservices/ above stated Regulations. According to the late teacher as stated inthe affidavit, she was suffering from cancer and was operated and wasunder the medical management from 20.3.2001 to March, 2001. Sheavailed leave on medical ground from April, 2001 and subsequently shewas leave on loss of pay. According to the first respondent, thedeceased teacher was terminated from service in the year 2001 forunauthorised absence. There is no dispute on facts.4. The first respondent filed a counter-affidavit and statedthat the first respondent school is a privately managed minorityinstitution and cannot afford to pay the Government scales of pay.The first respondent school is a non-commercial and non-profitableinstitution and is being run by the charitable educational religioussociety. Therefore, according to the first respondent, the Code ofRegulations for Matriculation Schools in Tamil Nadu, is onlyrecommendatory in nature and not mandatory. The further contentionof the first respondent is that the late teacher in this case hasaccepted the salary and therefore, cannot seek for higher salary onpar with the Government scales of pay.5. The short question that arise in this case for considerationis whether the deceased teacher is entitled to the benefit of payparity as per the Government scales of pay revised from time totime.6. In support of the contention, learned counsel for thepetitioners relied upon the Apex Court's decision in Frank AnthonyPublic School Employee's Association – vs. - Union of India andothers reported in AIR 1987 Supreme Court 311 wherein the Apex Courtheld in paragraphs 17 and 23 as follows:-"17. Apart from the learned Judges whoconstituted the Nine Judge Bench, other learnedJudges have also indicated the view. In theleading case of the Kerala Education Bill, (AIR1958 SC 956) the Constitution Bench observedthat, as then advised, they were prepared totreat the clauses which were designed to giveprotection and security to the ill paid teacherswho were engaged in rendering service to thenation as permissible regulations. Theobservations were no doubt made in connectionwith the grant of aid to educationalinstitutions but that cannot make any differencesince, aid, as we have seen, cannot be madeconditional on the surrender of the rightguaranteed by Article 30(1). In State of Kerala– v. - Mother Provincial, (AIR 1970 SC 2079)(supra), it was said that to a certain extentthe State may regulate conditions of employment https://hcservices.ecourts.gov.in/hcservices/ of teachers. In All Saints High School v.Govt. of Andhra Pradesh, (AIR 1980 SC 1042),Chandrachud, C.J., expressly stated that for themaintenance of educational standards of aninstitution it was necessary to ensure that itwas competently staffed and, therefore,conditions of service prescribing minimumqualifications for the staff, their pay-scales,their entitlement, other benefits of service andthe safeguards which must be observed beforethey were removed or dismissed from service ortheir services terminated were permissiblemeasures of a regulatory character. Kailasam,J.,expressed the same view in almost identicallanguage. We, therefore, hold that Section 10of the Delhi Education Act which requires thatthe scales of pay and allowances, medicalfacilities, pension, gratuity, provident fundand other prescribed benefits of the employeesof a recognised private school shall not beless than those of the employees of thecorresponding status in schools run by theappropriate authority and which furtherprescribes the procedure for enforcement of therequirement is a permissible regulation aimed atattracting competent staff and consequently atthe excellence of the educational institution.It is a permissible regulation which in no waydetracts from the fundamental right guaranteedby Art. 30(1) to the minority institutions toadminister their educational institutions.Therefore, to the extent that Section 12 makesSection 10 applicable to unaided minorityinstitutions, it is clearly discriminatory.""23. We must refer to the submissions ofMr.Frank Anthony regarding the excellence of theinstitution and the fear that the institutionmay have to close down if they have to payhigher scales of salary and allowances to themembers of the staff. As we said earlier theexcellence of the institution is largelydependent on the excellence of the teachers andit is no answer to the demand of the teachersfor higher salaries to say that in view of thehigh reputation enjoyed by the institution forits excellence, it is unnecessary to seek toapply provisions like Section 10 of the DelhiSchool Education Act to the Frank Anthony PublicSchool. On the other hand, we should think that https://hcservices.ecourts.gov.in/hcservices/ the very contribution made by the teachers toearn for the institution the high reputationthat it enjoys should spur the management toadopt at least the same scales of pay as theother institutions to which Section 10 applies.Regarding the fear expressed by Shri FrankAnthony that the institution may have to closedown we can only hope that the management willdo nothing to the nose to spite the face, merelyto 'put the teachers in their proper place'.The fear expressed by the management here hasthe same ring as the fear expressed invariablyby the management of every industry thatdisastrous results would follow which may evenlead to the closing down of the industry if wagescales are revised.Order accordingly."Based on the above decision, learned counsel for the petitionersstated that in terms of Chapter-V, Rule 16(ii) of the Code ofRegulations for Matriculation Schools, Tamil Nadu, the teacher inthis case should be paid at least the Government scales of payrevised from time to time and not less which admittedly is the caseon hand. 7. The first respondent does not and cannot dispute that therecognition for running the school has been granted under the Code ofRegulations for Matriculation Schools, Tamil Nadu and suchrecognition is granted under Chapter-II, Rules 9 and 10. Therefore,Chapter-V, Rule 16(ii) automatically comes into operation and willapply to the first respondent school. 8. This Code of Regulations for Matriculation Schools, TamilNadu was challenged in W.P.No.197 of 1993 in Tamil Nadu Matriculationand CBSE Schools Teachers' Association - v. - State of Tamil Nadu andothers reported in 2002 Writ Law Reporter 688 and the Code ofRegulations for Matriculation Schools, Tamil Nadu was upheld byP.SATHASIVAM,J., as he then was. 9. The view expressed by the Matriculation Schools that theyare not under law obliged to pay the Government scales of pay wasrejected by the learned single Judge in the case ofV.Venkatachalapathy and four others – vs. - Vellore Co-operativeSugar Mills Matriculation School rep. by its President, Vellore SugarMills and Post, Vellore District and two others reported in 2000(II)CTC 478 and upheld by a Division Bench of this Court in W.A.No.1962of 2005 etc. batch in Special Officer, Salem Co-op. Sugar MillsMatriculation Higher Secondary School - v. - All Teachers Front & 2 https://hcservices.ecourts.gov.in/hcservices/ others reported in 2008 Writ Law Reporter 676 in which the DivisionBench held in para 28 as follows:-"28. As per the consistent view taken bythe Supreme Court and in the backdrop of thelegal positions laid down, which have beenilluminated in its decisions, it must be heldthat the Matriculation School teachers areentitled to get equal pay on par with theteachers who are working in the GovernmentSchools. This view is judiciously settledconviction. The legally assertive expressionscould never be ignored. As far as W.P.No.764of 2001 is concerned, the non-teaching staff inthe third respondent educational institutionsare also entitled to get equal pay on par withtheir counterparts serving in the GovernmentSchools. Therefore, the views expressed by thelearned Judges in their respective ordersdeserve to be confirmed."The contention of the respondent is therefore, rejected.10. Since the first respondent school is governed by the Code ofRegulations for Matriculation Schools, Tamil Nadu and in view of thedecisions referred to above, the first respondent has to implementthe direction issued by the second respondent. The first respondentis directed to fix the scale of pay guided by Rule 16(ii) inrespect of the deceased teacher Tmt.T.Sorubarani for the period inservice. The first respondent is further directed to determine andpay the petitioners 2 to 4 as per their entitlement, the salarypayable to the deceased teacher as above within a reasonable periodof time preferably within a period of four months from the date ofreceipt of a copy of this order. The Writ Petition is ordered asabove. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrartsTo 1. The Inspector of Matriculation School, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/

2. The Director of School Education, (Matriculation), Chennai-600 006.1 cc To Fr.A.Xavier, Advocate, SR.223771 cc To Mr.S.N.Ravichandran, Advocate, SR.224071 cc To The Government Pleader, SR.21570 W.P.No.604 of 2004NSM(CO)SRA(19/6/2009)