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in 1923 the respondent No.1-School (for short `the School’) was initially established as a mission school by the respondent No.2. The School adopted the 10+2 system in 1993 and is presently affiliated to the Himachal Pradesh Board of School Education. Before independence in 1947 the School was receiving grant-in-aid from the

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                                                          Reportable

              IN THE SUPREME COURT OF INDIA

               CIVIL APPELLATE JURISDICTION

              CIVIL APPEAL NO. 2676 OF 2010

Mrs. Satimbla Sharma and Ors.                          ...     Appellants

                                 Versus

St. Paul's Senior Secondary School and Ors.    ... Respondents

                         J U D G M E N T

A. K. PATNAIK, J.

      This   is   an   appeal   against   the   judgment   dated 

25.07.2008   of   the   Division   Bench   of   the   High   Court   of 

Himachal Pradesh,   Shimla,   in   Letters Patent   Appeal   No.48 

of 2004.

2.    The facts very briefly are that in 1923 the respondent 

      No.1-School   (for   short   `the   School')   was   initially 

      established   as   a   mission   school   by   the   respondent 

      No.2.     The   School   adopted   the   10+2   system   in   1993 

      and   is   presently   affiliated   to   the   Himachal   Pradesh 

      Board   of   School   Education.     Before   independence   in 

      1947   the   School   was   receiving   grant-in-aid   from   the 

                                     2

      British   Indian   Government   and   thereafter   from   the 

      Government of India upto 1950.   From 1951 to 1966, 

      the   School   received   grant-in-aid   from   the   State 

      Government   of   Punjab.     After   the   State   of   Himachal 

      Pradesh   was   formed,   the   School   received   grant-in-aid 

      from the Government of Himachal Pradesh during the 

      years   1967   to   1976.     From   the   year   1977-1978,   the 

      School   has   not   been   receiving   any   grant-in-aid   from 

      the Government of Himachal Pradesh and the teachers 

      of the School are being paid less than the teachers of 

      Government schools and Government aided schools in 

      the State of Himachal Pradesh.  

3.    Not satisfied with their salary and allowances, some of 

      the   teachers   of   the   School   filed   a   Writ   Petition,   CWP 

      No.1038   of   1996,   in   the   High   Court   of   Himachal 

      Pradesh   for   a   direction   to   pay   the   salary   and 

      allowances   at   par   with   the   teachers   of   Government 

      schools   and   Government-aided   schools   and   by 

      judgment   dated   11.10.2004   the   learned   Single   Judge 

      of   the   High   Court   of   Himachal   Pradesh   allowed   the 

      Writ Petition and directed the respondent nos.1 and 2 

                                   3

      to pay to the writ petitioners salary and allowances at 

      par   with   their   counter-parts   working   in   the 

      Government schools from the dates they were entitled 

      to   and   at   the   rates   admissible   from   time   to   time. 

      Aggrieved by the judgment of the learned Single Judge, 

      the respondent nos.1 and 2 filed Letters Patent Appeal 

      No.48 of 2004 (for  short `the LPA')  before  the  Division 

      Bench   of   the   High   Court   and   by   the   impugned 

      judgment dated 25.07.2008, the Division Bench of the 

      High   Court   set   aside   the   judgment   of   the   learned 

      Single   Judge   and   dismissed   the   Writ   Petition   of   the 

      appellants.

4.    Learned   counsel   appearing   for   the   appellants 

      submitted that the appellants do the same work as the 

      teachers of Government schools and Government aided 

      schools and yet are being paid lower than the teachers 

      of Government schools and Government aided schools. 

      He further submitted that the Himachal Pradesh State 

      Government   Recognized   Aided   Schools   Teachers' 

      Association and others had filed Writ Petitions, C.W.P. 

      No.413   of   1989   and   414   of   1989,   in   the   Himachal 

                               4

Pradesh High Court for appropriate writs/directions to 

the   State   Government   to   pay   95%   of   the   grant-in-aid 

towards   approved   expenditure   in   a   school   year   to   the 

privately   managed   recognized   schools   borne   on   the 

grant-in-aid   list   with   a   view   to   enable   the 

managements of such schools to pay the teachers and 

allied   staff   of   the   schools,   the   same   pay   scales   and 

allowances   as  are   paid   to   their   counter-parts   working 

in   the   Government   schools   in   the   State   of   Himachal 

Pradesh   and   by   order   dated   09.09.1992,   a   Division 

Bench of Himachal Pradesh held that teachers of such 

private   recognized   aided   schools   are   entitled   to   same 

emoluments   as   received   by   their   counter-parts   in   the 

State   Government   and   allowed   the   writ   petitions   and 

directed the State Government and the management of 

the   private   recognized   aided   schools   to   work   out   the 

emoluments   of   the   teachers   and   pay   the   same   to 

teachers   of   the   private   recognized   aided   schools.   He 

further   submitted   that   against   the   order   dated 

09.09.1992 of the Division Bench of Himachal Pradesh 

High Court, the State of Himachal Pradesh came up in 

                                      5

      appeal   to   this   Court   in   Civil   Appeal   Nos.   1233   and 

      1234   of   1993   but   this   Court   dismissed   these   two 

      appeals   on   10.05.1995.     He   vehemently   argued   that 

      only with a view to wriggle out from the liability to pay 

      salary   and   allowances   to   its  teachers   and   staff   at  par 

      with the salary and allowances of Government schools, 

      the   School   has   unilaterally   decided   to   stay   out   of   the 

      grant-in-aid   scheme   since   1977-1978.     He   submitted 

      that   the   learned   Single   Judge   rightly   held   in   his 

      judgment dated 11.10.2004 in C.W.P. No.1038 of 1996 

      filed   by   the   petitioners   that   the   School,   which   had 

      been receiving grant-in-aid till 1977-1978, could not of 

      its own volition stop to receive grant-in-aid and rightly 

      directed the School to pay to the appellants salary and 

      allowances   at   par   with   their   counter-parts   working   in 

      the Government schools.

5.    Learned counsel for the appellants submitted that the 

      Division   Bench   of   the   High   Court   has   set-aside   the 

      judgment   of   the   learned   Single   Judge   after   taking   an 

      erroneous   view   in   the   impugned   judgment   that   the 

      School   was   under   no   obligation   to   have   accepted   the 

                             6

grant-in-aid which would have led to diminution of its 

rights   guaranteed   under   Article   30(1)   of   the 

Constitution.     He   further   submitted   that   the   Division 

Bench   of   the   Himachal   Pradesh   High   Court   has   also 

sustained   the   contention   of   the   School   that   the 

teachers  of  private  recognized   schools  had  no  right  to 

claim   salary   equal   to   that   of   their   counter-parts 

working in Government schools and Government aided 

schools.  He submitted that Rule 45-Q of the Grant-in-

Aid   Rules   of   the   State   of   Himachal   Pradesh   provides 

that   management   shall   introduce   such   scales   of   pay 

and   allowances   for   teachers   and   other   staff   members 

as   prescribed   by   the   Government   for   corresponding 

staff in Government schools.   He submitted that if the 

teachers   of   Government   aided   schools   are   entitled   to 

same   salary   and   allowances   as   the   teachers   of   the 

Government schools, there is no reason as to why only 

the   teachers   of   private   unaided   schools   should   be 

denied   the   salary   and   allowances   of   Government 

schools.   He submitted that if the pay and allowances 

of   the   teachers   of   private   minority   schools   such   as 

                                      7

      respondent no.1 are not made the same as that of the 

      pay and allowances of the teachers of the Government 

      schools and Government aided schools, the teachers of 

      private minority schools will suffer discrimination and 

      their right to equal pay for equal work under Article 14 

      read   with   Article   39(d)   of   the   Constitution   will   be 

      violated.     He   relied   on   the   decision   of   this   Court   in 

      Frank Anthony Public School Employees' Association  v. 

      Union   of   India   &   Ors.   [(1986)   4   SCC   707]   wherein 

      Section   12   of   the   Delhi   School   Education   Act   which 

      made the provisions of Section 10 providing for parity 

      of scales of pay and allowances of the employees of the 

      recognized private schools with that of the schools run 

      by   the   appropriate   authority   inapplicable   to   unaided 

      minority institutions as discriminatory.

6.    Learned   counsel   for   the   appellants   submitted   that   in 

      State of H.P. vs.  H.P. State Recognised & Aided Schools  

      Managing   Committees   and   Others  [(1995)   4   SCC   507] 

      this   Court   relying   on  Mohini   Jain  case   [(1992)   3   SCC 

      666] held that the right to education is a fundamental 

      right guaranteed under Part-III read with Part-IV of the 

                                    8

      Constitution   of   India.     He   submitted   that   since   the 

      right   to   education   is   a   fundamental   right,   school 

      education has a public element in it and the Court can 

      always issue a mandamus to enforce a public duty in 

      matters   of   education.     He   submitted   that   in  K.  

      Krishnamacharyulu   and   Others  vs.  Sri   Venkateswara  

      Hindu   College   of   Engineering   and   Another  [(1997)   3 

      SCC 571] employees of a non-aided private educational 

      institution   claimed   parity   in   pay-scales   with   the 

      employees   of   Government   institutions   and   this   Court 

      held that the  employees  had an enforceable  right and 

      there was an element of public interest in such a claim 

      and   the   teachers   of   a   private   unaided   institution   is 

      entitled to avail the remedy provided under Article 226 

      of   the   Constitution   and   they   cannot   be   denied   the 

      same   benefits   which   were   available   to   other   teachers 

      working in Government institutions.    

7.    Learned counsel for the appellants submitted that the 

      School is provisionally affiliated to the Council for the 

      Indian   School   Certificate   Examinations   and   the 

      conditions   of   provisional   affiliation   of   schools 

                              9

prescribed   by   the   Council   for   the   Indian   School 

Certificate Examinations stipulate in clause (5)(b) that 

the   salary   and   allowances   and   other   benefits   of   the 

staff   of   the   school   must   be   comparable   to   that 

prescribed by the State Department of Education.   He 

referred   to   the   report   of   the   Education   Commission 

1954-66   to   the   Ministry   of   Education,   Government   of 

India,   recommending   that   the   scales   of   pay   of   school 

teachers   belonging   to   the   same   category   but   working 

under   different   managements   such   as   government, 

local   bodies   or   private   managements   should   be   the 

same   and   this   principle   of   parity   should   be   adopted 

forthwith.  He submitted that sub-section (3) of Section 

23   of   the   Right   of   Children   to   Free   and   Compulsory 

Education Act, 2009 (for short `the 2009 Act') provides 

that   the   salary   and   allowances   payable   to,   and   the 

terms   and   conditions   of   service   of,   teachers   shall   be 

such   as   may   be   prescribed.     He   referred   to   Section 

38(2)(l)   of   the   2009   Act   which   provides   that   the 

appropriate   Government   may,   by   notification, 

prescribe   the   salary   and   allowances   payable   to,   and 

                                    10

      the   terms   and   conditions   of   service   of,   teacher   under 

      sub-section   (3)   of   section   23.     He   submitted   that   the 

      appropriate   Government   as   defined   in   Section   2(a)   of 

      the   2009   Act,   namely,   the   State   Government, 

      therefore,   can   issue   a   notification   prescribing   the 

      salary   and   allowances   payable   to,   and   the   terms   and 

      conditions of service of, teacher, under sub-section (3) 

      of section 23 of the 2009 Act.

8.    Learned   counsel   for   the   respondent   nos.1   and   2,   on 

      the   other   hand,   supported   the   impugned   judgment   of 

      the   Division   Bench   of   the   High   Court.     He   further 

      submitted   that   if   the   School   is   made   to   pay   to   its 

      teachers the same salary and allowances of teachers of 

      Government schools and Government aided schools, it 

      will   have   to   increase   the   school   fees   and   this   would 

      affect the students whose parents cannot afford higher 

      school fees.

9.    In our considered opinion, the Division Bench the High 

      Court has rightly held in the impugned judgment that 

      the   teachers   of   private   unaided   minority   schools   had 

      no right to claim salary equal to that of their counter-

                               11

parts working in Government schools and Government 

aided   schools.       The   teachers   of   Government   schools 

are paid out of the Government funds and the teachers 

of Government aided schools are paid mostly out of the 

Government   funds,   whereas   the   teachers   of   private 

unaided minority schools are paid out of the fees and 

other   resources   of   the   private   schools.     Moreover, 

unaided   private   minority   schools   over   which   the 

Government   has   no   administrative   control   because   of 

their autonomy under Article 30(1) of the Constitution 

are   not   State   within   the   meaning   of   Article   12   of   the 

Constitution.  As the right to equality under Article 14 

of   the   Constitution   is   available   against   the   State,   it 

cannot   be   claimed   against   unaided   private   minority 

schools.     Similarly,   such   unaided   private   schools   are 

not   State   within   the   meaning   of   Article   36   read   with 

Article 12 of the Constitution and as the obligation to 

ensure equal pay for equal work in Article 39(d) is on 

the   State,   a   private   unaided   minority   school   is   not 

under any duty to ensure equal pay for equal work.

                                      12

10.           In     Frank   Anthony   Public   School   Employees'  

       Association  v.  Union   of   India   &   Ors.   (supra),   relied   on 

       by learned counsel for the appellants, the scales of pay 

       and   other   terms   and   conditions   of   service   of  teachers 

       and   other   employees   of   the   Frank   Anthony   Public 

       School,   New   Delhi,   which   was   a   private   unaided 

       minority institution, compared very unfavourably with 

       those of their counterparts of the Delhi Administration 

       Schools   and   the   Frank   Anthony   Public   School 

       Employees'   Association   sought   equalization   of   their 

       pay-scales   and   conditions   of   service   with   those   of 

       teachers   and   employees   of   Government   schools. 

       Sections   8   to   11   of   the   Delhi   School   Education   Act 

       dealt   with   the   terms   and   conditions   of   service   of 

       employees of recognized private schools.  Section 10 of 

       the   Delhi   School   Education   Act   provided   that   the 

       scales   of   pay   and   allowances,   medical   facilities, 

       pension, gratuity, provident fund and other prescribed 

       benefits   of   the   employees   of   the   recognized   private 

       schools   shall   not   be   less   than   those   of   the 

       corresponding status in schools run by the appropriate 

                              13

authority.   Section   12   of   the   Delhi   School   Education 

Act, however,  provided  that the provisions  of Sections 

8   to   11   including   Section   10   were   not   applicable   to 

unaided minority institutions.   The case of teachers of 

Frank Anthony Public School was that if Sections 8 to 

11 were made applicable to them,  they would at least 

be   as   well   off   as   teachers   and   other   employees   of 

Government   schools.     The   Frank   Anthony   Public 

School   Employees'   Association   therefore   challenged 

Section   12   of   the   Delhi   School   Education   Act   as 

discriminatory   and   violative   of   Article   14   of   the 

Constitution and this Court held that Section 12 of the 

Delhi   School   Education   Act   insofar   as   it   makes   the 

provisions of Sections 8 to 11 inapplicable to unaided 

minority schools is discriminatory.       This was thus a 

case   in   which   the   employees   of   unaided   minority 

institutions   were   not   given   the   benefits   available   to 

employees of other private institutions under Sections 

8, 9, 10 and 11 of the Delhi School Education Act only 

on the ground that unaided minority institutions enjoy 

autonomy   of  administration  under  Article  30(1)  of the 

                                      14

       Constitution and this Court held that this could not be 

       a rational basis for differentiation of service conditions, 

       pay   and   other   service   benefits   between   employees   of 

       unaided   minority   institutions   and   the   employees   of 

       other   private   schools   and   the   Court   declared   Section 

       12   as   discriminatory.     In   other   words,   the   State   by 

       making a statutory provision in Section 12 of the Delhi 

       School   Education   Act   which   was   discriminatory,   had 

       violated   the   mandate   to   the   State   under   Article   14   of 

       the Constitution not to deny the equal protection of the 

       laws within its territories. This decision in the case of 

       Frank Anthony Public School Employees' Association  v. 

       Union   of   India   &   Ors.   (supra)   does   not   assist   the 

       appellants   in   any   manner   because   the   guarantee   of 

       equality,   as   we   have   said,   is   not   available   against   an 

       unaided private minority school.

11.        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 

                               15

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. 

In  Sushmita Basu & Ors. v.  Ballygunge Siksha Samity  

& Ors. [(2006) 7 SCC 680], the teachers of a recognized 

private   school   known   as   Ballygunge   Siksha   Sadan   in 

Calcutta   filed   a   Writ   Petition   in   the   High   Court   of 

Calcutta   praying   for   issuance   of   writ   of   mandamus 

directing the authorities of the school to fix the salary 

of teaching and non-teaching staff of the school and to 

remove   all   anomalies   in   the   scales   of   pay   as 

recommended   by   the   Third   Pay   Commission   as 

extended   to   other   Government   aided   schools   and 

Government   schools   and   this   Court   held   that   in   the 

absence   of   statutory   provision   no   such   direction   can 

be   issued   by   the   High   Court   under   Article   226   of  the 

Constitution.  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 teachers of 

Government   aided   schools,   then   a   writ   of   mandamus 

to the school could be issued to enforce such statutory 

                                     16

       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 recognized unaided schools the 

       same   salary   and   allowances   as   were   payable   to 

       Government institutions. 

12.             In  K.   Krishnamacharyulu   and   Others  vs.  Sri  

       Venkateswara   Hindu   College   of   Engineering   and  

       Another (supra), relied upon by the learned counsel for 

       the   appellants,   executive   instructions   were   issued   by 

       the   Government   that   the   scales   of   pay   of   Laboratory 

       Assistants   as   non-teaching   staff   of   private   colleges 

       shall   be   at   par   with   the   government   employees   and 

       this   Court   held   that   even   though   there   were   no 

       statutory   rules,   the   Laboratory   Assistants   as   non-

       teaching   staff   of   private   college   were   entitled   to   the 

       parity   of   the   pay-scales   as   per   the   executive 

       instructions   of   the   Government   and   the   writ 

       jurisdiction of the High Court under Article 226 of the 

                                       17

       Constitution   is   wide   enough   to   issue   a   writ   for 

       payment of pay on par with government employees.  In 

       the   present   case,   there   are   no   executive   instructions 

       issued by the Government requiring private schools to 

       pay   the   same   salary   and   allowances   to   their   teachers 

       as are being paid to teachers of Government schools or 

       Government aided schools.

13.          We   cannot   also   issue   a   mandamus   to   respondent 

       nos.1   and   2   on   the   ground   that   the   conditions   of 

       provisional   affiliation   of   schools   prescribed   by   the 

       Council for the Indian School Certificate Examinations 

       stipulate in clause (5)(b) that the salary and allowances 

       and   other   benefits   of   the   staff   of   the   affiliated   school 

       must   be   comparable   to   that   prescribed   by   the   State 

       Department of Education because such conditions for 

       provisional   affiliation   are   not   statutory   provisions   or 

       executive   instructions,   which   are   enforceable   in   law. 

       Similarly,   we   cannot   issue   a   mandamus   to   give   effect 

       to   the   recommendations   of   the   report   of   Education 

       Commission   1964-66   that   the   scales   of   pay   of   school 

       teachers   belonging   to   the   same   category   but   working 

                                    18

       under   different   managements   such   as   government, 

       local   bodies   or   private   managements   should   be   the 

       same, unless the recommendations are incorporated in 

       an executive instruction or a statutory provision.   We, 

       therefore,   affirm   the   impugned   judgment   of   the 

       Division Bench of the High Court.

14.         We, however, find that the 2009 Act has provisions 

       in   Section   23   regarding   the   qualifications   for 

       appointment   and   terms   and   conditions   of   service   of 

       teachers and sub-section (3) of Section 23 of the 2009 

       Act provides that the salary and allowances payable to, 

       and   the   terms   and   conditions   of   service   of,   teachers 

       shall be such as may be prescribed.  Section 38 of the 

       2009   Act   empowers   the   appropriate   Government   to 

       make   rules   and   Section   38(2)(l)   of   the   2009   Act 

       provides   that   the   appropriate   Government,   in 

       particular, may make rules prescribing the salary and 

       allowances payable to, and the terms and conditions of 

       service of teachers, under sub-section (3) of section 23. 

       Section   2(a)   defines   "appropriate   Government"   as   the 

       State Government within whose territory the school is 

                                         19

       established.           The   State   of   Himachal   Pradesh, 

       respondent  no.3 in  this  appeal,  is  thus empowered  to 

       make   rules   under   sub-section   (3)   of   Section   23   read 

       with   Section   38(2)(l)   of   the   2009   Act   prescribing   the 

       salary   and   allowances   payable   to,   and   the   terms   and 

       conditions   of   service   of,   teachers.   Article   39(d)   of   the 

       Constitution   provides   that   the   State   shall,   in 

       particular,   directs   its   policy   towards   securing   that 

       there   is   equal   pay   for   equal   work   for   both   men   and 

       women.   Respondent   no.3   should   therefore   consider 

       making   rules   under   Section   23   read   with   Section 

       38(2)(l)   of   the   2009   Act   prescribing   the   salary   and 

       allowances of teachers keeping in mind Article 39(d) of 

       the Constitution as early as possible.

15.          With   these   observations,   the   appeal   is   disposed   of. 

       There shall be no order as to costs. 

                                                      .............................J.

                                                           (R. V. Raveendran)

                                                      .............................J.

                                                           (A. K. Patnaik)

New Delhi,

August 11, 2011.   20

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2 thoughts on “in 1923 the respondent No.1-School (for short `the School’) was initially established as a mission school by the respondent No.2. The School adopted the 10+2 system in 1993 and is presently affiliated to the Himachal Pradesh Board of School Education. Before independence in 1947 the School was receiving grant-in-aid from the

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