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2007 (8) TMI 817 - SC - Indian LawsSeeking to release and Pay D.A. with arrears along with interest - management of the school is the direct responsibility of the HCL or not? whether a writ of mandamus could be issued against the management of HCL - Difference Of Opinion between Judges - Principle of equal pay for equal work - Fixing Pay scale at par with the pay scale of Government Secondary School teachers or at par with Grade I and II Clerks - HELD THAT - We are of the view that the view taken by learned Single Judge appears to be correct that there was no relationship of the management of the HCL with that of the management of the school though most of the employees of the HCL were in the managing committee of the school. But by that no inference can be drawn that the school had been established by the HCL. The children of workers of HCL were being benefited by the education imparted by this school. Therefore, the management of HCL was giving financial aid but by that it cannot be construed that the school was run by the management of HCL. Therefore, under these circumstances, we are of opinion that the view taken by the learned Single Judge appears to be correct. Next, it was contended that even if the school is not a part of the management of the HCL, yet a direction could be given to the State of Jharkhand under the Act of 1981 to take over the management of the school and in that connection our attention was invited to the definition of proprietary school as defined in Section 2(d) of the Act. Therefore, the Government of Jharkhand in order to fulfill the constitutional mandate has got these students admitted to various schools. Therefore, the studies of the students have not been affected. So far as issuance of mandamus to the State Government for taking over of the proprietary school is concerned, that cannot be issued because the proprietary school as defined under section 2(d) read with Section 19 of the Act will have to make a request to the State of Jharkhand that they will bear all the financial responsibilities. If the Managing Committee makes a request to this effect to the State of Jharkhand, then the Government may consider but at present there is no such offer by the Managing Committee and as such no direction can be given to the State of Jharkhand to grant recognition to proprietary school because nobody is prepared to take the financial responsibilities of the management of the school. Hence, no direction can be issued to the State Government to take over the management of the School. In this view of the matter, we are of opinion that the view taken by learned Single Judge of the High Court of Jharkhand appears to be correct and there is no ground to interfere with the impugned order. Consequently, the Civil Appeal is dismissed. Fixing Pay scale at par with the pay scale of Government Secondary School teachers or at par with Grade I and II Clerks - After going through the order of the Division Bench we are of opinion that the view taken by the Division Bench of the High Court is correct. Firstly, the school is not being managed by the BCCL as from the facts it is more than clear that the BCCL was only extending financial assistance from time to time. By that it cannot be saddled with the liability to pay these teachers of the school as being paid to the clerks working with BCCL or in the Government of Jharkhand. It is essentially a school managed by a body independent of the management of BCCL. Therefore, BCCL cannot be saddled with the responsibilities of granting the teachers the salaries equated to that of the clerks working in BCCL. For application of the principle of equal pay for equal work - There should be total identity between both groups i.e. the teachers of the school on the one hand and the clerks in BCCL, and as such the teachers cannot be equated with the clerks of the State Government or of the BCCL. The question of application of Article 39(d) of the Constitution has recently been interpreted by this Court in State of Haryana and Ors. v. Charanjit Singh and Ors. wherein their Lordships have put the entire controversy to rest and held that the principle, 'equal pay for equal work' must satisfy the test that the incumbents are performing equal and identical work as discharged by employees against whom the equal pay is claimed. Their Lordships have reviewed all the cases bearing on the subject and after a detailed discussion have finally put the controversy to rest that the persons who claimed the parity should satisfy the court that the conditions are identical and equal and same duties are being discharged by them. More so, when we have already held that the appellants are not the employees of BCCL, there is no question seeking any parity of the pay with that of the clerks of BCCL. Hence, as a result of our discussion, we do not find any merit in these appeals and the same are dismissed with no order as to costs. Markandey Katju, J.- HELD THAT - In our opinion fixing pay scales by Courts by applying the principle of equal pay for equal work upsets the high Constitutional principle of separation of powers between the three organs of the State. Realizing this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an expert committee appointed by the Government instead of the Court itself granting higher pay). It is well settled by the Supreme Court that only because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide Government of West Bengal v. Tarun K. Roy and Ors. 2003 (11) TMI 585 - SUPREME COURT . Thus, I concur with the conclusion arrived at by my learned brother Hon'ble A.K. Mathur, J. that the appeals preferred by the appellants deserve to be dismissed. Ordered accordingly.
Issues Involved:
1. Relationship of employer and employee between HCL/BCCL and the school staff. 2. Issuance of writ of mandamus against HCL/BCCL. 3. Issuance of direction to the State Government to take over the school. 4. Application of the principle of equal pay for equal work. Issue-wise Detailed Analysis: 1. Relationship of Employer and Employee between HCL/BCCL and the School Staff: The court examined whether there was an employer-employee relationship between HCL/BCCL and the school staff. The management of HCL contended that there was no such relationship, as the school was run by a Managing Committee and HCL only provided financial aid. The learned Single Judge and Division Bench both concluded that there was no direct relationship of master and servant between HCL and the school staff. The Supreme Court upheld this view, emphasizing that financial assistance alone does not establish an employer-employee relationship. 2. Issuance of Writ of Mandamus against HCL/BCCL: The appellants sought a writ of mandamus against HCL/BCCL to release pay and arrears along with dearness allowance. The court found that since there was no employer-employee relationship, a writ of mandamus could not be issued against HCL/BCCL. The Supreme Court agreed with the lower courts that HCL/BCCL was not directly responsible for the management of the school and thus could not be compelled to fulfill such obligations. 3. Issuance of Direction to the State Government to Take Over the School: The appellants also sought a direction for the State Government to take over the management of the school under the Bihar Non-Government Secondary Schools (Taking over of Management and Control) Act, 1981. The court examined the definition of a "proprietary secondary school" under Section 2(d) and the conditions under Section 19 of the Act. It concluded that a writ of mandamus could not be issued to the State Government to take over the school unless the Managing Committee made a formal request to bear the financial responsibilities. The Supreme Court upheld this view, noting that no such offer had been made by the Managing Committee. 4. Application of the Principle of Equal Pay for Equal Work: The appellants argued for pay parity with Government Secondary School teachers or clerks of HCL/BCCL. The court referred to the principle of equal pay for equal work, emphasizing that it requires complete and wholesale identity between the groups in question. The Division Bench and the Supreme Court concluded that the teachers could not be equated with clerks of HCL/BCCL due to differences in responsibilities, qualifications, and the nature of their work. The Supreme Court further clarified that the principle of equal pay for equal work has been considerably watered down in recent years and should not be applied mechanically. Separate Judgment by Markandey Katju, J.: Justice Markandey Katju concurred with the dismissal of the appeals but wrote a separate judgment to clarify the principle of equal pay for equal work. He noted that the principle, initially propounded in the 1980s, has been significantly diluted in subsequent decisions. He emphasized that the fixation of pay scales is an executive function and courts should exercise judicial restraint in such matters. He reiterated that the principle of equal pay for equal work requires complete identity between the groups and should be left to expert bodies rather than being adjudicated by courts. Conclusion: The Supreme Court dismissed the appeals, affirming that there was no employer-employee relationship between HCL/BCCL and the school staff, and thus no writ of mandamus could be issued. It also held that the State Government could not be directed to take over the school without a formal request from the Managing Committee. The principle of equal pay for equal work was clarified, emphasizing the need for complete identity between the groups in question.
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