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TMI Blog1999 (7) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... d common in nature. For the convenience, I shall refer the case of the petitioners in W.P.No. 221 of 1991. The first petitioner in that writ petition, who is a secondary grade teacher, was appointed as secondary grade teacher on 20.4.1990 as approved by the District Educational Officer in his letter dated 26.5.1990 and is working in Sivanthi Vinayakar Elementary School, Mamspuram. Likewise, petitioners 2 to 7, working in different aided private management schools, were appointed on 4.6.1990, 2.7.1990, 29.6.1990, 9.7.1990 respectively and their appointments were approved by the District Educational Officer. Petitioners 6 and 7 were also appointed as such and their appointments were approved by the District Educational Officer. After passing secondary grade teacher training course and after completion of the said course, they were appointed as secondary grade teachers in the respective schools in the sanctioned vacancy in the scale of pay of ₹ 1,200 p.m. as fixed by fifth pay commission. They are being paid ₹ 1,200 p.m. with usual allowances, as admissible to the post of secondary grade teacher. While so, the school managements announced that the scale of pay has been red ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classes which they could take. The hours of work are also same. So, as per the law laid down by the Supreme Court, there cannot be different pay for the same category of persons doing similar work. Therefore, the newly introduced consolidated pay to the persons who are working similarly to that of the persons who are already working is arbitrary and liable to be struck down, because the rule of law which governs the field is, equal work, equal pay. It is also stated that the petitioners were appointed in regular vacancy and the same are not the posts which are being described as Secondary Grade (Junior). In the Government Order it is stated that the vacancies on account of retirement, resignation, death etc. shall also be filled up only by consolidated emoluments of ₹ 800 p.m. the post concerned in respect of such vacancies shall be deemed to have been downgraded as the post of Secondary Grade (Junior), which again is per se arbitrary, illegal. In such circumstances, having no other remedy, the petitioners have approached this Court. Similar contentions have been raised in the other writ petitions; hence I am not traversing the same. 2. On behalf of the respondents, first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lling up with new appointees. It also insists that the various appointing authorities should obtain written agreement from the appointees expressing their specific willingness to work on the consolidated emoluments indicated and a contract agreement would be entered into with every such appointee. As per the contract, it is open to the appointing authority or any higher authority to terminate the services of those persons by giving three months notice. 3. The Government in G.O.Ms.No. 1669, Education, dated 13.12.1990, have issued Orders that as in the case of down gradation of Secondary Grade Teachers posts as per G.O.Ms.No. 1524, Education, dated 12.11.1990, vacant posts of Specialist Teachers such as Physical Education Teacher, Drawing Masters, Craft Instructors, Sewing Mistress, Music Teachers etc., drawing the Secondary Grade Scale of pay in Government, Local body (Municipal/Corporation/Township/Panchayat Union) and Aided Schools in 1990-91 on account of retirement, resignation, death etc., shall be deemed to have been downgraded as posts of Secondary Grade (Junior) Teachers and these vacancies shall be filled up only on the basis of the consolidated pay of ₹ 800 per m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teachers and the managements of the institutions are bound by the terms of the contract and they cannot now come out from the contractual liabilities. The scheme under the impugned Government Orders is applicable not only to private aided schools but also applicable to schools under all kinds of Managements viz., Government, Municipality, Township/Panchayat Union Schools etc. Likewise the down grading of the post is done to avoid disputes being raised relating to seniority between teachers appointed under the newly created posts and those who are appointed in the vacancy in the existing post. There were no discrimination in the mode of recruitment or selective test. There were also no discrimination on the basis of religion, race, sex, descent, caste, culture and place of birth, etc. Therefore, the allegation that the impugned Government Orders violate the provisions of Articles 14 and 16 are totally wrong, baseless, misconceived and misconstrued. It is also stated that the grant-in-aid code does not confer any right on the management of any Educational Institution to get aid from the Government. As per Section 14(ii)(e) of the Tamil Nadu Recognised Private Schools Act, the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth under the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (hereinafter referred to as the Act ) and the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 (hereinafter referred to as the Rules ). The impugned 'Government Order is illegal and ultra vires the provisions of the Act and the Rules; accordingly the same is liable to be struck down. (ii) Once a legislature intervenes to enact a law relating to conditions of service, the power of the executive including the President or the Governor as the case may be is totally displaced on the principle of Doctrine of occupied field . In the instant case legislature has already occupied the field and enacted law as referred to above which includes service conditions. Therefore, the impugned Order is without jurisdiction. (iii) The Government have no power under the Act to issue such executive instructions to downgrade the post; (iv) The impugned Government Order is discriminatory and violative of principles of equal pay for equal work, since for doing the same work with same qualification, ₹ 800 per month alone is being paid to teachers; (v) Whether G.O.Ms.No. 20, dated 8.1.1993 is va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile to refer certain provisions from the Act and the Rules. Section 14 of the Act speaks about payment of grant. It runs as follows: 14. Payment of grant: (1) Notwithstanding contained in this Act or in any other law for the time being in force, or in any decree, Order or direction of any court or other authority, (i) no private school shall, only on the ground of having been granted recognition underthis Act, be entitled to any grant or other financial assistance from the Government; (ii) the Government may, subject to, (a) the availability of funds; (b) the norms and conditions specified in the Grant-in-aid Code of Tamil Nadu Education Department; (c) the condition that every private school receiving any grant or financial assistance, from the Government levies and collects from the pupils only such fee, charge or other payment as may be specified by the competent authority, which shall not be in excess of the fee, charge or other payment, levied and collected from the pupils studying in the schools or institutions established and administered or maintained by the State Government, or any local authority in the locality; (d) the rules, Orders and notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall on or after the date of the commencement of this Act, is employed as teacher or other employee in any private school. (2) Nothing contained in this section or any rule made thereunder shall apply to any person who, on or before the date of the commencement of this Act is employed as teacher or other employee in any private school. 13. As regards qualifications, conditions of service, it has been stated in Rule 15 as follows: Rule 15 : Qualifications, conditions of service of teachers and others persons: (1) The number of teachers and other persons employed in a private school shall not exceed the number of posts sanctioned by Director of School Education from time to time, with reference to the academic requirements, teacher-pupil ratio and overall financial considerations. (2) (i) The school committee of every private school enter into an agreement with the teacher or other persons in Form VII (A) or VII (B) if the appointment is for a period exceeding three months. (ii) Three copies of the agreement shall be executed, one copy shall be furnished to the teacher or other person concerned, the other copy shall be retained by the School Committee and the third c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, Education, dated 25.6.1990. They are all aggrieved by the subsequent Orders commencing from G.O.Ms.No. 1524, Education, dated 12.11.1990. I have already narrated the salient features of various Government Orders while explaining the stand of the Government as indicated in the counter-affidavit of the first respondent. In G.O.Ms.No. 1524, Education, dated 12.11.1990 the Government issued Orders directing that apart from the 1200 newly created Secondary Grade Teachers (Junior) posts, the posts which have fallen vacant due to retirement, resignation and death, etc., shall be deemed to have been downgraded as posts of Secondary Grade (Junior) Teacher and therefore, these posts shall also be filled up only on consolidated emolument of ₹ 800 per month, for an initial period of two years from the respective dates of filling up with new appointees. I have already extracted the relevant provisions from the Act and the Rules. Section 19 enables the Government to make Rules regulating the number, qualifications and conditions of service (including promotion, pay, allowances, leave, pension, provident fund, insurance and age of retirement and rights as respect disciplinary matters) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns to upgrade or reduce the post and regulate payment of grants to various Institutions. No doubt, Section 14 of the Act empowers the Government to issue directions with regard to payment of grant. However, in the light of the statutory provisions referred to above, particularly the service of the teachers, as rightly contended, without amending the statutory Rules, the Government cannot downgrade the post as Secondary Grade (Junior) Teacher. The first decision referred to by the learned Counsel for the petitioners on this aspect is a Division Bench decision of this Court reported in G. Rajesh v. State of Tamil Nadu and others, 1995 Writ L.R. 389. In this decision, the writ petitioner before the Division Bench sought for issue of a Writ of Mandamus directing the respondents therein to give effect to G.O.Ms.No. 466, dated 8.6.1994 admit him in I Year M.B.A., course under Sports quota. Anna University is established under the Anna University Act, 1978. It conducts several courses leading to Graduation and Post-Graduation. M.B.A., course is one such to which only Engineering Graduates can seek admission. The last date for submitting the application was 6.5.1994. Entrance Examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing conclusion: . . . It is settled position of law that when the field is occupied by the Statute, executive power cannot be exercised. Sub-section (3) of Section 6 specifically provides that the State Government can issue directions regarding the reservation of seats for the students belonging to Scheduled Castes, Scheduled Tribes and Backward Classes. It is not possible to hold that the State Government, in exercise of its executive power, can issue a direction to the University to reserve seats for students falling under the sports category. It is, no doubt, true that the executive power, under Article 162 of the Constitution of India, extends to all matters to which the legislative power extends. But once that Legislative power is exercised and the field is occupied by the law, passed by the legislature, unless that law is amended, the executive power cannot be exercised contrary to those contained in the law. Sub-section (3) of Section 6 of the Act is the law relating to reservation of seats for a particular class or category, and there is no scope in that to add another category other than Schedule Caste, Schedule Tribe and Backward Class. Reservation for sports cate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No such rule has been brought to our notice. No express power was conferred and in fact cannot be conferred to relax the rules of recruitment. Having made the rules the executive cannot fall back upon its general power under Article 162 to regularise the ad hoc appointments under the Rules. Rule 9(3) empowers only to relax the qualification of age in particular exigencies which cannot be called in aid to relax the rules of recruitment . . . 16. In the case of A.B. Krishna v. State of Karnataka , similar question was considered by the Hon'ble Supreme Court and the conclusion of their Lordships arrived at in para 14 is as follows: Applying the above principles to the instant case, it will be noticed that the Rules made by the State Government under Section 39 of the Act prescribe the qualifying examination as a condition precedent for promotion to the post of Leading Firemen. These Rules have not been touched, altered or amended and they exist in their original form. What has been done by the Government is that it has amended the General Recruitment Rules by providing therein that any promotion made on the higher post would not be on the basis of examination, if any presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... created under the statute as Secondary Grade (Junior) Teacher. In such a circumstance, I am in agreement with the contention, raised by the learned Counsel for the petitioners that without amending the Rules, it is not open to the Government to down grade the post of Secondary Grade Teacher. 18. Now I shall consider whether the Government is justified in granting consolidated emoluments of ₹ 800 per month while filling up the post of Secondary Grade Teacher in Government, Local Body (Municipal/Corporation/Township/Panchayat Union) and Aided Schools in the academic year 1990-91 on account of retirement, resignation, promotion, death etc., It is clear from para 2(i) of the impugned Government Order that the posts concerned in respect of all such vacancies from 1991 the persons appointed are entitled for the post of Secondary Grade (Junior) Teachers only a consolidated emoluments of ₹ 800 per month from the respective dates of filling up with the new appointees. It is pointed out that the said Order is per se illegal because the post now described as Secondary Grade (Junior) Teacher has not been distinguished from the present Secondary Grade Teacher. The qualifications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in the case of Haryana State Adhyapak Sangh v. State of Haryana (1998)4 S.C.C. 571 : 1989 S.C.C. (L and S) 21. This Court came to the conclusion that the teachers of aided schools must be paid the same pay scale and dearness allowance as teachers in government schools for the entire period served by them and that the expenditure on that account should be apportioned between the State and the Management in the same proportion in which they share the burden of the existing emoluments of the teachers. The aforesaid decision of this Court was considered again by a three-Judge Bench in the case of Haryana State Adhyapak Sangh v. State of Haryana, 1990 S.C.C. (Supp.) 306 : 1991 S.C.C. (L and S) 307 and by way of clarifying the earlier decision, this Court observed: These observations leave no scope for doubt that this Court has directed that the teachers of aided schools must be paid the same scales of pay and dearness allowance as teachers in government schools and that the said payment must be made for the entire period claimed by the appellants and the petitioners in these case. 6. . . . . The positive direction in Haryana State Adhyapak Sangh v. State of Haryana, 1990 S.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , undoubtedly Article 14 is attracted. 20. In the case of Indian Council of Agricultural Research v. A.N. Lahiri , the following conclusion arrived at by Their Lordships is pressed into service: 9. The tribunal has held that the work which the respondent was doing as a scientist was of the same type as was being carried out by scientists who had been inducted in the ARS. Not only that his juniors who were actually working under him, as he was the Head of the Department, and who has joined ARS got the benefit of higher pay scale of ₹ 4500-7300. The nature of work which they were doing was of the same type as was done by their Head of the Department. Qualification wise there was no distinction between the two sets of employees. Their initial source of recruitment was also the same. Their employer was also the same, namely, ICAR. It is the same employer who had two sets of employees, one governed by ARS system of service and the others who were outside ARS but still very much doing the same type of work as scientists and belonging to the same institution, namely, ICAR, of course forming a separate wing of employees. Under these circumstances, therefore, the doctrine of Equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed thus: Thus, there is much force in the contention of Shri Satish Chandra that as in the main wing of Inspectors of Factories there are electrical experts, mechanical experts and civil experts, in the chemical wing there are chemical experts. According to us, the learned single Judge of the High Court was right in stating that if electrical, mechanical and civil engineers could form part of one cadre, so could, chemical engineers. Even so, we would agree with the learned Solicitor General that by giving the directions, in question, the High Court almost revised the recruitment, rules which was not within its competence. We also agree that by directing the State to make available the higher post to Deputy Chief Inspector of Factories (Chemical) a legal error was committed, as the same amounted to laying down conditions of service of Government employees, which either the State Legislature in exercise of its powers under Article 309 of the Constitution, or the State Government in exercise of the power under the proviso to that article can do. However, on being satisfied that a strong case for forming a common cadre for all exists, we require the State Government to apply its min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judges from Goa) on par with their counterparts in the Union-Territory of Delhi during the period between 1.3.1982 and 31.3.1987 and the same was Ordered to be disbursed within six months from the date of judgment. 25. In the case of Surinder Singh and another v. Engineer in Cheif C.P. W.D. and others (1986)1 L.L.J. 403, their Lordships of the Supreme Court after reiterating the principle of Equal Pay for Equal Work , have held that as per Article 39 of the Constitution of India equal pay for equal work should be paid from the date of employment and the Government cannot postpone it. 26. In the case of Karnataka State Private College Stop-Gap Lecturers Association v. State of Karnataka and others (1993)1 L.W. 25, the Hon'ble Supreme Court has held that an appointment may be temporary or permanent, but the nature of work being same, fixation of salary to a temporary teacher by adopting a different method of payment from that of a regular teacher is violative of Article 14 of the Constitution of India. 27. I have already stated that the scale of pay applicable to the post of Secondary Grade Teacher is ₹ 1200-30-1560-40-2040 and the aid scale of pay continues to ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave agreed to abide by certain terms and conditions including a consolidated pay of ₹ 800 per month for a period of two years on duty. Apart form this, it is also contended that having executed a valid agreement abiding by certain terms and conditions on the principle of waiver, the teachers cannot agitate the same before this Court. As rightly pointed out, there is no question of waiver of fundamental rights. In this regard, the following observation by Their Lordships of the Supreme Court in Basheshar Nath v. I.T. Commissioner , is, pressed into service: It is absolutely clear on a perusal of Article 13(2) of the Constitution that it is a constitutional mandate to the State and no citizen can by any act or conduct relieve the State of the solemn obligation imposed on it by Article 13(2) and no distinction can be made at all between the fundamental rights enacted for the benefit of the individual and those enacted in the public interest or on grounds of public policy. 29. In the case of Central Inland Water Transport Corporation v. Brojo Nath Ganguly The Hon'ble Supreme Court has held that the terms of contract of employment which is unfair unconscionable and again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargainin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons relating to sanctioning of grant or aid, would contend that the Government is well within their power to regulate with regard to the grants or aid and that in a given situation grant or aid can be reduced. In support of the above contention, he very much relied on an unreported decision of P. Shanmugam, J., in Writ Petition No. 6781 of 1993 etc., batch dated 22.3.1999, a decision of S.S. Subramani, J., in W.P.No. 8588 of 1995 etc., batch dated 25.8.1998 and in North Arcot Ambedkhar and Sambuvayar District Recognised Private Aided Primary and Middle Schools Managers and Teacher Managers Association v. The State of Tamil Nadu ,1 have already extracted the relevant provisions from the Act and Rules relating to sanctioning of grant/aid. Even though the learned Counsel for the petitioners have contended that it is not open to the Government to reduce the grant or do away with the payment of grant or aid, the provisions contained in Section 14 of the Act and Rule 11 of the Rules undoubtedly support the stand taken by the learned Additional Advocate General. In other words, in a given situation, it is open to the Government to refuse to provide grant or aid to a particular Institution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lutely there is no discrimination or arbitrariness. In the said decision, the benefit of study leave not making available to the other category of officers except Commissioned Officers in the Army was challenged as violative of Articles 14 and 16. In reply to the said contention it is seen from the particulars furnished by the Army Authorities that for officers of other ranks, there are other institutions where courses are conducted for these categories personnel and by sending them for these courses, proper care is taken to ensure efficiency in the Armed Forces. In fact, the petitioner therein had admitted that two weeks' computer course in Jodhpur University was organised by the Army Authorities. Apart from this, it has also been stated in the counter that there cannot be any dispute that the character and duties of Junior Commissioned Officers and Non-Commissioned Officers are different as compared to that of Regular Commissioned officers. In such circumstance, on the facts of that case, Their Lordships have concluded that if the competent authority thought it fit and proper that the case for study leave for Commissioned Officers should be considered and this benefit should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is stated in many places that the first impugned Order as well as the subsequent Orders were emanated in view of the policy decision of the Government, it is settled law that even the policy decision cannot violate the fundamental rights enshrined in Articles 14 and 16 of the Constitution of India. In this regard, it is worthwhile to refer a decision of the Hon'ble Supreme Court reported in K. Narayanan v. State of Karnataka (1991)1 S.C.C. (Supp.), wherein their Lordships have held thus: ... A policy decision taken by the Government is not liable to interference, unless the court is satisfied that the rule-making authority has acted arbitrarily or in violation of the fundamental rights guaranteed under Articles 14 and 16.... I have already demonstrated how the impugned Order is violative of Articles 14, 16 and 39(d) of the Constitution of India. 32. It is also held by the Hon'ble Supreme Court in Surinder Singh v. Engineer in Chief, C.P.W.D. (1986)1 L.L.J. 403, that in terms of Article 39 of the Constitution of India equal pay for equal work should be paid from the date of employment and the Government cannot postpone the equal pay to a latter date. 33. Thou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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