Delhi High Court
Mandeep Kaur vs Directorate Of Education & Ors. on 20 September, 2024
Author: Jyoti Singh
Bench: Jyoti Singh
$~113
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 20th September, 2024
+ W.P.(C) 13208/2024
MANDEEP KAUR .....Petitioner
Through: Mr. J.S. Bedi, Advocate.
versus
DIRECTORATE OF EDUCATION & ORS. .....Respondents
Through: Ms. Latika Choudhary, Advocate for
Respondent/DoE.
Mr. A.K. Mishra, Advocate for School.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGMENT
JYOTI SINGH, J. (ORAL)
CM APPL. 55137/2024
1. Allowed, subject to all just exceptions.
2. Application stands disposed of.
W.P.(C) 13208/2024
3. This writ petition has been filed on behalf of the Petitioner under
Article 226 of the Constitution of India seeking the following reliefs:-
“a) Issue a writ of mandamus, order or direction, directing the
Respondent No.1 to calculate arrears towards salary (due and drawn
statement) from 2006 to till date/retirement and to calculate TA, DA,
6CPC & 7CPC Arrears Gratuity and leave encashment.
b) Issue a writ of mandamus, order or direction, directing the
Respondent No. 2 to 4 to release the terminal benefits to the Petitioner
which includes gratuity as per caping of Rs. 20 Lakhs, leave encashment,
arrears towards 6th Pay Commission, Arrears of DA and TA from 2014
till retirement, Implementation and release arrears towards 7th Pay
Commission with interest;
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c) Issue a writ a mandamus, order or direction, direct the respondent No
2 to 5 to release pending 40% salary to petitioner from Jan, 2020 to Feb
2021 with Interest of 9% per annum till the date of release of arrears of
pending salary.
d) Issue a writ a mandamus, pass similar Judgment W.P. (C) 3746/2020
and connected matters titled as Shikha Sharma V/s GHPS & Ors “The
arrears thereof under the 6th CPC shall be paid to the petitioners with
interest at the rate of 6% per annum. The arrears of 7th CPC shall not
carry any interest. The fixation of pay and arrears shall be made / paid
within a period of six months from today. All retiral benefits shall also be
fixed and released to the petitioners, who have retired from their service
within six months from today. As an immediate assistance, the
respondents / DSGMC / GHPS Society / GHPS shall release an amount
of ₹5 Lacs to each of the retirees within one month, subject to adjustment
at the time of full payment. It is made clear that the failure to pay the
amounts within six months as directed above shall entail payment of a
higher interest of 9% per annum on the arrears of both 6th and 7th CPC
and retiral benefits.”
4. Issue notice.
5. Ms. Latika Choudhary, learned counsel accepts notice on behalf of
Respondent No.1/DOE.
6. Mr. Abhinash Kumar Mishra, learned counsel accepts notice on
behalf of Respondents No.3 and 4.
7. Petitioner is a retired employee of Guru Harkrishan Public School
(hereinafter referred to as the ‘School’) and the grievances ventilated in the
present writ petition broadly pertain to revision of salary, allowances and
retiral benefits including gratuity and leave encashment, under 6 th and/or 7th
CPC as well as for payment of Transport Allowance (‘TA’), Dearness
Allowance (‘DA’) and 40% balance salaries for the period January, 2020 to
February, 2021 with interest @ 9% per annum.
8. Learned counsel for the Petitioner argues that case of the Petitioner is
squarely covered by the judgments of this Court in Kuttamparampath
Sudha Nair v. Managing Committee Sri Sathya Sai Vidya Vihar and
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Another, 2021 SCC OnLine Del 2511 and Shikha Sharma v. Guru
Harkrishan Public School and Others, 2021 SCC OnLine Del 5011, which
have been subsequently followed in several other cases granting benefits to
the employees of different schools pertaining to revision in salaries/
allowances/retiral benefits, as per the 6th/7th CPCs along with TA, DA and
retiral benefits. It is further urged that it is the statutory obligation of the
School to implement recommendations of Central Pay Commissions and yet
there is total inaction and this is despite the fact that the Directorate of
Education (DoE) has issued Circulars from time to time directing
all recognised private schools to implement Pay Commissions’
recommendations.
9. Mr. Mishra, learned counsel representing the School is unable to
dispute that the case of the Petitioner is covered on all four corners by the
judgments of this Court in Kuttamparampath Sudha Nair (supra) and
Shikha Sharma (supra). He, however, submits that insofar as the benefits of
7th CPC are concerned, a Co-ordinate Bench is dealing with the issue in a
batch of contempt petitions and modalities are being worked out to release
the same.
10. Having heard learned counsels for the parties, this Court finds merit in
the contention of the Petitioner that the reliefs sought in the present writ
petition are covered by the judgments in Kuttamparampath Sudha Nair
(supra) and Shikha Sharma (supra). Relevant passages from
Kuttamparampath Sudha Nair (supra) are as follows:
“20. The issue of applicability of Section 10(1) and other provisions of
Chapter IV of the DSEA&R to unaided minority schools came up for
consideration before the Supreme Court in Frank Anthony (supra) and the
Supreme Court set aside the pre-existing Section 12, which had excludedSignature Not Verified
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the application of Section 10(1) and other provisions to the unaided
minority schools. The Supreme Court also considered whether applying
Section 10(1) would have the impact of eroding the minority character of
the schools which entitles them to a Constitutional protection under
Article 30(1) and held that it did not. The Supreme Court had observed
that excellence of every school, aided or unaided, would depend upon the
quality of its teachers and therefore, provisions like Section 10(1)
mandating payment of salary and allowances cannot be characterized as
unreasonable even in respect unaided minority institutions.
xxx xxx xxx
23. The issue again came up before the Supreme Court in Raj Soni v.
Air Officer Incharge (Administration), (1990) 3 SCC 261 where the
Supreme Court reiterated and re-affirmed the inflexible nature of the
liability that was binding on a recognized school under the provisions of
the DSEA&R and significant would it be to note that the Supreme Court
categorically held that recognized private schools in Delhi, whether aided
or otherwise, are governed by the provisions of DSEA&R. Relevant para
of the judgment is as under:–
“11. The recognized private schools in Delhi whether aided or
otherwise are governed by the provisions of the Act and the Rules. The
respondent-management is under a statutory obligation to uniformly
apply the provisions of the Act and the Rules to the teachers employed
in the school. When an authority is required to act in a particular
manner under a statute it has no option but to follow the statute. The
authority cannot defy the statute on the pretext that it is neither a State
nor an “authority” under Article 12 of the Constitution of India.”
24. In P.M. Lalitha Lekha v. Lt. Governor in W.P. (C) No. 5435/2008
decided on 02.02.2011 although the question involved was counting of
service of the Petitioner therein for computing her pension and in that
context was different on facts, but the point of law was the same as the one
arising in the present petition. Co-ordinate Bench of this Court examined
the provisions of Section 10(1) of the DSEA&R and observed that the first
proviso to Section 10(1) clearly obliges the DOE to direct the management
of all recognized private schools to bring all benefits, including inter-alia
pensionary benefits, to the same level as that of the employees of
corresponding status of the schools run by the Director of Education. The
second proviso enables the DOE to withdraw the recognition of the school
under Section 4 of the DSEA&R in case the management fails to comply
with the directions and serves a salutary purpose and empowers the DOE
to issue directions aimed at fulfilling the object of Section 10(1) of the
DSEA&R. It was also held that the mandate of Section 10(1) is
unambiguous, regardless of whether the school receives grant-in-aid or
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not. It was also held that it must be kept in mind that the Delhi School
Education Act contemplates unaided private schools also, as they are also
granted recognition and therefore the mandate of Section 10(1) would
apply to them with full rigour. Relevant paras of the judgment are as
under:–
“11. The first proviso to Section 10 of the Delhi School Education Act,
1973 clearly obliges the Director of Education to direct the
management of all recognized private schools to rectify any deficiency
and to bring all benefits, including, inter alia, pensionary benefits up
to the same level as those of employees of corresponding status of the
schools run by the Director of Education. The second proviso further
provides that in case the management of the school fails to comply
with such directions, recognition of the school can be withdrawn
under the powers given in S.4 of the Delhi School Education Act,
1973. This serves a salutary purpose and further empowers the
Director of Education to issue appropriate directions aimed at
fulfilling the object of Section 10(1) of the Act.
12. The school has been given certain privileges, including
recognition, on condition, inter alia, that it complies with Section
10(1). Due to the non-compliance of the conditions by the respondent
school the petitioner cannot be made to suffer. If the respondent
school does not come forward to honor its employees’ entitlement in
this behalf, then, steps need to be taken by the appropriate authority to
ensure compliance.
13. The payment of pension for the period before the grant-inaid came
into the picture has to be rendered by the school, but post such grant,
the liability shifts to the respondent. This is because the mandate of
Section 10(1) is unambiguous. Regardless of whether it receives
grant-in-aid or not. So long as it is a recognized private school,
pension and other benefits of its employees must be the same as those
admissible to employees of the Authority’s schools. Under the first
proviso, it is the respondent’s duty to ensure that such payment is
made. Under the Second proviso the respondent can take action if
those directions are not followed. The respondents in no circumstance
can be absolved from their duty.
xxx xxx xxx
15. In this context, it must be kept in mind that the Delhi School
Education Act contemplates unaided private schools also. Even such
schools are granted recognition. The mandate of Section 10(1) applies
with full rigour to them also.”
(emphasis supplied)
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25. Recently, a Division Bench of this Court in Dhanwant Kaur
Butalia v. Guru Nank Public School in LPA 499/2013 decided on
14.01.2016 reiterated and re-enforced that Section 10(1) with its
consequential resultant mandate that scales of pay, allowances, medical
facilities, gratuity, etc., paid to the Government schools should be paid to
employees of corresponding status in private recognized schools, would
apply to all unaided schools. Section 10(1) is a statutory purity and also a
minimum standard which all recognized schools have to adhere to.
26. In the appeal before the Division Bench, the Appellant was
aggrieved by an order of the learned Single Judge whereby her claim for
increase of salary, consequent to implementation of 6th CPC
recommendation, was rejected. The Appellant invoked provisions of
Section 10(1) of DSEA&R and also relied on earlier judgments of this
Court wherein it was consistently ruled that unaided schools have an
obligation to ensure that emoluments of teachers and other employees are
at par with those in the schools established and maintained by the
appropriate Government. Judgments of this Court in Gurvinder Singh
Saini v. Guru Harkishan Public School in W.P. (C) 12372/2009 decided on
02.09.2011, Deepika Jain v. Rukmini Devi Public School in W.P.(C)
237/2013 decided on 23.09.2013 and the judgment of Division Bench in
Guru Harkishan Public School v. Gurvinder Singh Saini in LPA 58/2012
decided on 05.09.2012, were cited by the Appellant and taken note of by
the Division Bench.
27. As the issue before the Division Bench concerned benefits under
6th CPC, reliance was placed on the CCS (Revised Pay) Rules, 2008 and
Office Memorandum dated 30.08.2008 referring to the said Rules. Based
on this, a Circular was issued by the Competent Authority under the DOE
on 15.10.2008, directing the managements of all private recognized (aided
as well as unaided) schools to implement 6th CPC recommendations. After
a conjoint reading of the circulars and the Pay Rules, the Division Bench
held as follows:–
“6. The Court also notices that the pre-existing Section 12 which had
excluded the application of Section 10 and other provisions of the
Chapter, to unaided minority schools was set aside by the Supreme
Court in Frank Anthony School Employees Association v. Union of
India (1986) 4 SCC 707 : AIR 1987 SC 311. The Supreme Court
expressly considered the impact of Section 10 and whether it had the
effect of eroding the minority character of schools entitled to
protection under Article 30 and concluded that it did not. The said
judgment has been constantly followed and it was not overruled but
was approved in TMA Pai Foundation’s case (supra). Section 10 with
its consequential resultant mandate is that scales of pay, allowances,
medical facilities, gratuity, provident fund “and other prescribedSignature Not Verified
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benefits” which employees of “corresponding status” in schools of the
appropriate government are to be granted to employees of all unaided
schools.
7. This ipso facto ought to clinch the case in favour of the present
appellant. Section 10 is a statutory purity and also a minimum
standard which all recognized schools have to adhere to.
xxx xxx xxx
10. The said office memorandum of 30.08.2008 also referred to the
Central Civil Service Revised Pay Rules, 2008. The effect of all these
office memoranda (dated 11.09.2008, 22.09.2008 and 15.10.2008) is
that the managements of all private recognized schools aided as well
as unaided had to implement the 6PC Recommendations, in the
manner stipulated by Section 10 of Delhi Education Act. Circular
dated 15.10.2008 was categorical in this regard. It reads as under:
“Section 10(1) of Delhi School Education Act 1973 provides that:
“The scales of pay and allowances, medical facilities, pension,
gratuity, provident fund and other prescribed benefits of the
employees of a recognized private school shall not be less than
those of the employees of the corresponding status in school run
by the appropriate authority.”
Therefore, the Management of all private recognized, (Aided as
well as unaided) schools are directed to implement the Sixth Pay
Commission recommendations – fixation of pay and payment of
arrears in accordance with circular no. 30-3(17)/Cood/Cir/2008
dated 22.09.2008 vide which it has been implemented in r/o
employees of Government Schools.
This issue with prior approval of competent Authority.”
11. A co-joint reading of all circulars would immediately reveal that
the 6PC recommendations were accepted and the Central Government
formulated the revised pay rules with effect from 01.01.2006. The
rules were published in 2008. Nevertheless, the entitlement following
from it accrued to all with effect from 01.01.2006. The only exception
was that certain types of allowances i.e. HRA, children’s education
allowance, special compensatory allowance etc. were to be paid
prospectively with effect from 01.09.2008 (refer para 3 of OM dated
30.08.2008). In all other respects, the pay parity mandated for
government of NCT teachers was to apply to teachers and staff
members of unaided schools – minority and non-minority schools.
xxx xxx xxx
13. In the present case, Section 10 remains on the statute book; it was
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declared to be applicable to all unaided schools including minority
schools, from 1986 onwards i.e. with the declaration of the law in
Frank Anthony School Employees Association’s case (supra). There is
no dispute that the 6PC recommendations were to be implemented
from the date the Government of NCT implemented it. Such being the
case, the respondent school in the present case could not have claimed
ignorance of application of Section 10 and stated that it was obliged
to pay arrears or implement the 6PC recommendations with effect
from the date later than that applicable in the case of Government of
NCT teachers and teaching staff in its schools.
14. As a consequence and in the light of the previous order of this
court in Gurvinder Singh Saini’s case (supra) and Uma Walia’s case
(supra) the impugned order and judgment of learned Single Judge is
hereby set aside. The respondent is directed to disburse all the arrears
of salary and allowances payable pursuant to 6PC recommendations –
to the appellant except those expressly denied by virtue of the Central
Government’s Office Memorandum dated 30.08.2008, within six weeks
from today.”
xxx xxx xxx
30. Additionally, it may be noted that this is also the understanding of
the DOE which is implicit in the various Circulars issued by them from
time to time in this regard. Vide order dated 19.08.2016, DOE, in exercise
of powers conferred under Sections 17(3), 24(3) and 18 of the Delhi
School Education Act, 1973 read with Rules 50, 177 and 180 of the Delhi
School Education Rules, 1973 adopted the CCS (Revised Pay) Rules,
2016, under which benefits of 7th Pay Commission are paid to the
Government employees. Directions were accordingly issued by the DOE,
vide Circular dated 17.10.2017 to all the unaided private recognized
schools to extend the benefits of 7th CPC to its employees in accordance
with Section 10(1) at par with the Government employees. By another
order dated 09.10.2019, the DOE reiterated its directions to the unaided
schools to comply with the mandate of Section 10(1), failing which
necessary action shall be taken as per provisions of DSEA&R against the
defaulting Schools. Relevant paras of the order dated 17.10.2017 are as
under:–
“In continuation of this Directorate’s Order No.
DE.15(318)/PSB/2016/18117 dated 25/08/2017 and In exercise of the
powers conferred under action 17(3) and section 24(3), of the Delhi
School Education Act, 1973 read with sub sections 3, 4 and 5 of
Section 18 of the Delhi School Education Act, 1973 and with rules 50,
177 and 180 of the Delhi School Education Rules, 1973 and in
continuation of the previous ordersNo.DE. 15/Act/Duggal.
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By:KAMAL KUMAR
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Com/203/99/23039-23988 dated 15.12.1999, F.DE
15/Act/2K/243/KKK/883-1982 dated 10.02.2005, E.15/Act/2006/738-
798 dated 02.02.2006, relevant paras of F.DE/15 (56)/Act/2009/778
dated 11.02.2009, F.DE-15/ACT-I/WPC-4109/13/6750 dated
19.02.2016, F.DE-15/ACT-I/WPC-4109/PART/13/7905-7913 dated
16.04.2016 & F.DE/PSB/2017/16604 dated 03/07/2017, I, Saumya
Gupta, Director of Education, hereby issue following directions to all
the Unaided Private Recognized Schools in the National Capital
Territory of Delhi for the implementation of 7th Central Pay
Commission’s Recommendations under Central Civil Services
(Revised Pay) Rules, 2016 with effect from 01.01.2016.
xxx xxx xxx
2. Period of Implementation of 7th CPC
The benefits of 7th Central Pay Commission Recommendations have
been implemented by the Govt. of India, Department of Expenditure,
Implementation Cell, Ministry of Finance in a staggered manner. As
per the notification dated 25/07/2016 issued by Govt. of India,
Ministry of Finance, basic pay of the Govt. employee has been
increased for the period 01/01/2016 to 30/06/2017 and increased
allowances have been allowed to the Govt. employees w.e.f.
01/07/2017. Thus, in accordance with sub-section (1) of Section 10 of
Delhi School Education Act, 1973, the benefits of the
recommendations of 7th CPC to the employees of Private Unaided
Recognized Schools of Delhi will also be extended in a similar
manner.”
xxx xxx xxx
33. The Court notes that the DOE has consistently taken a stand that
the private recognized unaided schools are bound to comply with
provisions of Section 10(1) and this is discernible from Circular dated
15.10.2008 issued by the DOE after the CCS (Revised Pay) Rules, 2008
were notified, pursuant to 6th CPC. The Circular was taken note of by the
Division Bench in Dhanwant Kaur (supra) and is extracted in the earlier
part of the judgement. This obviates any doubt that provisions of Section
10(1) of the DSEA&R shall apply to the Respondent/School and it is under
a statutory obligation to pay the revised salaries and emoluments under
7th CPC to the Petitioners, in accordance with the various DOE circulars
and orders referred and alluded to above.
xxx xxx xxx
39. Accordingly, the writ petitions deserve to be allowed. The School is
directed to re-fix the salaries and other emoluments of the Petitioners
applying the revised pay matrix under 7th CPC, in accordance with the
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order of the DOE dated 19.08.2016 and the Circular dated 17.10.2017,
whereby the CCS (Revised Pay) Rules, 2016 were adopted. Petitioners
shall be entitled to arrears with effect from 01.01.2016, the date from
which the recommendations of 7th Pay Commission have been given
effect. The School shall carry out the exercise of refixing the revised
salaries and emoluments of the Petitioners within a period of four weeks
from today and the payments shall be made accordingly hereinafter.”
11. In Shikha Sharma (supra), a Co-ordinate Bench of this Court held as
follows:-
“20. Having heard the learned counsel for the parties and considered the
record, the issue which falls for consideration is whether the petitioners
are entitled to the benefits of the 6th and 7th CPC and the arrears thereof
including the retiral benefits, transport allowance and MACP as claimed
by the petitioners in these petitions.
21. Before I deal with the submissions made by the learned counsel for the
parties, the gist of the submissions made by Mr. Abinash Kumar Mishra
are as follows:
(i) The schools are functioning as unaided minority schools under the
DSE Act, hence entitled to regulate their own payment structure and
they would be exempted from the applicability of 7th CPC as they
impart education to the students of the minority Sikh community
having poor financial conditions.
(ii) The Centralised Fee Account was created by the DSGMC which
has now been discontinued. Since the discontinuation of the said
account, the GHPS Society has no control over the financial issues of
GHPS and it is for the individual Schools to maintain to their own
funds and income.
(iii) The voluntary filing of affidavits and undertakings by the DSGMC
to state that they are willing to help the Schools and as such this
cannot be treated as a Statutory liability or obligation for payment of
the 6th and 7th CPC benefits and therefore no directions can be passed
for directing voluntary actions of the DSGMC.
(iv) The GHPS are charging fees based on the 6th CPC scales and the
fee structure gets regularly approved by the DoE, due to this the fee
has not been charged on the basis of 7th CPC report.
(v) Until the GHPS comes with a scheme to recover the fee from 2016
onwards with the approval of DoE, till then no direction should be
passed against the DSGMC/GHPS Society/GHPS.
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By:KAMAL KUMAR
Signing Date:06.10.2024
12:49:02
22. Having noted the broad submissions of Mr. Abinash Kumar Mishra,
the first issue need to be decided is whether the Schools being minority
institutions, can be directed to pay the benefits of the 6th and 7th CPC. The
issue is no more res-integra firstly in view of the fact Section 10 of the
DSE Act which reads as under:
“10. Salaries of employees–(1) The scales of pay and allowances,
medical facilities, pension, gratuity, provident fund and other
prescribed benefits of the employees of a recognised private school
shall not be less than those of the employees of the corresponding
status in schools run by the appropriate authority:
Provided that where the scales of pay and allowances, medical
facilities, pension, gratuity, provident fund and other prescribed
benefits of the employees of any recognised private school are less
than those of the employees of the corresponding status in the schools
run by the appropriate authority, the appropriate authority shall
direct, in writing, the managing committee of such school to bring the
same up to the level of those of the employees of the corresponding
status in schools run by the appropriate authority:
Provided further that the failure to comply with such direction shall
be deemed to be non-compliance with the conditions for continuing
recognition of an existing school and the provisions of section 4 shall
apply accordingly.
(2) The managing committee of every aided school shall deposit, every
month, its share towards pay and allowances, medical facilities,
pension, gratuity, provident fund and other prescribed benefits with
the Administrator and the Administrator shall disburse, or cause to be
disbursed, within the first week of every month, the salaries and
allowances to the employees of the aided schools.”
23. The said Section contemplates that the pay and allowances of the
employees of the recognised private Schools could not be less than that of
the employees of the Government run Schools.
24. Secondly, the Supreme Court in its opinion in the case of Frank
Anthony Public School Employees’ Association v. Union of India
(UOI), (1986) 4 SCC 707, wherein the Court was concerned that the
validity of Section 12 of the DSE Act which excluded the applicability of
Sections 8 to 11 of the DSE Act to the unaided minority Schools has held,
Section 12 to be discriminatory and as such bad in law and thereby
making Sections 8 to 11 of the DSE Act (except Section 8(2) of the DSE
Act) applicable to the minority Schools which includes Section 10 of the
DSE Act, which I have already reproduced above. The relevant
paragraphs of the judgment are reproduced as under:
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“20. Thus, Sections 8(1), 8(3), 8(4) and 8(5) do not encroach upon
any right of minorities to administer their educational institutions.
Section 8(2), however, must, in view of the authorities, be held to
interfere with such right and, therefore, inapplicable to minority
institutions. Section 9 is again innocuous since Section 14 which
applies to unaided minority schools is virtually on the same lines as
Section 9. We have already considered Section 11 while dealing with
Section 8(3). We must, therefore, hold that Section 12 which makes the
provisions of Chapter IV inapplicable to unaided minority schools is
discriminatory not only because it makes Section 10 inapplicable to
minority institutions, but also because it makes Sections 8(1), 8(3),
8(4), 8(5), 9 and 11 inapplicable to unaided minority institutions. That
the Parliament did not understand Sections 8 to 11 as offending the
fundamental right guaranteed to the minorities under Article 30(1) is
evident from the fact that Chapter IV applies to aided minority
institutions and it cannot for a moment be suggested that surrender of
the right under Article 30(1) is the price which the aided minority
institutions have to pay to obtain aid from the Government.
21. The result of our discussion is that Section 12 of the Delhi School
Education Act which makes the provisions of Chapter IV inapplicable
to unaided minority institutions is discriminatory and void except to
the extent that it makes Section 8(2) inapplicable to unaided minority
institutions. We, therefore, grant a declaration to that effect and direct
the Union of India and the Delhi Administration and its officers, to
enforce the provisions of Chapter IV [except Section 8(2)] in the
manner provided in the chapter in the case of the Frank Anthony
Public School. The management of the school is directed not to give
effect to the orders of suspension passed against the members of the
staff.
22. After the arguments of both sides were fully heard, Shri Sushil
Kumar who appeared for the institution along with Mr. Anthony
submitted that according to the instructions of the Council for the
Indian School Certificate Examination, “the staff must be paid
salaries and allowances not lower than those paid in comparable
Government schools in the State in which the school is located” and
in view of this instruction it was not necessary for us to go into the
question of the applicability of Section 10 to minority institutions. We
do not attach any significance to this last minute, desperate
submission. It is not clear whether the instruction is a condition
imposed by the Council pursuant to Section 19 of the Delhi School
Education Act. There is no way by which the staff can seek to enforce
the instruction. Nor is the instruction of any relevance since it is not
the case of the respondents that the institution is paying or is
agreeable to pay the scales of pay stipulated in the instruction.
Signature Not Verified
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By:KAMAL KUMAR
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12:49:02
23. We must refer to the submissions of Mr. Frank Anthony regarding
the excellence of the institution and the fear that the institution may
have to close down if they have to pay higher scales of salary and
allowances to the members of the staff. As we said earlier the
excellence of the institution is largely dependent on the excellence of
the teachers and it is no answer to the demand of the teachers for
higher salaries to say that in view of the high reputation enjoyed by
the institution for its excellence, it is unnecessary to seek to apply
provisions like Section 10 of the Delhi School Education Act to the
Frank Anthony Public School. On the other hand, we should think that
the very contribution made by the teachers to earn for the institution
the high reputation that it enjoys should spur the management to
adopt at least the same scales of pay as the other institutions to which
Section 10 applies. Regarding the fear expressed by Shri Frank
Anthony that the institution may have to close down we can only hope
that the management will do nothing to the nose to spite the face,
merely to “put the teachers in their proper place”. The fear expressed
by the management here has the same ring as the fear expressed
invariably by the management of every industry that disastrous results
would follow which may even lead to the closing down of the industry
if wage scales are revised.”
(emphasis supplied)
25. A Full Bench of this Court in the case of Guru Harkishan Public
School v. Director of Education, (2015) 221 DLT 448 while examining
applicability of Rule 121 of the Delhi School Education Rules, 1973,
though not in the context of Section 10 of the DSE Act, has in detail
referred to the judgment of the Supreme Court in Frank Anthony Public
School Employees’ Association (supra) and finally held in paragraphs 35
to 37 as under:
“35. The court further held that ‘mere prescription of scales of pay
and other conditions of service would not jeopardise the right of the
management of minority institutions to appoint teachers of their
choice. The excellence of the instruction provided by an institution
would depend directly on the excellence of the teaching staff, and in
turn, that would depend on the quality and the contentment of the
teachers. Conditions of service pertaining to minimum qualifications
of teachers, their salaries, allowances and other conditions of service
which ensure security, contentment and decent living standards to
teachers and which will consequently enable them to render better
service to the institution and the pupils cannot surely be said to be
violative of the fundamental right guaranteed by Article 30(1) of the
Constitution. The management of a minority Educational institution
cannot be permitted under the guise of the fundamental rightSignature Not Verified
Digitally Signed W.P.(C) 13208/2024 Page 13 of 17
By:KAMAL KUMAR
Signing Date:06.10.2024
12:49:02
guaranteed by Article 30(1) of the Constitution, to oppress or exploit
its employees any more than any other private employee. Oppression
or exploitation of the teaching staff of an educational institution is
bound to lead, inevitably, to discontent and deterioration of the
standard of instruction imparted in the institution affecting adversely
the object of making the institution an effective vehicle of education
for the minority community or other persons who resort to it. The
management of minority institution cannot complain of invasion of the
fundamental right to administer the institution when it denies the
members of its staff the opportunity to achieve the very object of
Article 30(1) which is to make the institution an effective vehicle of
education’.
36. Thus, Section 8(1), 8(3), 8(4) and 8(5) were held not to encroach
upon any right of the minorities to administer their educational
institutions. However, Section 8(2) was held to be not applicable to
minority institutions.
37. The Court finally held that ‘Section 12 which makes the provisions
of Chapter IV inapplicable to unaided minority schools is
discriminatory not only because it makes Section 10 inapplicable to
minority institutions, but also because it makes Sections 8(1), 8(3),
8(4), 8(5), 9 and 11 inapplicable to unaided minority institutions. That
the Parliament did not understand Sections 8 to 11 as offending the
fundamental right guaranteed to the minorities under Article 30(1) is
evident from the fact that Chapter IV applies to aided minority
institutions and it cannot for a moment be suggested that surrender of
the right under Article 30(1) is the price which the aided minority
institutions have to pay to obtain aid from the Government’.”
(emphasis supplied)
26. So, it is clear that the pay and allowances of the employees of
unaided minority Schools cannot be less than those of the employees of the
Government run Schools. There is no dispute that the benefits of 6th and
7th CPC have been given to the employees of the Government run Schools.
If that be so, the employees of the unaided minority Schools are also
entitled to get the benefits of the recommendations as made by the 6th and
7th CPC reports. So, this plea of Mr. Abinash Kumar Mishra is liable to
be rejected. The plea of Mr. Mishra, that till such time the DoE grants
approval to the Schools to collect the arrears of fees, the Schools must not
be directed to pay the benefits of 7th CPC is concerned, the same is
unmerited. The employees are entitled to equal pay and other benefits, by
operation of Section 10 of the DSE Act, in other words, by operation of
law, the said benefits are payable. The same does not pre-suppose the
approval being granted by the Director to the Schools to claim higher fee
or arrears thereof.
Signature Not Verified
Digitally Signed W.P.(C) 13208/2024 Page 14 of 17
By:KAMAL KUMAR
Signing Date:06.10.2024
12:49:02
xxx xxx xxx
28. Following the aforesaid judgment, even this Court in the case
pertaining to grant of arrears of salary also granted similar reliefs to the
petitioners in Shashi Kiran v. Siddharth International Public School,
W.P.(C) No. 2734/2021; Rambir Singh Malik v. Greenfields Public School,
W.P.(C) 9486/2020; and Inderpreet Kaur v. Directorate of Education,
W.P.(C) 4127/2020. This Court in a recent judgment in the case of Amrita
Pritam v. S.S. Mota Singh Junior Model School, W.P.(C) 1335/2019 dated
September 22, 2021 has granted the benefits of the 7th CPC along with
arrears to the petitioners therein. I may state here that an appeal has been
preferred against the said judgment being S.S. Mota Singh Junior Model
School v. Directorate of Education, Government of NCT of Delhi LPA
399/2021, however, the Division Bench has not stayed operation of the
judgment in W.P.(C) 1335/2019 dated September 22, 2021. That apart, I
find despite giving an undertaking to this Court and also this Court
passing orders from time to time, unfortunately the benefits of the 6th CPC
have not been granted. This Court is of the view that, apart from the
undertaking given and also in view of the orders passed in the petitions
referred to above, the petitioners are entitled to the benefits of the 6th and
7th CPC in law as well.
29. Accordingly, these writ petitions need to be allowed and the
respondent/DSGMC/GHPS Society/GHPS are directed to, re-fix the
salaries and other emoluments of the petitioners under 6th and 7th CPC in
accordance with the rules. It is made clear that the DSGMC/GHPS Society
shall ensure the compliance of the orders passed by this Court. I take note
of the submission made by Mr. Misra that neither DSGMC nor the GHPS
Society in any case have any statutory liability under the provisions of the
DSE Act/Rules to grant the benefits of the 6th and 7th CPC but the fact
remains that the DSGMC was being represented by their functionaries in
these proceedings and even the undertakings were given on behalf of
DSGMC in the proceedings before this Court and as such cannot absolve
itself, from ensuring that the benefits of the 6th and 7th CPC are given to
the petitioners. This direction is in the facts of the cases more specifically
where the claim of the petitioners is with regard to the grant of the benefit
under the 6th and 7th CPC and connected issues. The petitioners shall
also be entitled to arrears of pay in view of fixation of their pay under the
6th and 7th CPC, upto the date of payment subject to adjustment of salary
already paid.
30. The arrears thereof under the 6th CPC shall be paid to the
petitioners with interest at the rate of 6% per annum. The arrears of 7th
CPC shall not carry any interest. The fixation of pay and arrears shall be
made/paid within a period of six months from today.
………
Signature Not Verified
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By:KAMAL KUMAR
Signing Date:06.10.2024
12:49:02
It is made clear that the failure to pay the amounts within six months as
directed above shall entail payment of a higher interest of 9% per annum
on the arrears of both 6th and 7th CPC and retiral benefits.”
12. In light of the aforesaid judgments, provisions of Section 10(1) of
Delhi School Education Act and Rules, 1973 (DSEAR) and the Circulars of
DoE, Petitioner is held entitled to the reliefs sought in the writ petition.
Albeit there can be no doubt that Petitioner is entitled to revision in
salaries/allowances as well as retiral benefits on implementation of 7 th CPC
recommendation, however, it needs to be noted that a Co-ordinate Bench of
this Court is examining the issue with respect to modalities of disbursement
of the benefits and therefore at this stage it would be appropriate to hold that
as and when a decision is taken in those batch of petitions and subject to the
decision, benefits of 7th CPC will be disbursed to the Petitioner. All other
benefits arising under 6th CPC as well as balance 40% salaries including
revised retiral benefits shall be released within twelve weeks from the date
of the receipt of this order, with simple interest @ 6% per annum on the
arrears from the date the payments became due till actual payment.
13. As far as the claims with respect to TA and DA are concerned, the
School shall take a decision within twelve weeks from today, in consonance
with the directions of the Court in Shikha Sharma (supra), which are as
follows:
“31. On the issue of grant of transport allowance/dearness allowance,
the DoE in consultation of the GHPS in which petitioners, who sought such
relief are working shall pass order, by considering the orders in the cases
being CONT. CAS.(C) 46/2016 dated January 09, 2017 and in W.P.(C)
2132/2011 dated March 06, 2013 and instructions, if any, and convey the
decision to those petitioners, within 10 weeks from today. Similarly, the
claim of some petitioners for MACP in W.P.(C) 6407/2018, W.P.(C)
11152/2019 and W.P.(C) 12006/2019 shall be decided by the DoE in
consultation with the GHPS in which the petitioners, who sought such reliefSignature Not Verified
Digitally Signed W.P.(C) 13208/2024 Page 16 of 17
By:KAMAL KUMAR
Signing Date:06.10.2024
12:49:02
are employed and convey the same to those petitioners, within 10 weeks
from today. If the benefits are payable, the same shall be released to the
petitioners within six months thereafter.”
14. Writ petition stands disposed of in the aforesaid terms.
JYOTI SINGH, J
SEPTEMBER 20, 2024/shivam
Signature Not Verified
Digitally Signed W.P.(C) 13208/2024 Page 17 of 17
By:KAMAL KUMAR
Signing Date:06.10.2024
12:49:02