TaxTMI 
TaxTMI 
1999 (7) TMI 702
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....chool Education, dated 20.8.1997. As stated earlier all the contentions in these writ petitions are identical and 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 Rs. 1,200 p.m. as fixed by fifth pay commission. They are being paid Rs. 1,200 p.m. with usual allowances, as admissible to the pos....
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....ced as secondary grade (Junior) in the consolidated sum are same. Both the teachers are taking 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 Rs. 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 wri....
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....0 per month, for an initial period of two years from the respective dates of filling 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 sh....
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....ther stated that being the parties and. executants of the contract, the 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....
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....ew post, namely, Secondary Grade (Junior) teacher which is not in the cadre both 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, Rs. 800 pe....
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....dered the rival submissions. 9. Before considering the rival submissions made by the petitioners and the learned Additional Advocate General, it is worth-while 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 f....
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....sciplinary matters) of the teachers and other persons employed in any private school. 12. Section 20 is as follows: 20. Appointment of teachers and other employees in private schools : (1) No person who does not possess the qualifications prescribed under Section 19 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 oth....
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....ted among the schools under all kinds of managements including Government, local body (Municipality/Corporation/Township/Panchayat Union) and Private Aided Schools. As stated by the learned Additional Advocate General, none of the petitioners has questioned the said Government Order, namely, G.O.Ms.No. 846, 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 Rs. 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 relevan....
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....rnment by the impugned Government Order, have downgraded the said post as Secondary Grade (Junior) Teacher. At this juncture, learned Additional Advocate General would contend that in the absence of any challenge to G.O.Ms.No. 846, dated 25.6.1990, the Government is competent to issue directions 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 Un....
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....o apply to the professional course, because following the said Government Order, further action is not taken to apply the said Government Order to professional course. In the light of the said factual position, after framing necessary points for consideration, the Division Bench has made the following 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 con....
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....but the instructions cannot and should not supplant the law, but would only supplement the law. The Governor exercising the power under proviso to Section 125 (Article 309 of the Constitution of India) made the rules which do not expressly give the power to the State Government to make ad hoc appointments. 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 Leadin....
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....ion, even though it is stated by the learned Additional Advocate General that power to issue direction rests with the Government, I am of the view that when the field is occupied by the statute, the executive power cannot be exercised. By the impugned government Order the Executive down graded the post of Secondary Grade Teacher 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 Rs. 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 ....
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....rnment schools was considered by Their Lordships of the Supreme Court and the conclusion arrived at by them is as follows: ...The question of parity in pay scales between the teachers of a recognised aided school and the teachers of a government school, as in the present case, came up for consideration 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 ....
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....n of that right. In our case, the mode of recruitment, qualification, nature and volume of work etc., for the Secondary Grade teacher and newly created post, namely, Secondary Grade (Junior) teacher are one and the same. In such circumstance, the principle of "equal pay for equal work" comes into picture and if there is any disparity, 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 Rs. 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 ....
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....ents at the end of the appellants themselves who treated all these teachers at par by promulgating the Revised Pay Rules in the light of the recommendations of the Pay Revision Committee as well as Pay Anomalies Commission as noted in details by us earlier. 22. In the case of Swapan Kumar v. Tapas Chakravorty , their Lordships in para 14 have observed 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 se....
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.... the responsibilities carried by the officers of the Delhi Territory and the Goa Territory. In that case, the District Judges working in Delhi and in Goa are being paid differently. After holding that both of them are doing the same type of work, their Lordships have directed the Union of India to disburse the arrears of pay to the appellants therein (District 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 ....
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....e are not maintainable. In this regard, it is contended on behalf of the petitioners that in view of lack of bargaining power, the teachers were forced to execute the agreement due to poverty and unemployment, any agreement affecting fundamental rights is void and not binding. A perusal of the agreement would show that all the Secondary Grade (Junior) Teachers have agreed to abide by certain terms and conditions including a consolidated pay of Rs. 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 ....
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....court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of 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'....
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....I am of the view that the teachers are entitled to challenge the impugned Government Orders as violative of Article 14 of the Constitution of India and Section 23 of the India Contract Act. Accordingly; the contentions raised by the learned Counsel for the petitioners on this aspect are well-founded. 30. The learned Additional Advocate General by pointing out the provisions 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....
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.... the same time, it is to be seen whether the statutory provisions or Constitutional mandate are violated while exercising such power. 31. Learned Additional Advocate General by relying on a decision in the case of Union of India v. No. 664950 IM Havildar/Clerk would contend that the impugned Government Orders create equality among the particular group of persons and absolutely 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 ....
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.... of fund, giving employment avenue to the unemployed candidates, etc., nothing has been elicited in the impugned Government Orders. As observed by the Division Bench of this Court in K. Arunachalam v. State , an Order has to be sustained on the reasons given in the Order and not on the basis of the subsequent reasons given in the counter affidavit. Likewise, even though 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 ....