Greenfields Public School v. Anchla & Ors.

9. Respondent No. 9/ Ms. Meena Kalia 06.08.1987 TGT 30.09.2021)

10. Respondent No. 10/ Ms. Shobha Singh 21.07.1987 TGT (appointed as PGT Digitaaly (English) on 01.07.1989 and 31.03.2019)

11. Respondent No. 11/ Mr. Pulkit Sinha 02.09.1985 TGT (promoted as PGT 01.04.2008 and 30.08.2021)

12. Respondent No. 12/ Ms. Saroj Arora 05.07.1980 Assistant Teacher on 04.07.1986 and 31.01.2018)

13. Respondent No. 13/ Mr. Beryl Sewak 02.09.1985 Nursery/Teacher Assistant 31.01.2020)

14. Respondent No. 14/ Ms. Rekha Chopra 01.07.2002 PGT (Chemistry) 30.06.2017)

15. Respondent No. 15/ Ms. Bharti Kumar 01.07.1982 PRT (English) 01.07.1987 and 31.01.2020) Digitaaly

5. The learned Single Judge has allowed the underlying writ petition and has directed the arrears to be released to the Respondents herein/Writ Petitioners under the 7th Pay Commission with effect from 01.01.2016 along with interest at the rate of 6% per annum. The learned Single Judge has also held that the Respondents herein/Writ Petitioners shall also be eligible for MACP keeping in view the MACP scheme.

6. The Respondents herein/Writ Petitioners keeping in view Section 10(1) of the Act, 1973 which provides for grant of same pay scale and allowances, medical facilities, pension and gratuity to the employees of a recognized private school at par with the employees of the government school, raised a claim for grant of higher pay scale at par with the teachers working in aided schools/government schools as per the recommendations of the 7th Pay Commission relying upon the judgments delivered in the following cases: a. Mrs. Omita Mago &Ors. v. Ahlcon Public School & Anr., W.P.(C) 4979/2021, decided on 24.03.2022; b. Shikha Sharma v. Guru Harkrishan Public School & Ors, 2021 SCC OnLine Del 5011; c. Amrita Pritam and Others v. S.S. Mota Singh Junior Model School and Others, 2021 SCC OnLine Del 4470; d. Kuttamparampath Sudha Nair v. Managing Committee Sri Sathya Sai Vidya Vihar and Another, 2021 SCC OnLine Del 2511.

7. In respect of the MACP scheme, it was brought to the notice of the learned Single Judge that the school in question has granted benefit of MACP to other identically placed persons, and, therefore, a claim was also Digitaaly raised in respect of MACP keeping in view the Department of Personnel and Training Office Memorandum dated 19.05.2009.

8. Learned Counsel appearing on behalf of the Department of Education, Government of NCT of Delhi, has supported the claim of the Respondents herein/Writ Petitioners and stated on affidavit that a circular had already been issued on 25.08.2017 directing the Managing Committees of all the Schools to implement the pay rules for regular employees and grant pay revision as per the recommendations of the 7th Pay Commission with effect from 01.01.2016 keeping in view Section 10(1) of the Act, 1973 and to place the Respondents herein/Writ Petitioners at par with their counter-parts working in government schools.

9. The Appellant School (Respondent before the learned Single Judge), took a plea in the underlying writ proceedings that the claim of the retired teachers is barred by delay and laches as most of them have retired prior to 2018, and the writ petition has been preferred in 2021. Before the learned Single Judge, heavy reliance was placed upon the following judgments: a. Union of India and Others v. Tarsem Singh, (2008) 8 SCC648 passed by the Hon‟ble Supreme Court; b. State of Orissa and Another v. Mamata Mohanty, (2011) 3 SCC436 passed by the Hon‟ble Supreme Court; c. Standing Conference of Public Enterprisesv. BSES Rajdhani Power Limited & Ors., 2013 SCC OnLine Del224 passed by this Court; Digitaaly d. Avinash Sharma v. Tata Power Delhi Distribution Ltd., 2021SCC OnLine Del 4904 passed by this Court; e. And Kirti Jain v. Kulachi Hansraj Model School & Others, 2018 SCC OnLine Del 13221 passed by this Court.

10. Learned Counsel for the Appellant School also raised an objection that keeping in view the judgment in the case of T.M.A. Pai Foundation and Others v. State of Karnataka and Others, (2002) 8 SCC 481, the Private unaided schools have a right to determine the fee payable by the students as well as the pay structure of their employees. Therefore, by no stretch of imagination, the Appellant school can be forced to revise the salary of its employees as per the recommendations made by the 7th Pay Commission.

11. The Appellant School had raised another ground before the learned Single Judge by taking shelter of Section 17 and 18 of the Act, 1973 read with the Rule 177 of the Rules, 1973 and it was stated before the learned Single Judge that unless and until the school is permitted to enhance its fee, the question of payment of revised salary to the teachers keeping in view the recommendations of the 6th and 7th Pay Commission does not arise.

12. The Appellant School before the learned Single Judge contended that unless and until there is a fee hike permitted to the School, the School is not in a position to revise the pay of its employees keeping in view the recommendations of the 7th Pay Commission. Digitaaly

13. It was also brought to the notice of the learned Single Judge that in respect of enhancement of fees, a proposal was forwarded by the Appellant School to the Directorate of Education, and the Director of Education vide order dated 07.02.2019 has declined the request made by the School to enhance the fee for the Academic Session 2017-18, and the School, thereafter, had challenged the order dated 07.02.2019 by filing a Writ Petition being W.P.(C.) No. 5873/2019. The learned Single Judge vide order dated 24.05.2019 passed an interim order in W.P.(C) No. 5873/2019 staying any coercive action against the School.

14. The learned counsel for the appellant herein has vehemently argued before this Court that the order dated 24.05.2019 means that no coercive action will be taken against the School even if the School does not revise the pay scale under 7th Pay Commission. In respect of MACP, heavy reliance was placed by the learned counsel for the appellant upon the judgment delivered in the case of Manju Sipayya v. Directorate of Education and Others, 2019 SCC OnLine Del 10867, and before the learned Single Judge it was contended that the Writ Petitioners cannot claim MACP as a matter of right and it is the discretion of the School to adopt the Scheme.

15. The learned Single Judge has allowed the Writ Petition and Paragraph 32 to 39 of the order passed by the learned Single Judge reads as under:

16. The learned Single Judge by the aforesaid order has held that the Respondents herein/Writ Petitioners are entitled to the benefit of pay revision under the 7th Pay Commission including arrears thereof keeping in view the Central Civil Services (Revised Pay) Rules, 2016 read with Section 10(1) of the Act, 1973.

17. The learned Single Judge has also rejected the arguments of the School that on the ground of financial hardship, the School will be unable to bear the burden of disbursing the revised salaries and emoluments and arrears. The learned Single Judge has also rejected the ground raised by the Digitaaly Appellant School regarding direct linkage and inter-dependence and pay revision of employees under Section 10(1) of the Act, 1973, with the right of the School to revise the fee structure under Section 17 of the Act, 1973.

18. The learned Single Judge after placing heavy reliance upon the judgment delivered in the case of Ahlcon Public School v. Omita Mago and Ors., 2023 SCC OnLine Del 368, has arrived at a conclusion that the teachers/staff are entitled for revised pay scale and the law on the subject has already been settled by various judgments delivered from time to time.

19. In respect of MACP scheme, the learned Single Judge has held that it is within the domain of the school to adopt or not to adopt the MACP scheme. However, in the present case as the school has already adopted the MACP in respect of some of the employees, the learned Single Judge held that the Respondents herein/Writ Petitioners are also entitled for grant of benefits under the MACP scheme and denial of benefits under the MACP scheme to the Respondents herein/Writ Petitioners will be violative of Article 14, 16 and 21 of the Constitution of India as it would create disparity between the employees who have received the MACP benefits and the employees who have not received the MACP benefits.

20. Heard Learned Counsel for the Parties at length and perused the record. The undisputed facts of the case reveal that the Respondent employees are retired employees of Greenfields Public School and they came up before this Court seeking benefits of pay revision keeping in view the recommendations of 7th Pay Commission along with consequential benefits and also financial upgradation under the MACP scheme introduced Digitaaly by Government of India vide Department of Personnel and Training‟s Office Memorandum dated 19.05.2009 issued pursuant to recommendations of the 6th

21. The statutory provisions governing the field as contained under Section 10 of the Act, 1973 provides for grant of pay and allowances to the employees of a recognized private school at par with the employees of corresponding school run by the appropriate authority (government schools and schools receiving grant in aid).

22. The aforesaid statutory provision makes it very clear that the teachers serving in private schools are also entitled for benefit of higher pay scale at par with the teachers/employees working in an Aided School/Government School keeping in view the recommendations of pay commissions.

23. It is an undisputed fact that the teachers working in aided schools/ Government Schools have been granted benefit of higher pay scale as per the recommendations of the 7th Pay Commission. The issue involved in the present case is no longer res integra and this Court in LPA 450/2022 titled Ahlcon Public School Vs. Omita Mago and Ors., has dealt with a similar controversy. Paragraph Nos. 5 to 11 of the judgment passed by this Court in the aforesaid LPA reads as under:

9. Admittedly, the Appellant School is governed by the Delhi School Education Act, 1973 and Section 10 of the Act applies with all force. Paucity of funds cannot be a ground for permitting the school not to pay the emoluments to its employees. The said issue has been dealt with and has been answered against the schools in several judgments passed by this Court [Refer to: Kuttamparampath Sudha Nair v. Managing Committee Sri Sathya Sai Vidya Vihar and Anr., W.P.(C) 928/2019 decided on May 06, 2021; Shashi Kiran & Ors. v. Siiftlltarth International Public School & Anr., W.P.(C) No.2734/2021 and Amrita Pritam & Ors. v. S. S. Mota Singh Digitaaly Junior Model School & Ors., W.P.(C) 1335/2019 decided September 22, 2021; Shikha Sharma v. Guru Harkrishan Public School & Ors., W.P.(C) 3746/2020, decided on November 16, 2021].

10. All these judgments categorically negate the contention raised by the schools that they could not pay the teachers due to paucity of funds.

11. The Appellant School has no other alternative but to pay arrears of salary and emoluments to its employees as fixed by the 7th Pay Commission. There is no infirmity with the order passed by the learned Single Judge which requires interference by this Court.”

24. In light of the aforesaid judgment delivered by this Court, the Respondents are certainly entitled to the pay scale recommended by the 7th

25. Learned Counsel for the Respondent Employees, while the matter was being argued before this court made a statement before the Court, that the school at present is paying salaries to its existing employees as per the Pay Commission and is discriminating with the Respondents herein only because they have attained the age of superannuation.

26. Learned counsel for the Appellant School when confronted with the aforesaid situation admitted the aforesaid fact and has stated categorically in open Court that at present the school is paying salaries to teachers/employees as per the recommendations of the 7th Pay Commission.

27. This Court fails to understand the distinction made by the school in respect of same class of teachers/ employees only on the ground that some Digitaaly of them have superannuated. The action of the Management is certainly contrary to the law laid down by this Court in the case of Ahlcon Public School (Supra), and is also violative of Articles 14, 16 and 21 of the Constitution of India.

28. Learned Counsel for the Appellant School has vehemently argued before this Court that the issue of fee hike is pending before this Court and it would not be in a position to pay revised salaries to the Respondents herein until it revises its fee. In the considered opinion of this Court, Section 10 and Section 17 of the Act, 1973 operate in different fields. Section 17 of the Act, 1973 reads as under:

29. It is true that the aforesaid statutory provisions of law make it mandatory for a school to file with the Directorate of Education, a full statement of fee to be levied during the ensuing Academic Session, and except with the approval of the Director, the school cannot charge fee in Digitaaly excess of the fee as stipulated by the Education Department. However, the said provision does not benefit the case of the Appellant School. The issue regarding applicability of Section 17(3) has been dealt in judgment of the Division Bench of this Court in the case of Ahlcon Public School (supra), wherein a similar plea was raised and the Division Bench directed the Employer School therein to pay salaries of its employees as per the Pay Commission. Therefore, the aforesaid plea raised by the Appellant School is of no consequence.

30. Learned Counsel for the Appellant School has relied upon a judgment delivered by the Hon‟ble Supreme Court in the case of Godawat Pan Masala Products I.P. Ltd. v. Union of India, (2004) 7 SCC 68. The Appellant relies on the said judgment to contend that the Act, 1973 should be read harmoniously and Sections 10 & 17 of the Act, 1973 should be read together in a harmonious manner.

31. This Court has carefully gone through the said judgment delivered by the Hon‟ble Supreme Court and is of the view that the school in question cannot escape from its liability of paying higher pay scale to the Respondents herein by taking a plea that there is a correlation between Section 10 and 17 of the Act, 1973. In the considered opinion of this Court, there is no direct linkage, correlation and inter-dependence in respect of payment of salary and right to revise its fee, especially in light of the fact that the School is at present paying salary to its current employees as per the Pay Commission, but not to the Respondents herein as they have superannuated, and therefore, the question of setting Digitaaly aside the Impugned Judgment delivered by the learned Single Judge does not arise.

32. Learned Counsel for the School has vehemently also argued before this Court that the claim of the employees is barred by delay and laches. This Court in LPA 304/2023 titled D.A.V. College Managing Committee Through Its General Secretary Vs. Seema Anil Kapoor & Anr.,has considered the issue of delay and laches. Paragraph No. 13 of the judgment passed by the Division Bench of this Court in the aforesaid case reads as under:

33. In light of the aforesaid judgment, once the employer itself had faulted in implementing the recommendations of the Central Pay Commission, the claim cannot be denied on the ground of delay and laches. Therefore, in the considered opinion of this Court the learned Single Judge was justified in directing payment of salaries to the employees (Respondents herein) keeping in view the recommendations of the 7th

34. The other issue involved in the present case is grant of benefit under the MACP Scheme to the Respondents. While it is certainly within the domain of the School to adopt or not to adopt the MACP,however, once the school has adopted MACP scheme in respect of some of its employees, the school cannot be permitted to discriminate and deny the benefit of MACP to the Respondent Employees. Therefore, the learned Single Judge was justified in directing the Appellant School to grant all benefits under the MACP Scheme to the Respondent Employees also. Therefore, this Court does not find any reason to interfere with the judgment passed by the learned Single Judge.

35. In the considered opinion of this Court, especially in light of the fact that the School is also paying salaries to its employees as per the Pay Commission at present, the benefit of the same cannot be denied to the Respondent Employees who have attained the age of superannuation, only on the ground that they have superannuated and, Digitaaly therefore, this Court does not find any reason to interfere with the judgment passed by the learned Single Judge. The present appeal fails and is accordingly dismissed. However, the School is granted three months‟ time to comply with the order passed by the learned Single Judge. (SATISH CHANDRA SHARMA)

CHIEF JUSTICE (SAURABH BANERJEE)