Full Text
HIGH COURT OF DELHI
LPA 601/2022 & CM APPLs. 45446-45447/2022
BHARAT MATA SARASWATI BAL MANDIR SENIOR SECONDARY SCHOOL ..... Appellant
Through: Mr.Parvinder Chauhan, Advocate with Ms.Aakriti Garg, Advocate.
Through: Mr.Yeeshu Jain, Standing Counsel with Ms.Jyoti Tyagi and Ms.Manisha, Advocates for R-4&5.
Date of Decision: 07th July, 2023
HON'BLE MS. JUSTICE MINI PUSHKARNA
JUDGMENT
Keeping in view the averments in the application, the delay in filing the present appeal is condoned.
Accordingly, the application stands disposed of.
1. Present appeal has been filed challenging the judgment and order dated 14th December, 2021, whereby the writ petition filed by three teachers seeking payment of 7th Central Pay Commission (hereinafter referred to as ‘7th CPC’) has been allowed.
RELEVANT FACTS
2. The relevant facts are that respondents 1 to 3 have been working in the appellant school on regular basis. Pursuant to recommendations of the 7th CPC, respondent No.5/Directorate of Education (DOE) issued notification dated 17th October, 2017, whereby all the private recognized schools were asked to implement the same. Since the benefit of the 7th CPC was not extended by the appellant school, Respondents 1 to 3 approached this Court by filing a writ petition.
3. By the impugned judgment dated 14th December 2021, the learned Single Judge directed the school to grant benefits/salaries to respondents 1 to 3 herein, in terms of provisions of the 7th CPC and further held that they were entitled to arrears thereof w.e.f. 1st January 2016. Thus, the present appeal has come to be filed by the school.
ARGUMENTS BY LEARNED COUNSEL FOR THE APPELLANT
4. Learned counsel for the appellant-school submits that the appellantschool is not amenable to writ jurisdiction as it is an unaided private school. In support of his submission, he relies upon the judgment of the Supreme Court in St. Mary’s Education Society and Another Vs. Rajendra Prasad Bhargava and Others, 2022 SCC OnLine SC 1091, wherein it has been held as under:-
5. He further states that even if the writ petition is held to be maintainable, no direction for payment of arrears thereof w.e.f. 1st January, 2016 could have been passed, inasmuch as, the petitioners had approached this Court by preferring the writ petition on 31st August, 2020. He submits that the claim for recovery of arrears beyond the period of three years is barred by law of limitation. In support of his submission, he relies upon the judgment of the Supreme Court in Union of India and Others Vs. Tarsem Singh, (2008) 8 SCC 648, wherein it has been held as under:-
6. He also relies upon the judgment of the Supreme Court in Rushibhai Jagdishbhai Pathak Vs. Bhavnagar Municipal Corporation, 2022 SCC OnLine SC 641, wherein the judgment of the Union of India and Others Vs. Tarsem Singh (supra) has been reiterated. The relevant portion of the judgment is reproduced hereinbelow:-
AS THE WRIT INVOLVES A PUBLIC LAW ELEMENT, IT IS MAINTAINABLE
7. Having heard learned counsel for the appellant, this Court is of the view that the writ petition filed by the three teachers is maintainable as it involves a public law element, inasmuch as, the original writ petitioners were seeking the implementation of Section 10(1) of the Delhi School Education Act, 1973 (DSE Act, 1973) which reads as under:-
8. In fact, the writ petitioners by way of the underlying writ petition were also seeking enforcement of circular/order/notification dated 17th October, 2017 issued by DOE directing the schools to make payment of salaries to teachers in accordance with 7th CPC. In fact, in the case of St. Mary’s Education Society (Supra), Supreme Court has categorically held as follows: “75.1. An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public.”
9. Consequently, this Court is of the view that the writ petition filed by teachers is maintainable.
WRIT IS NOT BARRED BY DELAY AND/OR LACHES
10. This Court is further of the view that the writ petition filed by the original writ petitioners is not barred by delay and/or laches, inasmuch as, the cause of action is a recurring one.
11. In Union of India vs. Tarsem Singh (supra), the Supreme Court has itself clarified by way of an example that if the issue relates to payment of pay, relief should be granted in spite of delay as it does not affect third party rights.
12. Further, the judgment in Rushibhai Jagdishbhai Pathak Vs. Bhavnagar Municipal Corporation (supra) offers no assistance to the appellant as it deals with a case of higher grade pay scale in the next promotional post and which is not the case in the present instance.
CONCLUSION
13. To conclude, it is reiterated that the reliefs claimed by the respondents in the writ petition were for payment of full salary as per recommendations of 7th CPC. Section 10 of the DSE Act provides that the scale of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of a recognized private school shall not be less than those of the employees of the corresponding status in the government school. The DOE in accordance with the DSE Act, 1973 has issued notification dated 17th October, 2017 directing that all recognized schools shall implement the recommendations of 7th CPC. In view thereof, it is the undisputed position of law that teachers of unaided private schools are entitled to the same pay and emoluments as those of government schools, in terms of the obligation enjoined upon the private recognized schools under the DSE Act, 1973. The schools cannot evade their statutory responsibility and are bound to pay the statutory dues.
14. Consequently, this Court is of the view that the present appeal is bereft of merit. Accordingly, the present appeal and application are dismissed but with no order as to cost. MANMOHAN, J MINI PUSHKARNA, J JULY 7, 2023