Anchla and Ors. v. Greenfields Public School and Anr.

16. As for financial upgradations under the MACP Scheme, it is contended that claims of the Petitioners are untenable in law being contrary to the judgment in Manju Sipayya (supra), where the Division Bench has held that private unaided schools cannot be forced to adopt the MACP Scheme and SLP(C) No.5361-5362/2020 against the said judgement was dismissed by the Supreme Court on 08.11.2021. Therefore, Petitioners cannot claim MACP benefits as a matter of right as it is the discretion of the School to adopt the Scheme. Mr. Gupta pointedly submits that contrary to the stand of the Petitioners, School has not paid MACP to even a single member of the staff and School has taken this position in writing in para 13 of the brief note dated 31.05.2023. It is also urged that the DoE itself, after elaborate hearing, has passed a detailed order dated 02.12.2014 in the case of Summer Fields School, Kailash Colony stating that MACP Scheme cannot be imposed on private unaided schools. Therefore, there is no discrimination against the Petitioners and in fact, none is pleaded in the writ petition.

17. I have heard the learned counsels for the parties and examined their respective contentions.

18. The neat legal nodus that arises in this writ petition is whether Petitioners are entitled to the benefits of pay revision under 7th CPC, including arrears thereof. This issue, in my view, as rightly contended by the Petitioners, is no longer res integra. This Court in Kuttamparampath Sudha Nair (supra), has examined the vexed question of applicability of Section 10(1) of DSEA&R to private recognized unaided schools and relevant paras of the judgment are as under:

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.

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.”

22. Relevant paras of the judgment in T.M.A. Pai (supra) are as follows:— “124. In Lily Kurian v. Sr. Lewina [(1979) 2 SCC 124: (1979) 1 SCR 820] this Court struck down the power of the Vice- Chancellor to veto the decision of the management to impose a penalty on a teacher. It was held that the power of the Vice- Chancellor, while hearing an appeal against the imposition of the penalty, was uncanalized and unguided. In Christian Medical College Hospital Employees' Union v. Christian Medical College Vellore Assn. (1987) 4 SCC 691 this Court upheld the application of industrial law to minority colleges, and it was held that providing a remedy against unfair dismissals would not infringe Article 30. In Gandhi Faiz-e-am College v. University of Agra (1975) 2 SCC 283 a law which sought to regulate the working of minority institutions by providing that a broad-based management committee could be reconstituted by including therein the Principal and the seniormost teacher, was valid and not violative of the right under Article 30(1) of the Constitution. In All Saints High School v. Govt. of A.P. (1980) 2 SCC 478 a regulation providing that no teacher would be dismissed, removed or reduced in rank, or terminated otherwise except with the prior approval of the competent authority, was held to be invalid, as it sought to confer an unqualified power upon the competent authority. In Frank Anthony Public School Employees' Assn. v. Union of India (1986) 4 SCC 707 the regulation providing for prior approval for dismissal was held to be invalid, while the provision for an appeal against the order of dismissal by an employee to a tribunal was upheld. The regulation requiring prior approval before suspending an employee was held to be valid, but the provision, which exempted unaided minority schools from the regulation that equated the pay and other benefits of employees of recognized schools with those in schools run by the authority, was held to be invalid and violative of the equality clause. It was held by this Court that the regulations regarding pay and allowances for teachers and staff would not violate Article 30.” (emphasis supplied)

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. Coordinate 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 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:—

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:—

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.

13. In the present case, Section 10 remains on the statute book; it was 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.”

28. Contention of learned counsel for the School that Section 10(1) does not specifically include unaided private schools may seem attractive at the first blush, if one was to superficially look at the provisions of the Section, where the words used are ‘recognized private school’. However, the contention cannot be accepted in view of the various judicial pronouncements where the provision of Section 10(1) has been interpreted to include both aided and unaided schools. The Division Bench in Dhanwant Kaur (supra) has clearly held that the mandate of Section 10(1) would apply to all unaided schools as the minimum standard that the provision ensures must be adhered to by all recognized schools.

29. In Dev Dutt Sharma v. Managing Society National Public School in W.P. (C) 11563/2009 decided on 02.07.2010, a Coordinate Bench of this Court pronounced that the mandate of Section 10(1) is unambiguous, regardless of whether the institution receives grant-in-aid or not. Since the Act itself contemplates unaided private schools for recognition, mandate will apply with full rigour to them. The Supreme Court in Frank Anthony (supra) held that impact of Section 10(1) would not have the effect of eroding the minority character of the Minority Institutions, who are entitled to protection under Article 30(1) of the Constitution of India.

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. 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.

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.”

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.

34. In any event, it is not open to the School to even argue that the provisions of Section 10(1) of the DSEA&R would not apply to the Petitioners as it was clearly mentioned in the appointment letters that Terms and Conditions of appointment would be governed by the DSEA&R. While incorporating this stipulation in Clause 3 of the appointment letters, the School did not carve out any exception or caveat that provisions of Section 10(1) will not apply to the teachers. Clause 3 of the respective appointment letters reads as under:— “The terms and conditions of appointment are to be governed by the Delhi School Education Act & Rules, 1973.””

19. The issue again arose for consideration before this Court in Shikha Sharma (supra) and the Court held as follows:

20. From a reading of the aforementioned judgments, this Court cannot but agree with the contention of the Petitioners that their case is covered on all four corners by the judgments and they are entitled to pay revision under the 7th CPC, in consonance with CCS (Revised Pay) Rules, 2016 by virtue of provision of Section 10(1) of 1973 Act. No distinction exists or has been pointed out on behalf of the School which leads this Court to a conclusion that the Petitioners herein are not similarly placed as the Petitioners in the aforementioned two judgments and therefore no discrimination can be meted out to them as that would amount to violation of Article 14 of the Constitution of India.

21. Coming to the argument raised on behalf of the School that on account of the financial hardship, School will be unable to bear the burden of disbursing the revised salaries and emoluments, more particularly the arrears, suffice would it be to note that this argument stands negated and rejected by this Court in the aforementioned two judgments. Relevant paras of the judgment in Kuttamparampath Sudha Nair (supra) are as follows: “35. The next contention of the School, without prejudice to the earlier contention, was that the School is run by a Charitable Trust and its financial condition is weak with total number of students being less and many of them covered under the EWS/DG category. School is thus unable to bear the burden of disbursing the salaries and the emoluments as per the CCS (Revised Pay) Rules, 2016 in respect of the Government employees. Courts have repeatedly held that paucity of funds or financial crunch of an employer cannot be an answer to non-compliance of a statutory mandate. In the context of payment of minimum wages, the Supreme Court in Unichovi v. State of Kerala, AIR 1962 SC 12 and Hydro (Engineers) Private Ltd. v. Workmen (1969) 1 SCR 156 held that hardship to an employer to carry on its activity, on account of payment of minimum wages, is an irrelevant consideration for determination of minimum wages. The State assumes that every employer must be in a position to pay minimum wages before he resorts to employment. In Air Freight Ltd. v. State of Karnataka, (1999) 6 SCC 567, this solemn principle was reiterated.

36. In the context of Section 10(1) of DSEA&R, this Court had rejected the argument of paucity of funds as an irrelevant consideration in the case of Samaj Shiksha Samiti v. Delhi State Saraswati Shishu Bal Mandir Karamchari Kalyan (2002) 97 DLT

802. In this context, I may quote a few passages from the judgment in Veena Sharma (Mrs.) v. The Manager, No. 1 Air Force School Palam 2005 VII AD (Delhi) 517 as follows:— “18. Two things clearly emerge, from the above position. The respondent school is under an obligation to comply with the provisions of Section 10. This obligation is not relieved in any manner; rather, Section 4(1) reinforces this conclusion. Further, the Director and other authorities under the Act have no power to exempt any recognized school from its liability to comply with Section 10. The reliance of the school on the implied approval by the Central Government, is in my considered opinion of no consequence. There is no dispute about he fact that the Directorate itself has been insisting upon payment of salary and allowances in accordance with Section 10. Indeed that was the condition of recognition itself. The second issue is that financial hardship is also no consideration or ground to relieve an employer of his statutory obligation to pay what society has decreed as the minimum salary of teachers and staff, through the provisions of Section 10 of the Act.

19. The submission of learned counsel for the school that if the relief is granted and the pay scales have to be released in favour of the petitioners, a situation might arise leading to the close of the school is somewhat similar to the apprehensions voiced by the Management in Frank Anthony case (supra). The Supreme Court dealt with arguments in the following terms:— “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 tht 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 right 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.

20. The submission of paucity of funds, has to be, therefore, rejected. The subjective or individual hardship of a management, that too sponsored by no less an Organization of the stature of Indian Air force, which even went to the extent of seeking to deny liability on the ground that the school caters to the children of JCOs (Junior Commissioned Officers) impliedly perhaps suggesting that the children of such employees can be taught without compliance with minimum standards imposed by law, cannot be countenanced.”

37. In this regard, I am also fortified in my view by a judgment of a Co-ordinate Bench in Deepika Jain v. Rukmini Devi Public School W.P. (C) 237/2013 decided on 23.09.2013, where implementation of 6th CPC benefits was sought by the Petitioner and the Court held as follows:—

38. In view of the above, this Court cannot accept the plea of paucity of funds and financial crisis raised by the School.”

22. School has largely predicated its case on the alleged direct link and inter-dependence of revision in pay of employees under Section 10(1) with the right of the School to revise the fee-structure under Section 17 of 1973 Act, emphasising that the fee collected from the students is the only source of revenue/income of the School. This ground, it is urged, is also a contributory factor to the already existing financial crunch and circumstances owing to the pandemic COVID-

19. While the argument is no doubt ingenious, however, cannot aid the School. First and foremost, it needs to be noted factually that when a show-cause notice dated 14.01.2021 was issued to the School by DoE pertaining to non-compliance of the mandate of Section 10(1) of 1973 Act, School had denied in the reply dated 20.01.2021 that there was non-compliance of the order dated 18.04.2020, inasmuch as School had not stopped/reduced the monthly salaries and emoluments. It was also stated that there was only a delay in disbursal of salaries and this was due to the extraordinary and unimaginable situation created by the Pandemic and non-payment of fee by the parents on time, resulting in arrears of crores of rupees. It was not the stand of the School that revision of pay under 7th CPC was interlinked to or inter-dependent on the fee hike. Be that as it may, even legally, the argument is wholly flawed. Section 17 of 1973 Act deals with ‘Fees and other charges’ and provides that no aided school shall levy any fee or collect any other charge or receive any other payment except those specified by the Director. This Court in the case of Delhi Abhibhavak Mahasangh v. Union of India & Ors., AIR 1999 Del 124, held that DoE has ample power to regulate fee and other charges even with respect to recognized unaided schools to prevent commercialization and exploitation even though Section 17(1) and (2) are applicable to aided schools. The purpose and intent behind the provision is to regulate the fee charged by the schools so that there is no profiteering albeit autonomy of private unaided schools to fix their fee-structure is judicially recognized. Section 10(1) on the other hand mandates parity in pay, allowances and other medical and retiral benefits between employees of a recognized private school and their counterparts in schools run by the appropriate authority. This Court is unable to see any dependence of Section 10(1) on Section 17 of the 1973 Act, as sought to be brought forth by Mr. Gupta. Be it mentioned that to bring home this point, learned counsel has placed heavy reliance on the judgment of the Division Bench of this Court in Social Jurist (supra), wherein according to the School, the Division Bench has observed that the two provisions are interlinked with each other. Court is unable to agree with the School on this count. Reading of the judgment shows that a Public Interest Litigation was filed seeking implementation of 7th CPC recommendations for teaching and non-teaching employees of unaided private schools of Delhi. Respondent No.5 therein was the Action Committee Unaided Recognized Private Schools and the contention raised by the said Respondent was that the obligation under Section 10 cannot be complied with unless rights of the schools enumerated under Section 17 are allowed to be availed. The Division Bench did not delve into the legal issue raised and only observed that PIL was not tenable in law because the teaching and non-teaching staff of any unaided private school can always approach this Court in their individual capacity, if aggrieved of the non-implementation of the 7th Pay Commission’s recommendations. The Division Bench also observed that as and when any aggrieved individual approaches this Court, the decision can be taken in accordance with law, rules, regulations and Government policy applicable. The operative paragraphs of the judgment read as follows:-

23. Reliance placed on the judgment in Naresh Kumar (supra), is also misplaced. The writ petition in the said case was filed inter alia for a direction to DoE to direct the Schools not to charge tuition fees from the students keeping in view the Pandemic Covid-19 at least for the lockdown period in the interest of justice. Challenge was made to an order dated 17.04.2020 passed by DoE directing payment of fee and in this context the Division Bench held that the contention of the Petitioner that no tuition fees be charged by the schools as the schools are closed during the pandemic was misconceived. Division Bench held that there can be no cavil to the proposition that fee will be payable only if the schools run and impart education. However, having examined the issue, Court found that as a matter of fact that most schools were providing education online and in this view of the matter held tuition fees could not be exempted and that DoE had struck the right balance by allowing unaided schools to charge tuition fees so that expenses on salaries and other curricular activities etc., could be defrayed. I am unable to discern any finding/observation or a direction in the judgment that in the absence of a fee hike, unaided schools can continue to pay pre-revised scales, overlooking and ignoring the recommendations of the Pay Commissions and the mandate of Section 10(1) of 1973 Act. In fact, School is putting forth this argument perhaps oblivious of the fact that another Division Bench of this Court has held contrary to the submissions of the School herein and rejected this very contention of Ahlcon Public School in the judgement delivered in Ahlcon Public School v. Omita Mago and Ors., 2023 SCC OnLine Del 368. The appeal before the Division Bench arose out of a judgment of the learned Single Judge of this Court in W.P.(C) No. 4979/2021. The prayers in the writ petition before the writ Court are extracted hereunder: “i) issue any appropriate writ, order or direction, directing the Respondent Ahlcon Public School to forthwith pay to the petitioners the amounts wrongfully deducted from their salaries from the month of June 2020 and onwards till date; ii) issue any appropriate writ, order or direction, directing the Respondent Ahlcon Public School to fix the pay of the petitioners in terms of the 7th pay commission w.e.f 01.01.2016 and pay to petitioners pay, allowances, other benefits including arrears of salaries and all the consequential benefits; iii) issue any appropriate writ, order or direction, directing the Respondent No.2/Director of Education to take action in accordance with the provisions of Section 10 of the Delhi School Education Act, 1973 against the Respondent/School for aforesaid failures on the part of the Respondent/School; iv) pass any other, order or direction or such further orders as may be deemed just and appropriate, in the facts and circumstances of the case and also in the interest of justice, in favour of the petitioners; and v) allow the present writ petition with cost, in favour of the Petitioners.”

24. Contentions raised on behalf of the School therein were similar to the ones raised herein and I may refer to paragraph 6 of the judgment which is extracted hereunder for ready reference:-

25. Pithily put, the contention of the School was that the fee is the only source of revenue for the School and a compatible fee structure conducive to meeting the remuneration and service benefits of the staff with infrastructure facilities, etc. is the only requisite. It was also argued by the School that 7th CPC pay matrix was introduced w.e.f. 01.01.2016, though orders were issued subsequently and following the past practice, School had duly worked out the budget estimates for the year 2016-17. 7th CPC pay revision was not a part of the consideration at that time as it was still in the pipeline. DoE had earlier permitted the schools to increase the fee and had admitted an increase of 25% in fee due to implementation of 7th CPC but had later withdrawn the order and school was not in a position to grant the benefits of pay revision.

26. After hearing the parties, Court negatived the contention of the School and observed that the issue of grant of benefit under 7th CPC is no more res integra and relying on the earlier judgments including in Kuttamparampath Sudha Nair (supra), etc. allowed the writ petition as follows:-

10. The issue stands settled by the judgment of the Full Bench in the case of Guru Harkishan Public School v. Director of Education and Ors., (2015) 221 DLT 448 wherein this Court, 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 v. Union of India (UOI) and Ors., (1986) 4 SCC 707, and finally held 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. Hence, on that analogy, the petitioners herein, who are employees of an unaided private school are entitled to the benefits as is being given to the employees of the government run schools.

11. Having said that the only plea of the learned counsel for the respondent No.1 / School is financial hardship. The said submission is also unsustainable. This issue is also no more res integra in view of the judgment of this Court in Kuttamparampath Sudha Nair v. Managing Committee Sri Sathya Sai Vidya Vihar and Anr., W.P.(C) 928/2019, decided on May 06, 2021, wherein in paragraph 35 to 37 which I reproduce as under: “35. The next contention of the School, without prejudice to the earlier contention, was that the School is run by a Charitable Trust and its financial condition is weak with total number of students being less and many of them covered under the EWS/DG category. School is thus unable to bear the burden of disbursing the salaries and the emoluments as per the CCS (Revised Pay) Rules, 2016 in respect of the Government employees. Courts have repeatedly held that paucity of funds or financial crunch of an employer cannot be an answer to noncompliance of a statutory mandate. In the context of payment of minimum wages, the Supreme Court in Unichovi vs. State of Kerala, AIR 1962 SC 12 and Hydro (Engineers) Private Ltd vs. Workmen 1969 (1) SCR 156 held that hardship to an employer to carry on its activity, on account of payment of minimum wages, is an irrelevant consideration for determination of minimum wages. The State assumes that every employer must be in a position to pay minimum wages before he resorts to employment. In Air Freight Ltd. vs. State of Karnataka, 1996 (6) SCC 547, this solemn principle was reiterated.

36. In the context of Section 10 (1) of DSEA&R, this Court had rejected the argument of paucity of funds as an irrelevant consideration in the case of Samaj Shiksha Samiti vs. Delhi State Saraswati Shishu Bal Mandir Karamchari Kalyan 2002 (97) DLT 802. In this context, I may quote a few passages from the judgment in Veena Sharma (Mrs.) & Ors. vs. The Manager, No.1 Air Force School Palam & Ors. 2005 VII AD (Delhi) 517 as follows:- “18. Two things clearly emerge, from the above position. The respondent school is under an obligation to comply with the provisions of Section 10. This obligation is not relieved in any manner; rather, Section 4(1) reinforces this conclusion. Further, the Director and other authorities under the Act have no power to exempt any recognized school from its liability to comply with Section 10. The reliance of the school on the implied approval by the Central Government, is in my considered opinion of no consequence. There is no dispute about he fact that the Directorate itself has been insisting upon payment of salary and allowances in accordance with Section 10. Indeed that was the condition of recognition itself. The second issue is that financial hardship is also no consideration or ground to relieve an employer of his statutory obligation to pay what society has decreed as the minimum salary of teachers and staff, through the provisions of Section 10 of the Act.

19. The submission of learned counsel for the school that if the relief is granted and the pay scales have to be released in favour of the petitioners, a situation might arise leading to the close of the school is somewhat similar to the apprehensions voiced by the Management in Frank Anthony case (supra). The Supreme Court dealt with arguments in the following terms:- “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 tht 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 right 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.

20. The submission of paucity of funds, has to be, therefore, rejected. The subjective or individual hardship of a management, that too sponsored by no less an Organization of the stature of Indian Air force, which even went to the extent of seeking to deny liability on the ground that the school caters to the children of JCOs (Junior Commissioned Officers) impliedly perhaps suggesting that the children of such employees can be taught without compliance with minimum standards imposed by law, cannot be countenanced.”

37. In this regard, I am also fortified in my view by a judgment of a Co-ordinate Bench in Deepika Jain vs. Rukmini Devi Public School & Ors. W.P. (C) 237/2013 decided on 23.09.2013, where implementation of 6th CPC benefits was sought by the Petitioner and the Court held as follows:- “3. I have held in many cases, including the case of Meenu Thakur Vs. Somer Ville School & Ors. W.P.(C) 8748/2010 decided on 13.2.2013 that paucity of funds is not a ground to not pay amounts as per the 6th Pay Commission Report and the order of the Director of Education dated 11.2.2009. A Division Bench of this Court in LPA 286/2010 titled as Rukmani Devi Jaipuria Public School Vs. Sadhna Payal & Ors. decided on 11.5.2012 has also held that paucity of funds is not a ground not to make payments as per the 6th Pay Commission Report.”

12. Following the aforesaid judgments, even this Court in the case pertaining to grant of arrears of salary has also granted similar reliefs to the petitioners in the cases of Shashi Kiran & Ors. v. Siddharth International Public School & Anr., W.P.(C) No.2734/2021 and Amrita Pritam & Ors. v. S. S. Mota Singh Junior Model School & Ors., W.P.(C) 1335/2019 dated September 22,

2021. In a more recent judgment, this Court while deciding a batch of petitions with the lead matter being Shikha Sharma v. Guru Harkrishan Public School & Ors., W.P.(C) 3746/2020, decided on November 16, 2021, has granted the benefits of the 7th CPC along with the arrears to the petitioners therein.

13. In view of the above, this writ petition need to be allowed and the respondent No.1 / School is directed to re-fix the salaries and other emoluments of the petitioners under 7th CPC in accordance with the rules and pay the arrears to the petitioners within a period of three months from today. It is made clear that the arrears shall not carry any interest, if the amount is paid within a period of three months. Any delay beyond the period of three months, shall entail an interest @ 6% per annum.”

27. Challenging this judgment, School filed an appeal before the Division Bench and it would be significant to capture the contentions raised by the School before the Division Bench, which are extracted hereunder:-

28. The Division Bench did not accept the plea of fee hike being a condition precedent to pay revision of the employees under 7th CPC and held that the school was governed by the Delhi School Education Act, 1973 and Section 10(1) applied with full force. Paucity of funds cannot be a ground for permitting the school not to pay the emoluments to its employees and that the school had no other alternative but to pay the arrears of salary and emoluments as per the 7th CPC. Relevant paras are as follows:-

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, W.P.(C) 928/2019 decided on May 06, 2021; Shashi Kiran v. Siiftlltarth International Public School, W.P.(C) No. 2734/2021 and Amrita Pritam v. S. S. Mota Singh Junior Model School, W.P.(C) 1335/2019 decided September 22, 2021; Shikha Sharma v. Guru Harkrishan Public School, 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.

12. The appeal is dismissed, along with pending application(s), if any.”

29. Therefore, from a reading of the judgment of the Division Bench, it is clear that the Court did not agree with the primordial contention raised by the school that in the absence of fee hike, the school was unable to implement 7th CPC recommendations. Court took into account all the earlier judgments of this Court where a similar plea of paucity of funds, as a defence to implementation of Pay Commissions’ recommendations was consistently rejected by the Courts including Kuttamparampath Sudha Nair (supra) and Shikha Sharma (supra), which are extracted in the earlier part of the judgment. Therefore, in the backdrop of wealth of judicial precedents that exist today, there can be no doubt that Courts have put a stamp of approval on the statutory obligation of the recognized private schools under Section 10(1) of 1973 Act to maintain parity in the pay structure of their regular employees with those of the corresponding status in the schools of the appropriate authority and the plea of fee hike and/or paucity of funds has been rejected as an impediment or obstruction towards fulfilment of this statutory obligation.

30. Insofar as the interim orders relied upon by Mr. Gupta are concerned, it is a matter of judicial record that there is a stay order dated 24.05.2019 in a batch of writ petitions, whereby DoE has been restrained from taking coercive action in terms of its order dated 07.02.2019, wherein DoE rejected the proposal for enhancement of fee for the session 2017-18 and directed not to increase any fee for the said session with a note of caution that non-compliance of the order will be dealt with in accordance with Section 24(4) of the 1973 Act. The writ petitions are stated to be pending. However, this order is irrelevant to the present controversy of pay revision under 7th CPC and in view of the judgments referred to above, including of the Division Bench in Ahlcon Public School (supra) and thus this Court cannot agree with the School that the interim order creates a bar against or an impediment or hurdle in the way of the Petitioners to seek enforcement of their rights for pay revision, which has its genesis in Section 10 of 1973 Act. Mr. Gupta has laid great emphasis on an interim order dated 18.08.2022 passed in W.P.(C) 1635/2020, wherein the Court as an interim measure directed the School to pay to the Petitioner only 25% of the outstanding amounts. First and foremost, being an interim order, the same has no binding effect and secondly, this was an ad-interim measure worked out by the Court at that stage of the matter so as to ensure that at least a part of the outstanding and due amount is released to the Petitioner. Thirdly and importantly, in view of the judgment of the Division Bench in Ahlcon Public School (supra), this interim order cannot come to rescue the School from its statutory liability under Section 10(1) of 1973 Act.

31. Coming next to the objection with respect to the maintainability of the writ petition on ground of delay and laches and the alternative argument that arrears of 7th CPC be restricted to 3 years prior to the filing of the writ petition, suffice would be to state that the contentions of the School are wholly misconceived and cannot be accepted in view of the judgment of the Supreme Court in Keraleeya Samajam (supra), albeit the judgment was in the context of 6th CPC. The Supreme Court held as follows:-

32. This issue also arose before a Division Bench of this Court in Vidya Bharati School v. Directorate of Education & Ors., in LPA No. 541/2018 decided on 16.09.2022 and relying on the judgment of the Supreme Court in Keraleeya Samajam (supra), the Division Bench held that limiting the claim of arrears to three years prior to filing the writ petition is untenable in view of the dicta of the Supreme Court. The Division Bench held that the School did not comply with the directions and obligations when it was required to do so by revising the salaries in accordance with Section 10(1) of the DSEA&R on account of the revision under 6th CPC and now due to lapse of time, it cannot take away the benefits because of its own recalcitrance to comply with Government’s directions and statutory obligations. Noncompliance over a long period would not create any special equities in favour of the School and it does not get absolved of its statutory obligation to pay salaries in terms of 6th Pay Commission’s recommendations, as pay revision in terms of Pay Commissions’ recommendations is a matter of public policy with the objective of ensuring that with passage of time purchasing power of the Government employee is not denuded by inflation and other relevant factors. I may pen down here at the cost of repetition that even in Shikha Sharma (supra), this Court has directed release of arrears under 6th CPC to the Petitioners therein without any restrictions/limitation of three years prior to the filing of the writ petitions and in fact also directed payment of interest @ 6% per annum with a further direction that on failure to pay the amounts within six months as directed by the Court, School will incur a liability of payment of a higher rate of interest i.e. 9% per annum on the arrears of both 6th and 7th CPC.

33. In view of this position of law, the argument of the School that the writ petition is barred by delay and laches and/or the arrears be restricted to three years cannot be countenanced and the judgments cited on delay and laches would not aid the School. An argument was raised on behalf of the School that the judgment in Keraleeya Samajam (supra) is per incuriam and does not bind the School herein. Be it noted that learned counsel concedes that there is no judgment of the Supreme Court to his knowledge where claims of an employee pertaining to pay revisions under the recommendations of Central Pay Commissions have been rejected on ground of delay and laches or where arrears have been restricted. There is a difference between the nature of cases cited by the School and the claims of the Petitioners herein which pertain to pay revision under 7th CPC recommendations. Carving out the said difference, the Supreme Court held that when 6th CPC was made applicable, duty was cast upon Petitioners’ institution to pay revised salary/wages and it was not the staff which was required to move again and again and thus the question of limitation and/or restricting the arrears to 3 years will not come into play. The contention is therefore rejected in view of the binding dictum in Keraleeya Samajam (supra) as well as the judgment of the Division Bench in Vidya Bharati School (supra), which is also binding on this Court.

34. Next and the only other grievance ventilated by the Petitioners is with respect to grant of financial upgradations under the MACP Scheme. An unaided private recognized school has an autonomy to adopt the Scheme and this discretion is purely in the domain of the concerned school, is a legal position well settled by the Division Bench of this Court in Manju Sipayya (supra), against which SLP was dismissed by the Supreme Court. However, the position that the School today adopts is rather strange. It is stated that the earlier decision to adopt MACP was under a mistaken notion of law that it was binding on the School to grant the MACP benefits, but after the judgment in Manju Sipayya (supra), School decided to discontinue the Scheme and thus the Petitioners cannot claim financial upgradations. Contrary thereto, counsel for the Petitioners submits that it is not open to a School to recall the decision of adopting the MACP Scheme, more particularly, when most of the employees including the Petitioners have been granted the benefit of 1st MACP. Attention of the Court is also drawn to paragraph 7 of the counter affidavit filed by the School in another matter being W.P.(C) 1635/2020 admitting the grant of MACP benefits to the teachers as also to a circular issued by DoE on 25.10.2022 stipulating that once the Scheme has been implemented it cannot be discontinued.

35. Having given my thoughtful consideration to this aspect of the matter, I am of the view, that the contentions of the School are wholly devoid of merit. While the School is right in its stand that the option and discretion to adopt or not to adopt the MACP Scheme is with the private recognized unaided school, however, there is no provision in the Scheme which permits the School to exercise this option again and again at their whims and fancies and adopt a pick and choose policy. In the affidavit filed in W.P.(C) 1635/2020, School has admitted that till the year 2018-19, every regular teacher was considered for grant of MACP benefits and therefore, a conscious call has already been taken to adopt the MACP Scheme. Placing reliance on the judgment in Manju Sipayya (supra) to wriggle out of the implementation of the MACP Scheme at this stage by itself will not be enough and the School has a much higher onus to establish a plausible reason and any other justifiable ground on account of which the School can be legally permitted to recall its decision to adopt MACP Scheme and deprive the Petitioners of further financial upgradations, which onus it has failed to discharge. Court also takes a serious notice of the stand taken by the School in paragraph 13 of the written note dated 31.05.2023 to the effect that not a single member of the staff has been paid MACP, which is clearly contrary to the affidavit referred to above and thus false. Even otherwise, the impact and repercussion of permitting such a course of action to the School, at this stage, would create disparity between the employees who have received MACP benefits till 2018- 19 and those who are yet to be considered and it needs no reiteration that this would also lead to a serious pay anomaly amongst the employees.

36. As to the relief on this aspect, it may be noted that Petitioners have placed on record a chart reflecting the status of grant/non-grant of 1st /2nd /3rd MACP benefits as also the dates from when the benefits are due. Counsel for the School disputes the contents of the chart and submits that there are certain factual discrepancies and the chart is not accurate. In my view, without getting into the data furnished in the chart, it would suffice to direct that cases of the Petitioners will be considered by the School for grant of 1st /2nd /3rd MACP benefits, as the case may be, in accordance with the Scheme and if the Petitioners are eligible and meet the bench mark, financial upgradations shall be granted.

37. Accordingly, the writ petition is allowed directing the School to grant benefits of pay revision to the Petitioners under 7th CPC w.e.f. 01.01.2016 and refix their salaries and allowances and additionally for those Petitioners who have since retired, retiral/terminal benefits shall also be revised. Arrears of differential amounts on account of revisions shall be disbursed within 8 weeks from today along with interest @ 6% per annum.

38. It is further directed that cases of Petitioners who are eligible for grant of 1st /2nd /3rd MACP shall be considered in accordance with the provisions of the MACP Scheme and in case they are entitled to the financial upgradations, their pay shall be fixed in the next higher Grade Pay in the applicable Pay Band/appropriate pay level in the Pay Matrix, as the case may be. The entire exercise shall be completed by the School within 3 months from today.

39. Writ petition stands allowed to the aforesaid extent with no orders as to costs.