Meenu Sachdev v. Managing Committee Sri Sathya Sai Vidya Vihar and Another

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.””

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

12. From a reading of the aforesaid judgments, this Court finds merit in the plea of the Petitioners that their case is covered by the judgments on all four corners and similar benefits ought to be granted to them. It would be pertinent to note that the Respondent School in the present case and in the case of Kuttamparampath Sudha Nair (supra) is the same and for this additional reason, no distinction can be drawn between the Petitioners herein and the Petitioners in the said case. It is therefore held that Petitioners are entitled to the benefits of the pay revisions under the 6th and 7th CPC recommendations and consequent refixation of their salaries and emoluments in accordance with the Revised Pay Rules, 2008 and Revised Pay Rules, 2016, w.e.f. 01.01.2006 and 01.01.2016, respectively, in light of the statutory provisions of Section 10(1) of the DSE&R. In case benefits of the 6th CPC have been granted to any Petitioner but fixation has not been correctly done, the School shall ensure that correct re-fixation is done and arrears of the differential amounts are released.

13. Coming to the argument raised on behalf of the School that on account of the financial hardship, the 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 part of the judgment in Kuttamparampath Sudha Nair (supra) is as follows:

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.”

14. The last plank of the argument of the School is that the writ petitions be dismissed on the ground of delay and laches, particularly with respect to the claim for revision of pay under 6th CPC or in the alternative, the arrears be restricted to three years prior to the filing of the writ petitions. There cannot be any dispute on the proposition of law sought to be canvassed on behalf of the School that when the writ petition is hit by delay and laches with respect to claims pertaining to pay scales, arrears are ordinarily restricted to a period of three years. However, this principle bears a caveat and is not without exception. Where the employer is under a legal or statutory obligation to revise the salaries and emoluments giving benefits, from time to time, under the various pay commissions, but fails to fulfill the obligations, it cannot seek restriction of payment in arrears and escape the liability incurred due to its own wrong doing. In a recent judgment in Keraleeya Samajam and Another v. Pratibha Dattatray Kulkarni (Dead) Through Lrs and Others, 2021 SCC OnLine SC 853, one of the issues before the Supreme Court was whether the arrears of the salaries payable under 5th and 6th Pay Commissions ought to be restricted to three years preceding the filing of the writ petition and the Supreme Court held as follows:

15. 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 and Another (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 DSE&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. Non-compliance 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 recommendations, as pay revisions 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. Even in Shikha Sharma (supra), this Court has directed release of arrears under 6th CPC to the Petitioners in the said case without any restrictions/limitation of three years prior to the filing of the writ petitions and in fact, has 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, the 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.

16. In view of this position of law, the argument of the School that the writ petitions are barred by delay and laches and/or the arrears be restricted to three years cannot be countenanced and the contention only deserves to be rejected. Coming to the judgements relied upon by the School on this aspect, as referred to in paragraph 7 above, suffice would it be to state that in view of the binding dicta of the Supreme Court in Keraleeya Samajam and Another (supra) and the judgment of the Division Bench in Vidya Bharati School (supra), which also binds this Court, the judgments relied upon by the school, cannot come to the aid of the school.

17. Accordingly, the writ petitions are allowed and the School is directed to revise the salaries and other emoluments of the Petitioners, by granting benefits of pay revisions under the 6th and 7th CPC, embodied in the Revised Pay Rules, as aforementioned, including Dearness Allowance, annual bonus etc. as per the directions in the judgements aforementioned. Petitioners shall also be entitled to arrears of pay on account of the refixation, subject however to adjustment of salaries/emoluments already paid.

18. It is made clear that the arrears under the 6th CPC shall be paid to the Petitioners with interest at the rate of 6% per annum while arrears of 7th CPC shall not carry any interest. The entire exercise of fixation and disbursement of amounts consequent thereto, to the Petitioners, shall be carried out within six months from today. Failure to pay the amounts as directed, within six months, shall entail payment of interest @ 9% per annum on the arrears of 6th and 7th CPC benefits.

19. Writ petitions stand disposed of in the aforesaid terms.