S Jassa Singh Ramgarhia Public School v. Directorate of Education

1. The present LPA arises out of the Impugned Order dated 25.04.2022 passed by the Ld. Single Judge in W.P. (C) 13676/2018 titled as Sartaj Kaur & Anr. v. Director of Education & Anr., whereby the learned Single Judge has allowed the Writ Petition filed by Respondents No.2 and 3 herein, and has directed the Appellant herein to release the salaries of Respondents No.2 & 3 herein, including their entitlement under the 7th Pay Commission, within four months from the date of the Order, along with the interest @ 6% per annum from February 02, 2015 to December 31, 2015. The benefits thereafter were directed to be paid without interest. The learned Single Judge disposed of the writ petition with a cost of Rs.25,000/- that was to be paid by the Appellant herein (Respondent No.2 in the Writ Petition) to each of the Petitioners in the writ petition.

2. Shorn of details, the facts leading to the filing of the instant LPA are that the Respondent No.2 was appointed as an Assistant Teacher at the 2022:DHC:3846-DB Appellant School on 15.11.2000 on a salary of Rs.1,800/- per month and Respondent No.3 was appointed as an Assistant Teacher on 05.02.1973 on a salary of Rs.900/- per month. Contending that the salaries were not being paid as per Section 10 of the Delhi School Education Act & Rules, 1973 (hereinafter referred to as „the DSE Act and Rules‟), which mandates that the pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not be less than those of employees of the corresponding status in schools run by the Government, Respondents No.2 & 3 herein approached this Court by filing W.P. (C) 13676/2018.

3. The facts of the case reveal that the services of Respondents No.2 & 3 had been terminated but the Order terminating services of the Respondents had been set aside and Respondents No.2 & 3 joined their duties on 02.02.2015. The facts further reveal that Respondents No.2 & 3 had approached the Delhi School Tribunal (hereinafter referred to as „the Tribunal‟) for payment of salary for the period in which they were not in service and the Tribunal vide Order dated 16.01.2015 decided the issue of the Respondents No.2 & 3 herein with regard to the salary which was to be paid during the period they had been illegally terminated. It is stated by Respondents No.2 & 3 that the School is paying salaries far less than what they are entitled to.

4. Notices were issued in the writ petition, however, the Appellant School did not file any counter and the material on record further demonstrates that even on the date when the case was being finally heard by the learned Single Judge, an adjournment was sought by the Appellant herein to file a counter affidavit, the request being ultimately rejected by the learned Single Judge. The learned Single Judge found that the Respondents No.2 & 3 were working in the pay scale of Rs.9300-34800, but were not being paid their salary of Rs.8,430/-, which was much less than their entitlement. Before the learned Single Judge, it was contended that the Order passed by the Tribunal for payment of salary for the past period had been passed on the basis of a statement of the erstwhile Manager of the School, who had no instructions in that regard. The learned Single Judge rejected this contention on the ground that the School had not challenged the Order of the Tribunal granting the salary for the past period. The learned Single Judge allowed the writ petitions placing reliance on the judgment of this Court in W.P.(C) 3746/2020, titled as Shikha Sharma v. Guru Harkrishan Public School & Ors., in which directions had been passed for payment of salary in a minority institution equivalent to salaries payable in schools run by the Government.

5. The learned Counsel for the Appellant School has contended that Section 10 of the DSE Act directs that pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not be less than those of the employees of the corresponding status in schools run by the appropriate authority. However, Section 12 of the Act states that nothing contained in Chapter IV, which deals with the terms and conditions of service of employees of recognised private schools and also includes Section 10, shall apply to unaided minority Schools. Therefore, it is his submission that Section 10 of the DSE Act does not apply to the Appellant School as it is an unaided minority school. This contention of the Appellant School has to be rejected because this question of law has been settled a long while back. The Apex Court in Frank Anthony Public School Employees' Assn. v. Union of India, (1986) 4 SCC 707, has held that notwithstanding Section 12 of the DSE Act, employees of a minority institution have to be paid salaries which are equal to the salaries being paid to the employees of schools run by the Government. Relevant paragraph of the said Judgment reads as under:

6. The Division Bench of this Court in Dhanwant Kaur Butalia & Ors. v. Guru Nanak Public School & Ors., 2016 SCC OnLine Del 699, after quoting the judgment in Frank Anthony Public School Employees' Assn (supra) has held that notwithstanding Section 12 of the DSE Act, the salaries of the employees of the private schools should not be less than the salaries of employees of the corresponding status in schools run by the Government. Relevant paragraph of the said Judgment reads as under:

7. In view of the above, the contention of the Appellant that Section 10 would not apply to the Appellant School, does not hold any water. Learned Counsel for the Appellant further contends that the Respondents ought to have moved the Tribunal under the DSE Act and the writ petition ought not to have been entertained. It is settled principle that just because an alternate remedy is available, it does not create a legal bar on a High Court to exercise its writ jurisdiction [Refer: Maharashtra Chess Assn. v. Union of India, (2020) 13 SCC 285]. In any event, when it is now settled that Section 10 of the DSE Act applies to minority institutions, the sole contention raised by the Appellant regarding availability of an alternate remedy cannot be accepted.

8. When this Court pointedly asked the learned Counsel for the Appellant as to whether the Appellant is prepared to devise and provide a scheme and time table according to which the Appellant School would be willing to pay the arrears to the Respondents No.2 & 3, learned Counsel for the Appellant stated that the Appellant School is not in the position to pay the amounts.

9. In view of the above, this Court does not find any reason to interfere with the judgement of the learned Single Judge. Accordingly, the appeal is dismissed, along with pending application(s), if any.

SATISH CHANDRA SHARMA, C.J. SUBRAMONIUM PRASAD, J SEPTEMBER 23, 2022 Rahul