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FIXATION OF PAY SCALE OF TEACHERS (UNAIDED INSTITUTIONS vis-a-vis GOVERNMENT SCHOOLS)

The correspondent, Arokiamada Matriculation Higher Secondary School v. Tmt.T. Sorubarani and Ors. Writ Appeal No. 1307 of 2009 – 15.10.2015

The matter was decided by THE HON’BLE MR. SANJAY KISHAN KAUL, CHIEF JUSTICE, THE HON’BLE MR. JUSTICE T. S. SIVAGNANAM AND THE HON’BLE SMT. JUSTICE PUSHPA SATHYANARAYANA.

Normally the Government schools pay a higher salary to its staffs compared to the private schools. Also Government schools as an obligation to provide free and compulsory education to all the citizens of this country. The implementation of the Right to Education Act, mandated the private unaided schools to admit minimum of 25% students from disadvantaged sections and the salary of the teachers should be in par with the teachers working in Government schools.

The question in the matter is Whether the fixation of pay scales of teachers of unaided schools on par with teachers working in Government schools is constitutionally valid?

The petitioner contended that the verdict of the Supreme Court in T.M.A. Pai Foundation and others V. State of Karnataka and others and P.A. Inamadar and others V. State of Maharashtra and others has expanded the fundamental right conferred under Article 30 (1) of the constitution of India upon all linguistic and religious minorities to “establish and administer educational institution of their choice”.

However after the VI pay commission has raised the monthly remuneration of Government school teachers, private schools also has to raise their teachers’ salary and a ceiling was imposed on tuition fees after the Judgment in Islamic Academy of Education and another V. State of Karnataka and others. This diluted the freedom provided by the Judgment in T.M.A. Pai Foundation case.

In the Judgment of K. Tamilchelvi V. The President, The Kallakurichi Cooperative Sugar Mills Matriculation Higher Secondary School, the court rejected the plea of a teacher to direct the management to implement the VI pay commission.

According to the Pai Foundation case, the regulatory measure of control should be minimal. In matters of day-to –day management and administrative control, the management should have freedom  and there should not be external controlling agency for redressing the grievances of employees of aided and unaided institutions can be made to the appropriate tribunals which is presided over by a judicial officer of the rank of dist. Judge. However the state can prescribe the minimum qualification, experience and other conditions also regulations can be framed for teaching and other staffs for which aid is provided by the state without interfering with the overall administration. Fees to be charged by unaided institutions cannot be regulated by the govt. agencies.

The constitutional bench of the Supreme Court in P.A. Inamadar held that, there can be no interference by the executive body in the day – to – day administration of the minority unaided educations institutions.

The Honorable Supreme Court in T.M.A. Pai Foundation expressed its opinion about the relationship between the management and its staff. According to it the teachers and the institution exist of its students and not vice versa and also the relationship between the management and the employees is contractually in nature.

The standard of education curricular and co curricular activities for the students are relevant for determining the fee structure.  Also the matriculation school are depend on the fees paid by the students to meet the expenditure and the salary of the teaching and non teaching staff, campus maintenance and other expenditure.  For providing good quality education, this educational institution has fundamental rights to charge fees according to its specifications.  These unaided educational institutions whether belonging to minorities or otherwise has a right to practice any profession or carry out any occupation, trade or business, which is laid down under Article 19 (1) (g) of the Constitution of India.  Also the matriculation schools are not financially supported by the Government.  In such a case, any direction issued by the management with regard to fixation of pay at par with teachers’ of Government schools would only assert the quality of educations provided to them.

Annexure VII read with Article 22 of Code of regulations of Matriculation Schools says every teaching and non teaching staffs of the schools enters into an agreement with the institution. Also there is no clause of pre condition to give salary on par with the govt. teachers. According to section 16 (ii) of chapter V and 18 (ii) of chapter VI of the code, the govt. cannot regulate the salary structure of the un aided institutions as the same is a matter of contract between the teacher and school which is outside domain of public law. Any such stipulation would interfere with the overall administrative control by the management and would infringe their rights to establish and administer the educational institutions.

In case of Satimbla Sharma V. St. Paul Senior Secondary School, the Supreme Court held the same.In T.M.A. Pai Foundation case the Supreme Court also observed that while granting recognition to private unaided institutions, authority can lay conditions to ensure excellence of education.

This Court would also like to place on record that even the staff of the State Government are not paid salary on par with their counterparts of the Central Government. In such situation, the State Government cannot force the Management of a private school to pay salary to its staff on par with the staff of the State Government, which, in the considered opinion of this Court, will indirectly forcing the institution to surrender the fundamental right guaranteed under Article 30(1) of the Constitution of India.

The court observed that the issue regarding the claim of salary by unaided school staff on par with the govt. school or aided school staff is no longer maintainable. Also from the various judgments of the honorable Supreme Court we can observe the same. Also it observed that the staff of the State Government are not paid salary on par with their counterpart of their central govt.  In this case the State Government cannot force the management of private schools to pay salary to its staffs on par with the staffs of the State Government.  According to the Supreme Court, such an act will indirectly force the institution to surrender the fundamental right guaranteed under Article 30 (1) of the Constitution of India.

The Hon’ble high court decided that the writ of mandamus could be issued only if a public law element is involved.  In this case no public interest is involved.  In view of the various legal prepositions laid down by the supreme court in various decisions there can be no matter of doubt  that the private institution are at a liberty to fix their own norms in administration.  Thus No direction can be issued against an unaided private institution to enforce the policy of the Government in its administration.

Priyadharshini R

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