Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2676 OF 2010

Mrs. Satimbla Sharma and Ors.                   …     Appellants

Versus

St. Paul’s Senior Secondary School and Ors.    … Respondents

J U D G M E N T

A. K. PATNAIK, J.

This  is  an  appeal  against  the  judgment  dated  

25.07.2008  of  the  Division  Bench  of  the  High  Court  of  

Himachal Pradesh, Shimla, in Letters Patent Appeal No.48  

of 2004.

2. The facts very briefly are that in 1923 the respondent  

No.1-School  (for  short  ‘the  School’)  was  initially  

established  as  a  mission  school  by  the  respondent  

No.2.  The School adopted the 10+2 system in 1993  

and  is  presently  affiliated  to  the  Himachal  Pradesh  

Board of  School Education.   Before  independence in  

1947 the School  was receiving grant-in-aid from the

British  Indian  Government  and  thereafter  from  the  

Government of India upto 1950.  From 1951 to 1966,  

the  School  received  grant-in-aid  from  the  State  

Government  of  Punjab.   After  the State  of  Himachal  

Pradesh was formed, the School received grant-in-aid  

from the Government of Himachal Pradesh during the  

years 1967 to 1976.  From the year 1977-1978, the  

School  has not been receiving any grant-in-aid from  

the Government of Himachal Pradesh and the teachers  

of the School are being paid less than the teachers of  

Government schools and Government aided schools in  

the State of Himachal Pradesh.   

3. Not satisfied with their salary and allowances, some of  

the teachers of the School filed a Writ Petition, CWP  

No.1038  of  1996,  in  the  High  Court  of  Himachal  

Pradesh  for  a  direction  to  pay  the  salary  and  

allowances  at  par  with  the  teachers  of  Government  

schools  and  Government-aided  schools  and  by  

judgment dated 11.10.2004 the learned Single Judge  

of  the  High  Court  of  Himachal  Pradesh  allowed  the  

Writ Petition and directed the respondent nos.1 and 2  

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to pay to the writ petitioners salary and allowances at  

par  with  their  counter-parts  working  in  the  

Government schools from the dates they were entitled  

to  and  at  the  rates  admissible  from  time  to  time.  

Aggrieved by the judgment of the learned Single Judge,  

the respondent nos.1 and 2 filed Letters Patent Appeal  

No.48 of 2004 (for short ‘the LPA’) before the Division  

Bench  of  the  High  Court  and  by  the  impugned  

judgment dated 25.07.2008, the Division Bench of the  

High  Court  set  aside  the  judgment  of  the  learned  

Single  Judge  and dismissed the  Writ  Petition  of  the  

appellants.

4. Learned  counsel  appearing  for  the  appellants  

submitted that the appellants do the same work as the  

teachers of Government schools and Government aided  

schools and yet are being paid lower than the teachers  

of Government schools and Government aided schools.  

He further submitted that the Himachal Pradesh State  

Government  Recognized  Aided  Schools  Teachers’  

Association and others had filed Writ Petitions, C.W.P.  

No.413  of  1989  and  414  of  1989,  in  the  Himachal  

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Pradesh High Court for appropriate writs/directions to  

the State Government to pay 95% of the grant-in-aid  

towards approved expenditure in a school year to the  

privately  managed  recognized  schools  borne  on  the  

grant-in-aid  list  with  a  view  to  enable  the  

managements of such schools to pay the teachers and  

allied  staff  of  the  schools,  the  same pay  scales  and  

allowances as are paid to their counter-parts working  

in the Government schools in the State of  Himachal  

Pradesh  and  by  order  dated  09.09.1992,  a  Division  

Bench of Himachal Pradesh held that teachers of such  

private recognized aided schools are entitled to same  

emoluments as received by their counter-parts in the  

State Government and allowed the writ petitions and  

directed the State Government and the management of  

the private recognized aided schools to work out the  

emoluments  of  the  teachers  and  pay  the  same  to  

teachers  of  the  private  recognized  aided  schools.  He  

further  submitted  that  against  the  order  dated  

09.09.1992 of the Division Bench of Himachal Pradesh  

High Court, the State of Himachal Pradesh came up in  

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appeal  to  this  Court  in  Civil  Appeal  Nos.  1233  and  

1234  of  1993  but  this  Court  dismissed  these  two  

appeals  on 10.05.1995.   He vehemently  argued that  

only with a view to wriggle out from the liability to pay  

salary and allowances to its teachers and staff at par  

with the salary and allowances of Government schools,  

the School has unilaterally decided to stay out of the  

grant-in-aid scheme since 1977-1978.  He submitted  

that  the  learned  Single  Judge  rightly  held  in  his  

judgment dated 11.10.2004 in C.W.P. No.1038 of 1996  

filed  by  the  petitioners  that  the  School,  which  had  

been receiving grant-in-aid till 1977-1978, could not of  

its own volition stop to receive grant-in-aid and rightly  

directed the School to pay to the appellants salary and  

allowances at par with their counter-parts working in  

the Government schools.

5. Learned counsel for the appellants submitted that the  

Division  Bench  of  the  High  Court  has  set-aside  the  

judgment of the learned Single Judge after taking an  

erroneous  view  in  the  impugned  judgment  that  the  

School was under no obligation to have accepted the  

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grant-in-aid which would have led to diminution of its  

rights  guaranteed  under  Article  30(1)  of  the  

Constitution.  He further submitted that the Division  

Bench of the Himachal Pradesh High Court has also  

sustained  the  contention  of  the  School  that  the  

teachers of private recognized schools had no right to  

claim  salary  equal  to  that  of  their  counter-parts  

working in Government schools and Government aided  

schools.  He submitted that Rule 45-Q of the Grant-in-

Aid Rules of the State of Himachal Pradesh provides  

that management shall  introduce such scales of  pay  

and allowances for teachers and other staff members  

as  prescribed  by  the  Government  for  corresponding  

staff in Government schools.  He submitted that if the  

teachers of Government aided schools are entitled to  

same  salary  and  allowances  as  the  teachers  of  the  

Government schools, there is no reason as to why only  

the  teachers  of  private  unaided  schools  should  be  

denied  the  salary  and  allowances  of  Government  

schools.  He submitted that if the pay and allowances  

of  the  teachers  of  private  minority  schools  such  as  

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respondent no.1 are not made the same as that of the  

pay and allowances of the teachers of the Government  

schools and Government aided schools, the teachers of  

private minority schools will suffer discrimination and  

their right to equal pay for equal work under Article 14  

read  with  Article  39(d)  of  the  Constitution  will  be  

violated.   He  relied on the decision of  this  Court  in  

Frank Anthony Public School Employees’ Association v.  

Union  of  India  &  Ors.  [(1986)  4  SCC  707]  wherein  

Section 12 of  the Delhi  School  Education Act which  

made the provisions of Section 10 providing for parity  

of scales of pay and allowances of the employees of the  

recognized private schools with that of the schools run  

by the appropriate  authority  inapplicable  to unaided  

minority institutions as discriminatory.

6. Learned counsel for the appellants submitted that in  

State of H.P. vs.  H.P. State Recognised & Aided Schools  

Managing Committees and Others [(1995) 4 SCC 507]  

this Court relying on  Mohini Jain case [(1992) 3 SCC  

666] held that the right to education is a fundamental  

right guaranteed under Part-III read with Part-IV of the  

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Constitution  of  India.   He  submitted  that  since  the  

right  to  education  is  a  fundamental  right,  school  

education has a public element in it and the Court can  

always issue a mandamus to enforce a public duty in  

matters  of  education.   He  submitted  that  in  K.  

Krishnamacharyulu and Others vs.  Sri  Venkateswara  

Hindu  College  of  Engineering  and  Another [(1997)  3  

SCC 571] employees of a non-aided private educational  

institution  claimed  parity  in  pay-scales  with  the  

employees of Government institutions and this Court  

held that the employees had an enforceable right and  

there was an element of public interest in such a claim  

and  the  teachers  of  a  private  unaided  institution  is  

entitled to avail the remedy provided under Article 226  

of  the  Constitution  and  they  cannot  be  denied  the  

same benefits which were available to other teachers  

working in Government institutions.     

7. Learned counsel for the appellants submitted that the  

School is provisionally affiliated to the Council for the  

Indian  School  Certificate  Examinations  and  the  

conditions  of  provisional  affiliation  of  schools  

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prescribed  by  the  Council  for  the  Indian  School  

Certificate Examinations stipulate in clause (5)(b) that  

the  salary  and allowances  and other  benefits  of  the  

staff  of  the  school  must  be  comparable  to  that  

prescribed by the State Department of Education.  He  

referred  to  the  report  of  the  Education  Commission  

1954-66 to the Ministry of Education, Government of  

India, recommending that the scales of pay of school  

teachers belonging to the same category but working  

under  different  managements  such  as  government,  

local  bodies  or  private  managements  should  be  the  

same and this principle  of  parity should be adopted  

forthwith.  He submitted that sub-section (3) of Section  

23 of the Right of Children to Free and Compulsory  

Education Act, 2009 (for short ‘the 2009 Act’) provides  

that  the  salary  and  allowances  payable  to,  and  the  

terms and conditions of  service of,  teachers shall  be  

such as  may be  prescribed.   He  referred to  Section  

38(2)(l)  of  the  2009  Act  which  provides  that  the  

appropriate  Government  may,  by  notification,  

prescribe  the  salary  and allowances payable  to,  and  

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the terms and conditions of service of, teacher under  

sub-section (3) of section 23.  He submitted that the  

appropriate Government as defined in Section 2(a) of  

the  2009  Act,  namely,  the  State  Government,  

therefore,  can  issue  a  notification  prescribing  the  

salary and allowances payable to, and the terms and  

conditions of service of, teacher, under sub-section (3)  

of section 23 of the 2009 Act.

8. Learned counsel  for the respondent nos.1 and 2, on  

the other hand, supported the impugned judgment of  

the  Division  Bench  of  the  High  Court.   He  further  

submitted  that  if  the  School  is  made  to  pay  to  its  

teachers the same salary and allowances of teachers of  

Government schools and Government aided schools, it  

will  have to increase the school  fees and this would  

affect the students whose parents cannot afford higher  

school fees.

9. In our considered opinion, the Division Bench the High  

Court has rightly held in the impugned judgment that  

the teachers of private unaided minority schools had  

no right to claim salary equal to that of their counter-

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parts working in Government schools and Government  

aided schools.   The teachers of Government schools  

are paid out of the Government funds and the teachers  

of Government aided schools are paid mostly out of the  

Government  funds,  whereas  the  teachers  of  private  

unaided minority schools are paid out of the fees and  

other  resources  of  the  private  schools.   Moreover,  

unaided  private  minority  schools  over  which  the  

Government has no administrative control because of  

their autonomy under Article 30(1) of the Constitution  

are not State within the meaning of Article 12 of the  

Constitution.  As the right to equality under Article 14  

of  the  Constitution  is  available  against  the  State,  it  

cannot  be  claimed  against  unaided  private  minority  

schools.  Similarly, such unaided private schools are  

not State within the meaning of Article 36 read with  

Article 12 of the Constitution and as the obligation to  

ensure equal pay for equal work in Article 39(d) is on  

the  State,  a  private  unaided  minority  school  is  not  

under any duty to ensure equal pay for equal work.

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10.   In  Frank  Anthony  Public  School  Employees’   

Association v.  Union of India & Ors. (supra), relied on  

by learned counsel for the appellants, the scales of pay  

and other terms and conditions of service of teachers  

and  other  employees  of  the  Frank  Anthony  Public  

School,  New  Delhi,  which  was  a  private  unaided  

minority institution, compared very unfavourably with  

those of their counterparts of the Delhi Administration  

Schools  and  the  Frank  Anthony  Public  School  

Employees’  Association  sought  equalization  of  their  

pay-scales  and  conditions  of  service  with  those  of  

teachers  and  employees  of  Government  schools.  

Sections  8  to  11  of  the  Delhi  School  Education  Act  

dealt  with  the  terms  and  conditions  of  service  of  

employees of recognized private schools.  Section 10 of  

the  Delhi  School  Education  Act  provided  that  the  

scales  of  pay  and  allowances,  medical  facilities,  

pension, gratuity, provident fund and other prescribed  

benefits  of  the  employees  of  the  recognized  private  

schools  shall  not  be  less  than  those  of  the  

corresponding status in schools run by the appropriate  

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authority.  Section  12  of  the  Delhi  School  Education  

Act, however, provided that the provisions of Sections  

8 to  11 including Section  10 were not  applicable  to  

unaided minority institutions.  The case of teachers of  

Frank Anthony Public School was that if Sections 8 to  

11 were made applicable to them, they would at least  

be  as  well  off  as  teachers  and  other  employees  of  

Government  schools.   The  Frank  Anthony  Public  

School  Employees’  Association  therefore  challenged  

Section  12  of  the  Delhi  School  Education  Act  as  

discriminatory  and  violative  of  Article  14  of  the  

Constitution and this Court held that Section 12 of the  

Delhi  School  Education  Act  insofar  as  it  makes  the  

provisions of Sections 8 to 11 inapplicable to unaided  

minority schools is discriminatory.    This was thus a  

case  in  which  the  employees  of  unaided  minority  

institutions  were  not  given  the  benefits  available  to  

employees of other private institutions under Sections  

8, 9, 10 and 11 of the Delhi School Education Act only  

on the ground that unaided minority institutions enjoy  

autonomy of administration under Article 30(1) of the  

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Constitution and this Court held that this could not be  

a rational basis for differentiation of service conditions,  

pay and other service benefits  between employees of  

unaided  minority  institutions  and  the  employees  of  

other private schools and the Court declared Section  

12 as  discriminatory.   In  other  words,  the  State  by  

making a statutory provision in Section 12 of the Delhi  

School Education Act which was discriminatory,  had  

violated the mandate to the State under Article 14 of  

the Constitution not to deny the equal protection of the  

laws within its territories. This decision in the case of  

Frank Anthony Public School Employees’ Association v.  

Union  of  India  &  Ors.  (supra)  does  not  assist  the  

appellants  in  any  manner  because  the  guarantee  of  

equality, as we have said, is not available against an  

unaided private minority school.

11.   We also do not think that the Court could issue a  

mandamus  to  a  private  unaided  school  to  pay  the  

salary  and  allowances  equal  to  the  salary  and  

allowances payable to teachers of Government schools  

or  Government  aided  schools.   This  is  because  the  

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salary and allowances of teachers of a private unaided  

school is a matter of contract between the school and  

the teacher and is not within the domain of public law.  

In Sushmita Basu & Ors. v. Ballygunge Siksha Samity   

& Ors. [(2006) 7 SCC 680], the teachers of a recognized  

private school known as Ballygunge Siksha Sadan in  

Calcutta  filed  a  Writ  Petition  in  the  High  Court  of  

Calcutta  praying  for  issuance  of  writ  of  mandamus  

directing the authorities of the school to fix the salary  

of teaching and non-teaching staff of the school and to  

remove  all  anomalies  in  the  scales  of  pay  as  

recommended  by  the  Third  Pay  Commission  as  

extended  to  other  Government  aided  schools  and  

Government schools and this Court held that in the  

absence of statutory provision no such direction can  

be issued by the High Court under Article 226 of the  

Constitution.  Where a statutory provision casts a duty  

on a private unaided school to pay the same salary and  

allowances to its teachers as are being paid teachers of  

Government aided schools, then a writ of mandamus  

to the school could be issued to enforce such statutory  

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duty.  But in the present case, there was no statutory  

provision requiring a private unaided school to pay to  

its teachers the same salary and allowances as were  

payable  to  teachers  of  Government  schools  and  

therefore a mandamus could not be issued to pay to  

the teachers of private recognized unaided schools the  

same  salary  and  allowances  as  were  payable  to  

Government institutions.  

12.    In  K.  Krishnamacharyulu  and  Others vs.  Sri  

Venkateswara  Hindu  College  of  Engineering  and  

Another (supra), relied upon by the learned counsel for  

the appellants,  executive instructions were issued by  

the Government that the scales of pay of Laboratory  

Assistants  as  non-teaching  staff  of  private  colleges  

shall  be  at  par  with the  government  employees  and  

this  Court  held  that  even  though  there  were  no  

statutory  rules,  the  Laboratory  Assistants  as  non-

teaching  staff  of  private  college  were  entitled  to  the  

parity  of  the  pay-scales  as  per  the  executive  

instructions  of  the  Government  and  the  writ  

jurisdiction of the High Court under Article 226 of the  

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Constitution  is  wide  enough  to  issue  a  writ  for  

payment of pay on par with government employees.  In  

the present case,  there are no executive instructions  

issued by the Government requiring private schools to  

pay the same salary and allowances to their teachers  

as are being paid to teachers of Government schools or  

Government aided schools.

13.    We cannot also issue a mandamus to respondent  

nos.1  and  2  on  the  ground  that  the  conditions  of  

provisional  affiliation  of  schools  prescribed  by  the  

Council for the Indian School Certificate Examinations  

stipulate in clause (5)(b) that the salary and allowances  

and other benefits of the staff of the affiliated school  

must  be comparable  to  that prescribed by the State  

Department of Education because such conditions for  

provisional  affiliation  are  not  statutory  provisions  or  

executive  instructions,  which are  enforceable  in law.  

Similarly, we cannot issue a mandamus to give effect  

to  the  recommendations  of  the  report  of  Education  

Commission 1964-66 that the scales of pay of school  

teachers belonging to the same category but working  

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under  different  managements  such  as  government,  

local  bodies  or  private  managements  should  be  the  

same, unless the recommendations are incorporated in  

an executive instruction or a statutory provision.  We,  

therefore,  affirm  the  impugned  judgment  of  the  

Division Bench of the High Court.

14.    We, however, find that the 2009 Act has provisions  

in  Section  23  regarding  the  qualifications  for  

appointment  and  terms and  conditions  of  service  of  

teachers and sub-section (3) of Section 23 of the 2009  

Act provides that the salary and allowances payable to,  

and the terms and conditions of  service of,  teachers  

shall be such as may be prescribed.  Section 38 of the  

2009  Act  empowers  the  appropriate  Government  to  

make  rules  and  Section  38(2)(l)  of  the  2009  Act  

provides  that  the  appropriate  Government,  in  

particular, may make rules prescribing the salary and  

allowances payable to, and the terms and conditions of  

service of teachers, under sub-section (3) of section 23.  

Section 2(a) defines “appropriate Government” as the  

State Government within whose territory the school is  

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established.   The  State  of  Himachal  Pradesh,  

respondent no.3 in this appeal, is thus empowered to  

make rules under sub-section (3)  of Section 23 read  

with Section 38(2)(l)  of  the  2009 Act  prescribing  the  

salary and allowances payable to, and the terms and  

conditions of service of, teachers. Article 39(d) of the  

Constitution  provides  that  the  State  shall,  in  

particular,  directs  its  policy  towards  securing  that  

there is  equal  pay for equal work for  both men and  

women.  Respondent  no.3  should  therefore  consider  

making  rules  under  Section  23  read  with  Section  

38(2)(l)  of  the  2009  Act  prescribing  the  salary  and  

allowances of teachers keeping in mind Article 39(d) of  

the Constitution as early as possible.

15.    With these observations, the appeal is disposed of.  

There shall be no order as to costs.  

.……………………….J.                                                            (R. V. Raveendran)

………………………..J.                                                            (A. K. Patnaik) New Delhi, August 11, 2011.    

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