LAWS(HPH)-2003-11-28

KRISHNA NIJHAWAN Vs. SECRETARY (EDU)

Decided On November 05, 2003
KRISHNA NIJHAWAN Appellant
V/S
SECRETARY (EDU) Respondents

JUDGEMENT

(1.) The petitioners are the members of the teaching and allied staff of S.D. Senior Secondary School, Shimla, being managed and run by respondents No. 4 and 5. The petitioners along with others had filed a Civil Writ Petition being CWP No. 414 of 1989 (H.P. State Government Recognised Aided Schools Teachers Association and others v. State of H.P. and others) inter alia seeking the following reliefs : (i) to issue an appropriate writ, order or directions especially to the nature of Mandamus directing the respondent State 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 without imposing any arbitrary limit to enable the managements to fulfil their obligations under the grant -in -aid rules which require them to pay the teachers and allied staffs, the same pay scales as are paid to their counter -parts working in Government Schools in the State of Himachal Pradesh especially when Rule 16 of the grant -in -aid rules require the managements to meet 5% of the net approved expenditure in any school year and the balance of the expenditure is to be met from Government grant: (ii) to declare that teachers and allied staff working in the privately managed recognized schools in the State of Himachal Pradesh are entitled to the same pay scales and allowances as are paid to their counter -parts in Government Schools under Rule 12(g) of the grant -in -aid -rules.

(2.) The above writ petition was heard along with a similar writ petition, being CWP No. 413 of 1989. Both the writ petition were allowed by a Division Bench of this Court on 9.9.1992 and it was directed as under: "From the aforesaid discussion, we are of the opinion that the State cannot pay grant -in -aid as it may choose. It has to do so in discharge of its constitutional obligation. It also flows out of the conjoint reading of the scheme of the Articles of the Education Code to , the extent of 95%. In case the State is permitted to run away from this obligation, it would be utmost difficult for these institutions to survive. It cannot shirk its constitutional obligation by asserting that it would not be in a position to meet the huge financial burden. Constitutional obligation is supreme than the plea of financial constraint. The management is not in a position to pay the enhanced salary to the petitioners since it is not in a position to do so beyond 5 per cent of the expenditure: the burden has obviously to fall on the State. The present system of payment is absolutely arbitrary and irrational. It not only militates against the intendment of the constitutional provisions but also defeats the main objections of the Education Code itself. The petitioners are entitled to emoluments payable to their counter -parts in the Government schools and the expenditure has to be met in the ratio of 95 per cent (Government grants) and 5 per cent by the managements. By paying them less means depriving them of their adequate livelihood which is one of the essentials of right to life under Article 21 of the Constitution of India. Now, the question arises, from which date it should be paid? Normally, the petitioners are entitled to emoluments revised from time to time and received by their counter -parts, but noticing that it would create huge burden on the State Exchequer, learned Counsel for the petitioners submitted that the petitioners would be satisfied in case the State and the management are directed to pay the same from 13th February, 1988. We think that by this offer the burden on the State can be minimized to a great extent. Accordingly, we allow the writ petitions and direct the State Government and the managements to work out the emoluments of the petitioners in the ratio stated above within a period of four months and pay the same to the petitioners."

(3.) Aggrieved by the decision of the Division Bench of this Court, the State of Himachal Pradesh went up in appeal, being Civil Appeals No. 1233 and 1234 of 1993, before the Honble Supreme Court. Both such appeals were dismissed on 10.5.1995. This judgment is reported as State of H.P. v. H.P. State Recognized and Aided Schools Managing Committees and others, (1995) 4 SCC 507.