LPA/601/2022 of BHARAT MATA SARASWATI BAL MANDIR SENIOR SECONDARY SCHOOL Vs VINITA SINGH AND ORS

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IN THE HIGH COURT OF DELHI AT NEW DELHI

+LPA 601/2022 & CM APPLs. 45446-45447/2022

BHARAT MATA SARASWATI BAL MANDIRSENIOR SECONDARY SCHOOL..... AppellantThrough:Mr.ParvinderChauhan,Advocatewith Ms.Aakriti Garg, Advocate.SENIOR SECONDARY SCHOOL..... AppellantThrough:Mr.ParvinderChauhan,Advocatewith Ms.Aakriti Garg, Advocate.

versus

VINITA SINGH AND ORS.

..... RespondentsThrough:Mr.Yeeshu Jain, Standing Counselwith Ms.Jyoti Tyagi and Ms.Manisha,Advocates for R-4&5.

Date of Decision: 07[th]July, 2023

CORAM:HON'BLE MR. JUSTICE MANMOHANHON'BLE MS. JUSTICE MINI PUSHKARNA

J U M N T

MANMOHAN, J: (ORAL)

CM APPL. 45446/2022

Keeping in view the averments in the application, the delay in filingthe present appeal is condoned.

Accordingly, the application stands disposed of.

LPA 601/2022 & CM APPL.45447/2022

1.Present appeal has been filed challenging the judgment and orderdated 14[th]December, 2021, whereby the writ petition filed by three teachersseeking payment of 7[th]Central Pay Commission (hereinafter referred to as‘7[th]CPC’) has been allowed.

RELEVANT FACTS

2.The relevant facts are that respondents 1 to 3 have been working inthe appellant school on regular basis. Pursuant to recommendations of the 7[th]CPC, respondent No.5/Directorate of Education (DOE) issued notificationdated 17[th]October, 2017, whereby all the private recognized schools wereasked to implement the same. Since the benefit of the 7[th]CPC was notextended by the appellant school, Respondents 1 to 3 approached this Courtby filing writ petition.

3.By the impugned judgment dated 14[th]December 2021, the learnedSingle Judge directed the school to grant benefits/salaries to respondents 1 to3 herein, in terms of provisions of the 7[th]CPC and further held that theywere entitled to arrears thereof w.e.f. 1[st]January 2016. Thus, the presentappeal has come to be filed by the school.

ARGUMENTS BY LEARNED COUNSEL FOR THE APPELLANT

4.Learned counsel for the appellant-school submits that the appellant-school is not amenable to writ jurisdiction as it is an unaided private school.In support of his submission, he relies upon the judgment of the SupremeCourt in St. Mary’s Education Society and Another Vs. Rajendra PrasadBhargava and Others, 2022 SCC OnLine SC 1091, wherein it has beenheld as under:-

“36. It needs no elaboration to state that school affiliated to CBSE which isunaided is not State within Article 12 of the Constitution of India[see Satimbla Sharma v. St Paul's Senior Secondary School, (2011) 13 SCC760 : (2012) 2 SCC (L&S) 75]. Nevertheless the school discharges publicduty of imparting education which is fundamental right of the citizen[see K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engg.,(1997) 3 SCC 571 : 1997 SCC (L&S) 841]. The school affiliated to CBSE istherefore an “authority” amenable to the jurisdiction under Article 226 of theConstitution of India [see Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657 :2005 SCC (L&S) 881]. However, judicial review of the action challenged

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by party can be had by resort to the writ jurisdiction only if there is publiclaw element and not to enforce contract of personal service. contract ofpersonal service includes all matters relating to the service of the employee— confirmation, suspension, transfer, termination, etc. [see Apollo TyresLtd. v. C.P. Sebastian (2009) 14 SCC 360 : (2009) 5 SCC (Civ) 358 : (2010)1 SCC (L&S) 359].”

5.He further states that even if the writ petition is held to bemaintainable, no direction for payment of arrears thereof w.e.f. 1[st]January,2016 could have been passed, inasmuch as, the petitioners had approachedthis Court by preferring the writ petition on 31[st]August, 2020. He submitsthat the claim for recovery of arrears beyond the period of three years isbarred by law of limitation. In support of his submission, he relies upon thejudgment of the Supreme Court in Union of India and Others Vs. Tarsem

Singh, (2008) 8 SCC 648, wherein it has been held as under:-

“7. To summarise, normally, belated service related claim will be rejected onthe ground of delay and laches (where remedy is sought by filing writpetition) or limitation (where remedy is sought by an application to theAdministrative Tribunal). One of the exceptions to the said rule is casesrelating to continuing wrong. Where service related claim is based on acontinuing wrong, relief can be granted even if there is long delay in seekingremedy, with reference to the date on which the continuing wrong commenced,if such continuing wrong creates continuing source of injury. But there is anexception to the exception. If the grievance is in respect of any order oradministrative decision which related to or affected several others also, and ifthe reopening of the issue would affect the settled rights of third parties, thenthe claim will not be entertained. For example, if the issue relates to paymentor refixation of pay or pension, relief may be granted in spite of delay as itdoes not affect the rights of third parties. But if the claim involved issuesrelating to seniority or promotion, etc., affecting others, delay would renderthe claim stale and doctrine of laches/limitation will be applied. Insofar as theconsequential relief of recovery of arrears for past period is concerned, theprinciplesrelatingtorecurring/successivewrongswillapply.Asaconsequence, the High Courts will restrict the consequential relief relating toarrears normally to period of three years prior to the date of filing of the writpetition.”

6.He also relies upon the judgment of the Supreme Court in RushibhaiJagdishbhai Pathak Vs. Bhavnagar Municipal Corporation, 2022 SCCOnLine SC 641, wherein the judgment of the Union of India and OthersVs. Tarsem Singh (supra) has been reiterated. The relevant portion of thejudgment is reproduced hereinbelow:-

“16. In the facts of the present case, it is accepted that the respondent-Corporation had accepted the interpretation rendered by the High Court ofGujarat to the Scheme whereby the appellants, on financial upgradation,would be entitled to the higher grade pay-scale of the next promotional post,which is Rs. 5,000-8,000/- in the present case. As noted above, the impugnedjudgment of the Division Bench accepts the said position and grants theappellants the said pay-scale but restricts the benefit from the date of thejudgment of the Single Judge in the Writ Petitions filed by the appellants, thatis, with effect from 31[st]July 2018. The Division Bench should not have takenthe date of the decision/judgment of the Single Judge for grant of the saidbenefit in view of the decision and ratio in Tarsem Singh (supra) which hasbeen followed in several other decisions. That apart, the date of the decisionof the Single Judge is fortuitous circumstance. Only the date of filing of thewrit petition is relevant while examining the question of delay and laches orlimitation. The appellants would, in consonance with the case law referred toabove, be entitled to the arrears for three years before the date of filing of theWrit Petitions.”

COURT’S REASONNINGASTHEWRITINVOLVESAPUBLICLAWELEMENT,ITISMAINTAINABLE

7.Having heard learned counsel for the appellant, this Court is of theview that the writ petition filed by the three teachers is maintainable as itinvolves public law element, inasmuch as, the original writ petitionerswere seeking the implementation of Section 10(1) of the Delhi SchoolEducation Act, 1973 (DSE Act, 1973) which reads as under:-

“10. Salaries of employees.—(1) The scales of pay and allowances, medicalfacilities, pension, gratuity, provident fund and other prescribed benefits ofthe employees of recognised private school shall not be less than those ofthe employees of the corresponding status in schools run by the appropriateAuthority………………”

8.In fact, the writ petitioners by way of the underlying writ petitionwere also seeking enforcement of circular/order/notification dated 17[th]October, 2017 issued by DOE directing the schools to make payment ofsalaries to teachers in accordance with 7[th]CPC. In fact, in the case of St.Mary’s Education Society (Supra), Supreme Court has categorically held asfollows:

“75.1. An application under Article 226 of the Constitution is maintainableagainst person or body discharging public duties or public functions.The public duty cast may be either statutory or otherwise and where it isotherwise, the body or the person must be shown to owe that duty orobligation to the public involving the public law element. Similarly, forascertaining the discharge of public function, it must be established that thebody or the person was seeking to achieve the same for the collective benefitof the public or section of it and the authority to do so must be acceptedby the public.”

9.Consequently, this Court is of the view that the writ petition filed byteachers is maintainable.

WRIT IS NOT BARRED BY DELAY AND/OR LACHES

10.This Court is further of the view that the writ petition filed by theoriginal writ petitioners is not barred by delay and/or laches, inasmuch as,the cause of action is recurring one.

11.In Union of India vs. Tarsem Singh (supra), the Supreme Court hasitself clarified by way of an example that if the issue relates to payment ofpay, relief should be granted in spite of delay as it does not affect third partyrights.

12.Further,the judgmentinRushibhaiJagdishbhaiPathakVs.

Bhavnagar Municipal Corporation (supra) offers no assistance to theappellant as it deals with case of higher grade pay scale in the nextpromotional post and which is not the case in the present instance.

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CONCLUSION

13.To conclude, it is reiterated that the reliefs claimed by the respondentsin the writ petition were for payment of full salary as per recommendationsof 7[th]CPC. Section 10 of the DSE Act provides that the scale of pay andallowances, medical facilities, pension, gratuity, provident fund and otherprescribed benefits of recognized private school shall not be less thanthose of the employees of the corresponding status in the governmentschool. The DOE in accordance with the DSE Act, 1973 has issuednotification dated 17[th]October, 2017 directing that all recognized schoolsshall implement the recommendations of 7[th]CPC. In view thereof, it is theundisputed position of law that teachers of unaided private schools areentitled to the same pay and emoluments as those of government schools, interms of the obligation enjoined upon the private recognized schools underthe DSE Act, 1973. The schools cannot evade their statutory responsibilityand are bound to pay the statutory dues.

14.Consequently, this Court is of the view that the present appeal isbereft of merit. Accordingly, the present appeal and application aredismissed but with no order as to cost.

MANMOHAN, J

MINI PUSHKARNA, J

JULY 7, 2023TS