Sirijit Chandra Singh Vs. Mr. J.R. Kalia, President, Wwa Cossipore English School Managing Committee and ors - Court Judgment

The Court

1. On 3rd April 1998 the Hony. Administrator of WWA Cosslporc English School Issued an appointment letter to the petitioner to the effect as follows:--

'No. CES/NKB/APPT/687 DL 3.4.98.

To

Sri Srijit Chandra Singh.

12B, Elliot Road,

Calcutta-700 016.

Sub: Appointment to the post of Principal, offering.

Ref: Your applicantion dated ...

Dear Sir,

With reference to your application under reference above and

subsequent Interview held on 15.3.98 in the school premises, I am

glad to offer you an appointment for the post of Principal In WWA

Cossipore English School. 59, Seven Tanks Estate, Calcutta 700 002.

The terms and conditions of appointment are as follows:--

1. Your post is permanent upto the age of 60 years, thereafter.

It may be extended with consolidated pay.

2. You are requested to join on or before 1st July 1998.

3. You will be entitled to draw a consolidated pay of

Rs. 15,000/- at present p.m. Your pay will be revised after

announcement of 5th Pay Commission by the Govt. of West

Bengal and will be fitted in the appropriate schools.

Please acknowledge receipt and confirm acceptance of the offer.

Thanking you,

Yours faithfully.

Sd/- N.K. Bhattacharya.

Hony. Administrator.

2. On 6th April 1998 the petitioner accepted the said appointment. The same Hony. Administrator then wrote a letter dated 29th June 1998 to the petitioner which runs as follows :--

'Dear Dr. Singh,

Thank you for your letter of acceptance dated 6th April 1998 in response to the letter appointing you as the permanent Principal of this institution with effect from the date you join the post. You will continue as permanent Principal till you attain the age of 60 years. Your services may be further extended upto the age of sixty five depending on your physical fitness and performance.

You will be paid a gross salary of Rs. 15000/- which is subject to revision after the anouncement of the. report of the pay commission. Special annual increment will be sanctioned, till the Pay Commission reported Implemented.

During the extension period you will be paid a consolidated salary, not less than that drawn at the completion of sixty years of age. We may consider some revision of this with every revision of our pay scale.

I hope you will make every effort to Join us as early as possible and submit the joining report. Your timing will be from 8 a.m. to 3 p.m.

With the best wishes,'

3. There is no dispute that the petitioner Joined his services in the said school on 1st July 1998. There is also no dispute that the petitioner was paid his salary for the month of July 1998 by the pay slip dated 31st July 1998. On 31st July 1998 the President of the Managing Committee of the school informed the petitioner that there is a serious anomaly and deviations in the service conditions and salary offered to the petitioner and that the Managing Committee after consultation with experts would referred back to the petitioner. Then on 24th August 1998 It was stated by the President of the Managing Committee of the school that the petitioners salary will be much less than Rs. 15000/-and that the petitioner's servicewill be on probation for a period of one year from the date of his joining. The petitioner then made a representation and claimed salary in accordance with his appointment letter. To that a reply was given again by the President stating that the question of releasing the salary at rate of Rs. 15000/-per month has been sent for urgent legal opinion and only on receipt of such opinion a decision to release the same will be taken. Hence this writ petition has been filed.

4. An affidavit in opposition has been filed by the President. In that a preliminary objection has been taken to the effect that the writ petition is not maintainable since the school is not any 'other authority' within the meaning of Article 12 of the Constitution.

5. My attention has been drawn to a Government Order dated 24th December 1993, known as Code of Regulations for Angto indian and other Listed Schools, 1993, issued by or on behalf of the Governor. Clauses 20, 21 (a), 22 and 23 of the said Code provides as follows :--

'20. Payment of salary etc.--All schools recognised under this Code shall pay their teaching and non-teaching staff pay, house rent and medical allowances, Gratuity and Contributory Provident Fund in the scales not lower than those approved by the State Government in respect of Government aided schools affiliated to the West Bengal Board of Secondary Education or as prescribed under the relevant Provident Fund Act/Rules of the Government of india.

21 (a)--Appointment of all categories of staff shall be made as per rules framed by the Founder. Every employee, whether a teaching of non-teaching staff, shall be engaged by a letter of appointement which shall state clearly the type of employment offered--permanent, temporary or against a leave vacancy. The letter of appointment shall describe the nature of the duties, salary and emoluments term for which the employment is offered, the period of probation, If any, requirement of training and manner of termination of the appointment.

22. Termination of service--The service of a member of staff on probation may be terminated with one month's notice on either side or with one month's salary in lieu of notice without any reason being assigned by either party.

23. Termination of appointment of confirmed staff--The service of a confirmed member of staff may be terminated with three months notice on either side or by the payment of three months' salary by either party in lieu of notice with adequate reasons being assigned by either party, provided that in the case of termination of the service of a confirmed member of staff by a school, the school shall pay the member an amount calculated at the rate of half a month's salary for each completed year of service up to a maximum of 10 months' salary in addition to Provident Fund and Gratuity as accrued.'

6. Clause 24 of the said Code provides precedure for disciplinary action against confirmed staff and Clause 25 thereof provides the procedure for suspension of staff of the schools coming within the perview of the said Government order. There is no dispute that the school in question is one of the listed schools.

7. It was submitted on behalf of the President of the Managing Committee of the school that the said Code being merely a Government Order and having no statutory flavour no right accrued thereupon are to be enforced. It was next submitted that even. If rights accrued thereunder may be enforced the same cannot be enforced against a non aided institution which has got no connection whatsoever with the Government.

8. In K. Krishnomacharyulu & Ors., v. Sri Venkateswar Hindu College of Engineering & anr. reported in, AIR 1998 SC page 295. The Supreme Court has held inter alia as follows :--

'The admitted position is that the appellant and six others had been appointed on dally wages to the post of Lab. Assistants as non-teaching staff of the respondent private College. They were being paid dally wages. Writ petition and appeal seeking equal pay having been dismissed, they have filed the present appeal for direction to pay them equal pay for equal work on par with the other Government employees.

It is not in dispute that executive instructions issued by the Government have given them the right to claim the pay scales so as to be on par with the Government employees. The question is : when there is no statutory rules issued fn that behalf, and the institution, at the relevant time, being not in receipt of any grant-in-aid : whether the writ petition under Article 226 of the Constitution is not maintainable in view of the long line of decisions of this court holding that when there is an interest created by the Government in an institution to Impart education, which is a fundamental right of the citizens, the teachers who teach the education gets an element of public interest in the performance of their duties. As a consequence, the element not of public interest requires to regulate the conditions of service of those employees on par with Government employees. In consequence, are they also not entitled to the parity of the pay scales as per the executive instructions of the Government It is not also in duspute that all the persons who filed the writ petition along with the appellant had later withdrawn from the writ petition and thereafter the respondent-Management paid the salaries on par with the Government employees. Since the appellants are insisting upon enforcement of their right through the judicial law. We are of the view that the State has obligation to provide facilities and opportunities to the people to avail of the right to education. The private institutions cater to the needs of the educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the orders issued by the Government. The question is as to which forum one should approach. The High Court has held that the remedy is available under the industrial Disputes Act When an element of public interest is created and the institution is catering to that element, the teacher, the arm of the institution is also entitled to avail of the remedy provided under Article 226; the Jurisdiction part is very wide. It would be different position, if the remedy is a private law remedy. So, they cannot be denied the some benefit which is available to others. Accordingly we hold that the writ petition is maintainable. They are entitled to equal pay so as to be on park with Government employees under Article 39(d) of the Constitution'.

9. In view of the above clear-cut view of the Supreme Court, the present writ petition should be held to be maintainable.

10. It was next contended that the appointment of all categories of staff shall be made as per rules framed in terms of Clause 21 of the said Code and according to the rules made by the Founder, Administrator of the school had no power to appoint. In the rules made by the Founder, it does not appear that there is any such embargo. It was submitted that I must look at the past practice and particularly the fact that the previous principals were appointed by the appointment letters issued by the President. Custom or usage of this nature does not make the rules. On the other hand it has been provided specifically in the rules framed by the founder that the Managing Committee of the school in question would be comprised of by General Manager, Gun & Shell Factory as the ex-officio President, one senior officer of the factory who shall be the Hony. Administrator and shall be treated to be the extended arm of the President and would look after the smooth running and development of the school and one officer of the factory as a member. It was stated that the Hony. Administrator who is the extended arm of the President cannot act without the concurrence of the President and that the action to appoint the petitioner by the Hony. Administrator was without the concurrence of the President. Once a person is described as an extended arm of another person, in law it should be deemed that the first named, person shall be entitled to represent the second named person and, as such, unless anything contrary is shown. It should be deemed that any action of the Administrator is an action of the President. The appointment letter having been issued by the Hony. Administrator, being the extended arm of the President, should thus be deemed to have been issued by the President himself.

11. It was then urged that the appointment letter was issued not in accordance with the directions contained in sub-clasuse (a) of Clause 21 of the said Government order. I have considered the appointment letter and I find that all ingredients contain in sub-clause (a) of Clause 21 of the said Government order is present in the appointment letter.

12. Further and in any event a person once having been appointed and then he having been permitted to function on the basis of such appointment and thereafter having been paid his salaries in accordance with the appointment letter could not be denied salary on the ground that fixation of his salary was not done properly without showing that in the matter of fixation of such salary a fraud has been committed upon the institution. As yet no step has been taken against the Honorary Administrator who has settled the salary of the petitioner. By showinga purported dispute a person, who has rendered his services, cannot be denied his a lawful and legitimate dues and claims.

13. The writ petition is, accordingly, allowed. The institution in question is directed to forthwith pay all the salaries of the petitioner in terms of his appointment letter dated 3rd April 1998. It is expected that this order should be complied with in course of seven days from the date of communication of this order.

Prayer for stay is made and is refused.

14. Petition allowed.