IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 2700 of 2009(U)
1. KERALA PRE-PREIMARY TEACHERS &
2. SHOULY N.J. PRE-PRIMARY TEACHER,
3. KALADEVI M.V.,
4. SMT. JESSY ALEX,
1. STATE OF KERALA, REPRESENTED
2. THE DIRECTOR OF PUBLIC
For Petitioner :SRI.ABRAHAM VAKKANAL (SR.) For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC Dated :27/01/2011
O R D E R
ANTONY DOMINIC, J.
W.P (C) No.2700 of 2009
Dated this the 27th January, 2011
J U D G M E N T
First petitioner is an Association of the Pre Primary Teachers and Ayahs. Second petitioner is a Pre- Primary teacher, the 3rd petitioner is a Pre-Primary Ayah and the 4th petitioner is the parent of a Pre-Primary student.
2. Ext.P3 is an order issued by the Government of Kerala permitting the Parent Teachers Association of Government schools to hold Nursery classes in Government schools where excess accommodation is available at their own expense and to collect fees to meet the expenses. Ext.P6 is the subsequent order issued by the Government of Kerala, approving the guidelines for the conduct of Pre-Primary classes in Government schools. This Government order also provided that the PTA shall meet the expenses by raising local resources levying fee from the students.
3. It is stated that based on Exts.P3 and P6 orders, Pre-Primary classes were permitted to be started in several Government schools where excess W.P (C) No.2700 of 2009
accommodation was available. In all those places, PTA took over the entire responsibility for establishing the classes and the PTA also made appointment of the Pre Primary teachers and Ayahs. Exts.P30, 31 and 32 show these facts. Petitioners 2 and 3 are Pre primary teacher and Ayah so appointed on being selected by the respective PTA in pursuance to the aforesaid policy decision of the Government and the individual orders there were issued. On their appointment, they were being paid salary based on the fee collected from the students and such payments were made by the PTA itself.
4. The appointees like petitioners 2 and 3 and their Association, were making repeated representations to the Government requesting for higher emoluments. It would appear that based on those representations, which engaged the attention of the Government, directions were issued to the Director of Public Instruction to examine the matter and to submit his report. Accordingly, the Director of Public Instruction submitted Ext.P14 report to the Government. In that report, it is stated that there are 1743 Pre- Primary W.P (C) No.2700 of 2009
Teachers and 1335 Ayahs who are working on salary paid from out of the meager fees collected from the students. It is also stated that Pre Primary Teachers and Ayahs who were working in the Government runs schools and who were recruited through the Public Service Commission, were getting salary in the scale of Rs.4990-7990 and 4300- 5930 respectively. It is stated that if Pre-Primary teachers and Ayahs like the petitioners 2 and 3 are to be paid salary at the aforesaid rate, it involves an annual expenditure of 9.3 crores and that for such payment, legislative enactment is necessary and that therefore they could be paid honorarium at the rate of Rs.4000/- and Rs.2500/- respectively. Despite the submission of Ext.P14, in spite of various representations and meetings that were held by the authorities of the Education Department including the Minister concerned, no decision was taken in the matter. It was at that stage, this writ petition was filed with the prayer to direct the respondents to pay Pre-Primary Teachers and Ayahs like petitioners 2 and 3 salary at the rate as applicable to the Pre-Primary Teachers and Ayahs W.P (C) No.2700 of 2009
in the Government schools and for consequential reliefs.
5. During the pendency of the writ petition, this Court passed an order on 1st of April 2009 directing that the Government shall take a decision in the matter in the light of Ext.P14 report submitted by the Director of Public Instruction. Accordingly, petitioners again submitted Ext.P24 representation and finally the Government passed Ext.P29 order, the relevant portion of which reads as under:
"Government have examined the matter in detail. Those Pre - Primary Teachers and Ayahs of Government schools getting wages from PTA collected fees were not appointed by Government. The Ext.P14 proposal of the DPI to enhance the remuneration/honorarium to the Teachers and Ayahs of Pre-Primary classes run by the PTAs involve huge financial commitment to the Government. At present Government are not in a position to bear with the extra financial burden and therefore the proposal submitted by the DPI as per his letter read as 3rd paper above (Ext.P14) cannot be considered now and the same is rejected, thereby complying the Court direction in W.P (C) No.2700/09 filed by the Kerala Pre-Primary Teachers and Ayahs Association and others.
6. Thereafter, the writ petition was amended incorporating a challenge against Ext.P29. When the case W.P (C) No.2700 of 2009
came up for final hearing, although various contentions have been raised. The main argument of the learned Senior Counsel for the petitioners was that the liability to provide free education to the children upto the age 14 is that of the State and that therefore it is incumbent on the part of the Government to establish Pre-Primary schools appointing necessary staff for teaching and other matters. It is stated that since the State has such a constitutional obligation, State could not have issued any executive orders in the nature of Exts.P3 and P6 and avoid the responsibility of paying decent salary or honorarium to the Teachers and Ayahs appointed in such schools. Further it is also pointed out that recognising their obligation in this behalf Government have already issued orders according administrative sanction to pay honorarium at the rate of Rs.300/- and 200/- to Teachers and Ayahs by order dated 23rd June 2010. It is also pointed out that the IXth Pay Commission has also submitted its report recommending to increase the honorarium payable to Teachers and Ayahs to Rs.600/- and 300/- respectively.
W.P (C) No.2700 of 2009
7. On behalf of the respondents, learned Government Pleader disputed the liability of the Government to pay any amount to the Pre-Primary Teachers and Ayahs like petitioners 2 and 3. According to the learned Government Pleader, the very establishment of the Pre-Primary Schools were on the basis of Exts.P3 and P6 orders referred to above, it is stated that while the Government have agreed for the establishment of Pre- Primary classes in Government schools having excess accommodation, it was made clear that the Government will not accept any monetary liability for payment of salary to the Teachers or Ayahs who are appointed by the PTA. It is also pointed out that it was on that basis, PTAs were permitted to proceed with establishment of the Pre-Primary classes, collecting fee from the students and paying salary from out of such resources. Therefore, according to the learned Government Pleader, the Government cannot be saddled with any liability to pay salary or honorarium to appointees like the petitioners 2 and 3 herein. It is also contended that in the absence of any employer-employee W.P (C) No.2700 of 2009
relationship between the Government and Pre-Primary Teachers and Ayahs, this Court will not be justified in issuing any direction as sought for by the petitioners involving huge financial liability on the Government. On this basis, the learned Government Pleader prayed for dismissal of the writ petition.
8. I have considered the submissions made by both sides. Admittedly, Pre-Primary Teachers and Ayahs who are members of the 1st petitioner, are employed in Pre- Primary classes which were established on the basis of Exts.P3 and P6 Government Orders. These orders show that the Government permitted the establishment of such Pre-Primary Schools in Government Schools where additional accommodation was available. Orders clearly provided that the PTA will establish the classes collecting fee from the students admitted in such classes and pay the wages from out of the fee collected. It was accordingly that Pre-Primary classes were established.
9. As far as the appointment of the Teachers and Ayahs are concerned, such appointments were also made W.P (C) No.2700 of 2009
by the PTA. Of course, the Headmaster of the school was also involved in the selection process. But such involvement of the Headmaster was in the capacity of the representative of the PTA and was not on a representative of the Government. Such involvement of the Headmaster will not in any manner alter the nature of the appointment nor will it entitle the appointees to make any claim against the Government on that basis. Therefore, for all practical purposes, Teachers and Ayahs were appointed by the PTA and the Government or the Education Department had nothing to do with the selection or appointment. Therefore, the petitioners cannot claim any employer- employee relationship with the Government. In the absence of such a relationship, petitioners cannot have any legal right to contend that the Government have the liability to pay them salary much less at the rate at which Teachers and Ayahs selected by the Public Service Commission and appointed in Government schools are paid. For this reason itself, this Court also cannot in the exercise of its powers under Article 226 of the Constitution W.P (C) No.2700 of 2009
of India, call upon the Government to pay salary or honorarium to the Teachers or Ayahs like petitioners 2 and
10. Learned senior counsel for the petitioners pleaded that the approach in a matter like this should be justice oriented. However, justice can only be in accordance with law and not otherwise than in accordance with law and therefore this Court cannot accept that argument and issue any such directions.
11. It is true that the Government appears to have agreed to pay honorarium at the rate of Rs.300/- and 200/- to the teachers and Ayahs and administrative sanction in that behalf has seen accorded by G.O (MS) NO.99/10 dated 23rd June, 2010. The IXth Pay Commission also has recommended revision of the honorarium. If the Government voluntarily accepts such liability, it is free to do that. But the question is whether this Court can force the Government to accept any financial liability and in my view the answer can only be in the negative. W.P (C) No.2700 of 2009
12. The argument of the petitioner based on the contention that the children of this country are entitled to have free education up to the age of 14. It is true, such a right has been recognised by the Constitution and it is for that purpose schools have been established by the Government or in the private sector based on the recognition granted by the Government. Such education, in my view, cannot extend to Pre-Primary education such as those imparted in pre-primary classes pursuant to Exts P3 and P6. A reading of Exts.P3 to P6 itself show that these classes have been established to ensure the availability of sufficient students in the first standard in the Government schools. Such classes cannot get the protection of Article 21A and therefore this argument of the learned senior counsel is only to be rejected and I do so.
13. Therefore, this Court will not be justified in issuing the directions sought for by the petitioners either for directing the Government to pay salary or honorarium to Teachers and Ayahs in classes established pursuant to W.P (C) No.2700 of 2009
Exts.P3 and P6. Therefore, I do not find any merit in the writ petition. The writ petition therefore will stand dismissed.
14. Learned senior counsel for the petitioners relied on Ext.P9 and submitted that by this order the Government have directed that the Pre-Primary Teachers of the recognised schools should be paid minimum salary of Rs.2500/-. As I already held that unless the petitioners have an employer-employee relationship, the Government cannot be called upon to make any payment. Therefore, if at all the petitioners have such a claim, such claim can only be against those who have employed then in Pre- primary classes and therefore I am not persuaded to accept that claim of the petitioners also. In the result, writ petition is only to be rejected and I do so. No costs.
/True copy/ P.A to Judge