Shantiniketan Hindi Primary ... vs Pal Hariram Ramavtar And Ors on 1 February, 2010

      Non-reportable

                IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION

                  CIVIL APPEAL NO. 1095 OF 2010

             (Arising out of SLP(Civil)No. 21627 of 2005)

SHANTINIKETAN HINDI PRIMARY SCHOOL .... Appellants(s)  Versus

PAL HARIRAM RAMAVTAR AND ORS. .... Respondent(s)    JUDGEMENT

 K.S.Radhakrishnan, J.

 Leave granted.



2. Shantiniketan Educational Trust claiming to be a minority institution  is
running two primary unaided schools, one in Gujarati medium and the  other in
Hindi medium, in State of Gujarat. Respondent nos. 1- 4 were  working as
teachers in those schools. Their services were terminated on  05.07.1996 on the
ground that they had absented from duties without  informing the Management
which according to the management amounted  to gross indiscipline. Against the
order of termination of service they filed 2

 Application no. 241 of 1996 before the Gujarat Primary Education Tribunal.
While they were in service they had filed Application nos. 3 of 1993, 30 of
1993 and 193 of 1994 before the said Tribunal claiming parity of pay and
allowances as per government rules applicable to the untrained teachers.  All
the applications were heard together by the Tribunal and a common  order was
passed on 14.07.2000 quashing the termination orders and  directing
reinstatement with full salary and other benefits from the date of  termination
till the date of the order with a further direction to pay the salary  and other
benefits applicable to untrained teachers as per Government  Rules, from the
dates of their appointment. The Management filed a Writ  Petition being Special
Civil Application No.6918 of 2001 which was  dismissed by learned Single Judge
of the Gujarat High Court on  19.02.2002 which was affirmed by the Division
Bench vide order dated  30.10.2004. Aggrieved by the same this appeal has been
preferred by the  employer school.



3. Ms. Manisha T. Karia, learned counsel appearing for the  appellant submitted
that the Tribunal as well as the High Court has  committed a grave error in
ordering reinstatement with back-wages and  also giving a direction to the
Management to pay the salary from the date of 3

 appointment as per Government Rules. Learned counsel also submitted  that the
appellant institute is a minority institution entitled to protection  under
Article 30 of the Constitution of India. Learned counsel further  submitted that
respondent nos. 1- 4 were unqualified, appointed as  temporary teachers purely
on adhoc basis on a fixed salary of Rs.724/- per  month and they were not
qualified trained teachers falling under para 6 of  the Schedule `F' of Bombay
Primary Education Rules 1947. Further it was  also stated that the Trust was
managing two primary schools, one in  Guajarati medium and the other in Hindi
medium. Owing to paucity of funds  and due to lack of requisite number of
students, the schools had to be  closed down for the years 1995-96 and 1996-97.
Learned counsel further  submitted that the direction given by the Tribunal to
pay the full salary and  other benefits to respondents as per Govt. rules would
cause considerable  financial strain on the schools and might lead to the
closing down of the  schools. Learned counsel further submitted that respondent
nos. 1 to 4  were untrained and unqualified teachers and the direction given to
reinstate  those teachers are illegal. Learned counsel further submitted that
the  Management had followed relevant rules before terminating the services of
respondent nos. 1 to 4.

                                                                    4



4. Mr. Nachiketa Joshi, learned counsel appearing for respondent  nos.1- 4
submitted that the Management has committed a grave error in  terminating the
services of the respondents on flimsy reasons. Learned  counsel further
submitted that respondents' services were terminated since  they had approached
the Tribunal for pay and allowances as per  Government Rules applicable to
untrained teachers. He also submitted  that the procedure laid down under the
Bombay Primary Educational Act  and Rules were not followed before terminating
the services of respondents  and hence the Tribunal was justified in ordering
reinstatement with full  salary and allowances and also giving a direction to
the Management to  revise the pay and allowances as per Government Rules
applicable to  untrained teachers.



5. The appellant is a recognized unaided Primary School  governed by the
provisions of the Bombay Primary Education Act 1947.  The 1st Respondent, herein
a graduate was appointed as Assistant Primary  Teacher in the Hindi Medium of
the School on 5.6.1987. 2nd respondent,  who was possessing the qualification of
SSC was appointed in the school  as a Teacher for the course of Handicraft and
Book binding on 8.7.1985.  The 3rd respondent was appointed as Assistant Teacher
in the Gujarati 5

 Medium of the school on 22.6.1986 and the 4th respondent was appointed  on
Assistant Primary Teacher in the Gujarati medium on 5.6.1987. They  were
discharging their duties without any complaint from any quarters.  Noticing that
they were not getting the pay and allowances as per  Government Rules applicable
to untrained teachers, they approached the  Tribunal and filed application nos.3
of 1993 and 30 of 1993 for a direction  to the Management to pay the salary and
allowances as per Government  Rules. Apparently, irked by such demand, their
services were terminated  by the Management on the ground that they had absented
from duty  without informing the Management which amounted to gross
indiscipline.  The Tribunal after an elaborate discussion of the various
contentions raised  by the parties and also examining the provision of Bombay
Primary  Educational Act, 1947 and the Gujarat Amendment Rules 1978 came to the
conclusion that the order of termination was bad since the Management  had not
followed by proper procedure in terminating their services. Further,  it was
also found that the respondents were entitled to get the pay and  allowances as
per Government Rules applicable to untrained teachers.

6. The main contention raised by the Management before us  was respondents were
unqualified to hold the post and also that they were 6

 not trained teachers. We notice that the reason for termination of services
was not that they were unqualified or untrained teachers but that they had
absented from duties. Assuming that they had absented from duties even  then
admittedly procedure laid down under Clause 13 and 18 of Schedule  `F' of the
Bombay Primary Education Rules, 1949 had to be followed before  terminating
their services. The Tribunal and the High Court had therefore  rightly held that
the orders of termination of services of the respondents  was bad in law.



7. Rule 106A of the Bombay Primary Education Rules deals with  the application
for recognition. Sub-rule 2 of Rule 106-A states that every  application under
sub-rule 1 shall be sent to the authorized officer by  registered post with
acknowledgment due together with an undertaking in  writing that the conditions
of employment of teachers in the private primary  schools shall be those as
specified in Schedule 'F' appended to these  rules. Schedule 'F' deals with the
model conditions of employment of  teachers in the private schools in the State
of Gujarat which forms part of  Rule 106A of the Rules. Clause (v) of sub-rule 4
states that no primary  school shall be recognized or continued to be recognized
unless the rates  of tuition fee, pay-scales and allowances of the teaching
staff shall be such  as may be approved by the Government from time to time.
Following the 7

 above mentioned provisions, the Tribunal, on facts found that the  respondents
were working as teachers in the School for over ten years but  they were paid
only a consolidated monthly pay of Rs.724 per month,  which was found to be not
in accordance with rules. Tribunal in our view  has correctly come to the
conclusion that the respondents-teachers are  entitled to get pay and allowances
which are applicable to untrained  teachers as per Government Rules.



8. Under the above circumstances, we find no reason to interfere  with the order
passed by the Tribunal which was confirmed by the High  Court. Further, we
notice that when this court had granted stay of the  judgment vide orders dated
13.1.2006, recorded the statement of counsel  for the management that it had
disbursed Rs. 2 lakhs towards arrears of  salary. Needless to say that amount
would be adjusted towards salary due  to the respondents. Considering the
financial difficulties pointed out by the  counsel appearing for the Management
and the fact that the School had to  be closed down for the years 1995-96 and
1996-97, and considering the  fact that there were unauthorized absences, we are
of the view that the  respondents 1-4 are entitled to get only 50% of the salary
and other  benefits applicable to the untrained teachers as per Government Rules
8

 from the date of appointment till the date of reinstatement after adjusting
the above-mentioned amount. Ordered accordingly.

9. The appeal is disposed of as above.

   ....................................J.

                                                          (R.V. Raveendran)

  ....................................J.

                                                       (K.S. Radhakrishnan)

New Delhi;

February 01, 2010