Rajasthan High Court – Jaipur
Yogesh Kumar Sharma vs R N G E I T Jaipur And Ors on 13 August, 2025
Author: Anand Sharma
Bench: Anand Sharma
[2025:RJ-JP:30362]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 2071/2003
Yogesh Kumar Sharma S/o Shri Kameshwar Dayal Sharma, aged
about 35 years, R/o Vasangate, Bharatpur.
----Petitioner
Versus
1. Rajasthan Non-Government Educational Institution Tribunal,
Mini Secretariat, Jaipur, through its Presiding Officer.
2. Adarsh Vidya Mandir Samiti, Purana Bayana Bus Stand,
Bharatpur, through its secretary.
3. Uchh Prathmik Adarsh Vidya Mandir, Ranjeet Nagar, Bharatpur,
through its Secretary.
4. Director of Primary Education, Rajasthan, Bikaner.
5. State of Rajasthan through Secretary to the Government
Department of Education, Secretariat, Jaipur.
----Respondents
For Petitioner(s) : Mr. D.P. Sharma
For Respondent(s) : Mr. Vinod Kumar Gupta, AGC with
Mr. C.P. Sharma
HON'BLE MR. JUSTICE ANAND SHARMA
Judgment
Date of Reserve : 06.08.2025
Date of Pronouncement : 13.08.2025
1. Core question involved in the instant writ petition is as
to whether employees of Non-Government unaided recognized
institutions are entitled for the same pay scale, which is being paid
to the employees of Government Educational Institutions or not?
2. Succinctly, the facts of the case are that the petitioner
filed an application under Section 21 of the Rajasthan Non-
Government Educational Institutions Act, 1989 (in short the ‘Act of
1989’) contending therein that he was appointed as Teacher
Grade-III in Government Upper Primary Adarsh Vidya Mandir,
Ranjeet Nagar, Bharatpur on 07.07.1993. It was mentioned that
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the pay and allowances which was being given to the teaching and
non-teaching staff of the aforesaid Non-Government Recognized
Institutions were much less than the pay and allowances
admissible to the employees of State Government.
Representations and demand was raised for granting equal pay to
the employees of the institution qua the pay of employees of
Government institutions. However, when their grievance was not
addressed by the institution, he filed an application before the
Rajasthan Non-Government Educational Institutions Tribunal (The
Tribunal), Jaipur with a prayer to grant the same pay and
allowances to the petitioner as being paid to the employees of
State Government.
3. Reply to the application was filed on behalf of
respondent-institution in which it was mentioned that although,
the respondent-institution is recognized by the State Government
under the provisions of the Act of 1989, yet grant-in-aid was
neither sanctioned nor released to the respondent-institution.
Hence, under these circumstances, in the light of provisions of
Sections 16 and 29 of the Act of 1989 as well as Rule 34 of the
Rajasthan Non-Government Educational Institutions, (Recognition,
Grant-in-aid & service conditions etc.), 1993 (hereinafter to be
referred as ‘Rules of 1993’), the respondent-institution was not
under any obligation to grant the same pay and allowances to the
staff of institution which has been prescribed by the Government
for the staff of similar category in Government Educational
Institutions.
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4. After hearing both the parties, learned Tribunal
dismissed the application filed by the petitioner vide order dated
12.09.2002.
5. Feeling aggrieved by the order dated 12.09.2002, the
petitioner has approached this Court by way of filing the instant
writ petition under Article 226 of the Constitution of India. As per
petitioner, the order passed by the learned Tribunal is totally
against the facts of the case, material on record and provisions of
the Act of 1989 as well as Rules of 1993.
6. Learned counsel for the petitioner submits that
admittedly, respondent-institution is a recognized institution under
Section 3 of the Act of 1989, therefore, once recognition has been
granted under the Act, then the respondent-institution is under an
obligation to follow all the provisions of the Act of 1989 as well as
Rules of 1993. It has been emphasized by learned counsel for the
petitioner that Rule 5 of the Rules of 1993 lays down procedure for
recognition and for that purpose, the institution is required to
submit application for recognition in the prescribed form given in
Appendix-I appended to the Rules and is bound to follow all the
terms and conditions of recognition as mentioned in Appendix-II.
It has also been indicated that the statutory provisions also deal
with pay and allowances to the employees of the Non-Government
Educational Institution and it is a condition for granting
recognition that the employees working in the institution shall be
granted pay, dearness allowance and PF in accordance with Rules
of State Government.
7. Learned counsel for the petitioner submits that when
the respondent-institution has taken recognition from the State
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Government subject to aforesaid condition mentioned in Entry-14
of the Appendix-II, then it was under obligation to give some
benefits to its employees as mentioned in the said Entry-14 of the
Appendix-II.
8. In support of his contentions, learned counsel for the
petitioner has relied upon the judgment of this Court in the case of
Yashpal Sharma Vs. Managing Committee Hayaya 2003 (1)
WLN 689, the judgment delivered by Hon’ble Supreme Court in
the case of K. Krishnamcharyulu and Ors. Vs. Shri
Venkateswara Hindi College of Engineering and Anr. (Civil
Appeal No. 1774/1997) decided on 21.02.1997, Shanti
Niketan Hindi Primary School Vs. Pal Hariram Ramavtar and
Ors. AIR 2010 SC 656 and the judgment of TMA Pai
Foundation and Ors. Vs. State of Karnataka 2002(8) SCC
481.
9. Learned counsel for the respondent-institution has
opposed the writ petition and has submitted that learned Tribunal
has committed no mistake whatsoever in dismissing the
application filed by the petitioner vide order dated 12.09.2002.
10. Learned counsel for the respondents submits that the
prayer made by the petitioner is apparently against the
unambiguous and explicit provisions of Section 16 and 29 of the
Act of 1989 and Rule 34 of the Rules of 1993. As per aforesaid
provisions, only the employees of aided institution are entitled for
pay and allowances equal to the employees of Government
Educational Institutions and admittedly, the respondent-institution
was not an aided institution and was simply a recognized
institution. He submits that Entry-14 of Appendix-II has been
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clarified by the State Government by way of issuing one Order No.
60 circulated on 29.07.1998, which has been issued pursuant to
Rule 93 of the Rules of 1993, in which it has been clarified that
granting pay and allowances equal to the employees of
Government Educational Institution is not mandatory in the case
of unaided institutions. Learned counsel for the respondents relied
upon the judgment of this Court in the case of Kamla Bai & Ors.
Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.
13781/2012) decided on 14.09.2012, Managing Committee,
Tegor Bal Niketan Samiti & Ors. Vs. Shri P.K. Sharma & Ors.
decided by Division Bench of this Court in D.B. Special Appeal
Writ No. 160/2006 dated 21.09.2023, another Division Bench
judgment of this Court in the case of Adarsh Vidya Mandir
Samiti, Bharatpur & Anr. Vs. Raju Lal & Ors. (D.B. Civil
Special Appeal No. 665/2004) decided on 08.08.2013 and
the judgment of Hon’ble Supreme Court in the case of Sushmita
Basu & Ors. Vs. Ballygunge Siksha Samity & Ors. reported in
2006 (7) SCC 680 and in the case of Satimbla Sharma & Ors.
Vs. St. Paul Sr. Secondary School reported in 2011(13) SCC
760 and has prayed for dismissing the writ petition filed by the
petitioner.
11. I have considered the rival submissions made at Bar
and examined the record.
12. Before proceeding further, it would be relevant to refer
to following provisions of Rajasthan Non-Government Education
Institution Act, 1989 :-
“2 Definition- In this Act, unless the context otherwise
requires,-
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(b) “aided institution” means a recognized institution
which is receiving aid in the form of maintenance grant
from the State Government;
(q) “Recognised Institution” means a non-
Government Educational Institution affiliated to any
University or recognized by the Board, Director of
Education or any office authorised by the State
Government or the Director of Education in this behalf;
3. “Recognition of Institutions- (1). Except in the
case of institution affiliated to a University or to be
recognized by the Board, the Competent Authority may,
on a application made to it in the prescribed form and
manner, recognize a non-Government Educational
Institution on fulfilment of such terms and conditions as
may be prescribed:
Provided that no institution shall be recognized unless it
has been registered under the Rajasthan Societies
Registration Act, 1958, (Act No. 28 of 1958) or it is
being run by a public trust registered under the
Rajasthan Public Trusts Act, 1959 (Act No. 42 of 1959)
or by trust created in accordance with the provisions of
the Indian Trusts Act, 1882 (Central Act No. 2 of 1882)
(2). Every application for recognition of an institution
shall be entertained and considered by the Competent
Authority and the decision thereon shall be
communicated to the applicant within a period of six
months from the date of the receipt of the application
and, where recognition is refused, the reasons
therefore shall also be communicated to the applicant
within the said period.
7. “Grant of aid to recognized institutions.- (1) No
aid shall be claimed by an institution as a matter of
right and an aid granted under the provisions of this Act
or the rules made thereunder may be stopped by the
State Government at any time.
(2) Unrecognised institutions shall not be eligible to
receive any aid.
(3) Subject to such terms and conditions as may be
prescribed, the sanctioning authority may sanction and
distribute aid to recognised institutions from time to
time in accordance with the procedure as may be
prescribed.
(4) The aid may cover such part of the expenditure of
the institution as may be prescribed.
(5) No amount out of aid given for salary of the
employees of an institution shall be used for any other
purpose.
(6) The sanctioning authority may stop, reduce or
suspend aid on breach of any of the terms and
conditions prescribed in this behalf.
(7) The amount of aid may normally be paid to the
secretary of the managing committee of an institution
but, in special circumstances and for reasons to be
recorded in writing, such amount may be paid to any
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person authorised by the Director of Education or by
any other officer empowered by him in this behalf.
Section 16.(1) The State Government may regulate
the recruitment and conditions of service, including
conditions relating to qualifications, pay, gratuity,
insurance, age of retirement, entitlement of leave,
conduct and discipline, of persons appointed as
employees of aided institutions in the State :
Provided that the rights and benefits accruing to an
employee of an existing institution under the grant-in-
aid rules in force at the commencement of this Act
shall not be varied to the disadvantage of such
employee:
Provided further that every such employee shall be
entitled to opt for such terms and conditions of service
as were applicable to him immediately before the
commencement of this Act:
Provided also that, irrespective of the age of
retirement prescribed, action may be taken for
compulsory retirement of such an employee after
completion of 25 years of service or on attainment of
the age of 50 years whichever is earlier, in accordance
with the procedure as may be prescribed.
(2) Every recognised institution shall constitute a
provident fund for the benefit of its employees in such
manner and subject to such conditions as may be
prescribed and contribute to such fund and pay
interest on the deposited amount at such rate as may
be prescribed from time to time.
29. Pay and allowances of employees.- (1) The
scales of pay and allowances except compensatory
allowances with respect to all the employees of an
aided institution shall not be less than those
prescribed for the staff belonging to similar categories
in Government institutions.
(2) Notwithstanding any contract to the contrary, the
salary of an employee of a recognised institution, for
any period after the commencement of this Act, shall
be paid to him by the management before the expiry
of the fifteenth day or such earlier day, as the State
Government may, by general or special order appoint,
of the month next following the month in respect of
which or part of which it is payable:
Provided that if at any time the State Government
deems it fit, it may prescribe a different procedure for
payment of salary and allowances.
(3) The salary shall be paid without deductions of any
kind except those authorised by the rules made under
this Act or by any other law for the time being in
force.”
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13. Following provisions of Rajasthan Non-Government
Educational Institutions Rules, 1993 are relevant:-
“2. Definitions.- In these rules unless the context
otherwise requires,-
(l) “Grant-in-Aid” means any aid granted to a
recognised Non-
Government Educational Institution by the State
Government;
9. Grants,- The State Government may at its
discretion sanction following grants :-
(1) Maintenance or recurring grant.
(2) Non-recurring grant towards equipments, building
etc.
(3) Ad hoc, non-recurring or recurring grant to an
institution which is of an all India Character and its
project and activities have been approved by the
Central or State Government on such terms and
conditions as it may deem fit to impose.
(4) Such other grants as may be sanctioned by the
Govt. from time to time.
34. Pay and allowances.- The scales of pay and
allowances of the staff of the aided educational
institutions shall not be less than those prescribed by
the Government for the staff of similar category in the
Government educational institutions.
Explanation – “Allowances” mean and include
Dearness Allowance, House Rent Allowance and City
Compensatory Allowance.
Appendix-II **14 osru HkRrs ¼d½ ek/;fed@ laLFkk esa dk;Zjr deZpkfj;ksa dks
ljdkj ds lhfu;j mPp fu;eksa ds vuqlkj osru] egaxkbZ HkRrk ,oa ek/;fed fo|
ky; Hkfo”; fuf/k lqfo/kk,a miyC/k djk;h tk;saA
¼[k½ egkfo|ky; egkfo|ky; ds ‘kS{kf.kd vf/kdkfj;ksa dks jkT; ljdkj }kjk
le;≤ ij fu/kkZfjr osrueku] HkRrs ,oa vU; lqfo/kk,a nsuk vko’;d gSA ¼laLFkk dks
vukifRr izek.k&i= nsus ls igys bl fo”k; esa opu ca/k nsuk vko’;d gksxkA½**
14. Bare perusal of the definition of ‘aided institution’ and
‘recognized institution’ would make it clear that every aided
institution is bound to be a recognized institution but not vice-
versa.
15. The Legislature while enacting the Act of 1989 has
purposely given two different provisions for the ‘recognized
institution’ and ‘aided institution’.
16. The aforesaid provisions would also make it clear that
the aided institutions receive grant-in-aid for their recurring and
non-recurring expenses from the State Government. Since the
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State Government is contributing substantially in monetary terms
in the affairs of aided institutions, therefore, while enacting the
Act of 1989, quite intentionally effective provisions have been
made to control and regulate the terms and conditions of
employment of the employees of only ‘aided institution’ in respect
of pay and allowances.
17. Since, no such aid or contribution granted by the State-
Government to other unaided recognized institution, therefore,
rightly the State Legislature has refrained itself from making any
provisions to regulate pay and allowances of unaided institutions
under the Act of 1989 and the Rules of 1993.
18. Provisions of Section 16 of the Act of 1989 would reveal
that it has got two sub-sections. In Sub-Section (1), the
provisions has been made empowering the State Government to
regulate the recruitment and conditions of service including pay
and allowances of the persons appointed as employees of aided
institution. Whereas, Sub-Section (2) relates to recognized
institutions (may not be aided) and provides that every recognized
institutions shall constitute a provident fund for the benefits of its
employees. Thus, it is clear that the Legislature explicitly intended
to carve out two different provisions in the aforesaid two different
circumstances for regulating the monetary interest of the
employees of the aided institution and those working in unaided
recognized institutions.
19. Section 29 of the Act is couched with quite
unambiguous words and makes it abundantly clear that the scales
of pay and allowances with respect to all the employees of an
aided institution shall not be less than those prescribed for the
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staff belonging to similar categories in Government-institution.
Thus, the Legislature has intentionally and rightly so made a
provision only in order to provide similar benefits to the
employees of ‘aided institution’ equal to the staff belonging to
similar categories in Government-institutions, for the obvious
reason that the Government contributes in monetary terms for
meeting out recurring as well as non-recurring expenses of such
aided institutions. Types of grants which are sanctioned and
released by the State Government has been given in Rule 9 of the
Rules of 1993 and bare perusal of which would reveal that since
the Government is taking care of almost all kind of expenses of
aided institution, therefore, it is well within its right to regulate the
service conditions of the employees working in aided institution
including their pay and allowances.
20. The petitioner cannot raise any grievance either of
alleged discrimination between the employees of aided institutions
and unaided recognized institutions, nor can he raise a plea of
equal pay for equal work under the aforesaid circumstances.
21. The petitioner has emphasized that any institution
which has taken recognition under the Act of 1989 and Rules of
1993 under some conditions including the conditions mentioned in
Entry-14 of Appendix-II, then such institution has got legal
obligation to follow such condition and therefore, it was mandatory
for the respondent-institution to pay similar pay and allowances to
the petitioner, which are payable to the respective category of
employees and Government institution. Bare reading of aforesaid
Entry-14 would reveal that it nowhere mandates that even the
unaided recognized institutions are under legal obligation to grant
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similar pay and allowances to its employees equal to the
employees of Government-institutions. Even otherwise, when the
provisions of Section 16 and 29 of the Act are quite clear that such
protection is only applicable in the cases of employees of aided
institution, then the entry given in an Appendix to the Rules
cannot prevail over the provisions of the Act. It is settled
proposition that the Appendix, which is part of the Rules cannot
override the provisions of parent statute.
22. It appears that as the aforesaid Entry-14 was not
happily worded and created some confusion, therefore, under
these circumstances in exercise of Rule 93 of the Rules of 1993,
the State Government has issued an order for removal of dues
dated 29.07.1998, which has clarified that it is not mandatory for
unaided recognized institutions to make payment of pay and
allowances to its employees equal to the pay and allowances
admissible to the employees of Government-institutions.
23. Circular/order dated 29.07.1998 is being reproduced
hereunder:
**ifji= dzekad i&15¼1½ f’k{kk&5@94 ikVZ 1 fnukad 29-07-1998
¼vkns’k la[;k 60½
fo”k;%& ekU;rk izkIr xSj ljdkjh vuqnkfur f’k{k.k laLFkkvksa esa
1- deZpkfj;ksa dks ns; osru] HkRrs bR;kfn]
2- Qhl ysus ds laca/k esa oLrqfLFkfrA
mijksDr fo”k;kUrxZr jkT; ljdkj ds /;ku esa yk;k x;k gS fd xSj ljdkjh] xSj
vuqnkfur f’k{k.k laLFkkvksa }kjk ekU;rk ds fy, vkosnu i= dh tkap djrs le;
f’k{kk foHkkx ds v/khuLFk dk;kZy; }kjk jktLFkku xSj ljdkjh ‘kSf{kd laLFkk
vf/kfu;e] 1989 ,oa rRlaca/kh fu;e] 1993 ds fu;e&4 dh lfifBr ifjf’k”B&2
ds vkbZVe la[;k 7 o 14 ds dze esa& laLFkkvksa }kjk vius f’k{kdksa o deZpkfj;ksa
dks fn;s tkus okys osru HkrhZ rFkk ,slh laLFkkvksa }kjk yh tk jgh Qhl ds laca/k
esa HkzkfUr gS ,oa bl HkzkfUro’k buds ekU;rk izdj.k xyr dkj.kksa ls vLohdkj dj
fn, tkrs gSAa bl laca/k esa oLrqfLFkfr fuEukuqlkj Li”V dh tkrh gS%&
xSj ljdkjh] xSj vuqnkfur laLFkkvksa esa f’k{kdksa rFkk deZpkfj;ksa dks ns; osru HkRrs
bR;kfn ls lacaf/kr fo”k;%&
bl laca/k esa ifjf’k”B&2 ds vkbZVe la[;k 14 esa fuEu O;oLFkk gS%&
14- osru HkRrs%&
¼d½ izkFkfed@mPp izkFkfed@ek/;fed@lhfu;j mPp ek/;fed fo|yk;&
laLFkk esa dk;Zjr deZpkfj;ksa dks ljdkj ds fu;eksa ds vuqlkj osru] egaxkbZ HkRrk
,oa Hkfo”; fuf/k lqfo/kk;sa miyC/k djokbZ tk,A(Downloaded on 18/08/2025 at 10:02:16 PM)
[2025:RJ-JP:30362] (12 of 25) [CW-2071/2003]¼[k½ egkfo|ky;%& egkfo|ky; ‘kS{kf.kd vf/kdkjh dks jkT; ljdkj }kjk
le;≤ ij fu/kkZfjr osrueku] HkRrs ,oa vU; lqfo/kk,a nsuk vko’;d gSA
¼laLFkk dks vukifRRk izek.k i=½ nsus ls igys bl fo”k; ds opu ca/k nsuk
vko’;d gksxkA
uksV%& deZpkfj;ksa ds [kkrs esa tek ;ksX; pSd ls eghus dh lekfIr ds i’pkr~
vxys ekg dh 5 rkjh[k ls iwoZ lank; djuk vko’;d gksxkA
mijksDr izko/kku dks vuqnku izkIr xSj ljdkjh laLFkkvksa ds fy, fu;e 34 ls
foHksn fd;k tkuk vko’;d gSA fu;e 34 fu;ekuqlkj gS%&
34- osru vkSj HkRrs%& lgk;rk izkIr ‘kSf{kd laLFkkvksa ds deZpkfj;ksa ds osrueku
vkSj HkRrs] ljdkjh ‘kSf{kd laLFkkvksa esa oSls gh izoxZ ds deZpkfj;ksa ds fy, ljdkj
}kjk fofgr osrueku vkSj HkRrksa ls de ugha gksaxsA
Li”Vhdj.k%& **HkRrs** ls vfHkizsr gS vkSj blesa lfEefyr gS] egaxkbZ HkRrk] x`g
fdjk;k HkRrk vkSj ‘kgjh {kfriwfrZ HkRrkA
mijksDr izkIr nksuksa izko/kkuksa dks ,d lkFk djus ls Li”V gksxk dh vuqnku izkIr
xSj ljdkjh laLFkkvksa ds deZpkfj;ksa o f’k{kdksa ds fy, osrueku] egaxkbZ HkRrk]
x`g fdjk;k HkRrk ,oa ‘kgjh {kfriwfrZ HkRrk ds fy, ;g oS/kkfud :i ls izkof/kr
dj fn;k x;k gS fd ,sls deZpkfj;ksa ds osrueku o HkRrs ljdkjh ‘kSf{kd laLFkkvksa
ds oSls gh izoxZ ds deZpkfj;ksa ds osrueku o HkRrksa ls de ugha gksaxs] ysfdu xSj
ljdkjh] xSj vuqnkfur laLFkkvksa ds fy, ;g ‘krZ ugha j[kh xbZ gS fd xSj
ljdkjh] xSj vuqnkfur laLFkkvksa ds fy, ekU;rk dh ‘krksZa ds :i esa ;gha O;oLFkk
dh xbZ gS] fd muds fy, ljdkj ds fu;eksa ds vuqlkj osru] egaxkbZ HkRrk ,oa
Hkfo”; fuf/k lqfo/kk miyC/k djkbZ tk;sxhA jkT; ljdkj us vHkh rd bl laca/k
esa dksbZ fu;e ugha cuk, gSA vr% ;g Li”V fd;k tkrk gS fd xSj ljdkjh] xSj
vuqnkfur f’k{k.k laLFkkvksa ds f’k{kdksa o deZpkfj;ksa dks jktdh; f’k{kdksa o
deZpkfj;ksa ds leku osru] egaxkbZ HkRrk o Hkfo”; fuf/k lqfo/kk,a fn;k tkuk
vfuok;Z ugha gS] ,slh laLFkk o muds f’k{kd rFkk deZpkjh jkT; ljdkj }kjk
fu;e cuk, tkus rd osru] egaxkbZ HkRrs bR;kfn ds laca/k esa vkilh vuqca/k ds
vk/kkj ij vius osru rFkk HkRrs r; djus ds fy, Lora= gSaA
mijksDr fLFkfr ds e/; utj j[krs gq, vkidks funsZf’kr fd;k tkrk gS fd bl
vk/kkj ij xSj ljdkjh] xSj vuqnkfur laLFkkvksa dks ekU;rk fn;s tkus ls badkj
ugha fd;k tkuk pkfg,A**
24. In the case of Adarsh Vidya Mandir Samiti (supra)
Division Bench of this Court has already examined the provisions
of the Act of 1989, Rule 34 as well as Entry-14 of Appendix-II and
Circular/Order dated 29.07.1998.
25. After considering the aforesaid provisions and
documents, following observation has been given by the Division
Bench of this Court in case of Adarsh Vidya Mandir Samiti,
Bharatpur & Anr. Vs. Raju Lal & Ors. (D.B. Civil Special
Appeal No. 665/2004):-
“17. The Circular dated 29.07.1998 issued by the State
Government is self explanatory and needs no further
clarification that the scale of pay and allowances as
admissible to the employees of the Government
institution are applicable to the employees of the aided
institutions alone and no parity of scale of pay can be
claimed by the employees of unaided institution under
the scheme of the Act of 1989 and Rules 1993. It is true(Downloaded on 18/08/2025 at 10:02:16 PM)
[2025:RJ-JP:30362] (13 of 25) [CW-2071/2003]that learned Single Judge of this Court in CWP No.
3893/1995 decided on 29.05.1997 held that even the
untrained teacher of unaided institution is entitled for
scale of pay and allowances similar to the employees of
the Government institution and the Division Bench has
dismissed the appeal preferred by the management but
it appears from the perusal of the order of Division
Bench that the scheme of the Act 1989 and Rule 1993
framed thereunder a not brought to their notice as
reflected from the order dated 24.02.2002 passed in
D.B. Civil Special Appeal No. 302/2002.
20.The Apex Court in its judgment reported in
Sushmita Basu referred to supra observed that the
private schools cannot be compelled to pay salary to the
teachers equal to the government school teachers for
want of any rules and after the Scheme of Act 1989 and
Rules 1993 framed thereunder as have been examined
in its terms we do not find that there is any provision
which mandates the scale of pay & allowances of
recognized unaided institution has to be in parity to the
employees of govt. institution and it will be appropriate
to quote extract of judgment ad infra:
3. It was mainly complaining about the refusal of the
management to implement the recommendations of the
Third Pay Commission with effect from 01.01.1988
retrospectively, that the teachers went to court. We
asked learned Senior Counsel for the appellants as to
whether there was any Act, statutory rule or even
Government Order directing private unaided
educational institutions to implement the
recommendations of the Third Pay Commission
especially in the context of the fact that the salaries
and emoluments of teachers of private unaided
institutions was not a subject matter of reference to the
Third Pay Commission. Learned Counsel fairly
submitted that there was no statutory provision, Rule
or binding Order, but referred to the decision of this
Court in Frank Anthony Public School Employees’
Association v. Union of India, (1986) 4 SCC 707 :
(1987) 1 SCR 238 and submitted that the principle
recognized therein should be applied to teachers like
the appellants as well. Learned Counsel conceded that
there was no provision corresponding to Section 10 of
the Delhi School Education Act, 1973 in the Bengal Act.
But the submission was that the appellants were
approved teachers and they were also doing the same
work as teachers of government schools and aided
schools and in the circumstances ‘equal pay for equal
work’ principle could be directed to be implemented and
in that context the appellants could be granted relief.
This was met by learned Senior Counsel appearing for
the respondents by pointing out that the institution had
not only implemented the recommendations of the
Third Pay Commission but has also implemented the
recommendations of the Fourth and Fifth Pay
(Downloaded on 18/08/2025 at 10:02:16 PM)
[2025:RJ-JP:30362] (14 of 25) [CW-2071/2003]
Commissions, though it was not bound to do so and
there could be no grievance that teachers are being
paid salaries that are not comparable with that of the
teachers of government schools and aided schools.
With reference to the pleadings, it was pointed out by
the learned Senior Counsel that the teachers of the first
respondent-Institution, in fact, were enjoying some
additional benefits which are not available to teachers
of government institutions and aided institutions. It was
also pointed out that out of the very many teachers in
the school, only three of them, the appellants before
us, have refused to enter into an agreement with the
First Respondent and as observed by this Court in
Reserve Bank of India v. C.N. Sahasranaman, (1986) II
LLJ 316 SC, the fact that a few are not satisfied, is no
ground for interference by court or for grant of relief in
their favour when by and large the position adopted by
the institution is found to be fair and just and is
accepted by all other teachers. We find considerable
merit in the submissions on behalf of the respondents.
In the absence of a statutory provision, we are not in a
position to agree with learned Counsel for the
appellants that interference by the High Court under
Article 226 of the Constitution is warranted in this case.
We find on the whole that there has been just
treatment of the teachers by the first respondent.
Institution and there is no reason to interfere even on
the ground that the appellants are being treated
unfairly by their employer, the educational institution,
or on the basis that this is a case in which the
conscience of the court is shocked, compelling it to
enter the arena to afford relief to the teachers.
4. In this context, we must also notice that the Writ
Petition in the High Court is filed for the issue of a writ
of mandamus directing a private educational institution
to implement the recommendations of the Third Pay
Commission including their implementation with
retrospective effect. Even the decision relied on by
learned Counsel for the appellants, namely, K.
Krishnamacharyulu v. Shri Venkateswara Hindu
College of Engineering, (1997) 3 SCC 571 : (1997)
2 SCR 368 shows that interference under Article 226 of
the Constitution of India to issue a writ of mandamus
by the court against a private educational institution
like the first respondent herein, would be justified only
if a public law element is involved and if it is only a
private law remedy no Writ Petition would lie. We think
that even going by the ratio of that decision, a writ of
mandamus could not have been issued to the first
respondent in this case.
5. We must remember that the profession of teaching is
a noble profession. It is not an employment in the
sense of it being merely an earner of bread and butter.
A teacher fulfils a great role in the life of the nation. He
is the ‘guru’. It is the teacher, who moulds its future
(Downloaded on 18/08/2025 at 10:02:16 PM)
[2025:RJ-JP:30362] (15 of 25) [CW-2071/2003]
citizens by imparting to his students not only
knowledge, but also a sense of duty, righteousness and
dedication to the welfare of the nation, in addition to
other qualities of head and heart. If teachers clamour
for more salaries and perquisites, the normal
consequence in the case of private educational
institutions, if the demand is conceded, would be to
pass on the burden to the students by increasing the
fees payable by the students. Teachers must ask
themselves whether they should be the cause for
putting education beyond the ken of children of parents
of average families with average income. A teacher’s
profession calls for a little sacrifice in the interests of
the nation. The main asset of a teacher is his students
former and present. Teachers who have lived up to
ideals are held in great esteem by their disciples. The
position of the Guru, the teacher, in our ethos is equal
to that of God (Matha Pitha Guru Daivam). The
teachers of today must ensure that this great Indian
concept and the reverential position they hold, is not
sacrificed at the altar of avarice”
21. However, Hon’ble Apex Court in its latter judgment
reported in 2011 (4) SCT 1 Satimbla Sharma v. St. Paul
Sr. Secondary School taking note of Sushmita Basu
observed that no mandamus can be issued to the
respondents regarding scale of pay & allowances on the
ground that the conditions of affiliation/recognition of
schools has not been carried out and observed ad infra:
13. We cannot also issue a mandamus to Respondent
Nos. 1 and 2 on the ground that the conditions of
provisional affiliation of schools prescribed by the
Council for the Indian School Certificate Examinations
stipulate in Clause (5)(b) that the salary and
allowances and other benefits of the staff of the
affiliated school must be comparable to that prescribed
by the State Department of Education because such
conditions for provisional affiliation are not statutory
provisions or executive instructions, which are
enforceable in law. Similarly, we cannot issue a
mandamus to give effect to the recommendations of
the report of Education Commission 1964-66 that the
scales of pay of school teachers belonging to the same
category but working under different managements
such as government, local bodies or private
managements should be the same, unless the
recommendations are incorporated in an executive
instruction or a statutory provision. We, therefore,
affirm the impugned judgment of the Division Bench of
the High Court”.
22. In the instant Scheme of Rule 1993 Schedule 2 on
which emphasis was made by the counsel for
respondent appended to R. 5(1) of the Rules Para 14
suffice it to say that the State Government has
highlighted for making payment of scale of pay &
(Downloaded on 18/08/2025 at 10:02:16 PM)
[2025:RJ-JP:30362] (16 of 25) [CW-2071/2003]
allowances for recognized institution as per rules of the
state govt. but as noticed there are no rules to this
effect framed by the state government so far
prescribing scale of pay & allowances for employees of
unaided educational institution and what being urged
by counsel for respondent if still has been violated it
may be within the institution and the state government
but employee of unaided institution cannot seek
mandamus regarding scale of pay & allowances equal
to and in parity to the employees of government
institution more so when the legislature has confined as
regards scale of pay & allowances of employees of the
aided institution similar to the employees of govt.
institution but we make it further clear that for other
purpose as regards recruitment, recognition, condition
of service, leave, accounts & audit, conduct &
discipline, constitution of managing committee etc. the
legislative in its wisdom has put its control over the
recognized institutions irrespective of the fact whether
the institution is aided or unaided but in the instant
matter scale of pay & allowances is the subject mater in
our considered view under the Scheme of Act 1989 &
Rules 1993 it is confined to the employees of non govt.
aided institution and not for the employees of non
government recognized unaided institutions.
23. As regards judgment on which learned single Judge
has placed reliance of the Apex Court in (1997) 3 SCC
571 : AIR 1998 SC 295 it was based on principles of
equal pay for equal work enshrined in Art. 39(d) of the
Constitution but that could always be referred in
reference to the scope of the relevant Act and Rules
framed thereunder but under the present Scheme of
the Act 1989 & Rules 1993 it does not provide scale of
pay & allowance to such of the employees of the
unaided institution and the teacher of unaided
institution cannot seek mandamus in isolation u/Art.
39(d) of the Constitution and parity with the employees
of the govt. institution and apart from it the respondent
employee was an untrained teacher and there is no
provision under the Scheme of govt. rules to recruit
untrained teacher and the fact is that the government
does not recognize untrained teacher in its
establishment and under these facts and circumstances
parity even otherwise cannot be claimed by the
respondent employee for scale of pay & allowances
admissible to the employee of the government
institution as prayed for and accordingly, in our
considered view the judgment of the learned single
Judge and so also of the Educational Tribunal are not
legally sustainable.”
26. The judgment of K. Krishnamacharyulu
(supra) as referred by the petitioner has been considered by the
(Downloaded on 18/08/2025 at 10:02:16 PM)
[2025:RJ-JP:30362] (17 of 25) [CW-2071/2003]
Hon’ble Supreme Court in the case of Sushmita Basu (supra)
and it has been held as under:
“3.It was mainly complaining about the refusal of the
management to implement the recommendations of the
Third Pay Commission with effect from 1-1-1988
retrospectively, that the teachers went to court. We
asked the learned Senior Counsel for the appellants as
to whether there was any Act, statutory rule or even
government order directing private unaided educational
institutions to implement the recommendations of the
Third Pay Commission especially in the context of the
fact that the salaries and emoluments of teachers of
private unaided institutions were not the subject-matter
of reference to the Third Pay Commission. Learned
counsel fairly submitted that there was no statutory
provision, rule or binding order, but referred to the
decision of this Court in Frank Anthony Public
School Employees’ Assn. v. Union of India
[(1986) 4 SCC 707 : (1987) 2 ATC 35 : (1987) 1
SCR 238] and submitted that the principle recognised
therein should be applied to teachers like the appellants
as well. Learned counsel conceded that there was no
provision corresponding to Section 10 of the Delhi
School Education Act, 1973 in the Bengal Act. But the
submission was that the appellants were approved
teachers and they were also doing the same work as
teachers of government schools and aided schools and
in the circumstances “equal pay for equal work”
principle could be directed to be implemented and in
that context the appellants could be granted relief. This
was met by the learned Senior Counsel appearing for
the respondents by pointing out that the institution had
not only implemented the recommendations of the
Third Pay Commission but has also implemented the
recommendations of the Fourth and Fifth Pay
Commissions, though it was not bound to do so and
there could be no grievance that teachers are being
paid salaries that are not comparable with that of the
teachers of government schools and aided schools.
With reference to the pleadings, it was pointed out by
the learned Senior Counsel that the teachers of the first
respondent institution, in fact, were enjoying some
additional benefits which are not available to teachers
of government institutions and aided institutions. It was
also pointed out that out of the very many teachers in
the school, only three of them, the appellants before
us, have refused to enter into an agreement with the
first respondent and as observed by this Court in
Reserve Bank of India v. C.N. Sahasranaman
[1986 Supp SCC 143 : 1986 SCC (L&S) 547 :
(1986) 2 SCR 881] the fact that a few are not
satisfied, is no ground for interference by court or for
grant of relief in their favour when by and large the(Downloaded on 18/08/2025 at 10:02:16 PM)
[2025:RJ-JP:30362] (18 of 25) [CW-2071/2003]position adopted by the institution is found to be fair
and just and is accepted by all other teachers. We find
considerable merit in the submissions on behalf of the
respondents. In the absence of a statutory provision,
we are not in a position to agree with learned counsel
for the appellants that interference by the High Court
under Article 226 of the Constitution is warranted in
this case. We find on the whole that there has been just
treatment of the teachers by the first respondent
institution and there is no reason to interfere even on
the ground that the appellants are being treated
unfairly by their employer, the educational institution,
or on the basis that this is a case in which the
conscience of the court is shocked, compelling it to
enter the arena to afford relief to the teachers.
4. In this context, we must also notice that the writ
petition in the High Court is filed for the issue of a writ
of mandamus directing a private educational institution
to implement the recommendations of the Third Pay
Commission including their implementation with
retrospective effect. Even the decision relied on by
learned counsel for the appellants, namely, K.
Krishnamacharyulu v. Sri Venkateswara Hindu
College of Engg. [(1997) 3 SCC 571 : 1997 SCC
(L&S) 841 : (1997) 2 SCR 368] shows that
interference under Article 226 of the Constitution of
India to issue a writ of mandamus by the Court against
a private educational institution like the first respondent
herein, would be justified only if a public law element is
involved and if it is only a private law remedy no writ
petition would lie. We think that even going by the ratio
of that decision, a writ of mandamus could not have
been issued to the first respondent in this case.
27. The aforesaid judgment of K. Krishnamacharyulu
(supra) has also been considered by the Hon’ble Supreme Court
in another judgment of Satimbla Sharma (supra) where after
examining the earlier judgments, the Hon’ble Supreme Court has
held as under:
“13. We cannot also issue a mandamus to respondent
Nos. 1 and 2 on the ground that the conditions of
provisional affiliation of schools prescribed by the
Council for the Indian School Certificate Examination
stipulate in clause (5)(b) that the salary and allowances
and other benefits of the staff of the affiliated school
must be comparable to that prescribed by the State
Department of Education because such conditions for
provisional affiliation are not statutory provisions or
executive instructions, which are enforceable in law.
Similarly, we cannot issue a mandamus to give effect to
the recommendations of the report of Education(Downloaded on 18/08/2025 at 10:02:16 PM)
[2025:RJ-JP:30362] (19 of 25) [CW-2071/2003]Commission 1964-66 that the scales of pay of school
teachers belonging to the same category but working
under different managements such as Government,
local bodies or private managements should be the
same, unless the recommendations are incorporated in
an executive instruction or a statutory provision. We,
therefore, affirm the impugned judgment of the
Division Bench of the High Court.”
28. The Division Bench of this Court in the case of
Managing Committee, Tegor Bal Niketan Samiti (supra)
after considering the judgment of T.M.A. Pai Foundation
(supra) and K. Krishnamacharyulu, as referred by the
petitioner has held that Unaided Private Educational Institution are
not obligated to pay their employees the same salary and
allowances as those provided to the employees in Government or
aided institutions. The relevant paras are reproduced hereunder:-
“10. In Satimbla Sharma (Supra), while dealing with
a controversy arising out of a similar factual matrix, the
Hon’ble Apex Court held that private unaided minority
schools/institutes are not under any duty to ensure
equal pay for equal work. The relevant extract is
reproduced herein-under:–
“.We also do not think that the Court could issue a
mandamus to a private unaided school to pay the
salary and allowances equal to the salary and
allowances payable to teachers of Government schools
or Government aided schools. This is because the
salary and allowances of teachers of a private unaided
school is a matter of contract between the school and
the teacher and is not within the domain of public law.
11. Similarly, in Adarsh Vidya Mandir Samiti (Supra),
while dealing with a similar controversy, the Division
Bench of this Court held as under:
“14. From the relevant provisions of the Act & Rules
referred to, it envisages that Section 16 of the Act of
1989 while regulates the recruitment and conditions of
service, including qualifications, pay, gratuity, insurance
etc. of aided institutions in the State and at the same
time Section 29 further mandates that the scales of pay
and allowances except compensatory allowances shall
be admissible to the employees of the aided institution
which may not be less than those prescribed for the
staff belonging to similar categories in Government
institution and Section 31 ensures regarding payment
of salary to the employees of aided institutions and if
Section 16 and Section 29 with Section 31 are read(Downloaded on 18/08/2025 at 10:02:16 PM)
[2025:RJ-JP:30362] (20 of 25) [CW-2071/2003]conjointly it makes explicitly clear that while the State
regulate the terms and conditions of employment of
recognized institution but the State intends to ensure
the scale of pay & allowances for employees of aided
institutions which may not be less than those
prescribed for employees of Govt. institutions and at
the same time, the rules were framed by the State
Government in exercise of power conferred by sec. 43
of the Act, 1989 regulating the recognition, grant-in-aid
and service conditions etc. of the Non-Government
Educational Institutions for better implementation and
for giving effect to the provisions of the Act in
furtherance thereof the State Govt. intended to monitor
and lay down procedure for recognition of the
institution and to regulate their grant-in-aid, accounts,
audit and general conditions of service which includes
recruitment, disciplinary enquiries and the procedure to
be adopted for inflicting penalty and at the same time
for meeting out the removal of difficulties R. 93 take
note of doubts arising in regard to interpretation of any
of the provisions of the Scheme of rules or their
applicability, the State Govt. reserves its authority and
its decision is final, however, for recognition of an
institution the procedure has been provided in Schedule
2 to R. 5(1) of Rules, 1993 which indicates various
requirement for an educational institution to comply
with for grant of recognition of a Non Govt. institution
and Clause 14 relates to pay and allowances to be paid
as per the Government rule but no such rules if any
framed by the State Govt. regarding payment of scale
of pay to the employees of a recognized unaided
institution has been placed before the Court. However,
the provisions of the Act, 1989 and Rules, 1993 framed
thereunder clearly mandates such scale of pay and
allowances are payable to the employee of aided
institution which shall not be less than those prescribed
for the staff belonging to similar category in the Govt.
institution. Relevant Para 14 of Schedule 2 appended to
Rules, 1993 reads ad infra.
22. In the instant Scheme of Rule 1993 Schedule 2 on
which emphasis was made by the counsel for
respondent appended to R. 5(1) of the Rules Para 14
suffice it to say that the State Government has
highlighted for making payment of scale of pay &
allowances for recognized institution as per rules of the
State Govt. but as noticed there are no rules to this
effect framed by the State Government so far
prescribing scale of pay & allowances for employees of
unaided educational institution and what being urged by
counsel for respondent if still has been violated it may
be within the institution and the State Government but
employee of unaided institution cannot seek mandamus
regarding scale of pay & allowances equal to and in
parity to the employees of Government institution(Downloaded on 18/08/2025 at 10:02:16 PM)
[2025:RJ-JP:30362] (21 of 25) [CW-2071/2003]moreso when the legislature has confined as regards
scale of pay & allowances of employees of the aided
institution similar to the employees of Govt. institution
but we make it further clear that for other purpose as
regards recruitment, recognition, condition of service,
leave, accounts & audit, conduct & discipline,
constitution of managing committee etc. the legislative
in its wisdom has put its control over the recognized
institutions irrespective of the fact whether the
institution is aided or unaided but in the instant matter
scale of pay & allowances is the subject-matter in our
considered view under the scheme of Act, 1989 & Rules,
1993 it is confined to the employees of Non Govt. aided
institution and not for the employees of Non-
Government recognized unaided institutions.
12. Identically, in Rekha Devani (Supra), the Division
Bench of this Court held that the employees of private
unaided institutions are not entitled to claim pay equal
to those in Government or aided institutions, as
unaided institutions are not state and therefore, they
are not bound by the principle of equal pay for equal
work. The relevant extract is reproduced herein-under:
“10. From the reading of the above-quoted Sections 16
and 29 of the Act, 1989 it becomes clear that the State
Government is empowered to regulate the recruitments
and conditions of service including pay etc. of persons
appointed as employees of only aided institutions in the
State. And that scales of pay and allowances except
compensatory allowances with respect to all the
employees of an aided institutions only shall not be less
than those prescribed for the staff pertaining to similar
categories in Government institutions. In the result, the
Management of an unaided educational institution is
not under a statutory obligation to pay its employees
the same scale of pay which employees of similar
categories in Government institutions or aided
institutions are being paid. In the case of Satimbla
Sharma (supra), exactly the same controversy was
dealt with by the Supreme Court and it held that
unaided private schools are not State within the
meaning of Article 36 read with Article 12 of the
Constitution and as the obligation to ensure equal pay
for equal work in Article 39(d) is on the State, a private
unaided minority school (educational institution) is not
under any duty to ensure equal pay for equal work. The
Supreme Court also took note of the fact that
employees of Government educational institutions are
paid out of Government funds and the employees of
Government aided educational institutions are paid
mostly out Government funds whereas the employees
of private unaided educational institutions are paid out
of the fees and other resources of such institutions. In
this case, the Supreme Court has also held that
decision in Frank Anthony Public School Employees(Downloaded on 18/08/2025 at 10:02:16 PM)
[2025:RJ-JP:30362] (22 of 25) [CW-2071/2003]Association (supra), does not assist similarly situated
appellants in any manner because the guarantee of
equality is not available against unaided private school
(educational institute). The Supreme Court has also
clarified that Courts cannot issue a mandamus to a
private unaided school to pay salary and allowances
equal to the salary and allowances payable to similarly
situated employees of Government schools or
Government aided schools because salary and
allowances of employees of private unaided schools is a
matter of contract between the school and employees
and is not within the domain of public law.”
13. Therefore, relying upon the observations made
herein-above, it is noted that the petitioner-appellant is
an unaided institution as per the Act of 1989. Thus, no
employee therein can claim parity with employees
serving in Government institutions in wake of Section
29 of the Act of 1989 read with Rule 34 of the Rules of
1993. Moreover, in the facts of the present case, owing
to the unaided nature of the institute, the services of
the respondent-employee are to be governed by the
terms of contract/agreement executed on 25.03.1996.
In this regard, reliance can be placed on the dictum of
the Hon’ble Apex Court as enunciated in T.M.A. Pai
Foundation v. State of Karnataka, (2002) 8 SCC 481
wherein it was held that in cases of private institutions,
the relationship between the management and the
employees is contractual in nature. Hence, the
respondent-employee cannot claim beyond the
stipulated terms of the contract which provide pay scale
of 2,200-4,000 with admissible Dearance Allowance
only. Consequentially, the respondent-employee is not
entitled for revision of the pay-scale to its
corresponding fixation in the Vth Pay Commission for
the reason that there is no provision in the
agreement/contract for revision of the same, and the
said agreement has been duly signed by the
respondent-employee.”
29. The Co-ordinate Bench of this Court in the case of
Kamla Bai (supra) has held as under:
“5. The perusal of the provisions quoted above reveals
its applicability to the aided institution in the State. The
State Government is having powers to regulate the
terms and conditions of employment of aided institution
of the State as per Section 16 of the Act of 1989 and as
per Section 29 of the Act of 1989, pay and allowances
of the employee of aided institution should not be less
than prescribed for the State employees belonging to
similar categories to the government institution. The
respondent No.3 is a private institution and not an
aided institution.
(Downloaded on 18/08/2025 at 10:02:16 PM)
[2025:RJ-JP:30362] (23 of 25) [CW-2071/2003]
6. The question comes as to whether a declaration can
be given by the High Court contrary to statutory
provisions. Sections 16 and 29 of the Act of 1989 are
specific and applies only to aided institution whereas
declaration is sought to apply Sections 16 and 29 of the
Act of 1989 to the unaided institution. If declaration is
given then it would amount to rewriting provision of law
and thereby, legislating he law, which is within the
competence of legislature only. The Hon’ble Apex Court
in the case of Frank Anthony Public School Employees’
Association (supra) has given following direction in para
No.21, which is quoted hereunder for ready reference:
“21. The result of our discussion is that Section 12 of
the Delhi School Education Act which makes the
provision of Chapter IV inapplicable to unaided
minority institutions is discriminatory and void except
to the extent that it makes Section 8(2) inapplicable to
unaided minority institutions. We, therefore, grant a
declaration to that effect and direct the Union of India
and the Delhi Administration and its officers, to enforce
the provisions of Chapter IV (except ‘Section 8(2) in
the manner provided in the Chapter in the case of the
Frank Anthony Public School. The management of the
school is directed not to give effect to the orders of
suspension passed against the members of the staff.”
8. I find that said judgment was considered later on by
the Hon’ble Apex Court in the case of Satimbla
Sharma & Ors. v. St. Paul‘s Senior Secondary
School & Ors. reported in (2011) 13 SCC 760.
Therein, it was held that Court cannot issue a
mandamus to a private unaided school to pay salary
and allowances equal to the salary and allowances
payable to the teachers of government school or
government-aided schools. It was also held that where
the statutory provision casts a duty on a private
unaided school to pay the same salary and allowances
to its teachers as are being paid to teachers of
government-aided schools, then a writ of mandamus
can be issued. In the instant case, prayer is for
application of Sections 16 and 29 of the Act of 1989 on
the unaided institution, though not applicable as per
the said provision. Relevant paras of the judgment in
the case of St. Paul’s Senior Secondary School & Ors.
(supra) are quoted hereunder for ready reference:
“23.We also do not think that the Court could issue a
mandamus to a private unaided school to pay the
salary and allowances equal to the salary and
allowances payable to teachers of Government schools
or Government aided schools. This is because the
salary and allowances of teachers of a private unaided
school is a matter of contract between the school and
the teacher and is not within the domain of public law.
24. In Sushmita Basu and Ors. v. Ballygunge
Siksha Samity and Ors. the teachers of a recognized
private school known as Ballygunge Siksha Sadan in(Downloaded on 18/08/2025 at 10:02:16 PM)
[2025:RJ-JP:30362] (24 of 25) [CW-2071/2003]Calcutta filed a Writ Petition in the High Court of
Calcutta praying for issuance of writ of mandamus
directing the authorities of the school to fix the salary
of teaching and non-teaching staff of the school and to
remove all anomalies in the scales of pay as
recommended by the Third Pay Commission as
extended to other Government aided schools and
Government schools and this Court held that in the
absence of statutory provision no such direction can be
issued by the High Court under Article 226 of the
Constitution.
25. Where a statutory provision casts a duty on a
private unaided school to pay the same salary and
allowances to its teachers as are being paid teachers of
Government aided schools, then a writ of mandamus to
the school could be issued to enforce such statutory
duty. But in the present case, there was no statutory
provision requiring a private unaided school to pay to
its teachers the same salary and allowances as were
payable to teachers of Government schools and
therefore a mandamus could not be issued to pay to
the teachers of private recognized unaided schools the
same salary and allowances as were payable to
Government institutions.
26. In K. Krishnamacharyulu and Ors. vs. Sri
Venkateswara Hindu College of Engineering and
Anr. (supra), relied upon by the learned Counsel for
the Appellants, executive instructions were issued by
the Government that the scales of pay of Laboratory
Assistants as non teaching staff of private colleges shall
be at par with the government employees and this
Court held that even though there were no statutory
rules, the Laboratory Assistants as non-teaching staff of
private college were entitled to the parity of the pay-
scales as per the executive instructions of the
Government and the writ jurisdiction of the High Court
under Article 226 of the Constitution is wide enough to
issue a writ for payment of pay on par with government
employees. In the present case, there are no executive
instructions issued by the Government requiring private
schools to pay the same salary and allowances to their
teachers as are being paid to teachers of Government
schools or Government aided schools.
12. In the light of the discussion made above, the
declaration sought to apply to Sections 16 and 29 of
the Act of 1989 to even unaided institution cannot be
accepted. It goes against the statutory provision. The
writ petition is dismissed accordingly.”
30. After analyzing the aforesaid provisions of the Act of
1989 and the Rules 1993 as well as in the light of aforesaid
precedential law, this Court is of the considered view that the
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[2025:RJ-JP:30362] (25 of 25) [CW-2071/2003]
employees of unaided recognized institutions are not entitled for
the same pay and allowances equal to the pay and allowances
admissible to the same category of the staff in Government-
Educational Institutions. Thus, learned Tribunal has committed no
mistake whatsoever in rejecting the application filed by the
petitioner view order dated 12.09.2002.
31. Resultantly, the writ petition filed by the petitioner is
hereby dismissed on account of being meritless and devoid of any
substance.
(ANAND SHARMA),J
NEERU /14
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