Supreme Court of India
STATE OF HIMACHAL PRADESHversusH.P. STATE RECOGNISED AND AIDED SCHOOLS MANAGING COMMITTEES AND ORS.
- Citation
- 1995 INSC 359
- Decided
- 10 May 1995
- Disposal
- Dismissed
- Bench
- KULDIP SINGH
Holding
Teachers in recognised private aided schools are entitled to the same pay scales as government school teachers, and the State must provide grant‑in‑aid up to 95% of net approved expenditure, removing the arbitrary maximum limit.
Summary
The teachers of recognised private aided schools in Himachal Pradesh filed a writ petition seeking salary parity with government school teachers and a 95% grant‑in‑aid for their schools. The State argued that its financial capacity did not permit such disbursement and relied on a statutory maximum limit on the grant. The High Court directed the State to pay the 95% grant‑in‑aid from February 1988, which the State appealed to the Supreme Court. The Supreme Court held that, because the aided schools are under extensive State control and follow the same curriculum and regulations as government schools, their teachers are entitled to the same pay scales, and the statutory maximum limit on grant‑in‑aid is arbitrary and contrary to the Kothari Commission recommendations. Consequently, the Court modified the High Court order, directing the State to provide the enhanced grant‑in‑aid effective from 1 April 1993. The State's appeal was dismissed.
Issues considered
- Whether teachers employed in recognised private aided schools are entitled to parity in pay and allowances with teachers in government schools.
- Whether the aided schools are entitled to receive grant‑in‑aid covering 95% of their net approved expenditure, notwithstanding the statutory maximum limit.
Legislation cited
- Constitution of Indias. Art.21, s. Art.41, s. Art.45, s. Art.46
Subjects
parity in paygrant-in-aidright to educationconstitutional obligationHimachal Pradesh Education Codeprivate aided schoolsfinancial capacity
Judgment
STATE OF HIMACHAL PRADESH A
v.
H.P. STATE RECOGNISED AND AIDED SCHOOLS MANAGING
COMMITTEES AND ORS.
MAY 10, 1995
B
[KULDIP SINGH, R.M. SAHA! AND B.L. HANSARIA, JJ.]
Himachal Pradesh Education Code-Grant-in-aid Rules: Rules 45(Q),
45(1) and 47(2).
c
State of Himachal Pradesh-Recognised private aided schools-Grant-
in-aid-Prescription of maximum limit-Held contrary to rules-Schools held
entitled to full grant-in-aid i.e. 95% of the net approved expenditure.
•
Recognised and private aided schools-Teachers of-Held entitled to
parity in pay scales with their counterpaTts in Government schools. D
Constitution of India, 1950: Altic/es 21, 41, 45 and 46.
Free and compulsory education to children upto the age of 14
years-State's obligation-Held cannot be circumvented on the ground of
economic incapacity-State must endeavour to review and increase the budget E
allocation under the Head 'Education'.
The respondents-teachers, employed in various recognised aide
schools maintained by private managements, filed a writ petition in the
High Court seeking directions that (i) they are entitled to parity in the
matter of salary, allowances etc. with the teachers employed in the Govern- F
ment schools and (ii) the State Government shall pay grant-in-aid to meet
95% of the expenditure incurred by the aided schools. The State contested
the petition on the ground that its economic capacity does not permit the
disbursement of full grant as envisaged under the scheme of the Rules.
The High Court allowed the petition and directed the appellant-State to G
pay 95% grant-in-aid with effect from February, 1988.
In appeal to this Court on the questions :
(i) Whether· the teachers employed in various recognised aided
private schools in the State of Himachal Pradesh are entitled H
297
298 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.
A to the pay scales which are paid to their counter-parts in the
Government Schools?
(ii) Whether such schools are entitled to receive grant-in-aid to
meet 95% of the net approved expenditure?
B Dismissing the State's appeal and modifying the High Court's judg-
ment, this Court
HELD : l. The aided schools teach the same syllabus and cur-
riculum, prescribe the books and courses as per Government directions
C and prepare the students for same examinations for which the students
studying in government schools are prepared. The qualifications of the
teachers are prescribed by the State Government and the appointments
are made with the approval of the State Government. The fees levied and
concessions allowed are strictly in accordance with the instructions issued
by the Education Department of the State Government from time to time.
D The Managing Committees of aided schools are approved by the State
Government and two members of the Committee are appointed by the
Education Department. The service conditions of the teachers including
disciplinary proceedings and award of punishment etc. are governed by the
Rules framed by the State Government. Thus, the State Government has
E a deep and pervasive control on the aided schools. It is, therefore, late in
the day to say that the teachers in the aided schools are not entitled to
parity in the matter of salary, allowances etc. with their counter-parts in
the Government schools. [302-H, 303-A·C, 304-B]
Haryana State Adhyapak Sangh and Ors. Etc. v. State of Haryana and
F Ors., [1988] Suppl. 1 SCR 682 and Haryana State Adhyapak Sangh and Ors.
v. State of Haryana and Ors., AIR (1990) SC 968, relied on.
2. Rule 4S(J) and 4S(Q) of the Grants-in-Aid Rules are the two
conditions on the basis of which grant-in-aid is given to the aided schools.
With an income of their own to contribute towards 5 per cent of the net
G expenditure, the managements of the aided schools cannot, ordinarily,
bear the burden of the salary, allowances etc. to be paid to the teachers
and other staff. The grant-in-aid must be sufficient to meet the net ap-
proved expenditure incurred by the management of the aided schools. Rule
47(2) of the Rules specifically provides that the management of the aided
H schools shall be required to meet 5 per cent of the net approved expendi-
STATE OF H.P. v. H.P. STATE RECOGNISED AND AIDED SCHOOLS 299
ture and the balance shall be met from the Government grant, but at the A
same time it further provides that the grant as assessed shall be admis-
sible subject to the maximum amount sho"Ml in the said rule. The provision
regarding "maximum - admissible grant" goes contrary to the scheme of
the rules and also to the recommendations of the Kothari Commission.
With the aforesaid limit, the aided schools cannot secure parity with the B
Government schools in the matter of payment of salaries. The High Court
was right in taking the view that the imposition of the maximum limit for
the disbursement of grant-in-aid to the respondents was arbitrary and
unjustified. The High Court judgment is modified to the extent that the
enhanced grant-in-aid be paid to the aided schools with effect from April
1, 1993. (304-E-G, 308-B] C
3. Right to education is a fundamental right guaranteed under Part
Ill read with Part IV of the Constitutio'n of India. The State is under an
obligation to provide free education to the children upto the age of four-
teen. Judicial notice is taken of the fact that, ordinarily, a childin this D
country joins schools at the age of five years. All the children studying in
the middle schools would be less than fourteen. Therefore, the State
Government is under an obligation to provide free education to the
children studying in the 144 non-Government schools. The constitutional
mandate to the State - to provide free education to the children upto the E
age of fourteen - cannot be permitted to be circumvented on the ground of
lack of economic capacity or financial incapacity. (307-A-DJ
Mohini Jain v. State of Karnataka and Ors., [1992) 3 SCC 666 and
Unni Krishnan J.P. & Ors. v. State of Andhra Pradesh & Ors., (1993] 1 SCC
645, referred to. F
4. It is high time that the State must accept its responsibility to
extend free education to the children upto the age of fourteen. Right to
education is equally guaranteed to the children who are above the age of
fourteen, but they cannot enforce the same unless the economic capacity G
and development of the State permits the enforcement of the same. The
State must endeavour to review and increase the budget allocation under
the head "Education". The Union of India must also consider to increase
the percentage of allocation of funds for "Education" out of the Gross
National Product. (307-F] H
300 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.
A CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1233-34
of 1993.
From the Judgment and Order dated 9.9.92 of the Himachal Pradesh
High Court in W.P. Nos. 413-14 of 1989.
B Prashant Bhushan for the Appellant.
P.P. Rao, R.K. Kapoor and P. Varma for Anis Ahmad Khan, Adv.
for the Respondents.
The Judgment of the Court was delivered by
c KULDIP SINGH, J. The question for consideration is whether the
teachers employed in various recognised aided private schools in the State
of Himachal Pradesh are entitled to the pay-scales which are being paid
to their counter-parts in the Government schools? If so. whether such
schools are entitled to receive grant-in-aid to meet 95 per cent of the net
D approved expenditure?
Respondents, in the appeal herein, are teachers employed in various
recognised aided private schools (aided schools) in the State of Himachal
Pradesh. These schools are being maintained by the private management.
E They receive aid from the State Government. The respondents approached
the Himachal Pradesh High Court seeking a direction that they are entitled
to parity in the matter of salary, allowances etc. with the teachers employed
in the Government schools. They further sought a direction to the State
Government to pay grant-in-aid to meet 95% of the expenditure incurred
by the aided schools. A Division Bench of the High Court allowed the writ
F petitions. These appeals by way of special leave are against the judgment
of the High Court.
The Central Government appointed Kothari Commission to examine
the conditions of service of teachers with the object of improving the
standard of education in the country. Kothari Commission, inter alia,
G recommended that the scales of pay of school teachers working under
different managements such as Government, local bodies or private
management should be the same. Almost all the States in the country,
including the State of Himachal Pradesh, agreed to implement the recom-
mendations of the Kothari Commission. The adjoining State of Haryana
H declared, as back as January 1968, that the grades of teachers of privately
STATfa H.P. STATE RECOGNISED AND AIDED SCHOOLS [KULDIPSINGH, J.] 301
managed schools would be revised on the pattern of the grades of teachers A
working in Government schools.
The State of Himachal Pradesh framed rules called Grants-in-Aid
Rules (the Rules) which are incorporated in the Himachal Pradesh
11
Education Code 11 •
B
Rules 45(Q) and 45(J) which are in conformity with the recommen-
dations of the Kothari Commission are as under :
"(Q) Management shall introduce such scales of pay and allowan-
ces for teachers and to other staff members as are prescribed by C
the Government for corresponding staff in Government schools."
"(J) That the income from subscription, endowments and other
sources (excluding fees) suffices to ensure that the management
can contribute al least 5 per cent of the net expenditure from their
own funds after the school is aided." D
The State of Himachal Pradesh, therefore, is committed to imple-
ment the Kothari Commission recommendations regarding parity in the
pay scales of the teachers working in the government schools and the aided
schools. While agreeing in principle to revise the pay-scales of the teachers E
in the aided schools and also to meet 95% of the net approved expenditure,
the Himachal Government has fixed the maximum limit upto which the
grant can be paid to various schools. In this respect we may notice Rule
47(2) of the Rules which is as under :
"(2) Management of the aided schools shall be required to meet 5 F
per cent of the net approved expenditure in any school year. The
balance of the expenditure being met from the Government grant,
the net approved expenditure being the total expenditure approved
by the Education Department minus the income from the fees,
fines, Etc. In case of girls schools and schools located in scarcely G
populated area the Government may, at its discretion authorise
payment of grant-in-aid to the full extent of the difference between
approved expenditure and approved income. This authority shall
be exercised by the Government only in special circumstances
where the school management is u!'able to meet the deficit from H
302 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.
A its own financial resources. The grants as assessed above shall be
admissible subject to the maximum amount shown against each
category of institutions :- •
The Government have laid down the following enhanced max-
imum limits :-
B
1. High/Higher Secondary Schools
having more than 1000 students
and classes 1 to X/1 to XI Rs. 20,000
2. High/Higher Secondary Schools
c having less than 1000 students
and classes 1 to X/1 to XI: Rs. 17,000
3. Higher Secondary Schools
having classes VI to XI: Rs. 15,000
D
4. Higher Secondary Schools
having classes VI to X classes. Rs. 15,000
5. High Schools having Classes
IX to X: Rs. 15,000
E
6. Middle Schools classes I to VIII: Rs. 10,000
7. Middle Schools classes VI to VIII: Rs. 8,000
8. Primary Schools classes I to V: Rs. 3,000
F After the introduction of 10 + 2 system, the limits of maximum grant-
in-aid respect of Senior Secondary Schools, recognised and privately
managed, are as under :-
(1) Where the students are less
G than 1000: Rs. 30,000
(2) Where the students are more
than 1000 students: Rs. 35,000
The aided schools teach the same syllabus and curriculum, prescribe
H the books and courses as per Government directions and prepare the
STAThH.P.STATERECOGNISEDANDAIDEDSCHOOLS[KULDIPSINGH,J.] 303
students for same examinations for which the students studying in govern- A
ment schools are prepared. The qualifications of the teachers are
-·. prescribed by the State Government and the appointments are made with
the approval of the State Government. The fees levied and concessions
allowed are strictly in accordance with the instructions issued by the
Education Department of the State Government from time to time. The B
Managing Committees of aided schools are approved by the State Govern-
ment and two members of the Committee are appointed by the Education
Department. The service conditions of the teachers including disciplinary
proceedings and award of punishment etc. are governed by the Rules
framed by the State Government.
c
It is, thus, obvio\Js that the State Government has a deep and
pervasive control on the aided schools. The Government Schools and the
aided school specially after the Kothari Commission Report - have always
been treated at par. It has been authoritatively laid down by this Court that
the teachers working in the aided schools are entitled to the same salaries D
- and allowances as are being paid to the teachers in the Government
schools. In Haryana State Adhyapak Sangh and Ors. Etc. v. State of Haryana
and Ors., (1988) Suppl. 1 SCR 682 Pathak, CJ speaking for this Court held
"in our opinion, the teachers of aided schools must be paid the same pay
scale and dearness allowance as teachers in the Government schools for
the entire period claimed by the petitioners ... ". This judgment was sub- E
sequently interpreted by this Court in Haryana State Adhyapak Sangh and
Ors. v. State of Haryana and Ors., AIR (1990) SC 968, where Agrawal, J.
speaking for the Court observed as under :
"The judgment of this Court dated July i8, 1988 also accepts the F
principle of parity in the matter of salaries and dearness allowance
of teachers employed in aided schools and those employed in
Government schools and there is nothing in the judgment which
indicates that the said principle of parity is to be applied upto
December 31, 1985 only, and not thereafter. In the circumstances
.- we are of the view that the direction of this Court in the judgment G
dated July 28, 1988 must be construed to mean that the respondent
are required to maintain such parity and to revise, from time to
time, the pay scales and dearness allowance of the teachers
employed in aided schools as and when the pay scales and dearness
allowance of teachers employed in Government schools are H
304 SUPREME COURT REPORTS [1995) SUPP. 1 S.C.R.
A revised. It is, therefore, incumbent upon respondent to revise the
pay scales of teachers employed in the aided schools so as to bring
the same at par with the pay scales of the teachers employed in
the Government schools with effect from January 1, 1986 and fix
the salaries of the teachers employed in aided schools in the revised
pay scales with effect from January 1, 1986 and pay the salaries
B and dearness allowance to these teachers on that basis."
It is, therefore, late in the day to say that the teachers in the aided
schools are not entitled to parity in the matter of salary, allowances etc.
with their counterparts in the Government schools. The question, for our
C consideration, however, is whether the State Government or the manage-
ment is to meet the consequent expenditure.
Rule 45(Q) of the Rules specifically provides that the management
shall introduce such scales of pay and allowances for teachers and to other
D staff members as are prescribed by the Government for corresponding staff
in Government schools. Apart from that, Rule 45(J) clearly provides that
the income of the aided schools from subscription, endowments and other
sources (excluding fees) should be sufficient to ensure that the manage-
ment can contribute at least 5 per cent of the net expenditure from their
own funds after the schools is aided. Rules 45(J) and 45(Q) are the two
-
E conditions of the basis of which grant-in-aid is given to the aided schools.
With an income of their own to contribute towards 5 per cent of the net
expenditure, the managements of the aided schools cannot, ordinarily, bear
the burden of the salary, allowances etc. to be paid to the teachers and
other staff. The grant-in-aid must be sufficient to meet the net approved
p expenditure incurred by the management of the aided schools. Rule 47(2}
of the Rules specifically provides that the management of the aided schools
shall be required to meet 5 per cent of the net approved expenditure and
the balance shall be met from the Government grant, but at the same time
it further provides that the grant as assessed shall be admissible subject to
the maximum amount shown in the said rule. The provision regarding
G "maximum - admissible grant" goes contrary to the scheme of the rules and
also to the recommendations of the Kothari Commission. With the limit on
the maximum admissible grant, the aided schools in the State of Himachal
Pradesh cannot secure parity with the Government schools in the matter
of payment of salaries. Kothari Commission's recommendations having
. H been accepted by the State of Himachal Pradesh, it stands committed to
SfATh H.P.SfATERECOGNISEDANDA!DEDSCHOOLS(KULDIPS!NGH,J.] 305
give grant-in-aid to the aided schools to the extent that they are in a A
position to meet the expenditure incurred on payment of salaries to the
teachers in terms of the law laid-down by this Court in Haryana State
Adhyapak Sangh's case.
Right to education is a fundamental right guaranteed under Part III
read with Part IV of the Constitution of India. This Court in Mohini Jain B •
V, State of Kamataka and Others, [1992] 3 sec 666 held as under:-
"We hold that every citizen has a "right to education" under the
Constitution. The State is under an obligation to establish educa-
tional institutions to enable the citizens to enjoy the said right. The C
State may discharge its obligation through state-owned or state-
recognised educational institutions. When the State Government
grants recognition to the private educational institutions it creates
an agency to fulfill its obligation under the Constitution. The
students are given admission to the educational institutions - D
whether state-owned or state-recognised - in recognition of their
"right to education" under the Constitution. Charging capitation
fee in consideration of admission to educational institutions, is a
patent denial of a citizen's right to educ~tion under the Constitu-
tion"
E
Mohini Jain's case for consideration before a Constitution Bench of
this Court in Unni Krishnan, J.P. and Others v. State of Andhra Pradesh and
Others, [1993] 1 SCC645, wherein Jeevan Reddy, J, speaking for the Court
observed as under:-
F
"In Mohini Jain the importance of education has been duly and
rightly stressed. The relevant observations have already been set
out in para 7 hereinbefore. In particular, we agree with the obser-
vation that without education being provided to the citizens of this
country, the objectives set forth in the Preamble to the Constitution G
cannot be achieved. The Constitution would fail. We do not think
that the importance of education could have been better em-
phasised than in the above words .. ,, In the above state of law, it
would not be correct to contend that Mohini Jain was wrong insofar
as it declared that " the right to education flows directly from right
to life". H
306 SUPREME COURT REPORTS [1995) SUPP. 1 S.C.R.
A The Constitution Bench, emp]iasising the constitutional policy as
disclosed by Articles 41, 45, and 46 read with Article 21 of the Constitution
of India, held as under:-
"Be that as it may, we must say that at least now the State should
B honour the command of Article 45. It must be made a reality - at
• least now. Indeed, the National Education Policy 1986 says that
the promise of Article 45 will be redeemed before the end of this
century. Be that as it may, we hold that a child (citizen) has a
fundamental right to free education up to the age of 14 : years .....
The right to freedom is available only to children until they com-
c plete the age of 14 years. Thereafter, the obligation of the State to
provide education is subject to the limits of its economic capacity
and development."
The State of Himachal Pradesh is, therefore, under a constitutional
D obligation to provide free education to children till they complete the age
of 14 years. The obligation does not end thereafter, but it is subject to the
limits of its economic capacity and development. Before the High Court
and also before this Court, the primary contention raised by the learned
counsel for the State of Himachal Pradesh is that the economic capacity
E specially the financial condition of the Government does not permit the
disbursement of full grant to the aided schools as envisaged under the
scheme of the Rules. We may examine this contention in the facts of the
present case. The writ petition was filed by the respondents before the
High Court in the year 1992. A Directory of Educational Institutions in
Himachal Pradesh was published by Government of Himachal Pradesh,
F Department of Education. The District-wise list of schools - Government
and others - has been given in the said directory. The list indicates that
there were total of 2163 schools in the State of Himachal Pradesh as on
March 31, 1992. Out of these 2019 were Government schools and 144 were
non- Government schools. The detail regarding Middle, High and Senior
G Secondary schools as given in the said directory is as under:
Middle High Sr. Sec. Total
Name of
District State Others State Others State Others State Others
Govt. Govt. Govt. Govt.
Total: 1007 54 862 82 150 8 2010 14l(sic)
H
STATE,_ H.P. STATE RECOGNISED AND AIDED SCHOOLS [KULDIP SINGH, J.J 307
We proceed on the ass··mption that all the 144 non-Government A
schools are the aided schools. This Court has authoritatively held that the
State is under an obligation to provide free education to the children upto
the age of fourteen. We take judicial notice of the fact that, 6rdinarily, a
child in this country joins school at the age of five years. All the children
studying in the middle schools would be less than fourteen. Therefore, the B
State Government is under an obligation to provide free education to the
children studying in the 54 non-Government middle schools. In other
words, the 54 middle schools are entitled to full grant-in-aid from the State
Government. So far as the high and senior secondary schools numbering
90 (82 + 8) are concerned, the State Government is again under an obliga-
tion to provide free education to the children studying in these schools who C
are fourteen years of age or less. The net result is that even in high and
senior secondary schools upto 8th/9th class - the students being 14 or below
- the State Government is bound to provide free education and as such
bound to meet the total expenditure of the schools to that extent. The large
majority of students, in the 144 non-Government schools, being fourteen D
years of age or below the contention of the learned counsel for the State
based on financial constraints, is wholly untenable.
The constitutional mandate to the State, as upheld by this Court in
Unni Krishnan's case - to provide free education to the children upto the
age of fourteen - cannot be permitted to be circumvented on the ground E
of lack of economic capacity or financial incapacity.
It is high time that the State must accept its responsibility to extend
free education to the children upto the age of fourteen. Right to education
is equally guaranteed to the children who are above the age of fourteen, F
but they cannot enforce the same unless the economic capacity and
development of the State permits the enforcement of the same. The State
must endeavour to review and increase the budget-allocation under the
head "Education". The Union of India must also consider to increase the
percentage of allocation of funds for "Education" out of the Gross National
Product. G
We, therefore, agree with the High Court that the imposition of the
maximum limit for the disbursement of grant-in-aid to the respondents was
arbitrary and unjustified in the facts of the present case. As mentioned
above, the respondent-schools are recognised, aided and are under deep H
I
308 SUPREME COURT REPORTS [1995] SUPP. 1S.C.R.
A and pervasive control of the State Government. The Government is under
an obligation to provide the grant-in-aid lo the respondent-schools as
envisaged under the scheme of the Rules. The High Court has directed the
State of Himachal Pradesh to pay 95% grant-in-aid with effect from
February, 1988. The High Court judgment was delivered on September 9,
B 1992. We modify the High Court judgment to the extent that the enhanced
grant-in-aid be paid to the aided schools with effect from April 1, 1993.
With the above modifications the appeals are dismissed. No costs.
T.N.A. Appeals dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "parity in pay"Sign in to search