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CASE NO.:

Appeal (civil) 1532 of 2005

PETITIONER:

S.C.Chandra & Ors

RESPONDENT:

State of Jharkhand & Ors

DATE OF JUDGMENT: 21/08/2007

BENCH:

A.K.MATHUR & MARKANDEY KATJU

JUDGMENT:

J U D G M E N T

A.K.MATHUR,J.

CIVIL APPEAL NO. 1532 OF 2005

With :

C.A.No.6595 of 2005, C.A. Nos.6602-6603 of 2005 &

C.A.No.6601 of 2005.

C.A. NO.1532 OF 2005.

1. This appeal is directed against the order dated 4.3.2004

passed by learned Single Judge of High Courtof Jharkhand at

Ranchi in Writ Petition No.3666 of 2001 whereby the learned Single

Judge dismissed the writ petition following the decision given by the

Division Bench of the Jharkhand High Court in Chatradhar Mahto &

Ors. V. State of Jharkhand & Ors.

2. Brief facts which are necessary for disposal of this appeal

are that the writ petitioners- appellant filed a writ petition in the High

Court of Jharkhand seeking a writ of mandamus against respondent

Nos.3 to 6 to release and pay D.A. with arrears along with interest

and further a direction was sought to be issued to respondent Nos.3

to 6 not to close the school or in the alternative a direction was

sought to be issued to respondent Nos.1 & 2 to take over the

management and control of the school in question. All the writ

petitioners claimed themselves as teachers and non-teaching staff of

the School and claimed themselves to be the employees of the

Hindustan Copper Limited (hereinafter to be referred to as 'HCL'). It

was alleged that in the year 1933 Indian Copper Corporation, a

private sector unit, registered in the United Kingdom started a Lower

Primary School at Moubhander for the children of its employees

which was named as Moubhander Lower Primary School. In the year

1944-45, the school was upgraded to Upper Primary School i.e. upto

Class V. In 1958-59 the School was upgraded to a Middle School

and recognition to Middle School was accorded by the then District

Superintendent of Education, Chaibasa. Thereafter on 21.9.1972 the

Indian Copper Corporation (Acquisition of Undertaking) Act, 1972

was notified and the Indian Copper Corporation was taken over by

the Central Government and it became a part of HCL, a Government

of India enterprise. It was alleged that thereafter the School was

sought to be taken over by the State Government but this was

resisted by the Managing Committee of the School. It was alleged

that the management of HCL was running two schools, one at

Mosabani and another at Moubhander as proprietary schools and

they were managed by the Managing Committee. The present

school was getting the financial assistance from the management of

the HCL. The Bihar Non-Government Secondary Schools (Taking

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over of Management and Control) Act, 1981 (hereinafter to be

referred to as the 'Act' ) was passed. Section 19 of the Act laid down

certain conditions for grant of recognition to such proprietary schools

run through the Managing Committee and therefore, it was

contended that the school was run by the Managing Committee and

the service conditions of staff of the school were approved by the

Executive Director and thereafter request was made by the HCL to

the Education Commission for grant of recognition as a High School.

The school was recognized by the State Government under the

provisions of the Act of 1981. It was alleged that the Managing

Committee of the School was constituted and reconstituted by the

Management of the HCL. Thereafter 10+ 2 stream was introduced in

the said School and a request was made by the President of the

School to the Director, Bihar Secondary Education seeking

permission to upgrade the ICC High School, Moubhander to +2

stage and the same was recognized by the Government of Bihar.

However, in the meanwhile because of critical financial situation the

managing committee of the school requested the management of the

HCL to approach the State Government for taking over of the school

at the earliest. The school was not taken over under the Act of 1981

by the newly formed State of Jharkhand. Since the management of

HCL was closed on account of financial stress, therefore, no financial

aid could be extended to the school and the writ petitioners could not

get their salaries as the financial aid was not coming from the

management of the HCL and therefore, they approached the High

Court of Jharkhand for issuance of writ of mandamus against

respondent nos. 3 to 6 to release pay and arrears along with

dearness allowance and they also sought a further direction not to

close down the school and in the alternative a direction was also

sought to be issued against respondent nos. 1 & 2 to take over the

management of the school.

3. A reply was filed by the Management of HCL. It took the

stand that there was no relationship of employer and employee

between the management of HCL and the school and it was stated

that the company was merely providing grant for imparting education

and the school was run by the Managing Committee. It was also

contended that the school was not the liability of the management of

the HCL. The school was being managed by the Managing

Committee and only financial aid was provided by the management of

HCL from time to time but since the management of HCL was in

financial doldrums it was unable to manage the school. However, it

was categorically stated that there was no relationship of employer

and employee between the management of HCL and the staff of the

school.

4. Learned Single Judge after considering the matter in

number of petitions, came to the conclusion that the school was not

the dominant object of the HCL and it found that there was no

relationship of employer and employee between the Management of

HCL and the teachers and other staff of the School. Therefore, no

direction was given and the writ petition was dismissed by the learned

Single Judge relying on the aforesaid judgment in the case of

Chatradhar Mahto & Ors. V. State of Jharkhand & Ors.. Hence the

writ petitioner- appellants approached this Court by filing the special

leave petition against the order of learned Single Judge dated

4.3.2004.

5. We have heard learned counsel for the parties and

perused the records. The basic question before us is whether a writ

of mandamus could be issued against the management of HCL.

Learned Single Judge relying on the Division Bench in an identical

matter pertaining to Bharat Coking Coal Limited dismissed the writ

petition of the appellants. This issue was examined in an analogous

writ petition and in the aforesaid case, this issue was extensively

considered as to whether the management of the school is the direct

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responsibility of the HCL or not. After considering the matter in detail,

learned Single Judge relying on the aforesaid judgment found that

there is no relationship of master and servant with that of the

teachers and other staff of the school with the HCL as the

management of the school was done by the Managing Committee

through liberal financial grant was being made by the Corporation. By

that there was no direct connection of the management of the HCL

with that of the management of the school. Though through various

communication an impression was sought to be given that the school

is being run by the HCL but in substance the HCL only used to

provide financial assistance to the school but the management of the

school was entirely different than the management of the HCL.

Giving financial assistance does not necessarily mean that all the

teachers and staff who are working in the school have become the

employees of the HCL. Therefore, we are of the view that the view

taken by learned Single Judge appears to be correct that there was

no relationship of the management of the HCL with that of the

management of the school though most of the employees of the HCL

were in the managing committee of the school. But by that no

inference can be drawn that the school had been established by the

HCL. The children of workers of HCL were being benefited by the

education imparted by this school. Therefore, the management of

HCL was giving financial aid but by that it cannot be construed that

the school was run by the management of HCL. Therefore, under

these circumstances, we are of opinion that the view taken by the

learned Single Judge appears to be correct.

6. Next, it was contended that even if the school is not a part

of the management of the HCL, yet a direction could be given to the

State of Jharkhand under the Act of 1981 to take over the

management of the school and in that connection our attention was

invited to the definition of proprietary school as defined in Section

2(d) of the Act which reads as under :

" (d) "Proprietary secondary school" means

such secondary school whose entire financial liability

is borne out by ( any Registered Trust, Association or

corporate body, individuals or a group of individuals)

and which according to such conditions and

registrations laid down from time to time by the State

Government, may be declared by it proprietary

secondary school."

Section 3 laid down taking over control and management of non-

government secondary schools by State Government. Section 19

laid down that proprietary secondary school can be established.

Section 19 only says that if any registered Trust ( Association,

Corporate Body, individual or group of individuals) applies for setting

up a secondary school and promises in writing to bear the entire

financial burden of the school, the State Government shall have the

power to permit establishment of such school after fulfillment of the

prescribed conditions for recognition under section 19. By this it does

not mean that writ of mandamus can be issued to the State

Government for taking over the management of the school. The

proprietary secondary school is defined under Section 2(d) of the Act.

The State Government can declare a particular school as proprietary

secondary school under Section 19 of the Act on fulfilling certain

conditions but the basic thing is that the entire finance will have to be

burdened by the Trust, Association, Corporate Body, individual or

group of individuals. By that the employees of the school will not be

State Government employees. A counter affidavit was filed on behalf

of the State of Jharkhand supported by the affidavit of Shri Rajendra

Nath Tripathy, Regional Deputy Director of Education, South Chhota

Nagpur Division, Ranchi and in paragraph 12 of the counter affidavit

it was pointed out that in order to fulfill the constitutional mandate that

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all children between 6 -14 years of age shall be given free and

compulsory education, the Jharkhand Government has given consent

and directed the concerned authorities to take the students of this

school and admit them in State Committee managed schools or in

other Government schools within the same area in equivalent classes

in which they were studying. Copy of the letter dated 15.3.2003 has

been annexed as Annexure-R-1. Therefore, the Government of

Jharkhand in order to fulfill the constitutional mandate has got these

students admitted to various schools. Therefore, the studies of the

students have not been affected. So far as issuance of mandamus to

the State Government for taking over of the proprietary school is

concerned, that cannot be issued because the proprietary school as

defined under section 2(d) read with Section 19 of the Act will have to

make a request to the State of Jharkhand that they will bear all the

financial responsibilities. If the Managing Committee makes a

request to this effect to the State of Jharkhand, then the Government

may consider but at present there is no such offer by the Managing

Committee and as such no direction can be given to the State of

Jharkhand to grant recognition to proprietary school because nobody

is prepared to take the financial responsibilities of the management of

the school. Hence, no direction can be issued to the State

Government to take over the management of the School.

7. In this view of the matter, we are of opinion that the view

taken by learned Single Judge of the High Court of Jharkhand

appears to be correct and there is no ground to interfere with the

impugned order. Consequently, the Civil Appeal is dismissed with no

order as to costs.

C.A.No.6595 , C.A.Nos. 6602-6603 and C.A.No.6601 of 2005.

8. All these appeals involve common question of law, therefore,

they are disposed of by this common judgment. For the sake of

convenient disposal of these appeals, the facts stated in C.A.No.6595

of 2005 are taken into consideration.

9. The writ petitioner-appellants prayed before the High

Court of Jharkhand by filing writ petition that direction and order may

be given to the respondents to fix their pay scale at par with the pay

scale of Government Secondary School teachers or at par with Grade

I and II Clerks of the respondent-company. They also prayed that the

facilities such as, provident fund, gratuity, pension and other retrial

benefits should also be made available to them and it was further

prayed that the State Government should take over the management

of Ram Kanali School under the provisions of the Bihar Non-

Government Secondary Schools (Taking over of Management and

Control) Act, 1981 (hereinafter to be referred to as the 'Act'). A

counter affidavit was filed by the Bharat Coking Coal Limited

(hereinafter to be referred to as BCCL) that the present Ram Kanali

School was not owned by the said BCCL and the school was run by

the Managing Committee and the writ petitioners were never

appointed by the BCCL and therefore, they were not the employees

of BCCL. It was also submitted that BCCL used to release non-

recurring grants to the privately managed schools on the

recommendation of the Welfare Committee. But this release of grant

was subject to certain conditions. This non-recurring grant-n-aid did

not make the school a part of the management of BCCL and

therefore any teacher in such privately managed school cannot be

said to be the employee of BCCL thereby entitling him all benefits as

are available to the regular employees of BCCL. It was also pointed

out that the managing committee of Ram Kalai school was given

grant-in-aid but that has been stopped and they totally disowned the

responsibilities for any benefits whatsoever. However, learned Single

Judge allowed the writ petition and directed that these teachers who

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were working in the school were entitled to the pay scale given to the

clerks working in BCCL with effect from the date of the judgment with

all consequential benefits such as provident fund, gratuity and other

service benefits available to the employees of BCCL. So far as

taking over of the school by the State of Jharkhand was concerned,

no direction was given by learned Single Judge. Aggrieved against

this order passed by the learned Single Judge, appeal was prepared

and along with this appeal two more appeals were filed by the BCCL

before the Division Bench. Therefore, all these three appeals were

taken up by the Division Bench together and the same were disposed

of by the common order. The Division Bench examined the matter at

a greater detail and came to the conclusion that the incumbents were

not entitled to the pay scale of the employees of BCCL or equivalent

to the Government employees and accordingly set aside the order of

learned Single Judge by order dated 21.1.2004. Hence, aggrieved

against this order, all these three appeals have been preferred by the

private respondents.

10. We have heard learned counsel for the parties and

perused the records. The Division Bench after considering the matter

came to the conclusion that from the record available the existence of

relationship of employer and employee between the management of

BCCL and the teachers working the school could not be established.

The Division Bench further held that BCCL is not an instrumentality of

the State as per section 617 of the Companies Act as its dominant

function is to raise coal and sell and imparting education is not its

dominant function. The Division Bench further held that the plea that

a direction may be issued to the State Government in terms of the

Act to take over the school in question was totally misconceived. As

such, the Division Bench set aside the order of learned Single Judge

and dismissed the writ petitions.

11. After going through the order of the Division Bench we are of

opinion that the view taken by the Division Bench of the High Court is

correct. Firstly, the school is not being managed by the BCCL as

from the facts it is more than clear that the BCCL was only extending

financial assistance from time to time. By that it cannot be saddled

with the liability to pay these teachers of the school as being paid to

the clerks working with BCCL or in the Government of Jharkhand. It

is essentially a school managed by a body independent of the

management of BCCL. Therefore, BCCL cannot be saddled with the

responsibilities of granting the teachers the salaries equated to that

of the clerks working in BCCL.

12. Learned counsel for the appellants have relied on Article 39

(d) of the Constitution. Article 39 (d) does not mean that all the

teachers working in the school should be equated with the clerks in

the BCCL or Government of Jharkhand. For application of the

principle of equal pay for equal work. There should be total identity

between both groups i.e. the teachers of the school on the one hand

and the clerks in BCCL, and as such the teachers cannot be equated

with the clerks of the State Government or of the BCCL. The question

of application of Article 39(d) of the Constitution has recently been

interpreted by this Court in State of Haryana & Ors. V. Charanjit

Singh & Ors. [ (2006) 9 SCC 321] wherein their Lordships have put

the entire controversy to rest and held that the principle, 'equal pay

for equal work' must satisfy the test that the incumbents are

performing equal and identical work as discharged by employees

against whom the equal pay is claimed. Their Lordships have

reviewed all the cases bearing on the subject and after a detailed

discussion have finally put the controversy to rest that the persons

who claimed the parity should satisfy the court that the conditions are

identical and equal and same duties are being discharged by them.

Though a number of cases were cited for our consideration but no

useful purpose will be served as in Charanjit Singh (supra) all these

cases have been reviewed by this Court. More so, when we have

already held that the appellants are not the employees of BCCL,

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there is no question seeking any parity of the pay with that of the

clerks of BCCL.

13. Hence, as a result of our above discussion, we do not

find any merit in these appeals and the same are dismissed with no

order as to costs.