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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.