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CASE NO.: Appeal (civil)  4614 of 2006

PETITIONER: M. Raja                                                          

RESPONDENT: CEERI Educational Society Pilani & Anr.                  

DATE OF JUDGMENT: 31/10/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  [Arising out of SLP (C) No. 1242 of 2006]

S.B. SINHA,  J :

       Leave granted.

       Appellant was working as a Trained Graduate Teacher (TGT for  short) (English) in Atomic Energy Central School, Rawatbhata in the State  of Rajasthan.  An advertisement was issued by Respondent No. 1 \026 Society  for recruitment  and appointment to the post of TGT in its school.  The  appellant applied therefor.  An interview was held.  Allegedly, he asked for  pay protection.  It was assured that his pay would be protected.   

       An offer of appointment was made to him on 17.12.1996 wherein it  was stated:

"2.     You will be paid salary which includes  Basic Pay + DA as per CES Rules.

***                     ***                     *** 14.     You shall abide by the service rules of  CEERI Educational Society as decided from time  to time."

       The respondent, however, by a letter dated 8.01.1997 offered a basic  salary of Rs. 1700/- with seven advance increments as also accommodation,  etc. to the appellant as he did not join and demanded for settlement of terms  and conditions in service to be spelt out clearly. It appears that the wife of  the appellant was also offered an appointment.  In his letter dated  15.01.1997, the appellant contended:

"I was promised pay protection till the  implementation of Pay Commission Report by way  of personal pay (by the Interview Committee, of  which you were also a member).  There is no  mention about it in both your letters i.e. dated  17.12.96 and 8.1.97.

       I am greatly obliged that you have offered  me seven advance increments in the pay scale of  Rs. 1400-40-1600-50-2300-EB-60-2600, but I  wish to bring to your kind notice that I would be  drawing 1600/- basic pay in the same grade in  March, 1997.  Henceforth my request to you is that  you have to protect my last drawn pay of Atomic  Energy Central School (under AEES), as agreed  upon by the Committee."

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       In response thereto, Respondent No. 1 \026 Society by a letter dated  21.01.1997 clarified the queries raised by the appellant inter alia in the  following terms:

"Your basic salary of Rs. 1600/- in March, 1997  with your present employer has been well  protected by offering you Rs. 1700/- basic pay as  soon as you join us at CVM.  As the pay  commission report is likely to be implemented in  our school from April, 1997 after its  announcement, therefore, your pay will be  automatically protected at that time.  However, if  you are joining us earlier than the implementation  of pay commission report the difference in your  last drawn salary and the salary at CVM on joining  would be given to you as additional personal pay  as per rules."

                Yet again by a letter dated 25.01.1997, pay protection was assured  stating:

"Yes, your pay will be protected in any way either  providing personal pay or fixing basic pay at  suitably higher level.  The appointment letter sent  to you is not supposed to carry all these details.

       Principal, CVM has already written to you  in this regard in detail.  If you have further any  query please feel free to contact Principal, CVM."

         The appellant joined the services in Respondent No. 1 \026 School on  30.04.1997.  It is not in dispute that the Fifth Central Pay Commission  revised the scale of pay with effect from 1.01.1996 pursuant whereto the  appellant claimed that he was entitled to the scale of pay Rs. 5500-9000  whereas he was put in the pay scale of Rs. 5000-8000.  The  recommendations of the Fifth Central Pay Commission, however, were  applied by the respondent with effect from 1.07.1999.

       Inter alia on the premise that the respondents were bound to protect  his scale of pay keeping in view the promises made and the Management  Committee backtracked therefrom, he moved the Rajasthan Non- Government Educational Institutions Tribunal, Jaipur.  The Tribunal allowed  the said application in part holding the appellant to be entitled to pay as per  the recommendations of the Fifth Central Pay Commission with effect from  the date of appointment and directing the respondents to calculate the  amount of difference and pay the same to him within three months.  A writ  petition filed by the respondents thereagainst was dismissed by a learned  Single Judge of the High Court.  The respondents preferred an intra-court  appeal and the Division Bench by reason of the impugned judgment allowed  the same.

       The appellant is, thus, before us.

       A limited notice was issued by an order dated 23.01.2006 only in  regard to the question as to whether the revised pay is being paid to the  appellant with effect from 1.07.1999.  In its counter affidavit, the  respondents contend that the appellant is entitled thereto but he must give his  consent therefor by way of a written agreement.  It is, thus, not in dispute  that once the appellant signs the agreement, he would be given benefits of  the revised scale of pay.  Our attention in this connection has also been  drawn to a letter of the appellant dated 4.02.1997 wherein he stated:

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"I have gone through the following\005 and I am  pleased to accept the terms and conditions of  appointment stated through the above said offer  and letters.

       I have resigned from my present job/  assignment on 28.1.1997, giving three months  notice, which expires on 28.4.1997.

       I have requested them to relieve me at the  earliest, if they could do the same, by waiving the  notice pay/ period.

       I would join your organization as and when I  am relieved, but I assure you that I would join  CEERI VIDYA MANDIR latest by 30.04.1997  (i.e. on or before 30.04.1997)."

                The learned counsel appearing on behalf of the appellant would  submit that the respondents are bound by the doctrine of promissory estoppel  and keeping in view the stand taken by the then Managing Committee  regarding benefit of the revised scale of pay by way of pay protection, the  new Managing Committee could not have resiled therefrom.   

       The learned counsel appearing on behalf of the respondents, on the  other hand, submitted that whereas the appellant was entitled to protection of  pay, he had never been assured that the benefit of the revised scale of pay  would also be given to him with retrospective effect.

       The appellant had been given the benefit of pay protection.  He  accepted the same.  He had moreover been given also additional benefits.   However, the offer of appointment cannot be read so as to extend such  benefits in regard to the applicability of the recommendations of the Fifth  Central Pay Commission which would come in force in future.  The  respondents in that sense are right in contending that their being no  commitment in that behalf, the question of being bound by the purported  commitment did not arise. Revision of pay took place subsequently.  It was,  therefore, a subsequent development.

       It may be true that even the respondents expected that the  recommendations of the Pay Commission would be implemented from  April, 1997, but if for one reason or the other, the same was given effect to  from 1.07.1999, a promise cannot be said to have been made out that  irrespective of the implementation of the report of the Pay Commission, the  appellant would be given the benefit thereof.

       It may be that the respondents in its letter dated 21.01.1997 stated "as  the Pay Commission Report is likely to be implemented in our school from  April, 1997, after its announcement, therefore, your pay will be  automatically", but the same cannot be said to be a clear promise which  would attract the principle of promissory estoppel.   

       The appellant was not entitled to the benefit of the recommendations  of the Fifth Central Pay Commission with effect from 1.01.1996.   Recommendations of the Fifth Central Pay Commission were made  applicable by the respondent in its school only from 1.07.1999.

       Rights of the parties are not governed by any statutory provisions.   They have to be considered having regard to the terms and conditions  contained in the offer of appointment as also the subsequent  correspondences of the parties.  The letter dated 21.01.1997 speaks of  payment of difference between the last drawn salary and salary payable to

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the appellant on his joining Respondent \026 School on implementation of the  Report of the Pay Commission.  The same did not mean that the respondents  were bound to implement the same with retrospective effect.

       It is one thing to say that the benefit of pay protection was accorded to  him on the basis of his last drawn pay but it is another thing to say that he  should be given the benefit of revised scale of pay with effect from 1997.   They stand on different footings.  The matter which was never contemplated  by the parties could not have been the subject matter of contract and, thus,  could not have been the basis for making a promise.

       We may notice that the appellant in Ground I of Special Leave  Petition stated:

"Because the respondent in their special appeal  have made a categorical statement that after the  Vth Central Pay Commission recommendations  were implemented in their school w.e.f. 1.7.1999,  petitioner at par with other employees of the  respondent school, has been paid salary in the  scale revised in accordance with the Vth CPC  recommendations\005"

       Contention of the respondents in this behalf is:

"That the other staff of the appellant school, to  whom benefit of Fifth Central Pay Commission  has been given entered into contract with the  appellants.  These contracts were entered by staff  as per CES, service rule.  However, the respondent  employee refused to sign such contract.  Such  contract needs to be signed as per CBSE (with  whom appellant is affiliated) guidelines."

       We may, however, notice that the appellant himself in paragraph 2C- D of the rejoinder affidavit stated:

"That it is submitted that it is not stated anywhere  in the appointment letter that signing of the  contract was essential for getting the pay revision.   Though it is not a part of the appointment letter,  signing of the contract would not have been a  problem had the contract been in accordance with  the CBSE Affiliation Bye-Laws.  Further, the  revised pay scale w.e.f. 01.07.1999 is neither as  per the Fifth Central Pay Commission  recommendations nor is it as per the State  Government pay scale which is arbitrary and  unreasonable\005"

       The legality of the contract entered into by and between the parties is  not in issue.

       Respondent - School, as noticed hereinbefore, is ready and willing to  extend the benefit of revised scale of pay with effect from the date when it  was implemented by it.  Respondent \026 School, thus, has not treated the  appellant very unfairly or unreasonably.  A parity in payment of scale of pay  between a private institution and the employees of the State cannot be  directed as the same does not pertain to any legal right of a teacher.

       We may notice that in Sushmita Basu and Others v. Ballygunge  Siksha Samity and Others [2006 (9) SCALE 459] a Division Bench of this

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Court opined that for issuing such a direction an existence of a legal right in  the teacher is imperative.   

       This Court clearly held that interference in the affairs of a private  educational institution would be justified only if public law element is  involved.

       In this case, only a limited notice had been issued and as the  respondents are ready and willing to extend the benefit of revised scale of  pay to the appellant in the event he enters into an agreement, we are of the  opinion that no further order need be passed.  

       Learned counsel for the appellant submitted that despite the fact that a  limited notice had been issued, this Court should consider the applicability  of the doctrine of promissory estoppel in this case.  We do not find any  reason so to do.  Limited notice was issued by this Court so as to find out as  to whether the appellant was being discriminately dealt with vis-‘-vis other  teachers.  Once it is found that he has been dealt with fairly and reasonably,  then there is no reason as to why we would enlarge the scope of appeal at  this stage.   

Reliance placed by learned counsel on a decision of this Court in U.P.  SRTC v. Mahendra Nath Tiwari & Anr. [(2006) 1 SCC 118], does not lay  any law in absolute terms.  Even in that case, the Court refrained itself from  doing so stating:-

"\005Of course, when we are hearing the appeal on grant of  leave or the petition for special leave to appeal after  notice, we are entitled to reopen the appeal in its entirety  and consider the question of punishment and the legality  of the reinstatement ordered by the Labour Court and  affirmed by the High Court.  This could be done by  giving a notice in that behalf to the respondent and giving  him an opportunity of being heard.  But for the purpose  of this case and at this distance of time, we do not think  that it is necessary to do so.  Therefore, somewhat  reluctantly, we refrain from adopting that course, though,  according to us, this is a fit case where neither the Labour  Court nor the High Court had any justification in  interfering with the order removing the respondent from  service\005"

       The jurisdiction of this Court in this behalf is not in dispute, but  exercise thereof would depend on the facts and circumstances of each case.   

       It was also submitted that the Division Bench of the High Court failed  to properly construe the respondent’s letter dated 21.1.1997.  We do not  think so.

       The applicability of the doctrine of promissory estoppel is a question  of law in a given situation.  The Division Bench for the said purpose did not  enter into any question of fact, although it was entitled to do so.

       In Management of Madurantakam Coop. Sugar Mills Ltd. v. S.  Viswanathan [(2005) 3 SCC 193], this Court did not say that the High Court  in exercise of its power of judicial review can never enter into questions of  fact but merely stated that it has a limited jurisdiction in this regard stating:-

"Normally, the Labour Court or the Industrial Tribunal,  as the case may be, is the final court of facts in these  types of disputes, but if a finding of fact is perverse or if  the same is not based on legal evidence the High Court  exercising a power either under Article 226 or under

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Article 227 of the Constitution can go into the question  of fact decided by the Labour Court or the Tribunal.  But  before going into such an exercise it is necessary that the  writ court must record reasons why it intends  reconsidering a finding of fact\005"

       The Division Bench of the High Court in the impugned judgment has  assigned reasons for interfering with the findings of the Tribunal and the  learned Single Judge.  We do not find any legal infirmity therein.       

The appeal is dismissed.  No costs.