Dismissed

Biligiri Education Society (R) v. D Krishna Murthy

Karnataka HC14 Jun 2024RFA/507/2019

Case brief

AI extract

What is this about?

This regular first appeal against a decree for recovery of salary arrears was dismissed. The High Court held that the respondent, a permanent lecturer in a private un-aided institution, was entitled to pay equal to the government counterpart under Rule 5 of the Karnataka Private Educational Institutions (Discipline and Control) Rules, 1978, relying on the finality of the EAT finding and binding pr

What did the court decide?

The appeal was dismissed; the decree for arrears of salary was reassured; the Registry directed to release the amount deposited by the appellants to the respondent with accrued interest.

Biligiri Education Society (R) Vs D… — Pension and Retirement Benefits | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^th DAY OF JUNE, 2024

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PRESENT

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THE HON'BLE MR JUSTICE V KAMESWAR RAO

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AND

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THE HON'BLE MR JUSTICE C M JOSHI RFA NO. 507 OF 2019(RES)

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BETWEEN:

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BILIGIRI EDUCATION SOCIETY(R), BILIGIRI 1^ST GRADE COLLEGE, YALANDOOR, REP. BY ITS, SECRETARY SRI. RAMRAO,

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THE EXECUTIVE PRESIDENT, BILIGIRI 1^ST GRADE COLLEGE, YALANDOOR, CHAMARAJANAGAR DISTRICT, PIN CODE NO.571 441.

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…APPELLANTS

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(BY SRI. B.G. VIJAYAKUMARA SWAMY, ADVOCATE)

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Digitally signed by K G RENUKAMBA Location: High Court of Karnataka

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AND:

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D. KRISHNA MURTHY, S/O DODDA VEEREGOWDA, AGED ABOUT 54 YEARS, R/AT BILIGIRI 1^ST GRADE COLLEGE, YALANDOOR, CHAMARAJANAGAR DISTRICT PIN CODE NO.571 441.

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…RESPONDENT

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(BY SRI. MADHUSUDHANA RAO, ADVOCATE)

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THIS APPEAL IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 AND 2 OF THE CODE OF CIVIL PROCEDURE 1908, AGAINST THE JUDGMENT AND DECREE DATED:14.01.2019 IN O.S.NO.105/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND CJM, CHAMARAJANGAR, DECREEING THE SUIT FOR RECOVERY OF ARREARS OF SALARY.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 04.06.2024, COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’ THIS DAY, V KAMESWAR RAO J ., DELIVERED THE FOLLOWING:

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JUDGMENT

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This Regular First Appeal has been filed under Section 96 r/w Order 41 Rules 1 & 2 of the Code of Civil Procedure, 1908 (‘CPC’ for short), challenging the Judgment and Decree dated 14.01.2019 passed by the Senior Civil Judge and CJM, Chamarajanagar, (“Trial Court” in short) in OS No.105/2016.

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Vide Order dated 14.01.2019, the suit filed by the Respondent herein has been decreed by the learned Trial Court, whereby it has directed the appellants to pay arrears of salary of Rs.15,36,000/- for the period 26.10.2011 to 19.10.2015 at the rate of Rs.32,000/p.m., with interest @6% per annum.

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Some of the facts which are relevant to be

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noted in this order are, the appellant no.1 herein is a Society, registered under the Karnataka Societies Registration Act (‘Society’ for short) and is running First Grade College at Yelandru. The respondent herein after completion of his Post Graduation, had applied for the post of Lecturer in Sociology. He was appointed on 03.08.1992 by the Society on temporary basis giving six hours teaching per week. It was the case of the respondent herein before the Trial Court that, he was declared as permanent. His case was also that, the Society while submitting the requisition for Grant-in-Aid has shown the respondent as permanent lecturer in Sociology. The respondent placed reliance on the Karnataka Education Act, 1983 and Karnataka Private Educational Institutions and Employees (Regulation, Pay, Pension and other benefits) Rules, to contend that there cannot be any discrimination in respect of payment of Scale of Pay to the Lecturer working in an Un-aided, Aided or Government Colleges in as much as the service conditions of the respondent and other similarly placed

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employees in other institutions must be equal and at par with the corresponding post in the Government Educational Institutions. The appellants were under an obligation to pay salary at par with other institutions having similar nature of duties. The same was denied to him.

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It may be stated here, it was the case of the respondent, that after Dasara Vacation in 2003, when the college was re-opened, he was not allowed to sign the Attendance Register nor he was allocated any work in the Society and as such, he had to approach the Educational Appellate Tribunal (‘EAT’ for short) by preferring an appeal in EAT 6/2004. The appeal was allowed in his favour, wherein the EAT held that the respondent is Permanent Employee of the appellants.

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The appellant-Society filed a writ petition being Writ Petition Nos.26936 & 26937/2010(S-RES) before this Court, which was closed, resulting in the reinstatement of the respondent in service and as a full and final settlement to be paid a sum of Rs.75,000/-.

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6. It was the case of the respondent that the

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appellant-Society has not paid the salary to him from the date of reinstatement till the date of filing of the suit. Despite representation to the Society, the same had not yielded any result. It was under the above circumstances, the suit was filed on the premise that the Pay Scale of a Lecturer holding corresponding post in the Government aided Institutions being Rs.32,000/- p.m, he is entitled to salary at Rs.32,000/- p.m. from 26.10.2011 to 19.10.2015, cumulatively, the amount being Rs.15,36,000/-.

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The case of the appellants in their written statement was that the respondent herein was a Lecturer in Sociology appointed on 03.08.1992 on temporary basis. They have denied rest of the averments made by the respondent in the plaint. It was also stated that the respondent was not a permanent Lecturer in the appellant-Society. It was also stated that, since the respondent was a temporary Lecturer in Sociology, the respondent is entitled to pay as decided by the

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Administrative Committee of the Society. It was also their case that, the appellant-Society had requested the respondent many a time through letters to receive the salary fixed by the Administrative Committee, but the respondent has refused to receive the salary. It was contended that, as appellant-Society is not an Aided Institution, it is not possible to pay the respondent at par with the Lecturers working in the Aided Institutions and the corresponding post in the Government Education Institution. It was also stated that, the strength of the students in the Institution is gradually coming down and hence the appellant-Society was not getting the grant as per the Rules and Norms of the UGC and also Government of Karnataka. It was contended that the appellant-Society is not ready to pay the salary to the respondent at par with the Lecturer of the corresponding post in the Government Institution.

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On the basis of the pleadings of the parties, the Trial Court had framed the following issues:-

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i) Whether the plaintiff proves that he is the permanent employee in the society of Defendant No.1?

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ii) Whether the plaintiff proves that he was drawing a salary of Rs.32,000/- per month?

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iii) Whether the plaintiff proves that he is entitled for an amount of Rs.15,36,000/- with interest at the rate of 6% per annum towards arrears of salary from 26.10.2011 to 19.10.2015?

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iv) What order or decree?

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All the issues have been decided in the affirmative in favour of the respondent herein.

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The respondent in support of his case had produced himself as PW.1 and also documents as Exs.P1 to P5. On the other hand, the appellants had produced three witnesses as DW.1 to DW.3 and got marked Exs.D1 to D19.

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On Issue No.1, the Trial Court had come to a conclusion that the respondent was a permanent full time Lecturer in Sociology in the appellant-Institution. This opinion has been formed on the basis of the

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conclusion drawn by the Educational Appellate Tribunal in EAT No.6/2004 which conclusion has not been set aside by this Court in Writ Petition Nos.26936-26937/2010(S-RES). The EAT clearly held that, the respondent was a permanent full time Lecturer in Sociology in the appellant society.

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On Issue No.2, the Trial Court referred to Ex.D8, which is the requisition sent by the respondent to the appellant-Society requesting to pay arrears of salary from 26.10.2011 at the rate of Rs.32,000/p.m. For that, the Secretary of the appellant-Society had issued a reply, which was exhibited as Ex.D.10 stating that, since the college is not getting grant-inaid from the Government with respect to the respondent’s post i.e., Sociology subject, it was not possible to pay salary to the respondent at the rate of Rs.32,000/- p.m. The Trial Court relied upon Rule-5 of the Karnataka Private Educational Institutions (Discipline and Control) Rules, 1978 (‘Rules 1989’ for short) , which clearly prohibits the private Educational

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Institution from paying a scale of pay lower than the pay scale to an employee of corresponding post in the Government Educational Institutions. The trial Court has also relied upon the judgment in the case of Vidyavardhaka Sangha (R), Mysore and Another Vs. Smt. K. Meera Bai [2017(3) KCCR 2212], wherein a reference has been made to Rule-5 of Rules

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1978 to hold that, the employee of Private Institution is entitled to receive pay scale as being received by her counter parts in Government Institutions . So the trial Court on Issue No.2, has concluded that, Respondent is entitled to the salary of Rs.32,000/p.m. at par with the employees of the corresponding posts in the Government Institutions and as such, this issue was decided in favour of the respondent herein.

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On Issue No.3, the Trial Court held that, the respondent is entitled to arrears of salary from the date of his reinstatement. Accordingly, it declared the right of the respondent to recover the arrears of salary

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of Rs.15,36,000/- from 26.10.2011 to 19.10.2015 at

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the rate of Rs.32,000/- p.m., with interest at 6% p.a.

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On Issue No.4, the Trial Court decreed the suit in the following manner:-

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“In view of the above findings and reasons, this court proceeds to pass the following:

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ORDER

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Suit of the plaintiff is hereby decreed with cost.

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The Defendant Education Society is directed to pay arrears of salary of Rs.15,36,000/from 26.10.2011 up to 19.10.2015 at the rate of Rs.32,000/- p.m. with interest at the rate of 6% p.a.”

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The submission of the learned counsel for the appellants is primarily that, the Trial Court has passed the impugned order without considering the material on record in as much as the respondent was not an approved Lecturer in Sociology nor the Institution included in grant-in-aid accorded by the Government, which is a pre-requisite for grant of the pay as sought by the respondent. That apart, it was his submission

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that the appellant-Society/Institution has not issued any appointment order to the respondent as permanent Lecturer at any point of time and this factum has been admitted by the respondent in his cross-examination. That apart, it is also stated that the learned Trial Court has not considered the fact that the strength of the students had gone down and as such, the respondent was not to be appointed or included in grant-in-aid. The concept of equal pay for equal work would not be applicable. That apart, the interest awarded by the learned Trial Court is not tenable and is also on the higher side. He seeks setting aside of the order/decree passed by the learned Trial Court.

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On the other hand, learned counsel for the respondent would justify the order and decree passed by the learned Trial Court by contending that, the Trial Court based on the findings of the EAT and also this Court, has rightly held that, when the respondent is a permanent employee, his pay could not have been

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less than the pay as being drawn by the Lecturer in Sociology in Government Aided Institution. He seeks dismissal of the appeal.

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Having heard the learned counsel for the parties, we are of the view that the order and decree dated 21.10.2019 passed by the learned Trial Court need no interference. We say this for the reason, the appellant-Society has not disputed that the pay of a Lecturer in Sociology in Government Aided Institution is Rs.32,000/- p.m. That apart, the EAT in it’s judgment has clearly concluded that respondent was a permanent regular lecturer of the appellant-Society. The said finding has not been interfered by this Court in Writ Petition Nos. 26936-26937/2010. So, the Trial Court has rightly held the entitlement of pay at Rs 32,000/- p.m. by the respondent in view of finality reached to the judgment of the EAT. It follows the concept of equal pay for equal work is applicable by operation of Rule 5 of the Rules of which reference is given above, which is a statutory provision casting a duty on a Private Un-aided

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Institution to pay same Scale of Pay to its employee corresponding to the Scale of Pay being paid to an employee in Government Educational Institution.

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The case set-up by the appellant-Society based on Ex.D.10 to contend that, the respondent’s appointment is not permanent cannot be accepted, in view of the finding of the EAT which has not been set aside by the High Court in the aforesaid writ petitions.

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On the issue whether the employees of the un-aided private institutions are entitled to a similar pay as being drawn by the employees of aided or Government Institutions is concerned, the same has been settled by the Supreme Court in the case of

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Sushmita Basu and Others Vs. Ballygunge Siksha Samity and Others [(2006) 7 SCC 680] . This judgment of the Supreme Court has been relied upon/referred to in the judgment of this Court in the case of Vidyavardaka Sangha (R) (supra). The Supreme Court in Para-3 has stated as under:-

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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 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 Vs. Union of India & Others. [(1987) 1 S.C.R.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

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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 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 & Others Vs. C.N. Sahasranaman & Others [(1986) 2 S.C.R. 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 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

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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.

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( emphasis supplied )

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In view of our above discussion, it must be

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held that the pay of the employee of an un-aided institution can not be less than the pay as being drawn by an employee working on the corresponding post in a Government Educational Institution.

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The offshoot of our above discussion is that the present appeal is without any merit and is dismissed .

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In view of the fact we have dismissed the appeal, the Registry shall release the amount deposited by the appellants in this Court with accrued interest, if any, to

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