Samapti Chatterjee, J. - (1.) THE petitioner has filed the present writ petition assailing the impugned memo dated 29th May, 2002 issued by the Director of School Education, West Bengal. It was also one of the prayers in the said writ petition that the ROPA rules and reports of the pay commission are not applicable to the petitioner's school in respect of the pay scale of the teaching and non -teaching staffs.
(2.) THE brief case of the petitioner is as follows: - - That the petitioner No. 1 is a society registered under Society Registration Act, 1860 and is engaged in establishment, management and running of the school, colleges and educational institutions in the city of Kolkata. Some time in the year 1962, the petitioner No. 1 started Gyan Bharati Vidyapith (hereinafter referred to as the said school) as a junior school which in the year 1965 was upgraded as high school and the said school is recognised by the Board of Secondary Education. Till today the day to day affairs of the schools are controlled and managed by the Managing Committee constituted from time to time under the rules and regulations framed by the petitioner No. 1. The Government of West Bengal only grants Dearness Allowances to the staff and employees approved by the District Inspector of Schools. The memorandum of understanding was also executed on 5th July 1994 for a period of 3 years between the Managing Committee and the teachers and non -teaching staff of the said school. There the teachers and non -teaching staff were given the option to retire at the age of 60 to 65 years and the basic pay of all teaching and non -teaching staff was fixed at the rate recommended by the 2nd Pay Commission. It is also the case of the petitioner that 3rd and 4th Pay Commission were not applicable to the said school as it is a Dearness Allowance receiving school and not financially controlled by the Government. It also appears that on and from 1st April, 2000 the teachers and non -teaching staff of the said school was given an increment though the teachers of the said school initially without accepting the increment filed an application under Sec. 226 of the Constitution of India in this Hon'ble Court against the District Inspector of School but subsequently the increased salary was accepted by the teachers and non -teaching staff of the said school. The said writ petition was disposed of after exchange of affidavits on October, 2001 by this Hon'ble Court thus directing the Secretary, Education Department (SE), Government of West Bengal to decide why similar policy adopted by the Government in respect of Anglo -Indian and listed schools shall not be adopted in respect of the other schools which are accepting only D.A. from the Government for its approved teachers. Pursuant to the said order dated 8th October, 2001 the Director of School Education without giving any opportunity of hearing to the parties issued the impugned memo dated 29th May, 2002 informed that all schools receiving D.A. for its approved teaching and non -teaching staff will have to pay salary in the appropriate pay scale from its own resources at the rate prescribed by the State Government. It was also informed that the D.A. would be disbursed on percentage basis at the rate admissible to other employees of the State Government aided in the education institutions. Challenging this impugned memo dated 29th May, 2002 the petitioner filed the present writ petition.
(3.) MR . Bhaskar Sen, learned senior counsel appearing for the petitioner's institution submitted that the institution is only a D.A. receiving institution, not financially controlled by the government. The said school only received financial assistance from the Government towards D.A. against the approved teachers and non -teaching staffs, and not more than that. The school authority takes responsibilities for paying salaries of the teachers and non -teaching staffs of the said school. Therefore, it is not obligatory on the part of the school authority to give monthly salaries of the approved teachers and non -teaching staffs of the said school at par with the other schools like Government aided and Government sponsored schools. But in the case of the petitioner's institution Government liability towards the approved teachers and non -teaching staffs of the petitioner's institution is only towards the D.A. and not in respect of the other service benefits. Save and except D.A. all service benefits are borne by the school authority itself. Mr. Sen further vehemently contended that available fund of the school authority will not provide ROPA benefit to be paid to the teachers and non -teaching staffs of this school at par with the Government aided/sponsored schools as has been recommended by the Government.;