Shampa Sarkar,J. - (1.) The petitioner No.1 is a society registered under the Societies Registration Act, 1860 and is engaged in establishment management and running of schools and educational institutions in the city of Kolkata. The object being welfare and charity. The petitioner No.1 established a school under the name and style of Shri Digambar Jain Vidyalaya (hereinafter referred to as the said school). The petitioner Nos.2 and 3 are the Honorary Secretaries of the said school. The petitioners claim that the said school was a private unaided minority institution, run for the betterment of the Jain community and thus entitled to rights enshrined under Article 30 of the Constitution of India. According to the petitioners the society was separate in its identity from the said school. The said school was autonomous in its management and finances and did not get any financial support from the society. Some of the approved teachers of the said school were getting dearness allowance (in short DA) from the State of West Bengal. The said school however retained its identity as a private unaided DA getting minority institution.
(2.) The petitioners in this writ petition, have, challenged the memorandum dated May 29, 2002 bearing No.641-SE (Law)/5S-577/2001 issued by the special Secretary to the Government of West Bengal, School Education Department, (hereinafter referred to as the said memorandum). The petitioners have prayed for a declaration that the said memorandum was contrary to law, without jurisdiction and ultra vires the Constitution of India and ought to be quashed and set aside.
(3.) By the said memorandum the Government of West Bengal School Education Department, Law Branch informed the authorities of all DA getting schools recognized by the West Bengal Board of Secondary Education, which received DA for the approved teaching and non-teaching staff, from the Government of West Bengal would have to pay salary in their appropriate scale of pay from their own resources at par with the salary prescribed by the State Government for teaching and non-teaching employees of Government aided schools with immediate effect. The said memorandum is set out below:- "No. : 641- SE (LAW) Dated: Kolkata, 29.05.2002 5S- 577/2001 To : The Director of School Education, West Bengal Staff Council, Gyan Bharati Vidyapith and Anr., - vs. - State of West Bengal and Others. The undersigned is directed to say that pursuant to the order of the Hon'ble High Court dated October 8, 2001 in W.P. No.707 of 2002 in the case of Staff Council Gyan Bharati Vidyapith and Ans. -vs.- State of West Bengal and Ors., the matter regarding payment of salaries to the approved teaching and non-teaching employees of D.A. getting schools recognised by the West Bengal Board of Secondary Education at the rate of at least not less than what the teaching and non-teaching employees of the recognised Govt. Aided Schools are being paid, keeping in view the direction issued to the Anglo-Indian schools has been taken up for consideration. After due consideration of the matter, it is decided that the authorities of all D.A. getting schools recognised by the West Bengal Board of Secondary Education in the state which receive D.A. component for the approved teaching and non-teaching staff of their schools from the Govt. Of West Bengal will have to pay salary in the appropriate scale of pay from their own resources to the approved teaching and non-teaching employees at the rate prescribed by the State Govt. For teachers and non-teaching employees of the Govt. Aided Schools with immediate effect. It is also decided that the approved teaching and non-teaching employees of those D.A. getting schools will get D.A. from the Govt. (on percentage basis) at the rate as is admissible to other employees of State Govt. Aided Education Institutions as is announced from time to time by the state, in supersession of all the previous orders issued from the Govt. To this effect, provided that these posts were duly sanctioned by the Govt. And appointment of teaching and non-teaching staff to these posts were approved by the Govt. It is reiterated in this connexion that no school will claim D.A. for the staff who is/are not approved and is/are not within the sanctioned strength. The Director of School Education, West Bengal is requested to inform the authorities of all D.A. getting schools to follow the order so that the approved teaching and non-teaching employees of these D.A. getting schools are paid their salaries by them, as per decision. D.A. component will only be released by the D.I. on verification of monthly acquaintance rolls of the approved staff. This order will take immediate effect. Sd/- D. Basu Spl, Secretary to the Govt. Of West Bengal Kolkata, the 5th June, 2002";