NAOLEKAR, J. - (1.) THE writ petitions are placed before the Full Bench on a reference made by the Division Bench of this Court vide order dated 20. 2. 2001. THE question arose before the Division Bench as to- whether the teachers of Non Government Educational Institutions (for short `ngeis') who are receiving grant-in-aid under the Rajasthan Non Government Educational Institutions Act 1989 (for short `the Act') read with the rules framed thereunder, namely the Rajasthan Non Government Educational Institutions (Recognition, Grant-in-aid and Service Conditions etc.) Rules 1993 (for short `the Rules'), are entitled to selection scale as given to the employee/teachers serving in government education institutions by virtue of the circular/order dated 25. 1. 1992, whether the government is bound to give grant-in-aid for selection scale of the teachers of NGEIs receiving aid, and whether the teachers of NGEIs receiving aid are entitled for leave encashment benefits after retirement under the Act and the Rules framed thereunder and it was thought proper by the Division Bench to place writ petitions before the Full Bench for determination of the question involved in these writ petitions. In all these petitions, petitioners are recognized private educational institutions, which are run by various educational societies, receiving aid from the government. Respondents, who are the working/retired teachers of the petitioner educational institutions, had approached the Non Government Educational Institutions Tribunal under Sec. 21 of the Act for redressal of their grievances regarding grant of selection scale and benefit of leave encashment. THE Tribunal allowed their applications which resulted in filing of these petitions by the educational institution who were respondents therein. THE Division Bench referred the matter to Larger Bench.
(2.) THE Government of Rajasthan vide circular issued on 23. 1. 1985, has given selection scale on completion of fifteen years of satisfactory service after regular appointment on a post to the Government servants in the ministerial and subordinate services including isolated posts drawing pay in Rajasthan Civil Services (Revised Pay Scales) Rules, 1983. Similarly, vide circular dated 25. 1. 1992 the State of Rajasthan has provided selection scales to the employees in class IV, ministerial and subordinate services and those holding isolated posts and drawing pay in revised pay scales after completion of nine, eighteen and twenty-seven years of service on a post from the date of their initial appointment and whose record of service is satisfactory. After issuance of the circular by the government on 25. 1. 1992 the question arose as to whether the teachers of NGEIs are entitled to claim the benefit under the aforesaid circular issued, therefore, the government issued another circular issued, therefore, the government issued another circular dated 17. 11. 1997 clarifying that selection scale will not be available to the teachers of NGEIs. The counsel for petitioners submitted that the grant of selection scale is a substitute for promotion and the Teachers of NGEIs being not entitled for any promotion as there are no promotional avenues available to them, they are not entitled to selection scale. It is further contended that no record is maintained for appraisal of their calibre in service and, therefore, the test laid in the Circular that the government servant will only be entitled for selection scale on completion of 9, 18 and 27 years of satisfactory service, cannot be applied in their cases, it indicates that the circular has no application to the cases of these teachers nor they can claim any benefit under the circular. Before we consider the legal submissions made by the counsel for petitioners we would like to refer to certain decisions of the Apex Court to find out as to how the right to education has been taken note of and as to what is the status of teachers in NGEIs vis-a-vis the teachers of government schools in the matter of parity of pay scales and other allowances. In Mohini Jain vs. State of Karnataka (1)- " The right to life" is the compendious expression for all those rights which the courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Govt. is under an obligation to make endeavour to provide educational facilities at all levels to its citizens. " The need to provide free education to the children until they complete the age of 14 years as a matter of compulsory obligation of the state and to endeavour to secure the right to education thereafter to its citizens subject to financial resources available to it, is envisaged under Article 45 of the Constitution of India. In State of Kerala vs. N. M. Thomas (2), the apex court expressed. ". . . there appears to be a complete unanimity of judicial opinion of this Court that the directive principles and the fundamental rights should be construed in harmony with each other and every attempt should be made by the Court, to resolve apparent inconsistency. The directive principles contained in Part IV constitute the stairs to climb the high edifice of a socialistic State and the fundamental rights are the means through which one can reach the top of the edifice. " In Unni Krishnan, J. P. & others vs. State of Andhra Pradesh & others (3), it was observed- " The right to education which is implicit in the right to life and personal liberty guaranteed by Article 21 must be construed in the light of the Constitution. So far as the right to education is concerned, there are several articles in Part IV which expressly speak of it. Article 41 says that the "state shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want". Articles 45 says that "the State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years. ". . . A true democracy is one where education is universal, where people understand what is good for them and nation and know how to govern themselves. The three Articles 45, 46 and 41 are designed to achieve the said goal among others. It is in the light of these Articles that the content and parameters of the right to education have to be determined. Right to education, understood in the context of Articles 45 and 41, means; (a) every child/citizen of this country has a right to free education until he completes the age of fourteen years and (b) after a child/citizen completes 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its development. We may deal with both these limbs separately. " " The citizens have a fundamental right to education. The said right flows from Art. 21. This right is, however, not an absolute right. Its content and parameters have to be determined in the light of Arts. 45 and 41. In other words, every child/citizen of this country has a right to free education until he completes the age of fourteen years. Thereafter, his right to education is subject to the limits of economic capacity and development of the State. . . "
(3.) IN Haryana State Adhyapak Sangh & others vs. State of Haryana & others (4), RS Pathak CJ. , as he then was, speaking for the court held- ". . . IN our opinion, the teachers of aided schools must be paid the same pay scale and dearness allowance as teachers in government schools for the entire period claimed by the petitioners. . . . " In Haryana State Adhyapak Sangh vs. State of Haryana (5), the apex court observed in para 10. " The judgment of this Court dated 28. 7. 1988 also accepts the principle of partly in the matter of salaries and dearness allowance of teachers employed in aided schools and those employed in government schools and there is nothing in the judgment which indicates that the said principle of parity is to be applied up to 31. 12. 1985 only, and not thereafter. In the circumstances we are of the view that the direction of this Court in the judgment dated 28. 7. 1988 must be construed to mean that the respondents are required to maintain such parity and to revise, from time to time, the pay scales and dearness allowance of the teachers employed in aided schools as and when the pay scales and dearness allowance of teachers employed in government schools are revised. It is, therefore, incumbent upon respondents to revise the pay scales of teachers employed in the aided schools so as to bring the same at par with the pay scales of the teachers employed in government schools with effect from 1. 1. 1986 and fix the salaries of the teachers employed in aided schools in the revised pay scales with effect from 1. 1. 1986 and pay the salaries and dearness allowance to these teachers on that basis. " In State of H. P. vs. H. P. State Recognised & Aided Schools Managing Committees & Others (6), it is held that the teachers of the aided schools teach the same syllabus and curriculum, prescribed the books and courses as per Government directions and prepare the students for same examinations for which the students studying in government schools are prepared. The qualifications of the teachers are prescribed by the State Government and the appointments are made with the approval of the State Government. It is obvious that the State Government has a deep and pervasive control on the aided schools. The government schools and the aided schools specially after the Kothari Commission Report-have always been treated on a par. It is further observed that it is too late in the day to say that the teachers in the aided schools are not entitled to parity in the matter of salary, allowances etc. with their counterparts in the government schools. ;