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30 Apr

Empowerment of Private School Employees is a Constitutional Right- Justice Manmeet Singh Arora

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Case Name: Social Jurist v. Government of NCT of Delhi & Ors

Case No.: W.P.(C) 888/2024

Dated: April 29, 2024

Quorum: Justice Manmeet Pritam Singh Arora

FACTS OF THE CASE:

The facts of the case revolve around The Right of Children to Free and Compulsory Education Act, 2009 (the “RTE Act”), read with the Delhi School Education Act, 1973 and the Delhi Right of Children to Free and Compulsory Education Rules, 2011 (the “RTE Rules”), has been filed as a public interest lawsuit (PIL) to draw attention to the fact that 2,69,488 students enrolled in schools run by the Directorate of Education, GNCTD, and 3,83,203 students enrolled in schools run by the Municipal Corporation of Delhi (MCD) are being denied access to the statutory benefits like uniform, writing materials, books, stationery items, school bags, scholarships, etc.

The Fundamental Right to Education, which is protected to pupils under Article 21-A of the Constitution, is violated when GNCTD and MCD fail to provide the students with the aforementioned statutory advantages in a timely manner. This failure is arbitrary and unethical.

It is mentioned that all students attending GNCTD and MCD-run schools have the right to free textbooks, writing supplies, and uniforms under Rule 8 of the RTE Rules. Nevertheless, it is claimed that instead of giving away free text books, writing supplies, and uniforms, GNCTD and MCD are paying students directly from their bank accounts.

3,83,203 pupils enrolled in MCD-run schools have been denied these statutory benefits due to a lack of bank accounts from the 2016–17 academic year to the 2022–23 academic year, according to the Chief Auditor, MCD, in his Audit Memo of November 14, 2023. In a similar vein, the Directorate of Education, GNCTD (the “DoE”) letter dated December 29, 2023 notes that 2,69,488 kids enrolled in schools managed by the GNCTD have likewise been denied statutory financial advantages due to the lack of active bank accounts.

When GNCTD and MCD neglect to promptly supply the students with the aforementioned statutory advantages, they are infringing upon their constitutionally guaranteed Fundamental Right to Education (Article 21-A). This is an inequitable and arbitrary failure.

A civil rights organisation is the petitioner, Social Jurist. Nearly 10,000 unregistered and unrecognised schools in various Delhi neighbourhoods are at issue in this case. NGOs, institutions, and private persons manage these schools. These schools educate about 600,000 students in a range of classes from LKG to 12th grade, who are between the ages of 2 and 18.

CONTENTIONS OF THE PETITIONER:

The petitioners strongly contended that the reply to affidavit of the DoE dated March 23, 2023, filed in has been cited by Mr. Ashok Aggarwal, the petitioner’s learned counsel. He said that the GNCTD has testified in this affidavit before this Court that all students in government-run schools in classes “preschool” through “VIII” receive a full set of textbooks at no cost to them after having them printed by the Delhi Bureau of Textbooks, along with workbooks and other supplementary materials were provided.

The petitioners further contend that GNCTD has represented that writing supplies (notebooks and stationery) will be given “in kind” to students starting with the academic year 2023–2024. In this regard, the heads of the school(s) in question have been given permission to buy writing supplies and give them to the students enrolled in the aforementioned schools starting in the academic year 2023–2024. In addition, the GNCTD has announced that starting with the academic year 2024–2025, the Head of School(s) will have the authority to purchase uniforms and provide them to the students; in the interim, pupils will get payment in cash for the academic year 2023–2024.

Therefore, thye conteded, it is essential that the MCD immediately provide its students with the statutory benefits “in kind” in lieu of cash, pending the resolution of the bank account opening issue. This will ensure that the students’ Fundamental Rights are protected and they receive the statutory guaranteed uniforms, note books, stationery items, school bags, etc. for the current academic session of 2024–2025.

He said that the current petitioner has also brought attention to the issue of the lack of infrastructure in the form of dilapidated buildings, classrooms, etc. in the schools of GNCTD and MCD, and this Court is taking it into consideration. He said that there are schools that are set up and operated fully in a tin shed, and that the summer months are difficult for the pupils and teachers who work there, respectively. According to him, there are schools where there is no furniture and students attend classes while sitting on the floor. He declared that the problem of damaged chairs and desks in classrooms is an urgent one that affects every school.

CONTENTIONS OF THE RESPONDENTS:

The respondent’s counsel acknowledged that they are required to give statutory benefits, such as school bags, note books, stationery, uniforms, etc., to the students “in kind” rather than in cash. For the 2022–2023 academic year, these statutory benefits were given “in kind” to the students enrolled in MCD schools. It is said that, however, due to procurement difficulties, these statutory advantages could not be given to students “in kind” for the academic year 2023–2024. As a result, students with bank accounts received payment for these benefits in cash.

The absence of bank accounts is acknowledged as the reason 2,73,346 students were not able to receive the required benefits under the RTE Rules during the 2023–2024 academic year.

The respondent, who joined the proceedings via video conference on April 23, 2024, informed this court that the Standing Committee of MCD, which does have the necessary financial power, is non-functional, and that it is not possible for him to provide the students with “in kind” benefits for the academic year 2023–2024 because neither he nor the Commissioner have the necessary financial power to award contracts for the procurement of these statutory items.

The respondents further acknowledged that, in a similar vein, MCD has not been able to award contracts for the procurement of the aforementioned items because it lacks the necessary financial power, and as a result, has not been able to obtain the statutory benefits for the current academic session of 2024–2025, such as uniforms, note books and stationery items, school bags, etc. for distribution “in kind” to the students. According to the Commissioner, contracts over the financial limit of INR Five crores can only be awarded by the Standing Committee, which also has the authority to do so. As a result, he acknowledged that he was unable to fulfil his legal duties to the students.

LEGAL PROVISIONS:

Section 10(1) of the Delhi School Education Act, 1973 (DSE Act): The petitioner requested that the recommendations of the 7th Pay Commission be applied to the salaries of teaching and non-teaching staff at Delhi’s independent private schools. The argument was founded on DSE Act Section 10(1), which deals with the salary, perks, and allowances of staff members working in private schools.

7th Pay Commission Recommendations: Employees of private schools that operate independently should be covered by these guidelines, according to the petitioner. Whether the DSE Act required these suggestions to be implemented was a question the court addressed.

Article 21 of the Constitution of India: The petitioner claimed that it was a violation of their fundamental rights to deny access to specific medical facilities to individuals who were not Delhi residents. The right to personal liberty and life is guaranteed by Article 21.

COURT’S ANALYSIS AND JUDGMENT:

The non-constitution of the Standing Committee of the MCD since 2023 is a matter of record, and this court would like to note that the non-procurement and its effect of not providing the statutory benefits of uniforms, note books and stationery items, school bags, etc. to the students studying in the MCD schools, first for the academic session of 2023–24 and now 2024–2025, is an undesirable and regrettable state of affairs.

The MCD Commissioner further acknowledged that as GNCTD is still in the process of producing and acquiring the textbooks, kids in MCD schools have not yet gotten any from the organisation. School will be closed for summer vacation starting on May 10, 2024, and the current academic session began on April 1, 2024. For this reason, the first session has practically ended without the students’ use of textbooks, notepads, writing supplies, stationery, etc. Taking into account the previously mentioned details, this Court finds it difficult to envision the inadequate level of instruction provided to the pupils during this inaugural session without these essential resources, to which they are legally and constitutionally entitled.

In order to fill the void left by the Standing Committee’s unconstitutionality, the Court expressed a preliminary opinion that the Commissioner, MCD, should be given more financial authority by a suitable GNCTD authority. This will allow the Commissioner to grant contracts for the purchase of these statutory benefits for the MCD schools’ students.

The court noted that there was potential for regulation of the right to establish an educational institution. However, these regulations did not go so far as to impose a strict tuition schedule, prescribe the structure and makeup of the governing body, or require private school employees and instructors to be nominated.

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Judgment reviewed by Riddhi S Bhora.

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26 Jan

JUDICIAL OFFICERS ARE NOT ON PAR WITH GOVERNMENT EMPLOYEES: SUPREME COURT

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blog, Blog # government, #Employees, #judicial, #Judiciary, #SupremeCourt

Case title: All India Judges Association V. Union of India & Ors.

Case no.: Writ Petition Civil no. 643 of 2015

Decided on: 04.01.2024

Quorum: Hon’ble Chief Justice of India Dr. D.Y Chandrachud, Hon’ble Justice J.B Pardiwala, Hon’ble Justice Manoj Misra.

FACTS OF THE CASE:

The present writ petitions are concerning the allowances which have been granted to judicial officers and retired judicial officers by Second National judicial pay commission.

This Court adopted the Second National Judicial Pay Commission’s recommendations on the revision of judicial officers’ salary and pension by orders dated July 27, 2022, April 5, 2023, and May 19, 2023. Justice P V Reddy, a former judge of this Court of India, chaired the commission.

The court noted that, with the exception of three allowances that were modified, the allowances recommended by the First National Judicial Pay Commission, also known as the Shetty Commission, were upheld by this Court in All India Judges Association v Union of India in 2002. Following that, this Court accepted all allowances recommended by the subsequent pay commission, the Judicial Pay Commission, also known as the Justice Padmanabhan Committee, in its decision All India Judges Association v Union of India 2010.

In the report, the SNJPC took twenty-one allowances into account. Two new allowances are suggested among the SNJPC’s recommended allowances, and one allowance has two more components added to it.

The SNJPC has given state governments and union territories the opportunity to object to the allowances proposed. This Court’s record contains objections.

PETITIONERS OBJECTIONS:

The objections said by governments are that there will be a greater financial burden and expense as a result of the rate revision or, if applicable, the new allowances. It is necessary to abide by the allowance payment regulations set forth by each State for its own administrative establishment. Judicial officers must receive benefits that are commensurate with those of other government employees.

COURT ANALYSIS AND JUDGMENT:

The court on same benefits as govt. employees held that Judicial service is an integral and significant component of the state’s functions, contributing to the constitutional obligation to uphold the rule of law. Judicial service is distinct in its characteristics and in the responsibilities entrusted to District Judiciary officers to provide objective justice to citizens. The State is responsible for ensuring that the conditions of service, both during and after office tenure, as well as the post-retirement emoluments made available to former members of the judicial service.

The court on one of the objections raised by government that a financial burden cannot be used as an excuse to avoid the state’s mandatory duties. One such duty is to provide necessary service conditions for the effective discharge of judicial functions. There is also a need to maintain consistency in the service conditions of judicial officers across the country. Thus, the argument that each state’s rules must govern pay and allowances lacks substance. It would be completely inappropriate to compare judicial service to that of other state officers. Members of the judicial service have distinct functions, duties, restrictions, and restraints that apply both during and after service.

The court accepted the 21 recommendations of SNJPC and directed the formation of a Committee in each High Court to oversee the implementation of the SNJPC’s recommendations as approved by this Court. The Committee shall be known as the “Committee for Service Conditions of the District Judiciary.” All states and union territories must now act promptly in accordance with the aforementioned directives. Disbursements for arrears of salary, pension, and allowances due and payable to judicial officers, retired judicial officers, and family pensioners shall be computed and paid on or before February 29, 2024. The CSCDJs established in accordance with the previously issued directives must monitor compliance.

By no later than April 7, 2024, each Committee operating under the High Court’s auspices must submit its report to this Court through the High Court’s Registrar General.

Written by – Surya Venkata Sujith

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6 Nov

The Bombay High Court held that Municipal Corporation Employees in the Octroi Department Do Not Have a Vested Right to Commission on Fees Paid to Evaders

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Title: Municipal Commissioner Pune Municipal Corporation and Anr. v. Ashish Laxman Chavan

Decided on: 03 November, 2023

+ Writ Petition No. 8953 of 2018

CORAM: Hon’ble Justice Mr. Sandeep V. Marne

Introduction

The Hon’ble Bombay High Court held that the workers employed by a Municipal Corporation’s Octroi department are not entitled to commission (Mushahira) on compromise fees that the department collects from those who avoid Octroi.

Facts of the Case

Pune Municipal Corporation has filed the current petitions in an effort to overturn the orders that the Industrial Court made in response to several complaints submitted by respondent employees. The Petitioner-Corporation has been required by the Industrial Court to pay the Respondent-Employees’ part of the “Mushahira” within a three-month term after the court accepted the concerns of the Respondent employees. A 20% incentive known as “mushahira” is given to staff members based on the compromise fees that are recovered from tax evaders. The Industrial Court has additionally mandated that if the amount owed is not paid within three months, interest at the rate of 6% per annum would be levied.

Courts analysis and decision

The court ruled that although Mushahira is not a part of salary, it is a special payment or allowance that needs the state government’s prior approval. According to the court, the 1984 Resolution might be viewed as having an enabling clause that gave PMC the authority to punish Mushahira for apprehending specific cars that were avoiding Octroi. However, the court determined that the employees had no legal basis for demanding Mushahira.

The court noted that granting certain workers more compensation would result in prejudice and unhappiness among other workers. “Such a method of payment of any amount above and above salary and allowances would result in employee discrimination and give other employees who are not stationed in the Octroi Department indigestion. The court stated that such a system would also lead to needless demands from the staff for postings in the Octroi Department. The court emphasized the exorbitant claims made by certain employees for Mushahira, noting an unacceptable demand of Rs. 12,00,000 as an example. As a result, the court overturned the Industrial Court’s ruling.

Written by- Hargunn Kaur Makhija

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23 Aug

Bombay HC: Sweepers employed through contractors are “employees” eligible for permanency benefits

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Title: Municipal Corporation of City of Jalgaon v. Miraj Mahila Audyogik Cooperative Society Ltd., & Ors.

Decided on: 22.08.2023

+ WRIT PETITION NO. 9740 OF 2018

CORAM: KISHORE C. SANT, J

Facts of the Case:

The petitioner in this petition is a Municipal Corporation established under the provisions of the Bombay Provincial Municipal Corporation Act, 1949. Respondent Nos.1 to 4 are labour contractors, who were engaged by the petitioner. Respondent No.5 is the Union of workers working as Safai Kamgars and Scavengers in petitioner-Corporation.

Challenge is raised to a judgment and order dated 26.09.2017 passed by the learned Industrial Tribunal, Jalgaon in which directions are given to the petitioner to treat 645 persons as direct employees of the Corporation and to give them all the benefits of a permanent employee.

The learned Industrial Tribunal held that there is direct relationship as employer and employee between the petitioner and the sweepers as per list. It is a case of the petitioner that the Corporation had engaged labour contractors to supply labours for various services in the Corporation and there is no direct relationship as employer and employee between the sweepers and the Corporation.

Issues:

Whether sweepers were the “employees” of the Corporation although they were employed through contractors?

Contentions:

The petitioner has approached this Court mainly contending that the labour contractors were given contract by inviting open tenders by publishing advertisement in the local newspaper. The State Government had taken a conscious decision to permit local self-bodies to engage contract workers. The direction to give equal pay for equal work as given to the regular workers is not justified. The finding of the learned Tribunal that since there was no signature of the Commissioner on the contract, said contract cannot be treated as a valid contract, is against the law. Condition No.11 of Contract Labour (Regulation and Abolition) Act, 1970 provides that the employees engaged through contractor will have no right to get regular service by absorption. The salary was paid through the contractor. The control over the labour was of the contractors and not of the Corporation. It is also contended that if the judgment is to be implemented there will be huge financial burden upon the Corporation.

On the other hand, the Respondents argued that so called contract does not bear signature of the Commissioner. The contract is signed by the Deputy Commissioner as an attesting witness. There is no order produced on record to show that the power to enter into contract on behalf of the Corporation was delegated to the Deputy Commissioner. The Contract is against the provisions of sections 73, 74 and Chapter 5 of the Schedule-D of the Maharashtra Municipal Corporation Act. The Corporation and the Contractors both do not have license under the CLRA Act. The work of the employees is supervised, controlled and monitored by the Corporation. The work is also assigned by the Corporation only. The muster of the employees is maintained by the Corporation. Even the wages are calculated and fixed by the Corporation. The work is of continuous nature. Respondents deposed that all the workers are entitled to get benefits of permanency.

Decision:

Court finds that the learned Tribunal has rightly come to a conclusion that the work was of permanent nature. There is no license held either by the Corporation or by the contractors as required under the CLRA Act. Supervision and entire control over these workers were with the petitioner Corporation. Though the contractors were changed, the labours/workers remained the same.

This Court finds that the learned Presiding Officer by way of the impugned order has rightly declared that the alleged Labour Contractors mentioned in cause title are a camouflage. There exists employer-employee relationship between the first party and the sweepers enlisted with the Memorandum of Demand Exh.U-1.

The petition is dismissed.

Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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23 Aug

Delhi High Court Denies Additional Increment to Employees Due to Non-fulfilment of Eligibility Criteria

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Title: FOOD CORPORATION OF INDIA Vs SMT. SUNITA KUMARI & ANR

Decided on: 10th August, 2023

+ LPA 62/2020 & CM APPLs. 4141/2020, 4142/2020

CORAM: HON’BLE MR. JUSTICE MANMOHAN HON’BLE MS. JUSTICE MINI PUSHKARNA

Introduction

The Delhi High Court recently ruled on a case involving the eligibility for an additional increment under the Stagnation Impact Amelioration Scheme, 2014 (SIA Scheme). The court held that the respondents, who had not completed six years of regular service in their previous post before being promoted to a higher post, were not eligible for the benefit of an additional increment as per the SIA Scheme.

Facts

The respondents were initially appointed to the post of Assistant Grade – III (Accounts) and later promoted to the post of AG – II (Accounts) after which they were further promoted to the post of AG – I (Accounts). The Stagnation Impact Amelioration Scheme, 2014 was introduced to provide additional increments to eligible employees on stagnation after completion of specific years of regular service in the same post/pay scale.

Analysis

The respondents requested an additional increment under the SIA Scheme, arguing that the delay in their promotion was not their fault. However, the appellant declined the request, and the respondents sought the benefit through a petition. The High Court analyzed the eligibility criteria under the SIA Scheme and noted that additional increments were granted to employees who had completed 6, 12, and 20 years of regular service in the same scale. The scheme stated that the additional increment would be applicable from the day next to the actual completion of the required years of service.

The Court also highlighted Clause 22 of the scheme, which specified that the benefit of the additional increment would only be given to those who couldn’t be promoted due to non-availability of vacancies or administrative reasons.

Held

The Court observed that the respondents had not completed six years of regular service in their previous post before being promoted to AG – I (Accounts). Additionally, the SIA Scheme was not in existence before September 1, 2008, and the respondents’ promotion was before this date. As a result, the Court held that the respondents were not eligible for the additional increment under the SIA Scheme as per the scheme’s criteria. Clause 22 or any other provision of the scheme couldn’t be applied retrospectively for the period when the scheme wasn’t even in place.

Conclusion

The Delhi High Court’s decision reaffirms the importance of adhering to the eligibility criteria stipulated under specific schemes. It highlights the need to interpret such schemes based on their effective dates and the existence of necessary conditions at the time of promotion or implementation.

Written by- Ankit Kaushik

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