IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2700 of 2009(U)
1. KERALA PRE-PREIMARY TEACHERS &
... Petitioner
2. SHOULY N.J. PRE-PRIMARY TEACHER,
3. KALADEVI M.V.,
4. SMT. JESSY ALEX,
Vs
1. STATE OF KERALA, REPRESENTED
... Respondent
2. THE DIRECTOR OF PUBLIC
For Petitioner :SRI.ABRAHAM VAKKANAL (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :27/01/2011
O R D E R
ANTONY DOMINIC, J.
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W.P (C) No.2700 of 2009
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Dated this the 27th January, 2011
J U D G M E N T
First petitioner is an Association of the Pre
Primary Teachers and Ayahs. Second petitioner is a Pre-
Primary teacher, the 3rd petitioner is a Pre-Primary Ayah
and the 4th petitioner is the parent of a Pre-Primary
student.
2. Ext.P3 is an order issued by the Government of
Kerala permitting the Parent Teachers Association of
Government schools to hold Nursery classes in
Government schools where excess accommodation is
available at their own expense and to collect fees to meet
the expenses. Ext.P6 is the subsequent order issued by
the Government of Kerala, approving the guidelines for
the conduct of Pre-Primary classes in Government schools.
This Government order also provided that the PTA shall
meet the expenses by raising local resources levying fee
from the students.
3. It is stated that based on Exts.P3 and P6
orders, Pre-Primary classes were permitted to be started
in several Government schools where excess
W.P (C) No.2700 of 2009
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accommodation was available. In all those places, PTA took
over the entire responsibility for establishing the classes
and the PTA also made appointment of the Pre Primary
teachers and Ayahs. Exts.P30, 31 and 32 show these facts.
Petitioners 2 and 3 are Pre primary teacher and Ayah so
appointed on being selected by the respective PTA in
pursuance to the aforesaid policy decision of the
Government and the individual orders there were issued.
On their appointment, they were being paid salary based on
the fee collected from the students and such payments were
made by the PTA itself.
4. The appointees like petitioners 2 and 3 and their
Association, were making repeated representations to the
Government requesting for higher emoluments. It would
appear that based on those representations, which engaged
the attention of the Government, directions were issued to
the Director of Public Instruction to examine the matter and
to submit his report. Accordingly, the Director of Public
Instruction submitted Ext.P14 report to the Government.
In that report, it is stated that there are 1743 Pre- Primary
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Teachers and 1335 Ayahs who are working on salary paid
from out of the meager fees collected from the students. It
is also stated that Pre Primary Teachers and Ayahs who
were working in the Government runs schools and who
were recruited through the Public Service Commission,
were getting salary in the scale of Rs.4990-7990 and 4300-
5930 respectively. It is stated that if Pre-Primary teachers
and Ayahs like the petitioners 2 and 3 are to be paid salary
at the aforesaid rate, it involves an annual expenditure of
9.3 crores and that for such payment, legislative enactment
is necessary and that therefore they could be paid
honorarium at the rate of Rs.4000/- and Rs.2500/-
respectively. Despite the submission of Ext.P14, in spite of
various representations and meetings that were held by the
authorities of the Education Department including the
Minister concerned, no decision was taken in the matter. It
was at that stage, this writ petition was filed with the
prayer to direct the respondents to pay Pre-Primary
Teachers and Ayahs like petitioners 2 and 3 salary at the
rate as applicable to the Pre-Primary Teachers and Ayahs
W.P (C) No.2700 of 2009
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in the Government schools and for consequential reliefs.
5. During the pendency of the writ petition, this
Court passed an order on 1st of April 2009 directing that
the Government shall take a decision in the matter in the
light of Ext.P14 report submitted by the Director of Public
Instruction. Accordingly, petitioners again submitted
Ext.P24 representation and finally the Government passed
Ext.P29 order, the relevant portion of which reads as
under:
“Government have examined the matter in
detail. Those Pre – Primary Teachers and Ayahs
of Government schools getting wages from PTA
collected fees were not appointed by
Government. The Ext.P14 proposal of the DPI to
enhance the remuneration/honorarium to the
Teachers and Ayahs of Pre-Primary classes run
by the PTAs involve huge financial commitment
to the Government. At present Government are
not in a position to bear with the extra financial
burden and therefore the proposal submitted by
the DPI as per his letter read as 3rd paper above
(Ext.P14) cannot be considered now and the
same is rejected, thereby complying the Court
direction in W.P (C) No.2700/09 filed by the
Kerala Pre-Primary Teachers and Ayahs
Association and others.
6. Thereafter, the writ petition was amended
incorporating a challenge against Ext.P29. When the case
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came up for final hearing, although various contentions
have been raised. The main argument of the learned
Senior Counsel for the petitioners was that the liability to
provide free education to the children upto the age 14 is
that of the State and that therefore it is incumbent on the
part of the Government to establish Pre-Primary schools
appointing necessary staff for teaching and other matters.
It is stated that since the State has such a constitutional
obligation, State could not have issued any executive
orders in the nature of Exts.P3 and P6 and avoid the
responsibility of paying decent salary or honorarium to the
Teachers and Ayahs appointed in such schools. Further it
is also pointed out that recognising their obligation in this
behalf Government have already issued orders according
administrative sanction to pay honorarium at the rate of
Rs.300/- and 200/- to Teachers and Ayahs by order dated
23rd June 2010. It is also pointed out that the IXth Pay
Commission has also submitted its report recommending
to increase the honorarium payable to Teachers and Ayahs
to Rs.600/- and 300/- respectively.
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7. On behalf of the respondents, learned
Government Pleader disputed the liability of the
Government to pay any amount to the Pre-Primary
Teachers and Ayahs like petitioners 2 and 3. According to
the learned Government Pleader, the very establishment of
the Pre-Primary Schools were on the basis of Exts.P3 and
P6 orders referred to above, it is stated that while the
Government have agreed for the establishment of Pre-
Primary classes in Government schools having excess
accommodation, it was made clear that the Government
will not accept any monetary liability for payment of salary
to the Teachers or Ayahs who are appointed by the PTA.
It is also pointed out that it was on that basis, PTAs were
permitted to proceed with establishment of the Pre-Primary
classes, collecting fee from the students and paying salary
from out of such resources. Therefore, according to the
learned Government Pleader, the Government cannot be
saddled with any liability to pay salary or honorarium to
appointees like the petitioners 2 and 3 herein. It is also
contended that in the absence of any employer-employee
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relationship between the Government and Pre-Primary
Teachers and Ayahs, this Court will not be justified in
issuing any direction as sought for by the petitioners
involving huge financial liability on the Government. On
this basis, the learned Government Pleader prayed for
dismissal of the writ petition.
8. I have considered the submissions made by both
sides. Admittedly, Pre-Primary Teachers and Ayahs who
are members of the 1st petitioner, are employed in Pre-
Primary classes which were established on the basis of
Exts.P3 and P6 Government Orders. These orders show
that the Government permitted the establishment of such
Pre-Primary Schools in Government Schools where
additional accommodation was available. Orders clearly
provided that the PTA will establish the classes collecting
fee from the students admitted in such classes and pay the
wages from out of the fee collected. It was accordingly
that Pre-Primary classes were established.
9. As far as the appointment of the Teachers and
Ayahs are concerned, such appointments were also made
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by the PTA. Of course, the Headmaster of the school was
also involved in the selection process. But such
involvement of the Headmaster was in the capacity of the
representative of the PTA and was not on a representative
of the Government. Such involvement of the Headmaster
will not in any manner alter the nature of the appointment
nor will it entitle the appointees to make any claim against
the Government on that basis. Therefore, for all practical
purposes, Teachers and Ayahs were appointed by the PTA
and the Government or the Education Department had
nothing to do with the selection or appointment.
Therefore, the petitioners cannot claim any employer-
employee relationship with the Government. In the
absence of such a relationship, petitioners cannot have any
legal right to contend that the Government have the
liability to pay them salary much less at the rate at which
Teachers and Ayahs selected by the Public Service
Commission and appointed in Government schools are
paid. For this reason itself, this Court also cannot in the
exercise of its powers under Article 226 of the Constitution
W.P (C) No.2700 of 2009
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of India, call upon the Government to pay salary or
honorarium to the Teachers or Ayahs like petitioners 2 and
3.
10. Learned senior counsel for the petitioners
pleaded that the approach in a matter like this should be
justice oriented. However, justice can only be in
accordance with law and not otherwise than in accordance
with law and therefore this Court cannot accept that
argument and issue any such directions.
11. It is true that the Government appears to have
agreed to pay honorarium at the rate of Rs.300/- and 200/-
to the teachers and Ayahs and administrative sanction in
that behalf has seen accorded by G.O (MS) NO.99/10
dated 23rd June, 2010. The IXth Pay Commission also has
recommended revision of the honorarium. If the
Government voluntarily accepts such liability, it is free to
do that. But the question is whether this Court can force
the Government to accept any financial liability and in my
view the answer can only be in the negative.
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12. The argument of the petitioner based on the
contention that the children of this country are entitled to
have free education up to the age of 14. It is true, such a
right has been recognised by the Constitution and it is for
that purpose schools have been established by the
Government or in the private sector based on the
recognition granted by the Government. Such education,
in my view, cannot extend to Pre-Primary education such
as those imparted in pre-primary classes pursuant to Exts
P3 and P6. A reading of Exts.P3 to P6 itself show that
these classes have been established to ensure the
availability of sufficient students in the first standard in the
Government schools. Such classes cannot get the
protection of Article 21A and therefore this argument of
the learned senior counsel is only to be rejected and I do
so.
13. Therefore, this Court will not be justified in
issuing the directions sought for by the petitioners either
for directing the Government to pay salary or honorarium
to Teachers and Ayahs in classes established pursuant to
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Exts.P3 and P6. Therefore, I do not find any merit in the
writ petition. The writ petition therefore will stand
dismissed.
14. Learned senior counsel for the petitioners relied
on Ext.P9 and submitted that by this order the Government
have directed that the Pre-Primary Teachers of the
recognised schools should be paid minimum salary of
Rs.2500/-. As I already held that unless the petitioners
have an employer-employee relationship, the Government
cannot be called upon to make any payment. Therefore, if
at all the petitioners have such a claim, such claim can
only be against those who have employed then in Pre-
primary classes and therefore I am not persuaded to
accept that claim of the petitioners also.
In the result, writ petition is only to be rejected and I
do so. No costs.
Sd/-
ANTONY DOMINIC
JUDGE
ma
/True copy/ P.A to Judge