R.K Mahajan, J.:— This is a writ petition filed by petitioner seeking a writ, order or direction in the nature of mandamus commanding the respondents not to enforce the notification dated 1st December, 1984 (Annexure-2 to the writ petition). The notification relates to the enforcement of minimum wages to the teachers and staff of the Primary School issued in exercise of the powers under clause (b) of sub-section (1) andclause (c) of sub-section (2) of Section 3 read with clause (1) of sub-section (1) of Section 4 of the Minimum Wages Act, 1948 (Act No. 11 of 1948) read with Section 31 of the General Clauses Act, 1897 (Act No. 10 of 1897). Itwas issued after having invited objections from the affectedparties and suggestions in respect of proposals published. The notification is to regularise wages of untrained teacher, trained teacher and Junior Basic Teacher etc. So it relates to the trained and untrained teachers rates and wages from 325 to 515/- per month. In this notification the category of workers i.e fourth class peon, cleaner and other unskilled workers, rickshaw chalak, etc. have also been mentioned. We are not concerned with them in this petition.
2. The petitioner is a primary school registered under the Societies Registration Act, 1960 and is running the school at Varanasi. It is a private school. The petitioner challenges the vires of notification on so many grounds. But worthmentioning the ground on which the challenge has been made is that the teachers cannot be treated as workers as contemplated under the Industrial Disputes Act or Minimum Wages Act and as such the notification is not applicable. It has also been challenged that the petitioner has no capacity to pay in case of implementation of notification and as such it has to be quashed. The petitioner alleged that it is imparting disciplined education to the children. The petitioner school never got or availed Government money by way of financial Government aid. The petitioner seeks that the labour department be restrained not to enforce it.
3. There is a counter-affidavit on the part of labour department reiterating the stand of due publication of the notification and its validity and applicability.
4. The writ petition was admitted and the notification was stayed. We have heard the learned counsel for the parties at length and perused the material on record.
5. The learned counsel for the petitioner has brought to our notice cancelling similar type of notification issued by Haryana Government for applying minimum wages to the different categories of teachers and employees serving in private school. The language is the case as of the notification issued by the U.P Government. It has been struck down by the Hon'ble Supreme Court in (1996) 4 SCC 225 : AIR 1996 SC 2108 : (1996 Lab IC 1809) Haryana Unrecognised Schools' Association v. State Of Haryana.. The Hon'ble Supreme Court has made the following observations:—
“A combined reading of Ss. 2(i) and 27 make it explicitly clear that the State Government can add to either part of the Schedule any employment where persons are employed for hire or reward to do any work skilled or unskilled, manual or clerical. If the persons employed do not do the work of any skilled or unskilled or of a manual or clerical nature then it would not be possible for the State Government to include such an employment in the Schedule in exercise of power under Section 27 of the Act Since the teachers of an-education institution are not employed to do any skilled or Unskilled or manual or Clerical work and therefore could nbt be held to be an employee under Seation 2(i) of the Act, it is beyond the competence of the State Government to brirg them Under the puurview of the Act by adding the employment in educational institution in the Schedule in exercise of power under Section 27 of the Act. The State Government in exerciseiof powers under the Act is not entitled to fix the minimum wage of such teachers.
Decision of Punjab and Haryana Highi Court, Reversed.”
6. The main argument which Was advanced and accepted by the Hon'ble Supreme Court, is that the Minimum Wages Act cannot apply to the employment of private coaching nursery schools imparting education as they are not the workmen and they cannot be treated under the Scheduled employment by making notification under the Minimum Wages Act. Sri Rakesh Dwivedi, learned Additional Advocate General, was asked to assist the Court: He submitted that even the notification has been declared invalid, it can be supported from differnt source of power tinder Article 162 of the Constitution of India and btheri provisions of the Indian Constitution and the same may be held Valid considering it to be executive orders issued by the Government. He further submitted that the minimum wages can be supported after considering orders having been issued under executive, powers to, implement fundamental rights, and directive principles under Articles 21 and 23 and also under Articles 38, 39(a), (e) and (f), 39-A, 41, 42, 43, 46 and 47 of the Constitution of India. The arguments submitted by him are persuasive and ultimately they are likely to fail/Unless there is legislative enactment to regulate the case of them by enacting suitable legislation for unorganised workmen, like teachers in the private school, the Court may notbe able to help them under this notification. In our considered view, once a notification has been held invalid, we cannot in the garb of forcing contractual obligations, declare it valid in the light of Article 23 of the Constitution of India on the reasoning that it is sort of Begarwith the effected persons are doing for the employer.
7. Now the right of education has been recognised as fundamental right in Unnakrishnan case by the Apex Court while interpreting Article 21 and Article 45 of the constitution of India. Article 45 relates to the provision for free and compulsory education for children. The same is quoted below with the advantage:—
“Art-45. Provision for free and compulsory education for Children:— The State shall endeavour to provide within a period of ten years from the commencement of this Constitution for free and compulsory educaition for all Children until, they complete the age of fourteen years.”
8. The condition of Indian society is such that there are lack of economic sources to provide education and to achieve the object of Article 45 and the State has to give necessary aid and help At the same time the State is also duty bound to see that in the private contractual matter, may be unorganised workers, helpless educated persons, the implementation of Article 23 is enforced. Article 23 provides as under:—
“Prohibition of traffic in human beings and forced labour:— (1) Traffic in human beings and begarand other simlar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
(2) Nothing, in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.”
9. The Supreme Court in the case of People's Union for Democratic Rights v. Union of India, reported in (1982) 3 SCC 235 : (AIR 1982 SC 1473) has observed that exaction of labour and services against payment of less than the minimum wages, held, amounts to forced labour and violates Article 23. The Court can direct “The payment of minimum wages. So even if the institutions are private and element public duty is involved, the Stateis bound to over see by enacting suitable legislation, if it is not in existence and to bring these categories of persons so that the object, as contained in Article 51A(j) of Part IVA relating to fundamental duties of the Constitution of India, is achieved. The same in quoted as under:—
(i). to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises, to higher levels of endeavour and achievement.”
10. If the teachers are not paid wages in private institution i.e to the extent of minimum wages, there would be no teaching of standard level which has fallen down and would be reduced to zero level Article 21 provides the protection of life and personal liberty. No person; shall be deprived of his life or personal liberty except according to procedure established by law It meant to ensure a life with human dignity so at least even if the notification has been struck down on the ground that, they, are not workmen, it is expected from the State to frame suitable legislation and we hope and trust that the State would think on these lines and especially keeping in view provisions of Article 43 of the Constitution of India in respect of living wage etc. Article 43 is quoted as under:—
“43. Living wage etc., for workers:— The State shall endeavour to secure by suitable legislation or economic organisation or in any other way to all workers, agricultural, industrial or otherwise, wprk a living wage, condition's of work enduring a decent standard of life and full enjoyment of eisure and social and cultural opportunities” and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas.”
11. It looks very unreasonable and funny that a person has a, right to live with dignity and not with animal existence but the State does notprotect from the exploitation by way of framing suitable legislation and the unorganised persons of this category are forced to get illusory payment from the management. There is acute unemployment with the spread of education. So may teachersare unemployed. Once the school is recognised, aid is given by the Government, teachers are entitled to get pay at par with regular teachers. The Government has also no economic source to open so many schools and the Government shuns away to give aid. The Trend of the judgment of the Supreme Court is that once the aid is given, the liability of the Government is to pay better emoluments at par with recognised State aided schools. So there is big dilemma in the conditions of Indian society and this exploitation goes on. It is for the Government to think on this aspect.
12. An exercise of power can always be traced to the correct source of power, even if a wrong source is mentioned. We are of the considered view that it is not possible to trace powers in this cases specially, when, the Government issued notification covering them under Minimum Wages Act: It may be under wrong advice of the administrative department and legal Opinion but we are helpless. Sri Dwivedi has further submitted that the State executive power is co extensive with the legislative powers and there is no dispute Article 162 is quoted below with the advantage;:—
“162 Extent of executive power: of State: Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to and limited by the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.”
13. There is no dispute about the proposition of law but the arguments of the learned Counsel cannot be accepted as it needs enactment of proper law and specifically when a notification has been declared invalid, it would be wrong policy to trace the power by holding that it;was issued in the facts and circumstances of the case under executive powers.
14. So we are of the view that after the Supreme Court's judgment, the notification has been declared invalid and thus the impugned notification so far it covers the teaching staff is invalid. Therefore, we allow the writ petition in the light of the above observations. The Registrar to send a copy of this judgment of the Chief Secretary, U.P Government, Lucknow for information in the light of the observations made in this judgment.
15. Petition allowed.