The Judgment of the Court was delivered by

Subrata Talukdar, J.:— The short point that arises for consideration in this writ petition connects to the petitioners, who are the permanent teachers of the respondent No. 6.School in issue and, stand deprived of their arrears in salaries for the period between 1st April, 2008 to 31 March, 2009 consequent to the Revision of Pay and Allowances (for short ROPA), 2009.

2. Sri. Uday Chandra Jha, Ld. Counsel appearing for the petitioners submits that following ROPA, 2009 revision in pay has been implemented throughout the State of West Bengal in all Schools which receive assistance by way of Dearness Allowance (DA) grants from the Government of West Bengal.

3. Sri. Jha submits that the respondent No. 6 is an Anglo Indian School which receives matching DA grants from the State. The respondent No. 6.School is also governed by the Code of Regulations for Anglo Indian Schools notified vide Notification No. 877-EDN(S) dated 24th December, 1993 (for short the Code).

4. Sri. Jha points out that a School such as the respondent No. 6, including all other Anglo Indian Schools within the State of West Bengal, stand governed by the Code in several facets of their functioning including, payment of salaries to staff members. Therefore, Ld. Counsel for the petitioners asserts that pursuant to the introduction of ROPA, 2009 the State Authority responsible for regulating the functioning of the Anglo Indian Schools under the Code being the Deputy Director of School Education (Anglo Indian Schools) (for short the Deputy Director) wrote several letters to the School/respondent No. 6 calling upon it to submit the arrear salary claims of teachers between 1 April, 2008 to 31 March, 2009. The abovenoted communication dated 25 August, 2011 was followed up by a communication from the said Deputy Director on 28 November, 2011 and, further on 31 August, 2012. It is useful for the purpose of the present discussion to quote the communication dated 31 August, 2012 which reads as follows:-

“St. Teresa's Secondary School, 72, Diamond Harbour road, Kol-23 is getting D.A from the Govt. time to time on the revised basic pay according to Ropa, 2009 but the teaching & non-teaching staff have not been paid arrears of pay for the period from 1.4.2008 to 31.3.2009 She is also reminded that to remain a D.A getting school, one school authority need to obey the abovementioned code of Regulations, 1993.”

5. Since the School continued to withhold disbursal of the arrears of revised ROPA, 2009 for the said period 1 April, 2008 to 31 March, 2009, the petitioners, who are all permanent teachers, upon failing to obtain any redressal from the School Authority in spite of several representations, have been now constrained to file the present writ petition.

6. Sri. Jha next takes this Court to the notices issued by the respondent No. 6.School dated 26 February, 2009, 2nd April, 2009 and 22 June, 2009 whereby the parents/guardians of the students of the respondent No. 6.School were informed that tuition fees have been raised. It is again useful for the purpose of the present discussion to set out in full the notice dated 22 June, 2009:-

“Due to the implementation of the recommendations of the 5 Pay Commission and to adhere to the stipulation by the Education Department of the State Government with regard to salaries/allowances payable to the Staff, the School had no other option but to raise the rate of Tuition Fees to meet the abnormal hike, the increase being the tune of 80% over the 4 Pay Commission.

St. Teresa's Secondary School is a D.A getting School, i.e- Dearness Allowance is paid by the State Government only to the approved staff of the School. The School does not receive any kind of aid from the Government and therefore, the School has to meet all financial liabilities from its own resources. Since it was not clear as to what rate Government would be paying dearness Allowance, the quantum of increase in the Tuition fees was computed accordingly.

However, since we have now been informed by the State Education Department that the old mode of payment of Dearness Allowance will continue for the present, the Founder Body of the School has decided, to provide some relief with regard to the monthly Tuition Fee. Thus, with the revised computation with the view to provide maximum relief possible, the rate of Tuition Fee has been reduced by Rs. 150/- (One hundred and Fifty only), the amount payable with effect from 1 April, 2009, the revised amount being Rs. 1250/- per month. All other charges will continue to remain the same.

However, we would further like to inform you that in the event Government changes the current mode and the quantum of Dearness Allowance is reduced, a fresh review of the Tuition Fee structure will become necessary and certain amount of increase in the Tuition Fee will be effected. Apart from the foregoing, the normal annual increments in salaries/allowances to the staff will also be a factor for review of the Tuition Fee structure.

Those Parents/Guardians who have already paid Tuition Fees at the enhanced rated of Rs. 1400/- per month from April 2009 onwards will be adjusted in the month of July, 2009.

We trust you will extend you fullest co-operation in the interests of your daughters and the Institution.”

7. Sri. Jha submits that the petitioners have been deprived of their legal right to obtain the benefits of ROPA, 2009. Relying upon settled judicial authorities, Sri. Jha points out that the receipt of revised salaries is not a bounty. The teachers of the respondent No. 6.School are legally entitled to receive the revised salaries at par with their counterparts in other Schools. The non-payment of the revised salaries constitutes a continuing wrong against the writ petitioners and, such continuing wrong can be redressed without any requirement of a defence to be taken under the law of limitation.

8. The further submission of Sri. Jha is that the respondent No. 6.School is claiming shortage of funds to deny the revised salaries. The plea of shortage of funds cannot be countenanced in the light of the judgment of the Hon'ble Apex Court in Frank Anthony Public School Employees Association v. Union of India reported in (1986) 4 SCC 707 which reads as follows:-

“17. Apart from the learned Judges who constituted the Nine Judge Bench, other learned Judges have also indicated the same view. In the leading case of the Kerala Education Bill, the Constitution Bench observed that, as then advised, they were prepared to treat the clauses which were designed to give protection and security to the ill paid teachers who were engaged in rendering service to the nation as permissible regulations. The observations were no doubt made in connection with the grant of aid to educational institutions but that cannot make any difference since, aid, as we have seen, cannot be made conditional on the surrender of the right guaranteed by Article 30(1). In State Of Kerala, Etc. v. Very Rev. Mother Provincial, Etc, (supra), it was said that to a certain extent the State may regulate conditions of employment of teachers. In All Saints High School v. Government of Andhra Pradesh, Chandrachud, C.J, expressly stated that for the maintenance of educational standards of an institution it was necessary to ensure that it was competently staffed and therefore, conditions of service prescribing minimum qualifications for the staff, their pay-scales, their entitlement other benefits of-service and the safeguards which must be observed before they were removed or dismissed from service or their services terminated were permissible measures of a regulatory character. Kailasam, J. expressed the same view in almost identical language. We, therefore, hold that Section 10 of the Delhi Education Act which requires that the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not be less than those of the employees of the corresponding status in schools run by the appropriate authority and which further prescribes the procedure for enforcement of the requirement is a permissible regulation aimed at attracting competent staff and consequently at the excellence of the educational institution. It is a permissible regulation which in no way ‘detracts from the fundamental right guaranteed by Art. 30(1), to the minority institutions to administer their educational institutions. Therefore, to the extent that Section 12 makes Section 10 inapplicable to unaided minority institutions, it is clearly discriminatory.

23. We must refer to the submissions of Mr. Frank Anthony regarding the excellence of the institution and the fear that the institution may have to close down if they have to pay higher scales of salary and allowances to the members of the staff. As we said earlier the excellence of the institution is largely dependent on the excellence of the teachers and it is no answer to the demand of the teachers for higher salaries to say that in view of the high reputation enjoyed by the institution for its excellence, it is unnecessary to seek to apply provisions like Section 10 of the Delhi School Education Act to the Frank Anthony Public School. On the other hand, we should think that the very contribution made by the teachers to earn for the institution the high reputation that it enjoys should spur the management to adopt at least the same scales of pay as the other institutions to which Section 10 applies. Regarding the fear ex-pressed by Shri Frank Anthony that the institution may have to close down we can only hope that the management will do nothing to the nose to spite the face, merely to ‘put the teachers in their proper place’. The fear expressed by the management here has the same ring as the fear expressed invariably by the management of every industry that disastrous results would follow which may even lead to the closing down of the industry if wage scales are revised.”

9. Sri. Jha also relies upon the observations of the Hon'ble Apex Court In Re: Chandigarh Administration v. Mrs. Rajni Vali reported in (2000) 2 SCC 42 which read as follows:-

“Coming to the contention of the appellan ts that the Chandigarh Administration will find it difficult to bear the additional financial burden if the claim of the respondents 1 to 12 is accepted, we need only say that such a contention raised in different cases of similar nature has been rejected by this Court. The State Administration cannot shirk its responsibility of ensuring proper education in schools and colleges on the plea of lack of resources. It is for the Authorities running the Administration to find out the ways and means of securing funds for the purpose. We do not deem it necessary to consider this question in further detail.”

10. In support of his submission that the petitioners are victims of a continuing wrong, Sri. Jha relies upon the observations of the Hon'ble Apex Court In Re: Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan reported in AIR 1959 SC 798 which read as follows:-

“It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the ‘doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong.”

11. On the point of construing limitation as a bar, Sri. Jha refers to the observations in 2009 (7) Supreme 163 in the matter of State of Madhya Pradesh v. Yogendra Srivastava.

12. On the strength of the abovenoted authorities as applied to the present facts, Sri. Jha submits that the petitioners cannot be denied their legitimate claim to arrear salaries. Sri. Jha points out that the petitioners have suffered adverse consequences at the hands of the respondent No. 6.School Authority for raising their demand to receive the arrears of ROPA, 2009 and, are presently under suspension arising out of departmental proceedings initiated against each of them.

13. Appearing for State-respondents, Sri. Biswajit De, Ld. Junior Government Advocate, echoes the deprivation of the teachers/petitioners as recorded above. Sri. De points out that the respondent No. 6.School is recognized under Chapter IV of the Code. The Code enjoins upon the respondent no. 6.School to pay the teaching and non-teaching staff their salaries, house rent, medical allowance, gratuity and CPF at a rate not lower than those approved in respect of Government aided Schools affiliated to the Board of Secondary Education.

14. Sri. De further submits that the respondent No. 6.School has utterly failed to take necessary steps under the Code by denying the teaching and non-teaching staff their arrears of pay. Such arbitrary denial was brought to the notice of the respondent No. 6.School Authority through several communication addressed by the competent State Authority.

15. Sri. De also argues that there is no challenge by the respondent No. 6.School Authority to the Code or, to the legal obligation created through notifications of the State Government upon the School Authority to pay the arrears of ROPA, 2009 - such notifications being still in force.

16. Appearing on behalf of the respondent No. 6.School Authority, as well as the respondent Nos. 5, 7 and 8, being the officers and authorities connected to the respondent No. 6.School, Sri. Sanjay Kumar Baid, Ld. Counsel essentially takes the defence of limitation. Relying on several authorities of the Hon'ble Apex Court, Sri. Baid argues that a claim to arrears which, in essence, is in the nature of a claim to receipt of financial benefits, can only lie in law if such financial benefit/claim does not extend beyond a period of 3 years prior to filing of the original application. Sri. Baid reminds this Court that the claim to arrears of pay being beyond the said period of 3 years prior to the date of the original application/writ petition has been held to be barred in a catena of decisions of In Re: M.R Gupta reported in (1995) 5 SCC 628 and In Re: Tarsem Singh reported in (2008) 8 SCC 648.

17. Further relying on (2000) 9 SCC 432 in the matter of Employees Union (Regd.) Sirhind v. State of Punjab, Sri. Baid reiterates that no monetary benefits can accrue in favour of the writ petitioners save and except relating to the period of 3 years immediately preceding the filing of the original application/petition. Sri. Baid submits, on the authority of In Re: State of Madhya Pradesh v. Bhailal Bhai reported in AIR 1964 SC 1006, that the maximum period fixed by the legislature for grant of relief in a civil suit must also be taken to be the reasonable standard while seeking a similar relief under Article 226 of the Constitution of India.

18. Relying on Article 7 of the Limitation Act, 1963 Sri. Baid points out that the period for claiming wages by any person, including arrears of such wages, is 3 years from the date when the wages became due. Sri. Baid points out that the present writ petition has been filed in the year 2015 claiming arrears for the period 1 April, 2008 to 31 March, 2009 which, must be held to be hopelessly barred by limitation. Sri. Baid argues that it is not the case of the petitioners that they are not receiving their regular salaries in accordance with ROPA, 2009.

19. The additional point raised by Sri. Baid relates to the financial limitation of the respondent No. 6.School connected to its inability to pay the arrears of revised ROPA, 2009. Sri. Baid submits that since the recommendations of the 5 Pay Commission were retrospectively introduced by the State Government, the respondent No. 6.School did not have the opportunity to match the financial burden from the fees collected from the then batches of students.

20. Relying upon the judgment of the Bombay High Court (Aurangabad Bench) reported in the case of Sunanda Pandharinath Adhav v. State of Maharshtra reported in, as affirmed by the Hon'ble Apex Court in Shivaji Shikshan Prasarak Mandal v. State of Maharshatra reported in (2005) 13 SCC 407, Sri. Baid argues that both the Bombay High Court and the Hon'ble Apex Court were of the view that the financial capacity of the Schools in issue did not bind the said Schools to pay revised salaries with retrospective effect.

21. Having heard the parties and considering the materials placed, this Court is first required to examine the contention of Sri. Baid that the claim to revised arrears of pay are barred by the laws of limitation. While this Court finds the submission of Sri. Baid to be attractive and judicially explained In Re: Sunanda Pandharinath Adhav (supra) and In Re: Shivaji Shikshan Prasarak Mandal (supra), at the same time, this Court cannot be unmindful of the fact that the refusal of the School to pay in terms of ROPA, 2009 constitutes a violation of the Code.

22. For the sake of repetition the Code enjoins upon the School to act in terms of the notifications with regard to the pay and allowances as notified by the State from time to time. The several correspondence addressed by the Deputy Director are testimony to the fact that the respondent No. 6 was being repeatedly called upon to adhere to the conditions of the Code. On perusal of the Code it transpires that the financial stability of an Anglo Indian School and the fact that it is not run for personal profit is a matter touching on its continuing recognition. Under Rule 7 Chapter II of the Code, the Deputy Director is responsible to the Department of Education in respect of the Anglo Indian Schools to which the provisions of the Code apply.

23. Under Chapter IV Rule 20 of the Code all the Schools recognised under the Code, including the present respondent No. 6.School, are required to pay their teaching and non-teaching staff at the rate as approved by the State Government in respect of Government aided Schools affiliated to the West Bengal Board of Secondary Education.

24. It is on record that the last communication on record addressed by the Deputy Director to the respondent No. 6.School for implementing the arrears of pay in terms of ROPA, 2009 is dated 31 August, 2012. It is also on record that the present writ petition has been affirmed within a period of 3 years from such communication dated 31 August, 2012, i.e on 7 July, 2015. The present writ petition is also within the period of 3 years from the last representations made by the teachers and their Association of Anglo Indian Teachers to the respondent No. 6.School in September and November, 2012 respectively, which are annexed to the writ petition.

25. Therefore, to the mind of this Court, even if the argument of Sri. Baid is assumed that under Article 7 of the Limitation Act, 1963 there can be no claim to arrears of salaries beyond a period of 3 years from the date of the original application/petition, the cause-of-action for issuing a Writ of Mandamus on the competent State Authority to ensure that the respondent No. 6.School is run in accordance with law, i.e, the Code, is not lost.

26. With reference to the discussion above on the plea of limitation this Court refers to the decision of the Hon'ble Apex Court reported in AIR 1980 SC 112 In Re: Ashok Kumar Mishra v. Collector, Raipur of which Paragraph 7, inter alia, reads as follows:-

“7. It is well settled that the power of the High Court under Article 226 of the Constitution to issue an appropriate writ is discretionary and if the High Court finds that there is not satisfactory explanation for the inordinate delay, it may reject the petition if it finds that the issue of Writ will lead to public inconvenience and interference with rights of others. This rule applies also to a case in which the validity of an election to a local authority is challenged. The question whether in a given case the delay involved is such that it dissentients a person to relief under Article 226 is a matter within the discretion of the High Court which as in all matters of discretion has to exercise it judiciously and reasonably having regard to the surrounding circumstances.”

27. The grounds for considering the issue of limitation apropo a remedy under Article 226 of the Constitution of India was elucidated at Paragraph 10 of AIR 1972 SC 2060, In Re: Kamini Kumar Das Choudhury v. State of West Bengal, which reads as follows:-

“10. If this is the position with regard to the petitions under Article 32 of the Constitution, we do not think that the rule that delay defeats the rights of a party to seek redress, by means of prerogative Writ under Article 226 of the Constitution, could be held to be abrogated merely because, if the claim had been brought in a Civil Court, the period of limitation would not have expired. The question in such cases is always whether relief under Article 226 of the Constitution could more justly and properly be given than by leaving the parties to the ordinary remedy of a suit.”

28. This Court is next required to examine the stand taken by the respondent No. 6.School in its affidavit-in-opposition. The relevant paragraphs being paragraphs 4, 7 and 9, deserve to be highlighted:-

“4. ………. out even before the 5 pay commission was notified and hence the school is not liable to pay salary and allowances from retrospective effect.

7. …………Presence of one outsider in the board does not make the control of the Government over the respondent no. 6 pervasive. The respondent no. 6 is a ‘minority school’, which enjoys the protection of Article 30(1) of the Constitution of India and it is a trite saying that in matters of administration, minority community schools are insulated from interference by Government authorities.

9. ………Government has different sources for generating revenue, but the only source from which the school can augment its revenue, is by increasing the fees of its pupils. A school cannot be treated at par with the Government, particularly when the Government tries to enforce something with retrospective effect.”

29. It is needless to elaborate that the above reproduced stand of the respondent No. 6.School taken on oath in its affidavit-in-opposition presents a picture of shameless insubordination to the rule of law personified by the Code. The respondent No. 6.School, through its statements on oath affirmed by its Principal and Secretary to the Managing Committee, one Margaret Subba, represents an unacceptable undermining of or, affront to the role of a lawfully representative Government authority trying to do its duty of uniformly regulating educational institutions in the State. Interestingly, paragraph 19 of the said affidavit-in-opposition, stands affirmed as follows:-

“19. That the statements made in paragraphs 1 to 7, 9, 11, 12, 13, 15 & 16 of the foregoing affidavit are true to my knowledge and those contained in paragraphs 8, 10, 12 & 14 are information derived from (emphasis supplied) Sister Lucy Thaikkattil F.C and records, which I verily believe to be true (emphasis supplied) and rest are my respectful submissions before this Hon'ble Court.”

30. In any view of the matter the affidavit-in-opposition referred to above intends to render nugatory the lawful communication of the Deputy Director dated 31 August, 2012 along with similar earlier communication addressed by him to the respondent No. 6.School.

31. This Court cannot, but take a dim view of such open effrontry bordering on contumacious conduct. The primary duty of this Court is to uphold the rule of law and exercise its prerogative writ jurisdiction to create conditions conducive for the State Authority to perform its designated functions as a parens patriae. It is unfortunate that the Deputy Director failed to completely discharge has assigned responsibilities under the Code compelling the petitioners to move Court for implementation of his directive as embodied in the communication dated 31 August, 2012.

32. This Court observes, with a certain measure of trepidation, the undermining of the authority of a responsible State official by the respondent No. 6.School which, professes to be governed by the Code.

33. In the backdrop of the above discussion WP 15316(W) of 2015 stands disposed of with the following directions:-Let a Writ in the nature of Mandamus issue commanding the Deputy Director (Anglo Indian Schools) to summon a meeting of the respondent No. 6.School and the authorised representatives of the writ petitioners for settling the modalities of implementing the communication/decision dated 31 August, 2012 within a period to be decided in consultation with the parties by the Deputy Director and, such period being not later than 16 weeks from the date of communication of this order to the Deputy Director (AIS).

34. On the failure of the respondent No. 6.School to implement the decision of the Deputy Director within the period specified above, the Deputy Director shall be entitled to take appropriate penal action under the Code against the respondent No. 6.School.

35. There will be, however, no order as to costs.

36. Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.