Summary
The Supreme Court held that instructors engaged since 2013 under the Sarva Shiksha Abhiyan/Samagra Shiksha scheme in U.P. upper primary schools, nominally part-time and contractual, are in substance full-time teachers on deemed substantive posts. Their honorarium cannot remain fixed and, once raised, cannot be cut. Since the Project Approval Board had approved Rs.17,000 a month for 2017-18, they are entitled to that rate from 2017-18 until revised. The State must pay first and recover the Centre's share.
Issues
- Whether the writ petitions were maintainable despite the grievance-redressal provision in Section 24(3) of the RTE Act.
- Whether part-time contractual instructors in upper primary schools are entitled to revision of the honorarium of Rs.7,000 per month fixed in 2013, or must continue on it indefinitely.
- Whether fixing honorarium is a policy matter beyond judicial review, and whether paying a stagnant honorarium below minimum wages offends Article 23.
- Which authority fixes the honorarium under the scheme, and whether the State alone must bear the payment when the Centre does not release its share.
Provisions considered
- Section 24(3), Right of Children to Free and Compulsory Education Act, 2009Read with sub-sections (1) and (2), the grievance redressal it contemplates relates to teachers' default in duties and disciplinary action, not to pay. It therefore did not bar the writ petitions. (¶¶ 27, 28)
- Section 7(5), Right of Children to Free and Compulsory Education Act, 2009Notwithstanding fund-sharing between the Centre and the State, the State Government is responsible for providing funds to implement the Act. It must therefore pay the honorarium and may recover the Centre's share on the principle of pay and recover. (¶¶ 68, 69, 70)
- Rule 20(3), Right of Children to Free and Compulsory Education Rules, 2010Requires pay scales, allowances and other benefits of teachers to be at par with those of other teachers of similar qualification, work and experience. Relied on to hold that scheme instructors must be treated at par with other teachers. (¶¶ 64, 65)
- Sections 24 and 27, Right of Children to Free and Compulsory Education Act, 2009Prescribe teachers' duties and permit their deployment on specified non-educational work such as census, disaster relief and election duties. Noted to show that scheme instructors carry academic and other duties like other teachers. (¶¶ 63, 65)
- Article 23, Constitution of IndiaProhibits begar and forced labour, including work accepted under economic compulsion for less than minimum wages. Paying a permanently fixed low honorarium, reducing it unilaterally, and barring other employment amount to begar. (¶¶ 54, 55, 56, 70)
- Article 226, Constitution of IndiaThe existence of an alternative remedy is a rule of prudence, not a bar, particularly where the writ petition has been entertained and decided on merits. (¶¶ 29, 30)
- Article 21A, Constitution of IndiaThe right to free and compulsory education of children aged six to fourteen, implemented through the RTE Act and the scheme under which the instructors were engaged. (¶¶ 3, 4, 5, 43)
Held
- The objection to maintainability was rejected. Section 24(3) addresses grievances arising from teachers' default and disciplinary action, and an alternative remedy does not bar writ jurisdiction, especially once the High Court has decided the petition on merits. (¶¶ 27, 28, 29, 30)
- The instructors ceased to be contractual once the 11-month contract and its last renewal expired without a fresh written contract. They are not part-time either, since Clause 5 of their contract barred them from any other employment and they worked like regular teachers. The labels were held to be deceptive. (¶¶ 39, 41, 42, 46)
- Having been selected through a proper advertised process, holding NCTE-norm qualifications at par with regular teachers, and working continuously for over ten years on work of a permanent and continuing nature, they are to be treated as substantively appointed against deemed posts. An ad hoc or contractual employee should not be replaced by another such employee. (¶¶ 40, 43, 44, 45, 70)
- Fixing honorarium may be a policy decision, but it cannot be arbitrary. Honorarium must be revised periodically to reflect price rise and cost of living, and once enhanced it cannot be unilaterally reduced without following natural justice. The contract did not bar revision. (¶¶ 49, 52, 53, 57)
- A permanently fixed honorarium below minimum wages, together with a bar on other employment and a unilateral reduction, places the instructors under economic coercion and amounts to begar prohibited by Article 23. (¶¶ 54, 55, 56, 70)
- Under the Samagra Shiksha scheme the Project Approval Board alone has financial and budget-sanctioning power, including fixing honorarium, and no other body may override its decision. As the PAB approved Rs.17,000 per month for 2017-18, the instructors are entitled to that rate from 2017-18 until the PAB revises it. Revision must take place periodically, at least once in three years. (¶¶ 61, 62, 65, 66, 67, 70, 71)
- Under Section 7(5) the State Government bears the primary obligation to pay the honorarium and may recover the Centre's share from the Union on the principle of pay and recover; non-release of central funds is no ground to deny payment. (¶¶ 68, 69, 70, 72)
Result
Appeals by the Welfare Association and the individual instructors allowed; the State's appeals dismissed. The instructors are entitled to Rs.17,000 per month from 2017-18; the State to pay at that rate from 01.04.2026, clear arrears within six months, and recover the Centre's contribution from the Union; the PAB to revise the honorarium periodically, at least once in three years.