IMPORTANT POINT
Interference under Article 226 of Constitution of India to issue a writ of mandamus by Court against a private educational institution would be justified only if a public law element was involved and if it is only a private law remedy no writ would lie.

JUDGMENT

P.K. Balasubramanyan, J.—1. The appellants are teachers of a recognized private school known as Ballygunge Siksha Sadan in Calcutta in the State of West Bengal. Originally they along with 26 others filed W.P. No. 4139 of 1992 in the High Court of Calcutta praying for the issue of writ of mandamus directing the authorities of the school to fix the salaries of teaching and non-teaching staff of the school and to remove all anomalies in the scales of pay as recommended by the Third Pay Commission as extended to other Government aided schools and government schools. Subsequent to the filing of the Writ Petition, petitioners other than the five appellants herein, withdrew from the Writ Petition on their reaching an understanding with the authorities of the school. The five appellants pursued the Writ Petition. A learned single judge of the High Court allowed the Writ Petition and directed the Director of School Education to enforce parity in payment to the Writ Petitioners in pay-scales and dearness allowances on par with the government aided institutions and to consider whether there has been any discrimination or anomaly in the fixation of pay-scales of teachers by the first respondent management, with respect to the teaching staff in the institution. On appeal by the management, the Division Bench of the High Court allowed the appeal and set aside the decision of the learned single judge. Feeling aggrieved thereby, the five teachers who were pursuing the Writ Petition, came to this Court with this appeal. Pending the appeal, appellant No.5 died and appellant No. 4 withdrew from the appeal, with the result that only three of the teachers of the institution remain as appellants in this appeal to pursue the cause originally put forward.

2. There is no dispute that the institution in which the appellants are working is a recognized private educational institution in the State of West Bengal. In the State of West Bengal there are government schools, aided schools and unaided private schools. In this case, we are not concerned with aided schools or government schools. As far as private schools like the one run by respondent No.1 are concerned, they do not receive any aid from the government, but, they do get from the government dearness allowance component of the approved teachers working in the school. There is no dispute that the recommendations of the First Pay Commission and that of the Second Pay Commission, though they did not cover private unaided schools, were implemented by the schools as part of their agreement with the teachers. Though, the management also implemented the recommendations of the Third Pay Commission in the sense that the salaries of the teachers were hiked in terms of the said report, the institution refused to give retrospective effect to the enhancement. In other words, the institution refused to give effect to the recommendations of the Third Pay Commission with effect from 1.1.1988, as recommended by the Commission and as implemented by the government.

3. It was mainly complaining about the refusal of the management to implement the recommendations of the Third Pay Commission with effect from 1.1.1988 retrospectively, that the teachers went to court. We asked learned Senior Counsel for the appellants as to whether there was any Act, statutory rule or even Government Order directing private unaided educational institutions to implement the recommendations of the Third Pay Commission especially in the context of the fact that the salaries and emoluments of teachers of private unaided institutions was not a subject matter of reference to the Third Pay Commission. Learned counsel fairly submitted that there was no statutory provision, Rule or binding Order, but referred to the decision of this Court in Frank Anthony Public School Employees Association Vs. Union of India & Others. [(1987) 1 S.C.R.238] and submitted that the principle recognized therein should be applied to teachers like the appell