K.A. Abdul Gafoor , J.

Petitioners are members of teaching and non teaching staff of a recognized educational institution. Recognition is from Government in accordance with the statutory provision contained in the Kerala Educational Act and Rules. Ofcourse it is an unaided institution as well. No grant is paid from the Government . According to them, they are paid so poorly. There is no comparison with salary paid to the teachers and non-teaching staff in aided schools in the private sector or the Govt. schools. At the same time, members of all the three groups are performing the same duties and functions. The education is to be imparted by the State. It is upon the sanction granted by the State that recognized institutions are functioning. In such circumstances, all of them shall be paid equally accepting the principle of equal pay for equal work.

2. In order to ensure payment of salary to the teachers of recognized schools, Government have brought in on the statute book the rules in Chapter XIV- AA. Rule 2 thereof provides that,

"The teaching and non-teaching staff of these schools shall be paid salary every month by cheques drawn on managements' accounts in Nationalized or Scheduled Banks".

This is to ensure the payment of salary at the rate agreed to between the managements of the unaided recognized educational institutions and the members of staff concerned. Rule 2 therefore pre-supposes payment at a particular rate.

3. The management, the 3rd respondent, had agreed to pay all the teachers, the basic salary in the scales of pay fixed, by state Government for aided school staff with 50% of the D.A. This is evident from Exhibit P1 which is not disputed by the 3rd respondent. They are collecting huge fees from the students. The details regarding receipts and expenditure and the balance for the years from 1993-94 to 1998-99 are given in Ground D to the Original petition. During these years, there was a balance of Rs. 2,68,599/-, Rs. 6,00,364/-, Rs. 7,12,950/-, Rs. 6, 97,285/-, Rs.6,25,672/ respectively. Thus, huge profit is earned by the management. It is submitted that these facts are not disputed by the 3rd respondent. In such circumstances, the management is bound to pay salary and D.A. to the petitioners in terms of Exhibit P1.

4. This claim is resisted by the 3rd respondent contending that this is not a matter on which a petition under Article 226 of the constitution can be maintained. In support of this contention, counsel for the 3rd respondent relies on a Division Bench decision in Annamma v. State of Kerala (1994 (1) KLT 309). It is further contended that almost a similar issue had been considered by a Division Bench in O.P. No. 8060/88 as revealed by Exhibit R3 (a). The Division Bench in paragraph 10 of the judgment held as follows:

"We are not satisfied that it is necessary or appropriate to direct the Government to bring in rules like those found in Chapter XIV-A of KER to govern recognized unaided schools considering their nature and the nature of the service rendered by teachers in most of those institutions. No grounds are made out for introduction of such rules at this stage since we feel that the rules in Chapter XIV-AA are sufficient safeguards against exploitation or unfair dealing. Our experience also shows that the introduction of Chapter XIV-A of K.E.R has unnecessarily bred a lot of litigation, at times, even effecting the proper functioning of the schools. We do not think that grounds are made out for directing consideration of the introduction of provisions like the ones in Chatpter XIV-A of K.E.R. for the running of the recognized unaided institutions in the State especially now that we are directing implementation of Chapter XIV-AA of KER. We therefore decline any relief in that regard".

No direction can be issued with regard to payment of salary in this case the Government have not introduced any provision with regard to rate of pay and allowances applicable to the aided school teachers or memb