MRS. SATIMBLA SHARMA AND ORS.versusST. PAULS SENIOR SECONDARY SCHOOL AND ORS.

                 . [2011) 10 S.C.R. 203


            MRS. SATIMBLA SHARMA AND ORS.                       A
                             v.
 ST. PAUL'S SENIOR SECONDARY SCHOOL AND ORS.
            (Civil Appeal No. 2676 of 2010)
                    AUGUST 11, 2011
                                                                8
      [R.V. RAVEENDRAN AND A.K. PATNAIK, JJ.]

    Service Law:

      Equal pay for equal work - Claim for, by teachers of      c
private unaided schools - Held: Teachers of private unaided
schools have no right to claim salary equal to that of their
counter-parts working in Government Schools and
Government aided schools - Education/Educational
Institutions.                                                   D
     Equal pay for equal work - Claim against private unaided
minority schools - Held: Unaided private minority schools
over which the Government has no administrative control
because of their autonomy under Article 30(1) are not State
within the meaning of Article 12 - As the right to equality     E
under Article 14 is available against the State, it cannot be
claimed against unaided private minority schools -
Constitution of India, 1950 - Articles 12, 14 30, 39(d).

    Writ:                                                       F
     Writ of mandamus - Issuance of, to a private unaideq..
school to pay salary and allowances to its teachers equal to ·
the salary and allowance payable to teachers of Government/
Government aided Schools - Held: Court cannot issue a
mandamus since salary and allowances of a private unaided G
scilool is a matter of contract between the school and the
teacher and is not within the domain of public law - State
Government directed to consider making rules u/ s.23 rlw

                            203                                 H
    204      SUPREME COURT REPORTS             [2011] 10 S.C.R.


A s. 38(2)(1) of the 2009 Act prescribing the salary and
  allowances of teachers keeping in mind Article 39(d) of the
  Constitution - Right of children to free and compulsory
  Education .Act, 2009 - ss.23, 38(2)(1) - Article 39(d).

        Writ of mandamus - Where a statutory provision casts a
8
   duty on a private unaided school to pay the same salary and
   allowances to its teachers as are being paid to the teachers
   of Government aided schools, then a writ of mandamus to the
   school could be issued to enforce such statutory duty- In the
C ·instant case, there was no statutory provision and, therefore,
   a mandamus could not be issued to pay to the teachers of
   private recognized unaided schools the same salary and
   allowances as were payable to Government institutions.

       In 1923, respondent no.1-School was established as
D a mission school by respondent no.2. Till 1976, the
  school received grant-in-aid. From 1977-78, the school
  was not receiving any grant-in-aid from the Government
  and the teachers were being paid less than the teachers
  of Government Schools and Government aided schools
E in the State Government. Dissatisfied with their salary
  and allowances, some of the teachers (appellants) filed
  writ petitions before the High Court for direction to pay
  the salary and allowances at par with the teachers of
  Government Schools and Government aided schools.
F The Single Judge of the High Court allowed the writ
  petition and directed respondent nos.1 and 2 to pay to
  the teachers the salary and allowances at par with their
  counterparts working in the Government Schools. On
  appeal, the Division Bench of the High Court set aside
  the judgment of the Single Judge. The instant appeal was
G filed challenging the order of the Division Bench of the
  High Court.

          Disposing of the appeal, the Court

H         HELD: 1. The Division Bench· the High Court rightly
   SATIMBLA SHA~A AND ORS. v. ST. PAUL'S               205
         SENIOR SECONDARY SCHOOL
held that the teachers of private unaided minority schools . A ·
had no right to claim salary equal to that of their counter-
parts working in .Government schools and Government
aided schools. The teachers of Government schools are
paid out of the Government funds and the teachers of
Government aided schools are paid mostly out of the B
Government funds, whereas the teachers of private
unaided minority schools are paid out of the fees and
other resources of the private schools. Moreover,
unaided private minority schools over which the
Government has no administrative control because of c
their autonomy under Article 30(1) of the Constitution are
not State within the meaning of Article 12 of the
Constitution. As the right to equality under Article 14 of
the Constitution is available against the State, it cannot
be claimed against unaided private minority schools. D
Similarly, such unaided private schools are not State
within the meaning of Article 36 read with Article 12 of the
Constitution and as the obligation to ensure equal pay
for equal work in Article 39(d) is on the State, a private
unaided minority school is not under any duty to ensure E
equal pay for equal work. [Para 9] [213-D-H]
    Frank Anthony Public School Employees' Association v.
Union of India & Ors. (1986) 4 SCC 707: 1987 (1) SCR 238
- held inapplicable.
                                                             F
     2. The Court could not issue a mandamus to a
private unaided school to pay the salary and allowances
equal to the salary and allowances payable to teachers
of Government schools or Government aided schools.
This is because the salary and allowances of teachers of     G
a private unaided school is a matter of contract between
the school and the teacher and is not within the domain
of public law. [Para 11] [215-D-E]

    3. Where a statutory provision casts a duty on a
private unaided school to pay the same salary and            H
    206     SUPREME COURT REPORTS            (2011] 10 S.C.R.


A allowances to its teachers as are being· paid to the
  teachers of Government aided schools, then a writ of
  mandamus to the school could be issued to enforce such
  statutory duty. But in the instant case, there was no
  statutory provision and, therefore, a mandamus could
B not be issued to pay to the teachers of private recognized
  unaided schools the same salary and allowances as were
  payable to Government institutions. [Para 11] [215-G-H;
  216-A-B]

C        4. In the instant case, there were no executive
    instructions issued by the Government requiring private
    schools to pay the same salary and allowances to their
    teachers as were being paid to teachers of Government'
    schools or Government aided schools. [Para 12] [216-E]

D       5. A mandamus cannot be issued to respondent
  nos.1 and 2 on ground that the conditions of provisional
  affiliation of schools prescribed by the Council for the
  Indian School Certificate Examina.~".>ns stipulate in clause
  (5)(b) that the salary and allowances and other benefits
E of the staff of the affiliated school must be comparable
  to that prescribed by the State Department of Education
  because such conditions for provisional affiliation are not
  statutory provisions or executive instructions, which are
  enforceable in law. Similarly, a mandamus cannot be
F issued to give effect to the recommendations of the
  report of Education Commission 1964-66 that the scales
  of pay of school teachers belonging to the same category
  but working under different managements such as
  government, local bodies or private managements
G should be the same, unless the recommendations are
  incorporated in an executive instruction or a statutory
  provision. [Para 13] [216-F-H; 217-A]
       6. The Right of Children to Free and Compulsory
    Education Act, 2009 has provisions in Section 23
H
   SATIMBLA SHARMA AND ORS. v. ST. PAUL'S                207
        SENIOR SECONDARY SCHOOL
regarding the qualifications for appointment and terms A
and conditions of service of teachers. Sub-section (3) of
Section 23 provides that the salary and allowances
payable to, and the terms and conditions of service of,
teachers shall be such as may be prescribed. Section 38
of the 2009 Act empowers the appropriate Government s
to make rules and Section 38(2)(1) of the 2009 Act
provides that the appropriate Government, in particular,
may make rules prescribing the salary and allowances
payable to, and the terms and conditions of service of
teachers, under sub-section (3) of section 23. Section 2(a) c
defines "appropriate Government" as the State
Government within whose territory the school is
established. The State of Himachal Pradesh, respondent
no.3 in this appeal, is, thus, empowered to make rules
under sub-section (3) of Section 23 read with Section
                                                                0
38(2)(1) of the 2009 Act prescribing the salary and
allowances payable to, and the terms and conditions of
service of, teachers. Article 39(d) of the Constitution
provides that the State shall, in particular, direct its policy
towards securing that there is equal pay for equal work E
for both men and women. Respondent no.3 should,
therefore, consider making rules under Section 23 read
with Section 38(2)(1) of the 2009 Act prescribing the salary
and allowances of teachers keeping in mind Article 39(d)
of the Constitution as early as possible. [Para 14] [217-
B-F]                                                            F
     State of H.P. v. H.P. State Recognised & Aided Schools
Managing Committees and Others (1995) 4 SCC 507; Mohini
Jain v. State of Kamataka (1992) 3 SCC 666: 1992 (3) SCR
658; K. Krishnamacharyu/u and Others vs. Sri Venkateswara      G
Hindu College of Engineering and Another (1997) 3 SCC
571: 1997 (3) SCC 571; Sushmita Basu & Ors. v. Ballygunge
Siksha Samity & Ors. (2006) 7 SCC 680: 2006 (6) Suppl.
SCR 506 - referred to.
                                                               H
    208      SUPREME COURT REPORTS              [2011) 10 S.C.R.


A                        Case Law Reference:
     1987 (1) SCR 238            held inapplicable Para 5, 10
     (1995) 4 sec 507            referred to         Para 6
     1992 (3) SCR 658            referred to         Para 6
B
     1997 (3) sec 571            referred to         Para 6
     2006 (6) Suppl. SCR 506 referred to             Para 11

      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
C 2676 of 2010.

         From the Judgment & Order dated 25.07.2008 of the
    Division Bench of High Court of Himachal Pradesh at Shimla
    in LPA No. 48 of 2004.
D
        . Dhruv Mehta, Sanjay Katyal, Sriram Krishna, Kuldip Singh
    for the Appellants.

       S.K. Dubey, Niraj Sharma, Vi'uant Singh Bais, Sumit
    Kumar Sharma, Naresh K. Sharma for the Respondents.
E
          The Judgment of the Court was delivered by

      A. K. PATNAIK, J. 1. This is an appeal against the
  judgment dated 25.07.2008 of the Division Bench of the High
  Court of Himachal Pradesh, Shimla, in Letters Patent Appeal
F No.48 of 2004.

       2. The facts very briefly are that in 1923 the respondent
  No.1-School (for short 'the School') was initially established as
  a mission school by the respondent No.2. The School adopted
G the 10+2 system in 1993 and is presently affiliated to the
  Himachal Pradesh Board of School Education. Before
  independence in 1947 the School was receiving grant-in-aid
  fr9m the British Indian Government and thereafter from the
  Government of India upto 1950. From 1951to1966, the School
H received grant-in-aid from the State Government of Punjab.
   SATIMBLA SHARMA AND ORS. v. ST. PAUL'S   209
 SENIOR SECONDARY SCHOOL [A.K. PATNAIK, J.]
After the State of Himachal Pradesh was formed, the School          A
received grant-in-aid from the Government of Himachal Pradesh
during the years 1967 to 1976. From the year 1977-1978, the
School has not been receiving any grant-in-aid from the
Government of Himachal Pradesh and the teachers of the
School are being paid less than the teachers of Government          B
schools and Government aided schools in the State of
Himachal Pradesh.

      3. Not satisfied with their salary and allowances, some of
the teachers of the School filed a Writ Petition, CWP No.1038
of 1996, in the High Court of Himachal Pradesh for a direction      C
to pay the salary and allowances at par with the teachers of
Government schools and Government-aided schools and by
judgment dated 11.10.2004 the learned Single Judge of the
High Court of Himachal Pradesh allowed the Writ Petition and
directed the respondent nos.1 and 2 to pay to the writ              D
petitioners salary and allowances at par with their counter-parts
working in the Government schools from the dates they were
entitled to and at the rates admissible from time to time.
Aggrieved by the judgment of the learned Single Judge, the
 respondent nos: 1 and 2 filed Letters Patent Appeal No.48 of       E
2004 (for short 'the LPA') before the Division Bench of the High
 Court and by the impugned judgment dated 25.07.2008, the
 Division Bench of the High Court set aside the judgment of the
 learned Single Judge and dismissed the Writ Petition of the
 appellants.                                                        F

     .4. Learned counsel appearing for the appellants submitted
that the appellants do the same work as the teachers of
Government schools and Government aided schools and yet
are being paid lower than the teachers of Government schools        G
and Government aided schools. He further submitted that the
Himachal Pradesh Slate Government Recognized Aided
Schools Teachers' Association and others had filed Writ
Petitions, C.W.P. No.413 of 1989 and 414 of 1989, ·in the
Himachal Pradesh High Court for appropriate writs/directions        H
    210      SUPREME COURT REPORTS                 [2011] 10 S.C.R.


A   to the State Government to pay 95% of the grant-in-aid towards
    approved expenditure in a school year to the privately managed
    recognized schools borne on the grant-in-aid list with a view to
    enable the managements of such schools to pay the teachers
    and allied-staff of the schools, the same pay scales and
B   allowances as are paid to their counter-parts working in the
    Government schools in the State of Himachal Pradesh and by
    order dated 09.09.1992, a Division Bench of Himachal Pradesh
    held that teachers of such private recognized aided schools are
    entitled to same emoluments as received by their counter-parts
c   in the State Government and allowed the writ petitions and
    directed the State Government and the management of the
    private recognized aided schools to work out the emoluments
    of the teachers and pay the same to teachers of the private
    recognized aided schools. He further submitted that against the
D   order dated 09.09.1992 of the Division Bench of Himachal
    Pradesh High Court, the State of Himachal Pradesh came up
    in appeal to this Court in Civil Appeal Nos. 1233 and 1234 of
    1993 but this Court dismissed these twci appeals on
    10.05.1995. He vehemently argued that only with a view to
E   wriggle out from the liability to pay salary and allowances to its
    teachers and staff at par with the salary and allowances of
    Government schools, the School has unilaterally decided to stay
    out of the grant-in-aid scheme since 1977-1978. He submitted
    that the learned Single Judge rightly held in his judgment dated
    11.10.2004 in C.W.P. No.1038 of 1996 filed by the petitioners
F   that the School, which had been receiving grant-in-aid till 1977-
    1978, could not of its own volition stop to receive grant-in-aid
    and rightly directed the School to pay to the appellants salary
    and allowances at par with their counter-parts working in the
    Government schools.
G
         5. Learned counsel for the appellants submitted that the
    Division Bench of the High Court has set-aside the judgment
    of the learned Single Judge after taking an erroneous view in
    the impugned judgment that the School was under no obligation
H   to have accepted the grant-in-aid which would have led to
I
   SATIMBLA SHARMA AND ORS. v. ST. PAUL'S                       211
 SENIOR SECONDARY SCHOOL [A.K. PATNAIK, J.]
 diminution of its rights guaranteed under Article 30(1) of the · A
 Constitution. He further submitted that the Division Bench of the
 Himachal Pradesh High Court has also sustained the
 contention of the School that the teachers of private recognized
 schools had no right to claim salary equal to that of their counter-
 parts working in Government schools and Government aided 8
 schools. He submitted that Rule 45-Q of the Grant-in-Aid Rules
 of the State of Himachal Pradesh provides that management
 shall introduce such scales of pay and allowances for teachers
 and other staff members as prescribed by the Government for
 corresponding staff in Government schools. He submitted that C
 if the teachers of Government aided schools are entitled to
 same salary and allowances as the teachers of the Government
 schools, there is no reason as to why only the teachers of_
 private unaided schools should be denied the salary and'
 allowances of Government schools. He submitted that if the pay
 and allowances of the teachers of private minority schools such D
 as respondent no.1 are not made the same as that of the pay
 and allowances of the teachers of the Government schools and
 Government aided schools, the teachers of private minority
 schools will suffer discrimination and their right to equal pay for
 equal work under Article 14 read with Article 39(d) of the E
 Constitution will be violated. He relied on the decision of this
 Court in Frank Anthony Public School Employees' Association
 v. Union of India & Ors. ((1986) 4 SCC 707] wherein Section
 12 of the Delhi School Education Act which made the
 provisions of Section 10 providing for parity of scales of pay F
 and allowances of the employees of the recognized private
 schools with that of the schools run by the appropriate authority
•inapplicable to unaided minority institutions as discriminatory.

     6. Learned counsel for the appellants submitted that in            G
State of H.P. vs. H.P. State Recognised & Aided Schools
Managing Committees and Others ((1995) 4 SCC 507] this
Court relying on Mohini Jairi case ((1992) 3 sec 666] held that
the right to education is a fundamental right guaranteed under
Part-Ill read with Part-IV of the Constitution of India. He submitted
                                                                        H
    212      SUPREME COURT REPORTS                (2011] 10 S.C.R.


A that since the right to education is a fundamental right, school
  education has a public element in it and the Court can always
  issue a mandamus to enforce a public duty in matters of
  education. He submitted that in K. Krishnamacharyu/u and
  Others vs. Sri Venkateswara Hindu College of Engineering
8 and  Another ((1997) 3 sec 571] employees of a non-aided
  private educational institution claimed parity in pay-scales with
  the employees of Government institutions and this Court held
  that the employees had an enforceable right and there was an
  element of public interest in such a claim and the teachers of
C a private unaided institution is entitled to avail the remedy
  provided under Article 226 of the Constitution and they cannot
  be denied the same benefits which were available to other
  teachers working in Government institutions.
             .                                       ~~

          7. Learned counsel for the appellants submitted that the
D   School is provisionally affiliated to the Council for the Indian
    School Certificate Examinations and the conditions of
    provisional affiliation of schools prescribed by the Council for
    the Indian School Certificate Examinations stipulate in clause
    (5)(b) that the salary and allowances arid other benefits of the
E   staff of the school must be comparable to that prescribed by
    the State Department of Education. He referred to the report
    of the Education Commission 1954-66 to the Ministry of
    Education, Government of India, recommending that the scales
    of pay of school teachers belonging. to the same category but
F   working under different managements such as government,
    local bodies or private managements should be the same and
    this principle of parity should be adopted forthwith. He
    submitted that sub-section (3) of Section 23 of the Right of
    Children to Free and Compulsory Education Act, 2009 (for short
G   'the 2009 Act') provides that the salary and allowances payable
    to, and the terr::ns and conditions of service of, teachers shall
    be such as may be prescribed. He referred to Section 38(2)(1)
    of the 2009 Act which provides that the appropriate
    Government mar. by notification, prescribe the salary and
H   allowances payable to, and the terms and conditions of service
   SATIMBLA SHARMA AND ORS. v. ST. PAUL'S                   213
 SENIOR SECONDARY SCHOOL [A.K. PATNAIK, J.]
  of, teacher under sub-section (3) of section 23. He submitted A
  that the appropriate Government as defined in Section 2(a) of
. the 2009 Act, namely, the State Government, therefore, can
  issue a notification prescribing the salary and allowances ·
  payable to, and the terms and conditions of service of, teacher,
  under sub-section (3) of section 23 of the 2009 Act.             B

     8. Learned counsel for the respondent nos.1 and 2, o~ the
other hand, supported the impugned judgment of the Division
Bench of the High Court. He further submitted that if the School
is made to pay to its teachers the same salary and allowances       C
of teachers of Government schools and Government aided
schools, it will have to increase the school fees and this would
affect the students whose parents cannot afford higher school
fees.

     9. In our considered opinion, the Division Bench the High      D
Court- _has rightly held in the impugned judgment that the
teachers of private unaided minority schools had no right to
claim s'alary equal to that of their counter-parts working in
Government schools and Government aided schools. The
teachers of Government schools are paid out of the Government       E
funds and the teachers of Government aided schools are paid
mostly out of the Government funds, whereas the teachers of
private unaided minority schools are paid out of the fees and
other resources of the private schools. Moreover, unaided
private minority schools over which the Government has no           F
administrative control because of their autonomy under Article
30(1) of the Constitution are not State within the meaning of
Article 12 of the Constitution. As the right to equality under
Article 14 of the Constitution is available against the State, it
cannot be claimed against unaided private minority schools.         G
Similarly, such unaided private schools are not State within the
meaning of Article 36 read with Article 12 of the Constitution
and as the obligation to ensure equal pay for equal work in
Article 39(d) is on the State, a private unaided minority school
is not under any duty to ensure equal pay for equal work. ·
                                                                    H
    214      SUPREME COURT REPORTS                 [2011) 10 S.C.R.


A         10. In Frank Anthony Public School Employees'
    Association v. Union of India & Ors. (supra), relied on by
    learned counsel for the appellants, the scales of pay and other
    terms and conditions of service of teachers and other
    employees of the Frank Anthony Public School, New Delhi,
B   which was a private unaided minority institution, compared very
    unfavourably with those of their counterparts of the Delhi
    Administration Schools and the Frank Anthony Public School
    Employees' Association sought equalization of their pay-scales
    and conditions of service with those of teachers and employees
c   of Government schools. Sections 8 to 11 of the Delhi School
    Education Act dealt with the terms and conditions of service
    of employees of recognized private schools. Section 10 of the
    Delhi School Education Act provided that the scales of pay and
    allowances, medical facilities, pension, gratuity, provident fund
D   and other prescribed benefits of the employees of the
    recognized private schools shall not be less than those of the
    corresponding status in schools run 'Jy the appropriate authority.
    Section 12 of the Delhi School Education Act, however,
    provided that the provisions of Sections 8 to 11 including
E   Section 10 were not applicable to unaided minority institutions.
    The case of teachers of Frank Anthony Public School was that
    if Sections 8 to 11 were made applicable to them, they would
    at least be as well off as teachers and other employees of
    Government schools. The Frank Anthony Public School
    Employees' Association therefore challenged Section 12 of the
F   Delhi School Education Act as discriminatory and violative of
    Article 14 of the Constitution and this Court held that Section
    12 of the Delhi School Education Act insofar as it makes the
    provisions of Sections 8 to 11 inapplicable to unaided minority
    schools is discriminatory. This was thus a case in which the
G   employees of unaided minority institutions were not given the
    benefits available to employees of other private institutions
    under Sections 8, 9, 10 and 11 of the Delhi School Education
    Act only on the ground that unaided minority institutions enjoy
    autonomy of administration under Article 30(1) of the
H   Constitution and this Court held that this could not be a rational
   SATIMBLA SHARMA AND ORS. v. ST. PAUL'S                    215
 SENIOR SECONDARY SCHOOL [A.K. PATNAIK, J.]
basis for differentiation of service conditions, pay and other       A
service benefits between employees of unaided minority
institutions and the employees of other private schools and the
Court declared Section 12 as discriminatory. In other words,
the State by making a statutory provision in Section 12 of the
Delhi School Education Act which was discriminatory, had             B
violated the mandate to the State under Article 14 of the
Constitution not to deny the equal protection of the laws within
its territories. This decision in the case of Frank Anthony Public
School Employees' Association v. Union of India & Ors.
(supra) does not assist the appellants in any manner because         c
the guarantee of equality, as we have said, is not available
against an unaided private minority school.

        11. We also do not think that the Court could issue a
  mandamus to a private unaided school to pay the salary and
  allowances equal to the salary and allowances payable to · D
 teachers of Government schools or Government aided schools.
 This is because the salary and allowances of teachers of a
  private unaided school is a matter of contract between the
  school and the teacher and is not within the domain of public
  law. In Sushmita Basu & Ors. v. Ballygunge Siksha Samity & E
  Ors. [(2006) 7 sec 680), the teachers of a recognized private
· school known as Ballygunge Siksha Sadan in Calcutta filed a
  Writ Petition in the High Court of Calcutta praying for issuance
  of writ of mandamus directing the authorities of the school to
  fix the salary of teaching and non-teaching staff of the school F
  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 and
  this Court held that in the absence of statutory provision no such
  direction can be issued by the High Court under 'Article 226 of G
  the Constitution. Where a statutory provision casts a duty on a
  private unaided school to pay the same salary and allowances
  to its teachers as are being paid teachers of Government aided
 schools, then a writ of mandamus to the school could be issued
 to enforce such statutory duty. But in the present case, there H
        216     SUPREME COURT REPORTS                [2011] 10 S.C.R.

                                   \
    A was no statutory provision requiring a private unaided school
      to pay to its teachers the same salary and allowances as were
      payable to teachers of Government schools and therefore a
      mandamus could not be issued to pay to the teachers of private
      recognized unaided schools the same salary and allowances
    B as were payable to Government institutions.

           12. In K. Krishnamacharyulu and Others vs.' Sri
      Venkateswara Hindu College of Engineering and Another
      (supra), relied upon by the learned counsel for the appellants,
      executive instructions were issued by the Government that the
    C scales of pay of Laboratory Assistants as non-teaching staff of
      pri~ate colleges shall be at par with the government employees
      and this Court held that even though there were no statutory
      rules, the Laboratory Assistants as non-teaching staff of private
      college were entitled to the parity of the pay-scales as per the
·   D executive instructions of the Government and the writ jurisdiction
      of the High Court under Article 226 nf the Constitution is wide
      enough to issue a writ for payment of pay on par with
      government employees. In the present case, there are no
      executive instructions issued by the Government requiring
    E private schools to pay the same salary and allowances to their
      teachers as are being paid to teachers of Government schools
      or Government aided schools.

           13. We cannot also issue a mandamus to respondent nos.1
    F and 2 on the ground that the conditions of provisional affiliation
      of schools prescribed by the Council for the Indian School
      Certificate Examinations stipulate in clause (5)(b) that the salary
      and allowances and other benefits of the staff of the affiliated
      school must be comparable to that prescribed by the State
      Department of Education because such conditions for
    G provisional affiliation are not statutory provisions or executive
      instructions, which are enforceable in law. Similarly, we cannot
      issue a mandamus to give effect to the recommendations of
      the report of Education Commission 1964-66 that the scales
      of pay of school teachers belonging to the same category but
    H
    SATIMBLA SHARMA AND ORS. v. ST. PAUL'S                    217
  SENIOR SE;CONDARY SCHOOL [A.K. PATNAIK, J.]
  working under different managements such as government,            A
· local bodies or private managements should be the same,
  unless the recommendations are incorporated in an executive
  instruction or a statutory provision. We, therefore, affirm the
  impugned judgment of the Division Bench of the High Court.
                                                                  B
       14. We, however, find that the 2009 Act has provisions in
 Section 23 regarding the qualifications for appointment and
 terms and conditions of service of teachers and sub-section (3)
 of Section 23 of the 2009 Act provides that the salary and
 allowances payable to, and the terms and conditions of service · C
 of, teachers shall be such as may be prescribed. Section 38
 of the 2009 Act emp'9wers the appropriate Government to
 make rules and Section 38(2)(1) of the 2009 Act provides that
 the appropriate Government, in parti~ular, may make rules
                                           I     •

 prescribing the salary and allowances payable to, and the terms
 and conditi_ons of service of teachers, under sub-section (3) of D
 section 23. Section 2(a) defines "appropriate. Government" as
 the State Government within whose territory the school is
 established. The State of Himachal Pradesh, respondent no.3
 in this appeal, is thus empowered to make rules under sub-
 section (3) of Section 23 read with Section 38(2)(1) of the 2009 E
 Act prescribing the salary and allowances payable to, and the
 terms and conditions of service of, teachers. Article 39(d) of
 the Constitution provides that the State shall, in particular,
 directs its policy towards securing that the~e is equal pay for
 equal work for both men and women. Respondent no.3 should F
 therefore consider making rules under Section 23 read with
 Section 38(2)(1) of the 2009 Act prescribing the salary and
 allowances of teachers keeping in mind Article 39(d) of the
 Constitution as early as possible.
                                                                  G
       15. With these observations, the appeal is disposed of.
 There shall be no order as to costs.

 D.G.                                          Appeal disposed of.

                                                                     H