IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION (ORIGINAL SIDE) Present: The Hon’ble Justice Rai Chattopadhyay WPO 448 of 2014 Sudipta Banerjee & Ors. Vs. State of West Bengal and Ors. For the Petitioners : Mr. Shaunak Ghosh : Mr. Rajib Mullick : Ms. Shreyashi Maity For the State : Mr. Sirsanya Bandopadhyay : Ms. Tapati Samanta For the respondent Nos. 7 to 12 : Mr. Soumya Majumder, ld. Sr. Adv. : Mr. Kaushik Chowdhury : Mr. Sayan Roy Chowdhury : Mr. Shaunak Mitra : Mr. Zulfiquar ali : Mr. Aditya Sarkar Judgment on : 16.09.2026 Uploaded on : 16.09.2026 Rai Chattopadhyay, J. :- (1) The six writ petitioners who have ultimately carried this writ petition, that is the petitioners No.1, 2, 4, 5, 6 and 7, have been the approved teachers and non-teaching staff of the school, who have respectively reached their age of superannuation sometimes in the years 2014 to 2016. The subject matter of dispute involved in this case is with regard to implementation of ROPA 2009 in case of the said writ petitioners during their service period, which the respondent school, which is a recognised and DA getting school, declines to implement. According to the petitioners they are entitled to be allowed the benefits under ROPA 2009 and refusal to implement the same in their case is illegal, arbitrary and discriminatory measure undertaken by the school authority, which is not maintainable in the eye of law. (2) Hence, the petitioners have sought for the relief that the respondent school be directed to implement salary structure of the petitioners as per ROPA 2009 and not to disburse salary at any rate, other than as per ROPA 2009. (3) The petitioners‟ other prayer is that the Circular No. 85- SE(3)/5B-30/2007 dated May 21, 2009, should be prohibited to be given effect to by the respondent/State. (4) The facts culminating into filing of this writ petition may be stated in a nut shell. This Court passed an order dated October 8, 2001, in W.P.No. 707 of 2000, pursuant to which, the State Government issued a notification dated May 29, 2002 [No.641-SE(LAW)/5S-577/2001]. As per the same, the authorities of all the DA getting schools recognised by the West Bengal Board of Secondary Education in the State which receive DA component for the approved teachers and non-teaching staff of their schools from the government will have to pay salary in the appropriate scale of pay from their own resources to the approved teaching and non-teaching employees, at the rate prescribed by the State Government for teachers and non- teaching employees of the government aided school. The said notification has also provided that approved teachers and non-teaching staff of those DA getting schools will get DA from the government (on percentage basis) at the rate as is admissible to other employees of the State Government aided Educational Institutions as is announced from time to time by the State, in supersession of all previous orders issued to this effect, provided that these posts were duly sanctioned by the government. The petitioners in this case have largely relied on this notification dated May 29, 2002. (5) The petitioners say that pursuant to the notification dated May 29, 2002, the respondent school authority implemented ROPA 1996 for the petitioners. Allegedly, similar measures have not been undertaken by the school authority to implement ROPA 2009, in case of the writ petitioners. (6) The petitioners have stated that upon oral assurances granted by the school to implement ROPA 2009, a „special allowance‟ was introduced, though in effect the benefit thereunder has been disbursed only irregularly to the writ petitioners. The petitioners have nullified claim of the respondent school in its letter dated September 12, 2009, that the Court has stayed operation of the order dated May 29, 2002, citing the fact that their writ petition No. WPA 2068 of 2002 has been dismissed by the Court. (7) The petitioners have further placed reliance on this Court‟s order dated April 13, 2010 in WP No. 14982 (w) of 2009, the appellate Court‟s order in this regard dated March 8, 2011 in MAT No. 1320 of 2010 and the order passed by the Supreme Court dated January 2, 2013. This Court in WP No. 14982 (w) of 2009, was considering comparative applicability of notification dated May 29, 2002 [No.641- SE(LAW)/5S-577/2001 and No. 85-SE(3)/5B-30/2007 dated May 21, 2009. In the said notification dated May 21, 2009, it has been provided that all whole time approved teachers and non-teaching employees of DA getting schools/Anglo Indian schools (primary and secondary) who are drawing pay scale as per ROPA 1996 will get dearness allowance @ 104% of basic pay (pay range up to 25,400/- per month) with effect from 1st April, 2009 and those DA getting schools/Anglo Indian schools (primary and secondary) who will implement ROPA 2009 will get dearness allowance at per revised rate as already published vide memo No.46-SE(B) dated 27.2.2009. According to the writ petitioners there, the said notification dated May 21, 2009 has virtually neutralized the effect of the order dated May 29, 2002, which has been in vogue at that point of time. The respondent there however contended that with coming into force the later notification the effect of the earlier notification has automatically been terminated. The Court found that the notification dated May 21, 2009 has got no overriding effect to set at naught the earlier notification dated May 29, 2002, which still stand existing, that life of the notification dated May 29, 2002 was not coterminous with the life of the ROPA 1998, during whose term, incidentally, the said notification was issued. The Court held that notification dated May 29, 2002 has created right of the approved teachers and non-teaching staff of the DA getting schools in the State to claim revision of pay under all the future ROPA Rules by the government. The Court has held further that by the notification dated May 21, 2009, the government did not give any liberty to any recognised DA getting institution in the State not to implement the ROPA Rules 2009. The Court has ultimately found that in view of the notification dated notification dated May 29, 2002 the petitioners (there) were entitled to claim salary and allowances at the revised rates specified in the ROPA 2009 and the institute was under unqualified obligation to implement the same for the petitioners (there). The Court directed the school for immediate implementation of the ROPA 2009. (8) This order of the Single Bench has been upheld by the Division Bench and the Supreme Court as well, vide the respective orders as mentioned above. A review application was also dismissed. The petitioners rely on the same in support of its contention that legality and validity of the notification dated May 29, 2002 has been upheld by the Court and so also with regard to the obligation of the school [DA getting] to implement ROPA 2009 [for the approved teachers and non-teaching staff of the school]. The petitioners have contended that following the same principles, their prayer may be allowed in this case. The petitioners have also relied on similar kind of order passed by this Court in WP No. 322 of 2013 dated October 8, 2013. In the writ petition filed by the approved teachers and employees of a DA getting school, the Court has not accepted but rejected that notification dated May 21, 2009 gives any option to the DA getting school not to implement ROPA 2009. (9) Hence, as per the writ petitioners, in terms of the notification dated May 29, 2002 and the orders of this Court as well as the Supreme Court in matters concerning DA getting schools, the petitioners would also be eligible for the benefit of implementation of ROPA 2009 for themselves and the school would be duty bound under the law, for proper implementation of the same. Hence, the petitioners‟ prayer in this writ petition may be allowed. (10) Mr. Shaunak Ghosh, learned advocate for the petitioners have referred to the judgment of Khoday Distilleries Ltd. Vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. reported at (2019) 4 SCC 376 to argue that the appellate jurisdiction of the High Court is vested by dint of Articles 132 to 136 of the Constitution of India though jurisdiction under Article 136 of the same is discretionary, extraordinary and residuary in nature, not conferring any vested right of appeal but enabling the Court in its discretion to grant special leave in an appropriate case. The Court has further held that, under Rule 11, upon the grant of special leave, the Special Leave Petition, subject to payment of requisite court fees, is converted into and registered as an appeal, to be thereafter heard in accordance with prescribed appellate procedure. Thus, proceedings under Article 136 comprise two distinct stages— consideration of leave and the appeal proper. At the stage of special leave, the Court exercises only discretionary jurisdiction to determine whether leave ought to be granted, and not its appellate jurisdiction. Rejection of the petition signifies that no case for invoking appellate jurisdiction is made out, whereas grant of leave results in the formal invocation of such jurisdiction. (11) The principal objector is the respondent school. It has pleaded a case here firstly that the present writ petition is not maintainable, in so far as the school which is run and managed by its Managing Committee, is not a State or its instrumentality as per Article 12 of the Constitution of India and no writ can lie against the same. That salaries and wages of the teachers and non-teaching staff are paid from the tuition and admission fees collected from the students. Only the DA component of the approved teachers and non- teaching staff is bourn by the State though however, there are other ample number of unapproved teachers and non- teaching staff working in the school. The school authority has submitted that at every stage when the State Government has given effect to a Pay Commission recommendation, all endeavours have been made to pay salary at a comparable scale and that the school has no lack of bona fide in providing the teachers and non-teaching staff of the school adequately. (12) According to the school authority, the notification dated May 29, 2002 is not only inapplicable in their case but also arbitrary, unjustified and illegal. The respondent school has stated that ROPA Rules are not applicable in case of the DA getting schools as per government notification No.372- Edn.(B) dated July 31, 1981, dated February 12, 1999 and dated August 14, 1996. (13) As per the notification No.372-Edn.(B) dated July 31, 1981 the following were brought within the purview of the Pay Commission: “In Finance Department Resolution No. 9716F, dated 16th November, 1977 Government set-up a Pay Commission with the terms of reference which included that the Commission will also examine the structure of emoluments and the conditions of service of the — (a) teachers and non-teaching staff of - (i) State Government sponsored or aided Primary Schools/Junior Basic Schools (including Pre-Basic Schools) ; (ii) State Government sponsored or aided Junior High/High Schools/Higher Secondary Schools upto Class XII standard ; (including Jr. High and High Madrasah) ; (iii) State Government sponsored or aided Schools for Handicapped ; (iv) State Government sponsored/Aided Training Institutes for primary teachers ; (v) State Government sponsored/Aided Polytechnics ; (vi) State Government sponsored/Aided Junior Technical Schools ; (vii) Non-teaching staff of Non-Government Colleges ; (viii) District School Board . (ix) Sponsored Day Students' Home : (x) Library Staff of Sponsored/Aided -- (a) Educational Institutions . (b) District Library . (c) Sub-Divisional/Town Library ; (d) Rural/Area/Primary/unit Library ;” (14) Similarly, as per the notification dated February 12, 1999: “In Finance Department Resolution No. 11831-F dated the 27th November, 1995 the Government constituted a Pay Commission with terms of reference which included that the Commission would also examine the structure of emoluments and conditions of service of the a) Teaching and non-teaching employees of Government sponsored or aided …. (i) Schools upto Class-XII standard (ii) Training Institutions of Primary Teachers. b) Employees of District Primary School Councils including Siliguri Sub-divisional Primary School Council and Darjeeling (Hill Areas) District School Board. c) Employees of the West Bengal Board of Primary Education. d) Employees of West Bengal Madrasah Education Board.” (15) According to the respondent the notification dated May 29, 2002 having not been published with the sanction of the Governor, cannot have the overriding force as the earlier notification dated February 12, 1999. (16) Mr. Soumya Majumder, learned senior counsel for the respondent School has relied on the following judgments:- i) Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 The Court clarifies that the tests laid down in Ajay Hasia v. Khalid Mujib Sehravardi (1981) are not rigid or conclusive determinants for identifying “State” under Article 12. The determination must rest on a cumulative assessment of whether the body is financially, functionally, and administratively dominated by, or under the pervasive control of, the Government. Such control must be specific and deep-rooted; mere regulatory supervision, whether statutory or otherwise, is insufficient to render a body “State” within the meaning of Article 12. ii) Raghuraj Singh & Co. (Contractors) Pvt. Ltd. v. C.E.S.C. Ltd., 1995 SCC OnLine Cal 390 CESC Limited, though a licensee under the Indian Electricity Act, is not “State” within the meaning of Article 12 for the purpose of enforcing private contractual rights. While a writ may lie in respect of its statutory functions relating to supply of electricity, no writ is maintainable to enforce a purely private contract between the parties. The reliance on Mahabir Auto Stores v. Indian Oil Corporation is misplaced, as that decision turned on distinct facts involving violation of principles of natural justice in a long- standing commercial relationship, which are absent in the present case. iii) St. Mary's Education Society v. Rajendra Prasad Bhargava, (2023) 4 SCC 498 The Court holds that the mere amenability of a private body, performing public functions, to writ jurisdiction does not render all disputes involving such body justiciable under writ proceedings. The maintainability of a writ depends upon the nature of the right sought to be enforced; rights arising purely from private law cannot be enforced through writ jurisdiction. The issuance of mandamus is confined to enforcement of public duties, and therefore, the existence of a clear public law element is a sine qua non for invoking such jurisdiction. iv) Rita Ghoshdastidar v. St. Joseph & Mary’s School, 2024 SCC OnLine Cal 3855 The Court holds that actions or decisions of a private body in service matters are not amenable to challenge under Article 226 where the service conditions are non-statutory, even if such body performs public functions. Accordingly, disputes arising out of a purely contractual employment relationship, such as termination of a teacher in an unaided private school, cannot be enforced through writ jurisdiction. The Court holds that the impugned decision of the disciplinary authority lacks any public law element, the petitioner seeking enforcement of a contract of personal service, which is impermissible under writ jurisdiction. The grievance being purely personal and falling within the domain of private law, the writ petition is not maintainable against the respondent, a private unaided institution. v) Pinaki Dhar v. State of West Bengal, FMA 763 2022 Judgment dated March 27, 2024 The Court holds that a writ against a private educational institution is maintainable only where it qualifies as a statutory body. An institution is deemed statutory if it owes its very existence to a statute; mere regulation or governance under statutory provisions does not confer such character. The determinative test is whether the institution would exist in the absence of the statute—if not, it is statutory; if it possesses an independent existence and is only regulated by statute, it cannot be regarded as a statutory body. The Court holds that where an institution receives government aid and the governing rules mandate approval of a statutory authority, particularly in matters of termination of employees, any order of such statutory authority is amenable to challenge under writ jurisdiction. The Court holds that mere applicability of statutory provisions or regulatory requirements for functioning or recognition does not convert a private institution into “State” or “other authority” under Article 12 so as to attract writ jurisdiction. To hold otherwise would impermissibly extend writ jurisdiction to all private educational institutions not established by or under statute. vi) Unni Krishnan, J.P. v. State Of Andhra Pradesh, 1993 (1) SCC 645 The Court holds that the expression “any person or authority” under Article 226 is to be construed liberally, unlike its restricted meaning under Article 12. While Article 12 is confined to enforcement of fundamental rights, Article 226 empowers High Courts to issue writs for enforcement of both fundamental and non-fundamental rights. Accordingly, writ jurisdiction may extend to any person or body performing a public duty, irrespective of its form or status. The determinative factor is the existence of a positive obligation owed to the affected party; where such public duty exists, the remedy of mandamus cannot be denied. The Court holds that public funds granted as aid, and not as loans, retain their public character and cannot be utilised for private purposes. Such public character mandates adherence to fairness and constitutional principles embodied in Articles 14 and 15. Accordingly, authorities disbursing aid to educational institutions are obligated to impose and ensure compliance with conditions consistent with these constitutional requirements. vii) TMA Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 The Court holds that unaided private schools are entitled to substantial autonomy in matters of administration, including appointments, disciplinary control, admissions, and fixation of fees. Such autonomy is essential to maintain higher educational standards, which often surpass those of State-run institutions. In the absence of adequate State resources, regulatory interference in fee structures may undermine institutional excellence. The appropriate approach lies in improving public education infrastructure and subsidising State schools, while ensuring quality control in private institutions through recognition, affiliation, and examination standards, rather than excessive regulation of their internal management. The Court holds that in private institutions, the relationship between management and employees is contractual in nature. Disputes arising therefrom should be resolved expeditiously and without undue costs, and the State Government, in consultation with the High Court, shall designate an appropriate judicial forum for adjudication of appeals against disciplinary action or termination of service. Article 30(1) guarantees linguistic and religious minorities the right to establish and administer educational institutions of their choice, thereby reinforcing the constitutional principles of secularism and equality. The provision mandates non-discrimination, ensuring that minority institutions are neither placed at a disadvantage nor granted undue advantage vis-à-vis majority institutions. Accordingly, laws and regulations must apply uniformly, preserving parity and equal treatment between minority and non-minority educational institutions. The Court holds that unaided minority educational institutions, akin to other private unaided institutions, enjoy maximum autonomy in matters of administration, including recruitment of staff, fee fixation, and student admissions. However, such autonomy remains subject to conditions of recognition, which must not dilute or abridge the rights guaranteed under Article 30. The Court holds that grant of aid is not a constitutional right under Article 30(1), and minority institutions cannot claim aid as a matter of entitlement. Article 30(2) merely prohibits discrimination against minority institutions in the matter of grant of aid on the ground of their minority status. While the State may impose conditions for grant of aid, such conditions must not compel surrender of the core right of management; any denial of aid solely on the basis of minority management would be unconstitutional. The Court holds that conditions relating to proper utilisation of grant- in-aid may be uniformly imposed on all educational institutions, whether minority or majority-run, and Article 30(2) prohibits discrimination in grant of aid solely on the ground of minority status. Upon receipt of State aid, constitutional limitations under Articles 28 and 29(2) become applicable, thereby restricting certain administrative rights, including religious instruction and admissions. In particular, an aided institution, including a minority institution, cannot deny admission to any citizen on grounds of religion, race, caste, or language, and such regulatory constraints are constitutionally valid notwithstanding the rights under Article 30. (17) Having considered the rival submissions, the first aspect which requires consideration is the historical and legal background in which the claim for implementation of ROPA, 2009 by the writ petitioners has arisen. The controversy cannot be examined in isolation by merely looking at the subsequent Memorandum dated May 21, 2009. The respondent-school is admittedly a recognised D.A.-getting institution and the petitioners are approved employees thereof. The Government, as early as on May 29, 2002, issued Memo No.641-SE(LAW)/5S-577/2001 pursuant to the order passed by this Court on October 8, 2001 in W.P. No.707 of 2000, Staff Council, Gyan Bharati Vidyapith & Anr. versus State of West Bengal & Ors. By the said Government Order, all recognised D.A.-getting schools receiving the D.A. component from the Government for their approved teaching and non-teaching staff were required to pay, from their own resources, salary to such approved employees at the rate prescribed by the State Government for teachers and non-teaching employees of Government- aided schools. The same order further contemplated that the D.A. component payable by the Government would correspond to the rates admissible to employees of State Government aided educational institutions, as announced from time to time. The expression "as announced from time to time" assumes significance, for it indicates a continuing regulatory arrangement and not one confined to a particular revision of pay. The said Government Order was, therefore, not merely an administrative instruction concerning ROPA, 1996; it created a continuing obligation upon recognised D.A.-getting institutions to maintain the prescribed parity in the matter of the salary structure of their approved employees. (18) The subsequent course of events is significant. The respondent-school itself had implemented ROPA, 1996 pursuant to the Government Order dated May 29, 2002. Thus, the school accepted the foundational principle that the pay structure prescribed by the State Government for comparable employees of Government-aided schools, was not merely an optional benchmark but the governing salary structure for its approved employees. The question, therefore, is not whether a D.A.-getting school is generally entitled to determine its salary structure independently, but whether, having accepted the regulatory regime created by the Government Order dated May 29, 2002 and having implemented the earlier revision pursuant thereto, it could thereafter disregard a subsequent revision, merely because its implementation entailed an increased financial burden. The distinction is material. The 2002 Order did not create an isolated entitlement corresponding only to ROPA, 1996; it required payment at the rate prescribed by the State Government for comparable employees of Government-aided schools. The petitioners' reliance upon the subsequent ROPA, 2009 is consequently founded upon the continuing nature of that obligation. (19) The respondent-school, however, seeks to trace its freedom to determine the salary structure, to the notifications dated July 31, 1981 and February 12, 1999. The former brought within the terms of reference of the Pay Commission the structure of emoluments and conditions of service of teachers and non-teaching employees of Government- sponsored or aided schools, including schools up to the Higher Secondary level; the latter similarly constituted a Pay Commission whose terms of reference included the teaching and non-teaching employees of Government-sponsored or aided schools up to Class XII. These notifications, in their true character, define the field of consideration of the respective Pay Commissions. They do not, by themselves, declare that recognised D.A.-getting schools are permanently excluded from the benefit of any future revision of pay prescribed for comparable employees of Government- aided schools. Indeed, the notification dated May 21, 2009 itself refers to the pay prescribed under Memo dated February 12, 1999 as the appropriate scale for comparable posts. The reliance upon the 1981 and 1999 notifications, therefore, cannot displace the distinct and subsequent obligation created by the specific Government Order dated May 29, 2002. The relevant terms of the two notifications relied upon by the school are themselves reflected in the present record. (20) The principal controversy, therefore, centres upon the legal effect of the Memorandum dated May 21, 2009. That Memorandum was issued by the School Education Department, Budget Branch, in relation to grant of D.A. to teaching and non-teaching employees of Anglo-Indian and D.A.-getting schools. It provided that employees of D.A.- getting schools drawing pay scales under ROPA, 1996 would receive D.A. at the specified rate and that those D.A.-getting schools which would implement ROPA, 2009 would receive D.A. at the revised rate. The respondent-school reads these two alternatives as conferring a substantive option upon the management either to retain ROPA, 1996 or to adopt ROPA, 2009. Such construction, however, overlooks the subject and purpose of the Memorandum. The Memorandum was concerned principally with the rate and manner of payment of D.A. by the Government. It did not expressly repeal, rescind or modify the earlier Government Order dated May 29, 2002, nor did it state that a recognised D.A.-getting school was thereafter at liberty to disregard the salary structure prescribed for comparable employees of Government-aided schools. The distinction between a provision regulating the Government's financial contribution by way of D.A. and a provision prescribing the corresponding obligation of the institution to pay salary is fundamental. (21) This precise question had already fallen for consideration in Shree Sushil Kumar Pandey & Ors. versus State of West Bengal & Ors., W.P. No.14982(W) of 2009 dated April 13, 2010, where this Court held that the subsequent introduction of ROPA, 2009 did not extinguish the operation of the Government Order dated May 29, 2002. The learned Single Judge specifically rejected the contention that the life of the 2002 Order was coterminous with the life of the earlier ROPA regime and held that the 2002 Order continued to operate. The Court further held that the Memorandum dated May 21, 2009 did not confer upon recognised D.A.-getting institutions a liberty not to implement ROPA, 2009. The said judgment was carried in appeal in M.A.T. No.1320 of 2010 and the Division Bench, by judgment dated March 8, 2011, dismissed the appeal. The Division Bench held, inter alia, that Government control continued and that the Circular dated May 29, 2002 had its "axiomatic application" to the appellants. It also found no necessity to examine the Finance Department Memorandum dated February 27, 2009 as a source of any contrary consequence. The significance of the appellate decision is not merely that the particular school before the Court was directed to implement ROPA, 2009. More importantly, the Division Bench affirmed the construction placed upon the 2002 Government Order and the 2009 Memorandum. The subsequent dismissal in limine of the Special Leave Petition arising from that decision on January 2, 2013 does not, by itself, amount to a declaration by the Supreme Court of every proposition which may have been canvassed before it. Nevertheless, the fact remains that the appellate judgment of this Court was not interfered with and the operative direction requiring implementation of ROPA, 2009 consequently stood undisturbed. The principle of merger must, therefore, be applied with the caution rather than treating dismissal of an SLP at the threshold as though the Supreme Court had independently adjudicated every question of law. The petitioners are justified in relying upon the continued authority of the Division Bench decision, but the precise ratio must be derived from that judgment itself. (22) The same question subsequently came before this Court in W.P. No.322 of 2013, Rita Mukherjee & Ors. versus State of West Bengal & Ors., decided on October 8, 2013. The petitioners therein were approved assistant teachers of Holy Child Institute Girls' Higher Secondary School, a recognised D.A.-getting minority school, and sought implementation of ROPA, 2009. The learned Single Judge held that the Government Order dated May 29, 2002 and the Memorandum dated May 21, 2009 applied to the school notwithstanding its minority character. The Court expressly rejected the contention that the latter Memorandum conferred an option upon a recognised D.A.-getting school to continue indefinitely under ROPA, 1996. It found that the earlier order had created a right in favour of approved employees of recognised D.A.-getting institutions to claim revision under future ROPA regimes and directed implementation of ROPA, 2009. The order dated October 8, 2013 in W.P. No.322 of 2013 is particularly relevant because the respondent-school in the present proceedings seeks to derive a broader autonomy from its character as a minority educational institution. The decision in W.P. No.322 of 2013 demonstrates that minority status does not, in the context of a recognised D.A.-getting institution receiving Government financial support, by itself immunise the institution from reasonable regulations concerning the security and emoluments of its approved teaching staff. Article 30(1) protects the right to establish and administer minority educational institutions, but the right of administration cannot be equated with a right of maladministration or with an absolute immunity from regulatory measures designed to secure proper conditions of service for teachers. The constitutional principle is that regulations directed towards the welfare of teachers and the maintenance of educational standards may legitimately be imposed, particularly where the institution receives State support. (23) The principle emerging from Frank Anthony Public School Employees' Association (supra), is of considerable relevance in identifying the constitutional boundary between legitimate minority administration and permissible regulation. The Supreme Court recognised that minority status cannot be invoked as a shield for oppressive or exploitative conditions of service and that regulations securing reasonable service conditions for teachers may be valid. The same constitutional approach underlies the reasoning in the decisions concerning recognised minority educational institutions. Recognition and receipt of State support carry with them a legitimate regulatory dimension, particularly where the regulation concerns the welfare and security of teachers rather than interference with the core right of administration. (24) The principle enunciated by the Supreme Court in St. Mary's Education Society (supra), relied upon by the respondent-school is that the mere fact that a private body performs some public functions does not render every dispute concerning such body amenable to writ jurisdiction; the nature of the right sought to be enforced and the existence of a corresponding public duty are the determinative considerations. A writ of mandamus ordinarily lies for enforcement of a public duty and not for enforcement of a purely private contractual obligation. The said proposition is unexceptionable, but its application depends upon the character of the right and the source of the obligation involved in the particular case. In the present case, the petitioners are not seeking enforcement of a term of their private contract of employment, nor are they seeking a direction merely on the ground that the school performs a public function. Their claim arises from a specific governmental regulatory framework governing recognised D.A.-getting schools, particularly the Government Order dated May 29, 2002, under which the approved teaching and non-teaching employees of such institutions are to receive salary at the rates prescribed by the State Government for comparable employees of Government-aided schools. The obligation sought to be enforced is, therefore, traceable to a public instrument and not merely to a private contract. The controversy consequently possesses the requisite public-law element contemplated in St. Mary's Education Society. The distinction between a purely private service dispute and enforcement of an obligation imposed upon a recognised, State-regulated and D.A.-getting educational institution is, in the facts of the present case, decisive. The decision in St. Mary's Education Society (supra), therefore, cannot be understood as laying down that once an educational institution is privately managed, every obligation arising under a Government Order or regulatory framework becomes immune from judicial review under Article 226. Indeed, such an interpretation would render nugatory the distinction drawn by the Supreme Court itself between private contractual rights and public duties. (25) There is yet another aspect which cannot be lost sight of while examining the plea of the respondent-school that its limited financial resources constitute a justification for declining the benefit of ROPA, 2009 to the petitioners. An educational institution, particularly a recognised institution imparting school education, cannot be viewed in the same manner as an ordinary commercial or profit-making enterprise. Education is not a trade or a commodity to be pursued with the primary objective of generating profit; it is an essential social function and carries with it a corresponding responsibility towards the students, the teachers and the society at large. The management of an educational institution is, therefore, expected to conduct its affairs with a sense of responsibility appropriate to the nature of the activity which it undertakes. This does not mean that the financial viability of a privately managed institution is to be disregarded, or that the management can be compelled to incur an expenditure wholly unrelated to any legal obligation. But where the institution has accepted recognition under the regulatory framework, has approved teaching and non-teaching employees on its establishment, receives the D.A. component from the State in respect of such employees and is subjected to a specific Governmental direction regarding their salary structure, the plea of paucity of funds cannot, by itself, furnish a lawful ground for withholding an otherwise admissible service benefit. The burden of maintaining the legitimate emoluments of its approved teachers cannot be shifted upon the employees merely because the management considers the financial consequence inconvenient or onerous. Teachers are not merely service providers engaged for the generation of institutional revenue; they constitute the very human foundation upon which the educational institution exists. To permit an institution to invoke insufficient monetary resources as an unilateral ground for denying a pay revision otherwise flowing from the governing Government Orders would, in substance, make the statutory or regulatory entitlement of an employee dependent upon the financial convenience of the management. Such a consequence would be inconsistent with the object of the regulatory scheme and with the larger social character of education. The financial capacity of the institution may legitimately be a consideration in framing policy or determining the extent of State assistance, but it cannot be converted into a discretionary licence to disregard an obligation which the institution is otherwise bound to discharge. (26) The next question is whether the Memorandum dated May 21, 2009 could be regarded as having an overriding effect over the Government Order dated May 29, 2002. The answer must be in the negative. An implied repeal or supersession is not readily inferred where the later instrument does not expressly repeal the earlier one and where the two can reasonably operate in different fields. The 2002 Order deals with the substantive obligation of the D.A.-getting institution to pay approved employees at the rates prescribed for comparable employees of Government-aided schools; the 2009 Memorandum principally regulates the rate of D.A. which the Government would release depending upon the pay structure followed by the institution. There is consequently no necessary repugnancy between the two. The later Memorandum cannot be construed as impliedly withdrawing an accrued and continuing obligation unless its language makes such intention clear. No such clear intention is discernible. The argument based upon absence of Governor's sanction also cannot assist the respondent. The Division Bench in Secretary, Shree Maheshwari Vidyalaya (supra), specifically considered and rejected the contention that the 2002 Circular lost its force merely because of want of mention of the Governor's authority. The Division Bench, after considering the relevant constitutional authorities, declined to hold that the Circular had been rendered ineffective on that ground. The respondent cannot, therefore, reopen that issue in the present proceedings merely by presenting it in a different shape, as an objection to the efficacy of the 2002 Government Order. (27) The argument that implementation of ROPA, 2009 would cause substantial additional financial burden upon the school, cannot constitute a legal answer to the claim. Page 25 of 28 Financial difficulty may explain the reluctance of the management, but it cannot by itself extinguish an obligation arising from a binding regulatory framework. The very decision in Shree Sushil Kumar Pandey proceeded on the principle that neither the additional financial burden resulting from implementation nor alleged insufficiency of resources could furnish a ground for avoiding the obligation created by the 2002 Government Order. The record in the present case, moreover, discloses that the management itself had acknowledged the increased financial burden associated with implementation of the Fifth Pay Commission recommendations. Such financial difficulty, therefore, cannot be converted into a discretionary power to disregard the governing pay structure. (28) The decisions relied upon by the respondent concerning private and unaided institutions are, therefore, distinguishable on the central factual and legal feature present here. The present school is a recognised D.A.-getting institution; the petitioners are approved employees; the State makes a financial contribution by way of D.A.; and, most importantly, there exists a specific Government Order dated May 29, 2002 governing the salary payable to such employees. The present claim is thus not founded upon a general plea of equality with Government employees, nor upon an abstract invocation of Article 14. It is founded upon an existing regulatory obligation which has already been judicially construed as extending to future revisions of pay. The cumulative effect of the statutory and constitutional principles, the Government Orders and the decisions referred to above is that the respondent-school cannot treat implementation of ROPA, 2009 as a matter resting solely within its discretion. The 2002 Government Order created a continuing obligation to pay the approved employees of recognised D.A.-getting schools at the rates prescribed by the State Government for comparable employees of Government-aided schools. The Memorandum dated May 21, 2009 did not repeal, override or dilute that obligation. The decisions in Shree Sushil Kumar Pandey, Secretary, Shree Maheshwari Vidyalaya and subsequently in W.P. No.322 of 2013 constitute strong and directly relevant authority on the construction of these instruments. The respondent's minority character does not alter the position because the impugned regulation concerns the welfare and emoluments of approved employees of a recognised institution receiving State financial support and does not trench upon the core administrative rights protected by Article 30. (29) It is unacceptable that the respondent-school possessed an unfettered discretion to continue the petitioners under ROPA, 1996 and to deny them ROPA, 2009 for such reasons as it might consider sufficient. Nor can the increased financial burden or dependence upon tuition fees constitute a legal justification for non-compliance with the governing regulatory framework. The expression "those D.A.-getting schools ... who will implement ROPA, 2009" in the Memorandum dated May 21, 2009 has to be understood in its proper context as determining the applicable D.A. regime, and cannot be construed as creating an option to defeat the continuing obligation flowing from the Government Order dated May 29, 2002. Page 27 of 28 (30) Consequently, in view of the petitioners' approved status, sanctioned posts and the period for which each petitioner remained in service, the petitioners are found to be entitled to have their pay fixed in accordance with ROPA, 2009 from the date on which the revised scale became applicable to comparable employees of Government-aided schools. Therefore, the present writ petition should succeed and the benefits claimed by the petitioners are found allowable to them. (31) Hence, let this writ petition No. WPO 448 of 2014 be disposed of with the following directions: - i) The petitioners are entitled for a salary structure in accordance with the revision of pay and allowance Rules, 2009 from an appropriate date till the date of their superannuation. ii) Let therefore, the concerned respondents including the school and the District Inspector of Schools of the jurisdiction take appropriate steps for allowing the benefit to the petitioners under ROPA, 2009 by fixation of pay in an appropriate manner, within a period of four (04) weeks from the date of communication of this order. iii) The petitioners shall be entitled for arrear amount of salary till the date of their superannuation. Let that be disbursed to the petitioners by the concerned respondents including the school, within a period of three (03) months from the date of communication of this judgment. iv) The petitioners shall be entitled for fixation of pension in terms of their last drawn salary as per the revised pay fixation pursuant to this order. Hence, necessary revision of pension be made immediately by way of revision of Pension Payment Order of the respective petitioners, within a maximum period of four (04) weeks from the date of communication of this judgment. v) Arrear amount of pension, if any, stands due and outstanding should be paid to the petitioners within a period of three (03) months from the date of communication of copy of this judgment. (32) With the directions as above, the instant writ petition is disposed of along with applications pending, if any. (33) Urgent certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities. (Rai Chattopadhyay, J.)