WP 5551/11 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 5551/2011
1. Smt.Radhika w/o Rajiv Golatkar.
2. Shri Sachin s/o Rajendra Jadhao.
3. Shri Pravin s/o Vasantrao Kharalkar.
4. Shri Gangadhar s/o Ambadasrao Ashture.
5. Smt.Charulata d/o Amarkant Sahare.
6. Shri Sanjay kumar s/o Shravan Borase.
7. Smt.Bharti d/o Raghunath Bhokare.
8. Smt.Prerna Anil Thumbe.
9. Miss Rasika Pundlik Alone.
All C/o Eklavya Residential School,
Khairi-Parsoda, Ramtek, District Nagpur.
10. Shri Prafulla s/o Madhaorao Kachave.
11. Smt.Sujata d/o Sahebrao Patil.
12. Shri Narayan s/o Shankar Choudhari.
13. Shri Sanjeevkumar Bisanji Ilame.
14. Shri Daulat Chhabu Ugale.
15. Shri Shivaji Gajmal Patil.
All C/o Eklavya Residential School,
Chikhaldara, district Amravati. PETITIONERS
.....VERSUS.....
1. The Maharashtra Tribal Public School Scoiety,
through its Chairman and Member Secretary,
Tribal Development Department,
Mantralaya, Mumbai-32.
2. Tribal Public School Society,
through its Secretary and Commissioner,
Tribal Development Department,
Adiwasi Vikas Bhavan, 1st Floor,
Gadkari Chowk, Old Agra Road, Nasik.
3. Union of India,
Through Ministry of Tribal Affairs,
Shastri Bhawan, New Delhi - 110 115. RESPONDENTS
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WP 5551/11 2 Judgment
Shri H.D. Marathe, Advocate holding for Shri A.Parchure, Counsel for the petitioners.
Shri Shashibhushan B. Wahane, Special Counsel for the respondent nos.1 and 2.
Mrs.M.R. Chandurkar, counsel for the respondent no.3.
CORAM :SMT.VASANTI A NAIK AND
A.D. UPADHYE, JJ.
DATE : 31
ST
JULY, 2017.
ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)
By this writ petition, the petitioners seek a direction against the respondents to apply the recommendations of the 6 th Pay Commission to them. The petitioners have also sought a direction against the respondents, to make the Pension scheme, General Provident Fund scheme and Group Insurance scheme, etc. applicable to the petitioners. The petitioners have sought a declaration that their services should be governed by the Maharashtra Civil Services Rules. By amending the writ petition, the petitioners have sought a direction against the respondents to pay the arrears of salary to the petitioners in the appropriate pay-scale. Also, the Government Resolution, dated 07.05.2015 is challenged by the petitioners, by amending the writ petition.
2. The Central Government had floated a scheme for establishing residential schools for the promotion of education for the scheduled tribes students named as, 'Eklavya Model Residential School' scheme. The funding for the construction of the Eklavya schools and creation of infrastructure facilities was made by the Central Government. ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:33:31 :::
WP 5551/11 3 Judgment As per the said scheme, the Central Government had promised to provide a particular amount for every tribal student taking education in the Eklavya schools and as per the last revised guidelines for setting up of the schools framed in June-2010, the Central Government had agreed to provide a sum of Rs.42,000/- per student per annum. As per the revised policy of the Central Government, the Central Government would not release any amount in addition to the amount of Rs.42,000/- that was liable to be paid for every student taking education in the Eklavya schools. As per the said scheme of the Central Government, the State Government decided to start a few such schools known as Eklavya schools in the various parts of the State of Maharashtra and the policy in that regard was framed by the State Government vide Government Resolution, dated 11.09.2000. As per the said Government Resolution, the residential schools for the tribal students could be started by creation of 180 posts of teaching and non-teaching staff. As per Clause 6 of the Government Resolution, the salary, the dearness allowance and the other allowances as admissible could be paid to the teachers working in the residential schools. Annexure-A was appended to the Government Resolution thereby fixing the salary of the teaching and the non-teaching staff in the Eklavya schools that would be appointed between the academic session 2000-01 to 2007-08. It is not the case of the petitioners that the petitioners were not paid the salary as per Annexure-A that is appended ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:33:31 ::: WP 5551/11 4 Judgment to the petition. When this petition was filed in the year 2011, the petitioners had sought for a direction against the respondents to apply the Maharashtra Civil Services Rules to the petitioners, grant them the benefit of the 6th Pay Commission Recommendations and also apply the pension scheme, the General Provident Fund scheme and the Group Insurance scheme to them. During the pendency of the writ petition, the Government issued a resolution dated 07.05.2015 that House Rent Allowance, Travelling Allowance and other allowances would not be applicable to the teaching and the non-teaching staff in the Eklavya schools. The condition in the Government Resolution, dated 07.05.2015 is challenged by the petitioners by amending the writ petition.
3. Shri Marathe, the learned counsel for the petitioners, submitted that the Government Resolution, dated 11.09.2000 provided that the Government would grant the pay-scale of a teacher working in a Government school or even more to the teachers of the Eklavya schools. It is submitted that in pursuance of the said Government Resolution, the petitioners were entitled to salary at par with the teachers working in the government schools. It is submitted that though the 6th Pay Commission Recommendations were made applicable to the other schools in the State of Maharashtra, the employees working in the Eklavya schools were not granted the benefit of the 6th Pay Commission Recommendations. It is submitted that the petitioners would be entitled to the House Rent ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:33:31 ::: WP 5551/11 5 Judgment Allowance, Travelling Allowance and other allowance that are applicable to the employees working in the government schools but such allowances are not paid to the petitioners. It is stated that by the Government Resolution, dated 07.05.2015, the State Government has decided not to grant the House Rent Allowance, Travelling Allowance and other allowances to the employees of Eklavya schools. It is submitted that Clause 9 of the Government Resolution, dated 07.05.2015 that the House Rent Allowance, Travelling Allowance and other allowances would not be applicable to the petitioners and the other employees of Eklavya schools is bad in law. It is submitted that the salary of the petitioners is reduced by the respondents though they are entitled to much higher salary in view of the recommendations of the 6th Pay Commission.
4. Mrs.Chandurkar, the learned counsel for the Central Government, submitted that the Eklavya Model Residential Schools are set up in pursuance of the grants provided by the Union of India to the State Government under Article 275(1) of the Constitution of India. It is submitted that the revised guidelines for setting up of Eklavya schools was issued in the month of June-2010 and as per the said policy, the task of the school admission, appointment of teachers, appointment of staff, personnel matters and day-to-day running of the schools would be handled entirely by the Society chosen by the State Governments/Union Territory Administration in the manner being most suitable. It is stated ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:33:31 ::: WP 5551/11 6 Judgment that the Union of India would not accept any responsibility pertaining to the admission of the students, staff recruitments, personnel policy, etc. It is submitted that the petitioners are the employees of Maharashtra Tribal Public School Society. It is submitted that as per the revised guidelines, the recurring costs for the schools during the first year would be at the rate of Rs.42,000/- per student per annum. It is submitted that under the said scheme, the society is permitted to secure donations from the public for running the Eklavya schools. It is stated that since the Union of India is not responsible for paying the salary of the employees of the Eklavya schools, no direction could be issued by this Court against the Union of India.
5. Shri Wahane, the learned Special Counsel for the respondent nos.1 and 2, has opposed the prayers made by the petitioners in the instant petition. It is submitted that the schools are being run by the State of Maharashtra through the Maharashtra Tribal Public School Society in pursuance of a scheme floated by the Central Government. It is stated that the State Government had decided to implement the scheme of the Central Government through the Maharashtra Tribal Public School Society. It is submitted that the pay-scales of the teaching and non- teaching staff was fixed by the Government Resolution, dated 11.09.2000 and it is not the case of the petitioners that they have received anything ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:33:31 ::: WP 5551/11 7 Judgment less than the pay-scale that is provided in Annexure-A appended to the Government Resolution, dated 11.09.2000. It is stated that the pay of the employees was raised from time to time. It is stated that though the 6 th Pay Commission Recommendations cannot be made applicable to the employees of Eklavya schools as of a right, the government took a decision of granting the benefit of the 6th Pay Commission recommendations to the petitioners and other employees with effect from 01.11.2014. It is stated that the pay-scales of the petitioners and the other employees in Eklvya schools is fixed as per the recommendations of the 6th Pay Commission with effect from 01.11.2014 and the arrears of salary in pursuance of the fixation of salary in the said pay-scales is released in favour of the petitioners for the period from November-2014 to November-2015. It is submitted that the petitioners and the other employees of the Eklavya schools are not the government employees and therefore, the Maharashtra Civil Services Rules cannot be made applicable to them. It is submitted that the petitioners cannot claim House Rent Allowance, Travelling Allowance and other allowances that are payable to the government employees as the petitioners are not the government employees and they are appointed in the Eklavya schools after the State Government decided to implement the scheme floated by the Central Government for starting the residential schools for educating the scheduled tribe children. It is stated that the employees are supposed to ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:33:31 ::: WP 5551/11 8 Judgment reside in residential schools and hence House Rent Allowance and Travelling Allowance would not be admissible to them. It is submitted that since the petitioners do not have a right to claim the House Rent Allowance, Travelling Allowance and other allowances, they cannot effectively challenge the Government Resolution, dated 07.05.2015. It is submitted that since the petitioners are not the employees working in the government schools or government aided schools, the Maharashtra Civil Services Rules or the other rules meant for the private schools would not be applicable to them. It is submitted that the petitioners are receiving handsome salary inasmuch as some of the employees are receiving the salary to the extent of Rs.72,000/- per month and even the assistant teachers are also receiving the salary of more than Rs.60,000/- per month though they are appointed under the scheme and their salary was fixed as per the Government Resolution dated 11.09.2000. It is submitted that since the petitioners have sought a direction to the respondents to frame the rules pertaining to the service conditions of the employees working in Eklavya schools, the respondent nos.1 and 2 have framed the rules and the rules are being implemented. It is submitted that the grievance of the petitioners in that regard stands redressed. The learned counsel sought for the dismissal of the writ petition.
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WP 5551/11 9 Judgment
6. On hearing the learned counsel for the parties, it appears that some of the prayers made by the petitioners in the writ petition cannot be granted. As regards the prayer of the petitioner for a direction against the respondent nos.1 and 2 to frame the rules, the respondents have framed the rules and have placed the copy of the rules on record. There is no challenge to the rules framed by the respondent nos.1 and 2. The other prayer made by the petitioners in regard to the issuance of a direction to the respondents to grant the benefit of the 6 th Pay Commission recommendations to the petitioners is also partly redressed. On a reading of the Government Resolution, dated 11.09.2000, it is apparent that the petitioners have been appointed in pursuance of a scheme floated by the Central Government and implemented by the State Government through the Maharashtra Tribal Public School Society. The petitioners are not appointed in the schools run by the State Government or any regular private schools that are aided by the State Government. The petitioners have been appointed in pursuance of the scheme of the Central Government to run the residential schools for the scheduled tribes students in which the State Government receives grants from the Central Government under Article 275(1) of the Constitution of India. There is nothing in the Government Resolution to show that the pay of the employees in Eklavya schools is required to be re-fixed after every ten years in pursuance of the recommendations of the pay commission. In ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:33:31 ::: WP 5551/11 10 Judgment fact, Annexure-A appended to the Government Resolution dated 11.09.2000 provides for the pay-scales that would be applicable to the teaching and the non-teaching staff in Eklavya schools. The pay-scales provided in Annexure-A would be applicable for the staff appointed between 2000 to 2008. If an employee appointed even in the year 2007- 08 is entitled to the pay-scale as is provided in Annexure-A, it cannot be said that automatically the recommendations of the 6th Pay Commission would be applicable to them. Since for the implementation of the scheme, the State Government receives limited funds under Article 275(1) of the Constitution of India, the petitioners would not be entitled to seek the application of the recommendations of the pay commissions, as of a right. Only a sum of Rs.42,000/- per student is received by the State towards funds from the Central Government. The upkeep of the schools as well as the salary and the allowances payable to the employees is required to be paid from the grants received from the Union of India and the amounts received by the Maharashtra Tribal Public School Society in charity. The State Government, however took a decision to grant the benefit of the 6th Pay Commission recommendations to the petitioners and the other employees with effect from 01.11.2014 and paid the arrears of salary to them from November-2014 to November-2015. There is no right in the petitioners to seek the implementation of the recommendations of the pay commissions as of a right. It would be ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:33:31 ::: WP 5551/11 11 Judgment necessary to reiterate that the pay-scales provided in Annexure-A, appended to the Government Resolution dated 11.09.2000, are payable even to the teaching and the non-teaching staff that is appointed in the year 2006, 2007 and 2008. It is not the case of the petitioners that the petitioners have not been paid in accordance with the pay-scale provided in Annexure-A to the Government Resolution, dated 11.09.2000. In the circumstances of the case, though we find that the petitioners cannot claim the implementation of the recommendations as of a right, the Government must either consider applying the recommendations to them appropriately or to periodically raise their salary, till the scheme is in operation. There is nothing in the Government Resolution dated 11.09.2000 that provides for granting House Rent Allowance or the Travelling Allowance to the petitioners. The Government Resolution only provides for the pay that is mentioned in Annexure-A appended to the Government Resolution, dated 11.09.2000, Dearness Allowance and the other admissible allowances. The Government Resolution does not speak of the grant of House Rent Allowance and the Travelling Allowance to the employees. Also, it is surprising that though the teaching and the non- teaching staff is appointed in Eklavya Residential Schools and they are supposed to reside in the said schools, the petitioners are claiming for the House Rent Allowance and the Travelling Allowance. If the petitioners are not the government servants and their status is also not that of ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:33:31 ::: WP 5551/11 12 Judgment government servants, having been appointed under the scheme floated by the Central Government to run the residential schools for the scheduled tribes students, it is difficult to grant the prayer of the petitioners for a direction to the respondents to make the Maharashtra Civil Services Rules applicable to the petitioners. The Maharashtra Civil Services Rules would apply only to the government servants and to those employees of the local bodies to which the State of Maharashtra makes the Maharashtra Civil Services Rules specifically applicable. Eklavya Residential Schools in the State of Maharashtra are run by the Maharashtra Tribal Public School Society. It is apparent from the guidelines framed by the Central Government for setting up the model Eklavya schools that only a sum of Rs.42,000/- per student would be funded by the Central Government every year and the Maharashtra Tribal Public School Society would be entitled to seek donations from the public for running the schools. If the State Government is implementing the scheme floated by the Central Government out of the funds received from the Central Government under Article 275(1) of the Constitution of India and from the donations received by the society from the charitable institutions and private persons, the petitioners cannot be heard to say that they may be paid the salary as is paid to the employees working in the private schools that are funded by the Government. We have perused the appointment orders of the petitioners. The appointment orders provide that only the rules ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:33:31 ::: WP 5551/11 13 Judgment framed by the Maharashtra Tribal Public School Society would be applicable to the petitioners. The Maharashtra Tribal Public School Society has framed the rules during the pendency of the petition. The said rules are not challenged by the petitioners before an appropriate forum. It is not the case of the petitioners that the services of the petitioners would not be governed by the rules framed by the Maharashtra Tribal Public School Society. We find that the petitioners are drawing handsome salary though they are appointed in pursuance of a scheme floated by the Central Government and implemented by the State Government through the Maharashtra Tribal Public School Society. We do not find any force in the challenge of the petitioners to the Government Resolution dated 07.05.2015 so far as it denies the House Rent Allowance and the Travelling Allowance to the employees of Eklavya Schools. In the absence of any right in the petitioners to claim the House Rent Allowance and the Travelling Allowance, the petitioners cannot effectively challenge the said condition in the Government Resolution dated 07.05.2015. It is well settled that when schemes are floated by the Central Government and implemented by the State Government, the employees appointed in pursuance of the said schemes would not be entitled to claim the salary and other allowances as are payable to the government servants as of a right, unless the scheme provides so. We do not find anything in the scheme floated by the Central Government or the ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:33:31 ::: WP 5551/11 14 Judgment rules framed by the society that would entitle the petitioners to the relief claimed. In the circumstances of the case, the government should however ensure that there is a raise in the salary of the petitioners and the other employees of Eklavya Schools from time to time till the scheme is in force. It is needless to mention that since the petitioners are not government servants and are the employees of the society, as per the scheme floated by the Central Government, neither would the Maharashtra Civil Services Rules be applicable to them nor would they be entitled to claim the benefit of Pension scheme, General Provident Fund scheme, Group Insurance scheme, etc. as per the Maharashtra Civil Services Rules.
In the result, we dispose of the writ petition with no order as to costs.
JUDGE JUDGE
APTE
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