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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.727 OF 2006
Ram Inder Sharma,
Son of Ramlochan Sharma,
Residing at B-11,
Asha Co-op. Hsg. Society,
Adharwadi Road, Kalyan (West),
District - Thane - 421 301. .. Petitioner
V/s.
1) State of Maharashtra
(Through the Principal Secretary,
Dept. of Education - School
Education - and Employment),
Mantralaya, Bombay - 400 032;
2) Deputy Director of Education,
Bombay Region, Jawahar Bal
Bhavan, Charni Road,
Mumbai - 400 004;
3) Education Inspector (South Zone)
Topiwala Lane Municipal School Bldg.,
Mumbai - 400 007;
4) School of the Sacred Heard,
Sunderdas Terrace,
Sankli Stree, Byculla,
Bombay - 400 008. .. Respondents
......
Mr.Sainand Chougule, Advocate for the Petitioner.
Mr.Milind More, Addl. G.P. for Respondent No.1.
......
CORAM : S.C. DHARMADHIKARI AND
PRAKASH D. NAIK, JJ.
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JUDGMENT RESERVED ON : SEPTEMBER 14, 2017
JUDGMENT PRONOUNCED ON : NOVEMBER, 17 2017
JUDGMENT (PER PRAKASH D. NAIK, J.) :
This petition is preferred under Article 226 of the Constitution of India and petitioner seeks issuance of writ of certiorari or a writ of mandamus or any other appropriate writ, order or directions, declaring that the respondents to count the services of the petitioner from 1980 instead of 1984 onwards for the purpose of grant of selection grade. It is also prayed that the respondents may be directed to fix the petitioner's pay scale from the date of the first appointment of 1980 as mentioned in the service book of the petitioner and order and direct the respondents to pay the salary as per the selection grade from June 2004. The petitioner also seeks injunction of this Court from preventing the respondents from recoveries being made at the instance of the petitioner.
2 The factual matrix as contended by petitioner, for considering the issues involved in this petition is as follows:
(a) The petitioner is a teacher. He joined St.George School,
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Malad, Mumbai on undergraduate scale for a period of one year during the year 1979-1980. Thereafter, from the year 1980 to 1984 for a period of four years, the petitioner worked on the basis of trained graduate scale in the same School. According to the petitioner, there was no break in his service when the petitioner joined the 4 th respondent school in the year 1984, as an Assistant Teacher.
(b) The petitioner contends that he completed 12 years of service in the 4th respondent school in 1992. For the purpose of counting 12 years, four years service in St.George School was also considered. On the basis of the said computation the petitioner was given the senior scale in the year 1992. He was due for the selection grade in the year 2004, but it was denied on the ground that four years service in the unaided school is not required to be counted. When the petitioner pointed out that he was already given the senior scale in the year 1992 on the basis of the said four years of service in St.George School, Malad, Mumbai, the Education Department had contended that the same was given by mistake .
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(c) The petitioner wrote letter dated 6 th April, 2005, addressed
to the 3rd respondent, Educational Inspector, placing the facts on record. In the said letter, it was contended that after devoting 20 years of continuous service, he was entitled for the selection grade. The Education Department contended that the senior scale was given to the petitioner by mistake and the recoveries will have to be made. In the said letter the petitioner had contended that he was entitled to the selection grade vide circular dated 9 th December, 2004.
(d) The respondent no.2, by letter dated 18 th October, 2005, informed the petitioner that his pay will have to be refixed in accordance with the 5th pay commission report and the pay revision be made. It was also stated that such a decision was arrived at by the working group in its meeting held on 26th September, 2005. The accounts Officer (Education) was directed to take necessary action. It was stated that the petitioner's service in the unaided school cannot be taken into consideration for grant of senior scale.
(e) The petitioner then sent an advocate's notice dated 24 th December, 2005, which was addressed to respondent nos.2 ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:02:57 ::: rpa 5/15 wp-727-06.doc and 3. In the said notice, it was stated that the grievance of the petitioner may be dealt with or else the petitioner will be constrained to initiate the legal proceedings. 3 The learned counsel for the petitioner submitted that the petitioner was rightly given the senior scale in 1992 on the basis of 12 years of service counting his four years of service rendered in the previous school. It is submitted that the petitioner relies upon the circular dated 26 th July, 1973, wherein it is mentioned that the past service in an unaided school is to be counted for the purpose of seniority and for the purpose of pay fixation. It is a settled principle of law that for all purposes the date of joining of service in a school is to be considered for the purpose of fixation of pay, grant of senior scale etc. The petitioner having been given the senior scale in 1992, it is not open to the respondents to contend that for the selection grade the same principle will not be applied. The counsel further submitted that the impugned decision communicated vide letter dated 18 th October, 2005 is contrary to the well established principles of law. It is submitted that in the service book of the petitioner, there is a mention of four years of service in St.George School, Malad, Mumbai. According to service book there is no break in service ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:02:57 ::: rpa 6/15 wp-727-06.doc and, hence, the petitioner is perfectly justified in contending that the pay fixation should be based on the first date of appointment in the St.George school, though, it was an unaided school. It is submitted that what is to be considered is that the said school was recognized but unaided. Whether the school is aided or unaided is totally immaterial if the concerned school is recognized by the Government. Looking from any angle the four years service in St.George school cannot be excluded for the purpose of counting the service for pay fixation. It is also submitted that the respondents be prevented from claiming any amount by way of difference for having paid the salary as per the senior scale. The respondents have no right to refix the pay or seniority or make recoveries from the petitioner. It is submitted that the petitioner is entitled to the salary according to the selection grade from June 2004. Inspite of the repeated request the salary has not been fixed after giving him the selection grade. 4 The respondent no.1 has opposed the grant of any reliefs to the petitioner. The affidavit filed by Smt.Smita Dighe, Superintendent (Secondary) is on record. In the said affidavit it has been stated that the respondent no.4 school is 100 percent private aided English Medium School receiving grant in aid from ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:02:57 ::: rpa 7/15 wp-727-06.doc the State Government for V to X standard classes. The petitioner is B.Sc.B.Ed. qualified Teacher and was appointed on 13 th June, 1984 in respondent no.4 school by School Trust, as an Assistant Teacher with effect from 13th June, 1984 in the scale of Rs.365/- to 750/-. It is stated that the petitioner was earlier working in the school which is permanently unaided school. The petitioner is appointed in the respondent no.4 school only from 13th June, 1984, which is recognized and 100 percent aided school. As per the provisions in paragraph no.10 in Government Resolution dated 6th May, 2014, the service rendered in permanent unaided school and junior colleges will not be considered for the sanction of senior scale and selection grade. It is further stated in the said resolution that if any duly qualified teaching staff working in the permanent unaided primary, secondary or junior college, and, if afterwards he has been appointed in unaided school of the same management or any other management, the said appointment will be treated as new appointment and the services will be considered from the date of approval for his appointment by the competent authority.
5 In the said affidavit-in-reply, it is further stated that the petitioner has been appointed in respondent no.4 school with ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:02:57 ::: rpa 8/15 wp-727-06.doc effect from 13th June, 1984 (which is the aided school). St.George School, Malad, Mumbai, is permanently unaided school. The petitioner is not eligible to be considered for selection grade after counting the service rendered in permanent unaided school for the period from 1980 to 1984. As per the provisions in the government resolution dated 6th May, 2014, the petitioner is eligible for senior scale in the year 1996 after completing 12 years from 1984 i.e. from the date of appointment in respondent no.4 school and for selection grade in the year 2008 after completing 24 years. It is also stated that the petitioner's prayer for getting benefit of selection grade from the year 2004, cannot be considered. In fact, the wrongly approved senior scale with effect from 1992 will be revoked and will be made legible for senior scale from 1996. Therefore, it would necessary to recover the amount paid to the petitioner by wrongly sanctioning senior scale for the period from 1992 to 1996. It is also stated that as per the G.R. Dated 28th November, 2006 and 6th May, 2014, the services of the petitioner will be calculated with effect from 13 th June, 1984 i.e. from the date of appointment in respondent no.4 school for senior scale and selection grade and, accordingly, the revised pay fixation will be done by the department. ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:02:57 :::
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6 The learned counsel for the petitioner had relied upon
the decisions of this Court delivered in writ petition no.2185 of 2000 in the case of Mrs.Vivenne Choudhari & Ors. Vs. Deputy Director of Education and another decision delivered in writ petition no.989 of 2006 in the case of Dattatrya Eknath Mahadik and Ors. Vs. Deputy Director of Education and Ors.
7 We have perused the documents on record. The petitioner had rendered his services as Assistant Teacher in the year 1979 to 1980 in St. George School Malad, Mumbai on undergraduate scale. Thereafter, he rendered his services as a teacher in the year 1980-1984 for a period of four years in St.George School at Malad, Mumbai. The petitioner then joined the respondent no.4 school in the year 1984. It is pertinent to note that St.George School where the petitioner was employed as a teacher for the period of 1980 to 1984 is a permanently unaided school. The petitioner is relying upon the period of four years wherein the petitioner had rendered his services as a teacher in St.George School, Malad, Mumbai for calculating the period to claim the reliefs as prayed in this petition. It is the case of the petitioner that he was given the senior scale in the year ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:02:57 ::: rpa 10/15 wp-727-06.doc 1992 and he was entitled for selection grade in the year 2004. The said relief was denied to him on the ground that the four years service which was rendered by the petitioner in another school was the school which is unaided school and the same cannot be counted. The petitioner's contention is that he was already given senior scale in the year 1992 on the basis of the four years of service which he had rendered in St.George School, Malad, Mumbai. The Education Department, therefore, cannot turn around and deny the relief to the petitioner. The second respondent however, categorically stated vide communication dated 18th October, 2005 that the pay of the petitioner will have to be refixed in accordance with the 5 th pay commission's report. It was also stated that a decision was arrived at by the working group in the meeting held on 26th September, 2005. The petitioner's service in the unaided school cannot be taken into consideration for the grant of senior scale.
8 It would be relevant to note that the respondent no.4 school is 100 percent private aided English Medium School receiving grant in aid from the State Government. The petitioner was appointed in the said school on 13 th June, 1984 as Assistant Teacher. The petitioner's contention that the earlier services ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:02:58 ::: rpa 11/15 wp-727-06.doc rendered in permanent unaided school namely St.George School, Malad cannot be considered since the said school was permanently unaided school. It is true that vide G.R. dated 28th November, 2006, the services rendered in recognized private unaided school in the State of Maharashtra were being considered for the sanction of senior scale and selection grade. However, in view of the clarificatary Government resolution dated 6th May, 2014, the service rendered in permanent unaided school and junior colleges will not be considered for the sanction of senior scale and selection grade. The earlier school of the petitioner was permanently unaided school and, therefore, the said period of four years cannot be considered for calculating the selection grade or senior pay scale. Clause 11 of the said resolution also makes it clear that if any duly qualified teaching or non-teaching staff working in permanent unaided primary, secondary or junior college and if subsequently he has been appointed in unaided school of same management or any other management, the said appointment will be treated as new appointment and the said service will be considered from the date of approval for his appointment by competent authority. The petitioner is, therefore, not eligible to be considered for selection grade after counting the service rendered in permanent unaided ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:02:58 ::: rpa 12/15 wp-727-06.doc school i.e. St.George School, Malad, Mumbai from the period from 1980 to 1984.
9 In the decision in the case of Vivenne Choudhary & Ors. (Supra) delivered in writ petition no.2186 of 2000, the Division Bench of this Court had considered the issue whether the period during which the college was unaided is to be considered for the purpose of counting the period of 12 years of service. In the said case, the petitioners-teachers were employed as teachers with the concerned college which is recognized by the State of Maharashtra. In the said case, the institute where the petitioners were working were not aided upto a particular period. It was contended on behalf of the State that unaided period is not to be counted for higher placement. The State relied on G.R. Dated 13th September, 1990. The petitioners challenged the explanation in the said G.R. which stated that if an employee had worked for two or more schools in one and the same pay scale continuously for 12 years and if all such schools are aided then entire period of service should be taken up for consideration and if there is break due to transfer then the period of break should be excluded from 12 years. The Court relied upon the earlier decision of this Court in the case of Dattatraya Eknath ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:02:58 ::: rpa 13/15 wp-727-06.doc Mahadik (Supra) and allowed the said petition. It was observed that the ratio of the judgment in the case of Dattatraya Mahadik will apply to the facts of the said case. The question which fell for consideration before the Division Bench of this Court in Dattatraya Mahadik case was whether the employees of private schools after completing 12 years of qualifying service in the same school which was initially unaided and subsequently aided are eligible for senior scale/time bound promotion scale and thereafter selection grade and whether once the senior scale time bound scale is granted, is it open to the respondent authorities to withdraw the same and order recovery. From the facts of that case, it is apparent that the concerned school has recognized school and has been receiving grant with effect from 1st October, 1988. The petitioners therein were employed prior to 1 st October, 1988. The question before the Court was whether the services in the same school which was recognized but unaided has to be computed for the purpose of calculating the completion of 12 years or is the service on the school receiving grant to be counted for the purpose of computing 12 years of service of recognized school covered by the provisions of the MEPS Act. The Court, therefore, observed that whether the school is aided or not the school has to pay same pay scales to their staff whether it is ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:02:58 ::: rpa 14/15 wp-727-06.doc teaching and non-teaching staff. Once that be the case whether the school receives grant in aid or not would be immaterial as long as the teachers have been appointed and their appointments have been approved. What would be relevant would be the first date of initial regular appointment. The services prior to receipt of grant in aid has to be counted.
10 It is thus seen that the facts in the aforesaid decisions were distinct and the ratio laid down therein is not applicable in the present case. It is also pertinent to note that in view of the Government resolution dated 6th May, 2014 which is not the subject matter of the aforesaid decisions, the services rendered in permanent unaided school cannot be considered for the sanction of senior scale and selection grade. The petitioner has not challenged the validity of G.R. dated 6th May, 2014. As far as the other submission of the petitioner that the authorities are trying to recover the dues which were purportedly wrongly paid to the petitioner, we have noticed that although in the letter issued by the respondents, it was mentioned that the grant of senior scale was by mistake and the differential payment will be recovered from the petitioner, we do not find that the authorities has thereafter proceeded further to recover the said amount from the ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:02:58 ::: rpa 15/15 wp-727-06.doc petitioner. There is nothing on record to show that the respondents have proceeded to take any steps for such recoveries. The petition is pending before this Court since 2006. 11 For the reasons stated herein above we do not find any substance in the contentions of the petitioner and the relief sought by him in this petition cannot be granted.
12 We therefore, pass the following order:
:: O R D E R ::
(i) Writ Petition No.727 of 2006 is dismissed;
(ii) No order as to costs.
(PRAKASH D. NAIK, J.) (S.C. DHARMADHIKARI, J.)
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