Ramesh Rajaram Avachar vs State Of Maharashtra And Ors
2016 Latest Caselaw 7016 Bom

                                                                            3wp2489.odt
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD 
                                                                
                          WRIT PETITION NO. 2489 OF 2009




                                                                            
                            

                                       WITH 
                           CA/10470/2016 IN WP/2489/2009 




                                                    
    Ramesh  S/o Rajaram Avachar
    Age 34 years, Occ.Services,
    R/o New Hanuman Nagar,
    Lane No.6,Cidco,N-4,Aurangabad.  ...Petitioner




                                                   
    Versus

    1]   The State of Maharashtra 




                                           
         through its Secretary,
         School Education Department,
                               
         Mantralaya, Mumbai.

    2]  The Deputy Director of Education,
                              
        Aurangabad.

    3]  The Education Officer(Primary)
        Zilla Parishad, Aurangabad.
      


    4]  Shri Swami Samarth Shikshan
        Prasarak Sanstha, Chatrapati
   



        Newas, Jayabhavani Nagar,
        N-4,Cidco,Aurangabad.
        Through its Secretary.                         ...Respondents 
                                                                                           





    Shri V.D.Sapkal, Advocate for the Petitioner.
    Ms.Rashmi Gour, AGP for the State.
    Shri R.T.Nagargoje for Respondent No.4.
      





                               CORAM: S.V. GANGAPURWALA &
                                       K.L. WADANE, JJ. 

DATE : 07.12.2016

ORAL JUDGEMENT :(PER S.V.GANGAPURWALA,J.)

1. Heard the learned counsel for the parties.

2. Rule. Rule made returnable forthwith. With

3wp2489.odt consent of parties, the petition is taken up for final

disposal.

3. Mr. Sapkal, the learned counsel for the

petitioner submits that, the petitioner is appointed as

Assistant Teacher in primary school by respondent No.4

on 14.06.1999. The learned counsel submits that, the

proposal for approval to the appointment was not

considered. As such the petitioner had filed Writ

Petition before this court. The said writ petition was

dismissed. Aggrieved thereby, the petitioner had filed

Special Leave to Appeal before the Apex Court bearing

Civil Appeal No.7468/2008. The Honorable Apex Court

allowed the said appeal and directed the respondents to

take further steps giving the appellant notional

benefits with effect from the date he was appointed as

Assistant Teacher and he shall be paid salary in the

pay scale admissible to the Assistant Teachers who had

obtained Diploma in Teaching from a recognized

Institute/ University with effect from 03.06.2015. The

learned counsel submits that payment of salary of the

petitioner was not the subject matter in the earlier

Writ Petition. The learned counsel submits that, the

respondents have not disputed that the petitioner has

3wp2489.odt continuously officiated his duties as an Assistant

teacher in the primary school. The learned counsel

submits that under any circumstances, petitioner would

be entitled for payment as per the scale applicable to

the Un-trained primary teacher.

4. According to the learned counsel for the

petitioner, primary duty lies with the respondent

Management to pay the salary to the petitioner. The

condition in the appointment order that only if the

approval is granted by the Zilla Parishad then only the

petitioner would be entitled to salary would not have

any force. The learned counsel relies on the judgment

of the Full Bench of this Court in the case of St.Ulai

High School Vs. Devendraprasad Jagannath Singh

reported in 2007 (1) Mh.L.J. 597. The learned counsel

further relies on the judgment of Apex Court in Sushila

Bhikaji Sawant Vs. State of Maharashtra, reported in

2006 (5)Bom.C.R.372 to contend that even if without

approval of the Education Officer the services are

continued, the said person is entitled for the salary.

According to the learned counsel up to 2004, the

petitioner is paid salary and from 2005 salary is not

paid which is admitted by the respondent institution

3wp2489.odt in its Affidavit-in-reply also.

5. Mr. Nagargoje, the learned counsel for

respondent No.4 Institution submits that the petitioner

was given clear understanding in the appointment order

itself that he would be paid salary only if approval is

granted by the Zilla Parishad and if the approval is

not granted, the petitioner will not be entitled for

salary. With this clear understanding, the petitioner

had accepted the employment. Now the petitioner cannot

turn around. The learned counsel further submits that

even in earlier Writ Petition filed by the Petitioner

bearing Writ Petition No.2195/2005, the petitioner was

not granted the relief of grant of salary. Prayer to

that effect was also made in the said Writ Petition.

In absence thereof, the Second Petition for the said

prayer is not maintainable. The Learned Counsel submits

that for the salary dues, the present writ petition

would not be tenable. The learned counsel relies on the

judgment of the Division Bench of this court in case of

Satish Namdeo Awghade Vs. Education Officer (Secondary)

reported in 2006 (3) Mh.L.J. 730.

6. We have considered the submissions canvassed by

the learned counsel for respective parties.

3wp2489.odt

7. The fact that the petitioner has continuously

performed his duties as an Assistant Teacher with

respondent no.4 Institution right since the year 1999

is not disputed. It is also not disputed by respondent

No.4 that since 2005, the petitioner has not been paid

the salary as per the pay scale that may be applicable.

The contention of respondent no.4 is that some amount

has been paid as per the pay scale.

8. The condition in the appointment order that only

if the approval is granted, the petitioner would be

entitled for the salary and if approval is not granted

petitioner would not be entitled for salary is an

onerous condition. Such a condition does not have any

legal sanctity. The petitioner having performed his

duties and same not being disputed by the respondent

Institution, the petitioner would be entitled for

emoluments for the period he has worked.

9. The question would be the period for which,

this Court would exercise its jurisdiction for granting

relief to the petitioner. The Petitioner has filed Writ

Petition in the year 2009. The claim even prior to

three years would be barred by limitation. This Court

would consider prayer for payment of salary to the

3wp2489.odt petitioner at the most from 2006 onwards i.e. three

years prior to the filing of the Writ Petition.

10. As per Schedule "C" of the Maharashtra Employees

of Private Schools (Conditions of Service) Rules, the

petitioner is required to be paid salary as per the pay

scale admissible to an Un-trained primary teacher and

the said pay scale, as per Schedule "C" (Item 3) is

Rs.975-1660 per month. The petitioner as such would be

entitled for the salary as per the pay scale of Rs.975-

1660 per month. The said amount shall be adjusted.

Considering the date of filing of the Writ Petition, we

grant the petitioner relief from 01.04.2006. In the

result, we pass following order.

O R D E R

i. Respondent No.4 shall pay salary to the petitioner

in the pay scale of Rs. 975-1660 per month from

01/04/2006 till 31/05/2015.

ii. The payment already made by the respondent No.4 to

the petitioner directly or deposited in this court

for payment to the petitioner shall be adjusted.

iii. Arrears shall be paid expeditiously preferably

with 6 months from today.

3wp2489.odt

11. Rule is made absolute in the above terms. No

costs.

12. In view of disposal of the writ petition, Civil

Application also stands disposed of.

(K. L. WADANE, J.) (S. V. GANGAPURWALA, J. )

JPC