Eknath Ramdas Patil vs State Of Maha & Ors
2017 Latest Caselaw 5960 Bom

                                                    Writ Petition No.6118/2004
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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               BENCH AT AURANGABAD


                        WRIT PETITION NO.6118 OF 2004



 Shri Eknath s/o Ramdas Patil,
 Age 45 years, Occ. Service,
 R/o Savkheda (Bk.),
 Taluka and District Jalgaon                  ...      PETITIONER


          VERSUS


 1.       The State of Maharashtra
          through the Secretary,
          Education Department,
          Government of Maharashtra
          Mantralaya, Mumbai
          (Copy to be served on Govt. Pleader,
          High Court of Judicature of Bombay,
          Bench at Aurangabad)

 2.       The Education Officer (Primary),
          Zilla Parishad, Jalgaon

 3.       The President,
          East Khandesh Education Society,
          R.R. Vidyalaya Compound,
          Jalgaon.

 4.       The Head Master,
          New English Medium School,
          R.R. Vidyalaya Compound,
          Jalgaon.                   ...      RESPONDENTS

                                  .....
 Shri G.V. Wani, Advocate for petitioner
 Shri S.B. Joshi, A.G.P. for State
 Shri A.G. Talhar, Advocate for respondents No.3 and 4
                                  .....




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                                                      Writ Petition No.6118/2004
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                               CORAM:       R.D. DHANUKA AND
                                            SUNIL K. KOTWAL, JJ.

DATED: 16th August, 2017.

ORAL JUDGMENT (PER R.D. DHANUKA, J.) :

1. By this writ petition filed under Article 226 of the

Constitution of India, the petitioner has prayed for a writ of

mandamus for directing the respondents to implement the

Government Circular dated 13/5/1999 annexed at Exhibit A to

the petition in respect of payment of salary and to implement the

Vth Pay Commission and seeks further directions to the

management to pay the retrenchment amount due to the present

petitioner.

2. Some of the relevant facts for deciding this writ

petition are as under.

3. It is the case of the petitioner that, the petitioner was

appointed as a Peon in the year 1977-78 in respondent No.4

School and had been continuously working on the said post since

the date of his appointment. The Maharashtra Employees of

Private Schools (Conditions of Service) Regulation Act, 1977 read

with the Rules framed in 1981 are applicable to the aided and

Writ Petition No.6118/2004

non-aided schools in the State of Maharashtra. The respondent

No.4 school is run by respondent No.3 management which is an

unaided recognized English medium school. On 13/5/1999, the

Government of Maharashtra issued a Resolution, thereby making

applicable the Vth Pay Commission to the employees working in

the Government aided schools.

4. The petitioner made representations to the

management on 7/1/2004, 6/3/2004 and 23/4/2004 for granting

benefits to the petitioner under the said Circular dated

13/5/1999. Since there was no response from the management,

the petitioner filed this writ petition interalia praying for a writ of

mandamus directing the respondents to implement the

Government Resolution dated 13/5/1999 and for payment of the

dues payable under the said Circular. The petition was resisted

by the management by filing affidavit-in-reply.

5. Learned counsel for the petitioner submits that, the

petitioner has now retired on 31/5/2015. He submits that, the

petitioner would be entitled to the benefits under the said

Government Resolution dated 13/5/1999 though the respondent

No.3 was not getting any grant-in-aid from the Government. It

is submitted by the learned counsel that, the petitioner would be

Writ Petition No.6118/2004

entitled to the benefit under the said Government Resolution

w.e.f. 1/1/1996. In support of this submission, Mr. Wani,

learned counsel for the petitioner placed reliance on the

judgment delivered by the Division Bench in the case of

Sunanda Pandharinath Adhav & ors. Vs. State of

Maharashtra & ors. reported in 2001(1) Mh.L.J. 167 and

more particularly on paras 7 to 14. He submits that, the said

Government Resolution would equally apply to the schools not

getting grant-in-aid from the Government. He submits that, the

calculations submitted by the management before this Court are

disputed by the petitioner and such calculation dispute can be

adjudicated by the Education Officer. In support of this

submission, the learned counsel invited our attention to the

judgment delivered by Division Bench of this court in the case of

Mrs. Vaishali V. Chandekar & ors. reported in 1998(1)

Bom.C.R. 227 and in particular, para 7 thereof.

6. Mr. Talhar, learned counsel for respondents No.3 and

4, on the other hand, submits that, even if the petitioner would

be entitled to the parity of pay scale in the school run by his

client, based on the judgment of this Court in case of Sunanda

Pandharinath Adhav (supra), the petitioner cannot be allowed

such benefits for the period prior to three years of the date of the

Writ Petition No.6118/2004

petitioner filing this Writ Petition. In support of his submission,

the learned counsel placed reliance on an unreported judgment

of this Court, delivered on 11/7/2017 in case of Madhukar

Shrawan Patil & others V/s State of Maharashtra & ors. (Writ

Petition No.7410/2005 with other companion matters) and more

particularly on paras 14 to 16 of the said judgment and would

submit that, the claims for pay scale and other benefits made by

the petitioner under the said Government Circular dated

13/5/1999 is barred by limitation for the period prior to three

years from the date of filing of the writ petition. He submits that,

the management has in fact made excess payment to the

petitioner. The calculation of such payment already made to the

petitioner is submitted by the management before this Court. He

submits that, he has no objection if the calculation of the amount

due and payable to the petitioner, if any, is determined by the

Education Officer.

7. Learned counsel for the management also invited our

attention to the averments made in the additional affidavit-in-

reply filed by his client on 14/10/2015. He submits that, the

respondent No.4 school has been running this school on non-

grant basis. At the relevant time, the tuition fees of the students

was Rs.40/- per month for the period 1994-95. At the relevant

Writ Petition No.6118/2004

time, the strength of the students was 170 and it was 140 in the

year 1998-99. The strength of the students was ranging from

154 to 379 up to 2004-2005 and the fees was Rs.125/- per

month, which was increased to Rs.150/- per month up to the

academic year 2010-2011.

8. It is submitted that, the management was charging

the fees from the students considering the strength of the

students and was paying the salary to the employees based on

such fees collected by the management from the students. The

post occupied by the petitioner was not even sanctioned by the

Education Department. It is submitted that, the petitioner, thus,

cannot make a demand for payment of pay scale and other

benefits based on the said Government Circular dated 13/5/1999

w.e.f. 1/1/1996. He submits that, if this Court comes to the

conclusion that the petitioner would be entitled to the pay scale

and other benefits under the said Government Circular dated

13/5/1999, the petitioner be awarded such pay scale and other

benefits only from 1/1/2001 and not from 1/1/1996.

9. Learned counsel for the petitioner, in rejoinder,

submits that, since the management has refused to implement

the Government Circular dated 13/5/1999, the management

Writ Petition No.6118/2004

cannot be allowed to raise the issue of limitation as sought to be

raised before this Court.

10. This Court, in case of Sunanda Pandharinath Adhav

(supra), has considered the validity of the Government Circular

dated 13/5/1999. The petitioners in that case had contended

that the teachers in unaided private schools are entitled to the

parity of pay scale in school run by the private institution and are

entitled to such benefits in toto w.e.f. 1/1/1996. After

considering various judgments of Supreme Court, this Court, in

the said judgment has held that, the parity in the pay-scale has

to be maintained between the teachers engaged in unaided

schools and aided schools. This Court accepted the contentions

raised by the management that in the State of Maharashtra, the

private unaided schools do not have the freedom to enhance the

tuition fees chargeable to the students and have to approach the

State of Government making out a specific case for revision. It is

the only State Government who has powers to finally fix the

tuition fees for such schools as well. The private managements

are at the mercy of the State Government for enhancement of

tuition fees as well as its effective dates. This Court accepted the

plea of the management not to make the Vth Pay Commission

recommendations effective from 1/1/1996 favourably.

Writ Petition No.6118/2004

11. In our view, the petitioner though was working in the

respondent No.4 school which is an unaided school, he would be

entitled to the parity of pay scales under the Government

Circular dated 13/5/1999 under the provisions of the

Maharashtra Employees of Private Schools (Conditions of

Service) Regulation Act, 1977 as payable to the employees of the

aided school.

12. The Division Bench of this Court in the judgment of

Sunanda Pandharinath Adhav (supra), has adverted to the

judgment of the Supreme Court in case of State of Uttar

Pradesh & anr. Vs. U.P. Polytechnic Diploma Shikshak

Sanstha & anr., reported in JT 2000 (10) SC 469, holding that

the claim for revision in salary though was accepted, was not

accepted with retrospective effect. The Supreme Court, in the

said judgment, had directed to implement the resolution from the

date the petitioners had approached the High Court. In our view,

the principles laid down by the Supreme Court in case of State of

Uttar Pradesh & anr. Vs. U.P. Polytechnic (supra) would apply to

the facts of this case. However, since the management has

opposed the grant of parity of pay scale to the petitioner only for

the period of three years prior to the date of filing petition, we

Writ Petition No.6118/2004

are not inclined to pass any order directing the management to

pay the pay scale to the petitioner from the date of filing the writ

petition. The petitioner also had raised a demand under the

Government Resolution dated 13th May 1999 for the first time by

letter dated 7th January 2004.

13. Division Bench of this Court, in case of Madhukar

Shrawan Patil & ors. (supra), has considered the issue of

limitation in paras 15 and 16 of the judgment. It is held by the

Division Bench of this Court that the petitioners cannot claim

arrears of pay and allowances for a period of more than three

years preceding the respective dates of filing the writ petition on

the ground that the claim beyond the three years would be

barred by law of limitation. The said judgment applies to the

facts of this case. We are respectfully bound by the said

judgment delivered by this Court in case of Madhukar Shrawan

Patil & ors. (supra).

14. We are, however, inclined to accept the submissions

made by Mr. Talhar, learned counsel for the management that

the petitioner cannot be allowed the benefit of pay scale for the

period prior to the period of three years of filing the Writ Petition.

In our view, the management cannot be directed to recover the

Writ Petition No.6118/2004

additional fees from the students, who have already passed those

standards during the period when the petitioner was working in

the respondent No.4 school with retrospective effect. The

respondent No.4 school has been collecting the fees from the

students based on the strength of the students in the respondent

No.4 school and out of such fees collected by the management,

salary of the teachers and other non-teaching staff was being

paid.

15. The learned counsel for the management has no

objection if the dispute in respect of the calculation made by the

petitioner and the management is referred to the Education

Officer (Primary), Zilla Parishad, Jalgaon for determination. The

statement is accepted.

16. In our view, the Government Resolution dated

13/5/1999 would apply to the petitioner as well as respondents

No.3 and 4. The petitioner would be entitled to the benefits

under the said Government Resolution, however, w.e.f.

1/1/2001. The petitioner would also be entitled to the benefits

under the subsequent resolutions, if any, issued by the State

Government which are applicable to the petitioner and the

respondents No.3 and 4 till the date of his retirement, and the

Writ Petition No.6118/2004

retirement benefits based on such Circular, however, w.e.f.

1/1/2001. We, therefore, pass the following order :

ORDER

(i) The petitioner would be entitled to the parity of pay-

scale under the Government Resolution dated

13/5/1999, however, w.e.f. 1/1/2001 and also under

the subsequent Government Resolution, if any,

applicable to the petitioner and the respondents No.3

and 4, including the retirement benefits based on

such Circular, however, considering the applicability

of the resolution w.e.f. 1st January 2001 in this case.

(ii) The Education Officer (Primary) is directed to work

out the arrears and payment to the petitioner w.e.f.

1/1/2001. The Education Officer shall consider the

calculations, which shall be submitted by both the

parties before the Education Officer within three

weeks from today. The Education Officer shall work

out the arrears and payment within three months

from the date of the parties filing their respective

calculations to the Education Officer and shall

communicate the decision to the petitioner as well as

Writ Petition No.6118/2004

to the management simultaneously. The

management is directed to pay the arrears and

payment, if any, based on such calculations, to the

petitioner within three months from the date of such

determination by the Education Officer.

(iii) Rule is made absolute in aforesaid terms. No order

as to costs.

(iv) Parties as well as the Education Officer to act on

authenticated copy of this order.

          (SUNIL K. KOTWAL)                    (R.D. DHANUKA)
               JUDGE                                 JUDGE




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