Marie W/O. Dominic Philip vs President,Francilian ...
2017 Latest Caselaw 4134 Bom

WPs  2622/01&6841/13                                  1                Common  Judgment

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                   NAGPUR BENCH, NAGPUR.
                       WRIT PETITION No. 2622/2001
Marie w/o Dominic Philip,
aged about 39 years, occupation service,
r/o Deputy Collectors Colony, B & C
No.44/II, Civil Lines, Nagpur.                                                PETITIONER
                                      .....VERSUS.....
1.    The President,
      Francilian Education Society,
      Mohan Nagar, Nagpur.
2.    The Manager,
      St.John's English Primary School,
      Mohan Nagar, Nagpur.
3.    St.John English Primary School,
      through its head Mistress,
      Mohan Nagar, Nagpur.
4.    State of Maharashtra,
      Minister of Education,
      Mantralaya, Mumbai.                                                           RESPONDENTS

                    Shri D.G. Philip, counsel for the petitioner.
Shri M.G. Bhangde, Senior Counsel with Shri S.N. Tapadia, counsel for the respondent
                                     nos.1 to 3.
      Shri H.R. Dhumale, Assistant Government Pleader for the respondent no.4.

                                  WITH
                       WRIT PETITION No. 6841/2013
Marie Dominic Philip,
aged about 50 years, Occupation : service,
Resident of Flat No.103, Indira 
Apartment,Rahate Colony, Wardha Road, 
Nagpur - 440 022.                                                             PETITIONER
                                      .....VERSUS.....
1.    State of Maharashtra,
      Through the Secretary,
      School Education and Sports Department,
      Mantralaya, Mumbai - 400 032.
2.    Director of Education,
      Maharashtra State, Central Buildings, 
      Pune - 411 001.
3.    Deputy Director of Education,
      Nagpur Region, Nagpur.
4.    Francilian Education Society,
      A society registered under Bombay


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 WPs  2622/01&6841/13                                  2                 Common  Judgment

      Public Trusts Act, 1950,
      Having its Office in the premises of
      St.John English Primary School,
      Mohan Nagar, Nagpur - 440 001.
      Through its President.
5.    The Principal,
      St.John High School,
      Mohan Nagar, Nagpur - 440 001.
6.    The Head Mistress,
      St.John English Primary School,
      Mohan Nagar, Nagpur - 440 001.                                       RESPONDENTS

                    Shri D.G. Philip, counsel for the petitioner.
   Shri H.R. Dhumale, Assistant Government Pleader for the respondent nos.1 to 3.
Shri M.G. Bhangde, Senior Counsel with Shri S.N. Tapadia, counsel for the respondent
                                     nos.4 to 6.

                                      CORAM :SMT.VASANTI  A  NAIK AND
                                                     A.D. UPADHYE, JJ.                  

DATE : 6 TH JULY, 2017.

ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)

Since the issue involved in these writ petitions is identical and

similar prayers are made therein, they are heard together and are decided

by this common judgment.

2. The petitioner, Marie Philip, has filed Writ Petition

No.2622 of 2001 seeking a direction against the respondent-Society

to pay the arrears of salary to the petitioner with effect from

01.04.1996 as per the recommendations of the 5 th Pay Commission. So

also, Marie Philip has filed Writ Petition No.6841 of 2013 for a direction

against the respondent-Society to pay the arrears of salary to the

petitioner by fixing the same as per the recommendations of the 5 th and

6th Pay Commission.

WPs 2622/01&6841/13 3 Common Judgment

3. The petitioner was working as an Assistant Teacher in the

respondent no.5-School with effect from 01.07.1996. It is the case of the

petitioner that as per the Government Resolutions that were issued after

the 5th and 6th Pay Commission made the recommendations, the salary of

the petitioner was liable to be fixed in terms of the recommendations of

the said pay commissions that were accepted by the State Government. It

is stated that though the 5th and 6th Pay Commission recommendations

were accepted by the Government in the years 1999 and 2010

respectively the salary of the petitioner was not fixed, as per the

recommendations of the 5th and 6th Pay Commission. It is submitted that

meager salary was paid to the petitioner though the recommendations of

the 5th and 6th Pay Commission were liable to be implemented by the

respondent-Society for the teachers working in the respondent no.5-

School.

4. The learned counsel for the petitioner submitted that it was

necessary for the respondent-Society to pay the pay-scales to the

petitioner and the other employees as per the recommendations of the 5 th

and 6th Pay Commission. It is submitted that since the government had

decided to implement the recommendations of the 5th and 6th Pay

Commission, the salary of the petitioner ought to have been fixed in the

scale as recommended by the said commissions. It is submitted that there

should be a parity in the pay-scales applicable to the teachers of the

WPs 2622/01&6841/13 4 Common Judgment

unaided schools and the aided schools. It is stated that merely because

the school run by the respondent-Society does not receive grant-in-aid,

the petitioner could not be deprived of the benefits of the 5 th and 6th Pay

Commission recommendations. The learned counsel for the petitioner

relied on the judgment reported in 2001(1) Mh.L.J. 167 (Sunanda

Pandharinath Adhav & Others Versus State of Maharashtra & Others) to

substantiate his submission.

5. Shri Bhangde, the learned Senior Counsel appearing for the

respondent-Management, has opposed the prayer made in the petitions.

It is submitted that the services of the petitioner are governed by the

provisions of the Maharashtra Employees of Private Schools (Conditions

of Service) Regulation Act, 1977 and the Rules of 1981. It is submitted

that as per Section 4 of the Act, the State Government is empowered to

make rules providing for the conditions of service of the employees in

private schools. It is submitted that the State Government has

accordingly framed the rules and Rule 7 of the Rules of 1981 provides

that the scales of teachers working in the schools shall be fixed, as

specified in Schedule-C. The learned Senior Counsel took this Court

through Schedule-C to point out that the salary was paid to the petitioner

as per Schedule-C. It is submitted that Schedule-C was not amended for

long and in a writ petition filed by Mahadev Pandurang More bearing

Writ Petition No.1949 of 2012, this Court had directed the State

WPs 2622/01&6841/13 5 Common Judgment

Government to take suitable steps to revise the pay in Schedule-C, on

lines of the Government Resolution, dated 21.05.2010. It is submitted

that in pursuance of the directions issued by this Court in the judgment in

the case of Mahadev More (Supra), the State Government has, by the

notification, dated 06.09.2016 amended Schedule-C and has prescribed a

higher pay-scale for the teachers. It is stated that the petitioner has

ceased to work with the respondent-Society after tendering her

resignation. It is submitted that since the petitioner had ceased to be an

employee of the respondent no.5-School before the issuance of the

notification, dated 06.09.2016, the relief sought by the petitioner cannot

be granted.

6. On hearing the learned counsel for the parties and on a

perusal of the judgment in the case of Mahadev More (Supra), it appears

that it would not be proper to issue a direction against the respondent-

Society to fix the pay of the petitioner as per the recommendations of the

5th and 6th Pay Commission. The service conditions of the employees of

the private school, like the petitioner in this case are governed by the

provisions of the Act and the Rules. Schedule-C provides for the pay-

scales that are admissible for the teachers in the secondary schools. It is

not the case of the petitioner, as rightly submitted on behalf of the

respondent nos.4 to 6 that the pay of the petitioner is not fixed in the pay-

scale mentioned in Schedule-C. The petitioner has sought the fixation of

WPs 2622/01&6841/13 6 Common Judgment

the pay-scale as per the recommendations of the 5 th and 6th of Pay

Commission. On a reading of the provisions of Section 4 of the Act and

Rule 7 of the Rules along with Schedule-C, it would be necessary to hold

that the employees of the private schools would be entitled to the fixation

of the pay in the scales mentioned in Schedule-C. Schedule-C has been

amended after 1989, only by the notification dated 06.09.2016. There is

a hike in the pay-scales as per the amended Schedule-C in pursuance of

the notification, dated 06.09.2016. Unfortunately, the petitioner was not

in service when Schedule-C was amended. It is held in the judgment in

the case of Mahadev More (Supra) that unless the rules are amended by

following the procedure laid down in Section 16(3) of the Act, higher

pay-scales cannot be read into and become a part of Schedule-C. In the

circumstances of the case, the petitioner would not be entitled to the

relief claimed.

7. Hence, we dismiss the writ petitions with no order as to costs.

Rule stands discharged.

              JUDGE                                             JUDGE
APTE