Smt. Radhika W/O Rajiv Golatkar ... vs The Maharashtra Tribal Public ...
2017 Latest Caselaw 5278 Bom

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




 ::: Uploaded on - 08/08/2017                               ::: Downloaded on - 09/08/2017 01:33:31 :::
 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.                  

                                                                       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.

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

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

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

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

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

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.

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

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

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

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

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

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