Bombay High Court
Ranjana Pradeep Joshi And Others vs The State Of Maharashtra And ... on 20 March, 2017
Bench: T.V. Nalawade
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1893 OF 2014
1. Anil S/o Govindrao Kale,
Age : 35 years,
Occu.: Service - Teacher,
Swami Vivekanand Academy,
Chikalthana Industrial Area,
Aurangabad,
R/o. Mahatma Fule Nagar,
Galli No.3, Eknath Nagar,
Osmanpura, Aurangabad
2. Anil S/o Apparao Kolte,
Age : 27 years,
Occu.: Service - Head Master,
Swami Vivekanand Academy,
Chikalthana Industrial Area,
Aurangabad,
R/o R-26/82, HUDCO, N-9, MHADA,
Aurangabad,
Tq. and District Aurangabad
([email protected])
3. Deepak S/o Sitaram Sapkal,
Age : 34 years, Occu.: Service-Teacher,
Swami Vivekanand Academy,
Chikalthana Industrial Area,
Aurangabad,
R/o A/6, House No.1, Eleventh Scheme,
CIDCO, Shivaji Nagar, Aurangabad
4. Uddhav S/o Purushottam Bidwai,
Age : 43 years, Occu.: Service - Teacher,
Swami Vivekanand Academy,
Chikalthana Industrial Area,
Aurangabad,
R/o N-11, B Sector, 156/4,
Subhashchandra Bose Nagar,
HUDCO, Aurangabad
5. Sachin S/o Sawaliram Dange,
Age : 32 years, Occu.: Service - Teacher,
Swami Vivekanand Academy,
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Chikalthana Industrial Area,
Aurangabad,
R/o Plot No.1073, Sai Nagar,
N-6, CIDCO, Aurangabad,
District Aurangabad
6. Tukaram S/o Dadarao Mundhe,
Age : 35 years, Occu.: Service - Teacher,
(Recently Terminated-Appeal pending
Before Tribunal),
Swami Vivekanand Academy,
Chikalthana Industrial Area,
Aurangabad,
R/o N-2, J-14/7, Mukundwadi, CIDCO,
Aurangabad, District Aurangabad PETITIONERS
VERSUS
1. Maharashtra Academy of Engineering &
Education Research, Pune
Through its Registrar,
Email id : [email protected]
(Mr. S.V.Kulkarni)
Office at Sy.No.124, Ex-Servicemen
Colony Post Office,
Paud Road, Kothrud, Pune - 411038
Dist. Pune, Maharashtra
2. Swami Vivekanand Academy,
(Email id: [email protected])
P-5, MIDC, Chikalthana,
Aurangabad Dist. Aurangabad,
Through its Trustee
Mr.Ganesh Rao,
(Looking after the
Administration at Aurangabad)
3. The Director of Education,
Maharashtra State, School Education,
Administrative Building, Pune,
District Pune
4. The Education Officer (Secondary),
Zilla Parishad, Aurangabad,
Tq. and Dist. Aurangabad
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5. The State of Maharashtra,
Through Secretary,
Department of School Education,
Mantralaya, Mumbai
6. The Chief Secretary,
Government of Maharashtra,
Mantralaya, Fort,
Mumbai-32
7. Ashwini Bhide (IAS),
Secretary,
School Education and
Sports Department,
Mantralaya, Fort, Mumbai-32
8. Mr. Nand Kumar (IAS),
Principal Secretary,
School Education and
Sports Department,
Mantralaya, Fort, Mumbai-32
9. Mr. Rajendra Pawar,
Deputy Secretary,
School Education and
Sports Department,
Mantralaya, Fort, Mumbai-32 RESPONDENTS
R.Nos.6 to 9 are added as party respondents
as per Courts order dated 28.10.2015 and
R.Nos.7 and 8 are deleted vide Courts order
dated 07.01.2016
AND
WRIT PETITION NO. 1921 OF 2014
1. Chhaya D/o Baliram Dhave,
Age : 43 years, Occu.:
Service-Assistant Teacher,
R/o Plot No.19, 'Shivalic Plaza',
Prerna Nagar, Garkheda, Aurangabad,
Tq. and Dist. Aurangabad
Chhaya [email protected]
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2. Ratnmala D/o Bhagwanrao Farande,
Age : 45 years, Occ.:
Service-Assistant Teacher,
R/o 'Tuljai' C1-8, 58/4,
12th Scheme CIDCO, Shivaji Nagar,
Aurangabad,
Tq. and District Aurangabad
3. Shailaja D/o Kalidas Deshpande,
Age : 49 years, Occu.:
Service-Assistant Teacher,
R/o C-11, 'Renuka Enclave',
Chetana Nagar/Swanand Nagar,
Aurangabad,
Tq. and District Aurangabad
4. Manjusha D/o Madhukar Amlekar,
Age : 35 years, Occu.: Service-
Assistant Teacher,
R/o Raj Bhavan Apartment, Flat No.7B,
Raja Bazar, Kunwar Falli, Aurangabad
Tq. and District Aurangabad
MaKarand [email protected] PETITIONERS
VERSUS
1. Siyaram Education Society,
Aurangabad Plot No.09,
Mahesh Nagar, Jalna Road,
Aurangabad
Through its Secretary/President,
(Major G.K. Ghuge (Retd.)
2. Maharashtra Public School
(Govt. Recognized High School)
(English, Marathi & Semi
English Medium),
Plot No.09, Mahesh Nagar,
Jalna Road, Aurangabad,
Through its Head Mistress
3. The Director of School Education,
Maharashtra State, Pune
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Administrative Building,
Near Pune Station,
Tq. and District Pune
4. The Divisional Deputy Director
of Education,
Aurangabad Division, Aurangabad
5. The Education Officer (Secondary),
Zilla Parisahd, Aurangabad,
District Aurangabad
6. The State of Maharashtra,
Through its Secretary,
Department of Education,
Mantralaya, Mumbai
7. The Chief Secretary,
Government of Maharashtra,
Mantralaya, Fort,
Mumbai-32
8. Ashwini Bhide (IAS),
Secretary,
School Education and
Sports Department,
Mantralaya, Fort, Mumbai-32
9. Mr. Nand Kumar (IAS),
Principal Secretary,
School Education and
Sports Department,
Mantralaya, Fort, Mumbai-32
10. Mr. Rajendra Pawar,
Deputy Secretary,
School Education and
Sports Department,
Mantralaya, Fort, Mumbai-32 RESPONDENTS
R.Nos.7 to 10 are added as party respondents
as per Courts order dated 28.10.2015 and
R.Nos.7 and 8 are deleted vide Courts order
dated 07.01.2016
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AND
WRIT PETITION NO. 3522 OF 2016
1. Ramdas s/o Dagadoji Kshirsagar,
Age : 33 years, Occu.: Service
as Asst.Teacher,
R/o Somesh Colony, Nanded,
Tq. & District Nanded
2. Miss. Mrudula Benjamin Chandane,
Age : 30 years, Occu. Service as Asst. Teacher,
R/o C/6 Uttara Bldg. B&C Quarter,
Snehanagar, Nanded,
Tq. and Dist. Nanded
3. Mrs. Chaya Ramrao Kadam,
Age : 37 years, Occ.: Service as
Asst. Teacher,
R/o Vishwatej Residency, Flat No.101,
Narhar Nagar, Chhatrapati Chowk,
Wadi, Nanded, Tq. and Dist. Nanded
4. Miss. Minal D. Gadewar,
Age : 35 years, Occu.: Service as
Asst. Teacher,
R/o. 202, Aman Apartment, Kailash Nagar,
Nanded, Tq. and Dist.Nanded
5. Sunil S/o Chandrakant Kamthane,
Age : 45 years, Occu. Service as
Asst. Teacher,
R/o.: Flat No.3, Plot No.114, Golden Ville,
Pharade Nagar, Wadi (Bk.), Nanded,
Tq. and Dist. Nanded
6. Miss. Sunita B. Kadam,
Age : 28 years, Occ.: Service as
Asst. Teacher,
R/o. Nanded, Tq. and Dist. Nanded
7. Lovlesh V. Mahajan,
Age : 29 years, Occu.: Service as
Asst. Teacher,
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R/o. Plot No.37, Ratan Nagar,
Malegaon Road, Taroda (Ku.), Nanded
Tq. and District Nanded
8. Shridhar s/o Trimbakrao Bhale,
Age : 37 years, Occu.: Service
as Asst. Teacher,
R/o. Pharande Nagar, Nanded,
Tq. and District Nanded
9. Thomoson Jagdale,
Age : 30 years, Occu.: Service as
Asst. Teacher,
R/o. Waman Nagar, Nanded,
Tq. and District Nanded
10. Rajkumar Engade,
Age : 39 years, Occu.: Service as
Asst. Teacher,
R/o. Ashirwad Nagar, Piwali Girni,
Ganesh Nagar Road, Nanded,
Tq. and Dist. Nanded
11. Miss. Vinila Kulkarni,
Age : 30 years, Occu.: Service
as Asst.Teacher,
R/o. Ganesh Nagar, Nanded,
Tq. and District Nanded
12. Miss. Swati Magnale,
Age : 35 years, Occu: Service as
Asst. Teacher,
R/o. Ambekar Nagar, Nanded,
Tq. and District Nanded
13. Pallvi D/o Janardhan Munde,
Age : 33 years, Occu.: Service as
Asst. Teacher,
R/o Shashari Nagar, Nanded,
Tq. and District Nanded
14. Miss. Harpreet Kaur Bal,
Age : 36 years, Occu: Service as
Asst. Teacher,
R/o. Near Kavita Hotel, Bafna, Nanded,
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Tq. and District Nanded
15. Vishnu s/o Narsinghrao Shinde,
Age : 32 years, Occu.: Service
as Asst.Teacher,
R/o.: Vishnu Nagar, Nanded,
Tq. and District Nanded
16. Miss. Vidhya Ankush Jadhav,
Age : 35 years, Occu.: Service
as Asst.Teacher,
R/o.: Tirumala Nagar, Pawdewadi (Bk.),
Nanded
Tq. and District Nanded
17. Miss. Mehanaj Khaiser Khan
Age : 28 years, Occu.: Service
as Asst.Teacher,
R/o.: Chaitanya Nagar, Nanded,
Tq. and District Nanded PETITIONERS
VERSUS
1. The State of Maharashtra,
Through Secretary,
School Education Department,
Mumbai - 32
2. The Deputy Director of Education,
Latur Region, Latur
3. The Education Officer,
Primary Section,
Zilla Parishad, Nanded
4. Gyan Mata Vidyavihar,
through its Manager,
Near Airport, Kamtha Road,
Nasratpur, Nanded
5. Gyan Mata Vidyavihar,
through its Principal,
Near Airport, Kamtha Road,
Nasratpur, Nanded RESPONDENTS
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AND
WRIT PETITION NO. 7519 OF 2016
1. Mahendra S/o Hiraman Chavan
Age : 36 years, Occu.: Service - Teacher,
Swami Vivekanand Academy,
Chikalthana Industrial Area,
Aurangabad
2. Vishal S/o Pandurang Shelke,
Age : 27 years, Occu.: Service - Teacher,
Swami Vivekanand Academy,
Chikalthana Industrial Area,
Aurangabad
3. Vijay S/o Natha Aade,
Age : 30 years, Occu.: Service - Teacher,
Swami Vivekanand Academy,
Chikalthana Industrial Area,
Aurangabad
4. Kailash s/o Dattatray Patane,
Age : 36 years, Occu.: Service - Teacher,
Swami Vivekanand Academy,
Chikalthana Industrial Area,
Aurangabad PETITIONERS
VERSUS
1. Maharashtra Academy of Engineering &
Education Research, Pune
(Email id : [email protected])
through its Registrar,
(Mr. S.V.Kulkarni)
Office at Sy.No.124, Ex-Servicemen
Colony Post Office,
Paud Road, Kothrud, Pune - 411038,
Dist. Pune, Maharashtra
2. Swami Vivekanand Academy,
(Email id: [email protected])
P-5, MIDC, Chikalthana, Aurangabad
Dist. Aurangabad,
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through its Trustee Mr.Ganesh Rao,
(Looking after the Administration
at Aurangabad)
3. The Director of Education,
Maharashtra State, School Education,
Administrative Building, Pune,
District Pune
4. The Education Officer (Secondary),
Zilla Parishad, Aurangabad,
Tq. and Dist. Aurangabad
4-A. The Education Officer (Primary),
Zilla Prishad, Aurangabad
Tq. and District Aurangabad
5. The State of Maharashtra,
Through Secretary,
Department of School Education,
Mantralaya, Mumbai
6. The Chief Secretary,
Government of Maharashtra,
Mantralaya, Fort,
Mumbai-32 RESPONDENTS
AND
WRIT PETITION NO. 8010 OF 2016
1. Ranjana Pradeep Joshi,
Age : 56 years, Occu.: Service,
R/o. Near Shastri Nagar,
Flat No.03, Sriram Apartment,
Hanuman Nagar,
Nanded 431 602
2. Vinod Rangnathrao Goswami,
Age : 51 years, Occu.: Service,
R/o Near Jain Mandir,
Malegaon Road, Godavari Nagar,
Taroda Khurd, Nanded
3. Mr. Clement Apparao Allada,
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Age : 50 years, Occu.: Service,
R/o Nanded Housing Society,
Vijay Nagar, Nanded - 431 602
4. Mrs. Bhadra Dharmendra Rathod,
Age : 56 years, Occu.; Service,
R/o Sindhi Colony,
Near Universal School,
Nanded 431 602
5. Mr. Hameed Mohd. Hameeduddin,
Age : 46 years, Occu.: Service,
r/o. 11 (371-1137),
Opp. Sumayya Colony,
Taroda (Bk.), Nanded
6. Girish Vilasrao Gondhalekar,
Age : 46 years, Occu. Service,
R/o 1-14-629, Naik Nagar,
Post Taroda (Bk) Nanded
7. Mrs. Ashwini Ramchandra Manthalkar,
Age : 42 years, Occu. Service,
R/o Flat No.2, Parth Sankul,
Near water tanks,
Kailash Nagar Workshop Corner,
Nanded - 431 605
8. Manisha Chetan Jiwani,
Age : 39 years, Occu.; Service,
R/o Deelip Singh Colony,
Vazirabad Nanded - 431 601
9. Nazneen Sulthana Pathan,
Age : 36 years, Occu.: Service,
r/o. Chaitanya Nagar,
Nanded
10. Mrs. Varsha Nandedkar,
Age : 38 years, Occu.: Service,
R/o.: C/o Bhadke Computer,
Sharda Nagar, Nanded PETITIONERS
VERSUS
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1. The State of Maharashtra,
Department of Sports and
School Education,
Mantrayala, Mumbai
(Through the Secretary)
2. The Deputy Director of Education,
Latur Region, Latur
3. The Education Officer, (Primary)
Zilla Parishad, Nanded
4. The Education Officer, (Secondary),
Zilla Parishad, Nanded
5. Gyan Mata Vidya Vihar,
Through the Principal,
Near Airport, Kamtha Road,
Nasratpur, Nanded
6. The Fransalian Education Society,
Through the Manager,
R/o. Catholic Church, Viswanagar,
Nanded - 431 602
7. Secretary,
Central Board of Secondary Education,
Community Centre, Preet Vihar,
Delhi - 110092 RESPONDENTS
AND
WRIT PETITION NO. 9203 OF 2016
1. Gajala Anjum Yusuf Hussain,
Age : 25 years, Occu.: Asst. Teacher,
R/o. Asranagar, behind Jantakirana,
Chaitanyanagar Taroda (Bk.),
Nanded
2. Sushma Govindrao Gaikwad,
Age : 30 years, Occu.: Asst. Teacher,
R/o. Sinchan Nagar, Swayamvar,
Mangal Karayalaya, Taroda (Kh).,
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Nanded
3. Smita Sudhakarrao Ambulgekar,
Age : 36 years, Occu.: Asst. Teacher,
r/o. ND-42, Pl.7/6, Hudco, Nc.,
Nanded PETITIONERS
VERSUS
1. The State of Maharashtra,
Though its Secretary,
School Education Department,
Mumbai-32
2. Deputy Director of Education,
Latur Region, Latur
3. Education Officer,
Primary Section,
Zilla Parishad, Nanded
4. Gyan Mata Vidyavihar,
Through its Manager,
Near Airport, Kamtha Road,
Nasratpur, Nanded
5. Gyan Mata Vidyavihar,
Through its Principal,
Near Airport, Kamtha Road,
Nasratpur, Nanded RESPONDENTS
AND
WRIT PETITION NO.10652 OF 2016
1. Ashok Vithalrao Jadhav,
Age : about 45 years,
Occu.: Service,
R/o. Flat No.301, Raj Heights,
Raj Royal City, Vedant Nagar,
Malegaon Road, Nanded
2. Varsha Rameshkumar Sharma,
Age : about 35 years,
Occu.Service,
R/o.: H.No.66-A, Ganesh Nagar,
Nanded
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3. Keerandeepkaur Shailendersingh Shermar,
Age : about 37 years,
Occu.: Service,
R/o.: Bldg. 264, Yashovihar Coloney,
Near A.K. Sambhaji Mangal Karyalaya,
Nanded
4. Meeta Kapoor w/o Vinod Kapoor,
Age: about 49 years, Occu.: Service,
R/o.: Gurudwara Road, Gate No.1,
Nanded, District Nanded
5. Sandeep Kaur Gurmeetsingh,
Age : about 42 years, Occu.:Service,
R/o. Amrit Kunj, New Shahu Nagar,
Near Satya Sai Baba Primary School,
Anand Nagar, Nanded
6. Padmaja Raja Reddy,
Age : about 48 years, Occu.: Service,
R/o.H.No.1-15-481, Ohm Nilayam,
Behind Hanuman Temple, Sharada Nagar,
Nanded
7. Sadiya Farheen Habib Mubarak,
Age : about 35 years, Occ. Service,
R/o. Near Sana Urdu High School,
Naumaniya Nagar, Taroda (Bk.),
Nanded
8. Naziya Jabin Mujib Pasha Khan,
Age : about 32 years, Occu.: Service,
R/o.HIG Coloney, Near ITI College,
Near Priyanka Jewelers, Second Floor,
Shakil Baig Bldg. Nanded
9. Basanth Kaur Tirathsingh Major,
Age : Major, Occu.Service,
R/o.H.No.03/02/09, Chikhalwadi Corner,
Opposite Forest Office,
Nanded
10. Vasundhara Hanmanlu Namawar,
Age : about 45 years, Occu.:Service,
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R/o. Seetaram Nagar Opposite Ashirwad
Nagar, Chaitanya Nagar Road,
Taroda (Bk.), Nanded
11. Sarika Panditrao Pawar,
Age : about 36 years, Occ.:Service,
R/o. C/o. Mr.Vilas Dalvi, Sai Nagar,
Purna Road, Nanded PETITIONERS
VERSUS
1. The State of Maharashtra,
Through Secretary, School Education &
Sports Department, Mantralaya,
Mumbai - 32
2. Director of Education,
Maharashtra State,
Central Building, Pune
3. Deputy Director of Education,
Latur Region at Latur,
Dist. Latur
4. Education Officer (Secondary),
Zilla Parishad, Nanded
5. Education Officer (Primary),
Zilla Parishad, Nanded
6. Fransalian Education Society,
Through its Manager,
Having its Office S.R.7,
7. Gyan Mata Vidya Vihar,
Through its Principal,
Having its office address
at Near Airport,
Kamtha Road, Nasratpur,
Nanded RESPONDENTS
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AND
WRIT PETITION NO. 6546 OF 2016
1. Fransalian Education Society,
Nanded,
Through its Secretary, Father Marcus,
Ruptake having its office at
Visawa Nagar, Nanded
2. Gyan Mata Vidya Vihar,
Kamtha Road, Near Air Port,
Nanded through its
Principal Father Melroy Almeida,
Age : 56 years, Occ.: Principal,
r/o Catholic Church, Visawa Nagar,
Nanded PETITIONERS
VERSUS
1. The Deputy Director of Education,
Latur Division, Latur
2. The Accounts Officer,
Audit Squad (Education Department),
Nanded
3. Kailash Bhole,
Age 41 years,
Occu.: Assistant Teacher,
R/o.:C/o Anandhatkar Boudhvihar,
Vishnupuri,
Nanded
4. Gajala Anjum Yusuf Hussain,
Age : 28 years, Occu.: Assistant Teacher,
R/o.: Asranagar,
behind Janta Kirana,
Chaitanya Nagar, Taroda (Bk.),
Nanded
5. Gangadhar Sakharam Damodhar,
Age: 47 years, Occu.: Librarian,
R/o.: Samta Nagar,
Pawadiwadi Naka, Nanded
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6. Sushma Govindrao Gaikwad,
Age : 33 years, Occu.: Assistant Teacher,
R/o.: Sinchan Nagar,
Swayamvar Mangal
Karyalaya, Taroda (Kh).,
Nanded
7. Smita Sudhakarrao Ambulgekar,
Aged : 39 years, Occu.: Assistant
Teacher, R/o.: ND-42, P1 7/6,Hudco,
Nanded RESPONDENTS
----
Mr. B.L.Sagar-Killarikar, Advocate for the Petitioners
in W.P.No.1893/2014, 1921/2014, 7519/2016,
Mr. G.V.Mohekar, Advocate for the petitioners in
W.P.No.3522/2016
Mr.R.J.Godbole, Advocate for the petitioners in
W.P.No.8010/2016 and for respondent nos.3 and 5 in
W.P.No.6546/2016
Mr.P.M. Nagargoje, Advocate for the petitioners in
W.P.No.9203/2016 and for respondent nos.4, 6 and 7 in
W.P.No.6546/2016
Mr.R.B.Narawade, Advocate for the petitioners in
W.P.No.10652/2016
-----
Mrs. A.V.Gondhalekar, A.G.P. for the respondent/State in
All Writ Petitions
----
Mr. G.L. Deshpande, Advocate for respondent nos.1 and 2
in W.P.No.1894/2014
Mr. R.F. Totla, Advocate for the petitioners in
W.P.No.6546/2016 and for respondent nos. 4 and 5 in
W.P.No.3522/2016, for respondent no.5 in
W.P.No.8010/2016 and 9203/2016 and for respondent no.7
in W.P.No.10652/2016
Mr. A.B.Shinde, Advocate for respondent no.3 in
W.P.No.3522/2016 and for respondent no.5 in
W.P.No.10652/2016
Mr.S.R. Deple & Mr.D.K.Rajput, Advocates for respondent
no.4-A in W.P.No.7519/2016
Mr. S.V.Adwant, Advocate for respondent no.1 in
W.P.No.1921/2014,
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----
CORAM : T.V. NALAWADE AND
SANGITRAO S. PATIL, JJ.
JUDGMENT RESERVED ON : 21st FEBRUARY, 2017
JUDGMENT PRONOUNCED ON : 20th MARCH, 2017
JUDGMENT (PER : SANGITRAO S. PATIL, J.):
Rule, returnable forthwith. With the consent
of the learned counsel for the contesting parties and
the learned A.G.P., heard finally.
2. The common questions of law and fact are
involved in these writ petitions. Hence, they are being
decided by this common judgment.
3. Writ Petition Nos. 1893/2014, 1921/2014,
3522/2016, 7519/2016, 8010/2016, 9203/2016 and
10652/2016 have been filed by the Assistant Teachers
(hereinafter referred to as "the petitioners") against
the Educational Institutions (hereinafter referred to as
"the respondents"), in which they are serving, while
Writ Petition No. 6546/2016 has been filed by one of the
Institutions against the Deputy Director of Education
and four of the Assistant Teachers. From the pleadings
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of the parties as well as the reliefs claimed in the
above numbered writ petitions, it would be clear that
the central point for consideration is "whether unaided
private schools and/or minority unaided private schools
are under an obligation to ensure equal pay to the
petitioners to that of their counterparts serving in
the Government schools or private aided schools.
Considering the rival pleadings as well as the
contentions raised by the learned counsel for the
contesting parties, the following points fall for our
determination :-
(i) Whether the provisions of the Maharashtra
Employees of Private Schools (Conditions of
Service) Regulation Act, 1977 ("the Act of
1977", for short) and the Rules of 1981 made
under the said Act, so far as the pay scales of
the teachers are concerned, are applicable to
the Minority or Non-minority Private Unaided
Schools ?
(ii) Whether the Maharashtra Employees of Private
Schools (Conditions of Service) (Amendment)
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Rules, 2016 ("the Amended Rules of 2016", for
short) are enforceable ?
(iii) Whether the Writ Petitions filed by the
Assistant Teachers are maintainable ?
(iv) Whether the doctrine of contracting out would
assist the Educational Institutions in denying
the same pay scales to the Assistant Teachers,
which are payable to their counterparts under
the provisions of the Act of 1977 and the Rules
of 1981 ?
Point No. (i) :
4. The learned counsel for the petitioners submit
that as per sub-section (1) of Section 3 of the Act of
1977, the provisions of the said Act apply to all
private schools in the State of Maharashtra, whether
receiving any grant-in-aid from the State Government or
not. They further submit that Section 4 of the Act of
1977 read with Rule 6 of the Rules of 1981 also do not
make any distinction between aided and unaided schools
or minority or non-minority schools in respect of the
pay scales given in Schedule `C' of the Rules of 1981.
21 wp1893-2014+group
5. On the other hand, Mr. R.F. Totla, the learned
counsel appearing for the respondent - Minority
Educational Institution submits that the said provisions
are not applicable to the Minority Unaided Educational
Institutions. The learned counsel appearing for the non-
Minority Educational Institutions also submit that the
private unaided schools cannot be forced to pay the same
salary to their teachers which is being paid to the
teachers working in the Government schools or private
aided schools.
6. The sum and substance of the contentions raised
by the learned counsel for the respondents is that the
minority or non-minority private unaided schools are not
bound by the provisions of the Act of 1977 and the Rules
of 1981 so far as the pay scales are concerned.
7. The learned counsel for both the contesting
parties have relied on the judgment in the case of
Mahadeo s/o Pandurang More and others Vs. the State of
Maharashtra and others 2014 (5) Mh.L.J. 877. In the
said case, point No. (i), referred to above, was under
consideration of the Division Bench of Nagpur Bench of
22 wp1893-2014+group
this Court. The Division bench considered various
judgments of the Hon'ble the Supreme Court and the
Bombay High Court, which have been cited by the learned
counsel for the parties before us also and answered the
said point in the affirmative with the following
observations.
"30..... The appellant management contended
that they were not liable to pay the salary
and allowances prescribed under the Fifth Pay
Commission. Hon'ble Apex Court noticed that
under the Maharashtra Employees of Private
Schools (Conditions of Service) Regulation
Act, 1977, as per Section 3 (1) the provisions
of the Act apply to all private schools,
whether receiving any grant-in-aid from the
State Government or not. Section 16 stated
that the State Government may by notification
in the Official Gazette, make rules for
carrying out the purposes of this Act and
Section 16 (2) (a) says that the State
Government may by the Official Gazette
prescribe minimum qualification for
recruitment of employees of private schools
(including its procedure); (b) their scales of
pay and allowances. There was no dispute that
these provisions of the Regulation Act are
applicable to the appellant school. Supreme
23 wp1893-2014+group
Court held that the Division Bench of the High
Court was justified in holding that the
appellant school was liable to pay the salary
and allowances on the basis of the Fifth Pay
Commission recommendations and are bound by
MEPS Act. Though this judgment does not
consider the impact of minority nature, it
definitely declares that receipt of grants has
no relevance in so far as application of MEPS
Act/Rules or pay structure prescribed
thereunder. As there can not be different
yard-sticks for minority and non-minority,
scales of pay prescribed in Schedule "C" of
1981 Rules are available to petitioners also."
"26. After perusal of these cases we find that
any law intended to regulate the service
conditions of employees of aided educational
institutions equally applies to minority aided
or unaided institutions also, provided that
such law does not interfere with the overall
administrative control of the management over
the staff. Law or Rules prescribing the
service conditions or their pay scales are
only regulatory in nature and do not impinge
upon the basic character of the minority
institutions."
"28. .... Thus, this judgment does not help
the minority institution in any way.
Moreover, here Section 4 of 1977 Act read with
24 wp1893-2014+group
Rule 6 of 1981 rules also do not make any
distinction between aided and un-aided schools
or non-minority and minority schools qua
scales of pay mentioned in Schedule "C" of the
1981 Rules."
8. The contention of the learned counsel for the
respondents that the respondent/Institutions are not
financially sound enough to pay salary to the
petitioners at par with the salary that is being paid to
the teachers serving in Government schools or private
aided schools. This argument does not contain any
substance. It needs no consideration. This Court, in
the case of Mahadeo s/o Pandurang More and others
(supra), in paragraph No. 26 of the judgment, referred
to paragraph No. 23 of the judgment in Frank Anthony
Public School Employees' Association Vs. Union of India
(1986) 4 SCC 707 and held that financial problem is not
a valid defence to deny fair treatment to the staff in
the minority or non-minority aided or unaided
Institutions. Here, it would be worthwhile to reproduce
paragraph No. 23 of the judgment in Frank Anthony Public
School Employees' Association V. Union of India (supra),
which reads thus:
25 wp1893-2014+group
"We must refer to the submissions of Mr. Frank
Anthony regarding the excellence of the
institution and the fear that the institution
may have to close down if they have to pay
higher scales of salary and allowances to the
members of the staff. As we said earlier the
excellence of the institution is largely
dependent on the excellence of the teachers
and it is no answer to the demand of the
teachers for higher salaries to say that in
view of the high reputation enjoyed by the
institution for its excellence, it is
unnecessary to seek to apply provisions like
Section 10 of the Delhi School Education Act
to the Frank Anthony Public School. On the
other hand, we should think that the very
contribution made by the teachers to earn for
the institution the high reputation that it
enjoys should spur the management to adopt at
least the same scales of pay as the other
institutions to which Section 10 applies.
Regarding the fear expressed by Shri Frank
Anthony that the institution may have to close
down we can only hope that the management will
do nothing to the nose to spite the face,
merely to "put the teachers in their proper
place". The fear expressed by the management
here has the same ring as the fear expressed
invariably by the management of every industry
that disastrous results would follow which may
26 wp1893-2014+group
even lead to the closing down of the industry
if wage scales are revised."
9. The learned counsel Shri Totla, representing
one of the respondents, relying on the judgment in The
Correspondent/Principal Arokiamada Matriculation Higher
Secondary School vs. Tmt. T. Sorubarani and Ors.
MANU/TN/3374/2015 (Madras), submits that the Government
has no administrative control to ensure equal pay for
equal work by forcing private unaided educationalists.
In that case, as seen from para 8 of the judgment the
question raised was whether the obligation of the State
to provide free and compulsory education can force
private educationalists to provide schooling on the
principle of equal pay for equal work merely on the
executive instructions which had no statutory force. The
said question was answered in the negative. In the
present case, it is not because of any executive
instructions that the respondents are being asked to
ensure equal pay for equal work. The Act of 1977 and
the Rules of 1981, which have statutory force, make it
obligatory on the part of the respondents to ensure
equal pay for equal work. In view of this distinguishing
27 wp1893-2014+group
fact, the judgment of Madras High Court, cited above,
would be of no help to the respondents to escape from
the liability to ensure equal pay for equal work.
However, this judgment as well as the judgment in Mrs.
Satimbla Sharma and others Vs. St. Paul's Senior
Secondary School (2011) 13 SCC 760, cited on behalf of
the respondents, certainly would advance the case of the
respondents that the Government Resolutions dated 12 th
June, 2009 and 21st May, 2010 and the letter dated 31st
December, 2015, issued by the Deputy Director of
Education as well as the letter dated 11.03.2016 issued
by Accounts Officer, Audit Squad (Education Department),
Nanded, directing the respondents to ensure payment of
salary to the petitioners, as per the recommendations of
5th Pay Commission and 6th Pay Commission with arrears,
cannot be enforced on the respondents in the absence of
any supporting legal provision in the Act of 1977 or the
Rules of 1981.
10. Since point No. (i) referred to above, is no
more res integra, we hold that the provisions of the Act
of 1977 and the Rules of 1981, are applicable to the
Minority as well as Non-minority Unaided Schools, so far
28 wp1893-2014+group
as the pay scales of the teachers are concerned.
Point No. (ii) :
11. The learned counsel for the respondents
vehemently contend that the Amended Rules of 2016 have
no force of law since they have not been laid before
each House of the State Legislature, as contemplated
under sub-section (4) of Section 16 of the Act of 1977.
They submit that as observed by Nagpur Bench of this
Court in paragraph No. 46 of the judgment in the case of
Mahadeo s/o Pandurang More and others (supra), unless
and until scales of pay sought for by the petitioners
therein find birth in Schedule 'C' appended to the Rules
of 1981, a direction to extend the same to them cannot
be issued. The Court further observed that amendment to
Schedule 'C'" to propose new scales of pay is subject to
the procedure laid down in Section 16 (3) and (4) of the
Act of 1977. The learned counsel for the respondents
submit that since the procedure laid down in sub-section
(4) of Section 16 has not been followed by the
respondent - State Government, the Amended Rules of 2016
cannot be acted upon.
29 wp1893-2014+group
12. On the other hand, the learned counsel for the
petitioners and the learned A.G.P. submit that the
Amended Rules of 2016 have been duly notified in the
Official Gazette of the Government of Maharashtra and
they are legally enforceable.
13. In order to decide this controversy, it would
be necessary to reproduce sub-sections (3) and (4) of
Section 16 of the Act of 1977, which read as under :-
(3) All rules made under this Act shall be
subject to the condition of previous
publication.
(4) Every rule made under this Act shall be
laid, as soon as may be, after it is made
before, each House of the State Legislature,
while it is in session for a total period of
thirty days, which may be comprised in one
session or in two or more successive sessions,
and if, before the expiry of the session
immediately following the session or the
successive sessions aforesaid, both Houses
agree in making any modification in the rule or
both Houses agree that the rule should not be
made, and notify such decision in the Official
Gazette, the rule shall from the date of
publication of such notification have effect,
only in such modified form or be of no effect
as the case may be; so, however, that any such
modification or annulment shall be without
prejudice to the validity of anything
previously done or omitted to be done under
that rule."
14. Here, reference may be made to the judgment of
30 wp1893-2014+group
a Three Judge Bench of the Hon'ble the Supreme Court in
M/s Atlas Cycle Industries Ltd. and others V. State of
Haryana AIR 1979 SC 1149, where the effect of not laying
the Rules before the Legislature has been considered.
In paragraph No. 21 of the judgment, the Hon'ble the
Supreme Court considered three "kinds of laying" as
described and dealt with in "Craies on Statute Law", the
7th Edition, as under :-
(i) Laying without further procedure,
(ii) Laying subject to negative resolution
(iii) Laying subject to affirmative
resolution
(i) Simple laying. The most obvious
example is in Section 10 (2) of the 1946 Act.
In earlier days, before the idea of laying in
draft had been introduced, there was a
provision for laying rules etc., for a period
during which time they were not in operation
and could be thrown out without ever having
come into operation (compare Merchant Shipping
Act, 1894, Section 417; Inebriates Act, 1898,
Section 21) but this is not used now.
(ii) Negative resolution. Instruments so
laid have immediate operative effect but are
subject to annulment within forty days without
31 wp1893-2014+group
prejudice to a new instrument being made. The
phraseology generally used is "subject to
annulment in pursuance of a resolution of
either House of Parliament." This is by far
the commonest form of laying. It acts mostly
as a deterrent and sometimes forces a Minister
(in Sir Cecil Carr's phrase) to "buy off
opposition" by proposing some modification.
(iii) Affirmative resolution. The
phraseology here is normally "no order shall be
made unless a draft has been laid before
Parliament and has been approved by a
resolution of each House of Parliament".
Normally, no time limit is fixed for obtaining
approval - none is necessary because the
Government will naturally take the earliest
opportunity of bringing it up for approval -
but Section 16 (3) of the Housing (Financial
and Miscellaneous Provisions) Act, 1946 did
impose a limit of forty days. An old form
(not much used nowadays) provided for an order
to be made but not to become operative until a
resolution of both Houses of Parliament had
been obtained. This form was used in S. 10 (4)
of the Road Traffic Act 1930 (of Road Traffic
Act, 1960, S. 19 (3))... The affirmative
resolution procedure necessitates a debate in
every case. This means that one object of
delegation of legislation (viz. Saving the time
of Parliament) is to some extent defeated. The
32 wp1893-2014+group
procedure therefore is sparingly used and is
more or less reserved to cases where the order
almost amounts to an Act, by effecting changes
which approximate to true legislation (e.g.
where the order is the meat of the matter, the
enabling Act merely outlining the general
purpose) or where the order replaces local Acts
or provisional orders and, most important of
all, where the spending, etc. of public money
is affected.
Sometimes where speedy or secret action is
required (e.g. the imposition of import
duties), the order is laid with immediate
operation but has to be confirmed within a
certain period (cf. Import Duties Act, 1958,
S.13 (4). This process of acting first and
getting approval after has also been adopted in
the Emergency Powers Act 1920 under which state
of emergency can be proclaimed and regulations
made. The proclamation must be immediately
communicated in Parliament and does not have
effect for longer than a month; but it can be
replaced by another proclamation. Any
regulations made under the proclamation are to
be laid before Parliament immediately and do
not continue in force after the expiration of
seven days from the time when they are so laid
unless a resolution is passed by both Houses
providing for their continuance."
33 wp1893-2014+group
15. In the same judgment, in para 24, the Hon'ble
the Supreme Court referred to the judgment delivered by
a Five Judge Bench of the Supreme Court in Jan Mohammad
Noor Mohammad Bagban V. The State of Gujrat and another
AIR 1966 SC 385, wherein the Hon'ble Court considered
the provisions of Section 26 (5) of the Bombay
Agricultural Produce Markets Act, 1939, which was quite
a similar provision to that of sub-section (4) of
Section 16 of the Act of 1977. In that case also, after
framing of the rules under sub-section (1) of Section
26, the Provincial Government had not laid the said
Rules before each of the Chambers of the Provincial
Legislature. The Hon'ble the Apex Court observed as
under:-
"Section 26(5) of Bombay Act 22 of 1939 does
not prescribe that the rules acquired validity
only from the date on which they were placed
before the Houses of Legislature. The rules are
valid from the date on which they are made
under s. 26(1). It is true that the Legislature
has prescribed that the rules shall be placed
before the Houses of Legislature, but failure
to place the rules before Houses of Legislature
does not affect the validity of the rules,
34 wp1893-2014+group
merely because they have not been placed before
the Houses of the Legislature. Granting that
the provisions of sub-s. (5) of S. 26 by reason
of the failure to place the rules before the
Houses of Legislature were violated, we are of
the view that sub-s. (5) of S. 26 having regard
to the purposes for which it is made, and in
the context in which it occurs, cannot be
regarded as mandatory."
16. In paragraph no.25 of the judgment in M/s Atlas
Cycle Industries Ltd. (supra), the Hon'ble the Apex
Court further referred to the case of D.K.Krishnan v.
Secretary, Regional Transport Authority, Chittoor, AIR
1956 Andhra 129, wherein the validity of Rule 134-A of
the Madras Motor Vehicles Rules, 1940, made under the
Madras Motor Vehicles Act, 1939, empowering the Regional
Transport Authority to delegate its functions to the
Secretary was challenged on the ground that it was not
laid before the Legislature of the Madras State as
required by Section 133 (3) of the Act, which provided
that the Rules shall be laid for not less than fourteen
days before the Legislature as soon as possible after
they were made and should be subject to modification as
Parliament or such Legislature may make during the
35 wp1893-2014+group
session in which they are so laid. In that case, it was
held as under:-
"This rule (i.e. the one contained in Section
133(3)) therefore, is not made either a
condition precedent or a condition subsequent
to the coming into force of the rules. It does
not provide for any affirmative resolution. The
rule continues to be in force till it is
modified by the Parliament.
If sub-section (3) is only directory, in
view of the opinion expressed by us, it is
clear from a fair reading of the words used in
the section that the rules made under the
section came into effect immediately they were
published and they continued to be in force
because it is not suggested that they were
modified by the Legislature. We, therefore,
hold that the rule in question is valid."
17. The notification dated 6th September, 2016,
whereby the Amended Rules of 2016 have been published,
starts with the following wording :-
"No. Vetan 1014/CR 214/14/TNT 3. -- In
exercise of the powers conferred by sub-
section (1), clause (b) of sub-section (2) of
the section 16 of the Maharashtra Employees of
36 wp1893-2014+group
Private Schools (Conditions of Service)
Regulation Act, 1977 (Mah. III of 1978), and
of all other powers enabling it in this
behalf, the Government of Maharashtra hereby
makes the following rule, the same having been
previously published as required by sub-
section (3) of section 16 of the said Act."
(Emphasis supplied)
It is, thus, clear that the Amended Rules of
2016 were previously published by the Government as
required by sub-section (3) of Section 16 of the Act of
1977. Sub-section (4) falls under the category (ii)
i.e. "Laying subject to negative resolution", as
explained in "Craies on Statute Law". The last sentence
of sub-section (4) of Section 16 shows that such
modification or annulment made by the Legislature shall
be without prejudice to the validity of anything
previously done or omitted to be done under the rules
framed under sub-section (1). This sentence itself
indicates that the said Rules would be legally
enforceable until they are modified or annulled and
whatever has been done or omitted to be done under that
those Rules prior to that, would not be invalid. In the
circumstances, in view of the above-stated legal
37 wp1893-2014+group
position clarified by the Hon'ble the Apex Court, sub-
section (4) has to be treated as directory and not
mandatory.
18. Mr. S.V. Adwant, the learned counsel for the
respondents, relying on the judgment delivered by a Two
Judge Bench in Association of Management of Private
Colleges Vs. All India Council for Technical Education
and others 2013 STPL (Web) 353 SC, submits that as per
section 24 of the AICTE Act, not placing the Amended
Rules and Regulations made under the said Act before
each House of Parliament, as prescribed in the said
section, which is mandatory, would vitiate the amended
Rules and Regulations.
19. It is true that Section 24 of the AICTE Act, as
has been reproduced in paragraph No. 44 of the above
cited judgment, is almost identical to that of Section
16 (4) of the Act of 1977. However, it seems that while
holding the said provision mandatory, the Hon'ble the
Apex Court referred to the contention raised by the
learned counsel for the appellant that the amended
Regulation has not been placed before the Parliament,
which is mandatory, as per the provisions of Section 24
38 wp1893-2014+group
of the AICTE Act and further mentioned that "the said
contention has not been disputed by the AICTE in these
cases." The judgments in the cases of M/s Atlas Cycle
Industries Ltd. and others (supra) and Jan Mohammad
Noor Mohammad Bagban (supra), delivered by the Benches
of larger strength, were not referred to by the AICTE in
that case. On the contrary, AICTE itself seems to have
admitted that section 24 of the AICTE Act is mandatory,
without going to its actual nature as considered in the
above cited judgments delivered by the Benches of larger
strength.
20. Here, a reference may be made to the judgment
in the case of Central Board of Dawoodi Bohra Community
and another Vs. State of Maharashtra and another (2005)
2 SCC 673, wherein it has been held that the law laid
down by the Supreme court in a decision delivered by a
bench of larger strength is binding on any subsequent
Bench of lesser or coequal strength. In view of this
legal position, the above cited judgments delivered by
the Benches of larger strength would prevail over the
judgment in the case of Association of Management of
Private Colleges (supra), cited by the learned counsel
39 wp1893-2014+group
for the respondents. Consequently, the provisions of
Section 16 (4) of the Act of 1977 will have to be held
as directory and not mandatory.
21. Once it is held that the provisions of Section
16 (4) of the Act of 1977 are directory, the contention
of Shri Adwant, learned counsel for the respondents
based on the judgment in the cases of Association of
Management of Private Colleges (supra), Subhash Ramkumar
Bind alias Vakil and another Vs. State of Maharashtra,
(2003) 1 SCC 506 and Gulf Goans Hotels Company Limited
and another Vs. Union of India and others, (2014) 10 SCC
673, that the Amended Rules of 2016, in the absence of
their notification in the Official Gazette after
following the procedure laid down in sub-section (4) of
Section 16 of the Act of 1977, would not be enforceable,
cannot be accepted. As discussed above, the Amended
Rules of 2016 are very much enforceable from the date of
their publication in the Official Gazette i.e. 08th
September, 2016.
Point No. (iii):
22. Relying on the judgments in the cases of Mrs.
40 wp1893-2014+group
Satimba Sharma (supra), The Correspondents/Principal
AROKAIMADA Matriculation Higher Secondary School (supra)
and K. Krishnamacharyulu Vs. Sri Venkateswara Hindi
College of Engineering (1997) 3 SCC 571, the learned
counsel for the respondents submit that the writ
petition are not maintainable. We are not inclined to
accept this contention for the simple reason that this
issue has been dealt with by the Nagpur Bench of this
Court in the case of Mahadeo s/o Pandurang More and
others (supra). The Court considered the case of Mrs.
Satimbla Sharma and others (supra) and in para 28 of the
said judgment clearly observed that where a statutory
provision casts a duty on a private aided school to pay
similar salary and allowances to its teachers, as are
being paid to the teachers of government aided schools,
then a writ of mandamus could be issued to enforce such
statutory duty. It is further observed that the writ
jurisdiction of the High Court under Article 226 of the
Constitution is wide enough to issue a writ for payment
of pay on par with Government employees.
23. If the provisions of the Act of 1977 and Rules
of 1981 cast the duty on the minority or non-minority
41 wp1893-2014+group
private unaided school to pay salary to the teachers on
par with their counterparts serving in the private aided
schools, the respondents are under a legal obligation to
follow those provisions. If the respondents neglect or
avoid to follow those legal provisions, a writ of
mandamus certainly can be issued against them. In the
present case, the petitioners are claiming the pay
scales as have been prescribed in Schedule 'C' under
Rule 7 (i) of the Rules of 1981. The pay scales are
prescribed in Schedule 'C'. Since they are supported by
the provisions of the Act of 1977 as well as the Rules
of 1981, they are legally enforceable and the writ
petitions seeking enforcement of the provisions of the
Act of 1977 and the Rules of 1981, so far as the pay
scales are concerned, are quite maintainable.
Point No. (iv):
24. Shri Adwant, the learned Counsel for the
respondent namely Siyaram Education Society, Aurangabad,
submits that the teachers employed by the said
respondent have voluntarily accepted the salary which
was offered to them by the said respondent, though it
42 wp1893-2014+group
was not on par with the salary that is being paid to
their counterparts working with the private aided
schools. He pointed out the consent letters dated 16 th
June, 2013, given by the said teachers. According to
him, the Doctrine of Contracting out permits one to
waive or give up or abandon any advantages or benefits
available to him under any provision of law. He submits
that since the teachers working with this respondent
have given up their claim for salary equal to that of
the salary that is being paid to their counterparts
working with private aided schools, this respondent
cannot be directed to pay them the pay scales as
prescribed in Schedule 'C' of the Rules 1981. In support
of this contention, he relied on the judgments in the
cases of Lachoo Mal V. Radhye Shyam AIR 1971 SC 2213,
General Manager, Sri Siddeshwara cooperative Bank
Limited and another Vs. Ikbal and others (2013) 10 SCC
83 and Vasu P. Shetty Vs. Hotel Vandana Palace and
others, (2014) 5 SCC 660. The proposition of law laid
down in the above cited decisions is salutary. If a
teacher, at his own volition, agrees to receive less
salary than the salary prescribed in Schedule 'C' of the
Rules of 1981, he can certainly do so and the
43 wp1893-2014+group
Educational Institutions cannot be directed to pay full
salary to him. However, it must be the result of his own
volition. In this case, the consent letters of
petitioner nos.1 to 4 executed by them prior to joining
the service with this respondent have not been produced.
Moreover, when they claim salary on par with the salary
that is being paid to the teachers working in the
private aided schools, that itself indicates that they
are not ready to abandon their claim in this regard.
The teachers working with this respondent i.e. namely
Siyaram Education Society, Aurangabad who have
voluntarily given consent letters accepting less salary
than that is prescribed under Schedule 'C' of the Rules
of 1981, may not be entitled to claim salary prescribed
under the said Schedule. However, petitioner Nos. 1 to
4, who have not voluntarily given up their claim for
salary payable to them as per Schedule 'C', cannot be
denied the benefit of Schedule 'C'.
25. As stated above, the amendment to Schedule 'C'
would be enforceable from 8th September, 2016 i.e. the
date on which the amendment was published in the
Official Gazette. The petitioners are entitled to get
44 wp1893-2014+group
pay scales as prescribed in Schedule 'C' (prior to the
amendment) till 7th September, 2016. Though the
petitioners have claimed pay scales as recommended by
the 5th and 6th Pay Commissions with arrears, they are
entitled to get their pay fixed and claim arrears, if
any, as per the pay scales prescribed in Schedule 'C' as
existed prior to the Amendment i.e. upto 7th September,
2016 and then in terms of the Amended Schedule 'C' from
8th September, 2106 onwards.
26. The petitioners state that the respondent -
Gyan Mata Vidya Vihar has fixed pay scale on the basis
of 6th Pay Commission in 2010. However, as per notice
dated 8th March, 2016, the said respondent communicated
to the petitioners through its Principal i.e. respondent
No. 5 that there was a clerical error in the calculation
of the salary with effect from June, 2014 and that the
said mistake would be rectified with effect from
February, 2016 and the issue in respect of recovery of
the excess money paid to the petitioners would be
deliberated in the next Managing Committee meeting for
final decision.
27. The learned counsel for the respondent - Gyan
45 wp1893-2014+group
Mata Vidya Vihar submits that no final decision has yet
been taken for recovery of the excess money from the
petitioners that has been paid to them because of wrong
pay fixation.
28. The learned counsel for the petitioners cited
the judgments in the cases of State of Punjab and others
Vs. Rafiq Masih (White Washer) and others (2015) 4 SCC
334 and Babulal Rama Thakre V. Work Load Committee,
Zilla Parishad and others 2016 (2) ALL MR 750 and submit
that the amount alleged to have been paid to the
petitioners in excess due to mistake on the part of the
respondent - Gyan Mata Vidya Vihar, without there being
any fraud played or misrepresentation made by the
petitioners, cannot be allowed to be recovered from
them. In our view, the above-cited cases are fully
applicable to the facts of the present cases also. The
amount of excess payment alleged to have been paid due
to wrong pay fixation by the respondent - Gyan Mata
Vidya Vihar to the petitioners, who are class III
employees serving with the said Institution, cannot be
allowed to be recovered. However, the contention of the
petitioners that the respondent - Gyan Mata Vidya Vihar
46 wp1893-2014+group
shall be directed to continue to pay the same pay scale
to them in future also, cannot be accepted since the
said pay scale is not supported by Schedule 'C' of the
Rules of 1981.
29. In the result, we pass the following order:-
(i) The respondents (Educational Institutions)
shall fix pay scales of the petitioners
(Teachers) as provided in Schedule 'C' of the
Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Rules, 1981
as existing prior to and after the Amendment
Rules of 2016, respectively.
(ii) The respondents (Educational Institutions)
shall pay salary to the petitioners (Teachers)
as prescribed in Schedule 'C' regularly from
April, 2017 actually payable in May, 2017.
(iii) The petitioners (Teachers) are entitled to get
arrears, if any, of additional pay accumulated
due to revised pay fixation in terms of clause
(i) above.
47 wp1893-2014+group
(iv) The respondents shall pay arrears payable to
the petitioners due to revised pay fixation,
within six months from today.
(v) The impugned letter dated 31st December, 2015,
issued by the Deputy Director of Education,
Latur and the letter dated 11th March, 2016,
issued by the Accounts Officer, Audit Squad
(Education Department), Nanded are quashed and
set aside.
(vi) The respondents are restrained from making
recovery of any amount from the petitioners
towards excess payment made to them on account
of wrong pay fixation.
(vii) The Writ Petitions are allowed in the above
terms and Rule is made absolute accordingly.
(viii) The parties shall bear their own costs.
Sd/- Sd/-
[SANGITRAO S. PATIL] [T.V. NALAWADE]
JUDGE JUDGE
48 wp1893-2014+group
30. After pronouncement of the above judgment and
order, Mr. R.F. Totla, the learned counsel for the
respondents - Educational Institution prayed for
grant of stay to the execution of the order passed
today.
31. Considering the reasons given in the judgment
and the fact that the revised pay scale would be
applicable from 1st January, 2016 only, as per the
Amendment made in Schedule `C', which was the claim of
the respondents - Institutions themselves, we are not
inclined to grant stay to the execution of the order
passed today. In the circumstances, the request for
stay to the order passed today, stands rejected.
Sd/- Sd/-
[SANGITRAO S. PATIL] [T.V. NALAWADE]
JUDGE JUDGE
npj/wp1893-2014+group
