Bombay High Court
Amrutraj Pratapji Vyas & Ors vs Hindi Seva Mandal Bhusawal & Ors on 8 September, 2017
Bench: R.D. Dhanuka
1 WP 6728 of 2004
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6728 OF 2004
1. Amrutraj Pratapji Vyas
Age : 43 years, Residing at
Anand Bhuvan, Mehataji Plot,
Behind Vasant Talkies, Bhusawal,
Dist. Jalgaon.
2. Rajendra M.Puranik
Age : 34 years,
R/o.Kulkarni Plot, Near Civil Court,
Bhusawal, Dist. Jalgaon.
3. Sanjay Ramdas Pardhe,
Age : 34 years,
R/o.Matoshri Ramabai Ambedkar Nagar,
Jamner Road, Bhusawal, Dist. Jalgaon.
4. Uday Popat Patil,
Age : 38 years,
R/o.Dr.Vinay Chaudhari Hospital,
Jamner Road, Bhusawal.
5. Rajendra P. Choudhary,
Age : 38 years,
R/o.Garud Plot,Bhusawal.
6. Parmanand Ramji Joshi,
Age : 45 years,
R/o.New Area Ward, Bhusawal.
7. Yogesh P.Sulkshane,
Age : 36 years,
R/o.Bhoite Nagar, Jalgaon.
8. Ajay Nimbaji Randhir,
Age : 27 years,
R/o.Near Mamaji Talkies,
Bhusawal, Dist. Jalgaon.
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2 WP 6728 of 2004
9. Dinesh Rupchand Bawaskar
Age : 32 years,
R/o.Shri Ram Nagar, Wanjala
Road, Bhusawal, Dist. Jalgaon.
10. Babanrao Jijabrao Deshmukh,
Age : 32 years,
R/o.At Post Fulgaon.
11. Shivaji Pundalik Patil,
Age : 32 years,
R/o.Khalwadi, Juna Satara,
Bhusawal, Dist. Jalgaon.
12. Bhagwandas Shivaji Kale
Age : 36 years,
R/o.Z.T.C. Bhusawal,
Dist. Jalgaon.
13. Sanjay Vinayak Mahajan,
Age : 34 years,
R/o.Gangaram Plot, Bhusawal,
Dist. Jalgaon. ... PETITIONERS
VERSUS
1. Hind Seva Mandal,
Bhusawal, through its
President, C/o.Shastri Vidya Nagar,
Shivaji Nagar, Bhusawal,
Dist. Jalgaon.
2. Shri. Sant Gadge Baba Polytechnic,
Near Z.T.C. Bhusawal, District
Jalgaon,through its Principal.
3. Joint Director of Technical Education,
Maharashtra State, Nashik Region,
Samangaon Road, Nashik.
4. Director of Technical Education,
Maharashtra State, 3, Mahapalika Marg,
Mumbai-01
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3 WP 6728 of 2004
5. State of Maharashtra,
Through Secretary, Higher and Technical
Education, Mantralaya,Mumbai-32
... RESPONDENTS.
----
Shri. L.V. Sangit, Advocate, holding for Shri.
V.J. Dixit, Senior Counsel, for petitioners.
Shri.S.P. Shah, Advocate, holding for Shri.
Sanjay Mundhe, Advocate, for respondent Nos.1
and 2.
Shri.Y.G. Gujarathi,Assistant Government Pleader,
for respondent Nos.3 to 5.
----
CORAM: R.D. DHANUKA AND
SUNIL K. KOTWAL, JJ.
JUDGMENT RESERVED ON : ON 29TH AUGUST 2017
JUDGMENT PRONOUNCED ON : 8th SEPTEMBER 2017
JUDGMENT (PER R.D. DHANUKA, J.):
1) By this writ petition filed under
Article 226 of the Constitution of India, the
petitioners have prayed for writ of mandamus and
for an order and direction against Hind Seva
Mandal and Shri.Sant Gadge Baba Polytechnic,
respondent Nos. 1 and 2 herein, to disburse the
pay and allowances and extend all other service
4 WP 6728 of 2004
benefits as per the the instructions issued in
Government Circular/Letter dated 29th September,
1995 issued by Directorate of Technical
Education, Maharashtra State, Mumbai to
petitioners and also to pay the arrears of
salaries in pursuance of the said circular along
with the interest @ 15% per annum w.e.f. 1 st
September, 1995 till 19th May, 1999. The
petitioners also seek writ of certiorari
following the order and direction against the
respondent Nos. 3 and 4 to take appropriate steps
towards the disbursement of the arrears of salary
and allowances to the petitioners for the period
from 1st September, 1995 till 19th May, 1999 with
interest @ 15% per annum accrued on the amount
payable to the petitioners.
2. Some of the relevant facts for the
purpose of deciding this writ petition are as
follows :-
The petitioners had been working for
last 7 to 8 years when this writ petition was
5 WP 6728 of 2004
filed and continued to work with respondent No.1,
till date and are non-teaching staff. Respondent
No.1 runs 17 education institutions besides
College of Engineering and Technology and
Polytechnic College. Respondent No.1 also runs
Shri.Sant Gadge Baba Polytechnic at Bhusawal
since the academic year 1983-1984, and is having
various branches namely, Civil, Mechanical,
Electrical and Industrial Electronics. Respondent
No.1 has closed Shri.Sant Gadge Baba Polytechnic
at Bhusawal before filing of this petition by the
petitioners. The provisions of Maharashtra
Employees of Private Schools (Conditions of
Service) Regulation Act, 1977 and various Rules
framed thereunder are applicable to the
petitioners and the respondents (In short "the
said M.E.P.S. Act" and "the said Rules").
3. On 29th September, 1995, the Directorate
of Technical Education, Maharashtra State issued
instructions by Circular/Communication to the
Managements and the office bearers of non-aided
6 WP 6728 of 2004
private institutions including the technical
institutions to pay to the teaching and non-
teaching employees employed by such institutions,
the salary, allowances, bonus, travelling
allowances, medical facilities, insurance, death
or retirement gratuity as per the directions
issued by the Government from time to time. It is
the case of the petitioners that, in view of the
said circulars issued by respondent No.4,
respondent No.1 was liable to pay and disburse
salary on the basis of 4th and 5th Pay Commissions
at that time. In consonance with the Government
Policy, the petitioners made various
representations to the respondent No. 1 and the
authority through Teachers Association for non-
aided polytechnic but of no avail.
4. The Teachers Association for non-aided
polytechnic, Bhusawal and others filed writ
petition bearing No.364 of 1999 against the
respondent No.1 and others before this Court for
payment of salary and other benefits as per the
7 WP 6728 of 2004
Pay Scales prescribed by the Government relying
upon the said circular dated 29th September, 1995.
(Hereinafter referred to as the 'said
Association'). By an order dated 23rd April, 1999,
the Division Bench of this Court, directed
respondent No.1 to pay salary including Dearness
Allowance as per Pay Scales, prescribed by the
Government in view of the fact that at the time
of obtaining recognition, the College had given
an undertaking to comply with all conditions
including payment as per the scales prescribed by
the Government. This Court recorded the statement
made by the respondent No.1 that, it was not in a
position to pay the salaries of teachers as per
the pay scales prescribed by the Government and
that the respondent No.1 was non-aided College.
The 13 petitioners out of 31 petitioners in the
said writ petition No.364 of 1999 were members of
non-teaching staff.
5. The respondent Nos. 1 and 2 issued an
advertisement and invited the applications for 55
8 WP 6728 of 2004
teaching as well as non-teaching posts. In spite
of the representation made by the Teachers
proceeded to recruit the persons to the said 55
posts of teaching and non-teaching staff. In the
month of June, 1999, when the teaching and non-
teaching staff went to resume the duties after
re-opening of the College, they were prevented
by the respondent No.1 from discharging their
duties and they were not allowed to enter the
campus of college.
6. The said Association therefore filed a writ
petition bearing No.3208 of 1999 on 21st June, 1999
against the respondent No.1 and others. By an order
dated 5th July, 1999, the Division Bench of this Court
granted leave to the petitioners therein, to implead
All India Council of Technical Education, New Delhi
as respondent No.10 to the said petition. This Court
directed the Directorate of Technical Education,
Maharashtra State to make an inquiry with respect to
the grievances made by those petitioners in the said
writ petition No. 3208 of 1999 and to submit a report
9 WP 6728 of 2004
as to what steps were taken for derecognition of the
institute which was not financially sound to run the
institute within two weeks from the date of said
order.
in the said writ petition that until further orders
from this Court, no new admissions be given to
engineering colleges and technical schools run by
respondent No.1 for the year 1999-2000. This Court
noted the stand of the respondent No.1 that it was
not in a position to pay salaries of the staff as per
the pay scale prescribed by the Government. This
Court observed that the respondent No.1 was not
capable to run the technical institute including
engineering college and, in these circumstances, the
students, who were admitted in technical schools
and engineering college would suffer. The matter
was adjourned for two weeks.
8. Aggrieved by the said order dated 23rd
April, 1999, passed by this Court in writ
petition No.364 of 1999, the respondent No.1
10 WP 6728 of 2004
filed a Special Leave Petition which was
converted in Civil Appeal No.6225 of 2000. The
Supreme Court of India, by an order dated
28.03.2001 observed that the order passed by this
Court on 23rd April, 1999 was very cryptic order
on the basis of so-called undertaking given by
the employer at the time of recognition which
undertaking could not be produced in the course
of proceedings. It was observed that in the said
order dated 23rd April, 1999 passed by this Court,
all the aspects were not considered and
accordingly, remanded the matter to this Court
for reconsideration and redisposal of the writ
petition after considering the submissions made
by the rival parties namely, the Management, the
employees as well as the State Government and
A.I.C.T.E. expeditiously.
9. In view of the said order dated
28.03.2001 passed by the Supreme Court, the said
writ petition No.364 of 1999 was re-heard by this
Court. By a detailed order and Judgment dated 3rd
11 WP 6728 of 2004
July, 2001, directed the respondent Nos.1 and 2
to implement the circular dated 29th September,
1995 issued by the respondent No.4 and made the
rule absolute to that extent. This Court also
directed respondent Nos. 1 and 2 to pay costs to
the petitioners of Rs.5000/-.
10. Being aggrieved by said order and
Judgment dated 3rd July, 2001, delivered by this
Court, the respondent No.1 and another preferred
a Special Leave petition, which was numbered as
Special Leave to Appeal (Civil) No.19455/2001. By
an order dated 12th April, 2002, the Supreme Court
dismissed the said Special Leave Appeal. In the
said order, it was observed that the Supreme
Court was not inclined to interfere with the
impugned direction of the High Court relating to
the salaries of the teaching and non-teaching
staff. The learned counsel for respondent No.1
herein made statement before the Supreme Court
that it had decided to close the institution, the
Supreme Court however, made it clear that it was
12 WP 6728 of 2004
not inclined to examine the said decision.
11. On 30th April, 2002, the Supreme Court
dismissed the Review Petition (Civil) No.806/2002
filed by respondent No.1 and another seeking
review of the order dated 12th April, 2002.
12. It is the case of the petitioners that
in spite of order and Judgment dated 3rd July,
2001, delivered by this Court directing
respondent Nos. 1 and 2 to implement the circular
dated 29th September, 1995 issued by respondent
No.1 and though the Special Leave Petition and
Review Petition filed by respondent Nos. 1 and 2
came to be dismissed, respondent Nos. 1 and 2 did
not implement the said orders. The said
Association therefore filed Civil Application
bearing No.6172 in the said writ petition No.3208
of 1999 and prayed for implementation of the
order passed by this Court and the Supreme Court.
By an order dated 8th October, 2002, the said
civil application was allowed to be converted
13 WP 6728 of 2004
into a contempt petition in writ petition
No.3208/1999. This Court observed that, the Court
was prima-facie satisfied that there was a
failure to implement the said order dated 5 th
July, 1999 by the respondent No.1 and thus,
allowed the application of Association to convert
the said Civil Application into contempt petition
in writ petition No.3208/1999. This Court
directed that so far as the directions for
implementation of the order passed in writ
petition No.3604 is concerned, the Association
may move an appropriate proceedings.
13. On 28th October, 2002, this Court passed
a detailed order in writ petition No.3208 of
1999 directing the Assistant Director, Technical
Education, Nashik Region to submit fresh report
regarding employees, who were working under the
respondent No.1 for the academic year 1998-1999
onwards and to have the names (of their employees
teaching as well as non-teaching) with their
duties of joining, etc. The Assistant Director,
14 WP 6728 of 2004
Technical Education, was directed to inquire into
the new appointments, if any, made by the
respondent No.1 and 2 for the academic years
1999-2000 onwards and the names of such employees
along with the date of joining. This Court also
directed the respondent No.1 and 2 to deposit the
arrears of salary payable to the petitioners No.2
to 31 in the said writ petition No.364 of 1999
from 1st September, 1995 to 31st May, 1999 within a
period of 4 weeks from the date of the said order
with the Registry of this Court.
14. Pursuant to the said order dated 28th
October, 2002, the Joint Director of Technical
Education, visited the Polytechnic College in
question i.e. Shri.Sant Gadge Baba Polytechnic,
Bhusawal, and submitted a detailed report before
this Court furnishing the names of all teaching
and non-teaching staff and on various other
issues. It is the case of the petitioners that
names of all the petitioners were also found in
the said list. On 29th January, 2003, this Court
15 WP 6728 of 2004
admitted the writ petition No.3208 of 1999. This
Court noticed that the order for deposit of the
amount had not been implemented by the respondent
Nos. 1 and 2. There was no application for
extension of time to deposit made by the
respondent Nos. 1 and 2.
15. This Court considered the report
submitted by the respondent Nos. 3 and 4 and
prima-facie observed that the requirements of
section 3 of the said M.E.P.S. Act, had not been
complied with. Respondent Nos. 1 and 2 have not
implemented the directions issued to them to pay
the salary of the teachers from time to time.
This Court accordingly, issued notice to the
respondent Nos. 1 and 2 and others to show cause
as to why State Government should not be directed
to invoke its powers under section 6 of the said
M.E.P.S. Act, and called upon them to submit
reply to the said show cause notice. This Court
also recorded submissions of the learned Counsel
for the said Association that on the basis of the
16 WP 6728 of 2004
accounts figures in their possession, the
respondent Nos. 1 and 2 was of sound financial
condition and that after denying the employment
to the petitioner Nos. 2 to 31 in writ petition
No.364 of 1999, the Management had proceeded to
recruit fresh hands and their salary was being
paid regularly.
16. The respondent Nos. 3 and 4 in the said
report submitted before this Court stated that
the gross salary paid to the teaching and non-
teaching staff of the said Shri.Saint Gadge Baba
Polytechnic, Bhusawal was neither in accordance
with the 4th Pay Commission nor 5th Pay Commission
as specified by A.I.C.T.E. and Government of
Maharashtra to all aided and un-aided
Polytechnics from time to time.
17. It is the case of the petitioners that
on the date of filing this petition, respondent
Nos. 1 and 2 had deposited the partial amount so
far the petitioners No. 2 to 31 in the said writ
17 WP 6728 of 2004
petition No.364 of 1999 are concerned. In so far
as the other employees were concerned, the
respondent Nos. 1 and 2 did not deposit any
amount.
18. It is the case of the petitioners that
the actual withdrawal of the money by respective
petitioners in writ petition No.3208 of 1999 was
allowed to be made in the month of June, 2004.The
petitioners came to know about non-deposit of any
amount in so far as petitioners are concerned
only in the month of June, 2004.
19. It is the case of the petitioners that
since no amount was deposited in respect of the
petitioners by respondent Nos. 1 and 2, the
petitioners issued notice to the respondent Nos.
1 and 2 and claimed the monetary benefits in
pursuance of the orders passed in writ petition
No.364 of 1999 on 3rd July, 2001. However,
respondent Nos. 1 and 2 did not respond to the
letter addressed by the petitioners and did not
18 WP 6728 of 2004
pay any amount. These petitioners accordingly,
filed this writ petition on 27th August, 2004
inter alia praying for writ of mandamus and writ
of certiorari, for an order and direction against
the respondent Nos. 1 and 2 to disburse to the
petitioners pay and allowances and other benefits
with interest and an order and direction against
the respondent Nos. 3 and 4 to take appropriate
steps towards the disbursement of arrears of
salary and allowances to the petitioners for the
period from 1st September, 1995 till May, 1999
with interest @ 15% per annum.
20. On 20th July, 2000, writ petition came to
be admitted. Mr.L.V.Sangit, learned counsel for
the petitioners invited our attention to various
annexures to the writ petition including various
orders passed by this Court and the Supreme
Court. It is submitted by the learned Counsel
that the petitioners to this petition had been
working with the respondent Nos. 1 and 2 since
1987 i.e. since last more than 7 to 8 years,
19 WP 6728 of 2004
prior to the date of filing this petition. Some
of the petitioners were working the year 1977.
All the petitioners were members of the non-
teaching staff.
21. It is submitted by the learned counsel
that respondent Nos. 1 and 2 had submitted
undertaking to the State Government as well as
to the A.I.C.T.E. while obtaining permission from
the State Government to start the said Shri.
Sant Gadge Baba Polytechnic in writing that they
would comply with the terms and conditions and
recommendations including the conditions of
providing pay scales as prescribed by A.I.C.T.E.
to the teaching as well as non-teaching staff and
the pay scales as recommended by the State
Government from time to time.
22. It is submitted that the said
undertaking given by the respondent Nos. 1 and 2
to the State Government as well as to the
A.I.C.T.E. are binding on the respondent Nos. 1
20 WP 6728 of 2004
and 2. Respondent Nos. 1 and 2 were thus, under
obligation to follow the condition of permission
and admissions and to disburse the salaries as
prescribed by A.I.C.T.E. and State Government to
the employees including teaching and non-teaching
staff. He submits that the petitioners were thus,
entitled to and were eligible for getting
benefits of 4th Pay as well as 5th Pay Commission
by the respondent Nos. 1 and 2, including the
consequential benefits such as, bonus, gratuity,
travelling allowance, medical allowance,
Provident Fund, leave benefits.
23. It is submitted by learned counsel for
the petitioners that under section 4 of the
M.E.P.S. Act, the State Government is empowered
to make rules providing for the minimum
qualifications for recruitment, duties, pay,
allowances, post retirement and other benefits
and other conditions of service of employees of
private schools. He submits that under section 16
of the said Act, the State Government is
21 WP 6728 of 2004
empowered to make rules for carrying the purpose
of the said Act by notification in the official
gazette which includes the rules relating to the
scales of pay and allowances to the teaching and
non-teaching staff.
24. It is submitted by the learned Counsel
that it was one of the pre-requisites under
clause 3.2 of the said secondary school and under
section 2(21) of the said M.E.P.S. Act for grant
of recognition for any other particular schools.
He submits that respondent Nos. 1 and 2 thus,
were bound to comply with the
instructions/circulars issued by the State
Government as well as the A.I.C.T.E. directions
to make payment of pay scales on the basis of 4th
and 5th Pay Commission recommendations.
25. It is submitted that the said
instructions issued by the Directorate of
Technical Education, Maharashtra State, dated 29th
September, 1995, to the Management and the office
22 WP 6728 of 2004
bearers of the non-aided private institutions
including the technical institutions to pay to
the teaching and non-teaching employees employed
by said institutions as per the rules and
policies framed by the State Government was by
exercising powers under section 4 read with
section 16 of the said Act, and were binding on
the respondent Nos. 1 and 2. He submits that the
respondent Nos. 1 and 2 were even otherwise
having given undertaking to the State Government
and A.I.C.T.E. While applying for permission to
start the said Shri.Sant Gadge Baba Polytechnic
College were liable to pay the demands made by
the petitioners as per said circular issued by
Respondent No.4.
26. Learned Counsel for the petitioners
submits that respondent Nos. 1 and 2 were not
complying with these instructions/circular issued
by the respondent No.4. The said Association and
several others filed writ petition in this Court.
He invited our attention to the orders passed by
23 WP 6728 of 2004
this Court in various writ petitions. He submits
that after remand of the writ petition No.364 of
1999 by order dated 28th March, 2001, passed by
the Supreme Court, this Court tendered detailed
Judgment on 3rd July, 2001. He submits that by
the said Judgment, this Court had allowed the
said petition filed by the said Association and
other petitioners and directed the respondent
Nos. 1 and 2 to implement the circular dated 29th
September, 1995 with costs.
27. It is submitted that the said Judgment
has attained finality in view of the Special
Leave Petition and the review petition filed
by the respondent Nos. 1 and 2 having been
dismissed by the Supreme Court. He submits that
the said Judgment of this Court directing the
respondent Nos. 1 and 2 to implement the said
circular dated 29th September, 1995 issued by the
respondent No.4 was applicable to all the
teaching and non-teaching staff of the respondent
Nos. 1 and 2 including the petitioners.
24 WP 6728 of 2004
28. It is submitted that the said Order and
Judgment delivered by this Court on 3 rd July,
2001, which is upheld by the Supreme Court was
applicable to the petitioners and the respondents
and was binding on them.
29. In his alternate submissions, the
learned Counsel submits that seven if the said
order and Judgment dated 3rd July, 2001 delivered
by this Court in the said writ petition filed by
the said Association and some of the members of
teaching and non-teaching staff, the petitioners
being similarly situated and being members of the
non-teaching staff of the respondent Nos. 1 and 2
were entitled to get benefits of said circular
dated 29th September, 1995 and the said order and
Judgment dated 3rd July, 2001 delivered by this
Court. He submits that the respondent Nos. 1 and
2 have deliberately withheld the amount payable
to the petitioners, and thus, petitioners are
also entitled to claim interest @ 15% per annum
25 WP 6728 of 2004
from the due date as prayed in the writ petition.
30. Learned counsel for the petitioners also
invited our attention to the reports submitted by
the respondent Nos. 3 and 4 before this Court and
also the order passed by this Court on 28 th
October, 2002 and would submit that in the said
report, the authorities have clearly placed on
record that respondent Nos. 1 and 2 had not paid
the salary and other benefits to the employees in
accordance with the 4th and 5th Pay Commission. He
submits that names of all the petitioners, who
are parties to this writ petition are mentioned
in the said report as members of non-teaching
staff.
31. The learned counsel for the petitioners
submits that though respondent Nos. 1 and 2 had
an opportunity to file affidavit-in-reply in this
writ petition, no such affidavit-in-reply has
been filed by them till date. The averments made
by the petitioners in this writ petition remained
26 WP 6728 of 2004
uncontroverted by the respondent Nos. 1 and 2.
32. Mr.S.P.Shah, Learned Counsel for the
respondent Nos. 1 and 2 on the other hand,
submits that in the writ petition No.3208 of 1999
and writ petition No.364 of 1999 filed by the
said Association and other petitioners in which
various orders came to be passed by this Court,
the petitioners were not parties. The petitioners
were not even the members of the said
Association. The orders passed by this Court in
those petitions directing the respondent Nos.1
and 2 to implement the circular/instructions
dated 29th September, 1995 issued by the
respondent No.4 was thus, not binding on the
respondent Nos. 1 and 2 in so far as the
petitioners in this writ petition are concerned.
He submits that the petitioners thus cannot seek
implementation of the said Judgment. In his
alternate arguments, he submits that at the most,
the petitioners can rely on those orders as
precedent in this writ petition.
27 WP 6728 of 2004
33. It is submitted by the learned counsel
that there is delay on the part of the
petitioners in approaching before this Court for
seeking the order and direction against the
respondent Nos. 1 and 2 to implement the said
circular dated 29th September, 1995, issued by
Directorate of Technical Education, Maharashtra
State, Mumbai by filing this petition in the year
2004. The petitioner has not explained any delay
and latches in this petition.
34. The next submission of the learned
counsel for the respondent Nos. 1 and 2 is that
the petitioners as well as the respondent Nos. 1
and 2 are governed by the provisions of the said
M.E.P.S. Act. He submits that under section 4 of
the said M.E.P.S. Act, the State Government is
empowered to make rules providing for the pay and
allowances, etc. and for prescribing other
conditions of service of the employees of the
private schools under section 16.
28 WP 6728 of 2004
35. Learned Counsel placed reliance on Rule
7 of the said M.E.P.S. Rules, 1981, and would
submit that under the said Rules, the scales of
pay for full time as well as part time teachers,
heads, assistant heads, professors, teachers and
the non-teaching staff and the primary schools,
secondary schools, including night schools,
technical colleges and junior colleges of
education is as specified in Schedule-"C". He
submits that under Rule 7 (II), various
allowances set out therein, payable to the
employees at the rate and according to the said
rules have been sanctioned by the Government
specifically, to the employees of the private
schools. He invited our attention to Schedule-"C"
and submits that the salary of the teaching and
non-teaching staff working in the college
including the college run by respondent No.1 are
specifically prescribed under the said
Schedule-"C" in part (viii). The pay scale of
teaching staff is in Schedule-III.
29 WP 6728 of 2004
36. It is submitted that the increase in
the pay scale as well as other benefits of the
teaching and non-teaching staff prescribed in
Rule 7 read with Schedule-"C" can not done by
issuing such executive instructions by respondent
No.4. He also placed reliance on Rule 16 (2) (b)
of M.E.P.S. Act read with section 4(3) of the
said Act. He submits that source of power of the
respondent No.4 is only prescribed under those
provisions including the rules to prescribe the
pay scales and other service conditions. He
submits that thus, the instructions/circular
issued by respondent No.4 on 29th September, 1995
was beyond the jurisdiction of respondent No.4
and was in violation of section 4 and 16 of the
Act and Rule 7 of the said Rules and thus was not
binding on the respondent Nos. 1 and 2.
37. In support of this submission, the
learned counsel for the respondent Nos. 1 and 2,
vehemently placed reliance on the Judgment
delivered by the Division Bench of this Court in
30 WP 6728 of 2004
case of Mahadev Pandurang More Vs. State of
Maharashtra and others, 2014 (15) Mh.LJ. 877 and
in particular paragraph Nos.41 to 47 and would
submit that unless and until the scales of pay
directed to be paid by the respondent No. 4 by
the said instructions/circular dated 29th
September, 1995 were specified by carrying out
appropriate amendment in the rules read with
Schedule-"C", the said instructions/circular was
thus, were bound to pay the prescribed pay scale
and other benefits in Schedule-"C" of the said
Rules of 1981 only and not more than the said
prescribed amount. He submits that Judgment of
Division of this Court in case of Mahadev
Pandurang More (supra) is binding on this Court
and also upon the parties.
38. Mr.Y.G.Gujarathi, learned Assistant
Government Pleader for respondent Nos. 3 to 5 on
the other hand, invited our attention to the
31 WP 6728 of 2004
averments made in the affidavit-in-reply dated 9th
placing various documents on record and
contending that the Joint Director of Technical
Education was empowered to and was justified in
issuing the circular dated 29th September, 1995.
He placed reliance on the said M.E.P.S. Rules and
also the provisions of All India Council for
Technical Education Act, 1987. He submits that
respondent Nos. 1 and 2 were bound to implement
the said circular/instructions issued by the
respondent No.4.
39. Mr.L.V. Sangit, learned counsel for the
petitioners in rejoinder submits that the earlier
writ petition was filed by the Union and various
members of the teaching and non-teaching staff.
The averments made by the petitioners in the writ
petition that the petitioners were members of the
said Association, are not controverted by
respondent Nos. 1 and 2 by filing any affidavit
in reply. He submits that in any event, this
32 WP 6728 of 2004
Court had directed the Management to implement
the said circular dated 29th September, 1995, and
thus, the reliefs granted by this Court was not
restricted only to the said Association or to the
other petitioners, who were parties to this
petition but to all the members of teaching and
non-teaching staff including the petitioners
herein. He led emphasis on the order passed by
the Supreme Court on 12th April, 2002 in Special
Leave to Appeal No. 19455 of 2001 observing that
the Supreme Court was not inclined to interfere
with the impugned direction of the High Court
relating to the salaries of the teaching and non-
teaching staff. In his alternate submissions, he
submits, in any event, the said Judgment of this
Court which has attained finality is binding on
the respondent Nos. 1 and 2 in view of the
identical facts.
40. Learned counsel for the petitioners
invited our attention to the stand taken by the
respondent Nos. 1 and 2 before this Court in the
33 WP 6728 of 2004
said writ petition No. 364 of 1999 which is
recorded by this Court in paragraph 18 of the
said Judgment dated 3rd July, 2001. He submits
that the respondent Nos. 1 and 2 itself had
admitted the Role of A.I.C.T.E. under the
provisions of All India Council for Technical
Education Act, 1987. It was admitted by the
respondent Nos.1 and 2 that in exercise of its
powers, the Council had framed norms and
standards for Polytechnic colleges (diploma
course). In the said norms, the requirement of
running the Polytechnic, the payment of salaries,
etc. to staff working in the said Polytechnic or
institutions were clearly stated.
41. Learned Counsel for the petitioners
invited our attention to the paragraphs 18 to 23
of the said order and Judgment dated 3rd July,2001
delivered by this Court in the said writ petition
No.364 of 1999 holding that under section 4(3) of
the M.E.P.S. Act, the respondent No.4 was vested
with the authority to issue directions in writing
34 WP 6728 of 2004
to the Management of all private schools to bring
the pay scales, allowances, post retirement and
other benefits of the employees on par with the
rates prescribed. He submits that it is held that
the respondent No.4 had authority to issue such
direction to such polytechnics to implement the
pay scales prescribed by A.I.C.T.E. He submits
that the arguments of the learned counsel for the
respondent Nos. 1 and 2 that unless and until an
appropriate amendment was carried out in
Schedule-"C" of the Rules of 1981, the respondent
Nos. 1 and 2 could not have been directed to pay
the revised pay scale or other benefits as per
the recommendations of the Pay Commissions is
contrary to the order and Judgment of this Court,
which has been upheld by the Supreme Court.
42. In so far as the Judgment of this Court
in Mahadev Pandurang More (supra) relied upon by
the learned counsel for the respondent Nos. 1 and
2 is concerned, learned counsel for the
petitioners distinguished the said Judgment on
35 WP 6728 of 2004
the ground that this Court had already decided
the validity of the powers exercised by
respondent No.4 to issue said
circulars/instructions. The said order and
Judgment dated 3rd July, 2001, which has attained
finality and the respondent Nos. 1 and 2 having
implemented the said Judgment partly, was not
brought to the notice of the Division Bench of
this Court in case of Mahadev Pandurang More
(supra). He submits that the said Judgment of
Division Bench in case of Mahadev Pandurang More
(supra), thus, taking contrary view is not
binding on this Court and the parties being per
incuriam.
43. In his alternate submission, learned
counsel for the petitioners invited our attention
to the directions issued by the Division Bench of
this Court in case of Mahadev Pandurang More
(supra) directing the State Government to
initiate suitable steps to meet wage revision on
lines of Government Resolution dated 21st May,
36 WP 6728 of 2004
2010 binding on unaided private schools through
section 16 of the said M.E.P.S. Act within 4
months from the date of this order and further
directing to the respondents to pay to the
petitioners therein the increased salary at the
rate offered to others from December, 2013 and
clarified that its receipt or payment would not
prejudice the rights, defences and contentions of
the parties in relation to the amended scales of
pay in Schedule-"C". He submits that the State
Government has now, already amended Schedule-"C"
in the month of September, 2016, thereby, giving
benefits of the Pay Commissions by notification
dated 6th September, 2016. It is submitted by the
learned Counsel for the petitioners that even
otherwise, on the ground of parity, the
petitioners are entitled to be paid the same pay
scales what was paid to the non-teaching staff of
the respondent Nos.1 and 2 as per the orders
passed by this Court.
Reasons and conclusions :-
37 WP 6728 of 2004
44. It is not in dispute that the
petitioners had been working as members of non-
for the last several years till the respondent
No.2 is closed by the respondent No.1. It is also
not in dispute that the petitioners and the
respondent Nos. 1 and 2 are governed by the
provisions of the said M.E.P.S. Act, and the said
M.E.P.S. Rules.
45. The State Government had issued
Government Resolution dated 21st May, 1983 that
the technical colleges including Polytechnics run
by any agency, either aided or unaided were
required to abide the rules and regulations
issued by Government of Maharashtra or by the
Directorate of Technical Education from time to
time. Respondent No.1 was granted permission to
open Polytechnic during the academic year 1983-
1984 by an order dated 22 nd July, 1983. The
Government of India enacted All India Council for
Technical Education Act, 1987 (In short
38 WP 6728 of 2004
"A.I.C.T.E.). Under the said Act, A.I.C.T.E.
grants permission to the technical colleges with
the concurrence of the State Government under
section 10 of the said All India Council for
Technical Education Act, 1987. The said
authorities are responsible for prescribing the
specific norms and standards including pay scales
and service conditions of the teaching staff so
as to maintain the qualitative standard of
education all over India. The said authority had
granted permission to the respondent No.1 to
start the respondent No.2 on various conditions
and upon the respondent No.1 rendering an
undertaking.
46. Till 1990, all Polytechnics were not
within the ambit of M.E.P.S. Act. Thereafter,
A.I.C.T.E. was responsible to prescribe the pay
scales and other service conditions of the
teaching as well as non-teaching staff in
technical institutions like the Polytechnics and
degree courses. On 20th September, 1989, the
39 WP 6728 of 2004
A.I.C.T.E. had issued a circular prescribing the
revised qualifications as well as pay scales for
teachers of technical institutions including
those of Polytechnics. The Government of
Maharashtra consequently issued Government
Resolution dated 26th May, 1992, thereby, adopting
the recommendations made by the A.I.C.T.E.
regarding the qualifications and the pay scales.
By a Subsequent circular dated 30th December,
1999, an additional condition of the
qualification had been deleted by the A.I.C.T.E..
The State Government issued Government Resolution
on 27th November, 1989 for revision of pay scales
of the employees in Polytechnics. On 23rd
March,1995, the State Government issued further
clarification.
47. A perusal of the order and Judgment
dated 3rd July, 2001, passed by this Court,
indicates that the Role of A.I.C.T.E. under the
provisions of the said A.C.T.I.E. Act to
prescribe the conditions of pay scale of the
40 WP 6728 of 2004
employees in Polytechnics has been recognized by
the State Government as well as by this Court.
48. This Court has held that under section
4(1) of the M.E.P.S. Act, the State Government is
empowered to make rules providing for the minimum
qualifications for recruitment, duties, pay,
allowances, post retirement and other benefits
and other conditions of service of employees of
private schools, etc. Under section 4(3) of the
said Act, it is provided that if the scales of
pay and allowances, post retirement and other
benefits of the employees of any private schools
are less than what is provided by the said rules
made under sub-section (1) of section 4, the
Director, shall direct in writing the Management
of such school to bring the said pay scale up to
the level provided by the said rules, within such
period or extended period as can be specified by
them. It is held that as per the section 4(4) of
the said Act, failure to comply with all the
directions given by the Director in pursuance of
41 WP 6728 of 2004
section 4(3), it may result the recognition of
the school being withdrawn after giving
reasonable opportunity of being heard to the
Management of the schools.
49. This Court has accordingly, held that
under section 4(3) of the M.E.P.S. Act, the
respondent No.4 is vested with the authority to
issue directions in writing to the management of
private schools to bring the pay scales,
allowances, post retirement and other benefits of
the employees on par with the rates prescribed.
The said A.I.C.T.E. has already prescribed the
pay scales in respect of the employees of the
Polytechnics.
50. In the said Judgment, this Court has
held that the said A.I.C.T.E. being a body
created under the said Act, is is required to
carry out statutory functions and it is a model
agency so far as the technical education in India
is concerned. The said A.I.C.T.E. is thus,
42 WP 6728 of 2004
responsible to issue directions/instructions to
the Management whether aided or unaided in view
of the provisions of section 4(3) of the M.E.P.S.
Act, read with section 3(1) of the said M.E.P.S.
Act. This Court also took into consideration the
affidavit-in-reply filed by the respondent No.1
in the said writ petition. It was the case of the
respondent Nos.1 and 2 itself that the actual
control in academic as well as in administration
of the college of technical institutions, vest
with All India Council for Technical Education,
which is established under the provisions of the
said A.I.C.T.E. Act. The norms and standards of
the Technical Education, institution are set out
by this Council. It is admitted by the respondent
No.1 that according to the said standards, norms
and standards of the technical institutions, are
set up by the said Council. According to the said
standards, the technical institution running
diploma courses in various Engineering branches
has to follow the norms in running the
Polytechnic.
43 WP 6728 of 2004
51. In the said order and Judgment, this
Court also took cognizance of the fact that the
State Government had granted permission to the
respondent No.1 to open the respondent No.2
Polytechnic from the academic year 1983-84 on
certain terms and conditions. This Court held
that it was clearly stipulated that the
Management agrees to be bound by the terms and
conditions as prescribed by the State Government
while granting such permission. The respondent
No.1 had submitted an undertaking on 21st July,
1983 as a part of the application for
recognition. The said undertaking clearly
provided that the management had agreed that it
was willing to and shall abide by the order and
rules laid down by the department that will be
laid down thereafter regarding recognition or
grant-in-aid, on conduct of the institution, etc.
52. This Court after considering the said
undertaking rendered by the respondent Nos. 1 and
2, held that the respondent No.1 Management was
44 WP 6728 of 2004
bound by the directions/orders issued by the
respondent No.4 from time to time for the conduct
of the respondent No.2, Polytechnic and the term,
'conduct of institutions' would include the
implementation of pay scales and other service
conditions in respect of its employees.
53. In the said Judgment and order, this
Court also considered various declarations given
by the respondent Nos. 1 and 2 in the application
for recognition and held that the Management was
fully aware of their responsibility towards the
salary payment and other benefits to its
employees as per the pay scale prescribed by the
Government or A.I.C.T.E. from time to time, and
more so, Council had granted recognition to
respondent No.1 on year to year basis. This Court
also observed that it was not in dispute that in
the academic year 2000-2001, the respondent No.1
was having number of educational institutions,
wherein about 8000 students were enrolled with
about 350 teaching and non-teaching employees and
45 WP 6728 of 2004
with a sound base in all respects. This Court
rejected the contention of the management that it
had discharged its application by paying basic
salary as prescribed by A.I.C.T.E. plus 40%
Dearness Allowance and 10% House Rent Allowance
and other statutory benefits.
54. This Court held that services of
employees will be subject to such orders to be
passed either by Deputy Director or Director of
Technical Education or as per the provisions of
the said M.E.P.S. Act and the rules made
thereunder and thus, are entitled to receive the
benefits so long they continue in service. This
Court also held that there is no estoppel
against the statutory provisions of the M.E.P.S.
Act and the Rules thereunder as well as the
norms laid down by the A.I.C.T.E. which have been
subsequently followed by the State Government and
the directions had been issued to the Management
by the respondent No.4 by exercising powers under
section 4(3) of the said M.E.P.S. Act. It is not
46 WP 6728 of 2004
in dispute that various contentions raised by the
respondent Nos. 1 and 2 in the said writ petition
No.364 of 1999 filed by the said Association
including the contention that the respondent No.4
could not have issued any such
circular/instructions dated 29th September, 1995
has been negatived by this Court and the said
Judgment has been upheld by the Supreme Court.
55. The respondent No.2 Polytechnic was not
only bound to comply with the directions issued
under the provisions of M.E.P.S. Act and the
M.E.P.S. Rules framed thereunder, but, were also
bound to comply with the directions issued by the
respondent No.4 under the provisions of
A.I.C.T.E. Act including the directions issued
for payment of pay scale and other service
conditions prescribed in respect of the staff in
a Polytechnic college or schools in respect of
the vacant posts under the provisions of the said
M.E.P.S. Act. In our view, the submissions
advanced before this Court by the learned counsel
47 WP 6728 of 2004
for the respondent Nos. 1 and 2 are contrary to
the law laid down by this Court in the said
Judgment dated 3rd July, 2001 and the said writ
petition No.364 of 1999 which has attained
finality and is binding on the respondents.
56. In so far as the reliance placed by
learned counsel for the respondent No. 1 and 2 on
the Judgment of Division Bench of this Court in
case of Mahadev S/o.Pandurang More and Ors. Vs.
State of Maharashtra and Ors. 2014 (5)
Mh.LJ.J.877, in support of his submissions that
such circular dated 29th September, 1995, could
not have been issued by the respondent No.4
without carrying out appropriate amendment to the
Schedule-"C" is concerned, a perusal of the said
Judgment clearly indicates that the Judgment of
this Court in case of Teachers Association for
non-aided Polytechnics and others Vs. Hind Seva
Mandal and others to which the respondent Nos. 1
and 2 were parties was not brought to the notice
of their Division Bench of this Court while
48 WP 6728 of 2004
dealing with the case of Mahadev Pandurang More
(supra). The Division Bench of this Court in the
said Judgment held that the Government Resolution
or any other similar decision or similar circular
or decision regarding pay scales not taken in the
mode and manner prescribed by 1977 Act or 1981
Rules, cannot be treated as valid and binding on
the Management.
57. This Court has not considered the
provisions of the said A.I.C.T.E. Act in the said
Judgment and also the undertaking given by the
and 2 were admittedly parties to the said earlier
Judgment dated 3rd July, 2001 in the writ
petition No.364 of 1999 are bound by the said
Judgment holding that the respondent No.4 were
authorized to issue such circular which were
issued under the provisions of section 4(3) read
with section 16 of the A.I.C.T.E. Act. In our
view, the Judgment of Division Bench of case in
Mahadev Pandurang More, thus, would not assist
49 WP 6728 of 2004
the case of respondent Nos. 1 and 2 in these
circumstances.
58. In so far as the submissions of the
that the petitioners were not parties to the said
writ petition No.364 of 1999 and thus, the
benefits of the said Judgment can not be given to
the petitioners is concerned, a perusal of the
record indicates that in the said writ petition,
the petitioners had prayed for a writ of mandamas
for an order and direction to the respondent Nos.
1 and 2 to pay to the teaching staff including
the petitioners No. 2 to 31 thereto, the pay and
allowances and other service benefits such as
bonus as per the instructions issued by the
circular/letter dated 29th September, 1995 issued
by the respondent No.4 including the arrears of
pay and allowances since the dates of their
official appointments.
50 WP 6728 of 2004
59. It is thus, clear that the reliefs sought
by those petitioners in the said writ petition
was for all the teaching and non-teaching staff
of the respondent Nos. 1 and 2 including the
petitioners in the writ petition. Be that as it
may, a perusal of the Judgment dated 3rd July,
2001 clearly indicates that by the said Judgment,
respondent Nos.1 and 2 were directed to implement
the said circular dated 29th September, 1995
issued by the respondent No.4 which admittedly
was a direction in respect of not only the
teaching staff, but also was in respect of non
teaching staff which would include the
petitioners herein. On perusal of the order dated
3rd July, 2001 passed by the Supreme Court in
Special Leave to Appeal (Civil) No.19455 also
clearly indicates that the Supreme Court while
refusing to interfere with the order passed by
this Court clearly recorded that said direction
of this Court was relating to the salaries of the
teaching and non-teaching staff.
51 WP 6728 of 2004
60. A perusal of the averments made in
this writ petition indicates that it is specific
case of the petitioners that the petitioners were
members of the said Association who were the
petitioner No.1 in the said writ petition
No.364/1999 which fact is not controverted by
respondent Nos. 1 and 2 by filing any affidavit-
in-reply. Be that as it may, this Court has
issued a writ of mandamus against the respondent
Nos. 1 and 2 to implement the said circular dated
29th September, 1995 issued by the respondent
No.4, and thus, the petitioners herein being
covered by the said circular dated 29th September,
1995 are entitled to the benefits of the said
order and Judgment dated 3rd July, 2001.
61. In our view, the petitioners have
rightly filed this writ petition and prayed for
a direction to the respondents to implement the
and 2 not having deposited any amount in so far
as these petitioners are concerned.
52 WP 6728 of 2004
62. In our view, there is thus no delay in
filing this petition as sought to be canvassed by
the respondent Nos. 1 and 2. Petitioners to the
said writ petition No.364 of 1999 are not paid
the entire amount as directed by this Court and
could be allowed to withdraw the part of the said
in the month of June, 2004. This petition filed
by these petitioners on 27th August, 2004, thus
cannot be considered as barred by delay or
latches.
63. In our view, even if the arguments of
the learned counsel for the respondent Nos. 1 and
2 is accepted that the petitioners were not
parties to the said writ petition No.364 of 1999,
and thus, no direction were issued by this Court
in the said order and Judgment to the respondent
Nos. 1 and 2 to pay the benefits, the pay scale
as directed in the said circular in the earlier
petition herein, the petitioners bring similarly
situated and part of the order and Judgment
53 WP 6728 of 2004
having been admittedly implemented by the
respondent Nos. 1 and 2 in compliance with the
circular dated 29th September, 1995, on the
principles of parity of pay scale, the respondent
Nos. 1 and 2 are bound to pay the same pay scale
and other benefits to the petitioners which were
payable to non-teaching staff of the respondent
Nos.1 and 2.
64. The respondent Nos. 1 and 2 are not in a
position to distinguish the Judgment and order of
this Court dated 3rd July, 2001 delivered in the
writ petition No.364 of 1999, which has attained
finality. The respondent Nos. 1 and 2 have
contended before this Court that at the most, the
said Judgment dated 3rd July, 2001 can be
considered as precedent in this case. In our
view, the said Judgment dated 3rd July, 2001
squarely applies to the facts of this case. Not
only this Court but parties to this petition
also are bound by the principles of law laid
down by this Court in the said Judgment and order
54 WP 6728 of 2004
dated 3rd July, 2001.
65. We are of the view that the petitioners
have made out a case for grant of reliefs as
prayed in this writ petition. However, in so far
as the rate of interest is concerned, we are of
the view that interest of justice would be met
with if the respondent Nos. 1 and 2 are directed
to pay to the petitioners the interest @ 12% per
annum with effect from 1st September, 1995 till
19th May, 1999. We, therefore, pass the following
order :-
ORDER
(I) Writ Petition No.6728 of 2004 is made
absolute in terms of prayer Clause - (A)
and (B).
(II) We, however make it clear that the rate
of interest is restricted to 12% per
annum from 1st September, 1995 till 19th
May, 1999.
55 WP 6728 of 2004
(III) We direct the respondent Nos. 1 and 2 to
comply with this order and Judgment
within four weeks from today.
(IV) The respondents are directed to act on
the authenticated copy of this order.
(V) The respondent Nos. 1 and 2 shall also
pay costs of Rs.15,000/- (Rupees Fifteen
Thousand Only) to the petitioners No.1
on behalf of the petitioners which shall
within two weeks from the date of this
order without fail.
(VI) The Rule is made absolute in aforesaid
terms.
(SUNIL K. KOTWAL, J.) (R.D. DHANUKA, J.)
mta/wp6728-2004
