Bombay High Court
Abhay Yuva Kalyan Kendra Dhule ... vs The State Of Maharashtra And ... on 8 March, 2021
Bench: S.P. Deshmukh, Abhay Ahuja
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arp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7295 OF 2018
1. Abhay Yuva Kalayan Kendra, Dhule PETITIONERS
Through its President,
Dr. Sudhakar s/o Motiram Borse
Age - 78 years, Occupation - Social Service
R/o Dhule Taluka and District - Dhule
2. Kala Mahila Mahavidalya, Dhule
run by Abhay Yuva Kalayan Kendra, Dhule
District - Dhule (Through its Principal)
3. Shri Dilip Pandit Mahajan,
Age - 58 years, Occ - Retired Junior Clerk
R/o Abhay Yuva Kalyan Kendra Sanchalit
Kala Mahila Mahavidalya, Deopur,
Dhule, District - Dhule
VERSUS
1. The State of Maharashtra RESPONDENTS
Through its Secretary,
Higher Education Department,
Mantralaya, Mumbai - 32
2. The Joint Director
High Education Department,
Jalgaon Division, Jalgaon
District - Jalgaon
WITH
WRIT PETITION NO.5204 OF 2019
1. Abhay Yuva Kalayan Kendra, Dhule PETITIONERS
Through its President,
Dr. Sudhakar s/o Motiram Borse
Age - 78 years, Occupation - Social Service
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R/o Dhule Taluka and District - Dhule
2. Kala Mahila Mahavidalya, Dhule
run by Abhay Yuva Kalayan Kendra, Dhule
District - Dhule (Through its Principal)
3. Shri Naval Shalikrao Patil,
Age - 57 years, Occ - Service
R/o 44, Indraprastha Colony,
Gondur Road, Deopur,
Dhule, District - Dhule
VERSUS
1. The State of Maharashtra RESPONDENTS
Through its Secretary,
Higher Education Department,
Mantralaya, Mumbai - 32
2. The Joint Director
High Education Department,
Jalgaon Division, Jalgaon
District - Jalgaon
.......
Mr. V. D. Sapkal, Senior Advocate i/b Mr. S. R. Sapkal, Advocate for
petitioners
Mr. S. P. Sonpawale, AGP for respondent - State
.......
[CORAM : SUNIL P. DESHMUKH AND
ABHAY AHUJA, JJ.]
DATE : 8th MARCH, 2021
ORAL JUDGMENT (PER SUNIL P. DESHMUKH, J.):
1. Rule. Rule made returnable forthwith. Heard learned counsel
for the parties finally, by consent.
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2. Petitioners in aforesaid two writ petitions, viz: writ petition No.
7295 of 2018 and 5204 of 2019 question legality and validity of
communications dated 14-06-2018 and 31-03-2019 issued by
respondent no. 2 - joint director, higher education department issued
to petitioners no. 3 respectively, whereunder period of their service in
the college of education which is run on non-grant-in-aid basis, is
sought to be excluded from computation of period of their entire
service with a direction to fix their pay and recover excess amount
paid which the petitioners consider is improper and may downscale
the benefits, inter-alia, pensionery etc.
3. The petitions are being considered and decided under this
common judgment as both the petitions raise similar questions and
challenge is posed on same/similar grounds to aforesaid
communications (hereinafter referred to as 'impugned
orders/communications').
4. The petitioners no. 3 in respective petitions were appointed
initially by petitioner no. 1 - educational institution and the trust in
its college of education on 01-07-1987 and 31-07-1986 as junior
clerk and head clerk. Said college was being run by petitioner no. 1
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on non-grant-in-aid basis. Their services were confirmed by
petitioner no. 1 under resolutions. Petitioner no. 1 transferred the
petitioners no. 3 in respective petitions on 30-03-1991 and 27-07-
1989, to its Arts, Commerce and Science college for women.
5. Petitioners when were transferred, their last pay certificates
were also issued by the principal of college of education. Upon
transfer, their pay scales were fixed and those were verified by Senior
Auditor. Petitioners were even continuously been given increments
and their pay was fixed and approved by the authorities from time to
time. Its benefits were also given to petitioners no. 3 all through their
service period. Petitioners were also given benefit of time bound
promotional pay scale.
6. Petitioners no. 3 retired on 31-05-2018 and 31-05-2019,
respectively. Their retiral benefit proposals were submitted to
concerned authorities in advance along with necessary details. There
had been correspondence in respect of the retirement proposals,
certain defects were perceived, those were removed by submitting
necessary documents. However, the process culminated into
impugned communications purporting to exclude the period of their
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service in college of education, the period being spent in a college not
receiving grant-in-aid, referring to government resolution dated 22-
11-1993 with instructions to recover excess payment made to
petitioners.
7. Petitioners' pay had been fixed, taking into account their past
services in aforesaid college. Pay scales of the petitioners had been
verified by senior auditor and the same were approved. Petitioners
were also given time bound promotional pay scales.
8. Mr. Sapkal, learned senior advocate appearing on behalf of the
petitioners submits that petitioners were appointed in college being
run on non grant in aid basis, yet, pay scales given to them had been
as is applicable to employees working in colleges receiving grant in
aid. Pay scales are governed by statutory provisions. The petitioners'
service conditions were being governed under regime of rules while
they were serving in non-grant-in-aid basis college as were applicable
to the institutions running with grant-in-aid. There is no difference
in educational qualifications and the kind of duties performed by the
junior clerk and head clerk serving in non-grant-in-aid and grant-in-
aid basis establishments. While petitioners No. 3 were transferred to
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college receiving grant in aid, the principal had issued last pay
certificates to them. Their pay scales accordingly had been fixed,
taking into account pay scales applicable and being received by
petitioners no. 3 in their erstwhile employment. Their pay scales had
in fact been verified by senior auditor and had been approved upon
their induction in the college run with grant in aid. Fixation of pay
scale in the college receiving grant in aid, had not been disturbed at
any point of time before respondent No. 2 started communicating
upon proposals of retirement of petitioners No.3. In the interregnum
petitioners No. 3 have received all other incidental, ancillary and
consequential benefits. They had also been given benefit of Assured
Careers Progress Scheme (ACPS). He submits that even otherwise
there is no plausible rationale in making distinction in services
rendered by employees like petitioners, in the establishment
receiving grant in aid and the ones not receiving grant in aid.
9. He submits, during all these years, there had been no reference
to 1993 government resolution which is sought to be made use of, to
decline payment of legitimate retirement benefits to the petitioners.
He submits that there is no rationale in the condition in 1993
government resolution, save and except economic advantage to the
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State. However, he goes on to submit that such a distinction would
not stand the test of Article 14 of the Constitution of India. Apart
from aforesaid, he submits that the situation is no longer res-integra.
Efficacy of the condition from the government resolution of 1993 is
enervated and attenuated and is of no significance having regard to
various decisions of the Supreme Court and the High Court. He
submits that reference to government resolution dated 22 nd
November, 1993 in the circumstances is unwarranted.
10. Learned senior advocate refers to decisions of this court in the
cases of "Suman Lahanu Wakchaure V/s State of Maharashtra and
Others" reported in 2009 (1) Bom.C. R. 216 and "Raskar Vidya
Damodar (Mrs)@ Bhujbal Vidya V.s Maharashtra Arogya Mandal and
Others" reported in 2001 (2) Bom.C.R. 284. This court in Raskar
Vidya Damodar (supra) has categorically observed that "it is settled
position now that pay scale has to be maintained, whether school is
aided one or not, is a Government one or private" . It appears to have
been observed in said judgment that there has to be parity of pay
scales between teachers of private schools which are aided as well as
unaided. Similarly, there should be parity of pay scales between
teachers working in private aided schools and schools run by the
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State Government. It is not permissible in law for a private unaided
educational institution to put forward the hypotheses that it is not
liable to pay salaries to its teachers as per the pay scales prescribed
under the Maharashtra Employees of Private Schools (Conditions of
Service) Rules, 981. Decisions of the Supreme Court in the cases of
"K. Krishnamacharyulu and Others V/s Sri Venkateswara Hindu
College of Engineering and Another" reported in 1997 (I) CLR 1133
as well as "Chandigarh Administration and Others V.s Rajani Vali and
Others" reported in J.T. 2000 (1) SC 159 have been referred to
wherein it has been observed that there is no justification for denying
parity of pay scales. He also refers to an order of this court in writ
petition No. 5932 of 2009 dated 9th October, 2013 (Abdul Hamid
Buzurg Shaikh Vs. State of Maharashtra and Others), wherein benefit
of past service was directed to be considered for revised pension.
11. He also refers to decision of this Court in writ petitions 3264 of
2012 and 3265 of 2012 (Shakeela Shaikh Fakruddin and others Vs.
The State of Maharashtra and others) wherein the division bench of
this court had considered that period of service during which a school
was not an aided school cannot be kept out of consideration while
computing qualifying service of 12 years. It has been noted then that
decision in the case of S.T. Devare and others Vs. The Accounts
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Officer dated 14th September, 2000 (writ petition no. 4336 of 2000)
had been followed in several cases.
12. Learned Senior Advocate has also referred to a decision of
another division bench of this court reported in Sunanda w/o
Pandharinath Adhav (Mrs.) and others Vs. State of Maharashtra and
others 2001 (1) Bom.C.R. 809 whereunder teachers in unaided
schools were given parity with the pay scales applicable to teachers
in aided schools which in turn had referred to various supreme court
decisions.
13. He refers to, observations in the case of "Dattatray Eknath
Mahadik and Others V/s Deputy Director of Education and Others" in
writ petition No. 989 of 2006 dated 27 th April, 2006 may be relevant
in this respect, which are to the effect that whether school is aided or
not, the school has to pay same pay scales to its staff, whether it is
teaching or non teaching. Once that be the case, whether school
receives grant in aid or not, would be immaterial so long as
employees have been appointed and their appointments have been
approved, relevant date would be date of their initial regular
appointment.
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14. Respondents in their affidavit-in-reply purport to resist
the petitions. It is being submitted that the period of service in a
college which was not receiving grant-in-aid would not be computed
in view of the condition under government resolution dated 22 nd
November, 1993. Rule 31 of Maharashtra Civil Services (Pension)
Rules, 1982 is also referred to.
15. It is adverted to that government resolution dated 22-11-1993
refers to that period of service in unaided college shall be considered
for pensionary benefits with the services in aided college, however,
such unaided college will have to come on grant in aid basis on the
date of retirement of such employees and, thus, the condition being
not satisfied, petitioners' will not be entitled for computation of their
services in non-aided college.
16. Learned AGP in support of his submissions purports to
refer to decision in the case of Ram Inder Sharma Vs. State of
Maharashtra and others 2017 DGLS (Bom.) 887 which has been in
respect of grant of selection grade to the petitioners wherein the
court appears to have declined to consider the request of the
petitioners.
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17. There is no dispute on that when petitioners were transferred
to another college under the same management, from the one which
had not been receiving grant in aid to the one which had been
receiving, it had been accompanied by last pay certificate by the
Principal of the college of education. Pay scales were being increased
from time to time. Increments were being awarded to the petitioners
from time to time. Petitioners had been receiving such payment from
the government from the date of transfer.
18. There have been many decisions so far as pay scale is
concerned, there can be no distinction between pay scale of
employees working in establishment getting grant in aid and those
which do not.
19. In a group of writ petitions bearing No. 451 of 2017 and others
(Sandeep Babasaheb Chate and Others V/s Shri Vardhaman
Sthanakwasi Jain Shrawak Sangh and Others), a division bench of
this court, under its judgment and order dated 4 th April, 2019
appears to have adverted to that unaided post and aided post is
artificial discrimination. While the State is not in a position to
provide education to all, private schools intervened. The government
has removed word "permanent" from permanently non grant in aid
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basis. Unaided schools are being given grants now.
20. In the present matters, factual position appears to be
that pay scales of petitioner No. 3 have been approved by concerned
authorities as were fixed, long back after their transfer. Same had
been computed for giving other consequential and incidental
benefits, including benefit of ACPS. While it comes to paying them
retiral benefits, recovery is being sought to be made with reference to
government resolution dated 22nd November, 1993, it appears to be
an approach too technical to be approved of in the present cases.
21. We may also have the benefit of a decision of the Supreme
Court in the case of "Secretary, Mahatama Gandhi Mission and
Another V/s Njartiya Kamgar Sena and Others" reported in AIR 2017
Supreme Court 505, wherein the Supreme Court had considered that
pay scales and service conditions of non teaching staff of unaided
colleges have to be in tune with pay scales suggested by 5 th Pay
Commission.
22. In aforesaid decision, it has been observed to the effect that
classification such as aided and non aided will have to pass through
test of equality under Article 14 of the Constitution of India.
Classification must bear a nexus of the object sought to be achieved.
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Court had further observed that one fails to understand rationale
behind classification made by the State of Maharashtra between
aided and unaided colleges. It was observed that there was no
justification in excluding non teaching employees of unaided
educational institution while extending benefits of revised pay scale
to non teaching employees of aided institutions. Such a classification
is violative of Article 14 of the Constitution of India. Observations of
supreme court in aforesaid decision lend lot of substance to
contention of the senior advocate that condition under government
resolution dated 22nd November, 1993 loses out on efficacy in present
scenario.
23. Analogy from decision of the Supreme Court in the case of
"State of Punjab V/s Rafiq Masih (White Washer) etc". reported in
AIR 2015 SC 696 can also be made use of. It is not the case that
petitioners' pay fixation had been illegitimate and that they had
played any role.
24. Having regard to aforesaid, though learned AGP purports to
refer to and rely on a decision in the case of "Ram Inder Sharma V/s
State of Maharashtra and others", reported in 2017 DJLS (Bom.)
887, it does not appear to be a case which would be able to hold
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sway in the emerging position from decisions referred to in foregoing
discussion.
25. It is not the case of the respondents that petitioners were not
being paid pay scales as were applicable to the aided institutions. As
a matter of fact the respondents have not even disputed the same.
In the circumstances, distinction sought to be made of rendition of
service in aided and non aided institutions and the reason underlying
the same has not been explained by any plausible rationale.
Impugned orders tend to be rather too technical, after a long lapse of
time, after approving pay scales and giving all consequential benefits
therefrom. It would not be appropriate at the fag end of service of
the petitioners to pedantically and unreasonably refer to government
resolution of 1993. In the circumstances, impugned orders would not
be said to be sustainable.
26. Having regard to the aforesaid discussion, it does not
appear that the benefit of past service in an unaided establishment
can be declined to be given in the petitioners' case. In the result, the
impugned communications dated 14-06-2018 and 31-03-2019 to the
extent they purport to decline the benefit of the services rendered in
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private unaided college along with a direction to recover the excess
payment are set aside.
27. The proposals sent by petitioners No. 1 and 2 be considered
afresh without getting bogged down by government resolution dated
22nd November, 1993.
28. Rule is made absolute accordingly. Writ Petitions are
disposed of.
[ABHAY AHUJA] [SUNIL P. DESHMUKH]
JUDGE JUDGE
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