High Court
Legal Reasoning
{1} wp 12373.2017 R.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 12373 OF 20171]Namod S/O. Chandrabhan DahiwaleAge 46 years, Occ. Service.2]Vijay s/o. Paulus BhosaleAge 39 years, Occ. Service,3] Sharad s/o. Dada SalveAge 45 years, Occ. Service,4]Ajay s/o. Paulus BhosaleAge 42 years, Occ. Service,5]Smt. Rekha d/o. Murlidhar Salve,Age 36 years, Occ. Service.… Petitioners.6]Laxman s/o. Madhukar Sonawane,Age 32 years, Occ. Service.Petitioner No.6 is deleted as per order dated 2.7.2019passed by this Honourable Court in CA No. 5103 of 2019VERSUS1]The State of Maharashtrathrough its Secretary,School Education Department,Mantralaya, Mumbai-32.2]The Education Officer (Secondary)Zilla Parishad, Beed.3]Vidyabhavan Trust, 2718,Jalna Road, Beed – 431 122.through its President/Secretary.
Legal Reasoning
{2} wp 12373.2017 R.odt4]The Head Master,St. Xavier’s High School, TakadgaonRoad, Georai, Tq. Georai, Dist. Beed... Respondents.Mr. Vijay A. Dhakne, Advocate for the petitioners.Mr. N.S. Tekale, AGP for respondent Nos. 1 and 2.Dr. R.J. Godbole, Advocate for respondent Nos. 3 and 4. CORAM : SMT. VIBHA KANKANWADI & S.G. CHAPALGAONKAR, JJ. RESERVED ON : 27TH FEBRUARY, 2024. PROUONUCED ON : 15TH MARCH, 2024.JUDGMENT [S.G. CHAPALGAONKAR, J.]. :-1.Heard. Rule. Rule made returnable forthwith. Heard finallyby consent of learned advocate for the respective parties.2.The petitioners have approached this Court under Article226 of the Constitution of India with following prayers :-[B]By issuing writ of mandamus or any otherappropriate writ, order of direction as the case may be, therespondent No.2 Education Officer may kindly be directed topay and release the due salaries and allowances of thepetitioners admissible to the post of assistant teachers sinceSeptember, 2016.[C]By issuing writ of mandamus or any otherappropriate writ, order or direction as the case, therespondent Nos. 3 and 4 may kindly be directed to pay thearrears of the salaries and allowances admissible for the postof assistant teachers to the petitioners since their initialappointments with all consequential benefits.3.Mr. V.A. Dhakne, learned advocate appearing for the {3} wp 12373.2017 R.odtpetitioners submits that the petitioners are employees of respondent No.3and discharging duties as Assistant Teachers in St. Xavier’s High School,Takadgaon Road, Georao, District Beed. They have been appointedduring the period from 2006 to 2019 by following due process of lawagainst sanctioned un-aided posts on probation. Their services wereapproved by the Education Officer in the year 2012 in the pay Scale ofRs. 9,300 – 34800 or Rs. 5,200 – 20,200. On completion of initialprobation period, the petitioners have been confirmed in the services interms of Section 5(3) of the Maharashtra Employees of Private Schools(Conditions of Service Regulation) Act (Hereinafter, “the MEPS Act” forsake of brevity). The Education Officer has accorded permanentapproval to petitioner Nos. 1 to 4 as Assistant Teachers in the pay scale ofRs. 9,300 – 34,800 and petitioner Nos. 5 and 6 as Assistant Teahers in thepay Scale of Rs. 5,200 – 20,200 on un-aided basis. The petitioners havecontinuously discharged their duties as Assistant Teachers. However, themanagement failed to pay salaries to them as per the pay scalesprescribed since the date of their appointments. Since 2016, the school isreceiving grant in aid from the State Government. The salary bills havebeen submitted by the Head Master to the office of respondent No.2.However, no action is taken to release the salaries. According to thepetitioners. The respondents are under statutory obligation to pay thesalary to the teachers as per the prescribed pay scales in terms of Rule (7)and Schedule “C” of the MEPS Rules, 1981. He would further submitthat although the respondent No.3 has received minority status, it owesobligation to pay the salary in terms of prescribed the pay scales. Herelies upon the following judgments :-1] Manojkumar Amare Vs. State of Maharashtra 2020 (1) Mh.L.J. 7422] Sushila Bhikaji Savant Vs. State of Maharashtra 2006(2) Mh.L.J. 841 {4} wp 12373.2017 R.odt3] Vaishali V. Chandekar and others Vs. State of Maharashtra 1998(1)Bom.C.R. 2274] Perwez Khajuddin Kalal Vs. State of Maharashtra 2008(5) Mh.L.J. 5235] Anil Govindrao Kale Vs. State of Maharashtra 2018(7) All M.R. 5226] Shri Anandi Mukta Sadguru Shree Muktajee Trust and others Vs. V.R.Rudani and others, AIR 1989 SC 1607(1).Relying upon aforesaid judgments, he submits that sincerespondents are under statutory obligation to release the salary as perthe pay scales prescribed, on their failure to discharge obligation, thedirections can be issued in exercise of writ jurisdiction under Article 226of the Constitution of India.4.Per contra, Dr. Rajendra Godbole, learned advocate forrespondent Nos. 3 and 4 vehemently submits that claim of the petitionersto the extent of back wages/salary from the date of their initialappointment is hopelessly barred by limitation. The petitioners havewaived their right to receive salaries as per the prescribed pay scales bytendering affidavits. They are estopped from raising such claiminconsistent to affidavits in the form of undertaking given to the schoolmanagement. He would further submit that there are disputed questionsof facts, the adjudication of which is not possible in writ jurisdiction ofthis Court. The petitioners have failed to make any representation beforeinvoking the writ jurisdiction of this Court. Particularly, for seekingissuance of writ of Mandamus, prior representation in sine-qua-non. Thepetition is, therefore not maintainable. The respondent No.3 being aminority educational institution, has every right to prescribe its own payscales and exercise its choices in the matter of management of the school.He would, therefore, urge to dismiss the writ petition. He relies upon theobservations of the Supreme Court of India in the matter of GeneralManager, Sri Siddheshwara Cooperative Bank Ltd. and another vs. Ikbal {5} wp 12373.2017 R.odtand others (2013) 10 SCC 83, to contend that statutory benefit canalways be waived by a party, for whose benefit such provision has beenmade. The petitioners have lawfully waived their right to receive salaryas prescribed, by tendering affidavits to management. The copies areplaced on record of this Court. He would also rely upon anotherjudgment in the case of Lachoo Mal vs. Radhye Shyam AIR 1971 SC2213 and Vasu P. Shetty Vs. Hotel Vandana Palace and others (2014) 5SCC 660. 5.Learned AGP, relying upon the affidavits filed on behalf ofrespondent No.2 submits that the salary bills submitted by themanagement have been processed and the amount as admissible hasbeen disbursed. Now petitioners are receiving regular salary.6.Having regard to the submissions advanced, it is apparentthat there is no dispute as regards to the appointment of the petitionerwith respondent No.4 school and fact that they are discharging theirduties as Assistant Teaches. The evidence on record clearly depicts thatthe petitioners appointments were made by following due process of law.The Education Officer accorded approval of petitioner Nos. 1 to 4 in thepay scale of Rs. 9,300 – 34800 and petitioner Nos. 5 and 6 in the payscale of Rs. 5,200 – 20,200 . On successful completion of probationperiod, the petitioner’s services are confirmed and permanent approvalsare accorded in respective pay scales. Eventually, there can not be anydispute that the petitioners are entitled for receiving the salary as pertheir appointment as Assistant Teachers. Perusal of the approvalsgranted by the Education Officer clearly depicts the pay scales applicable,and entitlement to receive the salary as per the prescribed pay scales. {6} wp 12373.2017 R.odt7.Respondent Nos. 3 and 4 by filing affidavits in replycontends that the petitioners have waived their right to receive salary asper the pay scales. Our attention is invited to the affidavits dated14.12.2013 executed by the petitioners in favour of the Secretary of therespondent Trust, wherein, they have stated that in case the schoolreceives grant-in-aid, they shall be satisfied with the amount of grant inaid receivable to the school and they shall not raise any claim for releaseof salary in terms of pay prescribed by Sixth Pay Commission. Perusal ofwordings in the affidavit, nowhere suggest that the petitioners waivedtheir right to receive salary as prescribed. What is discernible from theaforesaid affidavit is that, they have simply agreed to receive amount tothe extent of grant in aid receivable to school and they shall not claimsalary in terms of Sixth Pay Commission.8.Petitioners have not controverted the contentions in theaffidavit in reply that undertaking in the form of affidavit submitted bythem. However, as observed, waiver of right to receive salary in terms ofthe statutory right is not discernible from the contents of the affidavits.We are, therefore, of the considered view that the petitioners have notvoluntarily waived right to receive salary. The Supreme Court of India inthe case of Secretary, Mahatma Gandhi Mission Vs. Bhartiya KamgarSena (2017) 4 SCC 449, observed that “even un-aided private secondaryschools do not claim exclusion from the implementation of the PayCommission Reports. The Government Resolutions issued by the State ofMaharashtra prescribes that all the schools should implement 6th PayCommission Report and pay salary to the staff alongwith difference insalary payable to them from January, 2006. It is further observed that {7} wp 12373.2017 R.odtthe administrative instructions issued by the State in exercise of powerunder Article 162 of the Constitution of India are binding andenforceable. Therefore, the petitioners are entitled for the pay as per thepay scales prescribed in the respective Pay Commission Reports asaccepted by the State of Maharashtra in Government Resolution issuedfor that purpose.9.The aforesaid position of law is reiterated in variousjudgments, referred by the learned advocate for the petitioners. So faras the contention raised on behalf of the respondents that the petitionersare seeking a writ of mandamus and they had not represented themanagement in this regard, we find that the petitioners have made suchrepresentations dated 5.4.2017 and 27.7.2017, which are placed at Exh.E alongwith the petition. Therefore, the technical objection raised onbehalf of the respondents deserves to be rejected.10.So far as the submission that the claim of the petitioners isbarred by limitation, we are in agreement with the learned advocate forthe respondents to certain extent. Although petitioners have madeomnibus prayer, seeking direction against respondent Nos. 3 and 4 torelease the arrears of salaries as admissible, from the date of their initialappointments, it is trite that such claim can be considered only for theperiod of 3 years preceding the date of filing of the writ petition. We are,therefore, inclined to partly allow the writ petition and direct therespondent Nos. 3 and 4 to release the salary as admissible to the post ofpetitioners i.e. Assistant Teachers as per the pay scales prescribed for theperiod of 36 months (3 years) preceding the date of filing of the writpetition i.e. 12.09.2017. Hence, we pass the following order :- {8} wp 12373.2017 R.odtO R D E R [a]Writ petition is partly allowed;[b]The respondent Nos. 3 and 4 shall pay salary to the petitioners as per the pay scales applicable to Assistant Teachers as admissible in terms of respective Pay Commissions (6th and 7th) for the relevant period, within a period of three months from the date of this order alongwith interest @ 6% p.a.[c]Rule made absolute in above terms.[S.G. CHAPALGAONKAR, J] [ SMT. VIBHA KANKANWADI, J] grt/-