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Cites 10 docs - [View All]
Article 14 in The Constitution Of India 1949
Prakash vs State Of Maharashtra on 19 April, 1984
Raskar Vidya Damodar (Mrs.) @ ... vs Maharashtra Arogyamandal And ... on 13 June, 2000
The Chandigarh Administration ... vs Mrs. Rajni Vali And Others on 12 January, 2000
State Of Haryana & Anr vs Ram Chander & Anr on 9 May, 1997
Citedby 3 docs
Mrs. Pushpa G. Naik And Ors. vs State Of Maharashtra And Ors. ... on 6 December, 2004
Full Time Medical Teachers' ... vs The Commissioner, Thane ... on 22 September, 2004
Maharashtra Rajya Prathamik ... vs Kolhapur Municipal Corporation ... on 5 April, 2005

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Bombay High Court
Sunanda Pandharinath Adhav & Ors. vs State Of Maharashtra & Ors. on 17 November, 2000
Equivalent citations: 2001 (1) BomCR 809, (2001) 1 BOMLR 710, 2001 (1) MhLj 167
Author: B H Marlapalle
Bench: B Marlapalle, N Dabholkar

JUDGMENT

B. H. Marlapalle, J.

1. The petitioners are the teachers working in the respondent No. 6 school which is run by the respondent No. 4 society and it is an unaided school. The petitioner No. 1 has already retired from service during pendency of this petition and other petitioners are still in service. They claim that they are entitled for payment of salary as per the Fifth Pay Commission Recommendations with effect from 1st January, 1996. including the other benefits like house rent allowance, dearness allowance etc. and, therefore, they are seeking directions to that effect.

2. Respondent No. 4 has filed return and opposed the petition. It is averred that the respondent No. 4, which is a public trust, registered under the Bombay Public Trusts Act, is running in all 13 schools out of which 11 schools are of Marathi medium and 9 of them are grant-in-aid and remaining 2 are on non-grant basis. The respondent No, 5 is one such English medium school which is being run on non-grant basis. The teachers employed in respondent No, 5 school are paid salary as per the 4th Pay Commission except some arrears by way of interim relief. It is contended that it was aided by the Rahuri Sahakari Sakhar Karkhana in the past and that was the only source of income in addition to the fees charged to the students. Undoubtedly, respondent No. 5 is a residential school and is governed by the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 as well as the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. The Rahuri Sahakari Sakhar Karkhana is not in a position to assist the school any further and, in fact, there have been representations by the members of the said Karkhana to withdraw the financial assistance extended for the respondent No. 5 school. The said Karkhana has already communicated, by letter dated 20th March, 2000 that it has to receive an amount of Rs. 45,25,200/- from the respondent No. 4 society. The contentions of the petitioners that the respondent No. 4 trust is financially sound have been denied and it has been stated that the principle of equal pay for equal work is not applicable in the instant case,

3. During the course of hearing we made it clear to the petitioners that their prayer to direct the respondent Nos. 4 and 5 to transfer them from the unaided school to the aided schools run by the respondent No. 4 society cannot be considered by this Court in a writ petition under Article 226 of the Constitution and when the petitioners have been working for the last more than 15 to 20 years continuously in respondent No. 5 school, they were aware that they have been employed in a school which is unaided and they would be entitled for the benefits as are applicable to the teachers in such unaided schools as per the Government rules and regulations. It was under these circumstances that we have considered the petition only in respect of the prayer for directions to extend to them the benefits of the Fifth Pay Commission Recommendations which have been made applicable by the Government of Maharashtra to all the teachers working in private schools as well (whether aided or unaided) with effect from 1st January, 1996.

4. In support of their contentions the petitioners have relied upon a judgment of this Court in the case of Raskar Vidya Damodar v. Maharashtra Arogyamandal and others. and also in the case of Prakash Pandharinath Korde v. State of Maharashtra and others., In both these judgments one of us (Marlapalle, J.) was one of the members of the Bench. Shri Dhorde the learned Counsel on the other hand has relied upon the judgments of the Supreme Court in the case of State of Haryana and another v. Ram Chander and another, and in the case of Polychem Ltd. and another v. State of Maharashtra and others, and submitted that even if it is accepted that the principle of equal pay for equal work is applicable to the petitioners, in any case, they cannot be given the benefits of Fifth Pay Commission Recommendations with effect from 1st of January, 1996 and instead such benefits can be made applicable to them only with effect from the date the Government of Maharashtra issued the Government Resolution making the 5th Pay Commission Recommendations applicable to the teachers in private schools.

5. It appears that the Education Officer, vide his letter dated 3rd August, 2000 addressed to the respondent No. 4 society directed the payment of salary as per the 5th Pay Commission Recommendations to all the teachers employed by it and we are informed that as a result of this direction the petitioners have been paid salary as per the Fourth Pay Commission Recommendations from August, 1998. However, it is contended by the petitioners that the difference in dearness allowance and other allowances has not been paid though the salary has been paid with effect from 1st August, 1998 as the IVth Pay Commission Recommendations and these arrears are also required to be paid by the management.

6. It is contended by Shri Dhorde that the respondent No. 4 being a private trust, which is being run on the assistance by the Rahuri Sahakari Sakhar Karkhana and it has no other source of income for management of respondent No. 5 school other than the financial assistant from the said Karkhana and the fees, the principles laid down by the Supreme Court in the case of Polychem Ltd. (supra) must be made applicable inasmuch the Government cannot recover the difference in salary or give such directions for payment of difference in arrears with retrospective effect and such directions must be always treated to be prospective in nature.

7. So far as applicability of the principles of equal pay for equal work is concerned, the law is well settled and we may usefully refer to the judgment of the Supreme Court in the case of Chandigarh Administration and others v. Mrs. Rajni Vali and others,. The management of the said school was running 11th and 12th classes as per the permission granted by the Competent Authority on no grant basis but at the same time it was running its school upto 10th Standard as an aided school. For the newly started additional classes i.e. 11th and 12th it had engaged additional teachers but could not give them the salary at the prescribed rate for the teachers engaged in Higher Secondary School and on par with the teachers engaged in grant-in-aid school. The principles of parity of pay was denied on the ground that it had financial difficulties. The Supreme Court held that the difficulty of additional financial burden faced by the management cannot be a reason to deny the parity in salary. It referred to its earlier decisions in the case of Haryana State Adhyapak Sangh and others etc. v. State of Haryana and others. Haryana State Adhyapak Sangh and others v. State of Haryana and others,2 and Slate of Haryana and others v. Ram Chander and another, and observed, as under:

"Tested on the touch stone of the principles laid down in the aforementioned decisions, the position is manifest that there is no justification for denying the claim of the respondents for parity of pay scale and to accept the contention of the appellants will amount to confirming the discriminatory treatment against the respondents....."

8. In view of the catena of decisions as handed down by the Supreme Court, it is clear that the principle of "equal pay for equal work" is applicable to the teachers employed in private schools which are run as unaided schools and the parity in pay scales has to be maintained between the teachers engaged in unaided schools and aided schools. We, therefore, hold that the petitioners are entitled for the benefit of the 5th Pay Commission Recommendations as are applicable to their counterparts employed under respondent No. 4 society in its aided schools.

9. The only question that remains to be considered is from what date these benefits should be extended to the petitioners. It is evident that the Government of Maharashtra for the first time, vide Government Resolution dated 13th May, 1999 extended the benefits of the 5th Pay Commission Recommendations to the teachers' and non-teaching staff in primary, secondary and higher secondary schools run by private institutions and stated in para 3 of the said Government Resolution, as under :

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10. To the case of Swaminarayan Education Trust. Ahmedabad and etc. etc. v. State of Gujarat and others, a Division Bench of the Gujarat High Court inter alia held that (i) the Government Resolution revising the pay scales of teachers in aided schools are applicable to the teachers in unaided schools as well; (ii) such payment is a statutory obligation of the management and the teachers concerned have a right to get it enforced and (iii) such resolutions regarding revision in pay scales cannot be made applicable retrospectively to unaided private schools and the decision to make them retrospectively applicable would be unreasonable and violative of Article 14 of the Constitution. Para 23A of the said judgment more particularly reads, as under :

"23A. .. ... When the liability for the past period is sought to be fastened on them, they have no opportunity to get the amount recovered by raising tuition fees or by raising funds by adopting another legitimate means. As far as the raising of tuition fees is concerned, it is subject to restrictions under the Act and the Rules. It is not pointed out that it was open to the school management to raise tuition fees to meet with the increased financial liability for the retrospective period. Even if it is assumed that such permission were granted, it would be impossible to recover increased amount of the fees from the pupils, some of whom might have left the school. At any rate when the school management is deprived of any opportunity to get the amount of difference in salary payable to the teachers obtained or recovered from any legitimate source, the direction contained in the resolution for actual payment of salary to the teachers at the revised pay-scale with retrospective effect ... ... ... is unreasonable and arbitrary and. therefore, it is required to be held to be violative of Article 14 of the Constitution of India ..... "

In the State of Maharashtra the private unaided schools do not have the freedom to enhance the tuition fees chargeable to the students and they have to approach the State Government making out a specific case for revision. It is only the State Government who has the powers to finally fix the tuition fees in such schools as well. The private managements are, thus, at the mercy of the State Government for enhancement of tuition fees as well as its effective date. The decision of the Gujarat High Court is, thus, squarely applicable to the case at hand inasmuch as the management has no freedom to increase the fees and even if the fees is allowed to be increased by the State Government there is no possibility that its retrospective effect could be entertained.

11. In the case of Polychem Ltd. (supra) the question before the Supreme Court for consideration was regarding recovery of supervision charges from the alcohol manufacturers under the Bombay Prohibition Act, 1949 retrospectively and it was held that the recovery of revised supervision charges cannot be made retrospectively. Though this judgment would not be directly applicable to the instant case, the learned Counsel for the respondent management relied upon the said decision to enlarge the concept of a bar on revision of salary retrospectively when the burden has to be borne by the management and the salary is not paid from the State exchequer.

12. In the case of State of U.P. and another v. U.P. Polytechnic Diploma Shikshak Sanstha and another, a similar question has been recently considered by the Apex Court. The Association of Assistant Teachers in various Government aided Polytechnic in Uttar Pradesh were demanding pay scales on par with the Assistant Lecturers of Government Polytechnics and in the selection grade. The prayer was granted by the High Court with effect from the date when the Assistant Lecturers in Government Polytechnics were granted pay scale and selection grade. At the first instance the Supreme Court held that the Assistant Lecturers in Government aided Polytechnics will be entitled to the same scale as granted to the Assistant Teachers in Government Polytechnic and on the second point regarding the date of its applicability, the order passed by the High Court came to be modified with a direction that the scales and selection grade would be granted to the writ petitioners not from the date as directed by the High Court but from the date on which the Civil Miscellaneous Writ Petition No. 36338 of 1998 was filed by the writ petitioners. This shows that the claim for revision in salary was accepted but not retrospectively and it was directed to be implemented from the date the petitioners had approached the High Court.

13. The respondent Nos. 4 to 6 in their affidavit in reply have elaborately set out the financial difficulties and more particularly in respect of the management of the unaided English Schools where the petitioners are employed. It has been contended that the trust has to pay a large amount to the tune of Rs. 60 Lakhs towards loan repayment to the nationalised banks and the Rahuri Sahakari Sakhar Karkhana Limited, which was hitherto extending financial assistance to it by deducting certain amount from the sugar cane supplier's payments, has its heavy obligation to pay a huge amount of Rs. 67 Crores and, therefore, it is not in a position to extend the financial assistance to the trust any more. In addition, from the sugar season of 1997-1998 onwards the members of the Rahuri Sahakari Sakhar Karkhana have stopped deductions from the payment of cane price towards the financial assistance to the trust. Though the petitioners have disputed the financial crists that is being faced by the trust as well as the Rahuri Sahakari Sakhar Karkhana Limited, it cannot be denied that the trust has to generate income to run the concerned school on its own and, by legitimate means like revision of fees, donations from members/well wishers etc. Under these circumstances, the plea of the management, not to make the Fifth Pay Commission Recommendations effective from 1st January, 1996 deserves to be considered favourably and the judgment of the Gujarat High Court in the case of Swaminarayan Education Trust (supra) and the judgment of the Supreme Court in the case of State of U.P. and another a. U.P. Polytechnic (supra) certainly uphold the plea of the respondent management.

14. We, therefore, allow the petition partly in terms of the following order : -

(i) The petitioners are entitled for the benefits of the 5th Pay Commission Recommendations on par with the teachers employed in private aided secondary and higher secondary schools.

(ii) Such pay scales and all other benefits, pursuant to the 5th Pay Commission Recommendations shall be payable to the petitioners with effect from 1st May. 1999.

(iii) In case any teacher has retired during the pendency of this petition, the pay scale of such teacher shall be revised as on 1st May, 1999 and the salary for the purpose of retiral benefits shall be fixed accordingly.

(iv) The arrears, if any, on account of dearness allowance or other allowances with effect from 1st May, 1999 as well as the arrears in salary and/or the allowances payable under the 4th Pay Commission Recommendations shall be paid to the petitioners within a period of three months from today.

15. Rule made partly absolute in terms of the above order, Costs in cause.