Bombay High Court
Raskar Vidya Damodar (Mrs.) @ Bhujbal ... vs Maharashtra Arogyamandal And Ors. on 13 June, 2000
Equivalent citations: 2001(2)BOMCR284
Author: B.H. Marlapalle
Bench: A.P. Shah, B.H. Marlapalle
JUDGMENT B.H. Marlapalle, J.
1. Heard Mr. Langote, learned Counsel for the petitioner, Mr. Divekar, learned Counsel for respondent Nos. 1 and 2 as well as the learned A.G.P. for respondents Nos. 4 to 6. Leave to delete respondent No. 3 granted. Amendment to be carried out forthwith.
2. Rule, learned Counsel for respondents waive service. Petitions taken up for final hearing forthwith by consent of the parties.
3. The petitioner holds the qualification of Master of Science with as additional Degree of Bachelor of Education. He belongs to the Other Backward Categories and is qualified to be appointed as trained teacher in a Secondary School. The respondent No. 1 Society is running a Secondary School at Taravade Wasti in Hadapsar which is a suburb of Pune City. It is a private recognized school and it runs classes from 5th to 10th standards. For the academic year 1998-99 the Government had accorded sanction as a fully aided school.
4. The petitioner came to be appointed as an Assistant Teacher from 8th July, 1996 in the Madhyamik Vidyalaya at Hadapsar. The respondent No. 1 runs two other schools by name Sane Guruji Primary School at Malwadi and Sane Guruji Secondary School at Hadapsar. All the Schools are aided schools. It appears that respondent No. 3 also came to be appointed as an Assistant Teacher on 9th July, 1996 i.e. one day later than the petitioner. In view of the increased strength of student the School had started some additional divisions and hence the requirement of additional teacher. The said additional divisions were initially not recognized and were subsequently recognized from the Academic Year 1998-1999. The petitioner alleges that the respondent No. 3 was not only shown senior to her but when the additional divisions were recognized by the Competent Authority, the name of the petitioner was not processed for approval and instead the name of respondent No. 3 was recommended by the respondent No. 1. In addition the petitioner alleged that she was not paid her monthly salary as per the prescribed pay scale as applicable to trained Assistant Teacher in the secondary School as set out in the Maharashtra Employees of Private Schools Conditions of Service) Rules, 1981. She contended that she made various representations to the respondent No. 1 Management as well as the Education Officer and finally her seniority was properly shown above respondent No. 3 but she was not given the prescribed pay scale and in fact she was given a consolidated monthly salary. The petitioner has therefore sought direction from this Court against the respondent No. 1 for payment of salary as per the scale prescribed under the Maharashtra Employees of Private School (Conditions of Service) Rules, 1981 right from the day she has joined.
5. The respondent No. 1 Management has filed an affidavit in reply and opposed the petition. It has been contended that the petitioner had approached the management for appointment as an Assistant Teacher and she had agreed work on honorary basis till such time that the additional divisions were recognized by the Government as grant-in-aid. It is further contended that towards the end of October, 1996 the petitioner was informed that her services were not required from November, 1996 onwards and therefore she approached the Management with an undertaking that she would not ask for salary as per the prescribed scales provided she was given an opportunity to work as an Assistant Teacher till such time the additional divisions were recognized. The Management concedes that no formal appointment letter was given to the petitioner and she was paid salary at the rate of Rs. 1,250/- per month from the month of October, 1997 to May, 1998. Her salary was raised to Rs. 1,350/- per month for the period from June, 1990 to May, 1999 and here was a further revision to fix the salary at Rs. 1,485/- per month for the period from June 1999 to May 2000. The Management has disowned its ability to pay the arrears in salary on the basis of the prescribed pay scale as applicable to the Assistant Teacher in a Secondary School on the ground that the petitioner had forfeited her claim voluntarily by agreeing to work on honorary basis. At the same time, the Management had admitted that the name of respondent No. 3 was submitted to the Education Officer for approval in place of the name of the petitioner when the additional divisions were sanctioned for grant-in-aid.
6. Learned Counsel for the petitioner has relied upon the judgments of the Supreme Court in the case of Shri Anandi Mukta Sadguru Shree Muktajee Vandasji Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R. Rudani and others, and in the case of Frank Anthony Public School Employees' Association v. Union of India and others, , in support of his contentions that a writ of mandamus can be issued by this Court under Article 226 of the Constitution of India against a private educational institution regarding payment of salary and other benefits to the teachers and there has to be a parity of pay scales between the teacher working in aided schools and unaided schools run by the private managements.
7. The only ground taken by the respondent No. 1 Management to oppose the petitioner's claim for payment of salary at the prescribed scale is that the petitioner was employed as an additional teacher for unaided additional divisions and it was not reimbursable from the State Government. In addition the management had no resources to bear the burden of salary payment at the prescribed scale and it would be therefore unjust and unreasonable to direct the Management to bear such a financial burden urged, the learned Counsel for the Management.
8. It is a well settled position in law by now that there has to be a parity of pay scales, between the teachers of private schools which are aided as well as unaided. Similarly, there has to be a parity of pay scales between the teachers in private aided schools and schools run by the State Government or by the local authorities like the Zilla Parishads and Municipalities. 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, 1981 and which are being made applicable to the teachers in aided private schools. This position in law has been well settled by a Judgment of the Supreme Court in the case of K. Krishnamacharyulu and others v. Sri Venkateswara Hindu College of Engineering and another, 1997(I) C.L.R. 1133. We may also in this regard refer to another Judgment of the Supreme Court in the case of Chandigarh Administration and others v. Rajani Vali and others, . In the said case the teacher came to be employed in a private school which was recognized and receiving grant-in-aid. However, it was contended that she was employed to teach the XI and XII Standards, which were unaided, though these classes were opened after the competent authority having granted permission. It was also contended that the additional staff required for these classes was not entitled to demand the pay scale on par with their counterparts in other aided institutions. The Supreme Court in para 9 of its Judgment observed as under :--
"Tested on the touch stone on the principles laid down in the aforementioned decision, the position is manifest that there is no justification for denying the claim of the respondent for parity of pay scale and to accept the contention of the appellants will amount to confirming discriminatory treatment against the respondent. Therefore, the High Court rightly rejected the case of the appellants. The directions issued in the impugned judgment to pay the respondents Nos. 1 to 4 the same salary as being paid to their counter parts in the privately Management Government aided schools in Chandigarh in the circumstances is unassailable."
9. The claim of the petitioner, therefore, cannot be defeated on the contentions of the Management and the said contentions create no hurdle whatsoever in the way of the petitioner to receive salary as per the pay scale prescribed and applicable for trained secondary school teachers in Government aided private schools. The petitioner has given the details of arrears on the basis of the prescribed pay scales. It will be for the respondent No. 1 to calculate the payment and we need not dwell upon the veracity of the said calculations at this stage.
10. In the result, we allow the petition and direct the respondent Nos. 1 and 2 to pay the petitioners arrears in salary as per the scales granted by the State Government and as made applicable from time to time to the trained Assistant Teachers in private aided schools from the date of her initial appointment till today and to continue to pay her salary as per the said scales. The respondents Nos. 1 and 2 shall pay the arrears of salary to the petitioner within a period of three months from today.
Insofar as the prayer for seniority is concerned, the same is required to be agitated before the Education Officer (Secondary) as required under Rule 12 of the Maharashtra Employees to Private Schools (Conditions of Service) Rules, 1981 and we therefore direct the Education Officer to consider the said claim on its own merits on the basis of the representation to be filed by the petitioner within two weeks from today. The Education Officer shall ad judicate within a period of three months from the submission of the representation by the petitioner after hearing all the parties concerned.
11. Rule made absolute accordingly with no order as to costs.
12. Certified copy expedited.
13. P.A. to give ordinary copy of this order to the parties concerned.
14. All authorities concerned to act on the ordinary copy of this order duly authenticated by the Sheristedar of this Court.
Rule made absolute.