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5. The Municipal Secondary Schools are governed by the Secondary School Code issued by the Government of Maharashtra. Therefore, the Municipal Secondary Schools formed are separate and so also the employees of those schools are governed by the Secondary School Code. The service conditions of the Municipal Corporation would apply only to the extent set out in the Code, It has been pointed out that the Municipal Corporation started to run the secondary schools in 1965. Initially, the non-teaching staff in the said schools was drawn from the other Departments. In 1972 the State Government commenced giving grant to those secondary schools. So with effect from 1972 all the new recruitments of non-teaching staff of secondary schools was made in accordance with the Secondary School Code. The members of the petitioner No. 1 are all employed after 1972 and they have accepted the appointments. The appointment order itself mentions the scale prescribed as per the Secondary School Code. It is also mentioned therein that they shall be governed by the Secondary Grant-in-aid Code. They have accepted the appointment letters and the conditions of service. Therefore, they are estopped from contending that the said Secondary School Code is not applicable to them. It is denied that they have no choice. It is pointed out that from day one they are treated as falling in different cadre.

10. The hierarchy of promotion in the municipal secondary schools is Junior Clerk, Senior Clerk, Head Clerk and Office Superintendent. It is pointed out that the Rules of Recruitment and methods of promotion are different for the clerical staff of the Corporation, Corporation's primary section and those in the municipal secondary schools. The clerks are first appointed as Apprentice Clerks and then promoted as Clerks in the primary section. The clerks in the primary section are required to pass S.S.C. Examination with English and they have also to pass promotion tests conducted by the Corporation. For every promotion, departmental examination is provided. Similarly, Recruitment Rules prescribed that Library Clerks shall be appointed by direct recruitment who possess qualification of S.S.C. and Diploma in Library Science. The post of Librarian is filled from qualified library clerks or direct recruitment. Post of Head Clerk is filled in by promotion from the Clerks who have passed departmental examination for Head Clerk. Once in 1986 an exception was made. Similarly, the post of Office Superintendent is filled in by way of departmental promotion. There are separate and distinct Recruitment Rules for clerical and supervisory cadre in the Corporation. They apply to those who are working in the primary section. There is no such promotion to the post of Senior Clerk, Head Clerk or Office Superintendent in the municipal secondary schools. Promotion takes place only on the basis of seniority-cum-merit and it is as per the provisions of Secondary School Code framed by the Government of Maharashtra. It is pointed out that an attempt was made by the Municipal Corporation to introduce departmental test for the post of Head Clerk and Office Superintendent in the Municipal Secondary Schools. But this was resisted by those employees and they had boycotted the examination. In 1983 the Municipal Corporation took a decision to prescribe written departmental test for promotion to the post of Head Clerk and Office Superintendent and it was because of the Government letter dated 29-9-1978 (Exh. "C" to the Petition). The Government gave No-objection for it and accordingly, the test was held for the post of Head Clerk in October 1983, but all those working in secondary school failed. Once again it was held in 1988 after giving sufficient time, but it came to be boycotted by the non-teaching staff of the Municipal Secondary Schools. The Union itself requested that the written test be dispensed with in respect of those employees. Therefore, they have themselves accepted it that the Municipal Secondary Schools are separate and distinct cadre having its own hierarchy, promotion avenues and mode of promotion. It is denied that appointments are made from joint selection list. It is stated that recruitment rules and channel of promotion are different.

17. We find that even on merits there is no substance in this petition. It is not possible to hold that non-teaching staff in the secondary schools is given any discriminatory treatment by the Corporation on the principle of equal pay for equal work is attracted here. It is clear that from day one they are treated as forming a separate cadre. It is clear that primary schools were in existence for nearly a century. This was a part of the mandatory duty imposed upon the Municipal Corporation under Section 61 (q) of the B.M.C. Act. It has undertaken the discretionary work of running the secondary schools in 1965 provided under Section 63(b), Initially, the non-teaching staff was taken from various departments of the Corporation. In 1972 the State Government started giving 100% aid for running those schools and the staff members came to be recruited. The appointment order, which is annexed at Exhibit "A", itself makes it very clear that their service conditions are to be governed by the Secondary School Code. Each one of them has unhesitatingly accepted it. It is also clear that the non-teaching clerical staff working in the primary section is not attached to the said school. It comes from the common pool and hence, transferable to other departments. However, the clerical staff working in the municipal secondary schools is attached to it. In the case of Librarian, there can be no such transferability at all as it requires the special qualification of Library Diploma. It has not been pointed out that the work carried out by the clerical staff or the non-teaching staff employed in the municipal secondary schools is the same as that of the municipal primary schools. Only an attempt is made to point out what they are required to do and even it is clause No. 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981 Schedule I framed under Rule 22(1). These duties are required to be performed by all the clerical staff employed in the private secondary schools. Further, what is the work done by the clerical staff in the primary schools is not even pointed out. The broad category may be of a clerk or a Librarian, but that cannot help the petitioner to contend that the non-teaching staff of the municipal secondary school was discriminated as they are carrying on same work. Further, except the bare assertion that their responsibilities are the same, there is nothing to point out the same or to establish it. It is also not pointed out that the qualifications, which are required for both are the same. Merely because disciplinary action is taken against such non-teaching staff employed in the municipal secondary school of the Corporation under the Corporation Rules and not under the Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981, does not mean that they are entitled for getting the pay-scales and all other benefits as per the other employees. In fact, the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act by Section 2(20) makes it clear that a School run by the Government or the Local Authority is not covered under the Act. The Secondary School Code also makes no specific provision about it. Therefore, the Municipal Corporation has adopted the said procedure and we find nothing wrong in it or can give any handle to the petitioners to claim equality.

In our opinion, this is on all fours in the present case. The non-teaching staff working in the municipal secondary schools are governed by the Secondary Schools Code. From day one they have been treated separately in case of pay-scales, recruitment, channel and method of promotion etc. They are given the pay-scales and other benefits as payable in case of other private secondary schools, recognized and aided by the Government. The non-teaching staff has accepted the 5th Pay Commission pay-scales as adopted by the State. Therefore, they form a distinct class along with such teachers and cannot be equated with the non-teaching staff in the primary schools of the Corporation or other departmental employees.