2008(4) ALL MR 566
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

S.B. MHASE AND S.S. SHINDE, JJ.

Mr. Perwez Khajuddin Kalal Vs. State Of Maharashtra & Ors.

Writ Petition No. 7685 of 2007

15th April, 2008

Petitioner Counsel: Mr. A. M. JOSHI
Respondent Counsel: Mr. C. R. SONAWANE,Mr. HARSHAD BHADBHADE

Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act (1977), S.1 - Scope and applicability of the Act - Unaided School - Held, provisions of M.E.P.S. Act and Rules are applicable even in the case of unaided school. (Para 9)

JUDGMENT

S. S. SHINDE, J.:- Rule. Rule made returnable forthwith and heard by consent of the parties.

2. By way of this petition, the petitioner seeks directions to the respondents, particularly Respondent Nos.4 and 5, to pay the petitioner's difference in salary as per the particulars given by the petitioner at Exhibit-F to the petition.

3. The brief facts, as narrated in the petition, are as under :-

The petitioner was appointed as a teacher in Respondent No.4 Institution with effect from 1st July, 2002. The petitioner was not issued any appointment letter. The petitioner applied to the said post pursuant to the advertisement given by the Management in Daily 'Sagar' on 6.5.2002. The appointment of the petitioner was pursuant to the advertisement given by the Management on 6.5.2002. The petitioner was working in a Junior College on non grant aid basis, however, recognized by the Government. The petitioner was assured to pay salary as per the scale prescribed by the Government. In fact, the petitioner was paid advance towards the salary starting from Rs.2,700/- in July, 2002 which was increased up to approximately Rs.5,000/- during the course of three years service rendered by the petitioner.

4. In the year 2005 the petitioner was told by the Management that his service will be approved as a Shikshan Sevak which meant that he will be paid salary for the period of three years at the rate of Rs.4,000-4,500 and 5,000 for the period of further three years. The petitioner gave a notice to the Secretary of the School Management, through his advocate, for payment of full salary since his service as a regular teacher was approved by the authorities. The said notice was given on 15.10.2005.

5. The petitioner realised that though he was appointed pursuant to the advertisement given by the Respondent-Management and his services were approved by the authorities, he is not likely to get his salary according to the pay scale prescribed by the Government. Therefore, he left the service of Respondent No.4 - Institution on 4.8.2006.

6. The main grievance of the petitioner is that though he was an approved teacher, his salary, as prescribed under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules thereunder, from the date of his initial appointment with Respondent No.4-Institution i.e. from 1st July, 2002 till 4.8.2006 is not paid. He was paid some amount as an advance. It is the case of the petitioner that he was paid only Rs.2,700/- in the year 2002 and thereafter his salary was increased to Rs.5,000/- till he left the services of Respondent No.4-Institution. According to the petitioner, the pay scale prescribed under the M.E.P.S. Act and Rules is almost Rs.14,000/- to Rs.15,000/-. The petitioner has annexed a Chart showing difference in salary payable to the petitioner. It is the case of the petitioner that though the Director of Education directed the Education Officer, Sangali, no action has been taken on the representation made by the petitioner in respect of the difference of salary to be paid to him by Respondent No.4 - Institution.

7. Respondent Nos.4 and 5 have filed their affidavit-in-reply and opposed the claim of the petitioner. It is contended by the learned counsel appearing for Respondent Nos.4 and 5 that the Institution, being unaided, they can not pay full salary as prescribed under the M.E.P.S. Act and Rules. He further contended that the petitioner has accepted his appointment knowing fully well that the Institution is unaided.

8. The Assistant Director of Education, who is represented by the learned AGP, has filed his affidavit-in-reply. In the said affidavit it is stated that initially the petitioner was appointed as a Part Time Teacher in Nav Konkan Education Society's D.B.J. College, at Chiplun, district Ratnagiri w.e.f. 1st July, 2002 in the Science faculty of Unaided divisions of 11th and 12th Standards for the year 2002-2003. It is further stated therein that from the year 2003-2004, 2004-2005 and 2005-2006, the petitioner was appointed as Full Time Teacher in the Science faculty of unaided divisions of 11th and 12th Standards. The Petitioner resigned from his services with effect from 5th August, 2006 and, since the petitioner was appointed by the institute on the Unaided divisions, it is the sole responsibility of the Management to pay salary to the petitioner and the State Government is not responsible for the same.

9. After hearing the respective counsel for the parties, we are of the opinion that Respondent Nos.4 and 5 were bound by the provisions of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules thereunder and the petitioner is entitled to receive full salary as a full time teacher for the period from 2003 to 2006. The provisions of M.E.P.S. Act and Rules are applicable even in the case of Respondent Nos.4 and 5. Therefore, the concerned institution - Respondent No.4 should have paid salary to the petitioner as per Rule 7, Schedule "C" of the M.E.P.S. Rules 1981.

10. The services of the petitioner were approved and he was full time teacher from 2003 to 2006 as stated by the Assistant Director of Education in his affidavit.

11. For the reasons stated herein above, we allow the petition and direct Respondent Nos.4 and 5 to pay to the petitioner the difference in salary for last three years prior to the date of filing of the petition i.e. 12th August, 2007. However, the petitioner left the services of Respondent No.4 - Institution on 4.8.2006. The petitioner will be entitled for the difference in salary from 12th August, 2004 till 4th August, 2006. In case of a dispute between the petitioner and management, the said difference shall be decided by the Deputy Director of the Education of the concerned Region and his decision shall be final. Accordingly, the petition is allowed. Rule is made absolute in the above terms.

Petition allowed.