2010 ALL MR (Supp.) 188
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

F.I. REBELLO AND J.H. BHATIA, JJ.

Azmatunnisa Abdul Khalique Vs. State Of Maharashtra & Ors.

Writ Petition No.993 of 2009

8th February, 2010

Petitioner Counsel: Mr. A. N. MANIYAR
Respondent Counsel: Ms. ANJALI HELEKAR, Mr. M. M. VASHI with Mr. S. B. NARWADE

(A) Mumbai Municipal Corporation Act (1888), S.62C - Grant-in-Aid Code - Enforceability of - If the Grant-in-Aid Code is merely in the nature of administrative instructions, it would not, normally be enforceable, at least at the instance of a teacher - However, when the Code has statutory recognition, that can be enforced in exercise of powers under Art.226 of Constitution of India.

If the Grant-in-Aid Code is merely in the nature of administrative instructions it would not, normally be enforceable, at least at the instance of a teacher. However, when the Code has statutory recognition, that can be enforced by this Court in exercise of its powers under Article 226 of the Constitution of India. In the instant case, the Municipal Corporation had directly framed rules under the provisions of the Mumbai Municipal Corporation Act, namely, Section 62-C. The Code therefore would have statutory force and as such its provisions would be clearly enforceable. The Management as a condition of recognition of the school, has to agree to the payment of salaries in the terms prescribed by the Department of the Corporation unless it seeks previous approval to pay wages other than those approved by the Department for its teachers. 1973 Mh.L.J. 712 and 1981 Mh.L.J. 441 - Ref. to. [Para 12]

(B) Mumbai Municipal Corporation Act (1888), S.62C - Grant-in-Aid Code of Mumbai Municipal Corporation - Grant-in-Aid Code is statutory in character and the provisions are enforceable. (Paras 12, 13)

(C) Mumbai Municipal Corporation Act (1888), S.62C - Salary - Mode of payment - Payment of salaries to teachers by schools - Schools recognised by Mumbai Municipal Corporation - Corporation was directed to issue instructions to all managements of the schools to make payment of salaries only by cheques. (Para 16)

Cases Cited:
Smt. Asha Anil Patil Vs. Shri. Madan Rajaram Bagwe, 1998(1) ALL MR 680 =1998(3) Bom.C.R. 657 [Para 7]
State of Assam Vs. Ajit Kumar Sharma, 1965(1) S.C.R. 890 [Para 8]
Kumari Regina Vs. St. Aloysius Higher Elementary School, AIR 1971 SC 1920 [Para 9,10]
State of Maharashtra Vs. Lok Shikshan Sanstha, 1973 Mh.L.J. 712 [Para 10]
Vinayakrao Deshmukh High School Society, Nagpur Vs. Deputy Director of education, Nagpur Division Nagpur, 1981 Mh.L.J. 441 [Para 10]
M. G. Pandke Vs. Municipal Council, Hinganghat, Dist.-Wardha, AIR 1993 SC 142 [Para 11]


JUDGMENT

FERDINO I. REBELLO, J.:- Rule. By consent, heard forthwith.

2. The short question which arises for consideration in this Petition is whether the Grant-in-Aid Code for primary schools in Greater Mumbai has statutory force and is enforceable and or are merely administrative instructions, which do not give rise to an enforceable right in the teacher and consequently a writ petition for enforcement of the instructions is not maintainable.

3. The petitioner, admittedly, is a teacher working with the Usmania Urdu Primary School, which is a recognised Primary school by the Municipal Corporation, but not aided. The case of the petitioner is that as a recognised School she is entitled to the salary as made applicable by the Mumbai Municipal Corporation to recognised aided schools. The petitioner however, is paid a paltry amount of Rs.1,000/-. The case of the petitioner is that the respondents should be directed to pay to the petitioner the salary which the petitioner is entitled to according to the provisions of the Grant-in-Aid Code. There are some averments to the effect that the petitioner is not being allowed to perform her services in the School.

4. A reply has been filed on behalf of the Management by Nawab Rehamatulla Usmani, Chairman, in which it is pointed out that the petitioner is paid salary of Rs.11,074/- per month. The petitioner, it is set out, was appointed as a Primary School teacher on 13.6.2002 on temporary bass. Though the petitioner was informed of the same, she accepted the said temporary appointment. It is then pointed out that the School being recognised by the B.M.C., the provisions of Maharashtra Employees of Private Schools Act (MEPS) are not attracted. The Grant-in-Aid Code, it is pointed out, are basically administrative instructions, which regulate the terms of recognition and Grant-in-Aid Code between the Mumbai Municipal Corporation on the one hand and the Management on the other. This being purely contractual relationship between the petitioner and the Management is that of master and servant. The learned Counsel for the petitioner draws our attention to certain Judgments of the Supreme Court which it is submitted support the contentions. In these circumstances, this Court cannot exercise its Extraordinary Jurisdiction by issuing directions under Articles 226 and 227 of the Constitution of India.

5. Admittedly, the School being a primary school and within the area of the Mumbai Municipal Corporation is covered by the provisions of the Grant-in-Aid Code for primary schools in Greater Bombay (Mumbai). The Code, as can be seen from the Notification dated 5.8.1963, has been enacted pursuant to the power conferred on the Corporation under Section 62-C(3) of the Mumbai Municipal Corporation Act. Section 62-C(3) which is relevant reads as under :-

"62-C.Primary school and schools maintained by grants to be open to officers appointed by State Government for inspection.

(3)In all matters connected with grants for the aid of primary schools other than municipal schools the [corporation] shall administer aid to schools complying with the necessary conditions in accordance with the provisions of the Government Grant-in-aid Code, subject to such modifications, if any, as may from time to time be made in the said Code by the Corporation with the previous sanction of the State Government."

6. On a consideration of sub-section (3) of Section 62-C it would be clear that a Corporation can impose conditions in the matter of Grant-in-Aid to schools. The Code is, therefore, based on the power conferred on the Corporation under Section 62(c) of the Mumbai Municipal Corporation Act, 1888. Various provisions have been provided in the Code. Rule 5 which pertains to conditions of recognition. The relevant Rule which reads as under :-

"Rule 5 - Conditions of Recognition.

In granting recognition for the first time and thereafter in continuing it, the Education Officer, Bombay Municipal Corporation, shall consider (due regard being had to the special circumstances of each institution and locality) whether -

(vi)The pay scales and other conditions of service as laid down by the Education Department are followed and communicated to the teachers concerned unless any different scales and service conditions have been previously approved by the Education Department (Appendix-VII)."

Thus in the matter of recognition, one of the requirements is that the conditions of service as laid down by the Corporation has to be followed. It is possible that in the matter of salaries, this can be varied, but this has to be done after previous approval of the Education Department. In the instant case, it is not the stand of the Management that there has been previous approval of the Department for paying wages lesser than what the pay scales as approved by the Education Department for aided schools. The stand of the Management itself is that they pay the approved salary, which is Rs.11,074/-. We do not propose to enter into the controversy, whether in fact salary is paid or not as the petitioner denies having received such salary and if we allow this petition, that issue can be left to be decided by the concerned officer of the Mumbai Municipal Corporation.

7. Whether The Grant-in-Aid Code is statutory was considered in Smt. Asha Anil Patil Vs. Shri Madan Rajaram Bagwe & others - 1998(3) Bom.C.R. 657 : [1998(1) ALL MR 680], (to which one of us F.I . Rebello, J. was a party) wherein this Court observed as under :-

"As pointed out the Grant-in-Aid Code was sanctioned by the Government in terms of section 62-C(3) of the Bombay Municipal Corporation Act."

8. We may now consider the judgments relied upon on behalf of the respondent-Management to contend that the provisions of the grant-in-Aid are not enforceable. Firstly, reference may be made to the Judgment in the case of State of Assam and another Vs. Ajit Kumar Sharma and others 1965(1) S.C.R. 890. The Supreme Court there was considering the Grant-in-Code in the context of rules framed by the State of Assam. In that context, the Court noted that it was not the contention of the appellant before it that the rules have statutory force and the arguments had been made on the basis that the Rules have no statutory force and are merely executive instructions given by the Government to private colleges as a condition for the implementation of pay scales etc., recommended by the University Grants Commission for private colleges. In that context, the Court observed as under :-

"...It seems to us that the High Court was in error in granting a writ of mandamus against the State through the Director once if found that the Rules had no statutory force and were mere administrative instructions for the purpose of giving grant-in-aid to private colleges. What grants the State should make to private educational institutions and upon what terms are matters for the State to decide. Conditions of these grants may be prescribed by statutory rules; there is however no law to prevent the State from prescribing the conditions of such grants by mere executive instructions which have not the force of statutory rules."

It is thus clear that those observations were made on the basis that the Grant-in-aid Code, the subject matter, did not have statutory force and were merely executive instructions.

9. Reliance is also placed on the Judgment of the Supreme Court in Kumari Regina Vs. St. Aloysius Higher Elementary School and another - AIR 1971 SC 1920. The observations in para 11 of the Judgment would show that the Court held that the stand of the respondent-School that the rules have not been framed under Section 56 of Madras Elementary Education Act was correct. The Court specifically held that the terms and conditions contained in Part-II Rules cannot be regarded as having the status of statutory rules made under Section 56. At the same time, the Court observed as under :-

"13....To achieve uniformity and certainty in the exercise of such executive power and to avoid discrimination, the Government would have to fame rules which, however, would be in the form of administrative instructions to its officers dealing with the matters of recognition and aid. If such rules were to lay down conditions, the Government can insist that satisfaction of such conditions would be condition precedent to obtaining recognition and aid and that breach or non-compliance of such conditions would entail either the denial or withdrawal of recognition and aid. The management of a school, therefore, would commit a breach or non-compliance of the conditions laid down in the rules on pain f deprivation of recognition and aid. The rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce these rules upon the management. But the enforcement of such rules is a matter between the Government and the management and a third party, such as a teacher aggrieved by same order of the management, cannot deprive from the rules any enforceable right against the management on the ground of a breach or non-compliance of any of the rules."

This Judgment also, in our opinion, would be of no assistance to the points sough to be canvassed on behalf of the respondent-Management.

10. Next reliance is placed on the Judgment of the Supreme Court in the case of State of Maharashtra Vs. Lok Shikshan Sanstha - 1973 Mh.L.J. 712. In that case also, it was accepted by the State in the counter-affidavit filed before this Court that the provisions of the Code are in the nature of administrative instructions without any Constitutional force. In that context, that matter was examined and the Court was pleased to hold that in the circumstances, the said provisions could not be enforced in exercise of its powers under Article 227 of the Constitution of India. A similar view was reiterated by the Division Bench of this Court in Vinayakrao Deshmukh High School Society, Nagpur Vs. Deputy Director of education, Nagpur Division, Nagpur & Anr. - 1981 Mh.L.J. 441. This Court noted, amongst others, the Judgment in Kumari Regina Vs. St. Aloysius Higher Elementary School (supra).

11. On the other hand, on behalf of the petitioner, the learned Counsel has drawn our attention to the Judgment in M. G. Pandke and others Vs. Municipal Council, Ninganghat, Dist.-Wardha and others AIR 1993 SC 142. There the issue was between the provisions of the Secondary Schools Code and the provisions of the Maharashtra Secondary Education Boards Regulations. The area where the school was located was earlier forming a part of the State of Madhya Pradesh which was governed by the Grant-in-Code. On the States Reorganization, some of the districts were included in the State of Bombay which is now the State of Maharashtra. The issue pertained to the age of retirement requirement. Whereas under the provisions of the Regulations, superannuation was at the age 60, in the terms of Code it was 58. The issue was whether the Code had a statutory recognition. In that context, the Supreme Court noted that the provisions of the Maharashtra Act and the Maharashtra Regulations gave statutory recognition to the Code.

12. Thus, it will be clear that if the Grant-in-Aid Code is merely in the nature of administrative instructions it would not, normally be enforceable, at least at the instance of a teacher. However,m when the Code has statutory recognition, that can be enforced by this Court in exercise of its powers under Article 226 of the Constitution of India. In the instant case, the Municipal Corporation had directly framed rules under the provisions of the Mumbai Municipal Corporation Act, namely, Section 62-C. The Code therefore would have statutory force and as such its provisions would be clearly enforceable. The Management as a condition of recognition of the school, has to agree to the payment of salaries in the terms prescribed by the Department of the Corporation unless it seeks previous approval to pay wages other than those approved by the Department for its teachers.

13. Considering the above, the objection raised on behalf of the Management by the learned Counsel Mr. Vashi that the Grant-in-Aid Code of the Mumbai Municipal Corporation is not enforceable, has to be rejected. We are clearly of the view that the Code is statutory in character and the provisions are enforceable.

14. Having said so, the issue now is regarding the non-payment of wages in terms of what the Department has prescribed in terms of the Code. On the one hand, the allegation of the petitioner is that she is being paid salary of only Rs.1,000/- . On the other hand, it is the stand of the Management that they have paid and or paying salary at the rate of Rs.11,074/-. It will not be possible for this Court to consider the said controversy.

15. We had tried our best to work out a settlement, so that the salaries of the teachers are not to be paid by cash, but by cheque to be deposited in their account so as to avoid malpractice, if any. At the same time, the contention by the Management that they are a small school and some adjustment should be considered in the matter of salaries was also considered. Unfortunately, it was not possible to persuade the parties to arrive at any settlement. On the contrary, we were informed that if the salaries are to be paid in terms prescribed by the Code, the school will have to be closed down. We may only note that such arguments have been advanced earlier and rejected by Courts. Once the law prescribes what that salary has to be, it must be paid. Ultimately, primary education is being imparted for the benefit of children, but at the same time, those who impart education should also be paid fair wages so that they are in a position to impart quality education that they are required to impart.

16. In the light of that, we partly allow this Petition by issuing the following directions:-

(i) The Education Officer of the B.M.C. to call both the petitioner and the Management and to issue suitable directions in terms of the Code regarding payment of salaries, including the terms worked out between the parties, if any.

(ii) Insofar as payment of salaries by schools recognised by the B.M.C., to issue directions that all managements will make payment of salaries only by cheques from a date to be prescribed by the Corporation so as to ensure that the salaries go into the hands of the teachers. Such a date shall not be later than four months from today, if the procedure is not already in place and file compliance in the Court.

(iii) Inquiry to be completed not later than two months from today. If in terms of the findings in the Inquiry, the amounts are not paid and with the time granted by the Inquiry Officer they are not paid, it will be open to the Education Officer to take steps to de-recognise the school.

Rule made absolute accordingly. No order as to costs.

Ordered accordingly.