Writ Petition No.6081 of 2007,Writ Petition No.7171 of 2007

12th August, 2008

Respondent Counsel: Shri. UMAKANT PATIL,Shri. V. D. HON

JUDGMENT

F.I. REBELLO, J.:- Both these petitions are being disposed of by a common order, as the issues involved are identical. With the consent of parties, Rule in both the petitions. With the consent of parties, heard forthwith.

2. The petitioner in W.P. No.6081/2007 was in employment of respondent No.4, and has since superannuated. By the present petition, the petitioner who appears in person prays that her pay be fixed according to law and the Management be directed to give arrears of salary alongwith 18% p.a. interest, as also provident fund, gratuity, pension and other pensionary benefits as per law on par with permanent employees of grantable schools, as also to give service book with complete details. There are some other details which are not been gone into. The petitioner will be known as the "Teacher" and respondent No.4 as the "Employer".

3. Writ Petition No.7171/2007 is filed by the Employer challenging certain orders passed by the Education Officer (Secondary), Zilla Parishad, Ahmednagar, moreso, pay fixation done by the Senior Auditor, Education Department, in terms of audit dated 20-03-2007 and order dated 01-09-2007 and communication dated 05-10-2007. The principal contention as urged on behalf of the society to which the petitioner in W.P. No.6081/2007 is a party, is that in case a school is run by a private management which is non aided, pay scales be made applicable from 01-05-1999 and secondly as far as senior pay scale is concerned, considering Government Resolution the said pay scale is not applicable to non aided schools.

4. The pleadings are complete in both petitions. To decide the controversy, we may have to briefly set out some facts which are essential for the purpose of deciding the issues in controversy. According to the Teacher, on completing B.Ed. Course, she was appointed on the consolidated pay of Rs.350/375 as a Assistant Teacher in Pravara English Medium School, Kolhar of Pravara Education Society between period from 05-06-1979 to 30-04-1980 and 13-05-1980 to 30-04-1981. Between period 09-06-1981 to 30-04-1982, she was given pay scale of Rs.365-760 alongwith D.A. The Teacher's services were terminated on 14-06-1990. However, on 18-02-1991 society issued letter requesting the petitioner to join again. The Teacher again joined as Assistant Teacher in pay scale of Rs.365-760 in Pravara English Medium School, Kolhar between period 07-03-1991 to 12-06-1992.

The Teacher was transferred to Pravara Madhyamik Vidyalaya, Chinchpur, Tal.Sangamner District Ahmednagar and worked there from 13-06-1992 to 30-06-1994. In June, 1994 school came in the category of 25% grantable. While doing staff fixation, junior persons to the Teacher were continued and made permanent, whereas deliberately and in order to deprive the Teacher from getting parallel benefit, she was transferred to other non grantable school. On 11-08-1992 the Management issued a letter placing the Teacher in IVth Revised Pay Scale of trained graduate of Rs.1400-2600. According to the Teacher, again between 01-07-1994 to 31-07-1996 she was transferred to Pravara Madhyamik Vidyalaya, Varvandi, Tq. Sangamner District Ahmednagar. In this case also the school was given 25% grants in July, 1996.

Between 01-08-1996 to 31-08-2000 the Teacher worked in Pravara Madhyamik Vidyalaya at Pimpri Louki, Post Azampur, Tq. Sangamner, District Ahmednagar. In 1998 school become 25% grantable whereas in 2000 it became 60% grantable school when the Teacher was again transferred to another non grantable school. Between 01-09-2000 to 13-07-2000 the Teacher was transferred to Pravara Madhyamik Vidyalaya, Rampur, Tq. Rahuri, District Ahmednagar, which was non grantable school. She was then transferred to Pravara Madhyamik Vidyalaya, Puntamba, Tq. Rahata, District Ahmednagar and worked there from 14-07-2002 to 24-03-2003 where she retired on superannuation.

5. The Teacher had filed before this court being W.P. No.2657/1991, challenging the order of the School Tribunal holding that her services had not been terminated but that she was transferred. During the pendency of the petition, while issuing Rule, this court directed the society to pay the Teacher in the pay scale of Rs.1400-2600 with effect from 01-08-1992 till the hearing and disposal of the petition with protection of present pay scale. It appears that the society did not pay the Teacher in the said pay scale. The Teacher therefore filed Civil Application No.3150/1994 in W.P. No.2657/1991. That application came to be disposed of by order dated 22-06-2001. This court directed the Management to deposit Rs.2,26,871/- in three instalments of three months each, with direction set out therein. The petition was finally disposed off on October 11, 2004 with certain directions. The teacher preferred Special Leave Petition before the Supreme Court which confirmed the order passed in W.P. No.2657/1991 giving the liberty to the teacher to file an appropriate application before the Education Officer for making pay fixation on the basis of Vth Pay Commission and in case, the teacher is aggrieved by the order passed by the Education Officer, she was liberty to approach this Court. On 23/01/2006 the Senior Auditor made entries in the service book with the pay scale of the teacher in the year 1994 as Rs.1480/- and thereafter further changes.

6. The Employer preferred a W.P.No.6524/2006 and order came to be passed on 20-11-2006 by this Court. The learned Judge observed that there was no issue before the court in earlier W.P. No.2657/991 of payment, in accordance with Vth Pay Commission. The court noted that pay fixation was done without passing any formal order. The direction was issued to pass the order after giving opportunity to the Employer, as also teacher. On 28-02-2007 the petition was disposed of with certain directions to appear before the Education Officer.

7. In the meantime, it appears that in respect of some other proceedings before the Honble Supreme Court being Civil Appeal Nos.1049-1050/2002 in the case of Shivaji Shikshan Prasarak Mandal and others Vs. State of Maharashtra and others, arising from the judgment dated 17-11-2000 in W.P. No.767/2000, in which a learned Bench of this court held that in respect of schools which are non aided, the Vth Pay Commission recommendations would be made applicable from 01-05-1999, the Supreme Court upheld the order of this court holding that this court was justified in holding that salary and allowances to be paid from 01-05-1999.

8. Another aspect of the matter is Government Resolution dated 28th November, 2006. In this respect, the issue is whether services rendered in unaided schools should be counted for the purpose of benefit. The Government Resolution held that services rendered should be made applicable subject to the following terms and conditions. The relevant clause is Clause - 9 which reads as under :

"The services rendered in the permanently (un-aided) no-grant basis school should not be considered for Senior and Selection grade post."

Insofar as Clause - 10 is concerned, to which our attention was invited, the said clause states that" if a eligible trained teacher working on permanently non-grant basis secondary school has accepted the appointment in un-aided Secondary school run by same Management/Institution or any other un-aided secondary school, then this appointment should be treated as a new appointment. In such cases the services from the date of approval of competent authority should be considered." This clause really would not be applicable. Clause - 12 sets out that "for Senior and Selection grade the total eligible service of 12 years should be considered including the period of Shikshan Sevak."

9. The first two issues which arises for consideration are :

(A) In respect of Vth Pay Commission recommendations, what is date on which the teacher should be entitled to the said pay scale.

Considering the judgment of this court which is upheld by the Supreme Court, in our opinion, it will have to be accepted that it would be effective from 01-05-1999. Admittedly, the first petition was filed in 1991. There was no issue of paying Vth Pay Commission Scale, as then what were inforce was the IVth Pay Commission recommendations. The teacher, therefore, would be entitled to be paid the pay scale of Vth Pay Commission corresponding to the pay scales that teacher was drawing under IVth Pay Commission as a trained Graduate teacher from 01-05-1999.

(B) The other issue is in respect of as to whether the petitioner is entitled to senior pay scale.

The argument advanced on behalf of the Employer has been that the teacher was appointed in unaided school and considering Clause-9 of Government Resolution dated 28th November, 2006, teacher is not entitled to the senior grade. We have earlier noted some facts. From the record, it is true that the teacher was appointed initially in a non-aided school run by the same society. The pay scales of teachers are governed by M.E.P.S. Act and Rules framed thereunder. Once the school is recognized, the teacher in an unaided school is entitled to the same pay scales, which a teacher in a recognized aided school is entitled to. In terms of rules framed, however, there is no provision for senior scale or selection grade scale. These are introduced by Government Resolutions. The issue, therefore, would be whether these Government Resolutions would be applicable. In our opinion, once the school is recognized and Government Resolution is issued, said Government Resolutions would also be binding provided the same are applicable to the facts of each case. The law is well settled that by an administrative instructions rules cannot be overruled. But when the Act and the rules are silent, it is open to the appropriate Government to issue administrative instructions in the form of G.R.'s.

In the instant case, we have already set out the facts. The teacher was teaching in a school in Chinchpur which become aided in June, 1994. The teacher was not retained there and was transferred to another non aided school at Varvandi. The school at Varvandi was given grants in July, 1996 but the teacher was transferred to another school at Pimpri of the same Management and joined there from 01-08-1996. In 1998 this school became 60% grantable when the teacher was transferred to another school at Rampur which was non grantable. However, the fact remains at least between period 1998 till 31-08-2000 the teacher was working in a school which was grantable, in other words, serving in a school where the Govt. had granted aid. It is not possible therefore to accept the contention of the Employer that a teacher is not entitled in these circumstances to the senior scale. The right of the teacher cannot be defeated by transferring teacher continuously from school to school which are non grantable when the school where teacher was earlier working has received grants. Such actions would be arbitrary. We therefore are clearly of the opinion that the teacher having served at least in one school during the period where the grants were available, the previous service rendered right from 09-06-1981 will have to be counted for the purpose of teacher's entitlement to a senior pay scale. The teacher, therefore, would be entitled to be placed in the senior pay scale on completion of 12 years which would be counting service from 09-06-1981.

10. As we have noted earlier, the teacher in her petition has also prayed for provident fund, pension and other benefits. On behalf of the Management, learned counsel points out that no provident fund was deducted from the petitioners salary nor did Management contribute their part. Similarly, insofar as pension is concerned, Counsel for the Employer inform that the teacher's contribution had not been taken. In our opinion, therefore, insofar as the provident fund and pension are concerned, as disputed facts are involved, it will be open to the petitioner to separately pursue the same and disposal of this petition would not stand in her way.

11. Insofar as the gratuity is concerned, the Education Officer, Zilla Parishad, Ahmednagar, on copy of this order being served on him, to decide after hearing the teacher and the Employer as to whether the teacher is entitled to the gratuity and if so, to direct payment of gratuity within a timeframe.

12. In the light of above, both the petitions are disposed of. Rule made absolute in terms of what is set out in paragraphs. In these circumstances, there shall be no order as to costs.

Petition allowed.