WRIT PETITION NO. 1245 OF 2013

5th May 2020

Petitioner Counsel: Shri A.M. Ghare
Respondent Counsel: Shri A.A. Madiwale, Smt. R.S. Sirpurkar
Act Name: Trade Marks Act, 1999 Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977

Section :
Section 45(2) Trade Marks Act, 1999 Section 16 Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977 Section 4 Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977 Section 3(1) Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977

Cases Cited :
Para 2, 5, 6: Umashankar s/o Ramsaran Singrol Vs. State of Maharashtra and Others, (W.P. No.1341/2012)
Paras 4, 13: Mahadeo s/o Pandurang More and Others Vs. State of Maharashtra and Others, reported in 2014(5) Mh.L.J 877
Para 5: Canara Bank Vs. N.G. Subbaraya Shetty and Another, reported in (2018) 16 SCC 228
Para 5: Hope Plantations Limited Vs. Taluk Land Board Peermade, reported in 1998 CJ(SC) 352
Para 5: Maharashtra Vikrikar Karamchari Sangathan Vs. State of Maharashtra and another, reported in (2000) 2 SCC 552
Para 9: Perwez Khajuddin Kalal Vs. State of Maharashtra and others, reported at 2008 (5) Mh.L.J. 523
Para 19: Secretary, Mahatama Gandhi Mission and another Vs. Bhartiya Kamgar Sena and others, reported in (2017) 4 SCC 449
Para 19: State of Uttar Pradesh and others Vs. Arvind Kumar Srivastava and others, reported in (2015) 1 SCC 347

JUDGEMENT

S.M. Modak, J.

In this petition, we are concerned with the right of an Assistant Teacher (who is working in respondent No.5 - unaided school) to get increase in pay scale as per recommendation of Sixth Pay Commission. The issue involved is whether such teacher of unaided school is entitled to get enhancement (just at par with aided school teacher) without there being an amendment in the pay scale prescribed under Schedule ‘C’ of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981.

2. According to the petitioner, she is entitled to get the benefit of such enhancement (without amendment being carried out). She relied upon similar benefit given (to her colleague from respondent No.4 - Sanstha) as per the judgment dated 15/06/2012 of this Court in case of Umashankar s/o Ramsaran Singrol Vs. State of Maharashtra and Others (W.P. No.1341/2012) (Coram: S.C. Dharmadhikari and M.T. Joshi, JJ.) It is true that the respondent No.4 – Sanstha has remained absent in that petition. The petitioner has an argument to advance to support the applicability of these observations (in case of Umashankar Singrol) to her case. She relied upon the principle of res judicata.

3. According to her, those observations partake the character of “judgment in rem”. That is to say the observations are applicable to concerned parties as well as to outside world. She gets support (for this proposition) from the observations of this Court in Civil Application No.1297/2012 in the judgment dated 22/07/2016 (Coram: Smt. Vasanti Naik and Mrs. Swapna Joshi, JJ.). This was a review application preferred by present respondent No.4 – Sanstha. This Court was pleased to set aside only those directions to pay 9% interest per annum on arrears of enhancement as per Sixth Pay Commission. While discharging the Sanstha from that responsibility, this Court gave the following reasonings:-
“We are inclined to pass this order also with a view to ensure that the other employees to whom the arrears were not paid due to the aforesaid difficulties should not claim interest at the rate of nine percent per annum on the dues that are liable to be paid to them on the basis of the order that is sought to be reviewed”.

4. Whereas (in support of the contention that amendment in schedule ‘C’ is required) the respondent No.4 – Sanstha relied upon the observations in case of Mahadeo s/o Pandurang More and Others Vs. State of Maharashtra and Others reported in 2014(5) Mh.L.J 877.

5. The respondent No.4 is conscious of the directions given by this Court in case of Umashankar s/o Ramsaran Singrol Vs. State of Maharashtra and Others. Still they say that those directions cannot be made applicable to the facts of this case. They relied upon the proposition “when principle of res judicata does not come in the way of defending action”. For that purpose, they relied upon the observations of Hon’ble Supreme Court in case of Canara Bank Vs. N.G. Subbaraya Shetty and Another reported in (2018) 16 SCC 228. To counter the submission of respondent No.4 – Sanstha, the petitioner relied upon the following judgments:-
1. Hope Plantations Limited Vs. Taluk Land Board Peermade reported in 1998 CJ(SC) 352.
2. Maharashtra Vikrikar Karamchari Sangathan Vs. State of Maharashtra and another reported in (2000) 2 SCC 552.

6. As said above, several questions of law are involved. Whether “the present petitioner can avail of the benefit of recommendations of Sixth Pay Commission” is a question. The judgment in case of Umashankar s/o Ramsaran Singrol Vs. State of Maharashtra and Others is no doubt a judgment delivered in a proceeding wherein respondent is present respondent No.4. It is also a matter of record that this Court decided that petition without hearing respondent No.4 - Sanstha. So in such a contingency “whether the observations therein will debar the Sanstha from taking a stand inconsistent with the observation therein” is an issue. Whether “the said judgment is judgment in persona or whether it is a judgment in rem” is also a question.

7. Before dealing into the controversies, it will be useful to refer to some of the undisputed facts. They are as follows:-
a) Petitioner worked as an Assistant Teacher in respondent No. 5 - School which is run by respondent No.4 – Sanstha.
b) Respondent No.5 is unaided school.
c) Petitioner retired on 1st February, 2015.
So also there are two Government Resolutions issued by respondent No.1 – Government which operates in the field. They are as follows:-
a) Dated 12/06/2009 School Education and Sports Department which makes applicable revised pay scale of Sixth Pay Commission to nongovernment aided primary, secondary & higher secondary schools.
b) Dated 21/05/2010 issued by same department –
which makes applicable revised pay scales to non-government unaided schools.

8. The respondent No.4 - Sanstha pleads that this Court wrongly applied Government Resolution dated 12/06/2009 in its’ Singrol judgment. They also pleads that the Government Resolution dated 21/05/2010 was not brought to the notice of this Court at that time. So also the directions in the said Government Resolution are only directory. Now, it will be relevant to consider the observations in Singrol’s case.

Observations in Singrol’s Case

9. It is true that petitioner - Umashankar Singrol in Writ Petition No.1341 of 2012 was serving in present respondent No.5 – School run by present respondent No.4. It is true that there was a prayer for enforcement of recommendation of 6th Pay Commission in that petition. This Court was pleased to direct respondent No.5 – School and respondent No.4 – Sanstha to grant the benefits of recommendation along with the interest of 9% on the arrears. While granting those reliefs, this Court considered two factors : --
One -- is Government Resolution dated 12/06/2009 and second -- is observations of this Court in case of Perwez Khajuddin Kalal Vs. State of Maharashtra and others reported at 2008 (5) Mh.L.J. 523.

10. On the set of these facts, the issue is whether these observations will have to be considered while deciding this petition. The issue is whether the said judgment is binding in between the parties to that litigation or whether it is also applicable to similarly situated employees. We will decide those issues later on.

Observations in Review Application

11. There are two review applications. One is C.A.W. No.2028/2012 decided on 7th August, 2012 and second is C.A.O. No.1297/2012 decided on 22nd July, 2016. First application was rejected for the reason that there is no clerical error or ambiguity. Whereas second application was entertained in view of the liberty granted by the Hon'ble Supreme Court in Special Leave Petition No.18500/2012 on 19th October, 2012. It is true that this Court was pleased to relieve the School and Sanstha from paying interest on the arrears. It is very well true that this Court has kept in mind that other employees who will come forward for getting the dues, may be also required to pay 9% interest. That was a factor considered while reviewing the order. Whether “on the basis of this reasoning” can it be said that the original judgment was judgment in the rem? It is also very well true that this Court considered following factors:-
a) The Government Resolution dated 21st May, 2000 which makes applicable the 6th Pay Commission recommendation to unaided school. So also, a mechanism has been laid down for helping the management in shouldering the additional burden (by recovering it from the pupils to a certain extent).
b) The fact that the management is not represented in Singrol's case when this Court decided it on 15th June, 2012.
c) It was not pointed out that “yardstick for implementation of policy in the Government Resolution is different to aided school and unaided school”.

12. So, the factors considered by this Court will certainly be useful for this Court in deciding whether Umashankar Singrol's judgment is a judgment in rem or not?

Principle of R es Judicata

13. After hearing both the sides and going through the citations, we are of the considered opinion that the observations in Singrol's case can be said to be judgment in persona only. Respondent No.5 - school and respondent No.4 - Sanstha were not represented in that petition. It is very well true that the relevant provisions of Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977 and Rules 1981 (as discussed by this Court in Mahadeo s/o Pandurang More (supra) were not pointed out and hence not discussed.

14. We feel that observations by Hon'ble Supreme Court in case of Canara Bank will be applicable herein. In that case, the issue was about the applicability of the provisions of Trade Marks Act, 1999 and of Banking Regulation Act, 1949. In earlier proceeding, the judgment was delivered by wrongly interpreting the statutory provision contained in Section 45(2) of Trade Marks Act, 1999. And that is why it has been observed that the earlier observations (without considering the provisions of law) cannot amount to res judicata. The Hon'ble Supreme Court has laid down certain exceptions wherein principle of res judicata will not be applicable. All these exceptions deal with contingencies wherein questions of law are involved and they were not decided in earlier proceeding. If there is erroneous decision about interpretation of the law, the decisision founded on such erroneous interpretation cannot come in the way of the party in pleading to the contrary. In case of Hope Plantations , the Hon'ble Supreme Court dealt with the principle of constructive res judicata. The petitioner therein failed to claim exemption outside the ceiling area on the ground of Cardomam Plantation. The question was never gone into in the earlier proceedings. By not raising that plea, the litigant has relinquished that claim and hence is barred from taking that plea. This is not the factual scenario before us. In Singrol's judgment, the management was not represented and the provisions of MEPS Act were not pointed out.

15. Whereas in case of Maharashtra Vikrikar, the Hon'ble Supreme Court dealt with the issue of inter se seniority of promottee sales tax inspectors on one hand and directly recruited sales tax inspector on the other hand. Certain posts were filled by promotion whereas certain posts were filled by nomination. There was a grievance that excess posts were filled in by promotion. So, the grievance was that the State has not made serious efforts to fill the vacancies from open market. This grievance was raised in a Transfer Application No.822 of 1991 and MAT, Bombay has interpreted the phrase “as far as practicable” and deprecated the State Government for inaction in filling the post by nomination (para 20). That is why Hon'ble Supreme Court has not considered similar grievance on the ground of res judicata (para 21).

16. This is not the situation herein. In fact, due no nonrepresentation of the Sanstha, this Court was required to decide Singrol's case only on the basis of submissions made before him on behalf of the petitioner only. So we hold that respondent Nos.4 and 5 are entitled to argue before the Court that recommendations of 6 th Pay Commission cannot be made applicable to teachers from unaided school.

Issues Involved

17. This Court while deciding Mahadeo More's case has elaborately dealt with the provisions of MEPS Act, 1977 and 1981 Rules. This Court held that the employees of unaided school are entitled to get pay scale as mentioned in the Schedule 'C' of 1981 Rules. This Court held that merely issuing a Government Resolution thereby adopting recommendation of 6th Pay Commission to the employees of unaided school will not serve the purpose. The Government Resolution dated 21st May, 2010 is on record. The 6th Pay Commission recommendation was made applicable from 1st January 2006 to unaided school also. After considering the relevant provisions, this Court held that merely issuing Government Resolution will not serve the purpose and amendment in the pay scale laid down in Schedule 'C' is required. That is why this Court was pleased to direct the Statement Government to make revision through Section 16 of MEPS Act, 1977 (so as to make it consistent with the directions given in Government Resolution dated 21st May, 2010 for unaided private schools) (para 47).

18. This Court has considered the provisions of Section 4 of 1977 Act, it empowers the State Government to make rules on various subjects including pay, allowances etc. Section 16 contains a provision which lays down the procedure for making rules. It also laid down the subjects (including pay scales and allowances) on which Rules can be made. It is very well true that the Maharashtra Legislators have made the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981. As per Rule 7, the scales of pay has been specified in Schedule 'C'. It lays down pay scales for different category of teachers from different schools. It is also true that as per the provisions of Section 3(1) of 1977 Act, the private schools are governed as per the provisions of this Act. It will be immaterial whether they received the grant-in-aid from the State Government or not? These provisions were also considered in Mahadev More’s case. So, we are of the considered opinion that these observations are applicable to the facts before us.

19. There was an attempt on behalf of the respondents to rely upon the observations of Hon'ble Supreme Court in case of Secretary, Mahatama Gandhi Mission and another Vs. Bhartiya Kamgar Sena and others reported in (2017) 4 SCC 449 and observations in case of State of Uttar Pradesh and others Vs. Arvind Kumar Srivastava and others reported in (2015) 1 SCC 347. In Mahatama Gandhi Mission's case, the issue was entitlement to the benefits of 5th Pay Commission to the non-teaching staff of unaided colleges. There were several petitions before Aurangabad bench of this Court. They were partly allowed. When matter went to Hon'ble Supreme Court at the instance of the management, the relevant provisions of the Maharashtra Universities Act, 1994, the Maharashtra Non- Agricultural Universities and affiliated Colleges Standard Code (Terms and Conditions of Service of non-teaching employees) Rules, 1984, 1999 and 2009 Rules were considered but there was a specific provision for restricting the application of the 2009 Rules to non-teaching staff of added colleges only. So, the issue was whether non-teaching staff of unaided colleges are excluded. It was held to be discriminatory in nature. The judgment of Aurangabad Bench was upheld. The petitioner claims that the ratio laid down in that judgment will be applicable to this case. Whereas according to the Sanstha the provisions of MEPS Act, Rules stand on the different footing as compared to 2009 Rules. According to learned Advocate Smt. Sirpurkar, MEPS Rules, 1981 specifically contains the pay scale as laid down in Schedule 'C' whereas as per the 2009 Rules time pay scale is prescribed (no fix pay scale).

20. With respect to the observations of Hon'ble Supreme Court, we feel that the ratio cannot be made applicable herein because even though the issue of discrimination (for aided and non-aided schools/colleges) is involved in that petition as well as before us, we will have to deal with the issue by referring to the provisions of the relevant law which governs subject.

21. It is very well true that recommendation of any Pay Commission are not binding on the Government. It is for the Government to accept the same or not. Generally, it is accepted. Even the State Government is having liberty to accept them totally or with modification (as observed in para 60 of Mahatama Gandhi Mission's case). As everyone knows that Government of Maharashtra has appointed Committee under the Chairmanship of Shri P.M.A. Hakim. Initially, the recommendations were made applicable to the employees of State Government and then by 12th June, 2009 Government Resolution to the aided school employees and then to unaided school employees (as per Government Resolution dated 21st May, 2010).

22. We cannot make applicable ratio in a particular case unless it deals with the similar provisions of the law. So we hold that the ratio laid down in Mahatama Gandhi Mission's case will not be useful to the petitioner.

23. For the same reason, we are also not inclined to give the benefit of the observations the Hon'ble Supreme Court in case of Arvind Kumar Srivastava to present petitioner. After taking over view of the earlier decisions, the Hon'ble Supreme Court again reiterated the principle of parity in service jurisprudence. Identically situated persons are also entitled to the relief given by the Court. By doing this, we are upholding the principle of non-discrimination. The Hon'ble Supreme Court has also laid down non-refusal of the relief on ‘account of latches, delays and acquiescence’ as an exception to the rule of parity. However, if the judgment is ‘judgment in rem’, then similarly situated employees cannot be denied benefits on account of latches. Umashankar Singrol was given benefit by this Court. But, thereafter this Court has elaborately considered the provisions of MEPS Act and Rules in case of Mahadev More. The observation is the said judgment are more applicable. We are not deciding whether a judgment in case of Mahadeo More is a judgment in rem or in persona. But, we feel that observations in Mahadeo More's case are applicable because the provisions of law were discussed therein.

24. For the above reasons, we feel that the petitioner cannot succeed. She retired on 1st February, 2015. The Government of Maharashtra has amended the Schedule 'C' vide Government Resolution dated 6th September, 2016. Admittedly, she was not in service at that time. So, we are unable to accept her grievances. Hence the following order is passed:-
ORDER
i. The petition is dismissed.
ii. No order as to costs.

Decision : Petition dismissed.