KERALEEYA SAMAJAM & ANR. versus PRATIBHA DATTATRAY KULKARNI (DEAD) THROUGH LRS & ORS. on 1 October 2021

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 28.06.2019 in Writ Petition No.5311 of 2011 and WritPetition No.5338 of 2000 passed by the High Court of Judicature atBombay, the management has preferred the present special leave H

petitions. By the impugned common judgment and order the High Courthas declared that the entitlement of the original petitioners is to receivewages in pay scales as per Schedule – C to the Maharashtra Employeesof Private Schools (Condition of Service) Regulation Rules, 1981.Thereafter, the Division Bench has disposed of the said writ petitionsissuing a direction to the Deputy Director (Education) to see that theteachers working with the petitioners school are received their wagesand salaries accordingly. The High Court has also not accepted thesubmissions on behalf of the petitioner to restrict arrears to three yearspreceding the filing of the writ petition.

2. At the outset, it is required to be noted that in the order dated21.10.2019, this court recorded the submissions on behalf of thepetitioners that the petitioners are ready to pay the arrears as per 6[th]Pay Commission for the preceding three years prior to the filing of thewrit petition. Thereafter this court passed the following order on04.11.2019:- “Being aggrieved by the impugned order of the High Courtdirecting the petitioners-Institution to pay the arrears of salary asper the Fifth and Sixth Pay Commissions to the teaching and non-teaching staff of the second petitioner-School (said to be unaidedschool) the petitioners have filed these special leave petitions.

We have heard Mr. Shekhar Napahade, learned seniorcounsel, assisted by Ms. Bina Madhavan, learned counselappearing for the petitioners who has submitted that the petitionersare ready to pay arrears as per the Sixth Pay Commission for thepreceding three years prior to the filing of the writ petition.

On the above submission, the petitioner to file the calculationmemo as arrears of the amount payable to the teaching and non-teaching staff.

Accordingly, the petitioners have filed calculation memo asper which the amount towards the salary for three years precedingthe filing of writ petition (Sixth Pay Commission), Rs.1,49,13,459/- is payable.

So far as the total arrears towards Fifth Pay Commissionan amount of Rs.1,19,96,967/- is payable. Insofar as the SixthPay Commission an amount of Rs.5,34,50,719/- is stated to be thearrears payable. Thus the total arrear as per Fifth and Six Pay A

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Commissions is Rs.6,54,47,686/- (Rs.1,19,96,967/- +Rs.5,34,50,719/-) and out of the said amount 50% works out toRs.3,27,23,843/-.

Mr. Shekhar Napahde, learned senior counsel, has submittedthat the second petitioner being unaided school may not be in aposition to deposit the entire amount. Considering the submissionmade at the Bar, there shall be an interim stay of the operation ofthe impugned order on condition that the petitioner shall deposit50% of the total amount which works out to Rs.3,27,23,843/- withina period of eight weeks failing which the interim stay granted bythis Court shall be automatically vacated. The deposit of the aboveamount shall be without prejudice to the contention of the petitionersin the matter.

On such deposit, the amount of Rs.3,27,23,843/- shall bedisbursed to the teaching and non-teaching staff of the secondpetitioner-school and other employees who are held entitled toget arrears as per the orders of the High Court.

Issue notice.”

That thereafter a further order dated 29.01.2020 came to be passedby this court, which reads as under:-

“In compliance of Order dated 04.11.2019 the petitioners -Institution has deposited the amount of Rs.3,27,23,843/- (Rupeesthree crore twenty seven lakhs twenty three thousand eighthundred forty three) in the Registry of the Supreme Court. As perthe said order the amount is to be disbursed to the teaching &non-teaching staff and the other employees of the secondpetitioner-Model English School who are entitled to get the arrearsas per Order of the High Court.

Ms. Bina Madhavan, learned counsel appearing for thepetitioners and Mr. Akshay Girish Ringe & Mr. Bhaskar Y.Kulkarni, learned counsel appearing for the respondents, haveagreed that the amount so deposited before this Court be disbursedto the teaching & non-teaching staff and the other employees ofthe second petitioner-Model English School through DeputyDirector of Education, Education Department, State ofMaharashtra.

In view of above, the Registry is directed to transmit theamount of Rs.3,27,23,843/- (Rupees three crore twenty sevenlakhs twenty three thousand eight hundred forty three) to DeputyDirector of Education, Education Department, State ofMaharashtra, either through RTGS or by Pay Order at the earliest.

Ms. Bina Madhavan, learned counsel appearing for thepetitioners-Institution, shall furnish the details of the bank accountof the Deputy Director of Education, Education Department, Stateof Maharashtra, to the Registry of this Court within a period oftwo days from today.

The Deputy Director of Education, Education Department,State of Maharashtra, is directed to identify the teaching, non-teaching staff and other employees of the second petitioner-ModelEnglish School who are entitled to receive the arrears as per orderof the High Court and thereafter disburse the said amountproportionately as per arrears on proper receipt. The DeputyDirector of Education, Education Department, State ofMaharashtra, shall complete the exercise of disbursement of thesaid amount within four weeks from today.

We make it clear that the disbursement of the said amountshall be without prejudice to the contentions of the petitioners andthe respondents. Matter be listed in the last week of April 2020.”

3. Therefore the entitlement of the teacher’s salaries as per the5[th] and 6[th] Pay Commission to the teaching and non-teaching staff of thesecond petitioner – school is not required to gone into and only issuewhich is required to be considered is whether the arrears ought to havebeen restricted to three years preceding the filing of the writ petition?

4. Having heard Shri Shekhar Naphade, learned Senior Advocateappearing on behalf of the petitioners and learned counsel appearing onbehalf of the respondents and considering orders passed in earlier roundof litigations which ended up to this court the liability of the managementto pay the salaries to the teaching and non-teaching staff as per the 4[th]Pay Commission and 5[th] Pay Commission ended in favour of the teachingand non-teaching staff working with the petitioners. Therefore as andwhen the 6[th] Pay Commission recommendations was made applicableas such it was the duty cast upon the petitioners’ institution to pay thesalary/wages to the teaching and non-teaching staff as per the applicable A

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Apay scale as per the 6[th] Pay Commission recommendation and for whichthe staff was not required to move before the Deputy Director (Education)again and again. Therefore, the submissions on behalf of the petitionersthat as the respondents approached the Deputy Director (Education)subsequently and therefore the question with respect to the limitationwill come into play and therefore the respondents shall be entitled to theBarrears of last three years preceding the filing of the writ petitions cannotbe accepted.

5. The respondents were compelled to approach the DeputyDirector only when the petitioners though were required to pay the wagesas per the applicable rules and as per the recommendation of 6[th] PayCCommission, failed to make the payment, the respondents were compelledto approach the Deputy Director (Education) thereafter. Therefore forthe lapse and inaction on the part of the petitioners, the respondentscannot be made to suffer and deny the arrears of the salaries as per the6[th] Pay Commission recommendation, which otherwise they are entitledDto. Every time the teachers were not supposed to approach the appropriateauthority for getting the benefit as and when there is a revision of pay asper the pay commission recommendations.

In view of the above and for the reasons stated above both thesespecial leave petitions deserve to be dismissed and accordingly dismissed.

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It is directed to the petitioners to clear the arrears within a periodof eight weeks from today failing which it shall carry interest at 9 %.The Deputy Director (Education), Nasik Division is hereby directed tosee that the present order is complied with by the petitioners and theamount is disbursed to the respective respondents by account payeeFcheques.

Divya Pandey

Petitions dismissed.

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