1 (SA725/2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.725 OF 2010 ALONGWITH CIVIL APPLICATION NO.838 OF 2010 IN SECOND APPEAL NO.725 OF 2010 Education Officer (Primary) Zilla Parishad, Sangli & another .... Appellants. V/s Sou Vimal Kallappa Bhilwade & Ors .... Respondents Mr V.S. Gokhale for the appellants. Mr. G.M. Songave for respondent Nos. 1 to 5 and 7 to 6. CORAM: V. M. KANADE, J. DATE : 8th April, 2011 P.C.:- 1. Heard the learned Counsel appearing on behalf of the appellants and the learned Counsel appearing on behalf of the respondents. 2. Respondents are teachers working in the Primary Schools in the City of Sangli, which are established and 2 (SA725/2010) administered by the Private Managements. These Schools receive grant-in-aid from the appellants – Zilla Parishad, Sangli. Appellants/Defendant Nos. 1 to 4 sent notices to respondents/plaintiffs seeking recovery and refund of certain amount paid by them. In the said letter of recovery, it was contended that senior scale was erroneously given to them by the Management and, therefore, the amount which was paid to them towards the said scale was liable to be refunded. This recovery notice was challenged by the respondents/plaintiffs by filing a suit in the Court of Civil Judge, Senior Division being Regular Civil Suit No.277 of 2007. The Trial Court decreed the suit filed by the respondents/plaintiffs and the appeal filed by the appellants/defendants was also dismissed. 3. The learned Counsel appearing on behalf of the appellants submitted that under Rule 7(1) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as “MEPS Act”) The teachers were entitled to get senior scale on completion of 12 years of service. He submitted that the grant-in-aid was given to various Schools and only after grant-in-aid was given to these Schools, thereafter, after 12 years, these teachers would be entitled to claim senior scale. It is submitted that since the senior scale was given to these teachers from the date of their initial appointment, the amount which was paid illegally to these teachers was liable to be refunded and, therefore recovery notices were issued. 3 (SA725/2010) He invited my attention to the Government Resolution dated 28/11/2006 on which reliance was placed by both the Courts below. He submitted that the said Resolution was applicable only to Secondary School teachers and, therefore, the reliance could not have been placed on the said Resolution. He submitted that, therefore, the issue which was framed by the Trial Court viz. “whether the plaintiffs are entitled to claim higher pay scale on the completion of their qualifying service of 12 years from the date of appointment irrespective of aid granted by the Government to their schools?”, was not properly answered by both the Courts below. 4. In my view, submission made by the learned Counsel appearing on behalf of the appellants cannot be accepted. In the first place, primary responsibility of making payment to the teachers is upon the management and terms and conditions of service of a teacher is governed by the provisions of the MEPS Act. Under the said Act, whether the Management receives aid or not, they are liable to make payment to their employees according to the pay-scales which are prescribed under the said Act. The Management, on the other hand, is answerable to the Government or to Zilla Parishad who gives them aid and, as such, there is no privity of contract between the primary teacher and Zilla Parishad in respect of payment of salary which is received by them. In Rule 7(1) of Maharashtra Employees of Private Schools, (Conditions of Service) Rules, 1981 there is no 4 (SA725/2010) reference made about the grant-in-aid being received by the management. It is, therefore, not necessary to refer to the Government Resolution on which reliance is placed by both the Courts below. Rule 7(1) of the said Rules reads as under:- “7. Scales of Pay and Allowances.-(i) The scales of pay for full-time as well as part time Heads, Assistant Heads, Supervisors, Teachers and the non-teaching staff in the primary schools, secondary schools including night schools, Junior Colleges and Junior Colleges of Education, shall be as specified in Schedule “C”.” In view of the said Rule, the scale of pay for full time as well as part time teacher is specified in Schedule “C”. In Schedule-C, Part-I, pay-scales of teacher are laid down. In Schedule “C”, Part-I it is nowhere stated that senior scale is to be given only after the Government aid is received. The Government of Maharashtra, pursuant to the decision given by the Apex Court, issued a G.R. in which it was mentioned that on completion of 12 years from the date of initial appointment, primary teachers would be entitled to get senior scale. Both the Courts below were justified in coming to the conclusion that the said period should be calculated from the date of initial appointment and not from the date on which the aid was received. 5 (SA725/2010) 5. In my view, therefore, no substantial question of law is raised in this second appeal. It is always open for the Zilla Parishad to recover the said amount from the Management if it feels that the said payment ought not to have been made by the Management to the teachers. 6. Second Appeal is therefore dismissed. 7. Since the Second appeal is dismissed, Civil Application No.838 of 2010 does not survive and it is disposed of accordingly. (V.M. KANADE, J.) 6 (SA725/2010)