(1) WP. 8019.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8019 OF 2009 1. Smt. Kusum w/o. Shankarrao Bansode, Age : 50 years, Occu.: Special Teacher, R/o. House No.187, Nandawan Colony, Near Vishram Baba School, Aurangabad 2. Smt. Ramabai w/o. Bhaskar Sonwane, Age : 55 years, Occu.: Special Teacher, R/o. CIDCO, N-4, Near Municipal Corporation Garden, Aurangabad 3. Vithal Sitaram Sulane, Age : 50 years, Occu.: Craft Teacher, R/o. Surya Lawns, Shrikrishna Nagar, Garkheda Area, Aurangabad 4. Shri Kailash Manasram More, Age : 38 years, Occu.: Craft Teacher, R/o. At Post Sultanpur, Tq.Khultabad, Dist. Aurangabad 5. Shri Revannath Rangnathrao Landge, Age : 44 years, Occu.: Special Teacher, R/o. N-12, C-2, Swami Vivekanand Nagar, HUDCO, T.V. Center Road, Aurangabad 6. Namdeo Dnyandeo Kadam, Age : 48 years, Occu.: Special Teacher, R/o. Housing Society Mondha Road, Ambajogai, Dist. Beed 7. Shri Bhujang S/o Rangnath Gaikwad, Age : 51 years, Occu.: Special Teacher, R/o. Vidyut Nagar, Morewadi, Tq. Ambajogai, Dist. Beed 8. Shri Dattatraya Ganpatrao Suryawanshi, Age : 49 years, Occu.: Special Teacher, R/o. Bansilalnagar, Ambajogai, Dist. Beed (2) WP. 8019.2009 9. Smt. Murnal W/o. Pramod Joshi, Age : 53 years, Occu.: Special Teacher, R/o. CIDCO, N-1, Bhakti Nagar, Aurangabad 10. Smt. Durga W/o. Ganesh Pande, Age : 52 years, Occu.: Special Teacher, R/o Jabind Estate Devnagari, New Row House, C/3, Aurangabad PETITIONERS VERSUS 1. The State of Maharashtra, Through its Secretary, Social Justice Department, Mantralaya, Mumbai-32. 2. The Director of Social Justice Department, Maharashtra State, Pune 3. The Commissioner for Person with Disabilities, 3, Church Road, Maharashtra State, Pune 4. Zilla Parishad, Aurangabad through its Chief Executive Officer 5. Zilla Parishad, Beed through its Chief Executive Officer 6. The Secretary, Finance Department, Mantralaya, Mumbai-32 RESPONDENTS ..... Mr. S.B. Talekar, Advocate for the Petitioners. Mr. K.G. Patil, A.G.P. for the Respondent-State. None present for other respondents though served ..... (3) WP. 8019.2009 CORAM : SMT. NISHITA MHATRE & M.T. JOSHI, JJ. DATED : 8TH JUNE, 2011 JUDGMENT (PER-SMT. NISHITA MHATRE, J.):- 1. Rule. Rule made returnable forthwith, by consent. 2. By the present Petition, the petitioners who are presently employed in primary schools run by the Zilla Parishad for physically challenged children seek a direction against the respondents to implement the recommendations of the Fifth Pay Commission and to pay them the arrears. 3. The petitioners were initially working with the Government in its several schools run for the education and welfare of the blind, deaf, mute and orthopedically challenged children. They are all Special Teachers. Pay scales as recommended by the First to Fourth Pay Commissions were paid to the petitioners. It appears that till 1998, the pay scales of the teachers working in the Government schools, Zilla Parishad schools and private schools for the physically challenged were receiving the same (4) WP. 8019.2009 pay scale. The educational qualifications for being employed in the schools were identical. The nature of the duties and responsibilities conferred on the teachers working in these schools for the physically challenged were the same. 4. By Government Resolution dated 13.5.1999, the recommendations of the State Pay Scale Revision Committee, 1997 were introduced for the teaching and non-teaching staff of the private schools in the State. The pay scales of Assistant Teachers and Special Teachers in Zilla Parishad schools, private schools and Government schools for the physically challenged were revised from 4000-6000 to 4500-7000. 5. Another resolution was passed by the Government revising the pay scales of the teaching staff working in the Special schools for the handicapped, hostels, workshops run by the voluntary agency receiving grants from the Government. According to the petitioners, this resolution was not made applicable to Assistant Teachers or Special Teachers working in Government schools for the physically challenged. (5) WP. 8019.2009 6. Several representations were submitted by the Special Teachers employed in the Government Primary Schools for the physically challenged for removal of the disparity in the pay scales applicable to them and those applicable to the Special Teachers working in private institution. Representations were also submitted to the Pay Scales Anomalies Removal Committee on 27.1.1999. Representations were also submitted between 27.1.1999 and 17.2.2000 both to the aforesaid Committee as well as the Secretary, Social Welfare Department. The petitioners were informed on 15.3.2000 by the Assistant Director (Administration), Directorate of Social Welfare, Maharashtra not to enter into any further correspondence with the Department on the question of introducing the revised pay scales for Special Teachers employed in Government schools. However, the petitioners submitted further representations till 2005. It appears that thereafter respondent no. 3 i.e. the Commissioner for persons with Disabilities, Pune forwarded a proposal with the necessary recommendations to introduce the revised (6) WP. 8019.2009 pay scales for Special Teachers working in the schools for physically challenged run by the Government. This proposal was sent on 29.12.2005. It appears that the proposal was rejected since the aforesaid Committee was no longer in existence. One more attempt was made by the petitioners to secure justice and pay parity by submitting the representation to the Secretary, Social Justice Department on 6.11.2007. 7. Admittedly, the pay scales have been revised to 4500-7000 with effect from 1.1.1996 for Special Teachers working in the Zilla Parishad schools and private schools. The main contention, therefore, of the petitioners is that they have been discriminated against by not paying them the salary at par with the Special Teachers employed in the Zilla Parishad school and the private schools while they were working in schools run by the Government for special children. In fact, after the schemes for the education and welfare of the visually challenged, hearing impaired, physically challenged etc. were transferred to the Zilla Parishads with effect from (7) WP. 8019.2009 26.6.2001, the petitioners have been extended the aforesaid pay scale. 8. It appears that the petitioners submitted a representation once again on 6.11.2007 to the State. Since that representation was not decided, Writ Petition no. 3156 of 2008 was filed by the petitioners. This Court directed respondent no.1 i.e. the State to decide the representation dated 6.11.2007 within six months from the date of communication of the order, which was passed on 5.6.2008. It appears that thereafter the representation of the petitioners went unheeded despite several reminders by the petitioners to the Principal Secretary, Social Justice Department. The petitioners then preferred Contempt Petition no. 50 of 2009 on account of the deliberate inaction on the part of the respondents to obey the directions issued by this Court. The petitioners were informed by a letter dated 1.2.2008 and 3.7.2008 that since the Central Government had already appointed Sixth Pay Commission, the question of deciding or considering representation of the petitioners submitted to the (8) WP. 8019.2009 Commissioner did not arise. Hence, the present Petition. 9. The principal contention of Mr. Talekar, the learned Advocate appearing for the petitioners was that there is no reason at all furnished by the State to refuse to pay the petitioners who were employed in the Special schools run by the State, salary at par with the Special Teachers working in private schools and Zilla Parishad schools. He submits that there is no basis for this discrimination amongst two sets of teachers, when admittedly Special Teachers whether employed with the Government or the Zilla Parishad or the private schools have the same qualification and are trained for the same kind of work. They, in fact, according to the learned Advocate perform the same work whether employed in the Government school, private school or Zilla Parishad school. He points out that all along the Government had implemented the Pay Commission recommendations and, therefore there was no reason to prescribe different pay scales all of a sudden for those working in the Government schools and those Special Teachers working in the (9) WP. 8019.2009 Zilla Parishad school or the private schools. According to the learned Advocate, the action of the Government in refusing to pay the same salary to the petitioners smacks of arbitrariness, discrimination and unjustness, resulting in breach of Articles 14 and 16 of the Constitution of India. 10. An affidavit has been filed by the Deputy Commissioner for the Persons with Disabilities, Pune supporting the decision of the Government on the ground that the Finance Department had issued a Circular rejecting the claims of the petitioners. He has admitted that while applying the revised pay scales as directed by the State, some anomalies have crept in respect of payments to be made for Special Teachers in government Schools. An affidavit has also been filed by the Deputy Secretary, Government of Maharashtra that the petitioners ought to have approached the Pay Disparity Committee which was appointed on 3rd November, 2003. 11. In our opinion, there is no reason for not extending the benefits of the revised pay scale of Rs.4500-7000 to the Special Teachers working in (10) WP. 8019.2009 Government schools. There is no dispute that these Special Teachers were extended the pay scales which were payable under the Pay Commission recommendations. The revision in the pay scales granted by the State Government for Special Teachers employed in Educational and Training Institutions was extended to all such teachers except those employed in institutions run by the State. The reasons for refusing the pay revision, in our opinion, reveal arbitrariness and caprice on the part of the respondents. The first reason is that the petitioners ought to have approached the Pay Disparity/Anomalies Committee is without any substance. The petitioners had in fact approached this Committee but their representations were turned down. To suggest, that because the Committee is no longer in existence the petitioners are not entitled for the arrears of the pay revision, is untenable. The contention that the petitioners would no longer be entitled to these arrears, is unacceptable. The second ground for refusing the petitioners the revised pay scale is that they are not entitled to the arrears because the Sixth Pay Commission had (11) WP. 8019.2009 been appointed. This contention is also without merit. Merely because a new Pay Commission is appointed, it would not mean that the arrears payable to the petitioners under the revised pay scale Rs.4,500-7000 would no longer be available to them. Significantly, the petitioners have been paid this revised scale after their services were allotted to the Zilla Parishad after the decision of the State to transfer the institutions run by the State for the visually challenged, hearing impaired, physically challenged and such other special students to the Zilla Parishad. Apart from this there is a tacit admission of the State that there was an anomaly in implementing the revised pay scale for special teachers working in institutes run by the Government. 12. Accordingly, the Circular issued on 5.3.2007 by the State, refusing the arrears payable to the Special Teachers under the Fifth Pay Commission recommendations is set aside. The petitioners are entitled to pay parity with Primary Teachers working in Zilla Parishad and private schools run for the visually challenged, hearing impaired, physically (12) WP. 8019.2009 challenged and other special students for the period that they were employed in such special institutes run by the Government. Arrears payable to the petitioners shall be paid within six (6) months from today. Rule made absolute accordingly. Sd/- Sd/- [M.T. JOSHI, J.] [SMT. NISHITA MHATRE, J.] arp