hvn IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2688 OF 2007 WITH WRIT PETITION NO. 2640 OF 2008 WITH WRIT PETITION NO. 2339 OF 2008 WITH WRIT PETITION NO. 2555 OF 2008 WITH WRIT PETITION NO. 1633 OF 2008 WITH WRIT PETITION NO. 2336 OF 2008 WITH WRIT PETITION NO. 2556 OF 2008 WITH WRIT PETITION NO. 2553 OF 2008 WITH WRIT PETITION NO. 2675 OF 2008 WITH WRIT PETITION NO. 185 OF 2008 WITH WRIT PETITION NO. 352 OF 2008 WITH WRIT PETITION NO. 452 OF 2008 WITH WRIT PETITION NO. 487 OF 2008 -----------------------------l--------------------------------------------------------------------------- Office Notes, Office Memoranda l of Coram, appearances, Court’s l Orders or directions and l Registrar’s orders. l Court’s or Judges’ Order --------------------------------------------------------------------------------------------------------- Mr. A.N. Maniyar for the Petitioners. Mr. A.G. Kothari for R. No. 5 in all matters except W.P. No. 452 of 2008. Mr. R.J. Panicker for R. No. 5 in W.P. No. 452 of 2008. Mr. R.J. Mane, AGP For R. Nos. 1 to 3 (WP 2688/07). Mr. Milind More, AGP for R. Nos. 1 to 3 (WP 2640/08, 2339/08). Mr.D.A. Nalawade, AGP for R.Nos.1 to 3 (WP 2555/08, 332/08) Mr. J. Saluja, AGP for R.Nos. 1 to 3 (WP 1633/08, 2553/08, 487/08). Ms. S. Sreedharan, AGP for R. 1 to 3 (WP 2336/08, 452/08). Ms.Mugdha Jadhav,AGP for R. 1 to 3 (WP 2556/08). Mr.R.R. Bhosale, AGP for R. 1 to 3 (WP 2675/08). Ms.S. Gaidhani, AGP for R.Nos.1 to 3 (WP 185/08). CORAM : F.I. REBELLO & A. A. SAYED, JJ. DATED : APRIL 06, 2010 P. C.: The subject matter in these petitions are non payment of salaries in the time scale in the schools governed by the provisions of the M.E.P.S. Act and the rules framed thereunder. The Petitioners are the teachers working in schools recognized under the M.E.P.S. Act. At the time of the filing of the Petition, most of the schools though recognized were not aided. In W.P. No. 452 of 2008, the learned counsel points out that in the year 2006, they were partially aided and from the year 2009 they are fully aided. 2. The grievance of the Petitioners is that the issue pertaining to payment of salaries in the time scale of teachers of recognized schools under the M.E.P.S. Act is no longer res integra. Our attention is invited to the recent order passed by us in W.P. No. 770 of 2009 in the case of Mohd. Ahmed Shafique Ahmed Vs. State of Maharashtra and Others decided on 18.1.2010 where we have merely reiterated the law in the matter of salary to teachers of recognized schools though not aided. 3. On behalf of the Petitioners, the learned counsel submits placing reliance in the judgment of the Division Bench of this Court in the case of Brian O.D. Pasgon & Ors. Vs. Bombay Education Society and Ors. 1994 II CLR 1023 that it is open to the court to issue directions to direct the Management to apply to the Director of Education in implementing revised pay scales and allowances from the date of issuance of the directions by the Director of Education. 4. On the other hand on behalf of the contesting respondents, the learned counsel has raised the following objections : (1) It is submitted that the claims beyond the period of three years from the date of filing of the petition would be clearly barred by limitation and as such the writ court would not issue any direction for payment of salaries for the period earlier to that period. Secondly it is submitted that the matters of recovery of salaries, writ petition should not be entertained and the party should be directed to resort to the remedy of filing the suit for recovery of monies. 5. The first question for our consideration would be whether this court should exercise its extra ordinary jurisdiction or leave the parties to take the recourse to the ordinary civil remedy of the suit. The law is now settled that the rule of alternative remedy is a rule of procedure and convenience and that is always open to the writ court in the cases where the order is a nullity at law violative of law or violative of fundamental rights or principles of natural justice or violative of statutory provisions and considering the aspects of the matter to invoke its extra ordinary jurisdiction. In the instant case, we are dealing with a class of petitioners who are teaching in the schools and all that they claim is that salaries which they are entitled to considering the provisions of the M.E.P.S. Act should be paid to them. In our opinion, in these circumstances, the respondent management would not be any way put to any hardship and or legal defences denied to them as those can also be considered while considering the exercise of our extra ordinary jurisdiction. We therefore, reject the contention as raised on behalf of the respondents that the proper remedy is by way of suit. In our opinion, these will be fit cases for us to exercise our extra ordinary jurisdiction more so as the petitions have been entertained, admitted and pending for final hearing. 6. We may next deal with the contention in so far as the issue of limitation is concerned. In the judgment in the case of Brian O.D. Pasgon (supra), the court really was not dealing with the issue of limitation but was merely considering the issue of granting writ of mandamus to give effect to administrative instructions which were already in force. We do not find from the judgment that the learned Bench has addressed itself directly on the issue of limitation. We may however, refer to some judgments of the Supreme Court in that aspect. In Laxman Dundappa Dhamanekar and Ors. Vs. Management of Vishwa Bharata Seva Samiti & Ors. 2001 (8) Supreme Court Cases 378 in the matter arising from the provisions of Karnataka Private Educational Institutions (Discipline and Control) Act, 1975 and rules framed thereunder on the issue regarding claim for salaries, the Apex Court after considering various contentions including the plea of limitation was pleased to hold as under : “Therefore, they are not entitled to arrears of salary for the last ten years. Under such circumstances, we are of the view that the appellants are entitled to arrears f salary only for the last 3 years.”. In Union of India and Ors. Vs. Tarsemsingh (2008) 8 SCC 648 one of the issue was whether the petitioner was entitled to arrears previous to three years period to filing of the writ petition. Laches or delay is one of the grounds on which the court can refuse to exercise its extra ordinary jurisdiction. Similarly if a suit had been filed for arrears, the Management could have pleaded limitation and the civil court in such circumstances would not have been able to grant relief for the period of three years previous to the filing of the suit as it would be barred by limitation unless there was an acknowledgment. That was the dispute which was considered in Tarsemsingh. The Supreme Court there observed that the delay of 16 years in that matter would affect consequential claim for arrears and as such the High Court was not justified in directing payment of arrears relating to 16 years and that too with interest. The court observed that the relief ought to have been restricted to arrears only for the period of three years before the date of the writ petition or the date of demand whichever was lessor. In Municipal Corporation of Grater Bombay Vs. Bombay Tyres International Ltd. And Ors. (1998) 4 SCC 100 in the matter pertaining to recovery of refund of amounts paid by mistake of law, the learned court observed that the claim for refund has to be made within reasonable time. The court held that in such matters what the courts normally consider in considering reasonable time is the period prescribed by the law of limitation for filing of the suits. 7. In our opinion, therefore, considering the law declared by the Supreme Court, petitioners cannot be placed on a higher pedestal than what they would have been if they had filed the suit. In our opinion, therefore, the arrears if any shall be restricted to three years previous to the filing of the suits. We must also bear in mind that normally the Management pay salaries from the fees received from the students in case of non aided schools. If the managements are to be saddled with the arrears, it will be impossible for the Management to make retrospective recoveries from the students who are no longer studying in the school. In our opinion, therefore, justice and equity demand that the relief in so far as arrears are concerned be restricted accordingly. In the light of that in our opinion, these petitions can be disposed of by directing the Management to pay salaries in terms of the M.E.P.S. Act and to pay arrears which would be restricted to a period of three years from the date of filing of the petition Rule made absolute in all the petitions accordingly. In the circumstances of the case, there shall be no order as to costs. (A.A. SAYED,J.) (F.I. REBELLO,J.)