AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7256 OF 2006 Smt. Vandana Kashinath Gamne, [Avhad], residing at Flat No.4, Kailas Sagar Apartment, Ayodhya Colony, Datta Nagar, Gangapur Road, Nashik – 13. ) ) ) ) ) ... Petitioner Versus 1 The State of Maharashtra ) 2 The Zilla Parishad, Through the Chief Executive Officer, Zilla Parishad, Nashik. ) ) ) 3 The Education Officer, Secondary Medium, Zilla Parishad, Nashik. ) ) 4 Vasantrao Narayanrao Naik, Education Society, Nashik, through the Secretary, having its office at Dongare, Vidyarthi Vastigriha, Late Vasantrao Narayanrao Naik Marg, Canada Corner, Nashik – 422 002. ) ) ) ) ) ) ) ... Respondents Mr. M.S. Karnik for the petitioner. Ms. S.S. Bhende, AGP for the State. Mr. S.K. Shinde for respondent 4. CORAM : SMT. RANJANA DESAI & SMT. ROSHAN DALVI, JJ. DATE ON WHICH THE JUDGMENT RESERVED : 26TH FEBRUARY, 2008. AJN 2 DATE ON WHICH THE JUDGMENT PRONOUNCED : 12TH MARCH, 2008. JUDGMENT : (Per Smt. Ranjana Desai, J.) Rule. Respondents waive service. By consent of the parties, taken up for hearing forthwith. 1. The petitioner has done her M.A. She has also completed B.Ed course. She was appointed as Assistant Teacher on 10/7/1996 in respondent 4-Institution on D.Ed scale (Rs.1,400/- - Rs.2,600/-). She was appointed in non-aided school because at that time, no post of Assistant Teacher was vacant in aided school. The petitioner, on her on accord, agreed to work on D.Ed scale in aided school. On 6/3/1997, she gave an undertaking stating that if her appointment is made on B.Ed scale, she will not claim any seniority as per GR dated 5/6/1992 and she will not claim graduate scale (B.Ed scale). The petitioner is thus working on D.Ed scale in aided school on her own volition. 2. According to the petitioner, a seniority list was published and from time to time, right from 1997, Assistant Teachers have been appointed in the vacant posts of B.Ed scale. According to her, many vacancies have arisen in the school in the B.Ed scale and AJN 3 though the petitioner was qualified and had been working in the B.Ed scale, she was never appointed against B.Ed scale. The petitioner is, therefore, claiming B.Ed scale from 19/3/1997 and the difference of wages of D.Ed scale and B.Ed scale. 3. The petitioner has placed reliance on communication dated 23/12/1998 issued by respondent 3 stating that the petitioner had become permanent and, there was no need for the approval of the appointment of the petitioner. According to the petitioner, she had made representation dated 4/12/2004 to the respondents requesting that she may be granted B.Ed scale. Respondent 3 took cognizance of the said representation and directed respondent 4 that having regard to the policy of the Government, the available trained teachers should be adjusted against the vacancies which arise for the trained teachers. Again by representation dated 1/12/2005, the petitioner requested respondent 4 that she may be given B.Ed scale because the post had become vacant by the resignation of one Mr. Tidke. She sent another representation dated 29/6/2006. The respondents did not consider the petitioner's representation. According to the petitioner, the respondents transferred those who had made similar AJN 4 grievances to far off places. 4. It is also the case of the petitioner that by communication dated 4/9/2006, the Education Officer directed respondent 4 to take necessary action for grant of B.Ed scale to the petitioner. According to the petitioner because of this, the petitioner was transferred to a far off place. We are informed that the petitioner has challenged that transfer. 5. Thus, the petitioner's case is that the respondents have contravened the policy of the Government by not granting B.Ed scale to the petitioner and, hence, their action is illegal. The petitioner has contended that she is sincerely and honestly working in the D.Ed scale. The respondents have taken advantage of her and made her work on D.Ed scale. The petitioner has, therefore, prayed that a direction be issued to the respondents to grant to the petitioner B.Ed scale with effect from 19/3/1997 in respondent 4- Institution and the respondents be directed to pay to the petitioner the difference of wages of the D.Ed scale and B.Ed scale from 19/3/1997 till the grant of B.Ed scale along with interest at 12% per annum. AJN 5 6. Affidavits in reply are filed by Mr. Kondaji R. Avhad, the Secretary of respondent 4-Institution and Mr. Nivrutti M. Avhad, the Chairman / President of respondent 4-Institution. Affidavit in reply is also filed by Ashok J. Sonawane, Deputy Education Officer, (Secondary), Zilla Parishad, Nashik. 7. We have heard Mr. Karnik, learned counsel appearing for the petitioner. Mr. Karnik submitted that the petitioner is a qualified teacher. She is M.A., B.Ed and as per the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, “the said Act”) and the Rules made thereunder (for short, “the said Rules”), she is entitled to B.Ed scale. He submitted that the respondents cannot deny B.Ed scale to the petitioner on the ground that the petitioner had given an undertaking. He submitted that it is well settled that there is no estoppel against law. He referred to section 4 of the said Act, which empowers the Government to make rules providing for the minimum qualifications for recruitment, duties, pay, allowances, etc. and other conditions of service of employees of private schools. Learned counsel drew our attention to Rules 2(j) and (k) of the said Rules which define AJN 6 the terms “trained graduate” and “trained teacher” respectively. He submitted that all trained teachers are trained graduates but all trained graduates may not be trained teachers. He submitted that the petitioner is B.Ed and thus a trained teacher. He drew our attention to section 4 of the said Act which prescribes terms and conditions of service of employees of private schools. He drew our attention to Rule 6 which prescribes qualification of teachers. Learned counsel contended that the moment a person is appointed, he is entitled to pay scales as provided under the said Rules. Learned counsel submitted that the undertaking taken from the petitioner is void and unlawful. Learned counsel relied upon section 23 of the Indian Contract Act and submitted that inasmuch as by reason of the undertaking, the petitioner is deprived of B.Ed scale to which she is entitled under the said Rules, the undertaking is unlawful because the undertaking seeks to do something which is forbidden by law. It defeats the provisions of the said Rules. He submitted that as per the public policy, teachers should be handsomely paid. Though the petitioner is entitled to B.Ed scale, she is given D.Ed scale by reason of the undertaking and, therefore, the undertaking is opposed to public policy. Any contract by which something less than the petitioner's entitlement is paid to AJN 7 the petitioner must be held to be forbidden by law. He submitted that if the undertaking is examined in the light of section 23 of the Indian Contract Act, it will have to be struck down. Mr. Karnik also contended that the action of the respondents is mala fide. 8. In support of his submissions, learned counsel relied on the judgment of the Supreme Court in Pomal Kanji Govindji & Ors. v. Vrajlal Karsandas Purohit & Ors., (1989) 1 SCC 458 where the Supreme Court has observed that freedom of contract is permissible provided it does not lead to taking advantage of the oppressed or depressed people. He also relied on the judgment of the Supreme Court in P.R. Deshpande v. Maruti Balaram Haibatti, (1998) 6 SCC 507 where the Supreme Court has observed that the principle of estoppel has no application where constitutional or statutory rights or liabilities are involved. He relied on the judgment of the Calcutta High Court in Universal Petrochemicals Ltd. v. Rajasthan State Electricity Board, AIR 2001 Calcutta 102 where the Calcutta High Court has, inter alia, observed that there can be no contract which could defeat the provisions of any law. Learned counsel relied on the judgment of AJN 8 the Division Bench of this court in Teachers Association for Non- Aided Polytechnics v. Hindi Seva Mandal, Bhusawal, 2003 (Supp.) Bom.C.R. 846. In that case, the contention was that the petitioners therein had consented to work on consolidated salary as set out in appointment letters and, hence, they were estopped from asking for higher benefits. The Division Bench reiterated that there was no estoppel against statutory provisions and the petitioners therein must be paid as per the pay scales prescribed under the said Act. The Division Bench further held that the petitioners were entitled for a mandatory direction against their employer for implementing the pay scales as per the said Act. 9. Learned counsel pointed out that several teachers, who are appointed later in point of time, have been given benefit of B.Ed scale. Some of them are not qualified to be appointed against B.Ed scale because they are only B.P.Ed. He drew our attention to the judgment of this court in Shivshakti Shikshan Sanstha & Anr. v. Nilkanth s/o. Kawaduji Shiv Ankar & Anr., 2005 (3) Mh.L.J. 969 where it is held that a candidate having B.Com, B.P.Ed. qualification is not eligible to be appointed as Assistant Teacher in AJN 9 substantive capacity for teaching the subjects. It is further observed that the said Rules require that Assistant Teacher should possesses qualification of graduation with B.Ed as training qualification. Learned counsel contended that the respondents have committed an illegality by appointing such teachers. 10. Learned counsel submitted that the wife of the Secretary is the Chairperson of the Child Welfare Committee of Zilla Parishad, Nashik and, therefore, in discriminatory and arbitrary manner, B.Ed scale is denied to the petitioner by the respondents. 11. Learned counsel also relied on the judgment of the Supreme Court in Sanjit Roy v. State of Rajasthan (1983) 1 SCC 525 and contended that Article 23 of the Constitution is of the widest amplitude. He submitted that if a person is paid less than the minimum wage, there would be a breach of Article 23 of the Constitution. He submitted that hence, the Court will have to issue necessary direction despite the undertaking given by the petitioner. 12. Mr. Karnik further submitted that even on principle of parity, AJN 10 the petitioner must be paid B.Ed scale. In this connection, he relied on the judgment of the Division Bench of this court in Raskar Vidya Damodar @ Mrs. Bhujbal Vidya v. Maharashtra Arogyamandal & Ors., 2000 (4) Mh.L.J. 129. 13. As against this, learned counsel Mr. Shinde, appearing for respondent 4-Institution submitted that the petitioner is praying for B.Ed scale from 19/3/1997. She was appointed in the year 1994 and the petitioner has filed the petition in the year 2006. The petition, therefore, suffers from laches and, hence, deserves to be dismissed on that ground alone. He contended that a bare reading of the undertaking would show that the petitioner has voluntarily given it. The contents of the undertaking do not even remotely show that the undertaking was demanded by the respondents. Learned counsel contended that in July, 1996, the petitioner was given appointment against the B.Ed scale in an unaided school. She herself volunteered to take employment in aided school obviously because of the job security which aided school offers. AJN 11 14. Learned counsel pointed out that the conduct of the petitioner also does not entitle her to get any relief. The petitioner challenged her transfer. Her application was dismissed. She carried an appeal from that dismissal order. Her appeal was also dismissed. Thereafter, the petitioner went on hunger strike. Thus the petitioner is indulging in acts of insubordination. Learned counsel submitted that the judgments of the Supreme Court on which reliance is placed are not applicable to the present case. They can be distinguished on facts. 15. Learned counsel relied on the judgment of the Supreme Court in Commissioner of Customs, Mumbai vs. Virgo Steels, Bombay & Anr. (2002) 4 SCC 316 in support of his submission that a right created by statute, if it is solely for the benefit of an individual, can be waived by him. He submitted that here the petitioner has voluntarily waived her right and, therefore, the undertaking binds her. 16. We have also heard Ms. Bhende, learned AGP appearing for the State. She has taken us to the affidavit of Mr. Ashok AJN 12 Sonawane, Deputy Education Officer. She submitted that the power to grant B.Ed scale to an employee vests in respondent 4- Institution and, therefore, by letter dated 4/9/2006, the Deputy Education Officer has directed the management to take proper action as per rules. 17. There is no dispute about the fact that the petitioner is M.A., B.Ed. Respondent 4-Institution had appointed the petitioner on 10/7/1996 on B.Ed scale in unaided school. The petitioner wanted to work in a school getting grant. Therefore, she made an offer and gave an undertaking dated 6/10/1997. In that undertaking, she stated that if her appointment is made on B.Ed scale, she will not claim benefit of seniority as per GR dated 5/6/1992 and she will not claim graduate teachers' scale. There can be no doubt about the fact that the undertaking is voluntary. It does not, in any way, indicate that the petitioner was forced to give that undertaking. Since the respondents had offered to appoint the petitioner on B.Ed scale and the petitioner was appointed as such, it does not stand to reason that they would force the petitioner to work on D.Ed scale. In fact that is not even the case of the petitioner that she was forced to work on D.Ed scale. AJN 13 18. There can be no doubt that the said Act prescribes minimum qualifications, pay scales, etc. for teachers. The moment, a person is appointed as a teacher, he is entitled to the scale as per the said Rules. The question is whether by taking an undertaking from a teacher, the teacher can be deprived of the pay scale to which he would be ordinarily entitled to. Can a teacher who is qualified to be appointed on B.Ed scale be made to work on D.Ed scale by taking an undertaking from him is the moot question. Reliance is placed by the petitioner's counsel on section 23 of the Contract Act. Undoubtedly, if the consideration of an agreement is forbidden by law, or if it is of such a nature that it would defeat the provisions of any law or it is against the public policy, it is unlawful. Parties cannot enter into an agreement which is forbidden in law. More so, if a person is forced to enter into a contract which is forbidden by law or which would defeat the provisions of any law or which is opposed to public policy, such a contract will have to be declared as unlawful. We have already noted that in this case, there is nothing to indicate that the petitioner was forced to give the undertaking. In fact, she was appointed in B.Ed scale in an unaided school and she opted for appointment in aided school on AJN 14 D.Ed scale. 19. The petitioner is now trying to wriggle out of the undertaking on the ground that the undertaking is unlawful on the thrust of section 23 of the Indian Contract Act. We are not happy with this conduct of the petitioner. After rejecting the offer made to her to appoint her on B.Ed scale in unaided school, the petitioner, for her own benefit, agreed to work on D.Ed scale in aided school. She is now making allegation that the management is taking advantage of her. It is true that the management should not have allowed the petitioner to give such undertaking. But the petitioner's conduct dis-entitles her from getting any relief from this court in its writ jurisdiction. 20. We shall now turn to the judgment on which reliance is placed by the petitioner. In Pomal Kanji Govindji's case (supra), the Supreme Court was considering whether long term mortgages in the present inflationary market in fast moving conditions are clogs on equity of redemption and as such the mortgages are redeemable at the mortgagors' instance before the stipulated period. The Supreme Court was essentially considering the AJN 15 doctrine “clog on the equity of redemption” as a rule of justice, equity and good conscience. It is in this context that the Supreme Court held that the freedom of contract is permissible provided it does not lead to taking advantage of the oppressed or depressed people. The observations of the Supreme Court were, of course, made in the facts and circumstances of the case which was before it. This is not a case where the petitioner is a depressed or an oppressed person who has been taken advantage of. The principle applicable to the clog on the equity of redemption can hardly be applied to this case. 21. In P.R. Deshpande's case (supra), the Karnataka High Court had granted six months' time to the appellant-tenant for vacating the premises in question. It had directed the tenant to file an undertaking within four weeks. He filed the undertaking that he will vacate the suit premises within six months. The landlord raised the objection that the appellant was precluded from challenging the High Court's order in the Supreme Court in view of the undertaking. The Supreme Court observed that the constitutional remedy of special leave petition under Article 136 of the Constitution of India AJN 16 cannot be denied to the appellant therein because of the undertaking. Principles of election or estoppel are not applicable to the remedy under Article 136 which is a constitutional right. This judgment can have no application to this case. Here the undertaking was voluntarily given and this court is not concerned with any constitutional remedy of the petitioner. 22. The judgment of the Calcutta High Court in Universal Petrochemicalss' case (supra) reiterates the principle that the statutory provision is the sovereign will of the legislature and the same binds everyone and that there can be no contract which could defeat the provisions of any law. Undoubtedly, a contract between the parties cannot override statutory provisions. But, in this case, as we have already stated it was not the respondents, who persuaded the petitioner to give undertaking. In fact, the respondents appointed the petitioner in unaided school on B.Ed scale and offered to pay her B.Ed scale. The petitioner herself opted out. The action of the respondent was totally in accordance with the said Act and the said Rules. The petitioner wanted job security and, therefore, she opted for D.Ed scale. She cannot turn AJN 17 around and make a grievance particularly after a long period of 10 years. 23. So far as the judgment of this court in Teachers' Association's case (supra) is concerned, in that case the petitioner's consent for payment of consolidated salary was recorded in the appointment letter. On behalf of the Government, it was stated that therefore, the petitioner therein was estopped from raising the dispute for payment of higher financial benefits. It is in this context that this court observed that there was no estoppel against statutory provisions such as the said Act and the said Rules. In this case, the appointment of the petitioner was in fact in unaided school on B.Ed scale. It is not even the case of the petitioner that the respondents obtained the undertaking from her. This case has, therefore, no application to the facts of the case on hand. 24. It is true that the Raskar Vidya Damodar's case (supra), this court has held that a person must receive salary as per the prescribed pay scale. In fact, in this case, the respondents had offered to pay B.Ed scale to the petitioner by appointing her in AJN 18 unaided school. The petitioner refused to work there. She wanted to work in aided school. There was no vacant post of B.Ed teacher in aided school. Hence, she chose to work on D.Ed scale in aided school. This judgment, therefore, has no application to the facts of the present case. But, undoubtedly, in future, whenever occasion arises, the petitioner can be appointed on B.Ed scale in accordance with law and paid accordingly. 25. We also feel that reliance placed by Mr. Karnik on the judgment of the Supreme Court in Sanjit Roy's case (supra) is misplaced. In that case, the Supreme Court has held that deducting payment from minimum wage proportionate to less work done than the fixed standard norm violates Article 23 of the Constitution. The observations on which reliance is placed by learned counsel for the petitioner are in the context of forced labour which is prohibited by Article 23. The Supreme Court has observed that any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action may properly be regarded as force and, if labour or service is compelled as a result of such force, it would be `forced labour'. AJN 19 By no stretch of imagination, this judgment can be applied in this case. No force at all, was exerted on the petitioner. She has voluntarily accepted the post. 26. Though in the facts of this case, no relief can be granted to the petitioner, in our opinion, it is not advisable for the school management to permit parties to give such undertakings and appoint them in the school. We have noticed that in several matters, undertakings are given by the teachers. After securing employment, petitions are filed in the Court stating that the undertakings are void as they are against the provisions of law. We find that the teachers in need of jobs get into the Institutions by giving undertaking and then try to wriggle out of it on the specious ground based on section 23 of the Contract Act. Perhaps in a given case, it may be possible to hold that such undertakings are bad in law. We, therefore, feel that the school managements should refrain from taking such undertakings and appointing teachers. AJN 20 27. There is one more reason why the petitioner is not entitled to any relief. The petition suffers from gross laches. The appointment of the petitioner was made as far back as in 1996 and the petition is filed in the year 2006 claiming arrears from 1997. Though the prayer is that the petitioner may be given B.Ed scale, on a query made by this court, learned counsel for the petitioner contended that the petitioner is not giving up her claim for seniority and will, at the appropriate stage, agitate it. None of the candidates who are likely to be affected are made party to the petition. 28. We have also examined the petitioner's grievance that some persons appointed later in point of time, who are junior to the petitioner, have been given B.Ed scale. Certain persons are named in the petition in this connection. This contention is denied by Mr. Avhad, the Chairman of respondent 4 in his affidavit. He has stated that the management is required to maintain a combined seniority list for a particular cadre of all persons in that cadre working in all the schools. Mr. Avhad has stated that five persons named by the petitioner are appointed either in 1992 or in 1994 as against the appointment of petitioner in July, 1996. He has stated that they were initially appointed in B.Ed scale but in the AJN 21 schools which were not receiving grants. As and when the posts of trained graduate teachers have fallen vacant in the schools receiving grant, as per the requirement, management has transferred the said teachers from non-aided schools to aided schools. Upon such transfer, proposal was sent to the Education Officer for approval. The claim made by the petitioner