hvn IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2365 OF 2008 WITH WRIT PETITION NO. 2653 OF 2008 WITH WRIT PETITION NO. 2364 OF 2008 WITH WRIT PETITION NO. 2620 OF 2008 WITH WRIT PETITION NO. 2552 OF 2008 WITH WRIT PETITION NO. 164 OF 2008 WITH WRIT PETITION NO. 174 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.J. Maniyar for Petitioners in all Petitions. Mr. A.G. Kothari for R. No. 5 in all petitions. Mr. Milind More, AGP for R.Nos. 1 to 3 (WP 2365/08, WP 2653/08). Ms.S.Sreedharan, AGP for R.Nos. 1 to 3 (WP 2364/08). Ms. Mugdha Jadhav, AGP for R.Nos. 1 to 3 (WP 2620/08). Mr. R.R. Bhosale, AGP for R.Nos. 1 to 3 (WP 2552/08). Ms. I. Calcuttawala, AGP for R. Nos. 1 to 3 (WP 164/08). Ms. Smita Gaidhani AGP for R.Nos. 1 to 3 (WP 174/08). CORAM : F.I. REBELLO & A. A. SAYED, JJ. DATED : APRIL 06, 2010 P. C.: The submission of the Petitioners is that these are primary schools which are covered by the provisions of the Grant in Aid Code for Private Primary School in Greater Bombay. It is submitted that whether the code is statutory was the subject matter in Writ Petition No. 993 of 2009 in the case of Azmatunnisa Abdul Khalique. Vs. State of Maharashtra and Others which has been disposed of by the Division Bench of this court by order dated 8.2.2010 where an identical question was in issue and this court has held that the Grant in Aid Code for Private Primary School in Greater Bombay is statutory and that the schools which are recognized under the said Code have to pay pay-scales and other conditions of service as laid down in terms of the Code. It is therefore submitted that this petition be disposed of in terms of the directions issued in the said petition. 2. On the other hand on behalf of the contesting respondents (Management of the schools), the learned counsel submits that this Code did not consider one important aspect that in respect of schools which did not receive grant in aid, the Corporation is not empowered to frame a Code in terms of Section 62(c) of the Mumbai Municipal Corporation Act, 1818. The learned counsel submits that the said provision only empowers the Corporation to frame grant in Code in respect of the schools which receive grants. In the instant case, though school is recognized, it does not receive grants and consequently the grant in aid code would not be applicable. 3. We have heard the learned counsel for the Petitioners and respondents. It is correct that on a reading of section 62(c)(3), that in matters connected with grants the Corporation shall administer aid to schools complying with the necessary conditions in accordance with the provisions of the Government Grant in Aid code subject to such modifications, if any as been made from time to time by the Corporation with the previous sanction of the State Government. The grant in aid Code for Private Primary Schools in Grater Mumbai has been made with sanction of the State Government. The said Code however, makes various provisions which include Rule 5 providing for conditions of recognition. The Petitioners admittedly have been recognized in terms of the provisions of the very Code Rule 5(x) reads as under : “5. Conditions of Recognition : In granting recognition for the first time and thereafter in continuing it, the Education Officer, Bombay Municipal Corporation, shall consider (due regard being had to the special circumstances of each institution and locality) whether -..........” The pay scales and other conditions of service are as laid down by the Education Department in Appendix 7. In Appendix 7 further rules are set out. In Rule 9 it is set out that every institution recognized by the Bombay Municipality should adopt as far as possible the same pay scales of salaries and allowances for their employees as may be in force for Municipal teachers from time to time. However, the Management may have pay scales other than the Municipal Scales, with previous permission of the department. 4. The respondents have not challenged the vires of the provisions of the Grant in Aid Code dealing with non-aided schools. On the contrary, they have sought recognition in terms of the grant in aid code and have been granted the same. The issue now canvassed before us by the learned counsel for Respondents that the Corporation could not have been framed code for payment of pay scales to teachers of unaided school under Section 62(c) of the Mumbai Municipal Corporation Act cannot be considered in the light of the reliefs prayed for in the present petition. If the Petitioners are advised, it will be open to them to challenge the provisions independently and the disposal of this petition would not stand in their way. That question is left open for consideration in the event the Management of the primary non aided school choose to impugn the same as being ultra vires section 62(c) of the Mumbai Municipal Corporation Act. 5. It may also be noted from Rule 5 and Rule 9 of the Appendix 7 that it is not as if the Management of the non aided school cannot have pay scales other than which are payable to municipal teachers. That however, requires previous permission of the department. A valid settlement between the teachers and the Management of payment of salaries, without discrimination amongst teachers could be also the basis for the Corporation to exercise powers in terms of Appendix 7 of the Code. It will therefore, be open to the Management to move the department on that count. Untill such time as the Managements move the department, the schools recognized under the provisions of the grant in aid code, would have to follow and will be bound to pay the pay scales in terms of the Code unless there be settlement or agreement with teachers which is not contrary to law. 6. We may mention that in so far as merits of each petition are concerned, we have not decided the controversy and left it open for consideration by the Education Officer of the Bombay Municipal Corporation who will decide the same according to law, if any dispute is raised by the management. 7. Having said so, the observations in the judgment in Azmatunnisa Abdul Khalique (supra) to which one of us (Rebello,J.) was party would be applicable. In the light of that present petitions are disposed of in terms of the following directions : (1) The Chief Officer of the B.M.C. to hear the Petitioners and the Management and to issue suitable directions in terms of the Code regarding payment of salaries after hearing the parties including terms of settlement worked out between the parties, if any. (2) If the directions regarding payment of cheque have not yet been implemented, as directed in W.P. No. 993 of 2009, where four months time has been given, the Corporation to ensure that the directions are complied with. (3) The enquiry, if any, to be completed not latter than three months from today. If in terms of the finding in the enquiry, amounts are not paid within the time granted by the Education Officer, it will be open to the Education Officer to take such steps which may include de-recognition. That however, will be subject to whatever rights the Management may have. We also make it clear that if the Education Officer decides to de-recognize, the institution for failure to comply with the direction regarding nonpayment of salaries as directed, sufficient time be granted to the Management to comply with the directions. Rule made absolute accordingly. (A.A. SAYED,J.) (F.I. REBELLO,J.)