: 1 : wp-1989-11=.doc USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1989 OF 2011 Smt. Suvarna Ramchandra Kamble .. Petitioner v/s. The President, Samta Nagar Galedharak Mahasangh & Ors. .. Respondents ......... Mr. Vinod Tayade for the petitioner Mr. Chandrakant Bidkar in person for respondent nos. 1 to 3. Mr. Sanjeev Rairkar for respondent no.4 ......... CORAM : A.M. KHANWILKAR & R.Y.GANOO, JJ. DATE : 1st JULY, 2011. P.C. : 1. Heard. Rule. Rule made returnable forthwith, by consent. Counsel for the respondents waive notice. 2. As short question is involved, petition is taken up for final disposal forthwith, by consent. 3. Heard Counsel for the petitioner as well as respondent no.4. Mr. Chandrakant Bidkar appears in person for respondent nos. 1 to 3. The relief claimed in this petition under Article 226 of the Constitution of India is for declaration that order passed by Shikshan Pramukh dated : 2 : wp-1989-11=.doc 29th September, 2010 is binding on the respondent management and therefore to direct the respondent management to pay the arrears of salary of Rs. 11,74,580/- as per the chart enclosed to communication dated 28th December, 2010, Exh.”O” within eight weeks from the date of the order to be passed by this Court. 4. The petitioner had filed Writ Petition No.2081 of 2009, in which grievance was made that the respondent management had failed to pay the salary / emoluments to the petitioner as per the provisions of the the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as M.E.P.S. Act) and Rules framed thereunder. The division bench of this Court on 16th December, 2008 disposed of the said writ petition by issuing directions to the respondent no.4 to consider the representation of the petitioner and issue appropriate directions to the respondent management. The order reads thus :- “1. The grievance of the petitioner is that the petitioner who was working as a teacher in the school of respondent No.3 has not been paid in accordance with law. If the petitioner was working as an Assistant Teacher in a recognized school, she is entitled to payment of salary as per the provisions of the M.E.P.S. Act and Rules framed thereunder. However, the question whether the petitioner was paid as per law or not, : 3 : wp-1989-11=.doc how much the petitioner was to be paid every month, are all disputed questions of facts and, therefore, in our opinion, the following order would meet the ends of justice: :: O R D E R :: [i] The petitioner shall within a period of four weeks from today shall make an application to respondent No.4 giving all details about her appointment, her work, the amount she has received per month as salary and about the amount to which she is entitled as per law. Before filing that application before respondent No.4, the petitioner shall serve copy thereof on respondent Nos.1 & 2. The Management thereafter, within a period of four weeks from the date of receipt of copy of the application of the petitioner, shall submit its reply before the Education Officer. Education Officer thereafter after granting an opportunity of being heard to both sides make an order determining how much amount is payable by respondent Nos. 1 & 2 to the petitioner. The amount, as determined, shall be paid by respondent Nos.1 & 2 subject to its right to challenge validity of that order. If according to the Management it is entitled to reimbursement of the salary grant from the School Board, the Management shall be at liberty to make such a claim for reimbursement. If such a claim is made, it shall also be decided in accordance with law. [ii] Rule is made absolute accordingly. No order as to : 4 : wp-1989-11=.doc costs”. (emphasis supplied) 5. On plain reading of this order, the limited issue that remains to be addressed is as to what amount was due and payable to the petitioner towards monthly salary / emoluments for the period, during which she worked as an Assistant Teacher. The fact that the respondent School is a recognized school is not in dispute. It is also not in dispute that the petitioner was appointed by the respondent management in the year 1999 and the petitioner worked as an Assistant Teacher in the School run by the respondent management until she was removed from service on 31st May, 2009, as Education Officer did not accord approval to her appointment on the said post. The order of removal was challenged before the Tribunal. We are not concerned with the said issue in the present petition. As aforesaid, in the earlier petition, the grievance of the petitioner was about non-payment of emoluments / salary as was payable to her from time to time during the period when she served the respondent’s school as per the provisions of the M.E.P.S. Act and Rules framed thereunder. That grievance has already been answered in favour of the petitioner. The order passed by the division bench of this Court, which is reproduced in its entirety, clearly holds that the petitioner was entitled to payment of salary as per the provisions of the M.E.P.S. Act and Rules framed thereunder for the : 5 : wp-1989-11=.doc relevant period. The Court also held that the respondent management was liable to pay the amount due and payable to the petitioner. The quantum of amount, however, was ordered to be worked out by the respondent no.4 within the time specified in the order. The petitioner accordingly, made representation to the respondent no.4 and placed on record the amount received by her from time to time and the deficit amount payable to the petitioner for the relevant period. The respondent management was given opportunity by the respondent no.4 before passing order dated 29th September, 2010. 6. After considering all aspects of the matter, the respondent no.4 has directed the respondent management to pay amount as demanded by the petitioner for the period between 1999 to 2009 towards outstanding salary payable to the petitioner as per the provisions of the M.E.P.S. Act and Rules framed thereunder, within 30 days from the date of the order. It is not in dispute that the respondent management has not challenged the said decision of the respondent no.4. In this backdrop, the petitioner has been once again forced to file the present writ petition before this Court. The petition is resisted by the respondent management on the following grounds. (i) Firstly, that the same is premature. (ii) Secondly, that the petitioner was not appointed against the : 6 : wp-1989-11=.doc permanent vacancy or after following due procedure, prescribed for appointment of an Assistant Teacher. (iii) Moreover, the petitioner was clearly informed that she would be paid nominal amount till the appropriate Authority was to accord approval for her appointment. It is then stated that the appropriate Authority declined to grant approval of the appointment of the petitioner. (iv) It is further stated that the strength of the students in the respondent school is depleting, which has forced the respondent school to close divisions one after the other and rendering permanent teachers surplus. (v) For all these reasons, it is stated that the respondent management is not in a position to comply with the directions issued by the respondent no.4. Mr. Chandrakant Bidkar, who claims to be the practicing advocate and is appearing in person for respondent nos. 1 to 3 has also relied on two decisions of our High Court reported in 2002(4) Mh.L.J. 225 in the case of Ashok Asramji Gabhane Vs. Presiding Officer, School Tribunal, Nagpur Ors. and reported in 2009(5) Mh.L.J. in the case of Jaimala Bhaurao Ramteke Vs. Presiding Officer, School Tribunal, Nagpur & Ors. : 7 : wp-1989-11=.doc 7. After having considered the objections taken by the respondent management, we have no hesitation in holding that the same deserves to be stated to be rejected. We fail to understand as to how this petition is premature. The respondent no.4 in terms of the directions given by this Court in Writ Petition No.2081 of 2009 has decided the claim of the petitioner vide order dated 29th September, 2010. The respondent management has been ordered to pay the amount as claimed by the petitioner, which is due and payable to the petitioner for the period between 1999 to 2009, within 30 days. The petitioner has approached this Court on account of non compliance of the directions given by the respondent no.4. Hence, the argument that the present petition is premature, does not commend to us. 8. The other arguments of the respondent management on merits, clearly overlooks the purport of the opinion recorded in the earlier decision of the division bench of this Court, while deciding Writ Petition No.2081 of 2009 dated 16th December, 2009. The said decision is binding on the respondent management as it has been allowed to attain finality. It is not open to the respondent management to now raise issues, which were available to the respondent management which could be agitated before this Court on the earlier occasion. The argument of respondent management that the petitioner was not : 8 : wp-1989-11=.doc appointed against the permanent vacancy or as per the procedure prescribed in the M.E.P.S. Act and Rules framed thereunder or that the petitioner had accepted the appointment with clear understanding that she will be paid nominal amount cannot be allowed to be agitated in the present petition. On the earlier occasion, the Court clearly opined that the petitioner was entitled for payment of salary as per the provisions of the M.E.P.S. Act and Rules framed thereunder. That decision is binding on the respondent management. The fact that the respondent management is not in a position to pay the amount as quantified by the petitioner, on account of financial constraint, cannot be the basis to deny the relief claimed by the petitioner. 9. In the first reported decision, the appointment of the concerned Teacher was held to be void ab-initio to deny the relief claimed by the Assistant Teacher. That is not the case in the present matter. In the present case, the respondent management conceded that the petitioner was working with the respondent school for the period between 1999 to 2009. As a matter of fact, the respondent management submitted proposal for approval to the respondent no.4 for approving the appointment of the petitioner, which, however, was rejected. That does not mean that the petitioner was not appointed by the Management or did not work during the period between 1999 to : 9 : wp-1989-11=.doc 2009. The fact that no approval has been granted by the appropriate Authority to the said appointment of the petitioner, would not extricate the Management to pay the salary of the petitioner as per the provisions of M.E.P.S. Act and Rules framed thereunder for the period during which she had worked with respondent management school. That is the settled position and has been restated in the earlier order passed by this Court, which is reproduced in its entirety. 10. The second reported decision relied by the respondents is again of no help to the respondent management. In that case, the school was recognised on year to year basis and the appointment of the Teachers came to be approved by the Education Department only for the particular years during which there was valid recognition. In the context of the controversy which arose in that case, the observations contained in paragraph 17 and 18, on which reliance is placed by the representative of the respondent nos. 1 and 3 will have to be understood. That has no bearing on the controversy that needs to be addressed in the present petition. 11. As aforesaid, the limited issue that remains to be considered after the decision dated 16th December, 2009 in Writ Petition No.2081 of 2009 was to quantify the amount payable to the petitioner, which : 10 : wp-1989-11=.doc matter was left open to be adjudicated by the respondent no.4. It is not in dispute that the petitioner submitted detail statement of the amount actually received by the petitioner from time to time and also gave details of the amount due and payable to the petitioner for the relevant period as per the provisions of the M.E.P.S. Act and Rules framed thereunder. It is also not in dispute that the respondent management was given opportunity to contest the claim of the petitioner. It is only thereafter, the respondent no.4 has decided the claim of the petitioner and issued directions to the respondent management to pay the amount towards salary to the petitioner for the period between 1999 to 2009 within a period of 30 days from the date of the order. Since, that direction has neither been challenged nor been complied by the respondent management, the matter has been brought before us by way of present writ petition. We have no hesitation in taking the view that the respondent management has no option but to comply with the directions of the respondent no.4. 12. In view of the binding directions contained in earlier order of this Court dated 16th December, 2009, the fact that the respondent management has financial problems to comply with the directions, cannot be the basis to reject the relief claimed by the petitioner in the present petition. : 11 : wp-1989-11=.doc 13. We, therefore, direct the respondent no.4 to take appropriate measures in ensuring that the order passed by him dated 29th September, 2010 is executed against the respondent management including by way of option of recovery as arrears of land revenue. That be done as expeditiously as possible. 14. Petition allowed in the above terms. (R.Y.GANOO, J.) (A.M. KHANWILKAR, J.)