1 33 caw 539.11.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.539 OF 2011 IN WRIT PETITION NO. 7130 OF 2009 Smita Satiish Dublay ..Applicant. Vs. The Chairman, Konkan Education Society and others ..Respondents. Mr. M.S.Topkar for applicant. Mr. Shreekant V.Gavand for respondent no. 1. Mr. Sanjay Patil for Mr. P.M.Pradhan for respondent nos.2 and 3. Mr. P.I. Khemani, AGP for respondent nos. 4 and 5. CORAM : K.K.TATED, J. Dated : 21.04.2011. P.C.: 1 Heard learned counsel for the parties. 2 This application is preferred by original respondent no.1 for allowing her to withdraw a sum of Rs.1,92,000/- deposited by respondent no.1 towards 50% of back wages of the applicant pursuant to the order dated 7th January, 2011 passed by this court (Coram: Smt. Nishita Mhatre, J.). 2 33 caw 539.11.doc 3 The applicant also seeking direction directing the respondent no.1 to deposit an amount of Rs.21,98,848/- in the office of this Hon’ble Court after deducting amount already deposited by respondent no.1 on the basis of 5th Pay Commission. 4 The applicant filed an Appeal no.42 of 2003 before the School Tribunal, Kolhapur Region, Kolhapur under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 challenging the order of termination with effect from 9th May, 2000 issued by respondent no. 1. The said appeal was decided by the learned Presiding Officer, School Tribunal, Kolhapur Region, Kolhapur by judgment dated 5th March, 2009 declaring that the termination dated 9th May, 2000 issued by respondent no.1 was illegal, improper and bad in law. The Tribunal also directed respondent no.1 to reinstate the applicant in service with 50% back wages and continuity in service with effect from 9th May, 2000. 5 Being aggrieved by the said order dated 5th March, 2009 passed by the Presiding Officer, School Tribunal, Kolhapur Region, Kolhapur, the respondent no.1 preferred Writ Petition no.7130 of 2009. The said writ petition was admitted by this Court (Coram: Smt. Nishita Mhatre, J.) on 7th January, 2011. 3 33 caw 539.11.doc Interim stay granted in favour of respondent nos. 1 on condition that they would deposit the back wages in this court. Pursuant to the said order, respondent nos. 1 deposited a sum of Rs.1,92,000/- in this court. 6 The second issue in the present civil application is about directing respondent no.1 to deposit an amount of Rs.21,98,848/- as calculated by the applicant towards her wages on the basis of applicability of 5th Pay Commission. 7 The learned counsel appearing on behalf of applicant submits that 5th Pay Commission is applicable to the respondent- school and therefore, she is entitled to the back wages as per 5th Pay Commission. He further submits that it is not necessary to get adjudicated the said amount from any competent authority. In support of his contention, he relies on the judgment in the matter of M/s Vaishali V and others vs. State of Maharashtra and others reported in 1998 (1) B.C.R. 227 and in the matter of Sunanda vs. State of Maharashtra, reported in 2001 (1) BCR 809. On the basis of this submission and authorities the learned counsel appearing on behalf of applicant submits that respondent no. 1 is liable to pay her wages on the basis of 5th Pay Commission. 4 33 caw 539.11.doc 8 On the other hand, learned counsel appearing on behalf of respondent no. 1 vehemently opposed the present civil application. In respect of prayer clause (a) he submits that the issue about the back wages is pending before this court, in this writ petition and, therefore, there is no question of allowing the applicant to withdraw the said amount. He further submits that if the amount is allowed to be withdrawn by the applicant and if petitioner succeeded in the writ petition then it would be difficult for them to recover the said amount from the applicant. Therefore, there is no question of allowing the applicant to withdraw the said amount. 9 The learned counsel appearing on behalf of respondent nos. 1 and 2 in respect of prayer clause (b) submits that the said claim is barred by limitation. He further submits that whether the applicant is entitled the benefit of 5th Pay Commission and/or not, same is not decided by any competent authority and without deciding the said issue by the competent authority, the applicant is not entitled to seek any direction from this court directing respondent no.1 to deposit the said sum of Rs.21,98,848/-. 10 So far as the prayer clause (a) is concerned about allowing the applicant to withdraw the sum of Rs.1,92,000/-, the said amount is deposited by respondent no.1 towards 50% of back 5 33 caw 539.11.doc wages as per the order passed by the Tribunal as well as this Court. One cannot say how long it will take for final hearing of the petition. The said amount of Rs.1,92,000/- is payable to the applicant towards her back wages and the same shall be paid by obtaining solvent security other than bank guarantee to the satisfaction of the Registry. 11 In respect of prayer clause (b)) i.e. directing respondent no.1-original petitioner to deposit a sum of Rs.21,98,848/- calculated by applicant on the basis of applicability of 5th Pay Commission. Whether the 5th Pay Commission is applicable to the Applicant or Respondent no.1 is yet to be decided by the competent authority. The scope of this writ petition was restricted only to the issue of payment of back wages. Therefore, the said prayer cannot be granted in this civil application. 12 Civil Application is allowed in following terms: a) Applicant is allowed to withdraw the sum of Rs.1,92,000/- with accrued interest, if any, by furnishing security not the bank guarantee to the satisfaction of the Registry. 6 33 caw 539.11.doc b) Prayer clause 7 (2) in respect of directing respondent no.1 to deposit sum of Rs.21,98,848/- is rejected. 13 No order as to costs. 14 Civil Application is disposed of accordingly. (K.K.Tated, J.)