1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 768 OF 1994 Sarojini D/o Nagbhushan (Died ) } Through her L.R. : } Rajmani Nagbhushan } Age : 60 Years, Occ. Household, } R/o : Nalla ghatta Chal, Nanded, } Tq. & Dist. Nanded. } ..... PETITIONERS V E R S U S 1. Secretary, Madina-tul-uloom, } Education Society, Arbad-gali } Nanded. } 2. Education Officer (M) } Zilla Parishad, Nanded. } 3. Dy.Director of Education } Office of the Dy.Director } Education, Near Deogiri } College, Auerangabad. } 4. The State of Maharashtra } .... RESPONDENTS Mr. P.V.Mandlik, Sr.Counsel insturcted by Mr. V.D.Patnoorkar, Advocate for petitioner. Mr. K.G.Patil, Assistant Govt. Pleader. . Mr. S.B.Talekar, Advocate for respondent no. 1. 2 CORAM : B.R.GAVAI & S.V.GANGAPURWALA, JJ. DATE OF JUDGMENT: 08/06/2010 ORAL JUDGMENT : [ PER – S.V.GANGAPURWALA, J. ] 1. Heard Mr. P.V. Mandlik, the Sr. Counsel instructed by Mr. V.D.Patnoorkar, Mr. K.G. Patil, Assistant Govt. Pleader for State and Mr. S.B. Talekar, the learned counsel for respondent no. 1. 2. The petitioner vide this petition under Article 226 of the Constitution of India seeks direction against the respondents to pay salary to the petitioner as per the Govt. Resolution dated 2/9/1989. 3. The case of the petitioner is that she was appointed on 1/11/1978 as Craft Teacher in respondent no. 1 – School. From 1972 to 1986, she was paid salary of Rs. 75/- per month and from 1986 to 1988 @ Rs. 120/- per month. In the month of January, 1989 her services were terminated. The petitioner challenged the said order of termination before the School Tribunal, Amravati vide Appeal No. 39 of 1992. The Tribunal vide its Order dated 3/3/1993 allowed the said Appeal and set aside the termination order. It directed the respondent no. 1 to reinstate the petitioner as Craft teacher with continuity in service. However, the claim of the petitioner for back wages was dis- allowed. 3 4. Mr. Mandlik, the learned Sr. counsel for the petitioner submitted that as per the Govt. Resolution dated 3/9/1989, the petitioner has got Certificate as Craft Teacher though has not passed S.S.C. Examination but is VIII standard pass and as such was entitled to the pay scale of Rs. 950 – 1500/-. The respondent no. 1 can not with hold her salary. 5. Mr. Talekar, the learned counsel for respondent no. 1 submitted that the petitioner does not have requisite certificate and as such is not entitled for the salary as she claims. It is contended by him that the petitioner has not submitted any document showing that she has got the necessary qualification to be a Craft teacher. Mr. Talekar further contended that the Institution is an aided school. As such, the Govt. be directed to pay the amount. 6. The School Tribunal in its Judgment has considered the factum that the present petitioner is a duly qualified Craft Teacher. The said Judgment is not challenged by the respondent no. 1 and the same has attained finality. Even the petitioner in the present petition, more particularly in paragraph no. 2, has contended that the petitioner has submitted all the original certificates including the Craft Course certificate with respondent no. 1. The said pleading has not been denied by the respondent no. 1. As such, even as per the principle of ‘ non traverse ’, the said averments will have to be accepted. 4 7. In the light of the above, as the petitioner is duly qualified as Craft Teacher, the petitioner is entitled to the pay scale as per the Govt. Resolution dated 3/9/1983 in the Pay Scale of Rs. 950 – 1500/-. 8. The back wages has been denied by the School Tribunal. As such, till the delivery of the Judgment of the School Tribunal, the petitioner is not entitled to the said back wages. However, after 3/3/1993, the petitioner is entitled for the same. Respondent no. 1 can not deny its liability to pay the said amount. In the light of the above, we direct respondent no. 1 to pay the salary to the petitioner in the Pay Scale of Rs. 95 – 1500/- with further revision, if any, till she has expired on 21/3/2000. 9. Mr. Talekar, the learned counsel contended that as respondent no. 1 is aided school, the respondent nos. 2 and 3 be directed to make the payment. It is the settled proposition of law that the primary responsibility to pay the salary is of the employer. The moment the order of reinstatement was passed by the School Tribunal and the petitioner was reinstated, the employer ought to have paid the amount or at that time ought to have forwarded the bills to the Education Officer. They have failed to do so. As such, they have to thank themselves for the same. 10. Respondent no. 1, the employer shall pay the arrears of the 5 salary to the petitioner within period of six months from today. Respondent no. 1 is at liberty to forward the bills to the respondent nos. 2 and 3 and the respondent nos. 2 and 3 may consider to take decision on the same within the period of three months on receiving the said bills. 11. Respondent no. 1 has deposited an amount of Rs. 1,00,000/- (Rupees One Lac only ) in this Court. The petitioner would be entitled to withdraw the said amount along with accrued interest, if any. Respondent no. 1 will be entitled for the adjustment of Rs. 1,00,000/- (Rupees One Lac only ) deposited by it. 12. Rule is made absolute on the above terms with no order as to costs. 13. Civil Application No. 3035 of 1995 and Civil Application No. 3039 of 1995 stands disposed of. [ S.V.GANGAPURWALA ] [ B.R.GAVAI ] JUDGE JUDGE knp/WP 768.94 ( J )