1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 5813/2007 (Chandrashekhar Chandrabhan Gotmare VERSUS The State of Maharashtra, thro. Secretary & others ) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Parchure, counsel for the petitioner. Mr. Sambre, G.P. for respondent nos.1 to 3. CORAM : D.D.SINHA AND SMT. VASANTI A. NAIK, JJ. DATE : JANUARY 08, 2008. Heard. The writ petition is directed against order/communication dated 13.04.2006 issued by the Education Officer (Secondary) Zilla Parishad, Nagpur, wherein it is stated by the Education Officer that the liability to pay the salary of the petitioner with effect from 01.11.1991 to 31.10.1999 is on the management in view of the compromise arrived at between the petitioner and the management. Mr. Parchure, the learned counsel for the petitioner, has contended that the petitioner was suspended by the respondent no.4, Management, with effect from 01.11.1991 while the petitioner was serving as Head Master of respondent no.5, School. It is contended that the action of the management was challenged by the petitioner by 2 filing Regular Civil Suit No.2314/1991. However, the dispute between the petitioner and the management was compromised and terms of compromise were filed before the Civil Court in the said civil suit. The terms of compromise were as under; I) It is decided that Head Master of Defendant No.3 shall prepare and submit salary bill for payment of arrear of salary of the plaintiff after considering normal increments and pay revision etc. He shall submit it to the Education Officer (Secondary) Zilla Parishad, Nagpur for releasing the payment to the plaintiff from the salary grant. However, this School/ Management shall not be held responsible to pay any amount or salary to the plaintiff. II) The plaintiff would have attained superannuation on 31.10.1999 and the period of suspension pending enquiry from the date of suspension till 31.10.1999 shall be treated as period of duty for all purposes of pension, gratuity, provident fund etc. III) The Head Master shall also submit all relevant papers to the concerned Education Officer for releasing the pension admissible to the plaintiff. IV) The parties should bear the 3 expenditure as suffered by them with costs. V) A compromise decree on above terms and conditions be recorded in the Regular Civil Suit No. 2314/1991. It is further contended that the civil Court disposed of the suit in terms of the said compromise arrived at between the petitioner and the management vide order dated 14.02.2000. The operative part of the order reads thus : Read Exh.98, Plaintiff and defendant No.3 entered into compromise. Decree be drawn in terms of compromise. Court fee to the extent of ½ be refunded to the plaintiff. Mr. Parchure, the learned counsel for the petitioner, contended that in view of provisions of Sub Rule 4 and 5 of Rule 34 of Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981, the management is entitled to get the reimbursement in respect of the salary required to be paid by the management to the petitioner for the above referred period as per the terms and conditions of the compromise decree. However, the Education Officer, vide impugned communication has rejected the claim of the 4 management for reimbursement of the amount, on the ground that the Education Officer was not party to the compromise decree nor signed the document of compromise. It is contended that the stand taken by the Education Officer in the impugned communication is inconsistent with the provisions of Rule 34(4)(5) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981, and therefore, cannot be sustained in law. Mr. Sambre, the learned Government Pleader, has submitted that though the Education Officer was a party to the civil suit, however, was not a party to the compromise arrived at between the petitioner and the management did not sign the deed of compromise, and therefore, it is the management alone who is responsible to make the payment towards the salary of the petitioner for the period referred to hereinabove. Therefore, the impugned communication is sustainable in law and is also not inconsistent with the provisions of Rule 34 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981. We have considered the contentions canvassed by the respective counsel. In the instant case, it is not in dispute that the Regular Civil Suit No.2314/1991 filed by the petitioner was 5 disposed of by the Civil Court in terms of compromise arrived at between the petitioner and the respondent no.4, management. It is also not in dispute that the Education Officer, though, was a party to the suit, was neither a party to the compromise nor has signed the deed of compromise arrived at between the petitioner and the respondent management. It is well settled that the decree drawn in terms of compromise is only binding on the parties to the compromise and since the Education officer was not party to the compromise, the terms and conditions thereof cannot bind the Education Officer nor the decree which is passed by the civil Court in terms of the said compromise is binding on the Education Officer. So far as the provision of Rule 34(4) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981 is concerned, it reads as under: When an employee who has been suspended is reinstated, the authority competent to order the reimbursement shall consider and make a specific order - (a) regarding the pay and allowance to be paid to the employee for the period of his absence from duty, and (b) regarding the said period being 6 treated as a period spent on duty. A bare reading of the said provision makes it implicitly clear that this provision is attracted only when the competent authority orders reinstatement of the employee who is suspended. In the instant case, the suspension of the petitioner was neither revoked nor set aside either by the Education Officer (Competent Authority) or by the Court, and therefore, it cannot be held that the reinstatement of the petitioner was as per the order of the competent authority. On the other hand, it is the respondent management, who has unilaterally agreed that the Head Master shall prepare and submit salary bills for payment of the arrears of the salary of the petitioner, revised pay-scales and increments, to the Education Officer (Secondary), Zilla Parishad, Nagpur for releasing the payment to the petitioner from the salary grant and the school/management shall not be held responsible for paying any amount to the petitioner. As per the said term of the compromise, the management has taken responsibility of submitting the salary bills of the petitioner to the Education Officer, however, that does not create any legal right in the management, on the basis of the said terms and conditions of the compromise arrived at with the 7 petitioner, to get the salary grant released from the Education Officer as the matter of right, if it is otherwise not admissible. In the instant case, when the decree on the basis of compromise was passed by the civil Court on 14.02.2000, the petitioner was already superannuated from service, and therefore, the question of reinstatement did not arise. Consequently, in view of above referred facts, in our view, Sub Clause 4 of Rule 34, is not at all attracted in the present case. So far as Sub Clause 5 of Rule 34 is concerned, same is also not attracted in the instant case since it contemplates that where the authority mentioned in Sub Rule (4) is of the opinion that the employee has been fully exonerated or, in the case of suspension that it was wholly unjustified, in such situation alone, the employee shall be given the full pay, allowances and pension to which he would have been entitled, had he not been dismissed, removed or suspended from service. Since we have already observed hereinabove, Sub Rule 4 of Rule 34 itself is not attracted in the case of the petitioner, and therefore, by necessary implication, the provisions of Sub Rule 5 are also not attracted in the present case in view of the peculiar facts and circumstances involved. 8 In the backdrop of the above referred facts and legal position, in our view, the impugned communication dated 13.04.2006 issued by the Education Officer (Secondary), Zilla Parishad, Nagpur, is just and proper. Petition suffers from lack of merit hence, the same is dismissed. JUDGE JUDGE APTE