1 wp-3643-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO.3643 OF 2009 Nandgaon Panchkroshi Madhyamik Shikshan Sanstha Nandgaon and Anr. ..Petitioners Vs. Kum.Kavita Prakash Nalawade and Anr. ..Respondents .... Mr.N.V.Bandiwadekar Adv. for Petitioners. Mr.M.B.Gawade Adv. for Respondent No.1 Mr.A.P.Vanarse AGP for Respondent No.2 .... CORAM : SMT.V.K.TAHILRAMANI, J. DATED : 20th July, 2009 P.C.: 1. Heard the learned counsel for the petitioner, the learned counsel for the respondent no.1 and the learned AGP for the respondent no.2. 2. This writ petition is directed against the order of the Education Officer dated 29th January, 2009 wherein it was observed that it 2 wp-3643-09 would not be proper for the department to pay respondent no.1 salary for the period from 1st February, 2003 to 7th December, 2008 and the Management and the Head Master have to pay the salary and allowances to respondent no.1 for the said period. 3. The petitioner is an educational Institution. The respondent no.1 who was working as a teacher with the petitioner, came to be terminated. When the said order came to be challenged by respondent no.1 by filing appeal bearing Appeal No.44 of 2002 before the School Tribunal, the School Tribunal by its order dated 14th July, 2008 allowed the appeal preferred by respondent no.1 and it was directed that respondent no.1 be reinstated with full back wages and continuity of service. The said order came to be challenged before this Court by the petitioners by filing writ petition no.5955 of 2008. The said writ petition came to be disposed of by order dated 24th November, 2008. In the said order, it is reflected that “it has been agreed between the parties that the petitioners shall reinstate the First Respondent in compliance with the order passed by the School Tribunal and that the First Respondent shall be permitted to resume duty on 8th December, 2008. It has further been agreed that the First Respondent shall be granted the benefit of the D.Ed. Scale for the period between 1st December, 2003 and 31st August, 2008 and with effect from 1st September, 2008, the 3 wp-3643-09 First Respondent shall be granted the benefit of the Trained Graduate Scale. The Management has agreed to submit pay bills to the Education Officer (Secondary), Zilla Parishad, Sindhudurg within a period of three weeks from today. The Education officer (Secondary) shall take a decision thereon in accordance with law, within a period of six weeks after the date of receipt of the pay bills. The procedure which is usually followed for remittance of the salary shall be adopted in accordance with law. ” It was further observed that “the order passed by the School Tribunal shall stand modified to the aforesaid extent and shall stand substituted by the aforesaid agreement between the Management and the First Respondent teacher. ” 4. Pursuant to the order of the High Court, petitioner submitted proposal for grant of approval as per the order of the High Court. The order of the Education Officer as well as affidavit filed by the respondent no.2 show that after the letter was received from the petitioner institution, opinion was sought from the Government Pleader regarding payment of salary and allowances by the Management to respondent no.1 since she has not worked as an Assistant Teacher during the period from 1st February, 2003 to 7th December, 2008. The opinion was received that as respondent no. 1 has not worked as an Assistant Teacher by remaining present in 4 wp-3643-09 the school during the aforesaid period and similarly while terminating her from service, it would not be proper for the department to pay salary and hence, the Management and Head Master would have to pay the salary and allowances to respondent no.1 for the said period. 5. The learned counsel for the Petitioner has placed reliance on Government Resolution bearing No.SSN-2677-XXX-XXXVII dated 14th March, 1978. The said Resolution is in respect of employees in non-Governmental Secondary Schools, whose services have been terminated. In the said Resolution, it is stated as under: “The question whether such employees who are actually reinstated by the Managements in pursuance of the final decision of the Competent authority of the Department, could be paid their arrears of salaries and allowance by the Department itself under the said scheme was under the consideration of Government for sometime past. Where the Management of a Non-Governmental Secondary School has reinstated the employee in pursuance of the order of the competent appellate authority of the Department (issued on a representation/appeal made by the aggrieved employee or the Management, as the case may be), if his past arrears of salary and allowances, or any portion thereof, relating to the period from the date of termination of his service (which was 5 wp-3643-09 held to be wrongful by the competent appellate authority of the Department) till the date of his reinstatement have remained to be paid to him, these should be directly paid by the Education Officer/Educational Inspector under the scheme of payment of salary and all allowances through Co-Op. Banks ’ in all such cases, no cut should be applied to the non-salary grant due to the school if all the following conditions are fulfilled: (i) Salary and allowances of the substitute, if any, appointed by the Management in place of the employee whose services were terminated, have not been paid by the Department; (ii) That the payment of due arrears of salary and allowances of the employee who has been reinstated would not involve any additional expenditure to Government over and above the expenditure which would be in any case have been incurred on the salary etc. of the total teaching and non-teaching staff admissible to the school on the basis of the total teaching work load and other norms prescribed in that behalf by the Government ”. 6. The learned counsel for the Petitioner submitted that in view of the Government Resolution, it would be the responsibility of the Respondent Department to pay the amount to Respondent No.1 and the Petitioner cannot be called upon to pay Respondent No.1. On perusal of the Government Resolution and keeping in mind the 6 wp-3643-09 facts of the present case, I find that the first criteria in the Government Resolution is satisfied as there is no dispute that the salary and allowances have not been paid by the department. As far as the second criteria is concerned, it is seen that the School Tribunal passed an order that post of Sl. No.2 shall not be filled in and pursuant to the order, the petitioner institution has not filled in the said post and the post has remained vacant. Thus, it is seen that post of the respondent has been kept vacant. Although it is a sanctioned post, the school has not claimed any grant for this post while respondent no.1 was out of service. Thus, it is seen that there is no additional expenditure to Government. Thus, both these criteria are met with. 7. The learned counsel for the petitioner has also placed reliance on the decision dated 16th September, 2005 of this Court in writ petition no.8574 of 2004 in the case of President/Secretary Rashtra Bhasah Mahavidyalaya Vs. Shri.Phoolchand M.Ram. He submitted that the case of the petitioner therein is similar to the present case and a similar situation arose. In the said case in view of the Government Resolution dated 14th March, 1978, this Court directed the Government to make payment of the wages of the teachers therein in accordance with the said Government Resolution. On perusal of the said decision, I find that the facts therein would squarely apply 7 wp-3643-09 to the present case. 8. In this view of the matter, the order dated 29th January, 2009 issued by respondent no.1 is set aside. It may be stated here that approval has already been granted to the post of Assistant Teacher from 8th December, 2008. Since the post where the respondent no. 1 was working prior to her termination, is a sanctioned and aided post in petitioner no.2 school and both the conditions in the Resolution are satisfied, the Government shall make the payment of respondent no.1 for the period from 1st December, 2003 to 7th December, 2008 within the period of twelve weeks from today. 9. The learned counsel for the respondent no.1 states that in view of this order, he undertakes to withdraw the contempt proceedings which have been initiated by respondent no.1 before the School Tribunal. The same be done within three weeks from today. 10.Writ petition is disposed of. [SMT.V.K.TAHILRAMANI, J.]