1 6WP.8006-10 ppd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8006 OF 2010 Jayshree Murlidhar Wagh. ..PETITIONER. Versus State of Maharashtra and 4 others. ..RESPONDENTS. ....... Mr. Shaikh Nasir Masih, Advocate for the Petitioner. Ms. S.S. Bhende, AGP, for Respondent Nos.1 & 2. Mr. M.M. Sathaye, for Respondent Nos.4 &5. ....... CORAM: B. H. MARLAPALLE & P. D. KODE, JJ. OCTOBER 05, 2011. P.C. : 1. Heard learned Counsel for the respective parties. 2. Rule. Respondents waive service. 3. The Petition has been heard finally as affidavit-in-reply by the Respondents has been filed and the petitioner has filed rejoinder as well, along with the documents received by her under the Right to Information Act. 4. As per the petitioner, with the qualifications as S.S.C. D.Ed., she came to be appointed as an Assistant Teacher with 2 6WP.8006-10 respondent No.5 i.e. Sarvoday Primary School (for the first time on 2.10.2000) subsequently renamed as Kai.T.D. Shirude Prathamik Vidyamandir at Soygaon, Taluka–Malegaon, District– Nashik. The said school has classes from 1st to 7th standards and some of these classes have more than one divisions. The Management states that the petitioner was appointed as Shikshan Sevak w.e.f. 2.10.2000 for a period of three years and on a consolidated honorarium of Rs.3000/- per month. She was paid her salary till February, 2008, and from March, 2008, the petitioner had refused to accept the salary amount. 5. The petitioner’s grievance is regarding non-payment of her salary from the date of her appointment amounting to Rs.11,23,722/- and she claims 18% interest on the said amount. She claims that from time to time she demanded her salary, however, on some or the other pretext she was not paid the same and, therefore, she was forced to approach this Court, despite the fact that she is an approved teacher. 6. The Respondent–Management in its affidavit-in-reply has opposed the Petition, firstly, on the ground of delays/latches. It has also been contended that the Petition involves several disputed questions of fact and in any case it is unbelievable that 3 6WP.8006-10 an Assistant Teacher would wait for a period of 10 years to approach this Court demanding payment of her salary, if she was in fact not paid such salary by the Management. It is further claimed that the petitioner is taking advantage of missing of original record from the year 2000 to March, 2008 at the hands of Shri P.R. Wagh, who had taken the concerned record for Photostat on 28.7.2009 and by oversight he lost the record and complaints were lodged with the police station. The petitioner is aware of these facts and she has, by way of an afterthought, concocted/fabricated the story regarding non-payment of salary and approached this Court in a Writ Petition. It would be appropriate to reproduce the following averments made in para– 5 of the Management’s affidavit-in-reply. “5. ..... I say that the petitioner is misleading this Honourable Court and making false statements on oath that the Respondent management has not at all paid anything to her for last ten years. I say that the petitioner has been paid honorarium of Rs. 3,000/- per month from April, 2003 to March, 2008. The Petitioner had not demanded anything prior to April, 2003. So also from 1st April, 2008 till today the Petitioner has denied to accept any payment. I say that the Petitioner is taking advantage of a fact that the Respondent 4 6WP.8006-10 School's original record from the year 2000 to February, 2008 including salary file has been lost when the same was taken out for xeroxing (which was required to be annexed to professional tax of employees). I say that on 28th July, 2009 when the Respondent School's teacher Shri P. R. Wagh had taken concerned original record from the year 2000 to 2008 for Xeroxing, the bag carrying the said record was lost. The said teacher immediately wrote to the Head Master of the School and the Head Master in turn informed the said incidence to the Respondent Management, who tried to search for the said bag but could not find it. Ultimately, on 1st September, 2009 the said teacher of the Respondent School, alongwith all office-bearers of the Respondent Management has filed Police Complaint with the Police Station at Camp, Malegaon (Nashik Rural) who has also issued a certificate to that effect. .....” 7. Annexed to the affidavit-in-reply, a copy of the complaint dated 1.9.2009 signed by some teachers including the Head Master and received by the Police Thane Amaldar, Camp Police Station, Malegaon has been placed on record. A copy of the receipt dated 1.9.2009 purportedly issued by the Police Thane Amaldar has also been annexed to the affidavit-in-reply. 8. The petitioner has filed rejoinder and brought on record a copy of the letter, she received from the Police Inspector of 5 6WP.8006-10 Camp Police Station, Malegaon. The said letter dated 10.6.2011 states that during the period from 27.7.2009 to 26.11.2009 the said Police Station did not receive any complaint from either the Head Master or any other employees of Sarvodaya Primary School. 9. If the school record was lost on 28.7.2009, it is not known why the Management and teachers decided to lodge a complaint belatedly on 1.9.2009 with the Police Station and that too at Malegaon. It is also unbelievable that the petitioner had accepted to work as Shikshan Sevak without any honorarium. The affidavit filed by the Management states that the petitioner had not demanded anything prior to April, 2003 and this implies that the Management was justified in not paying her any honorarium. There is no explanation as to why the management failed to pay the salary fixed under the 5th & 6th Pay Commission Recommendations as implemented by the State Government. 10. The proposal for the approval of the petitioner’s appointment as Shikshan Sevak w.e.f. 2.10.2000 was for the first time submitted on 17.4.2007 and also a supplementary proposal or reminder on 25.11.2008. The Education Officer (Primary), Zilla Parishad, Nashik by an order dated 2.12.2008 accorded 6 6WP.8006-10 approval to the appointment of the petitioner as a Shikshan Sevak for a period of three years from October, 2000. On 8.10.2009 the Management submitted a fresh proposal for the approval of the petitioner’s appointment as an Assistant Teacher in the Primary Section and the said proposal was accepted and the Education Officer (Primary) by his order dated 9.11.2009 granted approval to the said appointment from 3.10.2003 and in the pay-scale of Rs.4500-125-7000. It is thus clear that the Management submitted the proposal for approval of the petitioner’s appointment almost after seven years and no reasons have been putforth in justification of the same. From April, 2008 (even assuming that till March, 2008 the record was misplaced) the petitioner was again offered a consolidated salary of Rs.3000/- per month despite the fact that the Education Officer granted approval to her appointment we.f. 3.10.2003 in the pay scale of Rs.4500-125-7000. It is also alleged that she was offered this consolidated salary of Rs.3000/-, but, she refused and, therefore, the amount was returned back. These pleas of the Management do not impress us and on such fabricated pleas the Management claims that the Petition involves disputed questions of fact and, therefore, the Petition ought to be dismissed. 11. It is also claimed that the petitioner’s appointment was 7 6WP.8006-10 on un-aided divisions and therefore she accepted to work on a consolidated salary even after completing three years tenure as Shikshan Sevak. It is also claimed, as noted earlier, that she had not demanded any payment during the tenure of three years when she worked as a Shikshan Sevak. These contentions do not commend us and have to be outrightly dismissed. Section 3(1) of the M.E.P.S. Act states that the provisions of the said Act shall apply to all the private schools in the State of Maharashtra, whether receiving any grant-in-aid from the State Government or not. Therefore, the pay-scales prescribed by the State Government for the Assistant Teachers in the Primary School, shall be applicable to the teachers in the unaided primary schools as well and there is no escape from the same to the unaided private schools. 12. The Science Consultant from the Office of the Deputy Director of Education, Nashik has filed affidavit-in-reply on behalf of respondent Nos.1 & 2 and it has been stated that the Managements which run unaided divisions are entirely responsible for making payment to the concerned teachers. Though, it is not clarified in the said affidavit whether the petitioner has been appointed in such unaided sections, it is the allegation of the petitioner that by way of an afterthought the 8 6WP.8006-10 Management submitted the proposal for approval to her appointment after seven years and for unaided sections, deliberately and with malafide intentions so as to harass her. 13. Be that as it may, we are satisfied that the petitioner was required to be paid an amount of Rs.3000/- per month from October, 2000 to September, 2003 and from 2.10.2003 she was required to be paid her regular salary in the pay-scale of Rs.4500-125-7000. In addition, she would be required to be paid her salary in the revised pay-scale on implementation of the 6th Pay Commission Recommendations by the Government of Maharashtra for the Assistant Teachers in the Primary Schools from 1.1.2006. The Management shall have to calculate the said arrears for payment to the petitioner and pay the same from its own funds, as it claims that the petitioner was appointed on unaided sections. The approval order dated 9.11.2009 states that the petitioner was appointed and approved for the unaided division of the primary school. However, the petitioner’s prayer for interest need not be considered in the peculiar facts and circumstances of this case. 14. Hence, we allow this Petition and direct Respondent Nos.4 & 5 to calculate the arrears of honorarium from 2.10.2000 9 6WP.8006-10 to 1.10.2003 and the regular payment as Assistant Teacher from 2.10.2003 till 31.10.2011 and pay the same to the petitioner within a period of six weeks from today. The petitioner's prayer for interest is rejected. If the Respondent-Management has any tangible record to show that the petitioner was paid some honorarium/pay, the same would be adjusted. The Education Officer (Primary), Zilla Parishad, Nashik to ensure that this order is implemented by Respondent Nos.4 & 5 within the prescribed period of six weeks and he shall submit a compliance report to the Registry of this Court through the learned A.G.P. 15. Mr. Sathe, learned Counsel for Respondent Nos.4 & 5 submitted an oral application to stay the operation of this order. The application for stay is rejected. (P. D. KODE, J.) (B. H. MARLAPALLE, J.)