9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (3) TMI 1673 - HC - Indian LawsWhether the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules of 1981 made under the said Act, so far as the pay scales of the teachers are concerned, are applicable to the Minority or Non-minority Private Unaided Schools? - Held that - In the present case, it is not because of any executive instructions that the respondents are being asked to ensure equal pay for equal work. The Act of 1977 and the Rules of 1981, which have statutory force, make it obligatory on the part of the respondents to ensure equal pay for equal work. In view of this distinguishing fact, the judgment of Madras High Court, cited above, would be of no help to the respondents to escape from the liability to ensure equal pay for equal work - the provisions of the Act of 1977 and the Rules of 1981, are applicable to the Minority as well as Non-minority Unaided Schools, so far as the pay scales of the teachers are concerned. Whether the Maharashtra Employees of Private Schools (Conditions of Service) (Amendment) Rules, 2016 are enforceable? - Held that - The Amended Rules of 2016 were previously published by the Government as required by sub-section (3) of Section 16 of the Act of 1977. Sub-section (4) falls under the category (ii) i.e. Laying subject to negative resolution , as explained in Craies on Statute Law . The last sentence of sub-section (4) of Section 16 shows that such modification or annulment made by the Legislature shall be without prejudice to the validity of anything previously done or omitted to be done under the rules framed under sub-section (1). This sentence itself indicates that the said Rules would be legally enforceable until they are modified or annulled and whatever has been done or omitted to be done under that those Rules prior to that, would not be invalid - sub-section (4) has to be treated as directory and not mandatory. Whether the Writ Petitions filed by the Assistant Teachers are maintainable? - Held that - If the provisions of the Act of 1977 and Rules of 1981 cast the duty on the minority or non-minority private unaided school to pay salary to the teachers on par with their counterparts serving in the private aided schools, the respondents are under a legal obligation to follow those provisions. If the respondents neglect or avoid to follow those legal provisions, a writ of mandamus certainly can be issued against them. In the present case, the petitioners are claiming the pay scales as have been prescribed in Schedule C under Rule 7(i) of the Rules of 1981. The pay scales are prescribed in Schedule C. Since they are supported by the provisions of the Act of 1977 as well as the Rules of 1981, they are legally enforceable and the writ petitions seeking enforcement of the provisions of the Act of 1977 and the Rules of 1981, so far as the pay scales are concerned, are quite maintainable. Whether the doctrine of contracting out would assist the Educational Institutions in denying the same pay scales to the Assistant Teachers, which are payable to their counterparts under the provisions of the Act of 1977 and the Rules of 1981? - Held that - The amendment to Schedule C would be enforceable from 8th September, 2016 i.e. the date on which the amendment was published in the Official Gazette. The petitioners are entitled to get pay scales as prescribed in Schedule C (prior to the amendment) till 7th September, 2016. Though the petitioners have claimed pay scales as recommended by the 5th and 6th Pay Commissions with arrears, they are entitled to get their pay fixed and claim arrears, if any, as per the pay scales prescribed in Schedule C as existed prior to the Amendment i.e. upto 7th September, 2016 and then in terms of the Amended Schedule C from 8th September, 2106 onwards. Grant of Stay to the execution of the order passed - Held that - The revised pay scale would be applicable from 1st January, 2016 only, as per the Amendment made in Schedule C which was the claim of the respondents - Institutions themselves - stay cannot be granted to the execution of the order passed today. Appeal disposed off.
Issues Involved:
(i) Applicability of the Maharashtra Employees' of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules of 1981 to Minority or Non-minority Private Unaided Schools regarding pay scales. (ii) Enforceability of the Maharashtra Employees' of Private Schools (Conditions of Service) (Amendment) Rules, 2016. (iii) Maintainability of the Writ Petitions filed by the Assistant Teachers. (iv) Applicability of the doctrine of contracting out to deny equal pay scales to Assistant Teachers. Detailed Analysis: Point No. (i): The primary issue was whether the provisions of the Maharashtra Employees' of Private Schools (Conditions of Service) Regulation Act, 1977 (the Act of 1977) and the Rules of 1981 concerning pay scales apply to Minority or Non-minority Private Unaided Schools. The court referenced the case of Mahadeo s/o. Pandurang More and others v. the State of Maharashtra and others, which affirmed that these provisions apply to all private schools, irrespective of whether they receive government aid. The court concluded that the Act of 1977 and the Rules of 1981 apply to both Minority and Non-minority Unaided Schools regarding pay scales. Point No. (ii): The enforceability of the Amended Rules of 2016 was questioned on the grounds that they were not laid before each House of the State Legislature as required by Section 16(4) of the Act of 1977. The court referred to the Supreme Court's judgment in M/s. Atlas Cycle Industries Ltd. v. State of Haryana, which categorized the laying of rules as directory rather than mandatory. Consequently, the court held that the Amended Rules of 2016 are enforceable from the date of their publication in the Official Gazette on 8th September 2016. Point No. (iii): Regarding the maintainability of the writ petitions, the court referred to the Nagpur Bench's decision in Mahadeo s/o. Pandurang More and others, which established that a writ of mandamus could be issued to enforce statutory duties under the Act of 1977 and the Rules of 1981. The court affirmed that the writ petitions seeking enforcement of the pay scales prescribed in Schedule 'C' are maintainable. Point No. (iv): The doctrine of contracting out was discussed in the context of teachers voluntarily accepting lower salaries. The court noted that while the doctrine allows individuals to waive statutory benefits, such waiver must be voluntary. In this case, the court found no evidence that the teachers had voluntarily given up their claim for equal pay. Therefore, the court held that the petitioners who had not voluntarily abandoned their claim were entitled to the pay scales prescribed in Schedule 'C'. Final Order: The court directed the respondents (Educational Institutions) to: 1. Fix the pay scales of the petitioners as provided in Schedule 'C' of the Rules of 1981, both prior to and after the Amendment Rules of 2016. 2. Pay the prescribed salary regularly from April 2017. 3. Pay any arrears due to revised pay fixation within six months. 4. Quashed the impugned letters issued by the Deputy Director of Education and the Accounts Officer. 5. Restrained the respondents from recovering any excess payment made due to wrong pay fixation. The court rejected the request for a stay of execution of the order.
|
