TaxTMI 
TaxTMI 
TaxTMI 
2017 (3) TMI 1673
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....ed by one of the Institutions against the Deputy Director of Education and four of the Assistant Teachers. From the pleadings of the parties as well as the reliefs claimed in the above numbered-writ petitions, it would be clear that the central point for consideration is "whether unaided private schools and/or minority unaided private schools are under an obligation to ensure equal pay to the petitioners to that of their counterparts serving in the Government schools or private aided schools. Considering the rival pleadings as well as the contentions raised by the learned counsel for the contesting parties, the following points fall for our determination:-- (i) Whether the provisions of the Maharashtra Employees' of Private Schools (Conditions of Service) Regulation Act, 1977 ("the Act of 1977", for short) 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? (ii) Whether the Maharashtra Employees' of Private Schools (Conditions of Service) (Amendment) Rules, 2016 ("the Amended Rules of 2016", for short) are enforceable? (iii) Whether....
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....Pay Commission. Hon'ble Apex Court noticed that under the Maharashtra Employees' of Private Schools (Conditions of Service) Regulation Act, 1977, as per Section 3(1) the provisions of the Act apply to all private schools, whether receiving any grant-in-aid from the State Government or not. Section 16 stated that the State Government may by notification in the Official Gazette, make rules for carrying out the purposes of this Act and Section 16(2)(a) says that the State Government may by the Official Gazette prescribe minimum qualification for recruitment of employees of private schools (including its procedure); (b) their scales of pay and allowances. There was no dispute that these provisions of the Regulation Act are applicable to the appellant school. Supreme Court held that the Division Bench of the High Court was justified in holding that the appellant school was liable to pay the salary and allowances on the basis of the Fifth Pay Commission recommendations and are bound by MEPS Act. Though this judgment does not consider the impact of minority nature, it definitely declares that receipt of grants has no relevance insofar as application of MEPS Act/Rules or pay struct....
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....say that in view of the high reputation enjoyed by the institution for its excellence, it is unnecessary to seek to apply provisions like Section 10 of the Delhi School Education Act to the Frank Anthony Public School. On the other hand, we should think that the very contribution made by the teachers to earn for the institution the high reputation that it enjoys should spur the management to adopt at least the same scales of pay as the other institutions to which Section 10 applies. Regarding the fear expressed by Shri Frank Anthony that the institution may have to close down we can only hope that the management will do nothing to the nose to spite the face, merely to "put the teachers in their proper place". The fear expressed by the management here has the same ring as the fear expressed invariably by the management of every industry that disastrous results would follow which may even lead to the closing down of the industry if wage scales are revised." 8. The learned counsel Shri Totla, representing one of the respondents, relying on the judgment in The Correspondent/Principal Arokiamada Matriculation Higher Secondary School v. Tmt. T. Sorubarani and Ors. (2016 Lab IC 341 (Mad)....
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....Court in paragraph No. 46 of the judgment in the case of Mahadeo s/o. Pandurang More and others (2014 (5) ABR 51) (supra), unless and until scales of pay sought for by the petitioners therein find birth in Schedule 'C' appended to the Rules of 1981, a direction to extend the same to them cannot be issued. The Court further observed that amendment to Schedule 'C' to propose new scales of pay is subject to the procedure laid down in Section 16(3) and (4) of the Act of 1977. The learned counsel for the respondents submit that since the procedure laid down in sub-section (4) of Section 16 has not been followed by the respondent - State Government, the Amended Rules of 2016 cannot be acted upon. 11. On the other hand, the learned counsel for the petitioners and the learned A.G.P. submit that the Amended Rules of 2016 have been duly notified in the Official Gazette of the Government of Maharashtra and they are legally enforceable. 12. In order to decide this controversy, it would be necessary to reproduce sub-sections (3) and (4) of Section 16 of the Act of 1977, which read as under:-- "(3) All rules made under this Act shall be subject to the condition of previous pub....
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.... modification. (iii) Affirmative resolution. The phraseology here is normally "no order shall be made unless a draft has been laid before Parliament and has been approved by a resolution of each House of Parliament". Normally, no time limit is fixed for obtaining approval - none is necessary because the Government will naturally take the earliest opportunity of bringing it up for approval-but Section 16(3) of the Housing (Financial and Miscellaneous Provisions) Act, 1946 did impose a limit of forty days. An old form (not much used nowadays) provided for an order to be made but: not to become operative until a resolution of both Houses of Parliament had been Obtained. This form was used in S. 10(4) of the Road Traffic Act, 1930 (of Road Traffic Act 1960, S. 19(3))... The affirmative resolution procedure necessitates a debate in every case. This means that one object of delegation of legislation (viz. Saying the time of Parliament) is to some extent defeated. The procedure therefore is sparingly used and is more or less reserved to cases where the order almost amounts to an Act, by effecting changes which approximate to true legislation (e.g. where the order is the meat of th....
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.... the Houses of Legislature were violated, we are of the view that sub-sec. (5) of S. 26 having regard to the purposes for which it is made, and in the context in which it occurs, cannot be regarded as mandatory." 15. In paragraph No. 25 of the judgment in M/s. Atlas Cycle Industries Ltd. (AIR 1979 SC 1149) (supra), the Hon'ble the Apex Court further referred to the case of D.K. Krishnan v. Secretary, Regional Transport Authority, Chittoor, AIR 1956 Andhra 129, wherein the validity of Rule 134A of the Madras Motor Vehicles Rules, 1940, made under the Madras Motor Vehicles Act, 1939, empowering the Regional Transport Authority to delegate its functions to the Secretary was challenged on the ground that it was not laid before the Legislature of the Madras State as required by Section 133(3) of the Act, which provided that the Rules shall be laid for not less than fourteen days before the Legislature as soon as possible after they were made and should be subject to modification as Parliament or such Legislature may make during the session in which they are so laid. In that case, it was held as under:-- "This rule (i.e. the one contained in Section 133(3)) therefore, is not made e....
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....cal Education and others, 2013 STPL (Web) 353 SC : (AIR 2013 SC 2310), submits that as per Section 24 of the AICTE Act, not placing the Amended Rules and Regulations made under the said Act before each House of Parliament, as prescribed in the said section, which is mandatory, would vitiate the amended Rules and Regulations. 18. It is true that Section 24 of the AICTE Act, as has been reproduced in paragraph No. 44 of the above cited judgment, is almost identical to that of Section 16(4) of the Act of 1977. However, it seems that while holding the said provision mandatory, the Hon'ble the Apex Court referred to the contention raised by the learned counsel for the appellant that the amended Regulation has not been placed before the Parliament, which is mandatory, as per the provisions of Section 24 of the AICTE Act and further mentioned that "the said contention has not been disputed by the AICTE in these cases." The judgments in the cases of M/s. Atlas Cycle Industries Ltd. and others (AIR 1979 SC 1149) (supra) and Jan Mohammad Noor Mohammad Bagban (AIR 1966 SC 385) (supra), delivered by the Benches of larger strength, were not referred to by the AICTE in that case. On the con....
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....with by the Nagpur Bench of this Court in the case of Mahadeo s/o. Pandurang More and others (2014 (5) ABR 51) (supra). The Court considered the case of Mrs. Satimbla Sharma and others (supra) and in para 28 of the said judgment clearly observed that where a statutory provision casts a duty on a private aided school to pay similar salary and allowances to its teachers, as are being paid to the teachers of Government aided schools, then a writ of mandamus could be issued to enforce such statutory duty. It is further observed that the writ jurisdiction of the High Court under Article 226 of the Constitution is wide enough to issue a writ for payment of pay on par with Government employees. 22. 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 be....
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.... this regard. The teachers working with this respondent i.e. namely Siyaram Education Society, Aurangabad who have voluntarily given consent letters accepting less salary than that is prescribed under Schedule 'C' of the Rules of 1981, may not be entitled to claim salary prescribed under the said Schedule. However, petitioner Nos. 1 to 4, who have not voluntarily given up their claim for salary payable to them as per Schedule 'C, cannot be denied the benefit of Schedule 'C'. 24. As stated above, 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.....