JUDGMENT
S.C. Dharmadhikari, J.
1. This is a petition under Article 226 of the Constitution of India praying for Writ of Mandamus directing respondent Nos. 1 to 4 to enforce the obligation and duties under Rule 7 of Maharashtra Employees of Private Schools (Condition of service) Rules (for short MEPS Rules).
2. It prays for a further direction to respondent Nos. 5 and 6 to pay to the petitioners salaries, allowances and other benefits according to the rates prescribed under the Rules.
3. Petitioners are working in Model English Highschool and Junior College, managed and administered by respondent No. 5. It is their contention that salary, allowances and other benefits are below the rates prescribed by Rule 7 of MEPS Rules. They repeatedly requested respondent No. 5 to pay to them salaries, allowances and other benefits according to rates prescribed in the rules. However, there was no response from the management. Therefore, petitioners complained to the Education Authorities. Even they are not complying with their statutory obligation and duties. Hence, petitioners urge that they are constrained to invoke writ jurisdiction of this Court.
4. Taking cognisance of this grievance of petitioners, this Court, passed an order in this Writ Petition on 13th August 2001 in C.A. No. 6937 of 2000). The order reads thus:-
“By this petition the petitioners seek directions for payment of 5th Pay Commission’s scale currently by the respondent management. a statement is made by the learned Counsel appearing on behalf of the institution that factually payments are being made in the current academic year. This factual statement is denied by the petitioners. In the circumstances, we deem it just and proper to direct the Director of Education or its appropriate subordinate officers to enquire into the factual situation of payment of wages as per the pay scales fixed by the 5th pay commission in accordance with the judgment of this Court in W.P. No. 767/2000.
Report to be filed in two months. The concerned officer may grant an opportunity for making the claim to both the parties.”
5. It appears that a grievance was made that order dated 13th August 2001 has not been complied with. This Court passed an order on 17th September 2003 recording statement of the Dy. Director of Education and Education Officer, Z.P. who were present in Court that the order passed on 13th August 2001 will be complied with and pay scale will be fixed within six weeks from the date of the order i.e. 17th September 2003.
6. This petition was placed on 23rd September 2004 when once again petitioners brought to this Court’s notice non compliance of the order passed by this Court as early as on 13th August 2001. Therefore, this Court directed issuance of notice to concerned authorities and observed that it would proceed to take action under Contempt of Courts Act for not complying with the order of this Court (i.e. order dated 17th September 2003). This Court once again directed the Deputy Director as well as Education Officer to remain present and questioned as to why the order of this Court was not complied with by them.
7. It is indeed unfortunate that only after the aforesaid directions that the authorities proceeded to comply with the Court’s order. They fixed the payscales and an affidavit is filed to that effect by each one of them on 6th October 2004.
8. After the affidavits were filed, petitioners as well as management were granted liberty by this Court to file further replies to the fixation of pay by the Accounts Officer, Education Department, Thane Dist. We granted time to the petitioners as well as the management to file their further affidavits vide our order dated 3rd November 2004. However, no affidavits were filed by them. We declined to grant any further adjournment when this petition was placed before us on 6th December 2004.
9. We have heard Ms. Gupta, learned Counsel appearing for petitioners, Mr. Sonawane, learned A.G.P. for respondent Nos. 1 to 4 and Mr. Mudnaney, learned Counsel appearing for respondent Nos. 5 and 6. At the outset it is brought to our notice by Mr. Sonawane that the entire record was required to be verified and scrutinised by the department to find out as to whether wages in accordance with the judgment of this Court in WP No. 7476 of 2000 are paid or not. Mr. Sonawane, submits that Senior Auditor of Education Department, Thane is the authority to make fixation of basic payscale as per the 5th pay commission recommendations after making necessary enquiry and verifying records of the school. He submits that after necessary enquiry and verification of records of the school, the Senior Auditor submits a report to the Education Officer, Z.P. Thane.
10. Mr. Sonawane contends that petitioners are teaching and non teaching staff of Model English Highschool at Kalyan. He submits that the aforesaid school is permanently unaided school. The individual appointments of the petitioner and other teaching and non teaching staff of the school have been approved by the Education officer (Secondary) Z.P. Thane by order dated 20th October 2003 as per details furnished by the said school. He submits that this exercise was necessary for the purposes of fixation of payscale. After approving the individual appointment of the teaching and non teaching staff of the said school by the Education Officer (Secondary) Z.P. Thane, papers were sent to the Headmistress of the said school. Thereafter, the Headmistress of the said school was required to send the records of teaching and non-teaching staff i.e. original service book of each employee and Annexure-I as per M.C.S. (Revised Pay) Rules, 1998 to the office of Senior Auditor, Education Department, Thane. He submits that despite the department calling upon the Headmistress to cooperate with the Senior Auditor, Thane, the Head Mistress of the school did not forward the necessary documents. Therefore, a show cause notice was issued to the management and headmistress of the school calling upon them to show cause as to why recognition of the school should not be withdrawn. The show cause notice was issued for disobedience of the order of Education Department as well as this court as also non compliance of MEPS Act and Rules regarding service conditions of the teaching and non teaching staff. Not providing papers and documents to the Senior Auditor, Education Department, Thane for the fixation of pay is also a serious matter. It appears that the stand of the management and Headmistress was that necessary papers have been sent to the office of Senior Auditor of the Education Department. There is dispute according to Mr. Sonawane as to whether management and Headmistress complied with the department requisitions as according to him, papers were forwarded for individual approval of the appointments and not for pay fixation. The requirements is distinct for both exercises contemplated by law. Mr. Sonawane submits that in the interest of 47 teaching and non teaching staff and about 2000 students, stringent action of withdrawal of recognition was not taken.
11. Mr. Sonawane submits that pursuant to the aforesaid action a team of officers visited the school for verification of records and gathered information for fixing of payscale of teaching and non teaching staff as per 5th pay commission’s recommendations. The Headmistress and management was required to provide information and necessary papers but refused to submit the papers with any signature on the same. In other words, papers were submitted without proper authentication. Senior Auditor prepared the report as per the information and thereafter the same was submitted to the Education department, Z.P. Thane on 11th October 2004.
12. Mr. Sonawane submits that from the report submitted by Senior Auditor, Thane out of 39 employees fixation and verification of payscales of 31 employees have been completed. Out of the remaining eight employees two have resigned and one is retired and two employees have not been given payscales as mentioned in their appointment orders. Two lady employees are employed as Aaya and one employee could not be approved by the department because of not submitting necessary papers by the Headmistress of the school. Thus the Senior Auditor has fixed the payscales of 31 employees with effect from 1/1/1996 upto July 2004. Mr. Sonawane invites our attention to the copy of the report (Exh.3) of the Senior Auditor filed in this petition on 15th October 2004. Mr. Sonawane submits that as per the report, management be called upon to pay the arrears. He submits that school being unaided, directions could be issued only for fixation and rest of the burden is of Management.
13. Mr. Mudnaney, learned Counsel appearing for Management however, submits that the report submitted by the Senior Auditor is not in accordance with law. He submits that in view of the law laid down by this Court in the case of Sunanda Pandharinath Adhave v. State and Ors. , the 5th pay commission recommendations cannot be given retrospective effect and could be brought into force only from the date of the notification issued in that behalf i.e. from 13th May 1999. He submits that notification purports to fix the salary and other emoluments with effect from 1st January 1996. However, in case of school not receiving grant in aid, notification regarding payment of salary and allowances at higher rate cannot be enforced without Director of Education simultaneously granting permission to school to increase the school fees. He submits that such increase cannot be with retrospective effect. He submits that management applied to the concerned authorities for permission to increase tution fees. An order was passed to that effect on 16th December 2000. He submits that this increase is insufficient to pay salaries of teaching and non teaching staff as per 5th pay commission recommendations and, therefore, another application was made seeking permission to increase tution fees for Std. V to X. He submits that permission has been granted vide order dated 20th June 2001 with prospective effect.
14. He submits that after the exercise as aforesaid was completed, the management started paying salary to the teaching and non teaching staff as per figures indicated by them with effect from December 2000. He submits that statement was made before this Court on behalf of the management that it was making payment in the current academic year as per the 5th pay commission’s report. It is only after that statement was made and recorded that this Court directed Director of Education or his appropriate subordinate to enquire into the factual position on payment and wages in accordance with the judgment of this Court reported in 2001. Mr. Mudnaney submits that the computation made by the Accounts Officer in the report is not in accordance with the directions of this Court. He submits that all records were furnished. He submits that in view of the position emerging from the judgment of this Court, increase in salary of teaching and non teaching staff cannot be given retrospective effect from 1/1/1996. Alternatively he submits that financial capacity of the management does not permit payment of wages and salaries as per the requirement of employees. However, tution fees are inadequate to meet the expenditure of salary and wages and he invites our attention to a statement annexed to the affidavit filed on 1st November 2004.
15. Ms. Gupta, learned Counsel appearing for employees controverts above statement and contends that there has been deliberate delay in complying with the provisions of MEPS Rules as well as circulars of the Government to pay salaries according to 5th pay commission. She invites our attention to the affidavit filed in rejoinder and more particularly chart annexed thereto. She submits that basic pay in respect of some of the petitioners is not fixed properly. The basic pay is calculated with effect from the date mentioned in the affidavit in rejoinder. Further, she submits that there is no necessity of individual approvals in law. She submits that the chart prepared by the petitioner be accepted and respondent Nos. 5 and 6 be directed to pay the sums in accordance therewith.
16. After having perused the entire materials, in our view, in the light of the law laid down by this Court, the management is duty bound to comply with the MEPS Rules as well as Government circulars issued from time to time. In terms of the law laid down by this Court the management is liable to pay salary from the date of the 5th pay commission recommendations i.e. 1/1/1996 but the liability to pay the amount as per the law laid down in that decision and from the date of the relevant notification cannot be and is not being disputed. In our view, now that the payscales have been fixed and all reports being forwarded to respondent Nos. 5 and 6, it is their plain duty to abide by the provisions of MEPS Act and the Rules as well as the directions of this Court issued in the aforesaid decision as well as this petition. The management cannot under the garb of financial incapacity refuse to comply with the mandate of law. It is clear that recognised schools even if unaided are bound to comply with the mandate of MEPS Act and Rules and pay salaries and wages as well as other benefits to the employees in accordance therewith. Since this position is not disputed and even otherwise the liability is not denied, we direct respondent Nos. 5 and 6 to pay the amounts in accordance with the report of the Senior Auditor, Thane Z.P. forwarded by him to the respondent Nos. 5 and 6 on 8th October 2004. In other words, the pay fixation done on 8th october 2004 by the department shall be implemented by respondent Nos. 5 and 6 and they are directed to pay the amount in accordance with the pay fixation to its employees with effect from the date specified in the judgment of this Court i.e. 13th May 1999 within a period of six months from today. We are issuing aforesaid directions since the pay fixation has been accepted by all concerned and nothing is brought to our notice to dispute the correctness of the figures mentioned in the report. Now that the exercise of pay fixation is complete, respondent Nos. 5 and 6 shall abide by the directions issued hereinabove. Needless to state that it is for the education department to enforce compliance of its report and it will be open for them to take such action as is permissible in law in case management refuses to abide by the directions issued in that behalf.
Rule is accordingly mae absolute in the above terms with no costs.