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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.
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