TMI Blog2017 (3) TMI 1673X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 aide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontesting parties and the learned A.G.P., heard finally. The common questions of law and fact are involved in these writ petitions. Hence, they are being decided by this common judgment. 2. Writ Petition Nos. 1893/2014, 1921/2014, 3522/2016, 7519/2016, 8010/2016, 9203/2016 and 10652/2016 have been filed by the Assistant Teachers (hereinafter referred to as the petitioners ) against the Educational Institutions (hereinafter referred to as the respondents ), in which they are serving, while Writ Petition No. 6546/2016 has been filed 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 determinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ABR 51). In the said case, point No. (i), referred to above, was under consideration of the Division Bench of Nagpur Bench of this Court. The Division Bench considered various judgments of the Hon'ble the Supreme Court and the Bombay High Court, which have been cited by the learned counsel for the parties before us also and answered the said point in the affirmative with the following observations. 30.....The appellant management contended that they were not liable to pay the salary and allowances prescribed under the Fifth 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 allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the judgment in Frank Anthony Public School Employees' Association v. Union of India (supra), which reads thus: We must refer to the submissions of Mr. Frank Anthony regarding the excellence of the institution and the fear that the institution may have to close down if they have to pay higher scales of salary and allowances to the members of the staff. As we said earlier the excellence of the institution is largely dependent on the excellence of the teachers and it is no answer to the demand of the teachers for higher salaries to 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 sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no more res integra, we hold that 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. Point No. (ii): 10. The learned counsel for the respondents vehemently contend that the Amended Rules of 2016 have no force of law since they have not been laid before each House of the State Legislature, as contemplated under sub-section (4) of Section 16 of the Act of 1977. They submit that as observed by Nagpur Bench of this 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 responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 417; Inebriates Act, 1898, Section 21) but this is not used now. (ii) Negative resolution. Instruments so laid have immediate operative effect but are subject to annulment within forty days without prejudice to a new instrument being made. The phraseology generally used is subject to annulment in pursuance of a resolution of either House of Parliament. This is by far the commonest form of laying. It acts mostly as a deterrent and sometimes forces a Minister (in Sir Cecil Carr's phrase) to buy off opposition by proposing some 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 Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only from the date on which they were placed before the Houses of Legislature. The rules are valid from the date on which they are made under S. 26(1). It is true that the Legislature has prescribed that the rules shall be placed before the Houses of Legislature, but failure to place the rules before Houses of Legislature does not affect the validity of the rules, merely because they have not been placed before the Houses of the Legislature. Granting that the provisions of sub-sec. (5) of S. 26 by reason of the failure to place the rules before 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 delegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In the circumstances, in view of the above-stated legal position clarified by the Hon'ble the Apex Court, sub-section (4) has to be treated as directory and not mandatory. 17. Mr. S.V. Adwant, the learned counsel for the respondents, relying on the judgment delivered by a Two Judge Bench in Association of Management of Private Colleges v. All India Council for Technical 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 contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial Gazette i.e. 08th September, 2016. Point No. (iii): 21. Relying on the judgments in the cases of Mrs. Satimba Sharma (AIR 2011 SC 2926) (supra). The Correspondents/Principal AROKAIMADA Matriculation Higher Secondary School. (2016 Lab IC 341) (Mad) (supra) and K. Krishnamacharyulu v. Sri Venkateswara Hindi College of Engineering (1997) 3 SCC 571 : (AIR 1998 SC 295), the learned counsel for the respondents submit that the writ petition are not maintainable. We are not inclined to accept this contention for the simple reason that this issue has been dealt 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary than the salary prescribed in Schedule 'C of the Rules of 1981, he can certainly do so and the Educational Institutions cannot be directed to pay full salary to him. However, it must be the result of his own volition. In this case, the consent letters of petitioner Nos. 1 to 4 executed by them prior to joining the service with this respondent have not been produced. Moreover, when they claim salary on par with the salary that is being paid to the teachers working in the private aided schools, that itself indicates that they are not ready to abandon their claim in 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt - Gyan Mata Vidya Vihar shall be directed to continue to pay the same pay scale to them in future also, cannot be accepted since the said pay scale is not supported by Schedule 'C' of the Rules of 1981. 28. In the result, we pass the following order:-- (i) The respondents (Educational Institutions) shall fix pay scales of the petitioners (Teachers) as provided in Schedule 'C of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981 as existing prior to and after the Amendment Rules of 2016, respectively. (ii) The respondents (Educational Institutions) shall pay salary to the petitioners (Teachers) as prescribed in Schedule 'C regularly from April 2017 actually payable in May 2017. (iii) The petitioners (Teachers) are entitled to get arrears, if any, of additional pay accumulated due to revised pay fixation in terms of clause (i) above. (iv) The respondents shall pay arrears payable to the petitioners due to revised pay fixation, within six months from today. (v) The impugned letter dated 31st December, 2015, issued by the Deputy Director of Education, Latur and the letter dated 11th March, 2016, issued b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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