KERALEEYA SAMAJAM & ANR.versusPRATIBHA DATTATRAY KULKARNI (DEAD) THROUGH LRS & ORS.

                         [2021] 8 S.C.R. 737                              737


                KERALEEYA SAMAJAM & ANR.                                  A
                                  v.
         PRATIBHA DATTATRAY KULKARNI (DEAD)
                      THROUGH LRS & ORS.
        (Special Leave Petition (C) No. 21660-21661 of 2019)              B
                        OCTOBER 01, 2021
            [M.R. SHAH AND A.S. BOPANNA, JJ.]
      Maharashtra Employees of Private Schools (Condition of
Service) Regulation Rules, 1981 – Second petitioner-School directed       C
by High Court to pay arrears of salary as per 5 th and 6 th Pay
Commission to its teaching and non-teaching staff – Petitioners
though ready to pay the arrears, sought to restrict the same to three
years preceding the filing of the writ petitions alleging limitation in
view of respondents having approached the Deputy Director
                                                                          D
(Education) – Held: Only when the petitioners though required to
pay wages as per the applicable rules and recommendation of 6th
Pay Commission, failed to make the payment, the respondents were
compelled to approach the Deputy Director (Education) thereafter
– For the lapse and inaction on the part of the petitioners, the
respondents cannot be denied the arrears of salaries as per the 6th       E
Pay Commission recommendation, which otherwise they are entitled
to – Service Law.
      Dismissing the petitions, the Court
       HELD: 1. Considering orders passed in earlier round of
litigations which ended up to this court the liability of the             F
management to pay the salaries to the teaching and non--teaching
staff as per the 4th Pay Commission and 5th Pay Commission ended
in favour of the teaching and non-teaching staff working with the
petitioners. Therefore as and when the 6 th Pay Commission
recommendations were made applicable as such it was the duty              G
cast upon the petitioners’ institution to pay the salary/wages to
the teaching and non-teaching staff as per the applicable pay scale
under the 6th Pay Commission recommendation and for which
the staff was not required to move before the Deputy Director

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                                 737
738            SUPREME COURT REPORTS                          [2021] 8 S.C.R.


A     (Education) again and again. Therefore, the submissions on behalf
      of the petitioners that as the respondents approached the Deputy
      Director (Education) subsequently and therefore the question
      with respect to the limitation will come into play and therefore
      the respondents shall be entitled to the arrears of last three years
      preceding the filing of the writ petitions cannot accepted. The
B
      respondents were compelled to approach the Deputy Director
      only when the petitioners though were required to pay the wages
      as per the applicable rules and as per the recommendation of 6th
      Pay Commission, failed to make the payment, the respondents
      were compelled to approach the Deputy Director (Education)
C     thereafter. For the lapse and inaction on the part of the petitioners,
      the respondents cannot be made to suffer and deny the arrears
      of the salaries as per the 6th Pay Commission recommendation,
      which otherwise they are entitled to. Every time the teachers
      were not supposed to approach the appropriate authority for
      getting the benefit as and when there is a revision of pay as
D
      per the pay commission recommendations. [Paras 4, 5]
      [741-F-H; 742-A-D]
            CIVIL APPELLATE JURISDICTION: Special Leave Petition
      (C) Nos.21660-21661 of 2019
E            From the Judgment and Order dated 28.06.2019 of the High Court
      of Judicature at Bombay in Writ Petition No.5311 of 2011 and Writ Petition
      No.5338 of 2000.
            Shekhar Naphade, Sr. Adv., Ms. Bina Madhavan, Ms. Praseena
      Elizabeth Joseph, Advs. for the Petitioners.
F           Akshay Girish Ringe, Ms. Megha Mukerjee, Aaditya A. Pande,
      Rahul Chitnis, Sachin Patil, Geo Joseph, Bhaskar Y. Kulkarni, Tarun
      Kumar Thakur, Harshal Bhaskar Kulkarni, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            M. R. SHAH, J.
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             1. Feeling aggrieved and dissatisfied with the impugned judgment
      and order dated 28.06.2019 in Writ Petition No.5311 of 2011 and Writ
      Petition No.5338 of 2000 passed by the High Court of Judicature at
      Bombay, the management has preferred the present special leave
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   KERALEEYA SAMAJAM v. PRATIBHA DATTATRAY KULKARNI                           739
          (DEAD) THROUGH LRS [M. R. SHAH, J.]

petitions. By the impugned common judgment and order the High Court           A
has declared that the entitlement of the original petitioners is to receive
wages in pay scales as per Schedule – C to the Maharashtra Employees
of Private Schools (Condition of Service) Regulation Rules, 1981.
Thereafter, the Division Bench has disposed of the said writ petitions
issuing a direction to the Deputy Director (Education) to see that the
                                                                              B
teachers working with the petitioners school are received their wages
and salaries accordingly. The High Court has also not accepted the
submissions on behalf of the petitioner to restrict arrears to three years
preceding the filing of the writ petition.
       2. At the outset, it is required to be noted that in the order dated
21.10.2019, this court recorded the submissions on behalf of the              C
petitioners that the petitioners are ready to pay the arrears as per 6th
Pay Commission for the preceding three years prior to the filing of the
writ petition. Thereafter this court passed the following order on
04.11.2019:-
             “Being aggrieved by the impugned order of the High Court         D
      directing the petitioners-Institution to pay the arrears of salary as
      per the Fifth and Sixth Pay Commissions to the teaching and non-
      teaching staff of the second petitioner-School (said to be unaided
      school) the petitioners have filed these special leave petitions.
             We have heard Mr. Shekhar Napahade, learned senior               E
      counsel, assisted by Ms. Bina Madhavan, learned counsel
      appearing for the petitioners who has submitted that the petitioners
      are ready to pay arrears as per the Sixth Pay Commission for the
      preceding three years prior to the filing of the writ petition.
            On the above submission, the petitioner to file the calculation   F
      memo as arrears of the amount payable to the teaching and non-
      teaching staff.
              Accordingly, the petitioners have filed calculation memo as
      per which the amount towards the salary for three years preceding
      the filing of writ petition (Sixth Pay Commission), Rs.1,49,13,459/     G
      - is payable.
             So far as the total arrears towards Fifth Pay Commission
      an amount of Rs.1,19,96,967/- is payable. Insofar as the Sixth
      Pay Commission an amount of Rs.5,34,50,719/- is stated to be the
      arrears payable. Thus the total arrear as per Fifth and Six Pay         H
740            SUPREME COURT REPORTS                            [2021] 8 S.C.R.


A           Commissions is Rs.6,54,47,686/- (Rs.1,19,96,967/- +
            Rs.5,34,50,719/-) and out of the said amount 50% works out to
            Rs.3,27,23,843/-.
                   Mr. Shekhar Napahde, learned senior counsel, has submitted
            that the second petitioner being unaided school may not be in a
B           position to deposit the entire amount. Considering the submission
            made at the Bar, there shall be an interim stay of the operation of
            the impugned order on condition that the petitioner shall deposit
            50% of the total amount which works out to Rs.3,27,23,843/- within
            a period of eight weeks failing which the interim stay granted by
            this Court shall be automatically vacated. The deposit of the above
C           amount shall be without prejudice to the contention of the petitioners
            in the matter.
                   On such deposit, the amount of Rs.3,27,23,843/- shall be
            disbursed to the teaching and non-teaching staff of the second
            petitioner-school and other employees who are held entitled to
D           get arrears as per the orders of the High Court.
                   Issue notice.”
             That thereafter a further order dated 29.01.2020 came to be passed
      by this court, which reads as under:-
E                  “In compliance of Order dated 04.11.2019 the petitioners -
            Institution has deposited the amount of Rs.3,27,23,843/- (Rupees
            three crore twenty seven lakhs twenty three thousand eight
            hundred forty three) in the Registry of the Supreme Court. As per
            the said order the amount is to be disbursed to the teaching &
            non-teaching staff and the other employees of the second
F           petitioner-Model English School who are entitled to get the arrears
            as per Order of the High Court.
                   Ms. Bina Madhavan, learned counsel appearing for the
            petitioners and Mr. Akshay Girish Ringe & Mr. Bhaskar Y.
            Kulkarni, learned counsel appearing for the respondents, have
G           agreed that the amount so deposited before this Court be disbursed
            to the teaching & non-teaching staff and the other employees of
            the second petitioner-Model English School through Deputy
            Director of Education, Education Department, State of
            Maharashtra.
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   KERALEEYA SAMAJAM v. PRATIBHA DATTATRAY KULKARNI                            741
          (DEAD) THROUGH LRS [M. R. SHAH, J.]

             In view of above, the Registry is directed to transmit the        A
      amount of Rs.3,27,23,843/- (Rupees three crore twenty seven
      lakhs twenty three thousand eight hundred forty three) to Deputy
      Director of Education, Education Department, State of
      Maharashtra, either through RTGS or by Pay Order at the earliest.
             Ms. Bina Madhavan, learned counsel appearing for the              B
      petitioners-Institution, shall furnish the details of the bank account
      of the Deputy Director of Education, Education Department, State
      of Maharashtra, to the Registry of this Court within a period of
      two days from today.
            The Deputy Director of Education, Education Department,            C
      State of Maharashtra, is directed to identify the teaching, non-
      teaching staff and other employees of the second petitioner-Model
      English School who are entitled to receive the arrears as per order
      of the High Court and thereafter disburse the said amount
      proportionately as per arrears on proper receipt. The Deputy
      Director of Education, Education Department, State of                    D
      Maharashtra, shall complete the exercise of disbursement of the
      said amount within four weeks from today.
             We make it clear that the disbursement of the said amount
      shall be without prejudice to the contentions of the petitioners and
      the respondents. Matter be listed in the last week of April 2020.”       E

       3. Therefore the entitlement of the teacher’s salaries as per the
5th and 6th Pay Commission to the teaching and non-teaching staff of the
second petitioner – school is not required to gone into and only issue
which is required to be considered is whether the arrears ought to have
been restricted to three years preceding the filing of the writ petition?      F
        4. Having heard Shri Shekhar Naphade, learned Senior Advocate
appearing on behalf of the petitioners and learned counsel appearing on
behalf of the respondents and considering orders passed in earlier round
of litigations which ended up to this court the liability of the management
to pay the salaries to the teaching and non-teaching staff as per the 4th      G
Pay Commission and 5th Pay Commission ended in favour of the teaching
and non-teaching staff working with the petitioners. Therefore as and
when the 6th Pay Commission recommendations was made applicable
as such it was the duty cast upon the petitioners’ institution to pay the
salary/wages to the teaching and non-teaching staff as per the applicable
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742             SUPREME COURT REPORTS                            [2021] 8 S.C.R.


A     pay scale as per the 6th Pay Commission recommendation and for which
      the staff was not required to move before the Deputy Director (Education)
      again and again. Therefore, the submissions on behalf of the petitioners
      that as the respondents approached the Deputy Director (Education)
      subsequently and therefore the question with respect to the limitation
      will come into play and therefore the respondents shall be entitled to the
B
      arrears of last three years preceding the filing of the writ petitions cannot
      be accepted.
             5. The respondents were compelled to approach the Deputy
      Director only when the petitioners though were required to pay the wages
      as per the applicable rules and as per the recommendation of 6th Pay
C     Commission, failed to make the payment, the respondents were compelled
      to approach the Deputy Director (Education) thereafter. Therefore for
      the lapse and inaction on the part of the petitioners, the respondents
      cannot be made to suffer and deny the arrears of the salaries as per the
      6th Pay Commission recommendation, which otherwise they are entitled
D     to. Every time the teachers were not supposed to approach the appropriate
      authority for getting the benefit as and when there is a revision of pay as
      per the pay commission recommendations.
             In view of the above and for the reasons stated above both these
      special leave petitions deserve to be dismissed and accordingly dismissed.
E           It is directed to the petitioners to clear the arrears within a period
      of eight weeks from today failing which it shall carry interest at 9 %.
      The Deputy Director (Education), Nasik Division is hereby directed to
      see that the present order is complied with by the petitioners and the
      amount is disbursed to the respective respondents by account payee
F     cheques.

      Divya Pandey                                                Petitions dismissed.




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