Thomas Sebastian and others vs Chief Secretary, State of Goa and another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(Bom) 492

IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
R.K. Batta R.M.S. Khandeparkar, JJ.
Shri Thomas Sebastian others..... Petitioners.
Versus
The Chief Secretary, State of Goa another..... Respondents.
Writ Petition No. 314 of 1993, decided on 19-7-1999.
Advocates appeared :
V.B. Nadkarni, Sr.A. with Y.V. Nadkarni, for the petitioners.
H.R. Bharne, for the respondents.

Headnote:Article 226-Res judicata The petition filed is for the grant of the higher pay scale to the teachers having post graduate qualifications teaching in aided non Government Secondary High School under grant in-aid-code- The subject matter of the instant petition being the same as that of the earlier petitions filed but dismissed by the Court, the question involved cannot be decided without considering the enforceability of the instructions issued by the Govt. withdrawing the grants to the institutions- The dismissal of the earlier petitions does not prevent applicability of rule of res judicata.-It is not in dispute that by a Circular dated 3-4-1974, the Government had asked the managements of aided non Government Secondary Schools to stop appointment of teachers to the postgraduate scale. However, as regard the post-graduate teachers who were already appointed and drawing their scale in the post-graduate scale were allowed to continue to do so pending further communication in that regard by the Government. Further by letter dated 3-7-1976 the Director of Education of Goa Government was informed by the Under Secretary and Ministry of Education about disapproval of the pattern of up gradation of 20% of postgraduate teachers as there was no such provision in Goa Grant-in-aid God and further that up gradation of 20% already granted by the Director of Education was irregular, the same being against the order of the Government of India. It was pursuant to the communication of the said decision that the Petitioner No. 4 had filed the earlier petitions. It is not in dispute that during the period from the date of up gradation of 20%) of post-graduate teachers by the order of Director of Education till it was revoked pursuant to the direction of the Government of India, the Petitioners who were benefited by the said pattern were paid their salary in post- graduate scale. By the impugned Circular dated 15-10-1992 such excess amount over and above the salary legally payable to the Petitioners, is ordered to be recovered. The challenge to the impugned Circular, therefore, infact, is challenge to the order of withdrawal of higher scale of pay to the Petitioners granted to the teachers with post graduate qualification in non- Government Secondary High Schools which were enjoying and under the provisions of the Grant-in-aid Code. Being so, unless the enforceability of the said instructions issued by the Government of India to withdraw the post-graduate scales is adjudicated upon, the challenge to the Circular dated 15-4-1992 cannot be decided. In the circumstances, therefore, it cannot be disputed that the issue in question in the present Petition was directly and substantially in issue in above referred earlier petitions.
       Undisputedly, by the earlier Writ Petitions the Respondents were sought to be restrained from giving effect to the instructions issued by the Government for the withdrawal of higher pay-scale to the teachers having post-graduate qualifications and teaching in aided non-Government Secondary High Schools. The said petitions were dismissed. The relief sought for in the present Petitions is for the grant of the said higher pay-scale to those very teachers those having post-graduate qualifications and teaching in aided non-Government Secondary High Schools. The question of grant of such pay-scale cannot be decided without considering the enforceability of the said instructions of the Government whereby such grant was ordered to be withdraw. The subject-matter of the present Petition is the same as that of the said earlier Petitions which were dismissed by this Court on 23-2-1983.
       As already discussed above, the matter in issue in the earlier petitions was relating to right of the parties to continue to draw higher scale of pay granted to the teachers having postgraduate qualifications and working in aided non-Government Secondary High Schools. Same issue arises in the present Petition and unless the said issue is adjudicated, challenge to Circular dated 15-10-1992 cannot be determined. The cause of action in the present Petition is directly related to the cause of action in the earlier petition. The decision in the matter of Smt Pujari Bai v. Madan Gopal (supra) is of no help in the case in hand as the same was delivered in totally different set of facts. In the said case it was not disputed that the earlier Writ Petition filed by the parties thereto against the order of the Assistant Consolidation Officer was dismissed in limine. That order was passed by the Division Bench of Punjab and Haryana High Court. It was a one word order. The Apex Court relying upon the decision in the matter of Workmen of Cochin Port Trust v. Board of Trustees of Cochin Port Trust, reported in AIR 1978 SC 1283, held that a dismissal of a petition in limine or dismissal thereof on the ground of laches or availability of alternate remedy would not operate as res judicata for subsequent petition. The said decision, therefore, is of no help to the Petitioners.
       In Francis Johns case (supra) the Apex Court has held that in a private school which receives aid form the Government under the Grant-in-aid Code, which is promulgated not merely for the benefit of the Management but also for the benefit of the employees in the school for whose salary and allowances the Government was contributing from the public funds under the Grant-in-aid Code, cannot escape from the consequences following from the breach of Code and particularly when the Director of Education, who is the instrumentality of the State, is participating in the decision-making process. That was a case where the disciplinary proceedings were started against the headmaster of a school which was recipient of aid as per the Grant-in-aid Code and the findings of the Dispute and Settlement Committee were approved by the Director of.

JUDGMENT - R.M.S. KHANDEPARKAR, J.:---By the present petition the petitioners are challenging the Government Circular dated 15-10-1992 by which the respondent No. 2 has ordered the aided secondary schools to recover the alleged overpayment made to the teachers on account of grant of post graduate pay-scales to the teachers, like the petitioners, as also the non-payment of post-graduate scales to the secondary schools teachers by the Government of Goa despite decision to that effect as early as on 20-8-1993.

2.At the outset, a preliminary objection as to the maintainability of the petition on the ground of res judicata is sought to be raised on behalf of the respondents. It is the contention of the respondents that in past the petitioner No. 4 had filed two writ petitions, one in his personal capacity and another in the name of All Goa Secondary School Teachers Association, being Writ Petition No. 66/B of 1976 and No. 170/B of 1976, respectively, and the matter in issue in these petitions is also directly and substantially in issue in the petition in hand and both the petitions were dismissed by common judgment dated 23-2-1983.

3.We have heard Shri V.B. Nadkarni, learned Senior Advocate for the petitioners, and Shri H.R. Bharne, learned Government Advocate for the respondents, at length. On behalf of the petitioners it is submitted that the earlier petitions were dismissed only on the ground of lack of jurisdiction to issue writ as it was held that the provisions contained in the Grant-in-Aid Code were merely executive instructions which confer no right upon the teachers as they cannot apply for writ of mandamus for enforcement or non-enforcement of those provisions. Being so, the dismissal in the said petitions was on account of lack of jurisdiction to grant the relief and not on merits and, therefore the principle of res judicata has no application to the matter in question. It is also submitted that the Apex Court has already held that the order passed in exercise of powers vested under the provisions of Grant-in-Aid Code is assailable in writ jurisdiction and the writ can go against the schools receiving grant-in-Aid. That apart, even the Apex Court, in a subsequent decision in a case between another teacher and the Government has already granted the relief of the nature prayed for by the petitioner. The submissions are sought to be supported by the decisions of the Apex Court in the matter of (Francis John v. The Director of Education others)1, reported in A.I.R. 1990 S.C. 423, (Sushil Kumar Mehta v. Gobind Ram Bohra)2, reported in 1990(1) S.C.C. 193, (Smt. Pujari Bai v. Madan Gopal)3, reported in A.I.R. 1989 S.C. 1764, (Mathura Prasad Sarjoo Jaiswal others v. Dossibai N.B. Jeyeebhoy)4, reported in A.I.R. 1971 S.C. 2355. The learned Advocate for the petitioners also submitted that the petitioners are restricting their claim of arrears for a period of three years prior to the filing of the petition.

4.The fact that the writ petitions as stated by the respondents were filed by the petitioner No. 4 in his individual capacity as well as in the name of the said Association of the teachers and that the same were disposed of by judgment dated 23-2-1983 is not in dispute. The point for consideration in the said petitions was the validity of the withdrawal of the higher scales of pay granted to the teachers having post-graduate qualifications in non-Government Secondary High Schools enjoying grant-in-Aid under the provisions of Grant-in-Aid Code. This Court by the said judgment, placing reliance upon the decisions of the Apex Court in the matter of (The State of Assam another v. Ajit Kumar Sharma others)5, reported in A.I.R. 1965 S.C. 1196 and in (Cyril E. Fernandes v. Sr. Myria Lydia others)6, reported in A.I.R. 1977 S.C. 2145 held that the petitioners therein being the teachers who were seeking to enforce against the Government the instructions under the Grant-in-Aid Code, had no right to do so and therefore, would not b

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1999 Supreme(Bom) 492

Cases Referred (3)