JUDGMENT - B.H. MARLAPALLE, J.:---The petitioners are the teachers working in the respondent No. 6 school which is run by the respondent No. 4 society and it is an unaided school. The petitioner No. 1 has already retired from service during pendency of this petition and other petitioners are still in service. They claim that they are entitled for payment of salary as per the fifth pay commission recommendations with effect from 1st January, 1996, including the other benefits like house rent allowance, dearness allowance etc. and, therefore, they are seeking directions to that effect.

2. Respondent No. 4 has filed return and opposed the petition. It is averred that the respondent No. 4, which is a public trust, registered under the Bombay Public Trust Act, is running in all 13 schools out of which 11 schools are of Marathi medium and 9 of them are grant-in-aid and remaining 2 are on non-grant basis. The respondent No. 5 is one such English medium school which is being run on non grant basis. The teachers employed in respondent No. 5 school are paid salary as per the 4th pay commission except some arrears by way of interim relief. It is contended that it was aided by the Rahuri Sahakari Sakhar Karkhana in the past and that was the only source of income in addition to the fees charged to the students. Undoubtedly, respondent No. 5 is a residential school and is governed by the provisions of the M.E.P.S. Act, 1977 as well as the M.E.P.S. Rules, 1981. The Rahuri Sahakari Sakhar Karkhana is not in a position to assist the school any further and, in fact, there have been representations by the members of the said Karkhana to withdraw the financial assistance extended for the respondent No. 5 school. The said Karkhana has already communicated, by letter dated 20th March, 2000 that it has to receive an amount of Rs. 45,25,200/from the respondent No. 4 society. The contentions of the petitioners that the respondent No. 4 trust is financially sound have been denied and it has been stated that the principle of equal pay for equal work is not applicable in the instant case.

3. During the course of hearing we made it clear to the petitioners that their prayer to direct the respondent Nos. 4 and 5 to transfer them from the unaided school to the aided schools run by the respondent No. 4 society cannot be considered by this Court in a writ petition under Article 226 of the Constitution and when the petitioners have been working for the last more than 15 to 20 years continuously in respondent No. 5 school, they were aware that they have been employed in a school which is un-aided and they would be entitled for the benefits as are applicable to the teachers in such un-aided schools as per the Government rules and regulations. It was under these circumstances that we have considered the petition only in respect of the prayer for directions to extend to them the benefits of the fifth pay commission recommendations which have been made applicable by the Government of Maharashtra to all the teachers working in private schools as well (whether aided or un-aided) with effect from 1st January, 1996.

4. In support of their contentions the petitioners have relied upon a judgment of this Court in the case of (Raskar Vidya Damodhar v. Maharashtra Arogyamandal and others)1, 2000(4) Mh.L.J. 129 and also in the case of (Prakash Pandharinath Korde v. The State of Maharashtra and others)2, Writ Petition No. 950 of 1998. In both these judgments one of us (Marlapalle, J.) was one of the members of the Bench. Shri Dhorde, the learned Counsel on the other hand has relied upon the judgments of the Supreme Court in the case of (State of Haryana and another v. Ram Chander and another)3, A.I.R. 1997 S.C. 2468 and in the case of (Polychem Ltd. and another v. State of Maharashtra and others)4, A.I.R. 1998 S.C. 2546 and submitted that even if it is accepted that the principle of equal pay for equal work is applicable to the petitioners, in any case, they cannot be given the

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