Writ jurisdiction can enforce pay scales provided in the Rules of 1981, but cannot resolve disputed factual questions of attendance and entitlement to salary.

JUDGMENT :

Sandeep V. Marne, J.

1. Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing at the stage of admission.

2. The short question that arises for our consideration in the present petition is whether in the light of existence of factual dispute as to whether any salary is payable or not for a particular period, whether this Court can entertain the present petition only on account of the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981 (for the sake of brevity hereinafter referred as to the “Rules of 1981”).

3. Brief facts of the case, shorn of unnecessary details, are that the petitioner was appointed as an Assistant Teacher in the respondent No. 2 school managed by the respondent No. 1 on 15.06.2009. It is an unaided school. Approval in respect of his appointment was granted by the respondent No. 3 vide order dated 31.12.2015 for the period from 15.06.2009 to 14.06.2011 on non grant basis. There is no dispute that on account of the approval being granted on non grant basis, the responsibility of payment of salary to the petitioner rests on respondent Nos. 1 and 2.

4. Services of the petitioner were apparently discontinued with effect from 19.09.2016 and such discontinuation was challenged by the petitioner by filing appeal U/Sec. 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for the sake of brevity hereinafter referred as to the “Act of 1977”) before the Presiding Officer, School Tribunal, Aurangabad. In the appeal, compromise terms were filed by the petitioner and the management under which it was inter alia agreed that the petitioner would be reinstated in service as Assistant Teacher with effect from 01.03.2017. It was further agreed to treat the services of the petitioner as continuous for the purpose of pensionary benefits if admissible in law. Based on the compromise terms, the School Tribunal was pleased to allow the appeal vide order dated 28.02.2017 in terms of the compromise. The Tribunal however, specifically directed that there would not be any order as to backwages. The petitioner addressed representations dated 18.02.2017, 02.03.2017 and 03.03.2017, for the first time contending that he was not paid salary since the year 2009. The petitioner has thereafter filed present petition on 26.09.2017 with following prayers :

A) For a writ of mandamus Order or direction in nature of mandamus to respondents Nos. 1 and 2 to pay the petitioner, salary and salary arrears along with other consequential benefits w.e.f. 15.06.2009 within the period of three months and within such period as this Hon’ble Court deem fit.

B) For a writ of mandamus Order or direction in nature of mandamus to respondents Nos. 1 and 2 to pay the petitioner, interest of 24% p.a. on the arrears till the realization of it.

5. The respondent Nos. 1 and 2 management have resisted the claim of the petitioner by filing affidavit in reply with specific averments that the petitioner has been remaining absent during various periods. There are series of pleadings thereafter filed by the parties in respect of issue of petitioner’s alleged absence from service.

6. In the above backdrop, when we expressed during the course of hearing of the petition that this Court would not be in a position to go into the disputed questions of facts, Mr. Sushant Dixit, the learned advocate for the petitioner relied upon provisions of Rule 7 read with Schedule – C of the Rules of 1981 and contended that since it is a statutory duty cast upon the respondent management to pay salary in accordance with the rules, the writ petition under Article 226 of the Constitution of India is maintainable qua the prayers sought for in the petition. Shri Dixit, also relied upon the judgment of this Court in the case of Anil Govindrao Kale and others Vs. Maharashtra Academy of Engineering and Education Research, Pune and others reported in 2017 LAB. I. C.