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2000 Supreme(Bom) 680
IN THE HIGH COURT OF BOMBAY
Dr. D.Y. Chandrachud, J.
Bharat Education Society’s
Junior College of Commerce Economics others.... Petitioners.
Versus
Shri Balaraman Vembulu.... Respondent.
Writ Petition No. 1779 of 2000, decided on 4-9-2000.
Advocates appeared :
M.M. Verma with R. Gehani, for petitioners.
Mihir Desai, for respondents.
Headnote:-Rule 26--Management of a School has no unilateral discretion while taking a decision of retrenching an employee under Rule 26-Prior approval of the competent authority is a mandatory condition.-Under Rule 6 of, the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, even if there is a reduction in the establishment due to fan in the number of pupils, classes or divisions, the decision to retrench an employee cannot reset in the unilateral discretion of the Management of a School. Prior approval of the competent authority of the Education Department is a mandatory condition.
Where the Management of a School altered the status of a perInal1ent full time employee to one engaged on clock hour basis due to reduction in the number of classes being conducted in the junior college and in appeal by the teacher the School tribunal set aside the said order and the management was directed to treat the said teacher on a full time basis and to pay to him, the difference in emoluments and direction was issued to the State Government that the difference in back wages which was to be paid to the respondent should be deducted from the grant due and payable be paid to him directly.
Held, that Rule 26 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 shows that even if there is a reduction in the establishment due to a fan in the number of pupils, classes or divisions, the decision to retrench an employee cannot rest in the unilateral discretion of the management of a school. In the case of all schools, the principles on the basis of which the retrenchment is to be effected, are specified. The prior approval of the competent authorities of the Education Department is a mandatory condition.
In the case of aided schools the employee whose services are sought to be dispensed with is to be absorbed in an alternative establishment. In the exceptional case specified in sub-rule (9) of Rule 26, where the facility of absorption is not admissible, the employee has to be given an opportunity of working on a lower scale or post or on a part time post. The procedure which is postulated by Rule 26 was evidently not followed. The respondent was a permanent full time employee. The decision of the petitioners to alter his status from that of a full time employee into an employee engaged on a clock hour basis without following the procedure prescribed by Rule 26 was therefore, illegal. It would not be appropriate to direct that the wages which had been earned by the respondent by engaging in part-time work which, in any event, he would have been entitled to render even if he was employed on a full time basis, be deducted in computing the difference of emoluments. However, the wages which had been earned by the respondent by working on a full time basis in any other institution during the relevant period shan be a deducted in determining the difference in emoluments to be paid to the respondent. The State Government was not a party to the proceedings before the tribunal. Consequently, insofar as the direction to the State Governn1ent was concerned, it shall stand set aside and be substituted by a direction to the petitioner to pay the difference in emoluments to the respondents.
2. On 6-9-1991 and on 22-9-1991, the Deputy Director of Education directed the management to refrain from unilaterally closing down the classes in the Junior College and that permission ought to have been taken of the Deputy Director before closing down the classes. Despite the letters of the Deputy Director of Education, the respondent was continued as a teacher on a clock-hour basis. The grievance of the respondent was agitated in an appeal (Appeal No. 27 of 1991) filed before the School Tribunal which came to be allowed by the impugned order which is annexed at Exhibit N to the writ petition. The learned Counsel for the parties state that the certified copy of the order does not bear any date. By the impugned order, the Tribunal set aside the decision of the petitioners to treat the services of the respondent on a clock-hour basis with effect from September, 1991. The petitioners were directed to treat the respondent as a teacher on a full-time basis from September, 1991 and to pay to him the difference in emoluments. A direction has been issued to the State Government that the difference in back wages which is to be paid to the respondent should be deducted from the grant due and payable to the petitioners and be paid to the respondent directly.
3. In considering the correctness of the view which has been taken by the School Tribunal, regard must be had to the provisions of Rule 26 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, which have been framed in pursuance of the provisions of section 16 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. Sub-rule (1), (2) and (9) of Rule 26 are material and are, therefore, extracted below:
"26. Retrenchment on account of abolition of posts:
(1) A permanent employee may be retrenched from service by the Management after giving him 3 months notice, on any of the following grounds namely :
(i) reduction of establishment owing to reduction in the number of classes or divisions;
(ii) fall in the number of pupils resulting in reduction of establishments;
(iii) change in the curriculum affecting the number of certain category of employees;
(iv) closure of course of studies;
(v) any other bona fide reason of similar nature.
(2) The retrenchment from service under sub-rule (1) shall be subject to the following conditions namely:
(i) The principle of seniority shall ordinarily be observed :
(ii) prior approval of the Education Officer in the case of primary and Secondary Schools or, of the Deputy Director in the case of Higher Secondary Schools and Junior Colleges of Education shall be obtained by the Management in each case of retrenchment including such cases in which the principle of seniority is proposed to be departed from and a senior member of the staff is proposed to be retrenched when a junior member should have been retrenched, stating the special reasons therefor;
(iii) The employees from aided schools, whose services are proposed to be retrenched shall be absorbed by the Education Officer in the case of Primary and Seco
