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2001 Supreme(Bom) 760
IN THE HIGH COURT OF BOMBAY
(R. M. S. Khandeparkar, J.)
PUJYA SANE GURUJI VIDYA PRASARAK MANDAL and others - Petitioners
Versus
PRAKASH M. PATIL and another - Respondents
Advocates appeared
For petitioners: P. M. Shah, Senior Advocate with Jayant Shah and Mukul Kulkarni
For respondent No.1: S. R. Barlinge holding for S. P. Brahme
For State: A. B. Bajpai, M. L. Dharashive, S. D. Kaldate, Umakant Patil, N. B. Khandare and K. S. Patil (All A.C.Ps.)
Headnote:Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 - Rules 25-A and 26(i)(v) - Voluntary closing of school - Under Rule 25-A also includes bona fide grounds available under Rule 26(i)(v) - Drastic fall in number of students or financial restraints are also included in bona fide reason - Rule of "ejusdem generis" duly applied. - By amendment issue relating to closure of school in entirety was taken out from the provisions contained in Rule 26 and is being dealt with independently under Rule 25-A, nevertheless it continued to be from the class or genus dealt with in unamended Rule 26 and hence closure of school under Rule 25-a has also to be for any bona fide reason of similar nature as specified in clause (v) of Rule 26(1). Undoubtedly bona fide reason would include fall in number of pupils or financial constraints. As disclosure in case in hand, the financial constraint is the cause that compelled the peti- tioners to decide to close down school. [Pujya Sane Guruji Vidya
Secondary Schools Code - Rule 75 (as amended by G.R. dated 17.12.1990) - Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, Rules 25 and 26(i)(v) - Closure of school - Voluntary closure - Scope of - No need for any prior approval of any authority regarding propriety of closure of school - Notice under Rule 7.5 is not mandatory - Failure to issue notice may attract penal action on school management but it does not affect closure of school. - It is well established settled principle of law that when provision of a statute is directory, the penalty may be incurred for non-compliance thereof but the act or thing done is regarded good and not affected by the failure to comply with the provision. Therefore even in case of any delay in giving notice under Rule 7.5 of Code. In respect of voluntary closure of school to the competent authority, it may warrant penalty upon management but in no case can affect closure of school. It can be held that prior permission of any authority or under the Code is not necessary for voluntary closure of school.
Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 - Rules 25-A, 26(i)(v), (viii) (As amended in 1987) - Termination of teachers of school when school is voluntarily closed - Rule 26 not applicable as it deals with those situations where school continues to run despite eventualities. - The very purpose of providing necessity of serving a notice in advance by at least one academic term is to give proper opportunity for the department to take appropriate action in that regard. Being so, the findings arrived at by the tribunal that for the purpose of putting an end to the services of school employees in case of closure of school, the procedure prescribed under Rule 26 is to be followed cannot be held to be good and is liable to be set aside.
2. Rule. By consent, Rule is made returnable forthwith.
3. Heard the learned Advocate for the parties. Perused the records.
4. The petitioners challenge the common judgment and order dated 24th May, 2000 passed by the Presiding Officer, School Tribunal, Nashik in Appeals Nos. DHL-3/ 2000 to DHL-12/2000. By the impugned judgment and order, the tribunal has directed the petitioners to reinstate the first respondents with full backwages.
5. The facts in brief, relevant for the decision are that since 1984-85, the petitioners were running an unaided English Medium school named as Sandipani Public School, Shahada. The first respondents in all these petitions are the teachers employed in the said school over a period of ten years, some of them being employed since 1990 and some since 1988. Since, November, 1997 the petitioners paid salary to the respondents after deducting 25% therefrom and further from July, 1999 each of them were paid Rs.3000/- per month towards their salary. The respondents, therefore, made a representation to the petitioners claiming for their salary as per the law. As there was no response from the petitioners to the said representation, the respondents served an Advocates notice dated 2-11-1999 upon the petitioners requesting them to pay their salary according to the rules. The petitioners, thereafter, by notice dated 29th December, 1999 informed the first respondents that the petitioners had decided to close down the said school and hence, their services would be terminated from expiry of the month of May, 2000. Meanwhile, the petitioners by their letter dated 20th November, 1999 had intimated the Regional Deputy Director of Education, Nashik that the management had been constrained to take most unpleasant and unfortunate decision to close down the school in question w.e.f. June, 2000. The same was sent to the authorities under the certificate of posting. Further, the petitioners in continuation of the said notice of closure, intimated the Regional Deputy Director of Education on 21st February, 2000 that the petitioners had complied with the provisions of Rule 25A of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter called as "the said rules"). By the letter dated 27th March, 2000 and in reply to the said letter dated 21st February, 2000 of the petitioners, it was informed to the petitioners by the Deputy Director of Education, Nashik that it was necessary for the petitioners to obtain prior permission of Regional Education Officer at least one academic term in advance, if the petitioners were desirous of closing down the school and that since such notice was given in February, 2000, the petitioners were not entitled to close down the school. Attention was drawn to the letter dated 6th September, 1999 of the Director of Education of Maharashtra Government in that regard. The petitioners thereafter, filed an appeal against the said order dated 25th March, 2000 to the Director of Education in terms of rule 7(5) of the Secondary School Code (hereinafter called as "the Code"). Meanwhile, the first respondents also filed appeals against the orders of termination of their services dated 29th December, 1999 before the School Tribunal and the same were allowed by the Tribunal by the impugned order dated 24th May, 2000. Hence, the present petitions. Meanwhile, the petitions, without prejudice to their rights to close down the school on expiry of the month of May, 2000, by their letter dated 26th May, 2000 asked for permission for closure of the school at least from end of the first term of the academic year, 2000 - 2001. The Divisional Deputy Director of Education by his letter dated 16th April, 2001 granted said permission for the closure of the school.
6. Perusal of the impugned judgment disclose that the tribuna
