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2009 Supreme(Bom) 1167
IN THE HIGH COURT OF BOMBAY
In the High Court of Bombay at Nagpur
THE HONOURABLE MR. JUSTICE B.P. DHARMADHIKARI & THE HONOURABLE MR. JUSTICE F.M. REIS
Chandrakant Shikshan Sanstha
Versus
Shri Rajendra s/o Ramaji Belekar & Others
Writ Petition No.3323 of 1997
Decided on : 09-10-2009
For the Petitioner:N. Adbe, Advocate. For the Respondents:R1 to R3 & R4, V.S. Kukdey, Advocate, R5 & R6, S.S. Doifode, AGP.
Headnote:Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 - Rules 25-A, 26 and 27(d) - Termination of services - School Tribunal held termination of services of employee illegal - Challenged - Management of school not produced documents before Tribunal to substantiate its contentions - Separate seniority list of girls school and common seniority list of other two schools of petitioner - School itself comes to end under Rule 25-A and activity left - Petitioner not challenged constitutional validity of Rule 25-A - Petitioner cannot challenge provisions of Rule 27(d) - Writ petition dismissed. - Insofar as contention of separate seniority list for Girls School is concerned, the School Tribunal has in paras 27 and 28 considered the respective arguments and then in para 29 found that the management never came up before it wit express plea either in replies filed to memo of appeal or elsewhere that there was any resolution passed by any competent body to maintain separate seniority list of employees working in Matoshree Vidya Mandir, Telkamptee, it being a Girls School. It also found that there was no plea about any such letter having been sent to the Education Officer by it. The plea in this respect was taken belatedly after the employees filed their rejoinder to the reply of management before School Tribunal. Even in that reply, the management did not disclose any such resolution or any such letter. It further found that original documents were not produced before it to verify the genuineness of Xerox copies placed on record. The office of the Education Officer had not mentioned the closure of one school either due to withdrawal of recognition or due to decision of management to close it. The petitioners are objecting to these rules in sub-rule (d). The mention of Rule 26 or preceding rule, in the scheme of Rule 27, is not very relevant. The contingencies contemplated by it are important and the Principles mentioned therein need to be followed whenever the date of receipt of management’s letter allegedly dated 3.9.1993 and there was no affidavit of management i.e. present petitioner in support of those documents. In para 30, therefore it has found that to show that there was a separate seniority list of Girls School and common seniority list of other two schools, the documents were not produced by the management. It has therefore rejected the case of the management that it was maintaining a separate seniority list of employees of Matoshree Vidya Mandir, Telkamptee. The consideration, therefore shows that though the management was having full opportunity and notice, it has utilised it and did not produce necessary documents before the School Tribunal to substantiate its contention. The offer of the petitioners to produce originals so as to enable Court to verify the correctness of Xerox copies, needs to be viewed in this background. The counsel also urged that the Court can remand the matter back to the School Tribunal for the said purpose.
The provisions of Rule 25-A insofar as relevant for present consideration show that when a school is closed due to derecognition the service of permanent employee stand terminated Sub-rule (1) states that services of permanent employee may be terminated by the management in these circumstances by giving him advance intimation of three months and such an advance intimation is required to be given after receipt of Show-Cause Notice from the office of Deputy Director. As per sub-rule (2) the names of employees whose services are terminated on account of derecognition and who are not directly responsible for such de-recognition are to be taken on waiting list by the Education Officer.
Under Rule 26(1), the management can retrench from its service a permanent employee after giving him three months notice and its Clause (iv) as it now stands permits such retrenchment in case of closure of a course of studies. Before October 1987, the words "or of school itself" were appearing at the end of this Clause (iv) By amendment the Rule making authority has separated the cases of closure and retrenchment. The retrenchment is always from an on going school i.e. where the establishment of the School continues, while closure puts an end to the life of School. Under Rule 25-A this is contemplated when management itself voluntarily decides to close the school or when the school is de-recognised and, therefore, cannot continue. Thus, under Rule 25-A, the School itself comes to an end and no activity is left. Under Rule 26, the School does not come to an end but its activity continues. As the activity continues in future, the rule making authority has also envisaged a scope for re-employment of retrenched staff and accordingly in Rule 26, the provisions have been made. Rule 25-A as added by amendment was, therefore, upheld. It is to be noted that the Constitutional validity of Rule 25-A is not being assailed by the petitioner and the petitioner is beneficiary of said provision.
It is to be noted that when management is running more than one school and only one school or one branch is sought to be closed, there may be senior employees in such school which is being closed voluntarily by the management. It is not in dispute that Rule 12 read with Schedule F. Note 5 requires such management running more than one school to maintain combined seniority list. Rule 41 permits management to transfer teaching and non-teaching staff from one school to another in the interest of administration. Hence, to hold that because of Rule 25-A employees in school, voluntarily closed down by the management though senior will be required to be terminated and juniors in other schools will not be affected sounds highhanded and paradoxical. It is to be noted that in scheme of Rule 25-A itself, when employees are being terminated on account of de-recognition by department, names of employees not responsible for de-recognistion are directed to be kept on waiting list. The scheme of Rule 25-A(2) is entirely different. In view of the de-recognition and consequent termination, it is apparent that if such employee is not found responsible for de-recognition, his name is to be kept on waiting list. If such employee placed on waiting list happened to come to unfortunate School on transfer, he would be penalised for not-fault. Some managements may also victimize unwanted employees. All this shows that Rule 25-A(1)(i) is not complete and it is subject to Rule 27. In other words, though it has been placed in Rule 25-A contingencies contemplated therein are carved out from Rule 20 itself and hence the termination of service on account of abolition of posts as contemplated therein is subject to Rule 27 when the management is running more than one school.
The School Tribunal has, therefore, rightly considered the controversy and Court does not find anything wrong with its reasoning. Court is, therefore, not inclined to interfere in this writ petition. The challenge to provisions of Rule 27(d) and seeking deletion of particular words therefore is misconceived. Writ petition is accordingly dismissed.
Oral Judgment: (B.P. Dharmadhikari, J.)
The present writ petition in fact challenges the common judgment dated 25.08.1997 delivered by the School Tribunal in Appeal Nos. 51 of 1996, 52 of 1996, 54 of 1996 and 58 of 1996. However, the petitioner management has also sought a writ for quashing certain part of Rule 27 sub-rule (d) of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as 1981 Rules). In view of this challenge, the matter has been placed before the Division Bench.
2. In order to avoid unnecessary facts, it is appropriate to state two challenges raised before us by the petitioner. First challenge is, after introduction of Rule 25-A in 1981 rules with effect from 20th October 1987, the termination of services of employees in a School which is derecognized by the department is automatic and it is not subject to Rule 26. Hence, such termination, being not retrenchment, cannot be subjected to provisions of Rule 27, particularly rule 27(d). Though, rule 26 has been amended to remove such termination from it because of its incorporation in Rule 25-A, corresponding amendment has not been effected in Rule 27(d) and hence in present matter, School Tribunal has acted under the impression that termination of respondents was also subject to provisions of Rule 27(d). The second contention is in any case the management was having a separate school by name Matoshree Vidya Mandir, Telkamptee, which was exclusively a Girls School and hence there was a separate seniority list for staff working therein. Because of this position, there was no question of comparing seniority of respondents who were working in that School with staff working
in other two schools.
3. In this background, we have heard Shri Adbe, learned counsel for the petitioner – Management, Shri Kukdey, learned counsel for respondents No. 1 to 3 and 4A & 4B and Shri Doifode, learned AGP for respondents No. 5 & 6.
4. Shri Adbe, learned counsel has invited our attention to provisions of 1981 Rules, particularly the position as prevailing before October 1987 amendment thereto to show that then clause (4) of Rule 26(i) contemplated termination of permanent employees on account of closure of a course of studies or of School itself as retrenchment on account of abolition of posts in certain contingencies. He states that Rule 27 which prescribes principles of termination from service in the event of such retrenchment expressly refers to termination under (preceding rule) meaning thereby Rule 26. He points out that clause (d) of said Rule 27, therefore, also carried the words “or in case any one of its schools is required to be closed either due to withdrawal of recognition or due to the decision of the management to close it while effecting retrenchment”. He strives to point out that after October 1987 amendment to Rule 26 whereby the words “or of the School itself” were deleted from Rule 26(1)(iv), these words in Rule 27 (d) lost their significance and relevance. According to him, Rule 27 is expressly restricted only to Rule 26. Rule 25-A which came to be added in October 1987, consider cases of termination of service on account of permanent abolition of posts and hence the termination under Rule 25-A cannot be construed as retrenchment and also as forming subject matter of Rule 26. He, therefore, states that in these circumstances, when the petitioner management terminated the services of permanent staff in its Matoshree Vidya Mandir on account of derecognition, the School Tribunal could not have found any fault therewith on the ground that employee’s junior to them were continuing in other schools. According to him, School Tribunal has for arriving at such a conclusion taken recourse to provisions of Rule 27(d) when in fact those provisions and particularly the words therein reproduced above are rendered meaningless because of subsequent amendments. To substantiate his contentions, he has taken us to relevant obse
