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High Court of Judicature at Bombay
D.Y. CHANDRACHUD & A.A. SAYED, JJ.
Latika Rajaram Mane
Versus
State of Maharashtra & Others
Writ Petition No.4673 of 2012
Decided On : 22-04-2013
Appeal by Primary School Teachers before School Tribunal would be maintainable even if their grievance relates to a date prior to enforcement of Right to Education Act and Rules framed thereunder.
MAHARASHTRA RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION RULES, 2011 - Rule 20 - Appeal before School Tribunal.
Appeal filed by Primary School Teachers, before school Tribunal constituted under MEPS Act, is maintainable. - In determining as to whether Rule 20 of Maharashtra Right of Children to Free and Compulsory Education Rules, 2011, the rules which have been framed under the Right to Education Act, would apply to a situation where a termination of services has taken place even prior to the enforcement of the rules, the object and purpose of the remedy is an important circumstance which must be taken into account. The essential object and purpose is to provide access to justice to primary school teachers.
The constitutional guarantee of free and compulsory primary education is given practical content by the Act and the Rules. As Judges give substance to them in deciding cases, the importance of the constitutional guarantee must be borne in mind.
The framing of the Rules under the Right to Education Act by the State Government has fundamentally altered the situation. The forum of the School Tribunals is now provided to employees of primary schools in the State of Maharashtra which was hither to not available to those who are aggrieved by any of the decision of the management regarding their conditions of service and in regard to the matters referred to in Rule 20. As a consequence of the notification of the Rules framed by the State Government in exercise of the power conferred under the Right to Education Act, there has been a fundamental change in the position in law as it obtained prior thereto.
The position in law which held the field prior to the framing of the Rules under the Right to Education Act, has now been materially altered as a result of which a right of appeal is provided to teachers of primary schools in respect of decisions falling within the purview of Rule 20. Having regard to the public purpose underlying the enactment of the Right to Education Act and the framing of the rules including Rule 20, it would but necessarily follow that the availability of the forum of the School Tribunal would extend to a retrospective situation.
The mere fact that the termination in the present case had taken place prior to the enforcement of the Act and the Rules would not make any difference to the position. It is well-settled that the statute cannot be said to be retrospective only because a part of the requisites for its actions is drawn from a time antecedent to its passing. AIR 1964 SC 464 at para 13.
MAHARASHTRA RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION RULES, 2011 - Rule 20 - MEPS Regulation Act, 1977, Section 9 - Filing of appeal before School Tribunal.
A comprehensive remedy in form of an appeal before School Tribunal is provided to any teacher or employee, aggrieved by any decision of Management. - The field of elementary education comprising of education from the first to eighth standards has now been comprehensively regulated by the Central Act. The Right to Education Act specifically contemplates that the grievances of teachers shall be redressed in such manner as may be prescribed by the rules. The rules which have been framed by the State of Maharashtra provide for a right to appeal to the Tribunal constituted under Section 8 of the MEPS Act in respect of the matters enunciated therein. Rule 20 is framed in broad terms. A right of appeal is conferred ’gainliest following orders :
(i) An order of dismissal;
(ii) An order of removal;
(iii) An order otherwise terminating the services;
(iv) An order of reduction in rank; and
(v) An order of supersession by the management while making any appointment to a post by promotion.
These categories correspond broadly to clauses (a) and (b) of sub-section (1) of Section 9 of the MEPS Act. But significantly, the ambit of the remedy which is made available to primary school teachers by Rule 20 is not only confined to these orders, but has been widened to include any decision of the management regarding the service conditions of a teacher or employee by which any teacher or employee is aggrieved. As a result of the framing of Rule 20, in accordance with, and under the power conferred by the Central Act, a comprehensive remedy in the form of an appeal before the School Tribunal is provided to any teacher or employee who is aggrieved by any decision of the management regarding his or her service conditions, including those decisions which result in one of the consequences spelt out in clauses (a) and (b).
(Dr. D.Y. Chandrachud, J.) :
Rule; with the consent of Counsel for the parties returnable forthwith. With the consent of Counsel and at their request the Petition is taken up for hearing and final disposal.
2. The Petitioner was appointed as an Assistant Teacher in the Primary Section of the Fifth Respondent on 18 June 1984. On 17 October 1994, she was promoted as Headmistress of the Primary Section. On 2 August 2004, the management issued a notice to show cause to the Petitioner, to which the Petitioner responded by her letter dated 25 August 2004. A statement of allegations was served by the management on 1 October 2004 and a formal charge sheet was issued on 20 November 2004. The Petitioner submitted her reply to the charge sheet and denied the allegations. An Enquiry Committee was constituted for the purpose of conducting disciplinary proceedings and on 25 July 2005, the Committee submitted its findings, holding that the charges were proved. The Petitioner was terminated from service on 7 August 2005. On 2 September 2005, the Petitioner filed an appeal before the School Tribunal at Kolhapur. By an order dated 21 January 2012, the appeal was dismissed on the ground that the Tribunal had no jurisdiction to entertain an appeal against an order of termination passed by the management of a Primary School governed by the provisions of the Bombay Primary Education Act, 1947. In coming to this conclusion, the Tribunal has relied upon a judgment of a Full Bench of this Court in KomalRugwani vs. State of Maharashtra (2011(4) Bom.C.R.459 (FB).
3. The Bombay Primary Education Act, 1947 came into effect on 29 January 1948. The legislature in the State of Maharashtra enacted the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (MEPS Act). The Act came into force on 15 July 1981. Parliament enacted the Right of Children to Free and Compulsory Education Act, 2009 which was published in the Gazette of India on 27 August 2009. On 9 June 2011, a Full Bench of this Court held in KomalRugwani's case (supra) that the School Tribunal constituted under the MEPS Act had no jurisdiction to entertain an appeal filed by a primary teacher as primary schools governed by the Bombay Primary Education Act, 1947 are not “recognised schools”. On 11 October 2011, the State Government made the Maharashtra Right of Children to Free and Compulsory Education Rules, 2011 under which jurisdiction to entertain appeals by primary school teachers in respect of matters referred to in Rule 20, was conferred upon the School Tribunal constituted under the MEPS Act.
4. The present petition before the Court forms part of a batch of Writ Petitions in which the central issue relates to the jurisdiction of the School Tribunal constituted under the MEPS Act, 1977 to entertain appeals in respect of grievances of primary school teachers as a result of the enactment of the Right to Education Act and the Rules framed by the State Government conferring a right of appeal before the School Tribunal. As the facts in the present case would indicate, the appeal in the case of the Petitioner was filed on 2 September 2005, prior to the enforcement of the Central Act. The appeal was dismissed by the School Tribunal for want of jurisdiction, applying the judgment of the Full Bench in KomalRugwani's case, after the Central Act was brought into force and as noted above, after the Rules were formulated by the Government of Maharashtra. The issue which will fall for determination is as to whether the appeal which was filed before the School Tribunal prior to the enactment of the Central Act and the enforcement of the said Rules would be maintainable or whether the Tribunal was justified in dismissing the appeal for want of jurisdiction. In order to bring clarity to the issues involved in the appeal, the points for consideration are formulated as follows:
-(i) Whether the School Tribunal has erred in failing to apply the provisions of the Rules f
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