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2014 Supreme(Bom) 1095
In the High Court of Bombay at Aurangabad
S.S. SHINDE & V.K. JADHAV, JJ.
Balaji & Others
Versus
State of Maharashtra through Secretary, School Education & Sports Department & Other
Writ Petition Nos. 7106, 7660, 10005 of 2013 & 517, 542, 985, 1000, 1124, 1156, 1234, 1318, 1319, 1727 of 2014 with Civil Application No. 793, 1978, 1983, 2027, 3903 of 2014
Decided On : 09-05-2014
For the Petitioners:S.B. Talekar, P.R. Katneshwarkar, A.G. Ambetkar, V.A. Bagal, Advocates.
For the Respondents:R3, R4, A.D. Aghav, R5, R6, V.M. Lomte, R9 to R10, Y.M. Kshirsagar, R13, R14, S.S. Tope, Advocates, S.S. Tope, Additional Government Pleader, U.B. Bondar, D.K. Rajput, A.D. Aghav, P.R. Nangre, M.C. Swami, S.S. Tope, M.S. Sonwane, P.R. Tandale, S.T. Shelke, P.S. Patil, P.P. More, Mr. K.U. More and Mr. A.P. Avhad advocates for Z.P. Beed, Atul Karad, M.A. Deshpande, V.S. Panpatte, Z.P. Nanded, Maheshkumar S. Sonwane, Z.P. Hingoli, Advocates.
Headnote:
The Court held that the State Government failed to formulate a final policy document within three years from the date of commencement of the RTE Act, 2009, and as a result, the Central Government did not release funds for the academic year 2013-14. The Court directed the State Government to take immediate steps to formulate a final policy document and to make appointments on permanent basis as a long-term measure. The Court also directed the State Government to give due weightage to the experience gained by the petitioners and their requisite qualifications while making fresh appointments.
Fact of the Case:
The petitioners were working as Craft Instructors or (physical Instructors) or Sports and health Instructors in Primary school run by the Zilla Parishad Aurangabad, Beed, Hingoli, Nanded, Latur and other districts, which are within the jurisdiction of this Bench. Some of the petitioners were working since July 2010, some of them since July, 2011 and remaining from July, 2012 till their services came to an end. It is the case of the petitioners that the State of Maharashtra has introduced a scheme of Shikshan Sevaks and Shikshan Instructors vide Government Resolution dated 13th October, 2000. Such Shikshan Sevaks were initially appointed on a fixed honorarium instead of pay-scales in Secondary and Higher Secondary Schools. The post of Shikshan Sevaks in the subjects of Sanskrit, Hindi, Drawing, Craft, Music, Tailoring, Physical Education, Drum Player, Stenographer, Typists, Physical Training Instructors, etc. came to be included, vide Government Resolution dated 18th December, 2003. The revised pay-scales prescribed for the Craft Teacher; Physical Training Education; and Drawing Teacher, was Rs. 5500-9000. However, it was decided to pay them honorarium of Rs. 4,500/- per month. It is the case of the petitioners that, immediately after the Right of Children to Free & Compulsory Education Act, 2009 (hereinafter to be referred to as The RTE Act) was brought into force, it was provided under its schedule to sanction the posts of specialist teachers in order to ensure that children community should get training in Physical Education; Art and Craft in all the schools irrespective of number of students in each school. The Government further decided to retain the specialist teachers as separate wing for suitable deployment to all schools in the State, however, on part-time basis, popularly known as Anshakalin vide Government Resolution dated 18th June, 2010. It is the case of the petitioners that the Government sanctioned the Part-time posts of Art Teachers; Craft Teachers and Physical instructors from time to time and made budgetary provisions, however, without prescribing the pay-scales to such posts. It was clarified that the Physical Instructors; Craft Teachers and Art Teachers, shall be paid as per the available work load, i.e. Clock Hour Basis (CHB), which is evident from the Government Resolution dated 7th December, 2011. It is the case of the petitioners that, total 8577 posts of part-time Instructors in the subjects of Art, Craft and Physical Education were sanctioned; whereas, they were to be paid as per the sanctioned workload in 5th, 6th and 7th standards in the academic year 2012-2013, whereas the number has gone upto 10,068 in the year 2013-2014. It is the case of the petitioners that in order to implement the RTE Act, the Government of Maharashtra, not only sanctioned such posts of Part-time Instructors on CHB and thereby paying them a very meager amount by way of honorarium i.e. Rs. 5000/- p.m. The part-time instructors in Art Education, Health and Physical Education and Work Education need to receive at least half of the pay-scales prescribed for full time teachers in subjects, such as science and mathematics, social studies, languages etc. The honorarium prescribed for part time instructors is such a meager amount that, the petitioners are unable to make both the ends together. Mr. Joshi, learned counsel for petitioners in writ petition No. 2940 of 2014 submits that, the job of part time physical instructions is altogether different and they have to look after the interest of the children and to create congenial atmosphere so as to keep the physic of the children in fit condition. Therefore, the job of the part time Physical Instructor as contemplated under the RTE Act is altogether different. Therefore, counsel for the petitioners submits that the petitions deserve to be allowed.
Finding of the Court:
The Court held that the State Government failed to formulate a final policy document within three years from the date of commencement of the RTE Act, 2009, and as a result, the Central Government did not release funds for the academic year 2013-14. The Court directed the State Government to take immediate steps to formulate a final policy document and to make appointments on permanent basis as a long-term measure. The Court also directed the State Government to give due weightage to the experience gained by the petitioners and their requisite qualifications while making fresh appointments.
Issues: 1. Whether the State Government is under obligation to formulate the policy so as to give meaning and effect to the provisions of RTE Act 2009? 2. Whether the Constitution and also the provisions of the RTE Act mandates that the appropriate Government is under obligation to perform its role under the Constitution and provisions of RTE Act 2009?
Ratio Decidendi: The Court held that the State Government failed to formulate a final policy document within three years from the date of commencement of the RTE Act, 2009, and as a result, the Central Government did not release funds for the academic year 2013-14. The Court directed the State Government to take immediate steps to formulate a final policy document and to make appointments on permanent basis as a long-term measure. The Court also directed the State Government to give due weightage to the experience gained by the petitioners and their requisite qualifications while making fresh appointments.
Final Decision: The Court held that the State Government failed to formulate a final policy document within three years from the date of commencement of the RTE Act, 2009, and as a result, the Central Government did not release funds for the academic year 2013-14. The Court directed the State Government to take immediate steps to formulate a final policy document and to make appointments on permanent basis as a long-term measure. The Court also directed the State Government to give due weightage to the experience gained by the petitioners and their requisite qualifications while making fresh appointments.
S.S. Shinde, J.
1. Rule. Rule made returnable forthwith. By consent, heard finally.
2. At the outset, learned counsel appearing for the respective petitioners in these writ petitions, the learned Additional Government Pleader and learned counsel appearing for other respondents, jointly submit that, since the points/issues raised in all these petitions are similar, all these petitions can be heard together and disposed of by common judgment and order. Learned counsel for the petitioners in respective petitions submit that, writ petition No. 7106 of 2013 and writ petition No. 7660 of 2013 should be considered as lead petitions and the arguments advanced by counsel for the petitioners in those writ petitions would be adopted by other respective counsel appearing in respective petitions. In the light of above, this Court has proceeded to hear all these petitions together, and same are being disposed of by this common judgment and order.
3. As already observed herein before, all petitions raises similar controversies/issues, it would be relevant to state briefly the facts leading for filing the aforementioned writ petitions.
4. The petitioners in all these petitions were working as Craft Instructors or (physical Instructors) or Sports and health Instructors in Primary school run by the Zilla Parishad Aurangabad, Beed, Hingoli, Nanded, Latur and other districts, which are within the jurisdiction of this Bench. Some of the petitioners were working since July 2010, some of them since July, 2011 and remaining from July, 2012 till their services came to an end.
5. It is the case of the petitioners that the State of Maharashtra has introduced a scheme of Shikshan Sevaks and Shikshan Instructors vide Government Resolution dated 13th October, 2000. Such Shikshan Sevaks were initially appointed on a fixed honorarium instead of pay-scales in Secondary and Higher Secondary Schools. The post of Shikshan Sevaks in the subjects of Sanskrit, Hindi, Drawing, Craft, Music, Tailoring, Physical Education, Drum Player, Stenographer, Typists, Physical Training Instructors, etc. came to be included, vide Government Resolution dated 18th December, 2003. The revised pay-scales prescribed for the Craft Teacher; Physical Training Education; and Drawing Teacher, was Rs. 5500-9000. However, it was decided to pay them honorarium of Rs. 4,500/- per month.
6. It is the case of the petitioners that, immediately after the Right of Children to Free & Compulsory Education Act, 2009 (hereinafter to be referred to as The RTE Act) was brought into force, it was provided under its schedule to sanction the posts of specialist teachers in order to ensure that children community should get training in Physical Education; Art and Craft in all the schools irrespective of number of students in each school. The Government further decided to retain the specialist teachers as separate wing for suitable deployment to all schools in the State, however, on part-time basis, popularly known as Anshakalin vide Government Resolution dated 18th June, 2010.
7. It is the case of the petitioners that the Government sanctioned the Part-time posts of Art Teachers; Craft Teachers and Physical instructors from time to time and made budgetary provisions, however, without prescribing the pay-scales to such posts. It was clarified that the Physical Instructors; Craft Teachers and Art Teachers, shall be paid as per the available work load, i.e. Clock Hour Basis (CHB), which is evident from the Government Resolution dated 7th December, 2011.
8. It is the case of the petitioners that, total 8577 posts of part-time Instructors in the subjects of Art, Craft and Physical Education were sanctioned; whereas, they were to be paid as per the sanctioned workload in 5th, 6th and 7th standards in the academic year 2012-2013, whereas the number has gone upto 10,068 in the year 2013-2014. It is the case of the petitioners that in order to implement the RTE Act, the Government of Maharashtra, not o
