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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
R.K. DESHPANDE, VINAY JOSHI, JJ.
Stree Shikshan Prasarak Mandal & Ors. - Petitioners
Versus
The State of Maharashtra, through its Secretary, Department of School Education and Sports & Ors. - Respondents
Writ Petition Nos. 5059, 4684 of 2017 & 3078 of 2018
Decided On : 21-11-2018
Constitution of India Article 19(1)(g) – Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 – Section 16(1) and (2)((a) – Managements of private schools - Conditions of Service - Petitions are filed by the Managements of private schools receiving grant-in-aid, either partially or completely, from the State Government challenging Clause 5 of the notification by which sub-rules (2A) and (2B) are introduced under Rule 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981 as violative of the fundamental right to carry on the occupation of Education, as guaranteed by Article 19(1)(g) of the Constitution of India, to the extent it encroaches upon the autonomy and priviledge of the Management to select and appoint the teachers in the school – Challenge is also to Clause 3.6 in Para 3 of the Government Resolution, which binds the Management to make the appointments to the teaching posts in order of merit from the list prepared of the candidates successful in the Eligibility and/or Aptitude test conducted by the State Government –Held, introduction of additional qualifications of passing of the Eligibility and/or Aptitude Test MEPS Rules by way of amendment, is well within the competence of the State Government under Section 4(2) read with Section 16(1) and (2)((a) of the MEPS Act, as has already been held by us – Court are of the view that the School Committee constituted by the Management of the private aided schools retains its power under Rule 9(2B) of the Rules to conduct oral interview of the candidates qualified in terms of Rule 6(1), (2) and (3) of the Rules to be called in definite proportion of the vacancies of the teachers advertised to constitute the zone of consideration from which only a right to select and appoint those found suitable amongst them to occupy and hold the post of teacher, can be exercised – Court, however, make it clear that to maintain transparency, each member of the School Committee and/or the Management will have to mandatorily record reasons in brief for deviating from the order of merit shown in the list of successful candidates in the Eligibility and/or Aptitude Test – Decision of majority will prevail in the matter of selection and appointment of teachers – Rule is made absolute in the aforesaid terms
R.K. Deshpande, J.
1. All these petitions are filed by the Managements of the private schools receiving grant-in-aid, either partially or completely, from the State Government challenging Clause 5 of the notification dated 22-6-2017 by which sub-rules (2A) and (2B) are introduced under Rule 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981 as violative of the fundamental right to carry on the occupation of Education, as guaranteed by Article 19(1)(g) of the Constitution of India, to the extent it encroaches upon the autonomy and priviledge of the Management to select and appoint the teachers in the school. The challenge is also to Clause 3.6 in Para 3 of the Government Resolution dated 23-6-2017, which binds the Management to make the appointments to the teaching posts in order of merit from the list prepared of the candidates successful in the Eligibility and/or Aptitude test conducted by the State Government.
2. The recruitment and the terms and conditions of service of the teaching as well as non-teaching employees working in private aided or non-aided schools in the State of Maharashtra are governed by the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (“MEPS Act”), brought into force with effect from 1571981, along with the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981 (“MEPS Rules”), framed in exercise of rulemaking power conferred by Section 4(1) read with Section 16 of the MEPS Act.
3. Section 4 of the MEPS Act deals with the terms and conditions of service of employees of private schools. Subsection (1) therein empowers the State Government to make rules providing for the minimum qualification for recruitment (including its procedure), duties, pay, allowances, postretirement and other benefits, and other conditions of service of employees of private schools and for reservation of adequate number of posts for members of backward classes. In terms of subsection (2), every employee of a private school shall be governed by such Code of Conduct as may be prescribed, and on the violation of any provision of it, the employee becomes liable to disciplinary action after conducting an enquiry in such manner as may be prescribed. Subsection (6) therein mandates that no employee of a private school shall be suspended, dismissed or removed or his services shall not be otherwise terminated or he shall not be reduced in rank, by the Management, except in accordance with the provisions of the Act and the rules made in that behalf.
4. Section 5 of the MEPS Act deals with certain obligations of Management of private schools, and it is reproduced below :
“5. Certain obligations of Management of private schools.
(1) The Management shall, as soon as possible, fill in, in the manner prescribed every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy:
Provided that unless such vacancy is to be filled in by promotion, the management shall, before proceeding to fill such vacancy, ascertain from the Educational Inspector, Greater Bombay, the Education Officer, Zilla Parishad or, as the case may be, the Director or the officer designated by the Director in respect of schools imparting technical, vocational, art or special education, whether there is any suitable person available on the list of surplus persons maintained by him, for absorption in other schools; and in the event of such person being available, the Management shall appoint that person in such vacancy.
(2) Every person appointed to fill a permanent vacancy except Assistant Teacher (Probationary) shall be on probation for a period of two years. Subject to the provisions of subsections (4) and (5), he shall on completion of this probation period of two years, be deemed to have been confirmed.
Provided that, every person appointed as Assistant Teacher (Probationary) shall be on probation
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