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2019 Supreme(Bom) 469
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.V. GANGAPURWALA, A.M. DHAVALE, JJ.
Sandeep - Appellant
Vs.
Vardhaman Sthanakwasi Jain - Respondent
Writ Petition No. 1451, 5389 & 9040 of 2017
Decided on : 04-04-2019
Advocate Appeared:
Ajay S Deshpande, Adv., V.N. Patil-Jadhav, Adv., V. Vek Dhage, Adv., A.D. Aghav, Adv., Vivek Dhage, Adv., A.S. Deshpande, Adv., M.A. Kulkarni, Adv.
Headnote:
Maharashtra Employees of Private Schools Act, 1977 - Section 5(1) - Section 5(1) of the Maharashtra Employees of Private Schools rules, 1977 – Rules 9,41(5) –Application – Appointment of Teacher Challenge - Recognized as minority Institute - It is imparting education to students from 1st to 10th Standards - There were eight divisions in Mahaveer High School on unaided basis while the others were on grant-in-aid basis - It is not in dispute that and 7 others were appointed by Trust as Assistant Teachers in Mahaveer High School after following due process on unaided basis -Their appointments were approved by Education Officer (Secondary) for probation period - Orders of appointment specifically disclose,and undertakings were also obtained from them that their appointments will be purely on unaided basis and they would not claim any benefits on grant-in-aid basis - Seven, out of eight teachers and 6 others are the petitioners in Writ petition - Whether Trust is a minority Institute ? In Affirmative.Whether the Teachers working on unaided basis are entitled for pay scale as per the teachers working on aided posts ? In the Affirmative - Whether Teachers working on unaided posts have fundamental right to claim transfer to aided posts in Mahaveer High School? No.Whether rejection of approval to appointment by Education Officer is legal and proper ? In negative - What order ? - Held, Appointment of teachers on unaided post and aided post is artificial discrimination on ground of financial constraints of State - Right to education has been recognized as a fundamental right and Government is bound to provide basic education at primary level from 1st to 8th Standard to all students below 14 years of age - When schools run by Government or Local Bodies of State are not in a position to provide education to all role of private schools come into picture - Government after verifying several factors approves grants to private schools - Previously, many schools were on permanent no grant basis. Now by Government Resolution word ‘permanent’ has been removed and subject to availability of funds unaided schools are granted grants from 5th year to 9th year Now Government Policy is to grant permission on self finance basis - Such schools are not entitled for grant at any time - In present case Trust is running schools which were having grants for some Divisions whereas there was no grant for some Divisions, but as per the Government Resolution - public advertisement was issued for filling up the post of on grant-in-aid post. One of petitioners had applied but could not succeed - Other petitioners also could have applied, but they did not apply nor they challenged the said advertisement and after some other persons were selected on the said post and started working therein as, and others have filed the Writ Petition - Vardhaman Trust is a minority institute - It has autonomy in matter of internal administration of school - There can be reasonable restrictions on such rights in order to ensure transparency, fairness and non-exploitiveness and to prevent malpractices, exploitation, profiteering and commercia-lization in education which is field of larger public interest. Similarly, in Modern School of minority institute has been recognized and it is laid down that interference in the fixation of fees structure should be minimal and only in order to avoid exploitation. In the light of these facts in absence of statutory provisions and in absence of any right to teachers appointed on unaided post jurisdiction of this Court under Art. 226 of Constitution cannot be invoked to issue directions to the minority institute to transfer the teachers from unaided post to aided post - Applications stand disposed of.
A.M. DHAVALE, J.
1. These all writ petitions involve common question of law and facts and the parties have got these matters clubbed.
2. Rule. Rule made returnable forthwith. By consent of the parties, all these writ petitions are heard finally at the admission stage.
3. Shri Vardhaman Sthanakwasi Jain Shrawak Sangh, Jalna and Mahaveer Madhyamik Vidyalaya, Jalna are respondent Nos.1 and 2 in Writ Petition No. 1451/2017, Petitioner Nos.1 and 2 in Writ Petition No.5389/2017 and Respondent Nos.3 and 4 in Writ Petition No.9040/2017. They are herein after referred to as Vardhaman Trust and Mahaveer High School, respectively. Vardhaman Trust is running Mahaveer High School. It is claimed that it is recognized as minority Institute. It is imparting education to the students from 1st to 10th Standards. There were eight divisions in Mahaveer High School on unaided basis, while the others were on grant-in-aid basis.
4. It is not in dispute that Sandeep Babasaheb Chate and 7 others were appointed by Vardhaman Trust as Assistant Teachers in Mahaveer High School after following due process on unaided basis in 2013-14. Their appointments were approved by the Education Officer (Secondary) for probation period. Orders of appointment specifically disclose,and undertakings were also obtained from them that their appointments will be purely on unaided basis and they would not claim any benefits on grant-in-aid basis. Seven, out of eight teachers, i.e. Sandeep Babasaheb Chate and 6 others are the petitioners in Writ petition No.1451/2017.
5. By the Government Circular dated 28th June, 2016, in the light of decisions of this Court in several matters referred therein, the Government took a policy decision for approving transfer of Teachers from unaided post to aided post in the same school, on the vacancies created by way of retirement. The Circular laid down certain conditions which include that there should not be any surplus candidates available for absorption; seniority in unaided school should be followed and their appointments must have been approved by the competent authorities. In case their services on unaided basis are of less than five years, they should be ready to work as Shikshan Sevak for three years on honorarium basis. In case of Teachers who have completed five years, the Government decided to sanction grant-in-aid at 20%, 40%, 60%, 80% and 100% from first to fifth year phasewise.
6. Meanwhile, probably, under apprehension of liability under the Government Circular authorizing transfer of teachers from unaided schools to aided schools, dated 28.06.2016, Vardhaman Trust decided to fill-up the vacancies from grant-in-aid school by appointments. Vardhaman Trust accordingly issued advertisement in Dainik Lokmat dated 06.08.2016 for filling-up eight posts of Shikshan Sevak. Interviews were taken on 12th and 13th August, 2016. One of the petitioners in Writ Petition No.1451/2017, namely Sangeeta Pawar also applied for the post and appeared for the interview, but she could not succeed. Prakash Khabria and seven others were selected as Shikshan Sevak. Their proposal for approval was forwarded on 23.09.2016. The Education Officer (Secondary) Zilla Parishad, Jalna, by order dated 30.03.2017, rejected the proposal on the ground that provisions of Section 5(1) of the Maharashtra Employees of Private Schools Act, 1977 (hereinafter referred to, for brevity sake, as ‘MEPS Act’) were not followed and the surplus teachers were not absorbed.
7. Thereafter, Vardhaman Trust, on 12.06.2017, took a decision to close down eight divisions run on unaided basis due to financial constraints and accordingly, the unaided divisions were closed down and services of Sandeep Chate and six others, holding the post of Assistant Teachers on unaided basis were terminated from 12.06.2017.
8. Sandeep Chate and six others, have filed Writ Petition No. 1451/2017.
