The main legal point established in the judgment is that the repeal of the BPE Act and Rules should not affect the rights or privileges accrued prior to the repeal, and the provisions of the BPE Act and Rules would have application in cases where a right or privilege had accrued prior to the repeal.

JUDGMENT :

ABHAY AHUJA, J.

Rule. Rule made returnable forthwith. By consent of counsel for the parties, petition is heard finally.

2. By this petition filed under Article 226 of the Constitution of India, 1950 petitioners are challenging the order dated 20th February, 2014 issued by respondent No. 1 thereby refusing to sanction posts of non-teaching employees in private primary schools in the State and for a declaration that the existing posts/in-service non-teaching employees as surplus and to absorb them if the vacancies are available in the secondary and higher secondary schools. In short petitioners have been appointed as non-teaching staff in aided primary school of petitioner No. 1, but the second respondent has not yet granted approval to the said appointments.

3. The facts leading to the filing of this petition are as under :—

(i) Petitioner No. 1 is an educational institution registered under the Bombay Public Trusts Act, 1950 and the Societies Registration Act, 1860 and had been granted permission at various points in time for running Marathi medium primary school at Ulhas Nagar, Dist. Thane on unaided basis of permissions by Deputy Director of Education to run standard I from the year 1995-96 to standard VII in the year 2001. The petitioner No.1 runs the school by the name of “Vikas Mandir Primary School”. It is submitted that all these permissions were granted on an unaided basis. It is also submitted that at present the school is having classes from standard I to VII.

(ii) It is submitted that by order dated 25th November, 2003, respondent No. 2 sanctioned 100% grant-in-aid for standard I to IV and thereafter by order dated 4th December, 2006, 40% grant-in-aid came to be sanctioned to standard V, VII and VII from AY 2006-07. It is submitted that later on further stages of grant-in-aid also came to be sanctioned and the school became fully aided. It is submitted that at present the entire primary school viz. Standard I to VII is receiving 100% grant-in-aid.

(iii) The 2nd respondent is the board established under the Bombay Primary Education Act, 1947 (the “BPE Act”); is the authority competent to sanction post of teachers and non-teaching employees for private, recognized primary schools and to grant approval to the appointments of employees made in such sanctioned posts including those in respect of the primary schools run by the 1st petitioner.

(iv) It is submitted by petitioners that in AY 2004-05 (as on 30th September, 2004), the strength of students in the said primary school became 503 and as per Rule 115(3)(b) of the Bombay Primary Education Rules, 1949 (the “BPE Rules”) framed under the BPE Act, one post of clerk became admissible to the primary school of the petitioner. On 12th July, 2004 the State Government issued a Government Resolution to lift ban which had been imposed on the recruitment of non-teaching employees in private, recognized and aided private primary schools and granted permission to make appointment on an honorarium. It is under these circumstances, it is submitted that petitioner No. 1 decided to appoint a clerk for the school. It is submitted that after the selection procedure, the 2nd petitioner came to be selected for the post of “clerk” and after passing of the necessary resolution by the management, the 2nd petitioner was appointed as clerk with effect from 1st December, 2004 till 30th September, 2006 on probation for a period of two years and the 2nd petitioner joined the school as clerk. It is further submitted that similarly in AY 2005-06 (as on 30th September, 2005), as the students’ strength continued to be around 500 being stated to be 513, the first petitioner decided to appoint a “peon” for the primary school. After the selection procedure, the 3rd petitioner was selected for the post of peon and on 9th May, 2005 and after the necessary management resolution, he was appointed as peon from 1st June, 2005 to 30th April, 2007 on a probation period of two years and the 3rd petitioner joi