The autonomy of minority educational institutions in filling teaching positions and the inapplicability of certain requirements under the Act of 1977 to such appointments.

JUDGEMENT

SANDEEP V. MARNE, J.

1. Rule. Rule, made returnable forthwith. With the consent of the learned Advocate for the parties, heard finally at the stage of admission.

2. Respondent No. 2 is a Minority Educational Institution, which has appointed the petitioner on the post of Assistant Teacher. A proposal for grant of his approval has been rejected by the Education Officer (Primary), vide the communication dated 23.05.2017 essentially on the ground that there was ban on recruitment after 02.05.2012 and that while filling up the post, no objection certificate of the Education Officer was not obtained.

3. Mr. Godbole, Ld. Counsel appearing for the petitioner relies upon the provisions of Section 3(2) of The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, (hereinafter referred to as ‘the Act of 1977’) which reads thus :

“3. Application of Act 2) Notwithstanding anything contained in sub-section (1), the provisions of this Act shall not apply to the recruitment [of the Head of a minority school and any other persons (not exceeding three) who are employed in such school and whose names are notified by the Management to [the Director or, as the case may be] the Deputy Director for this purpose.”

4. He further submits that in accordance with the provisions of Sub Section (2) Section 3, the Management had notified three posts to the Deputy Director by communication dated 09.05.2022, Petitioner being one of the three post holders. He submits that by doing so, the management had satisfied the mandatory requirement of Section 3(2) and that therefore the post held by the Petitioner came out of purview of the provisions of the Act of 1977.

5. With a view to ensure that the teachers rendered surplus are accommodated against various vacancies arising in schools, a Proviso has been inserted in Sub-Section 1 of Section 5 of the Act of 1977, which reads thus:

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 event of such person being available, the Management shall appoint that person in such vacancy.

6. Mr. Godbole submits that since the post held by Petitioner has been brought out of the purview of provisions of the Act of 1977, the condition of obtaining No Objection Certificate under Proviso to Sub-Section 1 of Section 5 would not apply to his case. He further submits that since it is a prerogative of the minority educational institution to fill up one of the three notified posts, the ban on recruitment would also be inapplicable to his case. He relies on the decision of the Supreme Court in Sindhi Education Society and Another Vs. Chief Secretary, Government of NCT of Delhi and Others (2010) 8 SCC 49. Ld. Counsel appearing for the management supports the case of the Petitioner.

7. Mr. Tandale, appearing for respondent No. 4 submits that respondent No. 2 Management did not obtain prior permission of the Education Officer, which is mandatory under Section 5 of the MEPS Act, 1977. He further submits that at the relevant time there were as many as 67 surplus teachers of Urdu medium with the Education Officer and therefore, the rejection of Petitioner’s proposal cannot be faulted. Ld. AGP appearing for State supports the submissions of Mr. Tandale.

8. After hearing the learned counsels for the parties, we find considerable force in the submissions of Mr. Godbole. The fundamental right