Writ Petition No.651 of 2003

6th November, 2006

Petitioner Counsel: Mr. N. S. ADBE
Respondent Counsel: Ms. SHARDA WANDILE

Cases Cited:
Association of Mumbai Junior College Teachers Vs. State of Maharashtra, W. P. No.2940/2000, Dt.16-8-2000 [Para 22]
Dattaraj Janraoji Nimkar Vs. Swargiya Sakharamji Shikshan Sanstha, Nagpur, 2004(1) ALL MR 306=2004(1) Mh.L.J. 516 [Para 25]

JUDGMENT

V. C. DAGA, J.:- This petition is directed against the order dated 14th August, 2002 passed by the respondent no.2 Deputy Director of Education holding that the petitioner would be entitled for salary as per the pay-scale prescribed at the time of appointment of petitioner in the respondent no.4 School since the petitioner came to be absorbed in terms of rule 25-A of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 ("MEPS Rules" for short) framed under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 ("MEPS Act" for short). This order was communicated to the petitioner by the respondent no.2 Education Officer (Sec), Zilla Parishad, Wardha under letter dated 20th August, 2002. Consequently, the petitioner is challenging the said orders and seeking declaration that he is entitled to receive salary of the post of Assistant Teacher and not that of a "Contract Teacher/Shikshan Sevak".

Background Facts

2. The background facts, in narrow compass, are as under :

The petitioner was initially appointed as an Assistant Teacher by an order dated 01-07-1991 in Swargiya Sanjay Gandhi Adiwasi Vidyalaya at Panwadi, District Wardha (the "Vidyalaya" for short) run by the Adivasi School Trust (the "Trust" for short). The respondent no.1 by order dated 12-05-1987 derecognised the said Vidyalaya, with the result, services of the petitioner and other employees in the said School came to be terminated by notice dated 19-04-1997.

3. Being aggrieved by the aforesaid notice of termination, petitioner alongwith other employees had filed Writ Petition No.2732 of 1997 wherein this Court by an order dated 08-10-2001 was pleased to direct the Education Officer to take appropriate steps in accordance with the provisions of rule 25-A of the MEPS Rules.

4. The respondent no.2 in compliance with the aforesaid order by an order of 18-04-2002 directed absorption of the petitioner in respondent no.4 Yeshwant High School (the "School" for short).

5. The petitioner accordingly came to be appointed in the respondent no.4. He reported and joined his duties. The respondent no.4 School submitted pay bills for claiming reimbursement of the salary paid to the petitioner as Assistant Teacher.

6. The respondent no.2, however, on 06-08-2002 returned the said pay bill of the petitioner with an endorsement to seek appropriate clarification from the Deputy Director of Education as to whether the petitioner would be entitled to pay-scale of the Assistant Teacher or that of a Shikshan Sevak. Reference in this behalf was also made by the Education Officer to the Deputy Director of Education, the respondent no.1 herein.

7. The respondent no.1 vide his order dated 14th August, 2002 informed the respondent no.2, Education Officer that since the petitioner has been appointed in terms of rule 25-A of the MEPS Rules, the said appointment should be treated as fresh appointment and that the petitioner was held entitled for a salary of Shikshan Sevak as per the pay-scale as may be applicable at the time of appointment of the petitioner in respondent no.4 School. In other words, the pay-scale admissible to Shikshan Sevak was ordered to be made applicable to the petitioner. The said order was communicated to the petitioner by respondent no.2 vide letter dated 20th August, 2002.

8. The petitioner being aggrieved by the above decision has filed the present writ petition seeking to quash the order passed by respondent no.1 dated 14th August, 2002 communicated by respondent no.2 by letter dated 20th August, 2002 and has also sought for declaration that he is entitled to receive salary as "Assistant Teacher" and not that of "Shikshan Sevak".

9. This Court, while granting rule on 3rd April, 2003 by an interim order, directed the respondent no.4 School to pay to the petitioner salary due to him as that of a Assistant Teacher pending final disposal of the petition.

10. In the petition, the petitioner contends that at the time of termination of his services, he was working as Assistant Teacher, having more than six years' experience. That, he was appointed in the Vidyalaya as Assistant Teacher and as such, his appointment can neither be treated as fresh appointment nor he can be deprived of the pay-scale applicable to the Assistant Teacher. In substance, the contention in the petition is that he was erroneously treated as a Shikshan Sevak and wrongly deprived of the pay-scale of the Assistant Teacher.

11. The respondents no.1 and 2 filed their counter affidavits contending that the name of the petitioner was recommended by the Education Officer for being appointed in the aided school in view of the provisions of rule 25-A of the MEPS Rules. Accordingly, the petitioner was appointed as Shikshan Sevak in respondent no.4 School. His appointment in absorbing school being pursuant to the provisions of rule 25-A of the MEPS Rules, it was sought to be contended that his appointment cannot be treated on the basis of Assistant Teacher, but he would be treated as Shikshan Sevak as per the Scheme framed by the State Government contained in the Government Resolution dated 27th April, 2000 and as such, it was rightly held that the petitioner would be entitled to salary as Shikshan Sevak.

Rival Submissions

12. Learned counsel for the petitioner would strenuously submit that at the time of derecognition of erstwhile Vidyalaya, the petitioner was a confirmed and approved Assistant Teacher. That, he was not responsible for derecognition of the said Vidyalaya. He, therefore, submits that in pursuance to the provisions of rule 25-A of the MEPS Rules, he was entitled to be absorbed in any other aided recognized School as Assistant Teacher. In his submission "Shikshan Sevak Scheme" can not be made applicable to the petitioner since right to get absorbed in any other aided school is accrued in his favour in terms of rule 25-A. He was certified to be absorbed as Assistant Teacher only with pay-scale applicable to the said post.

13. Learned counsel further submits that Shikshan Sevak Scheme has been introduced to extend the period of probation to judge the capability of employee who has been appointed as a teacher for the first time in his career. In his submission, it would be unjust and arbitrary to treat an employee at par with fresh appointee as Shikshan Sevak after having put in almost 10 years of service. He thus submits that the impugned orders deserve to be quashed and set aside and the petitioner be held entitled to a pay-scale applicable to the post of Assistant teacher right from the date of his joining in the respondent no.4 School.

14. Per contra, Mrs. Sharda Wandile, learned Assistant Government Pleader supported the order issued by the respondent no.1. She would contend that since the services of the petitioner came to be terminated under rule 25-A of the MEPS Rules on account of derecognition of the School, he could be considered to be kept in waiting list only. According to her, the contentions of the petitioner that the scheme of Shikshan Sevak is not applicable to the teachers who are declared surplus under rule 25-A of the MEPS Rules is not correct. She submits that only those teachers who are retrenched under rule 26 of the MEPS Rules on account of abolition of post of permanent employees are to be treated as surplus and not those teachers whose services are terminated under rule 25-A of the MEPS Rules as has happened in the present case. She contends that the action of the respondent no.1 in the present case treating the appointment of petitioner as Shikshan Sevak on absorption in respondent no.4 School is legally proper and needs no interference in exercise of writ jurisdiction of this Court.

The Issue

15. The substantive issue on the rival submissions as advanced by the parties is as under :

"Whether or not the petitioner is to be treated as Contract Teacher - Shikshan Sevak or Assistant Teacher entitled to claim pay-scale of the Assistant Teacher?"

16. The above issue needs judicial scrutiny based on the above admitted facts and on the touchstone of the statutory provisions applicable to the case in hand reproduced herein below :-

Scheme of Absorption

17. It is not in dispute that the petitioner was serving as Assistant Teacher in one Swargiya Sanjay Gandhi Adiwasi Vidyalaya and the said School came to be derecognized resulting in termination of services of the petitioner and that pursuant to the order dated 8th October, 2001 passed by this Court in Writ Petition No.2732 of 1997, petitioner came to be absorbed in respondent no.4 School pursuant to the provisions of rule 25-A of the MEPS Rules.

18. The Scheme of absorption of the teachers is to be found under the provisions of rules 25-A and 26 of the MEPS Rules which read as under:-

Rule 25-A

"25A. Termination of Service on account of abolition of posts : (1) the services of permanent employee may be terminated by the Management on account of abolition of posts due to closure of the school after giving him advance intimation of three months to the effect that in the event of closure of the school, his services shall automatically stand terminated. In the case of closure of school due to de-recognition, such advance intimation of three months shall be given by the Management to the permanent employees after receipt of a show cause notice from the Deputy Director.

Explanation : For the purpose of this sub-rule, the expression 'closure of the school' shall include, -

(i) voluntary closure by the Management of the entire school if it is imparting instruction through one medium or a part of the school comprising one or more media of instruction if it is imparting instruction through more than one medium; and

(ii) closure of the school due to de-recognition by the Department.

(2) The names of the employees in aided schools, whose services stand terminated in accordance with sub-rule (1) on account of de-recognition and who are not directly responsible for such de-recognition, shall be taken on a waiting list by the Education Officer in the case of Primary and Secondary schools or by the Deputy Director in the case of Higher Secondary Schools and Junior College of Education, and same shall be recommended by him to the managements of newly opened aided schools or of the existing aided schools which are allowed to open additional divisions or classes for consideration."

Rule 26

"26. Retrenchment on account of abolition of posts : (1) A permanent employee may be retrenched from service by the Management after giving him 3 months' notice, on any of the following grounds, namely:

(i) reduction of establishment owing to reduction in the number of classes or divisions;

(ii) fall in the number of pupils resulting in reduction of establishments;

(iii) change in the curriculum affecting the number of certain category of employees;

(iv) closure of a course of studies;

(v) any other bona fide reason of similar nature.

(2) The retrenchment from services under sub-rule (1) shall be subject to the following conditions, namely:

(i) The principle of seniority shall ordinarily be observed;

(ii) Prior approval of the Education Officer in the case of Primary and Secondary Schools or, of the Deputy Director in the case of Higher Secondary Schools or, of the Deputy Director in the case of Higher Secondary Schools and Junior Colleges of Education shall be obtained by the Management in each case of retrenchment including such cases in which the principle of seniority as proposed to be departed from and a senior member of the staff is proposed to be retrenched when a junior member should have been retrenched, stating the special reasons therefor;

(iii) The employees from aided schools, whose services are proposed to be retrenched shall be absorbed by the Education Office in the case of Primary and Secondary Schools or by the Deputy Director in the case of Higher Secondary Schools and Junior Colleges of Education. The order of absorption of such employees shall be issued by registered post acknowledgment due letter, and till they are absorbed, the Management shall not be permitted to effect retrenchment on account of any reasons mentioned in sub-rule (1).

(3) In case any employee refuses to accept the alternative employment offered to him under clause (iii) of sub-rule (2) he shall lose his claim for absorption, and the Management of the school shall be allowed to retrench, such employee from the services after completion of 3 months' notice period.

(4) If the posts retrenched are revived or additional posts for the same subject are created, the Management shall, by a registered post acknowledgment due letter addressed to the employee who is retrenched and absorbed in other school, give him the first opportunity of rejoining service in the school. For this purpose, the employees shall communicate to the management, his address and availability for the job every year before April by a letter sent by registered post acknowledgment due.

(5) The retrenched person who may have been absorbed in other school have an option either to get repatriated to his original school or to continue in school in which he has been absorbed.

(6) If the employee opts to continue in the school in which he has been absorbed, or if no written reply is received from the employee within a fortnight from the date of receipt of the letter addressed to him by the Management regarding the offer for re-appointment or repatriation to the school or on refusal by him to receive the letter containing such offer, the Management shall be free to fill the post or posts by appointing some other qualified person or persons.

(7) In the event of the employee opting to get repatriated to the original school, he shall be restored to his original position in pay, seniority etc.

(8) In the event of the employee opting to continue in the School in which he has been absorbed, and even during the intervening period when he has not been given an opportunity to rejoin his previous school, his services shall not be terminated by the management under sub-rule (1) of rule 28 by treating him as temporary. If the services of such an absorbed employee are required to be terminated under rule 25-A or he is to be retrenched under this rule, the procedure prescribed under rule 25-A or, as the case may be in this rule shall apply. However, his seniority for the purpose of promotion in the school in which he is absorbed shall be fixed in the respective category from the date of his absorption.

(9) In case, the fall in the number of pupils, classes or divisions affects the scale of the employee or his status, the facility of absorption admissible as per provisions of clause (iii) of sub-rule (2) shall not be admissible to him and he shall have to work on the lower scale or lower post or part-time post, as the case may be. In the event of such an employee showing unwillingness to work on such a post, the authorities mentioned in clause (iii) of sub-rule (2) shall permit the Management to retrench him after giving him three months' notice or, as the case may be, after completion of the notice period if already given."

19. If we look to the provisions laid down in rule 25-A of the MEPS Rules, it appears that the services of the employees may be terminated by the management on account of abolition of the posts due to closure of the school after giving an advance intimation of three months. Rule says that in that contingency services of the said permanent teachers shall automatically stand terminated. The rule also provides that in case of the closure of the school due to de-recognition, such advance intimation of three months shall be given by the management to the permanent employees, here, the closure of the school has been clarified by explanation to include voluntary closure of the entire school by the management if it is imparting instruction through one medium or a part of the school comprising one or more media of instruction. Closure of the school due to derecognition by the department also includes closure of the school. Therefore, in these contingencies the management is permitted to terminate the services of the permanent employees, on account of abolition of posts, under sub-rule (1) of rule 25-A. Sub-rule (2) of rule 25, in the eventuality of the action of the management under sub-rule (1) provides that the names of the employees in aided schools, whose services stand terminated in accordance with sub-rule (1) of rule 25-A on account of derecognition and who are not directly responsible for such de-recognition shall be taken on a waiting list by the Education Officer in the case of Primary and Secondary Schools or by the Deputy Director in the case of Higher Secondary Schools and Junior College of Education and same shall be recommended by him to the Management of newly opened aided schools or of the existing aided schools which are allowed to open additional division or classes for consideration. Rule 25-A has made available the protection and/or privilege to the permanent employees who are suffering action under sub-rule (1) of rule 25-A of the MEPS Rules.

20. Rule 26 deals with retrenchment on account of abolition of posts. The services of the permanent employees by the Management can be terminated on account of abolition of posts after giving three months notice on the grounds (i) reduction of establishment owing to reduction in the number of classes or divisions; (ii) fall in the number of pupils resulting in reduction of establishments; (iii) change in the curriculum affecting the number of certain category of employees; (iv) closure of course of studies; and (v) any other bona fide reason of similar nature.

21. Rule 26 provides that retrenchment from service under sub-rule (1) shall be subject to condition enumerated in that rule. Sub-rule (3) of rule 26 speaks about cases of employees who refuse to accept the employment offered. Sub-rule (4) of rule 26 contemplates about the manner of communication by the management. If the posts retrenched are revived or additional posts for the same subject are created. In case of revival of posts retrenched or additional posts for the same subject, the Management shall, by a registered post acknowledgment due letter addressed to the employee who is retrenched and absorbed in other school, give him the first opportunity of rejoining services in the school and for this purpose the employees shall communicate to the management his address and availability for the job every year before April by a letter sent by registered post acknowledgment due. Sub-rule (5) of rule 26 gives an opportunity to the retrenched person who may have been absorbed in other school, either to get repatriated to his original school or to continue in school in which he has been absorbed. Sub-rule (6) gives liberty to the management to fill in the post by qualifying person if the repatriated employee opts to continue in the school in which he has been absorbed, or if no written reply is received from the employee within a fortnight from the date of receipt of the letter addressed to him by the management regarding the offer for reappointment or repatriation to the school or on refusal by him to receive the letter continuing such offer. Sub-rule (7) of rule 26 speaks about restoration of the retrenched employee to his original position in pay, seniority if such employee opting to get repatriated to the original school. Sub-rule (8) of rule 26 provides that in the event of employee opting to continue in the school in which he has been absorbed and even during the intervening period when he has not been given an opportunity to rejoin his previous school, his services shall not be terminated by the management under sub-rule (1) of rule 28 by treating him as temporary. Sub-rule (9) of rule 26 speaks about facility of absorption admissible as per provision of clause (iii) of sub-rule (2).

Contract Teacher/Shikshan Sevak Scheme

22. The Government of Maharashtra by Government Resolution of 27th April, 2000 introduced a Scheme for appointment of the teachers on contract basis fixed honorarium in secondary schools, junior colleges and teachers training colleges. The said Government Resolution came to be challenged in Writ Petition No.2940 of 2000 (Association of Mumbai Junior College Teachers Vs. State of Maharashtra) which came up for consideration before the Division Bench to which one of us (Daga, J.) was a party. In that case, by interim order dated 16-8-2000 modified Shikshan Sevak Scheme was framed and approved by this Court. The State Government in consonance with the said order, issued modified Government Resolution dated 13-10-2000 regarding Contract Teacher, popularly known as "Scheme of Shikshan Sewak". The Scheme provides for appointment of Shikshan Sevak on fixed honorarium and such teachers appointed on honorarium basis have to furnish a bond in the prescribed form to the Competent Authority and after working for three years (36 months) if their work and performance is found satisfactory, they are to be absorbed in the regular posts.

23. As per the said Scheme, Shikshan Sevaks are to be appointed on the vacant posts excluding the posts filled in by regularly appointed teachers on the approved posts. In short, the Government Resolution provides that all the vacant posts as well as permanent posts likely to be vacant due to retirement, resignation etc. are to be filled in by Shikshan Sevaks. The Shikshan Sevak appointed under the said Scheme is to be kept temporary on year to year basis for a period of three years and on successful completion of three years, he is to be absorbed in the service as regular teacher on the pay-scale prescribed under the MEPS Rules, 1981. Relevant clause 12(iii) of the said Scheme (GR) reads as under:

"(iii) The G.R. will not apply to teachers who are declared as surplus and required to be located and also to teachers who had worked as permanent and confirmed teacher in the past and who has resigned from service and seeking a fresh employment."

Consideration

24. Having heard rival parties, having seen the Scheme of absorption under rules 25-A and 26 of the MEPS Rules and having seen the Scheme of Contract Teachers (Shikshan Sevaks), it is clear from clause 12 (iii) of the said Scheme that it is not applicable to the teachers who are declared surplus and are required to be located and also to those teachers who had worked as confirmed/approved teachers in the past and who had resigned from service and seeking fresh employment. The teachers covered by clause 12(iii) would be the teachers who are declared surplus under rule 26 of the MEPS Rules since rule 26 speaks about retrenchment on account of abolition of posts of permanent employees on account of eventualities which are enumerated under sub-rule (1) which may be of temporary nature. Reduction of establishment owing to reduction in the number of classes or divisions under sub-rule (1)(i) of rule 26 operates if there is a fall in the number of pupils resulting in reduction of establishment, but after some span of time, number of pupils may be increased and may have an effect in the class or division of the School or establishment. Sub-rule (1)(iii) of rule 26 contemplates change in the curriculum affecting number of certain category of employees. Curriculum depends upon the policy or guidelines from the Education Department or the Board and is subject to change and, therefore, is of temporary nature. Sub-rule (1)(iv) of rule 26 speaks about closure of course of studies, but not the entire school and, therefore, is a partial or temporary closure of the school. Sub-rule (1)(iv) of rule 26 contemplates the retrenchment on account of any other bona fide reason of similar nature. In our opinion, the words "similar nature" refer to the grounds mentioned in sub-rule (1)(i) to (v) of rule 26. Therefore, the class of retrenched employees, which comes into existence because of the contingencies enumerated in sub-rule (1) of rule 26 is considered by the rule makers and so as to make available protection to that class of employees, sub-rules (2) to (9) are embodied in rule 26 so as to achieve the object to extend protection of the employment to those class of employees.

25. As against rule 26 above, rule 25-A contemplates termination of service on account of abolition of posts due to closure of the school. While considering the provisions laid down under rule 25-A which speaks about the termination of service on account of abolition of posts, sub-rule (1) is important which considers the termination of the service of the permanent employee by the Management on account of the closure of the School. Here it is to be noted that there is explanation to the said sub-rule (1) of rule 25 which says 'closure of the school' shall include (i) "voluntary closure by the Management of the entire school if it is imparting instruction through one medium or a part of the School comprising one or more media of instruction if it is imparting instruction through more than one medium" or (ii) closure of the school due to derecognition by the Department". This closure is obviously of permanent nature. Therefore, the class of permanent employees, which comes into existence upon operation of the provisions of sub-rule (1) of rule 25-A is of such a nature as to be permanently retrenched. Therefore, this class of employees, which is contemplated, is altogether different on account of different contingencies and having a permanent nature. In short, the school which suffered closure in accordance with the sub-rule (1) of rule 25-A never would resurgent and there will be no occasion for the employees working in the said School to repatriate. Therefore, protection/privilege here made available by sub-rule (ii) for this class of retrenched employees is also different in nature i.e. by way of preparation of waiting list by the Education Officer and/or Dy Director of Education for recommending these teachers to the management of newly opened aided School or of the existing aided schools which are allowed to open additional divisions or classes for consideration. Therefore, the rule makers have rightly considered classes of permanent employees of the aided schools and have made available equal protection to both the classes. The distinction, therefore, between the teachers/employees of Schools suffering action under sub-rule (1) of rule 25-A and employees/teachers suffering action under sub-rule (1) of rule 26 in the matter of extension or protection of services is judicially recognised by this Court in the case of Dattaraj Janraoji Nimkar and ors. Vs. Swargiya Sakharamji Shikshan Sanstha, Nagpur and ors. reported in 2004(1) Mh.L.J. 516 : [2004(1) ALL MR 306] and in recognition of the same, classification is to be found in clause 12(iii) of the Shikshan Sevak Scheme.

26. Reading of the aforesaid Government Resolution would clearly show that it is not applicable to the teachers; who are declared as surplus and required to be located and also to teachers who had worked as permanent and confirmed teachers in the post and who have resigned from service and seeking a fresh appointment.

27. A teacher who is terminated on account of contingency covered by rule 25-A can only be considered for recommendations to the management of other school for being appointed on their establishment as a fresh candidate and such management is required to consider the case of employee for absorption and any such appointment of employee terminated under rule 25-A is required to be treated as newly appointed employee who has (the petitioner in this case) suffered termination under rule 25-A of the MEPS Rules. All new appointees are required to be treated as Shikshan Sevak covered under the Scheme of Shikshan Sevak framed by the Government vide Government Resolution dated 27th April, 2000 read with modified Government Resolution dated 13th October, 2000.

28. In the above view of the matter, no fault can be found with the view taken by the Deputy Director of Education and communicated to the petitioner through the Education Officer (Sec) that he shall be treated as Shikshan Sevak entitled to the consolidated salary payable under the Shikshan Sevak Scheme.

29. In the result, for the view we have taken, petition is liable to be dismissed. Rule is discharged with no order as to costs.

Petition dismissed.