Writ Petition No. 1104 of 2008,Writ Petition No. 1105 of 2008

25th June, 2008

Petitioner Counsel: Mr. V. A. KOHIR
Respondent Counsel: Mr. SUNIL DIGHE,Ms. SINDHU SHRIDHAVAN

Cases Cited:
Ram Avadh Mahel Pal Vs. Shivdutta Educational Trust, 2007(6) ALL MR 716 (F.B.) [Para 2]
Zile Singh Vs. State of Haryana, AIR 2004 SC 5100 [Para 9]
Miss A. Sundarambal Vs. Government of Goa, Daman and Diu, AIR 1988 SC 1700 [Para 10]

JUDGMENT

JUDGMENT :- These writ petitions under Article 226 of the Constitution of India are directed against the order of the Presiding Officer, School Tribunal dated 6th March, 2008 allowing the Appeals of the Teachers and setting aside the termination order issued by the Management. The order further directs reinstatement of the teachers/appellants before the Tribunal to the post of Assistant Teacher with 50% back wages and continuity of service.

2. The only contention raised before me is that the provisions of amended Act XIV of 2007 which amend the Maharashtra Employees of Private Schools (Condition of Service) Regulations Act, 1977 in so far as section 12 and contract teachers appointed under Govt. Resolution dated 13th October, 2000 does not have retrospective effect.

3. The argument is that neither the Full Bench decision of this Court (Writ Petition No.4645 and 4646 of 2006 decided on 31st August, 2007) (Ram Avadh Mahel Pal Vs. Shivdutta Educational Trust) (since reported in 2007(6) ALL MR 716 (F.B.) nor the amendment concludes the issue. In any event the amendment to section 12(1) of the Act of 1977 made by the amended Act is not retrospective.

4. Very few facts are necessary to appreciate the contentions of Mr. Kohir in this regard. It is not in dispute that the appellants before the School Tribunal were appointed to the vacant posts of Assistant Teachers in the school run by the Management with effect from 21st June, 2004. The appointments were on probation for two years. Clause 8 of Schedule A to the scheme for appointment of Shikshan Sevak published vide Govt. Resolution dated 13th October, 2000 provides that after the completion of 3 years of service, Shikshan Sevak is entitled to be absorbed in the vacant post of Assistant Teacher on regular pay scale.

5. There were conflicting views expressed by this Court with regard to this aspect. In other words whether Shikshan Sevak, on completion of 3 years or 30 months service and appointed on regular basis as assistant teacher in terms of clause 8 of the Govt. Resolution dated 13rd October, 2000 is required to be appointed as a confirmed teacher or a teacher on probation. One Division Bench of this Court took a view that after completion of 3 years service, Shikshan Sevak has to be absorbed on regular pay scale. Another Division Bench took a view that after completion of 3 years service, Shikshan Sevak has to be appointed on fresh appointment to the post of Assistant Teacher on probation. It appears that in this very matter an interim order of the Tribunal was challenged in Writ Petition No.4645 of 2006. When that writ petition was placed before the learned Single Judge of this Court (B. H. Marlapalle J.) he noticed the conflicting views and directed the papers to be placed before the Honble the Chief Justice for constituting the Full Bench to resolve the issue. Accordingly, Full Bench was constituted by the Honble the Chief Justice. During pendency of the reference, the State of Maharashtra amended the Act of 1977 and introduced several amendments thereto.

6. From perusal of the amended provisions, it appears that the Government was aware of the conflicting legal views. The procedure for treating the persons appointed under the Govt. Resolution distinctly from those covered by the Act was noticed and that the Legislature stepped in to remove the disparity. The Full Bench has noticed that the amendments were published in the Gazette on 30th April, 2007 after assent of the Governor. The statements of objects and reasons of the Amendment Act have been referred to in para 3 of the Full Bench decision and it is observed that the Government decided to continue the scheme by suitably amending the statutory enactments so as to bring the posts of Shikshan Sevaks under the purview of the Act.

7. In paras 4, 5 and 6 of the Full Bench decision this is what is observed.

"4. By the Amending Act, Clause (24A) has been inserted in Section 2 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. Under this provision the expression "Shikshan Sewak" is defined as follows:

"(24A) "Shikshan Sevak" means a member of base teaching cadre appointed on honorarium and subject to such terms and conditions as specified in the Government Gazette, Extraordinary No.12, Part I Central Sub Section dated the 15th February, 2007, for eventual appointment as a teacher."

Section 5(2) of the Act prior to its amendment read as follows:

"Every person appointed to fill a permanent vacancy shall be on probation for a period of two years. Subject to the provisions of sub-section (3) and (4), he shall, on completion of this probation period of two years, be deemed to have been confirmed."

As a result of the Amending Act, sub-section (2) of Section 5 has been amended to insert the words "except Shikshan Sevak" after the words "permanent vacancy". The following proviso has been inserted after sub-section (2) of section 5 :

"provided that, every person appointed as Shikshan Sevak shall be on probation for a period of three years."

Moreover, sub-section (2A) has been inserted in Section 5 which is to the following effect:

"(2A) Subject to the provisions of sub-sections (3) and (4), Shikshan Sevak, on completion of the probation period of three years, be deemed to have been appointed and confirmed as a teacher."

Section 12 provides for the regularisation of appointments of Shikshan Sevaks in the following terms:

"12.(1) Notwithstanding anything contained in the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, all Shikshan Sevaks appointed in accordance with the provisions of the Government Resolution published in the Maharashtra Government Gazette, Extraordinary No.12, Part I, Central Sub-section, dated the 15th February, 2007 shall be deemed to have been appointed as base cadre Shikshan Sevak under the said Act, for appointment as teachers on completion of three years service as such Shikshan Sevak rendered heretobefore or heretoafter, as the case may be. (2) The terms and conditions prescribed by Government for appointment of Shikshan Sevak, by issuing Government Resolutions, from time to time, before the date of commencement of the Bombay Primary Education and the Maharashtra Employees of Private Schools (Conditions of Service) Regulation (Amendment) Act, 2007, shall continue to be in force unless modified or revoked.

6. The reference before the Full Bench will now stand covered by the amendment made by Maharashtra Act XIV of 2007. As a result of amendment, it has been provided that every person appointmened as Shikshan Sevak shall be on probation for a period of three years. Moreover, subject to the provisions of sub-section (3) and (4) of Section 5 Shikshan Sevak shall on completion of probation period of three years be deemed to have been appointed and confirmed as a teacher. Incidently, it may be necessary to note that the gazette notification dated 15th February, 2007 which is referred to in the definition of the expression "Shikshan Sevak" in Clause (24A) of sub section (2) as amended incorporates the Government Resolution dated 13th October, 2000."

8. To my mind, once the Full Bench has clarified the position that the amending Act covered the reference before it so also categorically observed that the Gazette notification dated 15th February, 2007 which is referred to in the definition of expression "Shikshan Sevak" in clause (24A) of sub-section (2) of section 2 of the Act of 1977, and also the Gazette notification incorporated the Govt. Resolution dated 13th October, 2000 being earlier in point of time, really, there is no issue much less of retrospectivity.

9. The Tribunal is right in holding that on reading of section 12 either in its Marathi or English version, it is apparent that the Legislature desired to bring in all Shikshan Sevaks whether appointed under the Govt. Resolution/Gazette Notification dated 15th February, 2007 or earlier within the purview of the MEPS Act. The question of retrospectively is answered automatically. The principle is well settled. No provision can be construed as retrospective unless it is made so specifically or can be held so by necessary implication. The principles in this behalf are well settled and if any reference to Supreme Court Decisions is necessary, then, the decision in Zile Singh Vs. State of Haryana and ors. reported in AIR 2004 SC 5100 would suffice. After setting out the factual background and the principles laid down in earlier decisions, this is what is observed by the Hon'ble Supreme Court:-

"13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only 'nova constitution futuris formam imponere debet non praeteritis' - a new law ought to regulate what is to follow, not the past. (See: Principles of Statutory interpretation by Justice G. P. Singh, Ninth edition, 2004 at p.438). It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole.

14. The presumption against retrospective operation is not applicable to declaratory statutes....In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is to explain an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended....An amending Act may be purely declaratory to clear a meaning of a provision of the Principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect.

22. The State Legislature of Haryana intended to impose a disqualification with effect from 5.4.1994 and that was done. Any person having more than two living children was disqualified on and from that day for being a member of municipality. However, while enacting a proviso by way of an exception carving out a fact situation from the operation of the newly introduced disqualification the draftsmans folly caused the creation of trouble. A simplistic reading of the text of the proviso spelled out a consequence of trouble. A simplistic reading of the text of the proviso spelled out a consequence which the Legislature had never intended and could not have intended. It is true that the Second Amendment does not expressly give the amendment a retrospective operation. The absence of a provision expressly giving a retrospective operation to the legislation is not determinative of its prospectivity or retrospectivity. Intrinsic evidence may be available to show that the amendment was necessarily intended to have the retrospective effect and if the Court can unhesitantly conclude in favour of retrospectivity, the Court would not hesitate in giving the Act that operation unless prevented from doing so by any mandate contained in law or an established principle of interpretation of statutes."

10. To my mind, the State did not desire that the teachers be labelled as contract workers. It had before it right from 1977 a statutory provision. The preamble to the same states that Maharashtra Act III of 1978 is an Act to regulate recruitment and conditions of employees in certain private schools. If there are any doubt in the mind of all concerned they are answered by preamble to the Act itself. It reads thus :

"WHEREAS it is expendient to regulate the recruitment and conditions of service of employees in certain private schools in the State, with a view to providing such employees security and stability of service to enable them to discharge their duties towards the pupils and their guardians in particular and the institution and the society in general, effectively and efficiently;

AND WHEREAS it is further expedient in the public interest to lay down the duties and functions of such employees with a view to ensuring that they become accountable to the Management and contribute their might for improving the standard of education;

AND WHEREAS it is also necessary to make certain supplemental, incidental and consequential provisions, it is hereby enacted in the Twenty eight Year of Republic of India as follows:"

The very intent is to provide the employees security and stability of service so as to enable them to discharge their duties towards the pupils and their guardians in particular so also the institutions and society, in general effectively and efficiently. It hardly needs to be emphasised that if there is no stability and security in the services of teachers public interest would be adversely affected. One cannot have a teacher who does not have stability in service and security of tenure. If it is expected of him that he should give his best to the pupil and to the society, then, beneficial provisions have to be made. These are in social and public interests. They must be construed so as to achieve the object and purpose in enacting them. The place of a teacher in the society and in the field of education hardly needs to be emphasised. In a decision reported in AIR 1988 Supreme Court 1700 (Miss A. Sundarambal Vs. Government of Goa, Daman and Diu and others) in the context of status of a teacher, this is what the Supreme Court has observed:

"...Imparting of education which is the main function of teachers cannot be considered as skilled or unskilled manual work or supervisory work or technical work or clerical work. Imparting of education is in the nature of a mission or a noble vocation. A teacher educates children, he moulds their character, builds up their personality and makes them fit to become responsible citizens. Children grow under the care of teachers. The cleical work, if any, they may do, is only incidental to their principal work of teaching."

Thus, the teacher is held not be a "workman" under Sec.2(s) of the Industrial Disputes Act, 1947 because of his role in the society. Teachers profession is a noble profession and to preserve its nobility and dignity security of service is absolutely necessary.

11. Section 12 achieves that object and purpose. After amendment, there is a security and certainty of tenure and protection of service. If that is granted by the statutory provision, then, no management can disregard and disobey the same. In this case, precisely, that has been done and that is why the Tribunal has not accepted the argument of the Management that the Amended statutory provisions and Full Bench decision of this Court does not apply to the facts of the present case.

12. It is not in dispute that the teacher in writ petition no.1104 of 2008 was appointed as Shikshan Sevak with effect from 21st June, 2001 and continued in the same post for 3 academic years. After completion of 3 years as Shikshan Sevak he was appointed as Assistant Teacher with effect from 21st June, 2004 on probation. In view of amended provision his appointment ought to be treated as appointment on the post of a teacher on permanent basis. His tenure of 3 years as Shikshan Sevak has to be considered as probationary period. Upon satisfactory completion of that period he is deemed to have been confirmed and acquired the status of permanent employee of the private school. This is undisputed factual position.

This is also the position emerging in law. Therefore, the appellant before the Tribunal could not have been treated as probationary and precisely that has required the Tribunal to step in and set right the wrong done to him. The termination was not permissible in the manner done by the management. This is the factual position in case of other teachers in these petitions. The management has not controverted this factual position.

13. This is the only contention raised and argued before me. Having answered it against the petitioner Management I do not see any reason to entertain the writ petition. The Tribunal is in no error in allowing the appeal and issuing the subject directions. The judgment and order of the Tribunal is neither perverse nor vitiated by any error apparent on the face of record so as to warrant interference under Article 226 of the Constitution of India. The petitions are, therefore, dismissed. No costs.

14. However, a clarification is necessary to be issued in as much as Mr. Dighe points out that the employees have filed a writ petition challenging that part of the direction of Tribunal whereby they are deprived of 50% of the back wages. That writ petition is admitted and is pending. Anything observed by me while confirming the order of the Tribunal does not prejudice the said employees, these writ petitions be dealt with in accordance with law.

Petitions dismissed.