7. The petitioners contend that directives contained in the Government Resolution are contrary to the provisions of (i) Right of Children to Free and Compulsory Education Act, 2009 (for short, "the RTE Act") and the Rules framed by the State of Maharashtra thereunder; (ii) Bombay Primary Education Act, 1947 and the Rules framed thereunder; (iii) Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules framed thereunder; and (iv) the Secondary School Code.

8. Clause 1.2 of the Resolution provides that for determining the strength of teachers in primary and secondary schools, the student strength in the school as on 15th July shall be taken into account. Clause 1.3 provides for taking action of derecognition of such of those schools wherein absentism of the students is more than 20%. It is directed that appropriate action be taken after issuing a show cause notice to such institutions. Clause 1.4 of the Resolution provides that so far as the schools wherein absentism of students is found to be more than 50%, measures for launching criminal prosecution against such institutions and Head Masters shall be initiated and recognition of such schools be withdrawn by following prescribed procedure. Only such of the employees employed in the schools wherein absentism of the students is found to be less than 50%, shall be accommodated in other schools as provided under clause 1.5, whereas, clause 1.7 provides that teaching as well as non teaching staff in the schools wherein absentism of the students is found to be more than 50%, shall be declared surplus and instead of accommodating them in any other school, their services be terminated. Clause 1.8 of the Resolutions directs management of the private schools as well as schools operated by local self Government not to appoint teaching and non teaching staff without ensuring accommodation of surplus teachers. Clause 1.11 of the Resolution provides that the schools operated by the Special Justice Department as well as Tribal Development Department shall not be inspected by a separate cell at the present. A directive has been issued to the District Collector to make financial provision for causing surprise inspection of the schools operating in the District every year. It is directed in view of clause 1.16 to call for explanation of concerned officials of the Municipal Corporations as well as Municipal Councils wherein absentism of the students in the schools operated by such local bodies is found to be more than 10%.

9. Petitioners contend that services of the employees employed in private schools are governed by the provisions of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules framed thereunder. There are provisions contained in the Act as well as Rules in respect of initiating departmental proceedings for the misconduct committed by a teacher or member of non teaching staff. The Rules provide a detailed procedure for initiating disciplinary action against an employee of a private school and for imposition of major and minor penalties. The services of an employee of a private school cannot be dispensed with without observing procedure prescribed under the Act of 1977 and Rules framed thereunder. The Act also makes a provision for declaring employees of private schools surplus and for accommodation of such surplus teachers. Rules 25A and 26 provide for absorption of retrenched or surplus employees functioning in a private school. A permanent employee may be retrenched from service by the management on account of reduction of establishment owing to reduction in the number of classes or divisions, fall in the number of pupils resulting in reduction of establishments; etc. Rule 26, provides for absorption of retrenched employee in the manner provided in the rule. An employee terminated from service on account of abolition of posts is also required to be taken on waiting list maintained by the Education Officer or by the Deputy Director of Education in case of Higher Secondary School for making recommendations to the management of newly opened aided school or existing aided schools for absorption. The services of an employee functioning in a private school cannot be brought to an end merely because of absentism of the students revealed during inspection to be more than 20% or 50%, as the case may be. The services of the permanent teacher employed in a private school can be brought to an end only on account of misconduct or any other reason provided under the Act and Rules and subject to observance of procedure provided under the Rules. The directives issued in paragraph 1.3 and 1.7 are contrary to the provisions of the Act of 1977 and the Rules framed thereunder. It is also contended that Head Master of the School cannot be held responsible and cannot be prosecuted for the reason of absentism of students if found to be more than 50%, during the course of inspection, undertaken as a special drive. A sweeping direction contained in clause 1.4 is not contemplated by the Act of 1977 or any other Enactment i.e. Bombay Primary Education Act, Secondary School Code or RTE Act. The recognition of the school is also required to be withdrawn in the manner provided under the RTE Act and the Rules framed thereunder and as such, directives contained in paragraph 1.4 of the Resolution are extraneous to the provisions of the RTE Act and the Rules, so also Bombay Primary Education Act and Secondary School Code. It is also urged that the schools operated by the private managements are discriminated, whereas, no action, is proposed against the schools operated by the local authorities and the employees functioning in such schools.

10. The learned Government Pleader, appearing for Respondent-State, supported the decision taken by the State Government and contended that the unprecedented situation is created by the operators of the private schools warranting extraordinary measures. It is contended that the surprise inspection conducted under the supervision of District Collector of each districts revealed mind boggling facts. The misdeeds committed by the private managements operating the schools have been brought to the light. The facts and features relating to attendance of students revealed during the surprise inspections called for strict measures, prompted the Government to issue directions by way of issuance of Resolution dated 02.05.2012.

11. It is contended that the decision taken by the Government to cause special inspection of schools to assess attendance of students in the schools in the State, was subject matter of challenge in Writ Petition No.7687 of 2011. The Division Bench of this Court, while dismissing the writ petition, has observed that the circular issued by the Government on 19.09.2011 by which the State Government had directed that in the entire State, there shall be a special drive to verify the strength of the students who are actually taking education in the schools which are receiving grantinaid or not receiving grantinaid, is not in conflict with the Government Resolution dated 07.10.2003. The Division Bench has ruled that the circular is in effect issued for achieving the purpose provided in the aforesaid Government Resolution. It is, thus, contended that since this Court has approved the special drive undertaken by the State Government for counting the exact number of students actually taking education in the schools, no interference need be caused in respect of the directives contained in the Government Resolution impugned in the petition, since such directives are issued after collecting data and facts and figures during surprise inspection. The Respondents, as such, prayed for dismissal of the petitions.

12. The Right of Children to Free and Compulsory Education Act, 2009 is enacted by the Union of India and has come into force on 01.04.2010. Article 21-A of the Constitution provides for free and compulsory education to all children in the age group of six to fourteen years as Fundamental Right in such a manner as the State may, by law, determine. Consequently, the Right of Children to Free and Compulsory Education Bill, 2008, is introduced which seeks to provide:

(a) that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards;

(b) "compulsory education" casts an obligation on the appropriate Government to provide and ensure admission, attendance and completion of elementary education;

(c) "free education" means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education;

(d) the duties and responsibilities of the appropriate Governments, local authorities, parents, schools and teachers in providing free and compulsory education; and

(e) a system for protection of the right of children and a decentralized grievance redressal mechanism.

13. The Act has been brought into existence in furtherance of achieving Constitutional obligation under Article 21-A. Section 3 of the Act provides that every child of the age of six to fourteen years, including a child referred to in clause (d) and (e) of Section 2 i.e. child belonging to disadvantaged group and child belonging to weaker section shall have a right to free and compulsory education in a neighbourhood school till completion of elementary education. Section 8 of the Act provides that the appropriate Government shall provide free and compulsory elementary education to every child. The duties of the local authority have been prescribed under Section 9 of the Act. Section 12 of the Act clarifies extent of school's responsibility for providing free and compulsory education. Section 13 of the Act provides that no capitation fee be levied or screening procedure be adopted for admitting a child to primary school. Section 15 of the Act mandates that a child shall be admitted in a school at the commencement of the academic year or within such extended period as may be prescribed; provided that no child shall be denied admission if such admission is sought subsequent to the extended period. It is further provided that any child admitted after the extended period shall complete his studies in such manner as may be prescribed by the appropriate Government. The norms and standards for school are prescribed under Section 19 of the Act. It is provided that no school shall be established, or recognised, under Section 18, unless it fulfils the norms and standards specified in the Schedule. Section 19 reads thus:

19Norms and standards for school :- (1) No school shall be established or recognised, under section 18, unless it fulfils the norms and standards specified in Schedule.

(2) Where a school established before the commencement of this Act does not fulfil the norms and standards specified in the Schedule, it shall take steps to fulfil such norms and standards at its own expenses, within a period of three years from the date of such commencement.

(3) Where a school fails to fulfil the norms and standards within the period specified under sub-section (2), the authority prescribed under sub-section (1) of section 18 shall withdraw recognition granted to such school in the manner specified under sub-section (3) thereof.

(4) With effect from the date of withdrawal of recognition under sub-section (3), no school shall continue to function.

(5) Any person who continues to run a school after the recognition is withdrawn, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues.

14. Section 23 relates to Qualifications for appointment and terms and conditions of service of teachers, which reads thus:

23Qualifications for appointment and terms and conditions of service of teachers:- (1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher.

(2)Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period not exceeding five years, as may be specified in that notification:

Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years.

(3)The salary and allowances payable to, and the terms and conditions of service of teachers shall be such as may be prescribed.

15. The duties of teachers and redressal of grievances is provided under Section 24 of the Act, which reads thus:

24Duties of teachers and redressal of grievances:- (1) a teacher appointed under sub-section (1) of section 23 shall perform the following duties, namely:

(a)maintain regularity and punctuality in attending school;

(b)conduct and complete the curriculum in accordance with the provisions of sub-section (2) of section 29;

(c)complete entire curriculum within the specified time;

(d)assess the learning ability of each child and accordingly supplement additional instructions, if any, as required;

(e)hold regular meetings with parents and guardians and apprise them about the regularity in attendance, ability to learn, progress made in learning and any other relevant information about the child; and

(f)perform such other duties as may be prescribed.

(2) A teacher committing default in performance of duties specified in sub-section (1), shall be liable to disciplinary action under the service rules applicable to him or her;

Provided that before taking such disciplinary action, reasonable opportunity of being heard shall be afforded to such teacher.

(3) The grievances, if any, of the teacher shall be redressed in such manner as may be prescribed.

16. Section 25 of the Act is in respect of Pupilteacher ratio, whereas, Section 26 relates to filling up vacancies of teachers. Section 27 of the Act lays down prohibition of deployment of teachers for non-educational purposes. Section 38 of the Act provides for rule making powers of the appropriate Government in respect of the matters provided therein.

17. The State of Maharashtra, in exercise of powers conferred under Section 38 of the RTE Act of 2009, has framed Maharashtra Right of Children to Free and Compulsory Education Rules, 2011. Part VI relates to teachers. It is prescribed that the academic authority notified in pursuance of sub-section (1) of section 23, shall within three months of such notification, lay down the minimum qualifications for persons to be eligible for appointment as a teacher in an elementary school. Salary and allowances and conditions of service of teachers for purpose of section 23(3) of the Act is provided under Rule 18, whereas, duties to be performed by teachers for the purpose of clause (f) to section 24(1) of the Act is provided under Rule 19. The Grievance Redressal mechanism for teachers for the purposes of section 24(3) is provided under Rule 20. Rule 21 of the Rules is in respect of maintaining PupilTeacher Ratio in each school for purposes of section 25. The relevant Rules are as quoted below:

11Recognition of schools for purposes of Section 18. (1) Every school, other than a school established by the Government or the Local Authority, established before the commencement of this Act (or any school which has received permission, from, or been recognized by the Government), shall make a self declaration within a period of three months from the date of commencement of this Act in Form No.1 to the concerned District Education Officer regarding its compliance or otherwise with the norms and standards prescribed in the Schedule, and that the school fulfills the following conditions. In case, a school is being run without recognition from the Government without permission before or even after the commencement of this Act, the school shall be punishable under section 18(5) of the Act, by a fine and shall also face legal action,:-

(a)Conditions that the school is run by a society registered under the Societies Registration Act, 1860 (21 of 1860), or under the Bombay Public Trusts Act, 1950 (Bom. XXIV of 1950);

(b)that the school is not run for profit of any individual, group or association of individuals or any other persons;

(c) that the school confirms to the values enshrined in the Constitution of India;

(d) that the school buildings and other structures as well as the grounds are used only for the purposes of education and skill development;

(e) that the school is open to inspection by any officer authorized by the State Government or the Local Authority;

(f) that the school furnishes such reports and information as may be required by the Director of Education or District Education Officer from time to time and complies with such instructions of the State Government or the Local Authority, as may be issued to secure the continued fulfillment of the conditions of recognition or the removal of deficiencies in working of the school;

(2) Every self declaration received in Form-1 shall be placed by the District Education Officer in public domain displaying it on a notice board, website, etc., within fifteen days of its receipt.

(3) The District Education Officer shall conduct onsite inspection of such schools which claim in Form1 to fulfill the norms and standards prescribed in the Schedule and the conditions mentioned in sub-rule (1) within three months of the receipt of the self declaration. The said Officer shall personally verified either by himself or through an officer subordinate to him about such fulfillment and prepare a report in the prescribed form.

(4) After the inspection referred to in sub-rule (3) is carried out, the inspection report shall be placed by the District Education Officer in public domain, website and schools found to be conforming to the norms, standards prescribed in the schedule and the conditions shall be granted recognition by the District Education Officer in Form-2 within a period of 15 days from the date of inspection.

(5) Schools that do not conform to the norms, prescribed in the Schedule and conditions mentioned in sub-rule (1), shall be listed by the District Education Officer through a public order to this effect, and any time within the next two and a half years, after the report under sub-rule (3) is submitted to the authorities such schools may apply to the District Education Officer for an onsite inspection for grant of recognition.

(6) The Schools which fail to confirm to the norms and standards prescribed in the Schedule and conditions mentioned in sub-rule (1) after three years from the commencement of the Act, shall cease to function.

(7) Every school, other than a school established by the Government or the Local Authority, established before the commencement of the Act for any school which has received permission from, or been recognized by the Government), shall conform to the norms and standards prescribed in the Schedule and conditions mentioned in sub-rule (1) in order to qualify for recognition. It is the responsibility of the State Government to ensure that the schools established, owned or controlled by State Government or local authority shall comply with the norms and standards prescribed in the Schedule and conditions mentioned in sub-rule (1) within a period of 3 years from the commencement of the Act.

(8) All prevalent rules of the Government regarding grant or refusal of recognition of schools shall continue to be in force. Also, the schools shall be recognized or granted permission if they conform to the required norms standards prescribed in the Schedule and conditions mentioned in sub-rule (1) only in those places where it is found to be an actual need, on the basis of school mapping.

(9) NonGovernment Organisations and other institutions shall be encouraged to participate in improving the quality of infrastructure and quality of education in schools run by Local Authorities.

(10) Comprehensive system of evaluation for teachers and schools shall be implemented. The evaluation may be done by various ways like self evaluation, peer evaluation, etc. External evaluation shall also be conducted periodically after such time and time elapsed between two such evaluation shall not exceed more than three years.

12 Withdrawal of recognition to schools for the purposes of sections 12(3) and 18(3):- (1) Where the District Education Officer on his own motion, or on any representation received from any person, has reason to believe, that a school recognised under rule 11, has violated one or more of the conditions for grant of recognition or has failed to fulfill the norms and standards prescribed in the Schedule, he shall record the reasons for his belief and then,:-

(a)issue a notice to the school, specifying the violations of the conditions of grant of recognition and seek its explanation within one months.

(b)In case the explanation is not found to be satisfactory or no explanation is received within the stipulated time period, the District Education Officer may cause an inspection of the school, to be conducted by a Committee of three to five members comprising of educationists, civil society representatives, media, and government representatives, which shall make due inquiry and submit its Report, along with its recommendations for continuation of recognition or its withdrawal, to the District Education Officer.

(c)The District Education Officer shall forward the Report to the Director of School Education (Primary), along with his comments, a copy of the report may be forwarded for information to the State Commission for Protection of Child Rights.

(2)The School Education and Sports Department, shall, convey its decision to the District Education Officer through the Directorate of Education.

(3)The District Education Officer shall, on the basis of the decision of the School Education and Sports Department, pass an order canceling the recognition granted to the school. The order of derecognition shall be operative from the immediately succeeding academic year and shall specify the neighborhood schools in which the children of the derecognised schools shall be admitted. The District Education Officer shall also give the concerned neighborhood schools, in advance, a list of the children to be admitted, with detailed information about the children.

20Grievance Redressal mechanism for teachers for purposes of section 24(3):- (1) A teacher or employee of a school other than a school run by Government or Local Authority, who is aggrieved by any of the decisions of the management, regarding his or her service conditions or a teacher or an employee,:-

(a)who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank, by the order passed by the management; or

(b)who is superseded by the management while making an appointment to any post by promotion and shall have a right of appeal and may appeal against such order or supersession to the tribunal constituted under section 8 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Mah. III of 1978).

(2)The appeals so preferred shall be governed by the provisions of sections 8, 9, 10, 11, 12, 13 and 14 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Mah. III of 1978) and the Rules 39 and 43 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981.

21Maintaining PupilTeacher Ratio in each school for the purposes of section 25. (1) The Government or the Local Authority, as the case may be, may redeploy teachers of schools having a strength in excess of the sanctioned strength on 31st of July every year.

(2)If any officer or employee of the Government or the Local Authority violating the provisions of sub-section (2) of section 25, he or she shall be personally liable for a disciplinary action.

18. It is to be noted that on consideration of the provisions of the Act of 2009 as well as Rules framed by the State of Maharashtra in the year 2011, it is revealed that no provision has been made for derecognition of the school on account of absentism of the students revealed during the course of inspection, to be more than 50% nor there is any provision for taking action against such private schools on account of absentism of the students if found to be beyond 20%. Rule 11 of the Rules provides for recognition of the schools and sub-rule (6) of Rule 11 provides that if the school fails to conform to the norms and standards prescribed in the Schedule and conditions mentioned in sub-rule (1) after three years from the commencement of the Act, shall cease to function. Sub-rule (1) of Rule 11 do not provide for taking any action on account of absentism of students. Sub-rule (8) of Rule 11 provides that all prevalent rules of the Government regarding grant or refusal of recognition of schools shall continue to be in force. Also, the schools shall be recognized or granted permission if they conform to the required norms and standards prescribed in the Schedule and conditions mentioned in sub-rule (1) only in those places where it is found to be an actual need, on the basis of school mapping. Sub-rule (10) of Rule 11 provides that a comprehensive system of evaluation for teachers and schools shall be implemented. The withdrawal of recognition shall have to be resorted to in observance of the procedure prescribed under Rule 12. Except as provided under the Act and Rules, recognition of the school cannot be withdrawn.

19. The directive contained in clause 1.4 of the Government Resolution is in contravention of the provisions of the Act since there is no provision made in the Act or the Rules for withdrawal of recognition on account of absentism of the students beyond 50%. Similar is the case in respect of directive contained in clause 1.3 of the impugned Government Resolution. Rule 12 provides that where the District Education Officer, on his own motion, or on any representation received from any person, has reason to believe, that a school recognised under rule 11, has violated one or more of the conditions for grant of recognition or has failed to fulfill the norms and standards prescribed in the Schedule, the District Education Officer shall act in the manner prescribed under the said rule, issue order of withdrawal of recognition. The grounds referred to in the Government Resolution in respect of absentism of the students beyond 50% or 20% do not call for action of withdrawal of recognition within the ambit of Section 18 of the Act of 2009 or the Rules framed by the State Government in that behalf.

20. The duties of teachers and redressal of grievances is provided under Section 24 of the Act. A teacher is required to perform following duties, namely:-

(a)maintain regularity and punctuality in attending school;

(b)conduct and complete the curriculum in accordance with the provisions of sub-section (2) of section 29;

(c)complete entire curriculum within the specified time;

(d)assess the learning ability of each child and accordingly supplement additional instructions, if any, as required;

(e)hold regular meetings with parents and guardians and apprise them about the regularity in attendance, ability to learn, progress made in learning and any other relevant information about the child, and

(f) perform such other duties as may be prescribed.

21. Sub-section (2) of Section 24 provides that a teacher committing default in performance of duties specified in sub-section (1), shall be liable to disciplinary action under the service rules applicable to him or her, provided that before taking such disciplinary action, reasonable opportunity of being heard shall be afforded to such teacher. Sub-section (3) of Section 24 provides that grievances, if any, of such teacher, shall be redressed in such manner as may be prescribed.

22. Rule 19 of the Rules provides duties to be performed by teachers for the purpose of clause (f) to section 24(1) and those are:

(a)participation in training programmes;

(b)participation in curriculum formulation and development of syllabi, training modules, text book development and development of evaluations;

(c)identification of out of school children within the locality and ensuring their enrollment in the neighbourhood school.

(d)Ensuring attendance of children enrolled in the school.

23. The Grievance Redressal mechanism of teachers for the purposes of Section 24(3) is provided under Rule 20 of the Rules of 2011. Sub-rule (2) thereof provides that the appeals preferred challenging the disciplinary action taken by the management shall be governed by provisions of Sections 8, 9, 10, 11, 12, 13 and 14 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and Rules 39 and 43 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981.

24. Section 4(2) of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, provides that every employee of a private school shall be governed by such Code of Conduct, as may be prescribed. On the violation of any provision of such Code of Conduct, the employee shall be liable to disciplinary action after conducting an enquiry, in such manner as may be prescribed. Sub-section (6) of Section 4 provides that no employee of a private school shall be suspended, dismissed or removed or his services shall not be otherwise terminated or he shall not be reduced in rank by the Management, except in accordance with the provisions of this Act and the rules made in that behalf. Section 8 of the MEPS Act is in respect of constitution of School Tribunals, whereas, right of appeal to Tribunal to employees of private schools is provided under Section 9 of the Act. The employee is entitled to maintain an appeal against order of dismissal or removal or whose services are otherwise terminated or who is reduced in rank by the order passed by the Management or who is superseded by the management while making appointment to any post by promotion.

25. Rule 25A of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, provides for termination of service on account of abolition of posts, whereas, Rule 26 provides for retrenchment on account of abolition of posts and the said rules are as quoted below:

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 derecognition, 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 derecognition 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 derecognition, 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.

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 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 Officer 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 acknowledgement 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 received or additional posts for the same subject are created, the Management shall, by a registered post acknowledgement 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 employee shall communicate to the Management, his address and availability for the job every year before April by a letter sent by registered post acknowledgement due.

(5)The retrenched person who may have been absorbed in other school shall 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 reappointment 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 25A or he is to be retrenched under this rule, the procedure prescribed under rule 25A 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 parttime 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.

26. The classification of penalties is provided under Rule 31, whereas, procedure for imposing minor penalties is provided under Rule 32. Rule 33 provides for procedure for inflicting major penalties. It is to be noted that major penalties include reduction in rank and termination of services. The services of the employee engaged in a private school cannot be terminated or he cannot be reduced in rank without observing procedure prescribed under Rule 33. As referred to above, Rule 25A provides for termination of services on account of abolition of posts. Abolition of posts may be on account of closure of the school due to derecognition. The names of the employees in aided schools, whose services stand terminated in accordance with sub-rule (1) of Rule 25A on account of derecognition and who are not directly responsible for derecognition shall have to be taken on 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 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.

27. As is evident on perusal of Rule 26, a permanent employee of a private school may be retrenched from service by the management after giving him 3 months' notice in the event of, (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. The retrenchment from service shall have to be in accordance with principle of seniority and an order has to be issued with prior approval of the Education Officer or Deputy Director of Education, as the case may be. The Rules further provide that employees from aided schools, whose services are proposed to be retrenched, shall be absorbed by the Education Officer or the Director of Education, as the case may be and such employee is also entitled to continuity as well as for payment of salary until his absorption.

28. In the instant case, a direction has been issued in terms of clause 1.7 of the Government Resolution to terminate services of the teachers straightway where it is noticed that attendance of students in the schools during inspection was found to be less than 50%. The direction issued by the State Government in terms of clause 1.7 is contrary to the provisions of MEPS Act as well as MEPS Rules, referred to above. The services of a teacher can be terminated on account of abolition of posts and such permanent teacher is entitled to claim absorption in terms of sub-rule (2) of Rule 25A, so also in the event of retrenchment on account of abolition of posts, the employee is entitled to be absorbed in other schools operated by the private managements and is also entitled for continuity of service and salary.

29. In the instant matter, however, giving go bye to the provisions of Rules 25A and 26 of the MEPS Rules, as well as Rule 28, a direction has been issued for putting an end to the services of a class of teachers. The directive contained in clause 1.7 of the Government Resolution issued by the Government is, as such, contrary to the provisions of MEPS Act and Rules, so also in contravention of the Central Legislation as well as Rules framed thereunder by the State of Maharashtra.

30. The Bombay Primary Education Act, 1947, is enacted with a view to discharge obligation of the Government to secure the development and expansion of primary education and in furtherance of the policy of universal, free and compulsory primary education. Sections 32 to 35 of the Bombay Primary Education Act provides for duties of the parents to cause their children to attend the school; meaning of reasonable excuse; procedure for issuance of attendance order and penalty for failure to cause child to attend approved school. The relevant provisions are as quoted below:

32 Duty to be charged in area of compulsion:- In every area of compulsion, the parent of every child to whom a scheme applies shall in the absence of a reasonable excuse as hereinafter provided and if such parent and child ordinarily reside in such area cause such child to attend an approved school in such area.

33 Meaning of reasonable excuse:- A Parent shall be deemed to have a reasonable excuse for failure to cause a child to attend an approved school in any of the following cases:-

(a)where the child is prevented from attending school by sickness, informity or other unavoidable cause;

(b)where the child is receiving, otherwise than in an approved school, instruction which in the opinion of the school board [ or Zilla Parishad, as the case may be,] a certificate of having already completed his primary education up to the standard included in the scheme;

(c)where there is no approved school within the distance fixed by the Zilla Parishad or school board under section 13 or 18, as the case may be;

(d)where after due application, entrance to an approved school has been refused to the child and there is not other approved school to which he can be admitted within the distance, fixed under section 13 or 18, as the case may be, until such time as the parent is notified by the Administrative Officer [or [Parishad Education Officer]] that the child can be admitted;

(e)where there is no approved school in the locality in which instruction is given in the language spoken by the child.

(f)where there is no approved school in the locality to which the parent can send the child without exposing him to religious instruction to which the parent object.

34 Issue of attendance order:- (1) Where the [Zilla Parishad or school board] is satisfied that the parent of any child who is bound under the provisions of section 32 to cause such child to attend an approved school has failed to do so, the [Zilla Parishad or, as the case may be the school board] after giving the parent an opportunity of being heard and after such inquiry as it considers necessary may make an order directing the parent to cause such child to attend an approved school on and from the date which shall be specified in the order.

(2)This power may be delegated by the Zilla Parishad to any member of the Education Committee appointed by it or the Parishad Education Officer or any officer of the Zilla Parishad and by the school to any of its members or to the Administrative Officer or other officer of the school board.

(3) Any parent aggrieved by an order made under sub-section (1) may within thirty days from the date of such order, appeal to the Deputy Director of Education of the Division who may confirm or rescind the order as he deems fit.

35 Penalty for failure to cause child to attend approved school - (1) If an order with reference to a child has been made under sub-section (1)of section 34 against any parent and if such parent fails to comply with the provisions of section 32 with respect to such child on or after the date specified in such order, unless such order is rescinded in an appeal made under sub-section (3) of the said section 34, such parent shall, on conviction, be punished with fine not exceeding two rupees; and in case such failure continues after such conviction, he shall also be punished with fine of eight annas for every day on which the failure continues or is repeated.

(2) No court shall take cognizance of an offence under sub-section (1) except on a complaint presented in person or sent by registered post by the Parishad Education Officer or any officer authorized by him in this behalf or, as the case may be by the Administrative Officer, or any other officer authorized by him in this behalf.

31. On consideration of the provisions referred to above, it does appear that it is the duty of the parents of every child, in the absence of reasonable excuse, to ensure attendance of the child in the school. The term 'reasonable excuse' has been defined in Section 33 of the Act. On failure of a parent to perform the obligation prescribed under Section 32 of the Bombay Primary Education Act, 1947, a penalty has been prescribed under Section 35. Thus, it does appear that it is the responsibility of the parents of the child to ensure attendance of their children in the school. The State Government, however, in issuing the Resolution impugned in this petition, proposes to shift the obligation of ensuring attendance of the children in the school, on the teachers and also prescribe penalty on their failure, which is directed to be enforced without extending opportunity of hearing to such teachers and without following procedure prescribed in the relevant Act and the Rules.

32. Section 48 of the Bombay Primary Education Act, 1947, provides that the State Government may appoint such officers including inspecting officers as it may deem necessary for the purposes of superintendence and inspection and generally for the purposes of giving effect to the provisions of this Act. Sub-section (2) provides that the officers appointed under sub-section (1) shall be the servants of the State Government, and their powers and duties shall be such as may be prescribed.

33. The Bombay Primary Education Rules, 1949 and more particularly, Rules 167 to 170 provide for duties of Deputy Educational Inspector, Assistant Deputy Educational Inspector, Assistant Deputy Educational Inspectors for Physical Education; and duties of Craft Supervisors concerning conduct of inspection of schools and other supervisory duties.

34. In the instant matter, prior to issuing impugned Government Resolution, a novel method has been evolved by the State Government of deploying employees of Revenue Department for verifying attendance of the students in the schools under the special drive undertaken by the State. As has been referred to above, the State Government does have powers to appoint officers for the purposes of superintendence and inspection, however, there has to be an authorization in respect of powers and duties in favour of such officers, as may be prescribed. In the instant matter, it does not appear that the special drive conducted by the Revenue officials has been under the orders, as contemplated by Section 48 of the Bombay Primary Education Act, 1947. It would be open for the State Government to cause inspection of the schools through the officers appointed in that behalf excluding officers of the Education Department, however, in terms of sub-section (2) of Section 48, the State shall prescribe powers and duties of such officers. The provisions of Section 48 contemplate an order prescribing powers and duties of the officers appointed for conducting inspection of the schools. In the instant matter, the procedure, as prescribed under Section 48, does not appear to have been followed.

35. In the affidavitinreply presented by Shri Nana U. Raurale, Joint Secretary, School Education and Sports Department, Mantralaya, it is averred in paragraph no.9, as follows:

"9 ....... The State Government suspected that it is quite possible that the number of students in the given school is represented to be more perhaps with the active connivance of the officers in Education Department. Therefore, the responsibility of carrying out survey was cast upon the Officers of the Revenue Department. ......."

36. It is quite surprising that the State Government suspects impartiality and loyalty of its own officers serving in the Education Department. Sweeping allegations have been made against the officers working in the Education Department. It is also not clarified as to what steps are taken by the State Government against erring officers whose integrity is suspected. The functions of the officers of Revenue Department are quite distinct and it cannot be inferred that they are conversant with the functioning of the Education Department. It is also intriguing to note that while doubting integrity of the officers of the Education Department, whether the State Government indirectly proposes to certify integrity and character of all the officers of the Revenue Department. The stand taken by the State Government, in its affidavitinreply, is not at all acceptable and we put on record our displeasure as regards the sweeping allegations made in the affidavitinreply concerning officers functioning in the Education Department.

37. There are instructions issued by the Government in the form of Secondary School Code and the provisions are in the nature of executive instructions. Paragraphs 7.1 to 7.6 relate to withdrawal of recognition, whereas, conditions of service and the matters concerning termination of employees, procedure of enquiry, is as provided in Part II and III. Suffice it to note that the directive contained in clause 1.7 of the Government Resolution is contrary to the provisions of Secondary School Code.

38. Clause 1.2 of the Government Resolution prescribes that 15th July of relevant year shall be the prescribed date for determining strength of the teachers in primary and secondary schools. The directive contained in aforesaid clause is contrary to the provisions of the Act and Rules and this position has not been controverted on behalf of the State Government. The learned Government Pleader, appearing for the State, has brought to our notice a communication issued by the State Government on 24th August, 2012, wherein it has been recorded that the prescribed date for the purposes of determining strength of the teachers in accordance with provisions of the RTE Act of 2009, shall be 30th September of the relevant year. In view of the statement made by the learned Government Pleader, on the basis of communication dated 24.08.2012, clause 1.2 of the Government Resolution does not hold good.

39. Reliance is placed by the petitioners on the judgment in the matter of State of Karnataka & another Vs. B. Suvarna Malini and another, reported in (2001) 1 SCC 728, for the proposition that the Rules framed by the State Government are of legislative character and would have the force as if the State Legislature has framed the Laws. In the instant matter also, the Rules framed by the State Government, namely MEPS Rules as well as Rules framed under the RTE Act of 2009 having been tabled before each House of the State Legislature, shall have the force of law. The Rules are framed in exercise of the powers conferred under the Act and since the requirement for framing of the Rules having been duly fulfilled, the Rules are legislative in character.

40. In the matter of Punjab Water Supply and Sewerage Board Vs. Ranjodh Singh and others, reported in AIR 2007 SC 1082, in paragraph no.10, it is observed thus:

"10 A statutory board is an autonomous body. Nothing has been brought to our notice to show that under the statute any direction issued by the State shall be binding on it. The State may have some control with regard to recruitment of employees of local authorities, but such control must be exercised by the State strictly in terms of the provisions of the Act. The statutory bodies are bound to apply the rules of recruitment laid down under statutory rules. They being 'States' within the meaning of Article 12 of the Constitution of India, are bound to implement the constitutional scheme of equality. Neither the statutory bodies can refuse to fulfil such constitutional duty, nor the State can issue any direction contrary to or inconsistent with the constitutional principles adumbrated under Articles 14 and 16 of the Constitution of India. The purported directions of the State were otherwise bad in law in so far as thereby the statutory rules were sought to be superseded. A circular letter furthermore is not a statutory instrument. It was not even issued by the State in exercise of the power under Article 162 of the Constitution of India. Even a scheme issued under Article 162 of the Constitution of India, would not prevail over statutory rules."

41. The Supreme Court has held that the directives of the State were bad in law insofar as thereby the statutory rules were sought to be superseded. It has further been held that even a scheme framed under Article 162 of the Constitution of India, would not prevail over statutory rules.

42. As has been observed above, in the instant matter, the directives issued under the impugned Government Resolution in clauses 1.2 to 1.7, are contrary to the express provisions of the Act and the Rules framed thereunder. An order, issued against an employee, directing him to retire compulsorily before attaining age of superannuation, has been set aside by the High Court in the matter of Sukanya Apte & another Vs. State of Maharashtra & others, reported in 2007(5) Bom.C.R. 472 : [2007(6) ALL MR 59] and in the matter of Namdeo Bikkad & another Vs. State of Maharashtra (Writ Petition No.1772 of 1997, decided on 14.07.2006), holding that since the provisions of MEPS Act and Rules framed thereunder do not provide for compulsory retirement of an employee, such an order is unsustainable in law. In the instant matter, directives have been issued by the Government under the Government Resolution, which are clearly in contravention of the Act and the Rules.

43. Reliance is placed on the judgment in the matter of Nishad Sadashiv Pawar & others Vs. Dnyanasadhana College & others, reported in 2005(4) ALL MR 101, for the proposition that the Rules are subordinate legislation, whereas, administrative instructions are not. The Government Resolutions issued by the State from time to time, in exercise of administrative powers under Article 162 of the Constitution would be inapplicable to the admissions in schools and Junior Colleges, which are contrary to the provisions of the Act and Rules.

44. Reiterating the view expressed in the matter of A. Umarani Vs. Registrar, Cooperative Societies and others, reported in (2004) 7 SCC 112, the Supreme Court, in the matter of Mahadeo Bhau Khilare (Mane) & others Vs. State of Maharashtra & others, reported in 2007(6) ALL MR 476 (S.C.), has observed that any scheme, by way of a executive instruction in terms of Article 162 of the Constitution of India, if violative of such statutory rules, would not be legally sustainable.

45. The learned Government Pleader, appearing for the State, placing reliance on the judgment of the Supreme Court in the matter of Dhampur Sugar (Kashipur) Ltd. Vs. State of Uttaranchal & others, reported in (2007) 8 SCC 418 : [2007 ALL SCR 2537], has urged that the State must have liberty and freedom in framing policies. Although the discretion is not absolute, unqualified, unfettered or uncanalised and judiciary has control over all executive actions, it is also well established that Courts are illequipped to deal with these matters. It is contended that in the facts and circumstances of these matters, this Court shall refrain from interfering in the decision taken by the State Government.

46. In this context, reference can be made to following observations of the Supreme Court in paragraphs no.67, 68, 69 and 79 of the judgment, in the matter of Dhampur Sugar (Kashipur) Ltd., [2007 ALL SCR 2537] (supra).

"67 Reversing the judgment, this Court observed that the High Court has thoroughly misunderstood the nature of the jurisdiction that was exercised by it.

"9 ... So long as there is no violation of any fundamental rights and if the principles of natural justice are not offended, it was not for the High Court to lay down the policy that should be adopted by the educational authorities in the matter of granting permission for starting schools. The question of policy is essentially for the State and such policy will depend upon an overall assessment and summary of the requirements of residents of a particular locality and other categories of persons for whom it is essential to provide facilities for education. If the overall assessment is arrived at after a proper classification on a reasonable basis, it is not for the courts to interfere with the policy leading up to such assessment." (emphasis supplied)

68 In R.K. Garg Vs. Union of India, constitutional validity of the Special Bearer Bonds (Immunities and Exemptions) Act,1981 was challenged being arbitrary and having no reasonable nexus with the object sought to be achieved. Holding the Act intra vires and constitutional and describing it as a policy legislation, the majority stated: (SCC p.691, para 8)

"8 .... The Court must always remember that 'legislation is directive to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry', 'that exact wisdom and nice adaption of remedy are not always possible' and that 'judgment is largely a prophecy based on meagre and uninterrupted experience'. Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid." (emphasis supplied)

69 In Liberty Oil Mills Vs. Union of India, dealing with the import and export policy following by the Government, this Court observed: (SCC p. 478, para 6)

"6.... The import policy of any country, particularly in a developing country, has necessarily to be tuned to its general economic policy founded upon its constitutional goals, the requirements of its internal and international trade, its agricultural and industrial development plans, its monetary and financial strategies and last but not the least the international political and diplomatic overtones depending on 'friendship, neutrality or hostility with other countries'. There must also be a considerable number of other factors which go into the making of an import policy. Expertise in public and political, national and international economy is necessary before one may engage in the making or in the criticism of an import policy. Obviously courts do not possess the expertise and are consequently incompetent to pass judgment on the appropriateness or the adequacy of a particular import policy." (emphasis supplied)

79 In our opinion, Chagla, C.J. Was right in making the following observations in State of Bombay Vs. Laxmidas Ranchhoddas: (AIR p. 475, para 12).

"12 ...We are not oblivious of the fact that in order that the modern State should function the Government must be armed with very large powers. But the High Court does not interfere with the exercise of those powers. The High Court only interferes when it finds that those powers are not exercised in accordance with the mandate of the legislature. Therefore, far from interfering with the good governance of the State, the Court helps the good governance by constantly reminding Government and its officers that they should act within the four corners of the statute and not contravene any of the conditions laid down as a limitation upon their undoubtedly wide powers. Therefore, even from a practical point of view, even from the point of view of the good governance of the State, we think that the High Court should not be reluctant to issue its prerogative writ whenever it finds that the sovereign legislature has not been obeyed and powers have been assumed which the legislature never conferred upon the executive." (emphasis supplied)

47. As has been observed in the matter of State of Bombay Vs. Laxmidas Ranchhoddas, reported in AIR 1952 Bom 468, the Court helps the good governance by constantly reminding Government and its officers that they should act within the four corners of the statute and not contravene any of the conditions laid down as a limitation upon their undoubtedly wide powers.

48. In the instant matter, as has been concluded by process of reasoning recorded above, that the directives issued by the State Government under the Government Resolution dated 02.05.2012 are found to be contradictory with the provisions of law and the Rules framed thereunder, those are required to be quashed and set aside. At the same time, it is specifically clarified that powers of the State Government to initiate criminal prosecution against the management of the private schools, Head Master, teachers and other employees, is not taken away and in the event, it is found that the private managements or its employees have indulged in the activities which amounts to an offence under the provisions of the Indian Penal Code or any other enactment, it would be open for the State Government to initiate prosecution against such managements and the employees concerned. However, the Managements and the employees cannot be prosecuted and charged with commission of offence merely because during special drive, attendance of the students in the school was found to be less than 50%. The management as well as employees of the schools, if are suspected to be guilty of fabricating the record or indulging in any unlawful activities and are responsible for creating false record to demonstrate inflated strength of students in school with a view to extract inadmissible financial gain, they can be prosecuted by taking recourse to the provisions of the Indian Penal Code.

49. We are of the view that the directives issued by the State Government contained in Government Resolution dated 02.05.2012, issued by the State Government in clauses 1.2, 1.3, 1.4, 1.5, 1.6 and 1.7 needs to be quashed and set aside and are accordingly quashed and set aside.

50. Rule is accordingly made absolute. There shall be no order as to costs. Pending Civil Applications, if any, do not survive and stand disposed of.

Petition allowed.