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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12388 OF 2022
Miss Tehasin Shabbir Ahamad Inamdar
Age 36. Occu Service R/o Block NO. 12, Lokhandwala Paradise Near
Modi Massid District Solapur …..Petitioner
Vs.
JUDGMENT
1. The State of Maharashtra Through its Secretary Department of Education (Secondary & High S) Mantralaya, Mumbai.
2. The Deputy Director Secondary & H.S. Pune Region Pune:- 411005.
3. Educational Officer [Primary] Solapur Zilla Parishad, Solapur
4. Union Education Society, A registered Public Trust Through its President/secretary at 141/A Siddheshwar Peth Solapur
5. Union Education Society’s Primary School. Through its Head Master R/o at Siddheshwar Peth Solapur
6. The Administrative Officer. Municipal Corporation, Primary Shikshan Mandal, Solapur....Respondents Mr. Ajay Joshi for the Petitioner. Mr. Akil Kapade for the Respondent No.4 and 5. Ms. D. S. Deshmukh, AGP for the State. CORAM: RAVINDRA V. GHUGE & ASHWIN D. BHOBE, JJ.
RESERVED ON:- 30th JANUARY, 2025 PRONOUNCED ON:- 26th FEBRUARY, 2025 P.C.:-
1. Rule. Rule made returnable forthwith by consent of the parties.
2. By the present petition, the Petitioner assails the order dated 26.05.2017, passed by the Respondent No.3, refusing to grant approval to the proposal dated 17.05.2017, submitted by the Respondent No.5 seeking approval to the appointment of the Petitioner as a Shikshan Sevak (“Impugned order”) Factual Matrix:a) Respondent No.4 is a Minority Educational Institution managing and running the Respondent No.5 School, which receives 100% aid from the State of Maharashtra. Reliance is placed on Section 3(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (MEPS Act). b) Petitioner has completed HSC in the year 2004 and completed D.Ed. in the year 2008. Petitioner has also completed the course of MS-CIT. c) Public advertisement was issued by the Respondent No.4 inviting applications from eligible candidates to fill up a vacant, sanctioned and permanent posts of Shikshan Sevak Respondent No.5 School. The said vacancy arose upon retirement of Mr. Naushad
3. Though the Respondents are served, they have chosen not to file any replies. Submissions:-
4. Mr. Ajay Joshi, learned Advocate for the Petitioner has raised the following arguments:a) The Respondent No.4 is a Minority Educational Institution and, therefore, it is the prerogative of the Respondent No.4 to fill up the said post. b) That the ban on recruitment as per Government Resolution dated 02.05.2012 is in relation to surplus teachers and ban imposed on recruitment of teachers till 100% absorption of surplus teachers, would not be applicable to the Respondent Nos. 4 and 5. c) By relying on the document at Exhibit-E i.e. a chart, it is submitted that vacancies were available in the Respondent No.5 School. Similarly, reliance is placed on a chart at Exhibit-L to contend that the Respondent No.5 has absorbed a total number of 6 teachers who were declared as surplus and send by Respondent No.3 by absorption. d) Petitioner has been appointed on a post which was vacant, a permanent post and a post sanctioned as per the staffing pattern. Vacancy in the said post arose on account of retirement of the incumbent teacher Mr. Naushad M. Hussen Imadar who retired on 31.01.2013. Petitioner has been appointed after a through selection process. e) Ms. D. S. Deshmukh, learned AGP appearing for the State/Respondents, supports the reasons given in the Impugned order for rejection of the proposal dated 17.05.2017. f) From the rival contentions, the question for determination is whether the Respondent No.3 was right in rejecting the proposal dated 17.05.2017 submitted by the Respondent No.4 seeking approval of the Petitioner’s appointment as Shikshan Sevak? Analysis:-
5. The Impugned order rejected the proposal dated 17.05.2017 submitted by the Respondent No.4 on the ground that surplus teachers are available and until and unless such surplus teachers are absorbed, the proposal cannot be considered and therefore, rejected. A perusal of the Impugned order would indicate that the Respondent No.3 has neither considered the Respondent No.4 being a Minority Educational Institution nor does the Impugned order deals with the right of the Minority Educational Institution to fill up vacancies in such institution.
6. The Respondent No.3 in the Impugned order has made reference to the order of this court in the case of Vasant Shikshan Prasarak Mandal Through its President and Ors. Vs. The state of Maharashtra and Ors. 1. In the said case, this Court was considering a challenge to the order of refusal of approval dated 06.08.2016 passed by the Educational Officer holding that as 172 surplus teachers in Latur Zilla Parishad are yet to be absorbed and since, the Petitioner is recruiting new candidates thereby, truncating the right of surplus teachers, approval to the appointment of the Petitioner therein could not be granted. It is in the said context that this Court held that the Managements in the said case who were Petitioners, could not be ignored important provisions of MEPS Act by not complying with the mandate of absorbing surplus teachers and by appointing fresh teachers. This Court after considering provisions of Section 5 (1) and the proviso, has held that the Management are under a mandate to ascertain from the Education Officer whether there are suitable candidates available in the surplus list maintained by the Education Department before filling up the vacancies. The said decision does
7. In the instant case, Respondent No.4 is a Minority Educational Institution, as such it would be the prerogative of such institution to fill up the post.
8. In the case of Sindhi Education Society and Anr. Vs. Chief Secretary Government of NCT of Delhi and Ors.2, the Hon’ble Supreme Court in paragraph No.63 has observed as follows:- “63. The Court considered the question whether the appointment of teachers in an aided institution by the College Service Commission by restricting the petitioner’s right to appointment is a reasonable restriction. After following the law stated in T.M.A. Pai’s case, the court held as under: (Brahmo Samaj Education Society Case SCC pp 227 & 229, para 6-8)
9. In the case of St. Francis De Sales Education Society v. State of Maharashtra, (2001) 3 Mah L.J. 261 in paragraph No.36 held as under: “36. In our judgment, the petitioner, being a minority institution, cannot be directed to appoint teachers or other staff on the basis of the reservation policy followed by the State as evidenced in rules 9(7) to 9(10), of the Maharashtra Employees of Private Schools (Conditions of Services) Rules,
1981. We therefore hold that the said rules 9(7) to 9(10), if applied to the petitioner, would violate the fundamental right guaranteed to the petitioner as a minority institution under Article 30(1). Hence, we allow the writ petition.”
10. In the case of Pramati Education & Cultural Trust v. Union of India[3] in paragraph No.46 has observed as under:- “…. In our view, if the 2009 Act is made applicable to minority schools, aided or unaided, the right of the minorities under Article 30(1) of the Constitution will be abrogated. Therefore, the 2009 Act in so far it is made applicable to minority schools referred to in clause (1) of Article 30 of the Constitution is ultra vires the Constitution. We are thus of the view that the minority judgment of this Court in Society for Unaided Private Schools of Rajasthan v. Union of India and Anr. (supra) insofar as it holds that the 2009 Act is applicable to aided minority schools is not correct.”
11. The Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1977 (MEPS Act), regulates the recruitment and conditions of service of employees in certain private schools in the State of Maharashtra. Section 3 of MEPS would be relevant for the subject matter of this petition and as such is transcribed herein under:-
“Application of the Act (1) The provisions of this Act shall apply to all private schools in the State of Maharashtra, whether receiving any grant-in-aid from the State Government or not.
2) Notwithstanding anything contained in subsection (1), the provisions of this Act shall not apply to the recruitment[1] [of the Head of a minority school and] any other persons (not exceeding three) who are employed in such school and whose names are notified by the Management to[2] [the Director or, as the case may be,] the Deputy Director for this purpose.”
12. With reference to the contention of the Petitioner that the provisions of Sub-section of Section 3 of MEPS Act, we find that though the Minority Educational Institution would have absolute autonomy for filling up post, however, the same are capped at three posts and a Head Master.
13. Government Resolution dated 02.05.2012 referred to in the Impugned order is again be in relation to surplus teachers and the ban imposed on fresh recruitment of Assistant Teachers till 100% absorption of surplus teachers. For the reasons recorded herein above, the ban on recruitment would be unsustainable qua the Respondent No.4, a Minority Educational Institution.
14. The Respondent No.3 has not dealt and/or consider the status of the Respondent No.4 as a Minority Educational Institution while considering the proposal dated 17.05.2017. Similarly, the Respondent No.3 has not considered the applicability of provisions of Section 3(2) of the MEPS Act.
15. In the facts and circumstances of the present case, we find that the reasons given by the Respondent No.3 for rejecting the proposal dated 17.05.2017 are erroneous and untenable in law and are required to be set aside.
16. Consequently, we partly allow the Writ Petition by setting aside the Impugned order dated 26.05.2017 passed by the Respondent No.3 and further direct the Respondent No.3 to reconsider the proposal dated 17.05.2017 for grant of approval to the appointment of the Petitioner, afresh and the same shall not be rejected on the ground of imposition of ban and absorption of surplus teachers. Such exercise be undertaken within a period of four weeks from today.
17. The Writ Petition is partly allowed in above said terms.
18. Rule is made partly absolute, accordingly. There shall be no orders as to cost. (ASHWIN D. BHOBE, J.) (RAVINDRA V. GHUGE, J.)