Bombay High Court
Hazrat Dada Hayat Kalandar Education ... vs The State Of Maharashtra Through ... on 2 August, 2017
Author: Vasanti A Naik
Bench: Vasanti A Naik
WP343-15 & Others 1 Common Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 343/2015
Shamim Azad Education Society,
Giroli, Tq. Manora Dist. Washim,
Through its President
Sk.Abdullah Sk. Amanu,
Aged about 50 years,
R/o Giroli, Tq. Manora, Dist. Washim. PETITIONER
.....VERSUS.....
1. The State of Maharashtra,
through Principal Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2. The Deputy Director of Education,
Amravati Division, Amravati.
3. The Education Officer (Secondary),
Zilla Parishad, Washim.
4. The Education Officer (Primary),
Zilla Parishad, Washim. RESPONDENTS
WRIT PETITION No. 256/2015
Hazrat Dada Hayat Kalandar
Education Society, Mangrulpir,
through its Secretary,
Ab.Waheed Ab.Rashid,
Aged about 38 years, R/o Diwanpura,
Ward No.4, Mangrulpir, Akola.. PETITIONER
.....VERSUS.....
1. The State of Maharashtra,
through Principal Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2. The Deputy Director of Education,
Amravati Division, Amravati.
3. The Education Officer (Secondary),
Zilla Parishad, Washim.
4. The Education Officer (Primary),
Zilla Parishad, Washim.
5. Abdul Gani S/o Sheikh Chotu,
Aged 65 years, R/o Mangrulpir,
Distt.Washim (As per Schedule I)
"Treasurer" of the Trust and later
on elected as Secretary). RESPONDENTS
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WP343-15 & Others 2 Common Judgment
WRIT PETITION No. 348/2015
Rehmaniya Urdu Education Society, Manora,
Tq. Manora Dist. Washim,
Through its President,
Wahidoddin Waziroddin Sheikh,
Aged about 50 years,
R/o Vasant Nagar, Manora, Dist. Washim. PETITIONER
.....VERSUS.....
1. The State of Maharashtra,
through Principal Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2. The Deputy Director of Education,
Amravati Division, Amravati.
3. The Education Officer (Secondary),
Zilla Parishad, Washim.
4. The Education Officer (Primary),
Zilla Parishad, Washim. RESPONDENTS
WRIT PETITION No. 345/2015
Shamim Azad Education Society,
Tq. Manora Dist. Washim,
Through its President
Sk.Abdullah Sk. Amanu,
Aged about 50 years,
R/o Giroli, Tq. Manora, Dist. Washim. PETITIONER
.....VERSUS.....
1. The State of Maharashtra,
through Principal Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2. The Deputy Director of Education,
Amravati Division, Amravati.
3. The Education Officer (Secondary),
Zilla Parishad, Akola.
4. The Education Officer (Primary),
Zilla Parishad, Akola. RESPONDENTS
WRIT PETITION No. 346/2015
National Welfare Society, Washim, Tq. & Dist. Washim,
Through its President Md.Yusuf Md.Nizam,
Aged about 65 years,
R/o Hingoli Road, Near Water Tank,
Washim, Tq. & Dist. Washim. PETITIONER
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.....VERSUS.....
1. The State of Maharashtra,
through Principal Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2. The Deputy Director of Education,
Amravati Division, Amravati.
3. The Education Officer (Secondary),
Zilla Parishad, Washim.
4. The Education Officer (Primary),
Zilla Parishad, Washim. RESPONDENTS
WRIT PETITION No. 347/2015
Shamim Azad Education Society,
Giroli, Tq. Manora Dist. Washim,
Through its President
Sk.Abdullah Sk. Amanu,
Aged about 50 years,
R/o Giroli, Tq. Manora, Dist. Washim. PETITIONER
.....VERSUS.....
1. The State of Maharashtra,
through Principal Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2. The Deputy Director of Education,
Amravati Division, Amravati.
3. The Education Officer (Secondary),
Zilla Parishad, Washim.
4. The Education Officer (Primary),
Zilla Parishad, Washim. RESPONDENTS
WRIT PETITION No. 349/2015
Rehmaniya Urdu Education Society,
Manora, Tq. Manora Dist. Washim,
Through its President
Wahidoddin Waziroddin Sheikh,
Aged about 50 years,
R/o Vasant Nagar, Manora, Dist. Washim. PETITIONER
.....VERSUS.....
1. The State of Maharashtra,
through Principal Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2. The Deputy Director of Education,
Amravati Division, Amravati.
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WP343-15 & Others 4 Common Judgment
3. The Education Officer (Secondary),
Zilla Parishad, Washim.
4. The Education Officer (Primary),
Zilla Parishad, Washim. RESPONDENTS
WRIT PETITION No. 350/2015
Rehmaniya Urdu Education Society,
Manora, Tq. Manora Dist. Washim,
Through its President
Wahidoddin Waziroddin Sheikh,
Aged about 50 years,
R/o Vasant Nagar, Manora, Dist. Washim. PETITIONER
.....VERSUS.....
1. The State of Maharashtra,
through Principal Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2. The Deputy Director of Education,
Amravati Division, Amravati.
3. The Education Officer (Secondary),
Zilla Parishad, Washim.
4. The Education Officer (Primary),
Zilla Parishad, Washim. RESPONDENTS
WRIT PETITION No. 426/2015
Alhilal Alpasankhyak Shikshan Prasarak
Va Samaj Kalyan Sanstha, Risod, Dist. Washim,
Through its Secretary Mohd.Kabir Mohsin Sk.Ahmad,
Aged about 54 years, R/o Mominpura,
Juna Court Road, Risod, Dist. Washim. PETITIONER
.....VERSUS.....
1. The State of Maharashtra,
through Principal Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2. The Deputy Director of Education,
Amravati Division, Amravati.
3. The Education Officer (Primary),
Zilla Parishad, Washim. RESPONDENTS
WRIT PETITION No. 427/2015
Alhilal Alpasankhyak Shikshan Prasarak
Va Samaj Kalyan Sanstha, Risod, Dist. Washim,
Through its Secretary Mohd.Kabir Mohsin Sk.Ahmad,
Aged about 54 years, R/o Mominpura,
Juna Court Road, Risod, Dist. Washim. PETITIONER
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WP343-15 & Others 5 Common Judgment
.....VERSUS.....
1. The State of Maharashtra,
through Principal Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2. The Deputy Director of Education,
Amravati Division, Amravati.
3. The Education Officer (Secondary),
Zilla Parishad, Washim.
4. The Education Officer (Primary),
Zilla Parishad, Washim. RESPONDENTS
WRIT PETITION No. 428/2015
Halima Education Society, Manora,
Dist. Washim, Through its President
Iqbal Suleman, Aged about 47,
R/o C/o Sulemaniya Urdu High School,
Manora, Dist. Washim. PETITIONER
.....VERSUS.....
1. The State of Maharashtra,
through Principal Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2. The Deputy Director of Education,
Amravati Division, Amravati.
3. The Education Officer (Secondary),
Zilla Parishad, Washim.
4. The Education Officer (Primary),
Zilla Parishad, Washim. RESPONDENTS
WRIT PETITION No. 429/2015
Alhuda Education Social Welfare Society,
Chinchambabhar, Dist. Washim,
Through its Secretary,
Mohd.Kabir Mohsin Sk.Ahmad,
Aged about 54 years, R/o Mominpura
Juna Court Road, Risod, Dist. Washim. PETITIONER
.....VERSUS.....
1. The State of Maharashtra,
through Principal Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2. The Deputy Director of Education,
Amravati Division, Amravati.
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WP343-15 & Others 6 Common Judgment
3. The Education Officer (Secondary),
Zilla Parishad, Washim.
4. The Education Officer (Primary),
Zilla Parishad, Washim. RESPONDENTS
WRIT PETITION No. 753/2015
1. Mushtaque Ali S/o Ahmad Ali,
aged about 41 years, Occ: Service,
R/o C/o Janta Shikshan Prasarak
Mandals Urdu Primary School, Pusad,
Tq. Pusad, Dist. Yavatmal.
2. The Janta Shikshan Prasarak Mandals
Urdu Primary School, Pusad,
Tq. Pusad, Dist. Yavatmal,
Through its Head Master. PETITIONERS
.....VERSUS.....
1. The State of Maharashtra,
through Principal Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2. The Deputy Director of Education,
Amravati Division, Amravati.
3. The Education Officer (Primary),
Zilla Parishad, Yavatmal. RESPONDENTS
WRIT PETITION No. 1296/2015
1. Lok Shikshan Mandal, Sarafa Line,
Gandhi Ward, Hinganghat,
Through its Roshan S/o Rajendra Daga,
Aged about 35 years, R/o Hinganghat,
Dist. Wardha.
2. Janta Vidyalaya, Mangrul,
Tq. Samudrapur, Dist. Wardha,
Through its Head Master,
Mr.Michael Francis Joseph.
3. Nilkanth Murar Ghatwai High School,
Wadner, Tq. Hinganghat, Dist. Wardha.
Through its Head Master,
Shri Rajesh S/o Vinayakrao Satpute,
Aged about 49 Years. PETITIONERS
.....VERSUS.....
1. The State of Maharashtra,
through Principal Secretary,
School Education Department,
Mantralaya, Mumbai-32.
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2. The Deputy Director of Education,
Nagpur Division, Nagpur.
3. The Education Officer (Secondary),
Zilla Parishad, Wadha.
4. The Education Officer (Primary),
Zilla Parishad, Wardha. RESPONDENTS
Shri F.T. Mirza and Shri A.I. Sheikh, Counsel for the petitioners.
Shri K.L. Dharmadhikari and Shri I.J. Damle, Assistant Government Pleaders for the
respondent-State.
Shri Ram Karode, Advocate holding for Shri P.C. Madkholkar, counsel for the
respondent no.5 in Writ Petition No.256/2015.
CORAM :SMT.VASANTI A NAIK AND
A.D. UPADHYE, JJ.
DATE : 2 ND AUGUST, 2017.
ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)
Since the issue involved in these writ petitions is identical and since similar orders of the Education Officer (Secondary) are challenged therein, they are heard together and are decided by this common judgment.
2. By these writ petitions, the petitioners-minority institutions have challenged the orders of the Education Officer (Secondary) pertaining to staff justification for the year 2014-15 as also the orders of the Education Officer asking the petitioners to remove the shikshan sevaks that had not completed the tenure of three years if the teachers or the non-teaching staff in the petitioner-institutions are declared as excess in pursuance of the staff justification. According to the petitioners, the Education officers were not entitled to make the staff justification for the year 2014-15 as per the provisions of the Right to Education Act, 2009. ::: Uploaded on - 07/08/2017 ::: Downloaded on - 08/08/2017 02:30:28 :::
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3. The only submission made by the learned counsel for the petitioners for challenging the impugned orders of the Education Officer is that the staff justification is made under the provisions of the Right To Education Act though the Constitution Bench judgment of the Hon'ble Supreme Court in the case of Pramati Education and Cultural Trust and others Versus Union of India and others, reported in 2014(7) Scale 306, the Hon'ble Supreme Court had held that the Right to Education Act 2009, insofar as it is made applicable to minority schools referred in Clause (1) of Article 30 of the Constitution of India is ultra vires the Constitution. It is submitted that as the Hon'ble Supreme Court has declared that the Act of 2009 would not be applicable to minority schools, it would not be permissible for the Education Officer to make the staff justification as per the provisions of the Right to Education Act and ask the petitioners to remove the shikshan sevaks that had not completed three years of service if any member of the non-teaching or teaching staff has been declared surplus as per the staff justification. The petitioners have taken exception to the use of the words 'Right to Education Act, 2009' in the communication dated 01.08.2014 in Writ Petition No.343 of 2015, which is similar to the communication issued by the Education Officers in the cases of most of the petitioners. It is submitted that the petitioners cannot be forced to remove the teachers and the non-teaching ::: Uploaded on - 07/08/2017 ::: Downloaded on - 08/08/2017 02:30:28 ::: WP343-15 & Others 9 Common Judgment staff from their institutions after they are declared excess as this would destroy the minority character of the schools.
4. The learned Assistant Government Pleaders appearing for the Education Officers have supported the orders. It is submitted that there is nothing in the staff justification for the year 2014-15 that is challenged by the petitioners in these petitions, to show that the said is made in pursuance of the provisions of the Right To Education Act, 2009. It is submitted that though a mention is made in the other communications to the Right to Education Act, 2009, it is apparent from a reading of the communications that the Secondary School Code, the Rules, the Regulations, the Government Resolutions and other documents were considered by the Education Officer while directing the petitioners to act as per staff justification for the year 2014-15 and if any teacher or a member of the non-teaching staff is declared excess, to remove the shikshan sevak who has not completed three years of service. It is submitted that since the petitioner-minority institutions are receiving grant-in-aid from the State Government, it would not be permissible for the petitioner-institutions to decide how many employees could be employed in their institutions. It is submitted that in most of the writ petitions, there is no reduction in the strength of the teaching and the non-teaching staff in the staff justification for the year 2014-15 and the ::: Uploaded on - 07/08/2017 ::: Downloaded on - 08/08/2017 02:30:28 ::: WP343-15 & Others 10 Common Judgment staff justification of the year 2014-15 is like the staff justification for the year 2013-14. It is submitted that the petitioners had not raised any objection to the staff justification for the years 2012-13 & 2013-14 and had abided by the same and there is no reason for the petitioners to challenge the staff justification for the year 2014-15 when the same is almost identical to the staff justification for the year 2013-14. It is submitted that though it is held in the case of Pramati Education and Cultural Trust (Supra) that the Right to Education Act, 2009 would not apply to the minority schools, since the Education Officers have not applied the Right to Education Act by itself and have referred to the Secondary School Code, the Rules and Regulations, the Government Resolutions and Circulars and other documents while making the staff justification, there is no merit in the challenge raised by the petitioners to the impugned orders. The learned Assistant Government Pleaders sought for the dismissal of the writ petitions.
5. Admittedly, all the petitioners are the minority institutions receiving 100% grant-in-aid from the State Government. This would mean that the staff working in the petitioner-minority institutions is receiving the salary grants from the government exchequer. Merely because the petitioners are the minority institutions, it would not be for them to decide as to how many employees should be appointed by them. ::: Uploaded on - 07/08/2017 ::: Downloaded on - 08/08/2017 02:30:28 :::
WP343-15 & Others 11 Common Judgment Merely because the minority institutions are protected under Article 30(1) of the Constitution of India, it would not be for them to decide the strength of the teachers and non-teaching staff. A minority institution which does not receive the grant-in-aid from the government is free to appoint as many teachers and non-teaching staff as it likes, as it would be for that minority institution to shell out the salaries and the other monetary benefits meant for the teaching and the non-teaching staff from their own funds. Since the petitioners are receiving 100% grant-in-aid from the State Government, the State Government would be free to pass appropriate orders in respect of staff justification in the minority schools, in accordance with law. The minority character of the minority institutions cannot be destroyed or diminished if the State suitably decides the number of the employees that could be employed in the minority institutions on the basis of the student - teacher ratio. It cannot be said that because the minority institutions have a special constitutional right to establish and administer the educational institutions of their choice, they could employ as many teachers and non-teaching employees as they like, though they receive the grant-in-aid for paying the salaries of the teaching and non-teaching employees from the State Government. The State can impose some appropriate regulatory measures for deciding the number of the employees that could be employed in a minority institution that receives grant-in-aid from the government considering the student - ::: Uploaded on - 07/08/2017 ::: Downloaded on - 08/08/2017 02:30:28 :::
WP343-15 & Others 12 Common Judgment teacher ratio. In the case of Pramati Education and Cultural Trust (supra), the Hon'ble Supreme Court was considering whether it would be obligatory for the minority institutions, in view of the provisions of the Right to Education Act 2009 to admit children belonging to the weaker sections and disadvantaged groups who need not be the members of the minority community which had established the schools. The Hon'ble Supreme Court held that the minority institutions cannot be forced to admit children belonging to the weaker sections and the disadvantaged groups in the neighbourhood, under the provisions of the Right to Education Act, 2009. After holding so, the Supreme Court held that the Act of 2009 cannot be made applicable to the minority schools. In these cases, we have noted that the staff justification does not refer to the provisions of the Right to Education Act and the other impugned orders that direct the petitioners to terminate the services of the shikshan sevaks, that had not completed three years of service if the teachers or the other employees in the school have been declared surplus, refer not only to the Right to Education Act, 2009 but the Secondary School Code, Rules and Regulations, Government Resolutions, Circulars, minutes of some meetings and other documents. We do not, therefore, find anything wrong in the staff justification orders on the basis of the only submission made on behalf of the petitioners. If some of the petitioners are aggrieved by the staff justification orders pertaining to their schools, ::: Uploaded on - 07/08/2017 ::: Downloaded on - 08/08/2017 02:30:28 ::: WP343-15 & Others 13 Common Judgment which may require the petitioners to declare some staff as surplus and which according to the petitioners is wrongful, it would be permissible for the petitioners to make individual grievance in that regard to the Education Officers by placing the entire data pertaining to the student - teacher ratio before them.
As we are not inclined to uphold the only submission made on behalf of the petitioners for challenging the impugned orders, the writ petitions are dismissed with no order as to costs.
JUDGE JUDGE
APTE
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