Bombay High Court
Stree Shikshan Prasarak Mandal, Nagpur ... vs The State Of Maha. Thr. Secretary, ... on 21 November, 2018
Author: R.K. Deshpande
Bench: R.K. Deshpande, Vinay Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.5059 OF 2017
With
WRIT PETITION NO.3078 OF 2018
With
WRIT PETITION NO.4684 OF 2017
WRIT PETITION NO.5059 OF 2017
1. Stree Shikshan Prasarak Mandal,
Nagpur, through its Secretary
Mrs. Meera Satish Chafekar,
Aged 62 years,
having office at Mahila Mahavidyalaya,
Nagpur.
2. Shri Gajanan Bahu-Uddeshiya Shikshan
Sanstha, Nagpur, through its
Secretary Ramesh Krishnarao Borkar,
Aged 70 years, having office at
New Subhedar Layour, Nagpur.
3. The Education Society,
Yeotmal, through its President
Diwakar Balwant Pande,
Aged 77 years,
Office at 30, Shri Balaji Society,
Yeotmal.
4. Pratap Shikshan Mandal,
Babhulgaon,
through its Secretary
Suhas Haribhau Deshmukh,
Aged 54 years,
R/o Shinde Plots, Tilak Wadi,
Yeotmal.
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5. The Samarth Institute of Education,
Achalpur, through its Secretary
Shripad Krishnarao Tare,
Aged 45 years,
Office at Vyankatesh Vidyalaya,
Achalpur City,
Dist. Amravati.
6. Gondwana Shikshan Prasarak Mandal,
Chandrapur, through its Secretary
Suryakant Bhagwantrao Khanke,
Aged 57 years,
Office at Matoshri Vidyalaya,
Tukum, Dist. Chandrapur.
7. Keshavnagar Sanskritik Sabha,
Nagpur, through its Secretary
Prakash Chintaman Deshpande,
Aged 70 years,
Office at Keshavgagar High School,
Nagpur.
8. Chanda Shikshan Prasarak Mandal,
Chandrapur, through its Secretary
Ashok Shrihari Jiwtode,
Aged 57 years,
Office at Janta Vidyalaya,
Chandrapur.
9. Somalwar Academy Education Society,
Nagpur, through its Secretary
Prakash Purushottam Somalwar,
Aged 65 years,
Office at Somalwar High School,
Ramdaspeth, Nagpur.
10. Shri Sai Education Society,
Nagpur, through its Secretary
Dnyaneshwar Krishnaji Pohane,
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Aged 77 years,
Office at 43, Vishwakarma Nagar,
Nagpur.
11. New English High School Association,
Nagpur, through its Secretary
Ajay Diwakar Dhakras,
Aged 50 years,
Office at New English High School,
Mahal, Nagpur.
12. Pune Sewasadan Society, Nagpur,
through its Secretary, Indumala
Narendra Mukkewar,
Aged 80 years,
Office at Sewasadan High School,
Sitabuldi, Nagpur.
13. Bhartiya Shikshan Mandal,
Nagpur, through its President,
Sanjay Manoharrao Shirpurkar,
Aged 60 years,
Office at Pt. Baccharaj Vyas Vidyalaya,
Medical Square, Nagpur.
14. Bhide Girls Education Society,
Nagpur, through its Secretary,
Vivek Purushottam Sontakke,
Aged 52 years,
Office at Bhide Girls High School,
Sitabuldi, Nagpur.
15. Late Yashodabai Gudadhe Education
Society, through its Secretary,
Atul Vinod Gudadhe Patil,
Aged 40 years,
Office at 51/C, Trimurti Nagar,
Ring Road, Nagpur.
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16. Jaibharat Mahila Sewa Sanstha,
Nagpur, through its Secretary
Meena Vishwanath Bhandarkar,
Aged 53 years,
Office at Ujwal Vidyalaya,
Mire Layout, Nagpur.
17. Sushant Shikshan Sanskar Sanstha,
Bhilewada, Dist. Bhandara,
through its Secretary,
Bhaiyalal Asaramji Goswami,
Aged 62 years,
R/o Z.P. Chowk, Bhandara.
18. Ravidra Education Society,
Palandur, Dist. Bhandara,
through its Secretary
Pramod Shrawanji Kanhekar,
Aged 53 years,
C/o Manohar Vidyalaya,
Gurtha, Tal. Lakhani,
Dist. Bhandara.
19. Maharashtra Rajya Shikshan
Sanstha Maha Mandal, Nagpur
and Amravati Divisions,
through its Joint Secretary and
Co-ordinator of Legal Cell
Ravindra Dinkar Fadnavis,
Aged 61 years,
R/o Ayodhya Nagar, Nagpur. ... Petitioners
Versus
1. The State of Maharashtra,
through its Secretary,
Department of School Education
and Sports,
Mantralaya,
Mumbai-400032.
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2. The Director of Secondary and
Higher Secondary Education,
State of Maharashtra,
Central Building,
Pune-01.
3. The Director of Primary Education,
State of Maharashtra,
Central Building,
Pune-1.
4. The Deputy Director of Education,
State of Maharashtra, Nagpur Division,
Nagpur.
5. The Deputy Director of Education,
State of Maharashtra,
Amravati Division,
Amravati. ... Respondents
WRIT PETITION NO.3078 OF 2018
Rashtra Vikas Shikshan Sanstha,
Khapa, through its President
ravindra S. Sonkusare,
Aged about 50 years,
Occupation - Agriculturist,
R/o New Vasti, Near Khapa
Police Station, Khapa,
Post Khapa, Tah. Saoner,
Distt. Nagpur. ... Petitioner
Versus
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1. State of Maharashtra,
through Secretary to Ministry
of School Education & Sports,
Mantralaya, Mumbai-400032.
2. Director of Education
(Secondary & Higher Secondary),
Maharashtra State,
Pune.
3. Deputy Director of Education,
Nagpur Division, Nagpur.
4. Education Officer (Secondary),
Zilla Parishad, Nagpur. ... Respondents
WRIT PETITION NO.4684 OF 2017
Buldana Zilla Shikshan Sanstha
Chalak Mandal,
through its Secretary,
Madhukar Amruta Patil,
Aged about 63 years,
R/o Buldana,
Tq. & Distt. Buldana. ... Petitioner
Versus
1. State of Maharashtra,
through Secretary to Ministry of
School Education & Sports,
Mantralaya, Mumbai-32.
2. Director of Education (Secondary &
Higher Secondary),
Maharashtra State, Pune.
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3. Director of Education (Primary),
Maharashtra State, Pune.
4. Deputy Director of Education,
Amravati Division, Amravati.
5. Education Officer (Secondary),
Zilla Parishad, Buldana.
6. Education Officer (Primary),
Zilla Parishad, Buldana. ... Respondents
In Writ Petition No.5059 of 2017 :
Shri B.G. Kulkarni, Advocate for Petitioners.
Shri Ram Apte, Senior Advocate (as a Special Counsel
appointed by the State Government), assisted by Ms Anjali
Helekar, Advocate, for State/Respondent Nos.1 to 5.
Shri Ravi R. Gour, Advocate for Intervenors.
In Writ Petition No.3078 of 2018 :
Shri S.R. Deshpande, Advocate for Petitioners.
Shri Ram Apte, Senior Advocate (as a Special Counsel
appointed by the State Government), assisted by Ms Anjali
Helekar, Advocate, for State/Respondent Nos.1 to 4.
In Writ Petition No.4684 of 2017 :
Shri R.L. Khapre, Advocate for Petitioner.
Shri Ram Apte, Senior Advocate (as a Special Counsel
appointed by the State Government), assisted by Ms Anjali
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Helekar, Advocate, for State/Respondent Nos.1 to 5.
Shri Amol B. Patil and Ms Prajakta Abasaheb Gode, Advocates
for Intervenors.
CORAM : R.K. DESHPANDE & VINAY JOSHI, JJ.
DATE OF RESERVING THE JUDGMENT : 25 October, 2018
th
DATE OF PRONOUNCING THE JUDGMENT : 21 November, 2018
st
JUDGMENT (Per R.K. DESHPANDE, J.) :
1. All these petitions are filed by the Managements of the private schools receiving grant-in-aid, either partially or completely, from the State Government challenging Clause 5 of the notification dated 22-6-2017 by which sub-rules (2A) and (2B) are introduced under Rule 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981 as violative of the fundamental right to carry on the occupation of Education, as guaranteed by Article 19(1)(g) of the Constitution of India, to the extent it encroaches upon the autonomy and priviledge of the Management to select and appoint the teachers in the school. The challenge is also to Clause 3.6 in Para 3 of the Government Resolution dated 23-6-2017, which binds the Management to make ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:45 ::: 9 wp5059.17 and connected petitions.odt the appointments to the teaching posts in order of merit from the list prepared of the candidates successful in the Eligibility and/or Aptitude test conducted by the State Government.
2. The recruitment and the terms and conditions of service of the teaching as well as non-teaching employees working in private aided or non-aided schools in the State of Maharashtra are governed by the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 ("MEPS Act"), brought into force with effect from 15-7-1981, along with the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981 ("MEPS Rules"), framed in exercise of rule-making power conferred by Section 4(1) read with Section 16 of the MEPS Act.
3. Section 4 of the MEPS Act deals with the terms and conditions of service of employees of private schools. Sub-section (1) therein empowers the State Government to make rules providing for the minimum qualification for recruitment (including its procedure), duties, pay, allowances, post-retirement ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:45 ::: 10 wp5059.17 and connected petitions.odt and other benefits, and other conditions of service of employees of private schools and for reservation of adequate number of posts for members of backward classes. In terms of sub-section (2), every employee of a private school shall be governed by such Code of Conduct as may be prescribed, and on the violation of any provision of it, the employee becomes liable to disciplinary action after conducting an enquiry in such manner as may be prescribed. Sub-section (6) therein mandates 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 the Act and the rules made in that behalf.
4. Section 5 of the MEPS Act deals with certain obligations of Management of private schools, and it is reproduced below :
"5. Certain obligations of Management of private schools.
(1) The Management shall, as soon as possible, fill in, in the manner prescribed every permanent vacancy in a private school by the appointment of a person duly qualified to fill ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:45 ::: 11 wp5059.17 and connected petitions.odt such vacancy:
Provided that unless such vacancy is to be filled in by promotion, the management shall, before proceeding to fill such vacancy, ascertain from the Educational Inspector, Greater Bombay, the Education Officer, Zilla Parishad or, as the case may be, the Director or the officer designated by the Director in respect of schools imparting technical, vocational, art or special education, whether there is any suitable person available on the list of surplus persons maintained by him, for absorption in other schools; and in the event of such person being available, the Management shall appoint that person in such vacancy.
(2) Every person appointed to fill a permanent vacancy except Assistant Teacher (Probationary) shall be on probation for a period of two years. Subject to the provisions of sub-sections (4) and (5), he shall on completion of this probation period of two years, be deemed to have been confirmed.
Provided that, every person appointed as Assistant Teacher (Probationary) shall be on probation for a period of three years.
(2A) Subject to the provisions of sub-sections (3) and (4), Assistant Teacher (Probationary) shall, on completion of the ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:45 ::: 12 wp5059.17 and connected petitions.odt probation period of three years, be deemed to have been appointed and confirmed as a teacher.
(3) If in the opinion of the Management, the work or behaviour of any probationer, during the period of his probation, is not satisfactory, the Management may terminate his services at any time during the said period after giving him one month's notice or salary or honorarium of one month in lieu of notice.
(4) If the services of any probationer are terminated under sub-section (3) and he is reappointed by the Management in the same school or any other school belonging to it within a period of one year from the date on which his services were terminated, then the period of probation undergone by him previously shall be taken into consideration in calculating the required period of probation for the purposes of sub-section (2).
(4A) Nothing in sub-section (2), (3) or (4) shall apply to a person appointed to fill a permanent vacancy by promotion or by absorption as provided under the proviso to sub-section (1).
(5) The Management may fill in every temporary vacancy by appointing a person duly qualified to fill such vacancy. ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 13
wp5059.17 and connected petitions.odt The order of appointment shall be drawn up in the form prescribed in that behalf, and shall state the period of appointment of such person."
In terms of sub-section (1), it is the statutory obligation of the Management to fill in every permanent vacancy in a private school by the appointment of a person duly qualified, in the manner prescribed to fill such vacancy. Every person appointed to fill a permanent vacancy has to be on probation for a period of two years in terms of sub-section (2), and on completion of his probation period of two years, he shall be deemed to have been confirmed in the post subject to the provisions contained in sub- sections (4) and (5). Sub-section (3) empowers the Management of a private school to terminate the services of any employee whose work or behaviour during the period of probation is not found to be satisfactory.
5. Section 9 of the MEPS Act deals with the right of appeal to the Tribunal to the employees of a private school against the order of dismissal, removal, otherwise termination, reduction in rank or supersession in the matter of promotion. The Tribunal ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 14 wp5059.17 and connected petitions.odt constituted under Section 8 of the MEPS Act is empowered under Section 11 to adjudicate upon such dispute as shall be raised in the appeal and to pass appropriate orders as are provided under sub-section (2) of Section 11, which binds the employees as well as the Management.
6. Section 16 of the MEPS Act deals with the rules, and the State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of the said Act in terms of sub-section (1). Sub-section (2) therein provides the matters, in respect of which, the State Government is empowered to frame rules, and sub-clause (a) therein deals with the minimum qualifications for recruitment of employees of private schools (including its procedure). This is the entire scheme of the Act.
7. Rule 6 of the MEPS Rules deals with the qualifications of teachers and non-teaching staff, which is reproduced below :
"6. Qualifications of teachers and non-teaching staff.--
(1) The minimum qualifications for the posts of teachers ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 15 wp5059.17 and connected petitions.odt and the non-teaching staff in the primary schools, secondary schools, higher secondary schools, junior colleges and junior colleges of education shall be as specified in Schedule 'B'.
(2) The Government or the agency authorized by the Government shall conduct the Eligibility Test and Aptitude Test for the appointments of the teachers or shikshan sevaks for standard I to VIII and Aptitude Test for the appointments of the teachers or shikshan sevaks for standard IX to XII in the private aided schools, partially aided schools and schools eligible for grant-in-aid, from time to time.
(3) For the appointment of teachers for standard I to VIII, the candidate who has passed the Eligibility Test shall be eligible to appear for Aptitude Test.
(4) The candidate can appear five times for the Aptitude Test for betterment of marks within the age limit prescribed for the post.
(5) The marks obtained in the Aptitude Test shall be valid up to the age limit prescribed for the post including relaxation in age limit for the candidates belonging to the Specific Category.::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 16
wp5059.17 and connected petitions.odt (6) The Government shall specify the syllabus and provide the procedure to be followed for conducting the Eligibility Test and Aptitude Test, from time to time."
The provision of sub-rule (1) above prescribing minimum qualifications for appointment to the posts of teachers, was existing since beginning, but the provisions of sub-rules (2) to (6) prescribing the qualifications of passing of Eligibility and Aptitude Tests for appointments to the posts of teachers, are introduced by the notification dated 22-6-2017, impugned in all these petitions.
8. The definitions of "Aptitude Test" and "Eligibility Test"
are given in Rules 2(b-1) and 2(e-1) of the MEPS Rules, which are reproduced below :
" Rule 2(b-1) :
"Aptitude Test" means the test conducted by the Government or the agency authorised by the Government for appointment of teachers in the aided schools."::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 17
wp5059.17 and connected petitions.odt "Rule 2(e-1) :
"Eligibility Test" means the test conducted by the State Government or the Central Government or the agency authorised by the State Government or the Central Government, for candidates to be eligible to appear for the Aptitude Test."
The aforesaid tests are required to be conducted by the State Government or Central Government or the agency authorised by such Government.
9. Thus, in addition to the minimum qualifications prescribed for appointments to the posts of teachers and non- teaching staff in the primary schools, secondary schools, higher secondary schools, junior colleges and junior colleges of education, as are specified in Schedule "B", the success in the Eligibility Test and Aptitude Test conducted by the Central or State Government or the agency authorized by such Government has been made compulsory for the appointments of the teachers or shikshan sevaks for standard I to VIII, and only the aptitude test for the appointments of the teachers or shikshan sevaks for standard IX to XII in the private aided schools, partially aided schools and schools ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 18 wp5059.17 and connected petitions.odt eligible for grant-in-aid, from time to time. For the appointment of the teachers for standard I to VIII, only the candidate who has passed the Eligibility Test is held to be eligible for appearing for the Aptitude Test.
10. The appointment of staff is governed by Rule 9 under the MEPS Rules, and the provisions of sub-rules (1) to (3) being relevant, are reproduced below :
"9. Appointment of staff.
(1) The teaching staff of the school shall be adequate having regard to the number of classes in the school and the curriculum including alternative courses provided and the optional subjects taught therein.
(2) Appointments of teaching staff (other than the Head and Assistant Head) and those of non-teaching staff in a school shall be made by the School Committee:
Provided that, appointments in leave vacancies of a short duration not exceeding three months, may be made by the Head, if so autorised by the School Committee.::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 19
wp5059.17 and connected petitions.odt (2A) The management of the private school shall advertise the vacancies for the post of teacher in details of subjects, with Bindunamavali on the online software programme developed by the Government or an agency authorized by the Government in at least one local newspaper having wide circulation in the region, and also notify the vacancies to the Employment Exchange Centre of the District and District Social Welfare Officer.
(2B) The said advertisement shall be kept open for at least fifteen days before filling of the concerned post. A candidate can apply for vacant post in response to the said advertisement through online process or by an application in writing giving full details regarding name, address, date of birth, educational and professional qualifications, experience, etc., with the marks secured in the Aptitude Test. After completion of the period mentioned in the advertisement, the School Committee shall publish the merit list within five working days and select the candidate according to the merit list.
(3) Unless otherwise provided in these rules for every appointment to be made in a school for a non-teaching post, the candidates eligible for appointment and desirous of applying for such post shall make an application in writing giving full details regarding name, address, date of birth, ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 20 wp5059.17 and connected petitions.odt educational and professional qualifications, experience, etc., attaching true copies of the original certificates. It shall not be necessary for candidates other than those belonging to the various sections of backward communities for whom posts are reserved under sub-rule (7) to state their castes in their applications."
The provisions of Rule 9(1) and (2) of the MEPS Rules regarding adequacy of the teaching staff of the school and the power of the School Committee to make appointments are subsisting from the beginning. Rule 2(i) of the said Rules define "School Committee", means a Committee constituted in accordance with the provisions of Schedule 'A'. Clause 2 in Schedule 'A' deals with the constitution of the School Committee, which shall consist of four representatives of the Management consisting of the President of the governing body or his nominee and three members nominated by the governing body. The President of the governing body or his nominee shall be the Chairman of the Committee. One member from amongst the permanent teachers from the same school only in order of seniority by annual rotation and one member from amongst the non-teaching staff from the same school only in order of seniority ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 21 wp5059.17 and connected petitions.odt are also included. The Head of the School is the ex officio Secretary of the School Committee. One of the major functions of the School Committee is to make appointment of employees (other than Head of the School), as contained in Clause 3 of the Schedule. There is also Co-ordination Committee constituted under Clause 4 of the Schedule, which has the power either to ratify the decision of the School Committee or to refer the same to that Committee by its own recommendations.
11. The provisions of sub-rules (2A) and (2B) in Rule 9 of the MEPS Rules are introduced by issuing notification dated 22-6-2017 prescribing the manner and the procedure of making recruitment to the posts of teachers and the same are challenged in all these petitions. On the very next date, i.e. on 23-6-2017, the Government Resolution is issued, which is in Marathi, incorporating Clause 3.6 in Para 3 therein, requiring the Management to send the letter of appointment through e-mail to the candidate in order of merit from the list of successful candidates in the Eligibility and/or Aptitude Test published by the State Government. This Government Resolution is also the ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 22 wp5059.17 and connected petitions.odt subject-matter of challenge in all these petitions.
12. Initially, we heard all the matters on 30-8-2018, when the affidavits filed by the State Government were before this Court opposing the claim made in these petitions. We found that the challenge of the petitioners can be restricted to the validity of sub-rule 2(B) under Rule 9 of the MEPS Rules, introduced by the notification dated 22-6-2017, read with Clause 3.6 in Para 3 of the Government Resolution dated 23-6-2017. The learned counsels appearing for the petitioners have urged that the provisions under challenge to the extent take away the right of the Management to make an appointment, are violative of Article 19(1)(g) to practice occupation of Education, relying upon the decision of the Apex Court in the case of T.M.A. Pai Foundations and others v. State of Karnataka and others, reported in (2002) 8 SCC 481, followed in the case of Brahmo Samaj Education Society and others v. State of West Bengal and others, reported in (2004) 6 SCC 224.
13. After taking into consideration, the stand taken on affidavit by the respondents, we thought fit to share what is ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 23 wp5059.17 and connected petitions.odt passing in our mind and provide an opportunity to file affidavit and address this Court without any surprise. Hence, we passed an order on 30-8-2018 as under :
"Heard Shri R.L. Khapre and Shri B.G. Kulkarni, the learned counsel for the petitioners, and Shri Ram Apte, the learned Senior Advocate, assisted by Ms Anjali Helekar, Advocate, representing the State as Special Counsel in these matters. Also heard Shri A.B. Patil, the learned counsel for the intervenors.
After hearing the learned counsels appearing for the parties for quite some time, it seems to us that Rule 9(2B) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981 prescribes that after completion of the period mentioned in the advertisement, the School Committee shall publish the merit list within five working days and select the candidates according to the merit list.
We expressed that the requirement of oral interview by the School Committee is possible to be read in the aforesaid provision and the candidates in definite ratio from the merit list so published can be treated as constituting a zone of consideration. We put a suggestion to the learned ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 24 wp5059.17 and connected petitions.odt counsels appearing for the parties that a School Committee constituted by the Management consisting of one Expert to be sent by the Deputy Director of Education of the concerned region to act its member can hold the interview of the candidates in order of merit to judge the suitability for appointment to the subject concerned. If the Selection Committee wants to deviate from the merit list in selecting the candidates in the zone of consideration, it shall have to record the reasons in writing to shift below in the merit list to select the candidate found suitable.
The learned counsels appearing for the petitioners agreed to this suggestion. However, Shri Ram Apte, the learned Senior Advocate, submits that this aspect requires serious consideration by the State Government and he, therefore, seeks time in this matter to take appropriate instructions and file affidavit, making its stand clear either one way or the other, so that the Court can proceed further in the matter in accordance with law.
Put up both these petitions on 27-9-2018 as part-heard.
The interim order passed earlier shall continue to operate."::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 25
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14. We have heard Shri Ram Apte, the learned Senior Advocate (as a Special Counsel appointed by the State Government), assisted by Ms Anjali Helekar, Advocate, appearing for the State. He invited our attention to the following observations made by the Division Bench of this Court in its order dated 24-6-2015 passed in PIL No.8 of 2015, which are reproduced below :
"By now, it is well-settled principle of law that a back door entry in public employment is not permissible. If the salaries of the staff in the private management are paid from the public exchequer, there is no reason as to why the employment in such management should not be only on the criteria of merit. We are well aware about our limitation that we cannot issue a direction to the State to frame a particular policy. However, the State in order to bring about the fairness in the selection process of the staff whose salary is paid from the public exchequer, is expected to frame such a policy, which would ensure that the selection is only on the basis of merit and it should be ensured that the malpractices are avoided.
We expect the State to consider the petition from that angle."::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 26
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15. Shri Ram Apte invited our attention to the stand taken in the affidavit that the Government has been repeatedly receiving complaints about irregular appointments, improper activities adopted by the school authorities while recruiting the teachers, and the cognizance of it was taken in PIL by this Court by making observations, which are reproduced above. It is the stand taken that the aforesaid order was placed before the Cabinet meeting along with the note maintaining various complaints received about irregular appointments and improper methods of selection, and considering the same, a policy decision is taken to amend the provisions suitably and also to issue the Government Resolution providing transparent procedure. According to him, the object of amendment is to weed out the corruption and malpractices in the matter not only of the appointment of teachers, but also granting of approval to it either by the Education Officer or by the Deputy Director of Education, as the case may be. He submits that the requirement for obtaining approval has been dispensed with, as the transparent procedure is prescribed in making appointments to avoid back-door entries.
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16. Shri Apte also invited our attention to the stand taken in the affidavit that it is necessary for the teacher to have not only bookish knowledge which he acquires while studying B.Ed. or D.Ed. but to develop his aptitude as well as intelligence and the merit of a teacher is required to be assessed on these two criteria. It is also the stand taken that in view of the Eligibility and Aptitude Tests prescribed, the object of assessing the comparative merits of the candidates is achieved and the appointments of the candidates will only be on merits.
17. In response to the order dated 30-8-2018 passed by this Court, it is the stand taken that after considering various factors, like time taken for constitution of such committee, number of schools, distance, possibility of overlapping the dates of interview, and most importantly, the possibility of highest ranking candidate not getting appointment and losing the chance of appointment in the selection process, it is found that the declaration of appointment of highest ranking candidate will only be suitable method to fulfill the objective of merit as the only objective of ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 28 wp5059.17 and connected petitions.odt selection as well as to avoid corruption. It is the stand taken that considering various allegations of malpractices committed at the time of teachers' appointments as reflected in the order passed in PIL, a need was felt to frame a policy as to ensure that the appointments of teachers are strictly on merit, which is the object of issuing the Government Resolution dated 23-6-2017.
18. It is further the stand taken that the amendment introduced by sub-rules (2A) and (2B) of Rule 9 of the MEPS Rules provides for assessing the requirement of teachers by the schools and it provides that the school management should enter the details of group-wise and subject-wise vacancies as per the requirement (after considering the reservation policy) on the Portal of "PAVITRA" computer programme. It provides for time-bound procedure for advertisement, on-line applications by candidates, as well as for selection. It further provides for verification of all the original documents regarding qualification and eligibility like educational certificates, TET certificate as well as Caste Certificate, Caste Scrutiny Certificate, Domicile Certificate, etc., by the Appointing Officer of particular Educational Institution, ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 29 wp5059.17 and connected petitions.odt who is required to issue appointment order within three days of publication of merit list, and the grievances about rejection in respect of verification of documents can be addressed to and resolved within a period of seven days by the Deputy Director of Education. It is, therefore, the stand taken that the greater transparency is brought in the entire process and, therefore, there would be no requirement of seeking approval of the Education Officer.
19. We may at the outset make it clear that when we passed an order on 30-8-2018, reproduced earlier, it was expressed by the learned counsels appearing for the petitioners, that if the provision of Rule 9(2B) of the MEPS Rules, introduced by notification dated 22-6-2017, is read down to mean that the right of the Management to select and appoint the candidates in the zone of consideration from the merit list is protected, then they would not have any objection for the entire procedure introduced under sub-rules (2A) and 2(B) of Rule 9 of the MEPS Rules, but according to them, in such a situation also, the Government Resolution dated 23-6-2017 to the extent it incorporates ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 30 wp5059.17 and connected petitions.odt Clause 3.6 in Para 3 therein will have to be quashed and set aside, as it encroaches upon the autonomy of the private aided educational institutions to select and appoint the suitable candidates of their choice to hold and occupy the posts of teachers. It was pointed out to us that in the senior colleges attached to the University, a Selection Committee is statutorily constituted to select the teachers in the private aided colleges consisting of one representative of the Vice-Chancellor, the subject expert from outside and the representative of the Administrative Officer in the Department of Higher Education of the State of Maharashtra, as its members, apart from others, and there was no hesitation to accept such members in the constitution of the School Committee, which is empowered to make appointments of teachers in the private aided schools.
20. The question involved in all these petitions is whether sub-rule (2B) under Rule 9 of the MEPS Rules, introduced on 22-6-2017, read with Clause 3.6 in Para 3 of the Government Resolution dated 23-6-2017, violates the fundamental right of the Managements of the Schools to carry on the occupation of ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 31 wp5059.17 and connected petitions.odt education guaranteed under Article 19(1)(g) of the Constitution of India to the extent it encroaches upon the right to select and appoint the teachers in the fully or partially aided private schools.
21. The Constitution Bench of the Apex Court in its decision in the case of The State of Assam and others v. Kanak Chandra Dutta, reported in AIR 1967 SC 884, was considering a question whether a Mauzadar in the Assam Valley holds a civil post under the State of Assam and is entitled to protection of Article 311(2) of the Constitution of India in the matter of his dismissal from service in non-compliance of it. The High Court held that the respondent held a civil post under the State of Assam and hence was entitled to protection of Article 311(2) of the Constitution of India. The SLP was dismissed. In Para 9 of the decision, the Court considered the question of relationship of master and servant between the State and the person said to be holding the post under it, and it is observed as under :
"9. ... The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 32 wp5059.17 and connected petitions.odt manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post." (Emphasis supplied) In Para 11 of the said decision, it is held that a Mauzadar is the holder of a civil post under the State. The State has the power and the right to select and appoint a Mauzadar and the power to suspend and dismiss him. He is a subordinate public servant working under the supervision and control of the Deputy Commissioner. He receives by way of remuneration a commission on his collections and sometimes a salary. There is a relationship of master and servant between the State and him. It holds that having regard to the existing system of his recruitment, employment and functions, he is a servant and a holder of a civil post under the State.
22. In the another decision of a three-Judge Bench of the Apex Court in the case of V.P. Gopala Rao v. Public Prosecutor, ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 33 wp5059.17 and connected petitions.odt Andhra Pradesh, reported in AIR 1970 SC 66, the question was whether there existed a relationship of master and servant between the appellant and the respondent. The Court has dealt with this aspect in Para 9 of its decision, which is reproduced below :
"9. It is a question of fact in each case whether the relationship of master and servant exists between the management and the workmen. The relationship is characterized by contract of service between them. In Short v. J.W. Henderson Ltd., 1946 SC (HL) 24 at pp. 33-34 Lord Thankerton recapitulated four indicia of a contract of service. As stated in Halsbury's Laws of England, 3 rd Ed. Vol. 25 p. 448 Article 872:
"The following have been stated to be the indicia of a contract of service, namely, (1) the master's power of selection of his servant; (2) the payment of wages or other remuneration; (3) the master's right to control the method of doing the work; and (4) the master's right of suspension or dismissal [(1946) SC (HL) 24, at pp. 33, 34; Gould v. Minister of National Insurance, (1951) 1 KB 731 at p. 734; (1951) All ER 368 at p.371; Pauley v. Kenaldo Ltd., (1953) 1 All ER 226, (C.A.), at p. 228, but modern industrial conditions ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 34 wp5059.17 and connected petitions.odt have so affected the freedom of the master that it may be necessary at some future time to re-state the indicia; e.g., heads (1), (2) and (4) and properly also head (3), are affected by statutory provisions (Short v. J.W. Henderson Ltd., 1946 SC (HL) 24, supra at p. 34.")"
(Emphasis supplied) The Apex Court has held that the master's power of selection of his servant, the payment of wages or other remuneration, the master's right to control the method of doing the work, and the master's right of suspension or dismissal are the indicia of a contract of service.
23. In the decision of the Apex Court in the case of Brahmo Samaj Education Society, cited supra, the challenge was to Section 7 of the College Service Commission Act, which vested in the Commission with the duty to select persons for appointment to the post of teachers of a college; by virtue of which, the power of appointment of a teacher in a college or institution affiliated to a university in West Bengal became vested in the government-appointed College Service Commission. The challenge ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 35 wp5059.17 and connected petitions.odt based upon the violation of Article 19(1)(g) of the Constitution of India was that the petitioners have a right to establish and administer educational institution and merely because they are receiving the grant-in-aid from the State Government, their autonomy of administration cannot be totally restricted, taking away the right of appointment under the garb of imposing reasonable restriction in the interest of general public. The challenge was upheld on the basis of the observations made by the Apex Court in its earlier decision in T.M.A. Pai Foundation's case, cited supra, and it was directed that the State shall take note of the declarations of the law made by this Court and make suitable amendments to their laws, rules and regulations to bring them in conformity with the principles set out in the said decision.
24. In the decision of T.M.A. Pai Foundation's case, the Court was dealing with the question of appointment of teachers in the private professional educational institution receiving grant-in-aid. In Paras 72 and 73 of the said decision, it was held that in case of aided non-minority private institution, the State has ample power to regulate the method of selection and appointment of teachers ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 36 wp5059.17 and connected petitions.odt after prescribing requisite qualifications for the same. However, it has to be ensured that even State aided institution does not become government owned and controlled institution. The aid granted is relatable to the pay and allowances of the teaching staff and in addition to it, the management of private aided institution has to incur revenue and capital expenses. Such institutions cannot be treated as an institution departmentally run by the Government and interfere with the constitution of the governing bodies or thrusting the staff without reference to the management.
25. The Apex Court in Brahmo Samaj Education Society's case holds in Para 7 that it is categorically stated in T.M.A. Pai's case that the State can regulate the method of selection and appointment of teachers after prescribing requisite qualification for the same. Independence for the selection of teachers among the qualified candidates is fundamental to the maintenance of the academic and administrative autonomy of an aided institution. It holds that the State can very well provide the basic qualification for teachers and determine teaching eligibility of candidates by conducting National Eligibility Test (NET) or State-Level Eligibility ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 37 wp5059.17 and connected petitions.odt Test (SLET) so as to become eligible for appointment as a teacher in an aided institution. It specifically holds that the right of Management to administer includes the right to appoint teachers at their choice amongst NET-SLET qualified candidates. The Court rejects the argument that the appointment through the College Service Commission is to maintain equal standard of education all throughout the State of West Bengal. The Court holds that the equal standard of teachers are already maintained by NET/SLET and receiving aid from the State coffers can also not be treated as a justification for imposition of any restrictions that cannot be imposed otherwise.
26. The principles laid down in all the aforesaid decisions need to be summarized. The existence of relationship of master and servant is indicated by right to select and appoint the holder of the post which is one of the indicia of the contract of service. Merely because the grant-in-aid was provided to the private professional educational institutions, the exercise of control cannot be extended to the day-to-day administration of justice. Independence for the selection of teachers amongst the qualified ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 38 wp5059.17 and connected petitions.odt candidates is fundamental to the maintenance of the academic and administrative autonomy of an aided institution. The right to administer an educational institution conferred by Article 19(1)(g) of the Constitution of India includes the right to make appointments of the teachers found suitable of the choice of the Management amongst the persons qualified and eligible for the posts. Any restriction on such power under the garb of imposing reasonable restrictions in public interest, as contemplated by Clause (6) of Article 19(1)(g) of the Constitution of India, to select the candidate for appointment, would encroach upon the autonomy of an administration of the institution.
27. In the service jurisprudence, the existence of posts in any establishment, whether private, public or semi-public, constitutes a service or an employment. The persons appointed to hold or occupy such posts are called as servants or employees or workmen. The owner of the establishment, whether he be an individual proprietor or a firm, company, society, trust, statutory corporation etc., who provides an employment by making appointments of persons to occupy or hold such posts, is called as the master or an ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 39 wp5059.17 and connected petitions.odt employer. It is a right, privilege or prerogative, which is inherent or in-built in every master or employer to make appointments by selection of persons of his choice found suitable to exercise power, perform functions, discharge duties and fulfill obligations attached to the posts in which appointments are to be made. The suitability to appoint is in respect of ability, capacity, efficiency and mental and physical fitness to the job to be assigned. Thus, a right of employer to make appointments necessarily include, as its integral part or carries with it, a right to select a candidate of his choice, which is the necessary concomitant flowing from the relationship of master and servant based upon the contract of employment containing the terms and conditions mutually agreed between the parties to it.
28. In all these petitions, we are concerned with the employment in the establishments of private schools, receiving or eligible to receive full or partial grant-in-aid from the State exchequer. It is in the nature of quasi public employment, where the recruitment and the conditions of service of the employees are regulated by the MEPS Act and the rules framed thereunder, which ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 40 wp5059.17 and connected petitions.odt provide the employees recruited security and stability in service to enable them to discharge their duties towards the pupils and their guardians in particular, and the institution and the society in general, effectively and efficiently. Therefore, the recruitment in the establishments of such schools has to be in the mode and manner regulated by the provisions of the Act and the rules framed thereunder. Once an employee is recruited in the establishment of the School, he cannot be suspended, dismissed or removed or his services cannot be otherwise terminated or he cannot be reduced in rank by the Management, except in accordance with the provisions of the said Act and the rules made in that behalf, which is the mandate of Section 4(6) of the said Act. In case of wrongful dismissal, removal, otherwise termination, reduction in rank or supersession by the Management, a remedy is provided of statutory appeal to the School Tribunal under Section 9 of the MEPS Act, which is empowered to grant even reinstatement in service with full back wages or restoration or promotion to the post with all consequential benefits.
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29. It is in the light of the aforesaid object and purpose of the Act and the super-added protection provided to the employees by way of statutory provisions contained therein, the question of selection and appointment of teachers assumes significance. Section 5(1) of the said Act creates a statutory obligation upon the Management to fill in, in the manner prescribed every permanent vacancy in a private school by appointment of a person duly qualified to fill such vacancy. Rule 9 of the MEPS Rules relating to the appointment of staff confers the power upon the School Committee constituted by the Management to make appointments of teaching staff under sub-rule (2) therein. A "School Committee", as defined under Rule 2(1)(i) and constituted under Clause 2 of Schedule 'A' under the Rules, is entrusted with the function of appointment of employees under Clause 3(c) therein. The decision of the appointment of the School Committee is subject to ratification by the Co-ordination Committee constituted under Clause 4 in Schedule 'A'. In our view, the power to make appointment includes power to select the persons of the choice of the Management through a statutorily constituted School Committee, found suitable to exercise power, perform functions, ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 42 wp5059.17 and connected petitions.odt discharge duties and fulfill obligations attached to the posts in which the appointments are to be made. The suitability is in respect of ability, capacity, efficiency, mental and physical fitness to the job to be assigned.
30. The object and purpose of the said Act, as it reveals from the preamble, is to regulate the recruitment of the employees in certain private schools in the State. Sub-section (1) of Section 4 read with Section 16(1) and (2)(a) of the said Act empower the State Government to make rules by issuing notification in the Official Gazette providing for the minimum qualifications for recruitment of employees of private schools (including its procedure). Our reading of these provisions is that the competency of the State Government to frame rules neither does include nor extend to the selection and appointment of teachers in aided private schools.
31. Before proceeding further, we would like to highlight the position prevailing prior to introduction of Rule 9(2A) and (2B) of the MEPS Rules on 22-6-2017 and the Government Resolution ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 43 wp5059.17 and connected petitions.odt dated 23-6-2017. There was no requirement of issuance of advertisement in the newspaper or calling the candidates from the employment agency while making selection and appointment to the posts of teachers in the private aided schools. There was also no statutory provision of conducting interviews of the candidates for selection and appointment. There was also no provision of conducting any written test for selection and appointment. It was by judicial pronouncement of this Court that the requirement of issuance of advertisement inviting applications for the posts of teachers was laid down so as to bring transparency and provide equal opportunity to the persons qualified and eligible for appointment in conformity with the provisions of Articles 14 and 16 of the Constitution of India. In view of this, the earlier practice adopted of making back-door entries by only asking the persons to submit an application for appointment was done away with. The method of conducting oral interview was adopted by the School Committee to select and appoint the suitable candidates of its choice as the teachers. The claim in all these petitions, is to maintain this method of selection by oral interview. ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 44
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32. We are not oblivious of the stand taken by the respondents and the intervenors about the complaints of rampant corruption, favourtism and other illegal and unfair means adopted by the Management of the private aided schools in selecting and appointing the teachers in deviation of merit and in breach of the procedure. Similar is the stand taken in respect of grant of approval to such illegal appointments by the Education Officer and the Deputy Director of Education. We go further and take judicial notice of the fact that because of the dearth prevailing in the employment, the aspirants to the posts fall prey to the auction of such posts, to satisfy illegal demands. Many a times the aspirants are required to sell their properties, pledge their gold ornaments or even to put the retiral benefits of the parents to stake. In spite of getting employment, the plight does not end and it continues in meeting the repeated demands to retain the employment.
33. We appreciate the avowed object of bringing into force the provisions of Rules 6(2) to (3) and 9(2A) and (2B) of the MEPS Rules and respect the observations made by this Court in PIL No.8 of 2015 to bring transparency in the process and to avoid the ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 45 wp5059.17 and connected petitions.odt corruption and malpractices. Rule 6(2) to (3) deals with prescribing additional qualifications, whereas Rule (2A) and (2B) deals with the procedure for recruitment. We find that the qualifications and the procedure are prescribed, providing for the school management to entertain the details of group-wise and subject-wise vacancies as per the requirement (after considering the reservation policy) on the Portal of "PAVITRA" computer programme and further providing for the time-bound procedure for the advertisement, on-line applications by the candidates for selection, etc. There cannot be any objection in providing for the verification of the original documents by the School Committee and issuance of an order of appointment within a period of three days of publication of the merit list and dealing with the grievances by the Deputy Director of Education by dispensing with the requirement of seeking approval to such appointment. We find that this entire procedure and the qualifications laid down, are completely within the competence of the State Government, as its source is the power conferred by Sections 4(1) and 16(1) and (2)(a) of the MEPS Act and it cannot be struck down on the ground of lack of competency on the part of the State Government. ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 46
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34. Our reading of Rule 9(2B) of the MEPS Rules is that it retains with the Management or the School Committee its power to select the teachers of its choice amongst the qualified candidates; the reasons being - (i) that it consciously avoids using the word "appoint" in place of the word "select" used therein, and
(ii) the power to make appointment conferred by Section 5(1) of the MEPS Act read with Rule 9(2) of the MEPS Rules and Clause 3(c) in Schedule 'A', is not taken away. It does not, in our view, interfere with the right of the Management to select and appoint the qualified, eligible and suitable person of its choice to occupy and hold the post of teacher in the private aided schools, on the basis of oral interview. We, therefore, reject the argument of the State and its authorities that Rule 9(2B) has to be interpreted in such a fashion so as to mandate the Management or the School Committee to make appointment to the posts of teachers strictly as per the merit shown in the list of candidates successful in the Eligibility and/or Aptitude Test conducted by the Central or the State Government or any of its agencies without judging comparative merits and suitability to select the candidates ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 47 wp5059.17 and connected petitions.odt on the basis of oral interview.
35. In our view, the right to administer aided private school, which includes the right to select and appoint the candidates of the choice of the Management, cannot be shaded under the power to provide for the minimum qualifications for recruitment (including its procedure). The distinction has to be maintained. Any attempt on the part of the State Government under Rule 9(2A) and (2B) of the MEPS Rules to interfere in the choice of the Management of the private aided schools to select and appoint the teachers by framing rules in exercise of its power under Section 4(2) read with Section 16(1) and (2)(a) of the MEPS Act will have to be struck down, essentially for three reasons - (i) that the power to provide for the minimum qualifications for recruitment (including its procedure) does not include the power to make rules to regulate the actual selection and appointment of teachers, (ii) the right to appoint, which includes the right to select the candidates of the choice of the Management or the School Committee, cannot be made illusory and reduced to the value of merely putting a seal of appointment, and (iii) that the independence for selection of the ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 48 wp5059.17 and connected petitions.odt teachers amongst the qualified candidates, which is fundamental to the maintenance of academic and administrative autonomy of an aided institution, is the guarantee contained under Article 19(1)(g) of the Constitution of India, which cannot be taken away.
36. If the interpretation of the State and its authorities, as aforestated, is accepted, then we shall have no option but to strike down the provision of Rule 9(2B) of the MEPS Rules to the extent it deprives the right of the Management to select and appoint the teachers on the grounds - (i) that it suffers from incompetency,
(ii) that it makes the right to appoint illusory, and (iii) that it violates the fundamental right of the Management under Article 19(1)(g) of the Constitution of India. We, therefore, adopt the mode of reading down the provision as retaining the right to select and appoint the teachers as per the choice of the Management and/or of the School Committee to save such provision from being declared as invalid or ultra vires and confirm its validity accordingly.
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37. We are satisfied with the sensitivity and the response shown by the State Government to amend and introduce the provisions of Rules 6 and 9(2A) and (2B) of the MEPS Rules to implement the observations made by this Court in PIL No.8 of 2015. The procedure has improved the method of transparency and provided the screening of the candidates on the basis of the criterion of merit, which is more closer to the maintenance of equality enshrined under Articles 14 and 16 of the Constitution of India. The merit of the candidates is given prominence and the back-door entries in the private aided schools are avoided. We are sure about its impact to control the corruption, nepotism, favourtism, malpractices, etc., in the matter of selection and appointment of teachers.
38. In our view, it is not possible to weed out completely the corruption and malpractices in any process muchless in the process of making selection and appointment of teachers in the private aided schools. The law has its own limitations and the observations made by this Court in PIL No.8 of 2015 cannot be used as a licence to transgress the limits of law which shall have an ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 50 wp5059.17 and connected petitions.odt impact to encroach upon the autonomy of the private aided educational institution and take away the right of the Management to administer the affairs of the educational institution. The observations of this Court in the PIL is to bring about fairness in the selection process and to avoid the malpractices. The object of making observations by this Court in PIL is taken care of to its maximum possible extent.
39. It is not possible for us to uphold the validity of Clause 3.6 in Para 3 of the Government Resolution dated 23-6-2017, which directs the Management or the School Committee to make appointments of teachers strictly on the basis of merit shown in the list of candidates successful in the Eligibility and/or Aptitude Test. The reasons are - (i) it runs contrary to the interpretation which we have placed on the provision of Rule 9(2B) of the Rules, (ii) it takes away the right to select and appoint teachers conferred by the provisions of Section 5(1) read with Clause 3(c) of Schedule 'A' under the Rules, and
(iii) it encroaches upon the autonomy of the Management of the private aided schools to select more suitable candidates amongst ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 51 wp5059.17 and connected petitions.odt those found eligible and qualified in terms of the provision of Rule 6(1), (2) and (3) of the MEPS Rules. It has to be struck down.
40. Shri Ram Apte, representing the State, has placed strong reliance upon the provision of Section 5(3) of the MEPS Act to urge that if in the opinion of the Management the work or behaviour of any probationer during the period of probation is not found to be satisfactory, the Management is provided a right to terminate his services at any time during the period of probation. He submits that the assessment of suitability can always be done even after appointment and, therefore, there is no ground to strike down the provision of Clause 3.6 in Para 3 of the Government Resolution dated 23-6-2017. He has also urged that the assessment of comparative merit is done on the basis of the marks obtained in the Aptitude Test and, therefore, the provision under the said Government Resolution cannot be struck down. It is urged by the intervenors that the suitability of the candidates is judged on the basis of their performance in D.Ed. or B.Ed. examination, considered as the training qualification. ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 52
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41. In our view, the fallacy in the argument lies in ignoring the distinction between the right of the Management to select and appoint a candidate of its choice on one hand, and the right to assess the work, performance and behaviour of a candidate appointed on probation on the other hand. The right to select and appoint is to be exercised on the basis of comparative merits and suitability of the candidates, to permit entry in the service. If a person is not permitted to enter the service because he is not the choice of the Management exercised through the School Committee, the provisions of the Act and the Rules would not apply to him. However, once a person is recruited in the employment of a private aided school, he is provided with super-added protection of the statutory provisions and Section 4(6) of the MEPS Act mandates that an employee appointed cannot be suspended, dismissed or removed or his services cannot be otherwise terminated or be reduced in rank by the Management except in accordance with the provisions of the MEPS Act and the Rules framed thereunder. The choice of the Management to terminate, dismiss, remove, etc., any employee for ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 53 wp5059.17 and connected petitions.odt no reasons or in any manner is statutorily taken away and for any such wrongful action, the teacher concerned can be reinstated in service with all consequential benefits and it will only be a Management which shall be responsible for it. The right to select and appoint a person, therefore, assumes greater significance and it cannot be mixed up or compared or equated with the right to judge the work, performance and behaviour of an employee appointed to the post. There is no comparative assessment of merit involved in judging the probationer and such assessment is possible only at the stage of entry in the service.
42. In the decision of the Apex Court in the case of Dr. Krushna Chandra Sahu and others v. State of Orissa and others, reported in (1995) 6 SCC 1, relied upon by Shri Bhanudas Kulkarni, the learned counsel for the petitioners, the importance of oral interview in selecting and appointing a candidate is highlighted in Para 38, which is reproduced below :
"38. A candidate in order to be suitable for appointment on a teaching post must have at least three qualities: he should have thorough knowledge of the subject concerned; he should be organised in his thoughts and he ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 54 wp5059.17 and connected petitions.odt should possess the art of presentation of his thoughts to the students. These qualities cannot possibly be indicated or reflected in the confidential character rolls relating to another service, namely, the service in the Health Department as Homoeopathic Medical Officers where the character rolls would only reflect their integrity, their punctuality, their industry and their evaluation by the Reporting or the Accepting Officer recorded in the annual entries. True it is that the candidates being already serving officers, their character rolls have to be looked into before inducting them in the new service but this can be done only for the limited purpose of assessing their integrity etc. These character rolls, however, cannot form the sole basis for determination of their suitability for the posts of junior teachers in the Medical Colleges. Then, what formula or method should be adopted to assess these qualities is the question which next arises. This Court in Lila Dhar v. State of Rajasthan pointed out: (SCC pp. 162-63, para 4) "The object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So, open competitive examination has come to be accepted ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 55 wp5059.17 and connected petitions.odt almost universally as the gateway to public services."
It further observed: (SCC p. 163, para 5) "It is now well-recognised that while a written examination assesses a candidate's knowledge and intellectual ability, an interview test is valuable to assess a candidate's overall intellectual and personal qualities. While a written examination has certain distinct advantages over the interview test there are yet no written tests which can evaluate a candidate's initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead intellectual and moral integrity. Some of these qualities may be evaluated, perhaps with some degree or error, by an interview test, much depending on the constitution of the Interview Board."
Lila Dhar case was approved in Ashok Kumar Yadav case." The Court has held that a candidate in order to be suitable for appointment on a teaching post must have at least three qualities: he should have thorough knowledge of the subject ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 56 wp5059.17 and connected petitions.odt concerned; he should be organised in his thoughts and he should possess the art of presentation of his thoughts to the students. The object of any process of selection for entry in the service is to secure the best and the most suitable person for the job. While a written examination assesses a candidate's knowledge and intellectual ability, an interview test is valuable to assess a candidate's overall intellectual and personal qualities. The Apex Court has held that there are yet no written tests which can evaluate a candidate's initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead intellectual and moral integrity. Similar observations are also found in Paras 54 and 55 of the subsequent decision of the Apex Court in the case of K.H. Siraj v. High Court of Kerala and others, reported in (2006) 6 SCC 395.
43. In view of the aforesaid position of law, we reject the contention raised by Shri Ram Apte that the provision of Section 5(3) of the MEPS Act enabling the Management to ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 57 wp5059.17 and connected petitions.odt terminate the service of probationer on the ground of his unsuitability could be a substitute to judge the suitability of a candidate for the job of teacher in the private aided school. The Apex Court has also rejected the arguments, in the case of Bramho Samaj Education Society, that the appointment through competitive tests is to maintain equal standards of education and teachers. It is held therein that receiving aid from the State coffers cannot be treated as justification for imposition of restrictions unwarranted by law. We, therefore, reject the argument of the intervenors also that the suitability of a candidate for the employment is already tested on the basis of merit in acquiring D.Ed. or B.Ed. qualification or that the comparative merits of the candidate for selection and appointment can be assessed on the basis of the merits and performance in D.Ed. or B.Ed. examination.
44. The introduction of additional qualifications of passing of the Eligibility and/or Aptitude Test under Rule 6(2) and (3) of the MEPS Rules by way of amendment on 22-6-2017, is well within the competence of the State Government under Section 4(2) read with Section 16(1) and (2)((a) of the MEPS Act, as has already ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 58 wp5059.17 and connected petitions.odt been held by us. We are of the view that the School Committee constituted by the Management of the private aided schools retains its power under Rule 9(2B) of the Rules to conduct oral interview of the candidates qualified in terms of Rule 6(1), (2) and (3) of the Rules to be called in definite proportion of the vacancies of the teachers advertised to constitute the zone of consideration from which only a right to select and appoint those found suitable amongst them to occupy and hold the post of teacher, can be exercised. We, however, make it clear that to maintain transparency, each member of the School Committee and/or the Management will have to mandatorily record reasons in brief for deviating from the order of merit shown in the list of successful candidates in the Eligibility and/or Aptitude Test. The decision of majority will prevail in the matter of selection and appointment of teachers.
45. For the reasons stated above, we partly allow all these writ petitions and pass an order as under :
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wp5059.17 and connected petitions.odt : O R D E R :
1. The validity of Rules 6(2) and (3) and 9(2A) and (2B) of the MEPS Rules, introduced on 22-6-2017, is upheld on the touchstone of competency of the State Government and Article 19(1)(g) of the Constitution of India.
2. The procedure for selection and appointment of the teachers in the private schools, receiving or eligible to receive full or partial grant-in-aid from the State exchequer, shall be governed by the provisions of Rule 6(1), (2) and (3) read with Rule 9(2A) and (2B) of the MEPS Rules, as are interpreted by us in Paras 34, 36, 39 and 44 of this judgment without interfering with the right of the Management and/or the School Committee to select and appoint the qualified, eligible and suitable candidates by holding the personal interview.::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:11:46 ::: 60
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46. Rule is made absolute in the aforesaid terms. No order as to costs.
(Vinay Joshi, J.) (R.K. Deshpande, J.)
Lanjewar, PS
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