Madhya Pradesh High Court
Mohammad Salim Khan vs School Education Department on 15 March, 2018
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
W.P. Nos. 413/2017, 414/2017, 2594/2017 AND 2595/2017
DINESH CHANDRA AND ORS., VS. STATE OF MP & ORS.,
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INDORE, Dated : 15/03/2018
Mr. L. C. Patne, learned counsel for the petitioners.
Mr. Vibhor Khandelwal, learned counsel for the
respondent - State.
Regard being had to the similitude in the controversy
involved in the present cases, the writ petitions were
analogously heard and by a common order, they are being
disposed of by this Court. Facts of Writ Petition No.
413/2017 are narrated hereunder.
The petitioner before this Court has filed this present
writ petition being aggrieved by the Annexure P/1 dated
26/12/2016 and Annexure P/2 dated 7/1/2017 putting their
services to an end.
Facts of the case reveal that the petitioners are the
employees of Pandit Hiralal Shivnarayan Primary School Neemuch, which is an institution receiving 100% grant-in- aid. The petitioners were appointed on 5/11/1981, 3/9/1984 and 1/7/1981. The institution No.5 was a recognized institution as recognized by the State Government and was receiving, as already stated earlier, 100% grant-in-aid. A cirular was issued by the State Government on 13/6/2014 (by the Commissioner, Directorate Public Instructions) and based upon the aforesaid circular a Show Cause Notice was issued on 04-08/11/2016 informing the institution that the students strength is reduced to minimum 5 in number and, therefore, why the grant-in-aid should not be stopped. HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W.P. Nos. 413/2017, 414/2017, 2594/2017 AND 2595/2017 DINESH CHANDRA AND ORS., VS. STATE OF MP & ORS.,
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Mr. LC Patne, learned counsel for the petitioner has argued before this Court that once grant-in-aid was discontinued, the State Government was under an obligation to absorb the teachers in other schools receiving grant-in-aid keeping in view the the statutory provisions as contained under the M.P. Ashaskiya Shikshan Sanstha (Adhyapako tatha anya karmachariyo ke vetano ka sanday) Adhiniyam, 1978 and the Rules of 1979.
Mr. LC Patne, learned counsel for the petitioner has categorically stated before this Court that the teachers were appointed on 5/11/1981, 3/9/1984 and 1/7/1981 and by virtue of the amendment under the 5/11/1981, 3/9/1984 and 1/7/1981 ie., M.P. Ashaskiya Shikshan Sanstha (Adhyapako tatha anya karmachariyo ke vetano ka sanday) Sanshodhan Adhiniyam, 2000 (Amendment Act No. 26 of 2000), the State Government has stopped grant-in-aid to all schools and colleges in the State of Madhya Pradesh. It has also been stated that the constitutional authority of the aforesaid amendment was considered by this Court in the case of Sharik Ali and others Vs. State of Madhya Pradesh and others reported in 2002 (1) MPHT 315 and the Act was declared ultra virus by the Division Bench of this Court against which the State Government has approached the Supreme Court. Learned counsel for the petitioner further argued before this Court that the matter has travelled before the apex Court and before the apex Court an affidavit was HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W.P. Nos. 413/2017, 414/2017, 2594/2017 AND 2595/2017 DINESH CHANDRA AND ORS., VS. STATE OF MP & ORS.,
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filed by the State Government which finds place in the order passed by the apex Court dated 12/12/2013 in C.A.No. 6415/2004. The contents of the affidavit, in paragraphs A to C, reads as under :
"A. The State Government proposes to pay the arrears at the existing approved scale from the next financial year ie., April 2014 onwards.
B. The arrears shall be paid after adjusting the tuition fee charged by private schools and colleges as per circulardated 31/1/2000. The State Government shall ascertain the tuition fee charged by each school or college within 6 months;
(i) After following the procedure in Clause B, in case of employees (teachers and other staff) who have expired, the State Government proposes to pay 100% arrears to their nominee at lump sum;
(ii) After following the procedure in Clause B, in case of employees (teachers and other staff) who are still in service, the State Government proposes to pay arrears in at least five equal annual installments;
C. The State Government proposes to give grant- in-aid to the employees (teachers and other staff) who are still in service at the existing approved scale till their superannuation.
Thus, the State Government gave an affidavit that the teachers are staff who are still in service will be given existing pay scale till their superannuation. Final order was passed in C.A.No. 6362/2004 on 7/1/2014 and the same reads as under:
1. This order is in continuation of our earlier order dated 12.12.2013. Both the orders should be read together.
2. By order dated 12.12.2013 we had requested Shri Tankha, learned senior counsel to get appropriate instructions/clarification from the State Government insofar as Clause 'C' of the affidavit dated 26.11.2013.
3. Today learned senior counsel, Shri Tankha has filed an affidavit on behalf of the State of Madhya Pradesh. In the said affidavit they have pleaded their inability to extend the 6th Pay Commission Scales to the Teachers/Lecturers/non-teaching staff working in private aided educational institutions in the State of Madhya Pradesh though their appointment is approved by the HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W.P. Nos. 413/2017, 414/2017, 2594/2017 AND 2595/2017 DINESH CHANDRA AND ORS., VS. STATE OF MP & ORS.,
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State Government.
4. After hearing Shri Tankha, Shri Shanti Bhushan and Dr. Rajeev Dhawan and other learned counsel appearing for the parties, we are of the opinion that the request of Shri Shanti Bhushan for extending the 6th Pay commission scales to the Teachers/Lecturers/non-teaching staff working in the private aided educational institutions should be accepted and granted. We are also of the view that whatever amount that is being paid pursuant to the orders passed by this court on 12.12.2013 and 07.01.2014 shall not be recovered from the Teachers/Lecturers/Non-Teaching staff working in the private aided educational institutions.
5. Accordingly, while setting aside the judgment and order passed by the High Court, we direct that the 6th Pay commission scales shall be given to the Teachers/Lecturers/non-teaching staff working in the private aided educational institutions in the State of Madhya Pradesh. We further direct that the amount that is already paid pursuant to the orders passed by this Court on 12.12.2013 and 07.01.2014 shall not be recovered from the Teachers/Lecturers/non-teaching staff working in the private aided educational institutions in the State of Madhya Pradesh.
6. It is clarified that the Madhya Pradesh Ashaskiya Ahikshan Sanstha Adhiniyam, 1978, as amended by Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmcharyon Ke Vetno Ka Sandaya) Sanshodhan Adhiniyam, 2000 (for short "the Amended Act") shall not be made applicable to the respondents and other similarly situated persons.
7. It is further clarified that the Amended Act is applicable to those Teachers/Lecturers/Non-Teaching staff, who are appointed by the private aided educational institutions in the State of Madhya Pradesh, after promulgation of the amended Act.
Ordered accordingly.
Meaning thereby, the State Government undertook to pay salary in respect of teachers grant-in-aid school / Colleges. It has also been argued before this Court that in case on account of non payment of grant-in-aid to the institution, the petitioner has been discontinued from service, it is obligatory upon the State Government to absorb the petitioner in some other school receiving grant-in-aid or to pay salary till they are superannuated. Heavy reliance has been placed upon Rule 3 and 4 of the Rules of 1979. It has been argued that in case there was a necessity to discontinue HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W.P. Nos. 413/2017, 414/2017, 2594/2017 AND 2595/2017 DINESH CHANDRA AND ORS., VS. STATE OF MP & ORS.,
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the grant-in-aid in all fairness keeping in view the statutory provision of law, the petitioners should have been absorbed in other private schools receiving grant-in-aid.
A reply was given by the institution and request was made to absorb the teachers working in the institution in some other private institution receiving 100% grant-in-aid. Learned counsel for the respondent State informed that because all the teachers have reached, 56, 56 and 57 years respectively, they cannot be re-appointed in any other School or in Government service, therefore, they cannot be absorbed keeping in view the M.P. Ashaskiya Shikshan Sanstha (Adhyapako tatha anya karmachariyo ke vetano ka sanday) Adhiniyam, 1978 and the rules framed thereunder. However, the fact remains that the grant-in-aid was stopped and by the impugned order dated 7/1/2017 the services of the petitioners have been put to an end.
Learned counsel for the respondent - State has argued before this Court that as grant-in-aid itself was stopped by the State Government for want of students by no stretch of imagination the State Government was under an obligation to absorb the petitioners nor Rule 4 provides for such an absorption. It has also been argued that as the institution was not fulfilling the terms and conditions of the recognition meaning thereby, the number of students dropped down to five only and, therefore, the grant-in-aid was rightly stopped which has resulted in consequential discontinuance of the HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W.P. Nos. 413/2017, 414/2017, 2594/2017 AND 2595/2017 DINESH CHANDRA AND ORS., VS. STATE OF MP & ORS.,
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petitioners. It has also been argued that the institution has not challenged the order by which the grant-in-aid was stopped and by no stretch of imagination a writ can be issued directing absorption of the petitioners.
This Court has carefully gone through Rule 3 and Rule 4 of the Rules of 1979. The aforesaid statutory provisions of law was considered by this Court in the case of Indore Christian College, Indore Vs. State of M.P. & Ors., (W.P.No. 10124 of 2010, decided on 21/11/2011) wherein in similar circumstances a teacher serving at Neemuch was discontinued and later on was absorbed and posted at Indore Christian College. It was again an 100% grant-in-aid College. This Court in the aforesaid case, in paragraphs 4 to 10 has held as under :
04. Heard learned counsel for the parties and perused the record.
The matter is being disposed of with the consent of the parties at motion hearing stage itself.
05. In the present case, the petitioner before this court in para-5.1 has stated that the petitioner Institution is a minority Institution engaged in the Act of imparting education to its students and such a statement has been duly supported by an affidavit without there being any certificate in support of the aforesaid averment. No certificate as required under the Madhya Pradesh State Minority Commission Act, 1996 is on record nor as been filed inspite of an opportunity granted to the petitioner, till date. Meaning thereby there is no certificate issued by the State Minorities Commission or by any other Commission of Government of India under the Union of India establishing that the petitioner is a minority institution. In the present case it is an admitted fact that the respondent No.4 was a teacher serving as Assistant Professor at Gyan Mandir Mahavidhyalaya, Neemuch and she was declared surplus with effect from 1st July, 2002 and as a consequence thereof she was discontinued from the post of Assistant Professor. Respondent No.4 being aggrieved by her discontinuation came up before this court by filing a writ petition and this court vide order dated 15-02- HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W.P. Nos. 413/2017, 414/2017, 2594/2017 AND 2595/2017 DINESH CHANDRA AND ORS., VS. STATE OF MP & ORS.,
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2002 page (27) has directed the respondent state to decide the representation of the petitioner by passing a speaking order. This court directed the respondents therein to pass an appropriate order in respect of the petitioner's application. It is pertinent to note that a representation was preferred before the State Government and State Government keeping in view the provisions of Niyam,1979 has passed an order ie Annexure-P-1. The state Government in exercise of powers conferred under the rules has posted the petitioner at Christian College, Indore. Rule 3 and 4 of the Rules 1979 reads as under:-
"3. Except rules 4 and 5 these rules shall not apply to the institutions established and administered by minorities in pursuance of the provisions of clause (1) of Article 30 of the Constitution of India.
4. Recruitment to a post of a teacher or other employee of an Institution shall be made by one of the following methods, namely :-
(a) absorption of teachers or other employees of other Institutions whose services have been terminated:
(b) direct recruitment:
(c) promotion : or
(d) deputation of persons either from
Government or Ayog or from any other Organization approved by the Government for the purpose :
Provided that the method of recruitment under clause (a) shall have priority over other method of recruitment specified in clauses (b), (c ) or (d) as the case may be, if suitable retrenched persons who are otherwise qualified for the posts are available."
06. From the bare perusal of Rule 3 and 4 it is crystal clear that even in case of minority Institution the State Government is competent to post an employee to other Institutions whose services have been terminated.
07. Keeping in view the aforesaid as the petitioner Institution is not a minority institution and also keeping in view the aforesaid fact that the Niyam, 1979 empowers the State Government to post a teacher even in the minority institution, this court does not find any reason to interfere with the order dated 28-10-2010. HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W.P. Nos. 413/2017, 414/2017, 2594/2017 AND 2595/2017 DINESH CHANDRA AND ORS., VS. STATE OF MP & ORS.,
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08. No case for interference is made out with the order dated 28- 10-2010. Petitioner as she is working uninterruptedly since 21-02- 2010 is also entitled for arrears of salary. Shri John, Nodal Officer, Officer-in-charge of the case, who has assisted this court at the time of final hearing has fairly stated before this court that the Institution has not forwarded the salary statement of the petitioner till date and if the petitioner's salary statement is forwarded to the State Government, necessary payment order shall be issued by issuing appropriate grant in the matter.
09. Keeping in view the aforesaid, petitioner is directed to forward the salary statement enabling the respondents No. 1 to 3 to release the salary of the petitioner. Institution shall forward the statement positively within the period of ten days' from the date of receipt of certified copy to Lead College, Indore and thereafter the respondents shall pass a necessary orders enabling disbursement of salary to the petitioner within a period of thirty days thereafter. In the present case as the controversy in respect of posting of respondent No.4 has been resolved, the subsequent order issued by the State Government for withholding the grant to the Institution is set aside and the respondents are directed to release the grant to the Institution, in accordance with law.
10. This court has granted interim stay order on 25-08-2010, on account of misstatement of fact and the same has resulted in non- payment of salary to a teacher, who is at the verge of starvation as stated by the learned counsel for the respondent No.4. In the peculiar facts and circumstances of the case, costs of Rs. 10,000/- is awarded to the respondents No.4, which shall be payable by the petitioner to the respondent No.4, within a period of thirty days' from the date of receipt of certified copy of this order.
With the aforesaid, the writ petition stands disposed of. No order as to costs. c.c. as per rules.
In the aforesaid case the Indore Christian College, where the teacher was posted came up before this Court being aggrieved by the posting of the teacher to their college and the State Government supported their stand of posting a teacher in an institution receiving grant-in-aid on account of his discontinuance in the school where he was initially appointed. The judgment delivered by this Court was HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W.P. Nos. 413/2017, 414/2017, 2594/2017 AND 2595/2017 DINESH CHANDRA AND ORS., VS. STATE OF MP & ORS.,
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subjected to judicial scrutiny in W.A.No. 664/2011 filed in the matter and decided on 22/8/2013, wherein the order dated 22/11/2011 has been affirmed.
This Court is of the considered opinion that it is not a case of termination simplicitor or termination on account of holding of a Departmental Enquiry. Termination of the petitioner was on account of the fact that the District Education Officer has stopped grant-in-aid vide order dated 26/12/2016. Once the grant-in-aid was stopped, it was the duty of the District Education Officer to ensure that the petitioners are absorbed in other schools where the post are available and grant-in-aid is being paid by the State Government. Nothing of that sort was done inspite of repeated requests by the petitioners inspite of there being a statutory provision for absorption of such employees.
Resultantly, the Writ Petition is allowed. Respondents are directed to pass appropriate order of absorption posting the petitioners in some other institution receiving grant-in- aid. The exercise of passing appropriate absorption order posting the petitioners in some other school receiving grant- in-aid be concluded within a period of 30 days from the date of receipt of certified copy of this order.
Learned counsel for the petitioner has argued before this Court that the petitioners were always willing to work however for no fault on their part they have been deprived salary of the benefit of salary and therefore, they should be HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W.P. Nos. 413/2017, 414/2017, 2594/2017 AND 2595/2017 DINESH CHANDRA AND ORS., VS. STATE OF MP & ORS.,
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granted back wages also.
Learned counsel for the respondent State has opposed the prayer. However, this Court keeping in view the totality of the circumstances of the case is of the opinion that the interest of justice would be subserved in case 50% back wages are granted to the petitioners.
With the aforesaid, the present Writ Petition and the connected Writ Petitions stand allowed. No order as to costs.
(S. C. SHARMA) JUDGE KR Digitally signed by Kamal Rathor Date: 2018.03.20 17:06:09 +05'30'