Bombay High Court
Chandrakant Shikshan Sanstha vs Shri Rajendra S/O Ramaji Belekar on 9 October, 2009
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 3323 OF 1997
Chandrakant Shikshan Sanstha,
Talkamptee, through its Secretary
Shri P.M. Falke, resident of
Telkamptee, Tq. Kalmeshwar,
District - Nagpur. ... PETITIONER
ig Versus
1. Shri Rajendra s/o Ramaji Belekar,
aged 30 years, r/o Umri (Nanda),
Tahsil - Saoner, District - Nagpur.
2. Shri Rameshwar s/o Gulabrao
Dongre, r/o Plot No. 12,
Janki Nagar, Katol, Tq. - Katol,
District - Nagpur.
3. Shri S.S. Umredkar,
aged 42 years, r/o Telkamptee,
District Nagpur.
4A.Shri Marotrao Vinayakrao Ghodmare.
4B.Master Sourabh Marotrao Ghodmare,
both residents of Telkamptee, Tq.
Kalmeshwar, District - Nagpur.
5. Education Officer,
Zilla Parishad, Nagpur.
::: Downloaded on - 09/06/2013 15:12:33 :::
2
6. Presiding Officer,
School Tribunal, Nagpur. ... RESPONDENTS
Shri N. Adbe, Advocate for the petitioner.
Shri V.S. Kukdey, Advocate for respondents No. 1 to 3 and 4A
and 4B.
Shri S.S. Doifode, AGP for respondents No. 5 & 6.
.....
CORAM : B.P. DHARMADHIKARI &
F.M. REIS, JJ.
ig OCTOBER 09, 2009.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
The present writ petition in fact challenges the common judgment dated 25.08.1997 delivered by the School Tribunal in Appeal Nos. 51 of 1996, 52 of 1996, 54 of 1996 and 58 of 1996. However, the petitioner management has also sought a writ for quashing certain part of Rule 27 sub-rule (d) of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as 1981 Rules). In view of this challenge, the matter has been placed before the Division Bench.
::: Downloaded on - 09/06/2013 15:12:34 ::: 32. In order to avoid unnecessary facts, it is appropriate to state two challenges raised before us by the petitioner. First challenge is, after introduction of Rule 25-A in 1981 rules with effect from 20th October 1987, the termination of services of employees in a School which is de-recognized by the department is automatic and it is not subject to Rule 26. Hence, such termination, being not retrenchment, cannot be subjected to provisions of Rule 27, particularly rule 27(d). Though, rule 26 has been amended to remove such termination from it because of its incorporation in Rule 25-A, corresponding amendment has not been effected in Rule 27(d) and hence in present matter, School Tribunal has acted under the impression that termination of respondents was also subject to provisions of Rule 27(d). The second contention is in any case the management was having a separate school by name Matoshree Vidya Mandir, Telkamptee, which was exclusively a Girls School and hence there was a separate seniority list for staff working therein. Because of this position, there was no question of comparing seniority of respondents who were working in that School with staff working ::: Downloaded on - 09/06/2013 15:12:34 ::: 4 in other two schools.
3. In this background, we have heard Shri Adbe, learned counsel for the petitioner - Management, Shri Kukdey, learned counsel for respondents No. 1 to 3 and 4A & 4B and Shri Doifode, learned AGP for respondents No. 5 & 6.
4. Shri Adbe, learned counsel has invited our attention to provisions of 1981 Rules, particularly the position as prevailing before October 1987 amendment thereto to show that then clause (4) of Rule 26(i) contemplated termination of permanent employees on account of closure of a course of studies or of School itself as retrenchment on account of abolition of posts in certain contingencies. He states that Rule 27 which prescribes principles of termination from service in the event of such retrenchment expressly refers to termination under (preceding rule) meaning thereby Rule 26. He points out that clause (d) of said Rule 27, therefore, also carried the words "or in case any one of its schools is required to be closed either due to ::: Downloaded on - 09/06/2013 15:12:34 ::: 5 withdrawal of recognition or due to the decision of the management to close it while effecting retrenchment". He strives to point out that after October 1987 amendment to Rule 26 whereby the words "or of the School itself" were deleted from Rule 26(1)(iv), these words in Rule 27 (d) lost their significance and relevance. According to him, Rule 27 is expressly restricted only to Rule 26. Rule 25-A which came to be added in October 1987, consider cases of termination of service on account of permanent abolition of posts and hence the termination under Rule 25-A cannot be construed as retrenchment and also as forming subject matter of Rule 26. He, therefore, states that in these circumstances, when the petitioner management terminated the services of permanent staff in its Matoshree Vidya Mandir on account of derecognition, the School Tribunal could not have found any fault therewith on the ground that employee's junior to them were continuing in other schools.
According to him, School Tribunal has for arriving at such a conclusion taken recourse to provisions of Rule 27(d) when in fact those provisions and particularly the words therein ::: Downloaded on - 09/06/2013 15:12:34 ::: 6 reproduced above are rendered meaningless because of subsequent amendments. To substantiate his contentions, he has taken us to relevant observations of School Tribunal. He has further relied upon the Division Bench judgment of this Court in the case of Dattaraj vs. S.S. Shikshan Sanstha, reported at 2004 (1) Mh.L.J. 516, to show that Constitutional validity of Rule 25-A has been upheld by the Division Bench. He also invited our attention to Division Bench judgment of this Court in the case of N.T. Deshmukh vs. State of Maharashtra, reported at 2006(3) All MR 512, to urge that the reading of said judgment shows that the provisions of Rule 27 cannot be resorted to when management has acted under Rule 25-A(1).
5. By inviting attention to the judgment of the School Tribunal, particularly para 27 onwards, the learned counsel states that the fact that Matoshree Vidya Mandir, Telkamptee was a Girls Schools was not in dispute before the School Tribunal and the documents produced by the management to show that there was a resolution passed by Managing Committee to have a ::: Downloaded on - 09/06/2013 15:12:34 ::: 7 separate seniority list for said School and the separate seniority lists produced by it were ignored only because the same were xerox copies. He contends that he is having original documents even now with him and those xerox copies on record can be verified. He states that the moment it is shown that the Girls School was having separate seniority list, the employees therein cannot be transferred to any other Branch and hence recourse to Rule 27 in their case is not permissible.
6. Shri Kukdey, learned counsel in reply states that Rule 25-A, though added subsequently, has carved out a separate category of employees who were otherwise subject to Rule 26 and, therefore, it is part of Rule 26 only. He further states that because of this, the rule making authority did not find it necessary to amend Rule 27(d) and by taking hypothetical example, he attempts to demonstrate that if case of petitioner is accepted, a junior employee transferred just few days back to such school which is being derecognized or which is being closed, will be required to be thrown out of employment for no ::: Downloaded on - 09/06/2013 15:12:34 ::: 8 fault on his part. He states that when the spirit of Rule 25-A, Rule 26 and Rule 27 is considered together, the Legislature never wanted such thing to happen and, therefore, adequate precautions have been taken. He states that though Rule 25-A has been held to be constitutionally valid, that does not mean that it is not subject to Rule 27(d). He further argues that the subsequent judgment of Division Bench of this Court in the case of N.T. Deshmukh vs. State of Maharashtra (supra) does not hold that provisions of Rule 27 are not available when services of employees are terminated under Rule 25-A.
7. Lastly, he invites our attention to the judgment of School Tribunal to urge that School Tribunal has for valid reasons rejected the argument and contention of a separate seniority list for alleged Girls School. He contends that it being a finding of fact, no interference is warranted in writ jurisdiction.
8. Shri Doifode, learned AGP appearing for Respondents ::: Downloaded on - 09/06/2013 15:12:34 ::: 9 No. 5 & 6 has supported the order of School Tribunal. He contends that the words in Rule 27(d) were not required to be deleted because the termination contemplated under Rule 25-A is from within the category which earlier formed part of Rule 26.
According to him, therefore, on account of this, no interference is warranted in the judgment of the School Tribunal.
9. Insofar as contention of separate seniority list for Girls School is concerned, the School Tribunal has in paras 27 and 28 considered the respective arguments and then in para 29 found that the management never came up before it with express plea either in replies filed to memo of appeal or elsewhere that there was any resolution passed by any competent body to maintain separate seniority list of employees working in Matoshree Vidya Mandir, Telkamptee, it being a Girls School. It also found that there was no plea about any such letter having been sent to the Education Officer by it. The plea in this respect was taken belatedly after the employees filed their rejoinder to the reply of management before School Tribunal. Even in that reply, the ::: Downloaded on - 09/06/2013 15:12:34 ::: 10 management did not disclose any such resolution or any such letter. It further found that original documents were not produced before it to verify the genuineness of xerox copies placed on record. The office of the Education Officer had not mentioned the date of receipt of management's letter allegedly dated 03.09.1993 and there was no affidavit of management i.e. present petitioner in support of those documents. In para 30, therefore, it has found that to show that there was a separate seniority list of Girls School and common seniority list of other two schools, the documents were not produced by the management. It has, therefore, rejected the case of the management that it was maintaining a separate seniority list of employees of Matoshree Vidya Mandir, Telkamptee. The consideration, therefore, shows that though the management was having full opportunity and notice, it has not utilised it and did not produce necessary documents before the School Tribunal to substantiate its contentions. The offer of the petitioners to produce originals before us so as to enable us to verify the correctness of xerox copies, needs to be view in this background.
::: Downloaded on - 09/06/2013 15:12:34 ::: 11The learned counsel also urged that this Court can remand the matter back to the School Tribunal for the said purpose.
10. The appeals before the School Tribunal were filed in 1996 and have been decided on 25.08.1997. The position, therefore, is an effort is being made to cure the lacuna after 11 years. We are, therefore, not in a position to accept such an offer. We do not find anything wrong with the finding of School Tribunal in this respect.
11. The provisions of Rule 25-A insofar as relevant for present consideration show that when a School is closed due to de-recognition, the services of permanent employee stand terminated. Sub-rule (1) states that services of permanent employee may be terminated by the management in these circumstances by giving him advance intimation of three months and such an advance intimation is required to be given after receipt of Show cause notice from the office of Deputy Director.
As per sub-rule (2), the names of employees whose services are ::: Downloaded on - 09/06/2013 15:12:34 ::: 12 terminated on account of de-recognition and who are not directly responsible for such de-recognition are to be taken on waiting list by the Education Officer. Under Rule 26(1), the management can retrench from its service a permanent employee after giving him three months notice and its clause (iv) as it now stands permits such retrenchment in case of closure of a course of studies. Before October 1987, the words "or of school itself"
were appearing at the end of this clause (iv). By amendment the Rule making authority has separated the cases of closure and retrenchment. The retrenchment is always from an ongoing school i.e. where the establishment of the School continues, while closure puts an end to the life of School. Under Rule 25-A, this is contemplated when management itself voluntarily decides to close the school or when the school is derecognized and, therefore, cannot continue. Thus, under Rule 25-A, the School itself comes to an end and no activity is left. Under Rule 26, the School does not come to an end but its activity continues. As the activity continues in future, the rule making authority has also envisaged a scope for re-employment of retrenched staff and ::: Downloaded on - 09/06/2013 15:12:34 ::: 13 accordingly in rule 26, the provisions have been made. We are not concerned with those provisions but the Division Bench of this Court while upholding the constitutional validity of Rule 25- A in its judgment in the case of Dattaraj vs. S.S. Shikshan Sanstha, (supra) has found that this classification made by rule making authority was valid and not arbitrary or discriminatory.
Rule 25-A as added by amendment was, therefore, upheld. It is to be noted that the Constitutional validity of Rule 25-A is not being assailed before us by the petitioner and the petitioner is beneficiary of said provision.
12. The judgment in N.T. Deshmukh vs. State of Maharashtra, (supra) does not consider the issue whether Rule 27 is applicable in case the termination is brought about under Rule 25-A. The perusal of said judgment particularly para 26 shows that an argument in this respect was raised before the Division Bench but the Division Bench was there concerned with compliance of principles of natural justice in case of de-
recognition of school. The Division Bench there noticed that ::: Downloaded on - 09/06/2013 15:12:34 ::: 14 though literally interpreted, there is no requirement to issue notice to members of teaching and non teaching staff if the School is de-recognized but the consequences of such decision have bearing on the rights of staff in the school and results in termination of their service and retrenchment. Because of this result, the Division Bench found that the Educational authorities were duty bound to give an opportunity of hearing and as this opportunity to explain as to how they are not responsible for the de-recognition of school was not given, a direction to give such an opportunity was issued. The judgment, therefore, is of no help in present matter.
13. The perusal of Rule 27 shows that it prescribes principles of termination where retrenchment was to be effected from service. In its opening part, it mentions that while terminating the services of employee "under the preceding rule", the "following principles" shall also be observed. Though, we are not concerned with the principles as such, the reference to preceding rule therein is to Rule 26. The School Tribunal has ::: Downloaded on - 09/06/2013 15:12:34 ::: 15 found that the petitioner - management has not complied with sub-rule (d) of rule 27 and the said sub-rule (d) reads as under :
"(d) In case the Management runs more than one school and in case the retrenchment is to be effected under rule 26 in any one of the schools, run by it or in case any one of its schools is required to be closed either due to withdrawal of recognition or due to the decision of the Management to close it while effecting retrenchment, the principle of common seniority of employees working in all the schools conducted by it shall be observed along with the above principles."
The perusal of sub-rule, therefore, shows that it gets attracted when the management runs more than one school. It is also clear that it mentions retrenchment to be effected under Rule 26 in any one of its school and then it also mentions the closure of one of school either due to withdrawal of recognition or due to decision of management to close it. The petitioners are objecting to these rules in sub-rule (d). The mention of rule 26 or preceding rule, according to us, in the scheme of rule 27, is ::: Downloaded on - 09/06/2013 15:12:34 ::: 16 not very relevant. The contingencies contemplated by it are important and the principles mentioned therein need to be followed whenever the retrenchment is to be effected. It is important to note that Rule 25-A(1) vide its sub-clause (i) contemplates voluntary closure by the Management and there is nothing in sub-rule (2) thereof to show that names of employees so terminated are also to be taken on waiting list maintained under that sub-rule.
14. It is to be noted that when management is running more than one school and only one school or one branch is sought to be closed, there may be senior employees in such school which is being closed voluntarily by the management. It is not in dispute that Rule 12 read with Schedule F, Note 5 requires such management running more than one school to maintain combined seniority list. Rule 41 permits management to transfer teaching and non teaching staff from one school to another in the interest of administration. Hence, to hold that because of Rule 25-A employees in school, voluntarily closed ::: Downloaded on - 09/06/2013 15:12:34 ::: 17 down by the management, though senior will be required to be terminated and juniors in other schools will not be affected sounds highhanded and paradoxical. It is to be noted that in scheme of Rule 25-A itself, when employees are being terminated on account of de-recognition by department, names of employees not responsible for derecognition are directed to be kept on waiting list. The scheme of rule 25-A(2) is entirely different. In view of the de-recognition and consequent termination, it is apparent that if such employee is not found responsible for de-
recognition, his name is to be kept on waiting list. If such employee placed on waiting list happened to come to unfortunate School on transfer, he would be penalized for no fault. Some managements may also victimize unwanted employees. All this shows that Rule 25-A (1)(i) is not complete and it is subject to rule 27. In other words, though it has been placed in rule 25-A, contingencies contemplated therein are carved out from rule 26 itself and hence the termination of service on account of abolition of posts as contemplated therein is subject to Rule 27 when the management is running more than ::: Downloaded on - 09/06/2013 15:12:34 ::: 18 one school.
15. The School Tribunal has, therefore, rightly considered the controversy and we do not find anything wrong with its reasoning. We are, therefore, not inclined to interfere in this writ petition. The challenge to provisions of Rule 27(d) and seeking deletion of particular words therefrom is misconceived.
Writ Petition is accordingly dismissed. However, there shall be no order as to costs.
16. At this stage, Shri Adbe, learned counsel for the petitioner states that interim order operating in favour of the petitioner should be continued for a period of ten weeks more.
17. Shri Kukdey, learned counsel for respondents No.1 to 3 and 4A and 4B states that the petition was dismissed in default and thereafter respondents were reinstated. However, he fairly states that the respondents have not received their salary.
::: Downloaded on - 09/06/2013 15:12:34 ::: 1918. In the circumstances, interim order operating till date to continue for a period of 10 weeks more and shall cease to operate automatically thereafter.
JUDGE
ig JUDGE
*GS.
::: Downloaded on - 09/06/2013 15:12:34 :::