Madhya Pradesh High Court
Smt. Neena Pramanik vs The State Of Madhya Pradesh on 30 August, 2017
Bench: Hemant Gupta, Vijay Kumar Shukla
HIGH COURT OF MADHYA PRADESH : JABALPUR
(Division Bench)
CORAM :
Hon'ble Shri Justice Hemant Gupta, Chief Justice.
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
Writ Appeal No.354/2017
Shishu Vidyapeeth Bengali Girls Higher Secondary School, G.C.Fy.
Estate, Jabalplur
-Versus-
Smt. Anusua Das Sharma and others
Shri Arpan J. Pawar, Advocate for the appellant.
Shri K.C. Ghildiyal, Advocate for the respondent No.1.
Shri Sanjay Dwivedi, Deputy Advocate General for the State.
Writ Appeal No.429/2017
Smt. Neena Pramanik
-Versus-
State of M.P. and others
Miss. Anjali Banerjee, Advocate for the appellant.
Shri Sanjay Dwivedi, Deputy Advocate General for the State.
Shri K.C. Ghildiyal, Advocate for the respondent No.5.
Whether approved for
reporting ?
Law laid down Repealed Service Rules 1988 would not apply for
promotion to the staff of private aided institutions after
enforcement of the Amended Act, 2000 and the Rules,
2008.
Significant paragraph Nos. 7 and 10.
JUDGEMENT
( 30.8.2017) Per: Vijay Kumar Shukla, J.-
Both the appeals take an exception to the order dated 10-11-2016 passed by the learned Single Judge whereby the writ 2 petition filed by the respondent No.1 - Smt. Anusua Das Sharma has been allowed. The order dated 27-12-2013 passed by the appellant - institution appointing the respondent No.5 - Smt. Nina Pramanik as In-charge Principal has been quashed. The respondent No.3, District Education Officer, Jabalpur has been directed to take appropriate action against the educational institution within a period of one month from the date of receipt of the certified copy of the order and the respondents No.1 to 4 have been directed to consider the case of the petitioner-respondent No.1 for promotion to the post of Principal and if she is found fit, she be promoted from the due date.
2. The factual expose adumbrated in a nutshell : The respondent No.1 filed a writ petition submitting that for the purpose of promotion, service conditions of the petitioner are governed by the Rules, namely, Madhya Pradesh Private Educational Institutions (Promotion of Teachers and other Employees working in the Schools) Rules, 1988 [for brevity `the Rules 1988'] framed under the Madhya Pradesh Ashaskiya Shikshan (Adhyapakon Tatha Anya Karmchariyon ke Vetano ke Sanday) Adhiniyam, 1978 [hereinafter referred to as `the Adhiniyam 1978']. The petitioner was appointed on the post of Lower Division Teacher (LDT) thereafter, she was promoted on the post of Upper Division Teacher (UDT). 3
3. It is contended that the petitioner is a teacher, who is receiving salary from the grand-in-aid received by the institution from the Government. The grievance of the petitioner is that the respondent No.5, who is not included in the grant-in-aid staff of the institution, has been given the charge of the Principal, although as per the Rules 1988, the seniority of teachers in the aided institution shall be prepared only amongst those teachers who are receiving salary from grant-in-aid. It is further submitted that in accordance with the provision of Rule 3(1) & 3(2), such candidates are entitled to be promoted by the Committee as specified therein.
4. It is submitted that the petitioner was having requisite eligibility to hold the post of the Principal, but without considering the case of the petitioner for promotion, though fully eligible for the post of Principal, charge of the Principal was given to the respondent No.5, who is an employee of the Management and she is not included in the list of grant-in-aid employees, therefore, the action of the respondents is arbitrary.
5. Counsel for the appellant submitted that the appellant is an educational institution receiving post-wise grant-in-aid from the State Government only against six posts out of total 42 posts. The institution is not receiving any grant-in-aid for the post of Principal 4 of which the respondent No.1 is seeking promotion. It is contended that after commencement of the Madhya Pradesh Ashashkiya Shikshan Sanstha Anudan Niyam, 2008 [for short `the Rules 2008'], a common seniority list is required to be maintained in respect of the teachers receiving grant-in-aid and those are to be paid by the Management of the School. It is contended that the Madhya Pradesh Ashaskiya Shikshan Sanstha Adhiniyam, 1978 was amended by Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmchariyon ke Vetano ke Sandaya) Sanshodhan Adhiniyam, 2000 [hereinafter referred to as "the Amended Act 2000"]. After amendment the State Government has stopped making the payment of grant-in-aid to the individual employees of the private institution and maintenance grant is being granted to the private educational institutions. Therefore, there is no separate seniority list of the employees in the institution receiving grant-in-aid from the State Government and the employees receiving salary from the Management. Counsel for the appellant further submitted that the learned Single Judge has erred while applying "the Rules 1988", which has already been repealed by the "new Rules 2008". The new Rules have been framed in exercise of powers conferred by Section 10 of the Adhiniyam 1978. He referred to Rule 8 of the Rules 2008 and submitted that the Rules 1988 has been repealed.
5
6. The counsel for the writ petitioner/respondent contended that in view of judgment passed by the Supreme Court in the case of State of M.P. and another vs. Sharique A. Ali & Ors. [Civil Appeal No.6362/2004] the employees appointed prior to Amended Act, 2000 shall continue to receive the grant-in-aid from the State Government and promotion to the post of Principal would be governed by the old Rules of 1988 though they have been repealed in year 2008, therefore, the learned Single Judge has rightly held that the petitioner is senior-most teacher in the list of teachers receiving grant-in-aid and as per provisions of Rule 3(1) and 3(2) of Repealed Rules of 1988, he would be entitled to be considered for promotion to the post of Principal and the respondent No.5, though senior in total length of service in the institution, would not have any claim for promotion on the post of Principal.
7. The issue involved in the present case is that whether the Repealed Rules of 1988 would apply to the Teachers and other employees working in the Private Educational Institutions for the purpose of promotion after coming into force of Amendment Act, 2000 and the Rules of 2008?
8. We have heard learned counsel appearing for the parties. The learned Single judge referred to the Rules 1988 and held that 6 the writ petitioner is having a right to be considered for promotion on the post of Principal, being the senior-most teacher in the grant- in-aid staff list.
9. Per contra, counsel for the appellants submitted that after the repeal of the Rules 1988, new rules were made by the State Government in exercise of powers conferred by Section 10 of the Adhiniyam 1978 and after the amendment of 2000, grant-in-aid was stopped by the State Government and, therefore, there was no separate list of the employees receiving grant-in-aid and the employees not receiving grant-in-aid, as after the said amendment, the salary has to be paid to all the employees by the Management. The post of Principal is not receiving any grant-in-aid. Now the State Government makes payment of 'maintenance-grant' to the institution and not to the individual teaching staff. Rule 8 of the Rules 2008 being relevant for the present purpose, is reproduced hereunder:
"8. Repeal of existing rules.- The Madhya Pradesh Ashashkiya Shikshan Sanstha (Suspension of Teacher and Other Staff) Rules, 1978. Madhya Pradesh Sansthagat Nidhi Rules, 1983; Madhya Pradesh Ashashkiya Shikshan Sanstha (Procedure regarding dismissal, removal of teacher and other staff) Rules, 1983; Madhya Pradesh Ashashkiya Shikshan Sansthan (Promotion of teacher and other staff working in the school) Rules, 1988; and 7 Madhya Pradesh Ashashkiya Shikshan Sanstha (Recruitment of teachers and other employees) Rules, 1979 shall stand repealed. Provided that any order made or any action taken under the rules so repealed shall be deem to have been made or fallen under the corresponding provisions of these rules.
REPEALED RULES The Rules mentioned below are repealed by M.P. Ashashkiya Shikshan Shikshan Sanstha Anudan Niyam, 2008, hence not reproduced.
1. The Madhya Pradesh Ashashkiya Shikshan Santha (Adhyapakon Tatha anya Karmachariyon ki Bharti) Niyam, 1979;
2. The Madhya Pradesh Ashashkiya Shikshan Sanstha (Institutional Fund) Rules, 1983;
3. The Madhya Pradesh Ashashkiya Shikshan Sanstha (Adhyapakon tatha Anya Karmachariyon ko Padachyut Karne Sewa Sehatane Sambandhi Prakriya) Niyam, 1983;
4. The Madhya Pradesh Ashashkiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon ke Nilamban) Niyam, 1978;
5. The Madhya Pradesh Private Educational institutions (Promotion of Teachers and other Employees working in schools) Rules, 1988."
From a bare perusal of the Rules it is evincible that the Rules 1988, i.e., the Madhya Pradesh Private Educational institutions (Promotion of Teachers and other Employees working in schools) Rules, 1988 were repealed. Once the "Rules 1988" has been repealed and "new Rules 2008" have been framed by the 8 State Government under the Adhiniyam 1978, the Rules 1988 are not in existence and they would not continue to govern the service conditions of the employees working in the private institutions. The same would be contrary to object of the "Amended Act 2000" and "Rules 2008".
10. Contention of the counsel for the writ-
petitioner/respondent that the service conditions of the petitioner/respondent would still be governed by the "Rules 1988", in view of the judgement passed by the Apex Court in Sharique A. Ali & Ors. (supra) has also no merit, as the said case was in relation to the payment of arrears as recommended by the 6 th Pay Commission to the Teachers/Lecturers/non-teaching staff working in the private aided educational institutions and recovery of payment. In the said context the Hon'ble Supreme Court has clarified that the amended Act would be applicable to the Teachers/Lecturers/non-teaching staff appointed in the private aided educational institutions in the State of Madhya Pradesh after enforcement of the "Amended Act", but it has not been held that the the old Repealed Service Rules shall continue to apply for the purpose of promotion to the employees appointed prior to the "Amended Act, 2000". In view of aforesaid discussion, we hold 9 that the "Repealed Rules 1988" would not apply to the case of the writ petitioner.
11. Accordingly, the writ petition is dismissed and the present writ appeals are allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.
(Hemant Gupta) (Vijay Kumar Shukla)
Chief Justice Judge
ac.