Madhya Pradesh High Court
Ashaskiya Anudan Prapt Adim Jati ... vs The State Of Madhya Pradesh on 25 March, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE : HON'BLE SHRI JUSTICE VIVEK AGARWAL
ORDER RESERVED ON : 27.1.2022
ORDER PRONOUNCED ON : 25.3.2022
WRIT PETITION No. 1739 of 2022
Between:-
ASHASKIYA ANUDAN PRAPT ADIM JATI ANUSUCHIT JATI
SHIKSHAK AIVAM KARMCHARI SANGH MADHYA PRADESH
HEAD OFFICE 617 THROUGH ITS PRESIDENT DEV SINGH YADAV
A SECTOR, NEW ASHOKA GARDEN, BHOPAL (M.P.) (MADHYA
PRADESH)
.....PETITIONER
SHRI K.C.GHILDIYAL, SENIOR ADVOCATE ASSISTED BY
SHRI MANOJ KUMAR RAJAK, ADVOCATE FOR PETITIONER
AND
1. THE STATE OF MADHYA PRADESH THROUGH THE
PRINCIPAL SECRETARY SCHEDULED CASTE DEPARTMENT
VALLABH BHAWAN, BHOPAL (M.P.) (MADHYA PRADESH)
2. PRINCIPAL SECRETARY FINANCE DEPARTMENT
VALLABH BHAWAN , BHOPAL (M.P.) (MADHYA PRADESH)
3. COMMISSIONER SCHEDULE CASTE DEVELOPMENT,
BHOPAL DISTRICT-BHOPAL (MADHYA PRADESH)
4. COLLECTOR BHIND DISTRICT-BHIND (MADHYA
PRADESH)
5. ANUSUCHIT JATI SHIKSHA SAMITI GWALIOR 115, RAJYA
KARMCHARI AWAS NIGAM COLONY, MAHALGAON, DISTRICT-
GWALIOR (MADHYA PRADESH)
.....RESPONDENTS
SMT.SWATI ASEEM GEORGE, PANEL LAWYER FOR STATE
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This writ petition has come up for hearing and the Court has
passed following:
ORDER
Petitioner Ashaskiya Anudan Prapt Adim Jati, Anusuchit Jati Shikshak Avam Karmchari Sangh has filed this writ petition seeking issuance of a writ, order or direction in the nature of mandamus directing the respondents to grant necessary sanction for creation of 36 posts in Higher Secondary School run by the Private Societies under grant-in-aid and provide grant-in-aid & pay salary to the employees out of maintenance grant as is paid to the employees of grant-in-aid Institutions appointed prior to promulgation of the Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Sanshodhan Adhiniyam, 2000.
2. Undisputed facts of the present case are that petitioners are employees of the Societies registered under the provisions of the Madhya Pradesh Society Registration Act, 1973 and these Societies are running Educational Institutions. The Institutions managed by the Socialites are recognized schools & are governed 3 by the provisions of the Madhya Pradesh Ashaskiya School Viniyaman Adhiniyam, 1975. These schools where the employees of the petitioner's association are working have two categories of staff. The first category is of such employees, those who are working on the posts sanctioned by the Government of Madhya Pradesh and such employees are receiving their salary out of maintenance grant paid to the Societies by the State Government. The second category of staff is working on the posts, which are created by the Management in accordance with the Madhya Pradesh Ashaskiya School Viniyaman Adhiniyam, 1975 for running the Institutions and their salary is paid by the Management of the Institutions out of their own earnings. Admittedly, the employees of the petitioner's association are falling under second category i.e. those who are paid salary by the Management out of its own earnings.
3. According to the petitioner, the employees who are receiving salary out of the maintenance grant are governed by the provisions of Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Adhiniyam, 1978.
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4. In the year 2000, the State Government promulgated Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Sanshodhan Adhiniyam, 2000. The aforesaid amendment was challenged before the High Court in Writ Petition No.1104/2000 and the High Court vide order dated 11.1.2002 declared the amendment of 2000 to be unconstitutional. Thereafter, the State Government had challenged the order of the Division Bench of this High Court in S.L.P.(C) No.8534/2002, which was finally disposed of vide order dated 7.1.2014 whereby the Supreme Court was pleased to direct that the provisions of Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Sanshodhan Adhiniyam, 2000 will not be applicable to the employees appointed prior to the year 2000.
5. According to the petitioner, the State Government had not allowed filling up of any post falling vacant in the Private Aided Institutions from the year 2000 as a result of which the posts falling vacant due to retirement, death or resignation of such employees remained vacant for all these years and now in view of 5 the decision of the Supreme Court, the State Government has decided not to permit filling up of the vacant posts.
6. In the aforesaid backdrop, it is submitted by the learned counsel for the petitioner that because the employees of the petitioner's association are working in the Establishment of the respondent/Society for about two decades under Non-Grant- Establishment, they are entitled for their absorption against the said vacant posts falling vacant consequent to retirement/death of grant-in-aid employees. It is also submitted that the employees of the petitioner's association are discharging similar type of duties as being discharged by the employees under grant-in-aid set up, therefore, they are fully qualified and are eligible to hold such posts should be permitted to be absorbed against grant-in-aid posts falling vacant on account of death, retirement, resignation or any other exigencies.
7. The respondent/State has filed its reply mentioning therein that the State Government has issued a Circular dated 8.5.2015, which categorically provides that any post if falls vacant due to the retirement/promotion or otherwise will not be filled up by fresh appointment and as such in view of said decision, no fresh 6 appointments are being made in Private Aided Institutions. It is also submitted that in view of the Circular dated 8.5.2015, the services of the employees of the petitioner's association were never absorbed in the Private Aided Institutions. It is also averred in the return itself that since the responsibility to pay salary to these employees is that of the Management, therefore, they cannot be absorbed against grant-in-aid posts.
8. After hearing learned counsel for the parties and going through the record, it is evident that the Supreme Court in Civil Appeal No.6362/2004 (State of Madhya Pradesh & Another versus Sharique A Ali & Others) vide order dated 12.12.2013 accepted the proposal of the State, namely, the State Government proposes to pay the arrears at the existing approved scale from next financial year i.e. April, 2014 onwards. The Supreme Court also accepted the second proposal, which reads as under:-
"B. The arrears shall be paid after adjusting the tuition fee charged by private schools and colleges as per Circular dated 31.1.2000. The State Government shall ascertain the tuition fee charged by each school or college within 6 months;7
(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 have retired but are alive, the State Government proposes to pay arrears in atleast three equal annual installments;
(iii) After following the procedure in Clause B, in case of employees (teacher and other staff) whoa re still in service, the State Government proposes to pay arrears in atleast five equal annual installments."
9. The proposal of the State Government 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 was objected to by the learned Senior Counsel Shri Shanti Bhushan & he proposed that the State Government should place teachers/lecturers/non-teaching staff to the existing approved scale till their age of superannuation.
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10. Thereafter, this matter came up for hearing & was decided on 7.1.2014. The Supreme Court set aside the judgment & order passed by the High Court of Madhya Pradesh & directed that the 6th Pay Commission Scale shall be given to the teachers/lecturers/non-teaching staff working in the private aided educational institutions in the State of Madhya Pradesh. The Supreme Court further clarified that the Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Adhiniyam, 1978 as amended by the Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Sanshodhan Adhiniyam, 2000 (for brevity "Amended Act") shall not be made applicable to the respondents & other similarly situated persons. The Supreme Court 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 & disposed of the Special Leave Petition(s) in that terms.
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11. When claim of the petitioner is examined in the light of the judgment of the Supreme Court in the case of the State of Madhya Pradesh & Another versus Sharique A Ali & Others (supra) then it is evident that the writ of mandamus is sought seeking grant of necessary sanction for creation of 36 posts in Higher Secondary School No.2 Daboh run by the respondent No.5/Anusuchit Jati Shiksha Samiti vide Annexure P/26, which reveals that the persons qua whom the relief is sought are all appointees after coming into effect of the Amended Act. Thus, in terms of Paragraph No.7 of the order dated 7.1.2014 passed by the Supreme Court, it is evident that the Amended Act is applicable to all 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.
12. A Division Bench of this Court in Writ Appeal No.354/2017 (Shishu Vidyapeeth Bengali Girls Higher Secondary School, Gun Carriage Factory Estate, Jabalpur versus Smt.Anusua Das Sharma & Others) vide order dated 30.8.2017 has held that the Repealed Service Rules, 1988 would not apply for promotion to the staff of the private aided 10 educational institutions, after enforcement of the Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Sanshodhan Adhiniyam, 2000 and the Madhya Pradesh Ashashkiya Shikshan Sanstha Anudan Niyam, 2008.
13. The High Court of Karnataka in the case of Smt.Renuka & Others versus State of Karnataka & Others 1999 (2) Kar.L.J 318 dealt with the similar situation & held that the grant-in-aid cannot be claimed as a matter of right. Giving of such grants are necessarily a part of the Government Policy, which again depends on the financial capacity & revenue resources of the Government. The High Court of Karnataka took a cue from the judgment of the Supreme Court in the case of State of Orissa & Another versus Aswini Kumar Dash (1998) 3 SCC 613.
14. The amended provisions of Section 6 provides for a prohibition on creation of posts & appointments of staff & termination of services. It provides that notwithstanding anything contained in any law for the time being in force or any rules, regulations, bylaws, statutes or regulations made thereunder:- (A on and from the appointed date - (i) no post of a teacher or other 11 employee shall be created & no teacher or other employee shall be recruited without following the procedure prescribed in this behalf). Thus, it is evident that once the appointment of a teacher/employee as a grant-in-aid teacher/employee is barred by the amendment in the Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Adhiniyam, 1978 then the employees of the petitioner's association are not entitled to claim benefit of their absorption after the cut-off-date when the Amended Act was promulgated & is enforced.
15. The Supreme Court in the case of Union of India (UOI) & Others versus Hindustan Development Corporation & Others Manu/SC/0219/1994 Paragraph 29 has observed that the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor does it amount to a claim or demand on the ground of a right. However, earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assert-able expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral 12 obligation cannot amount to a legitimate expectation. Therefore, legitimacy of an expectation can only be inferred if it is based on the sanction of law or custom or an established procedure followed in regular and natural system.
16. The Delhi High Court in the case of GNCT of Delhi versus Naresh Kumar (2010) 175 DLT 143 (DB) in Paragraph 21 has summarized the legal position with regard to legitimate expectation in the following term:-
"Thirdly, for a legitimate expectation to arise, the decision of administrative authority must affect the person by depriving him of some benefit or advantage which he had in the past been permitted, by the decision maker, to enjoy and which he can legitimately expect to be permitted to continue, until some rational grounds for withdrawing it have been communicated to him.
Fourthly, if the authority proposes to defeat a person's legitimate expectation, it should afford him an opportunity to make a representation in the matter.13
Fifthly, the doctrine of legitimate expectation permits the Court to find out if the change in policy which is the cause for defeating the legitimate expectation, is irrational or perverse or one which no reasonable person could have made."
17. Thus, when examined the case at hand in the light of the legal position as regards the legitimate expectation then it is apparent that the doctrine of legitimate expectation will not be applicable to the facts & circumstances of the present case because the employees of the petitioner's association, who were admittedly appointed after promulgation of the Amended Act & are not getting salary from grant-in-aid but from the coffers of the Institutional Management, cannot have any legitimate expectation to be absorbed against the grant-in-aid posts when they were neither appointed nor allowed to work under the grant-in-aid posts.
18. Thus, even on the touchstone of the doctrine of the Legitimate Expectation as well as the statutory provisions, when the case of the petitioner is tested, it is liable to fail as there is no denial of the fact that the administrative authority has not deprived the employees of the petitioner's association of any benefit or 14 advantage which they had in the past and which they were allowed to enjoy & which they were legitimately expecting to be permitted to continue.
19. Infact, both the categories of employees/teachers, namely, those appointed after the cut-off-date & once who were never part of the grant-in-aid scheme, are not entitled to claim any benefit on the basis of the Amended Act or on the basis of the provisions as contained in the Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Adhiniyam, 1978 in absence of any material to show that the procedure prescribed in the Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Adhiniyam, 1978 was followed while giving adhoc/honorarium based appointment to some of the employees of the petitioner's association.
20. Accordingly, this writ petition fails & is dismissed.
(VIVEK AGARWAL) JUDGE amit AMIT Digitally signed by AMIT JAIN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=fb7acc8fa9459a372c91f97c42dcd 1f410fc14ca1f709973d88cd85760a0e0c7, JAIN pseudonym=60DB6303DA38CA5D8E4BFC 099E76F8F8FD7E86DA, serialNumber=3EBC4D14FC9CDC94F7007 F3EC434B08F461F95C568403DF614DCAF 5AD1CC7099, cn=AMIT JAIN Date: 2022.03.25 17:13:15 +05'30'