Bombay High Court
Shri Ramnath Dada Mote And Ors. vs State Of Maharashtra And Ors. on 3 July, 2000
Equivalent citations: (2000)102BOMLR52
Author: D.Y. Chandrachud
Bench: A.P. Shah, D.Y. Chandrachud
JUDGMENT D.Y. Chandrachud, J.
1. Rule, returnable forthwith. Respondents waive service. By consent taken up for final hearing.
2. The authorities of the State Government have proposed to reduce the extent of casual leave allowable to teachers and to non teaching employees of private schools in the State. The reduction proposed is from 15 days to 8 days every year. The policy decision is embodied in a circular dated 16th November, 1999, addressed by the Director of Education to all the Education Officers in the State intimating a decision taken by the State Government in a Government Resolution dated 12th October, 1999. The legitimacy and the fairness of this decision and the power of the State Government to reduce the number of days of casual leave is sought to be impugned in these proceedings under Article 226 of the Constitution.
3. The 1st petitioner is an Assistant Teacher in a Secondary School at Ulhasnagar, since 1976. Besides, he is also the General Secretary of the Maharashtra Rajya Shikshak Parishad, in its Konkan Region including the districts of Thane, Raigad, Ratnagiri and Sindhudurg. The second petitioner is also an Assistant Teacher in a school at Shahad, Ulhasnagar. The schools in which the petitioners are employed are Government recognised private schools which receive 100 per cent grant-in-aid from the Government of Maharashtra.
4. The conditions of service of employees of private schools in the State are regulated by the provisions of the Maharashtra Employees of Private Schools (Conditions of Scrvice) Regulation Act, 1977 & by the Rules of 1981. These Statutory Rules have been framed in 1981 in pursuance of the provisions of the Act. Section 4 of the Act provides as follows:
4. (1) Subject to the provisions of this section the State Government may make rules providing for the minimum qualification for recruitment (including its procedure), duties, pay, allowances, post-retirement and other benefits, and other conditions of service of employees of private schools and for reservation of adequate number of posts for members of the backward classes:
Provided that, neither the pay nor the rights in respect of leave of absence, age of retirement and post-retirement benefits and other monetary benefits of an employeer in the employment of an existing private school on the appointed date shall be varied to the disadvantage of such employee by any such order.
5. Section 16 empowers the State by notification in the Official Gazette. to frame Rules for carrying out the purposes of the Act. Sub-section (2) of Section 16 which contains illustrations of the subjects in respect of which the Rule making powers can be exercised, empowers the State Government to frame Rules governing the conditions of service of employees of private schools including leave, superannuation, employment and promotion. Rule 16(4) of the Rules inter alia makes the following provisions in regard to the grant of casual leave.
16(4). Casual leave may be granted to the teaching and non teaching staff other than the Head, by the Head, and to the Head by the Chief Executive Officer or by the Management. If the Head is himself the Chief Executive Officer for a period not exceeding 15 days in an academic year subject to the condition that ordinarily not more than seven days casual leave can be enjoyed at a time which can be extended upto 10 days, only in exceptional circumstances.
6. The petitioners have set out that in 1989 the State Government reduced the period of casual leave from 15 days to 12 days in respect of the employees of the State Government and consequent thereto, corresponding changes were sought to be made in regard to the casual leave which could be availed of by employees of private schools. A circular was issued on 4th April, 1989 by which the Director of Education informed the Education Officers of all the Zilla Parishads of the decision of the State Government. The circular was challenged by the 1st Petitioner in a Writ Petition under Article 226 of the Constitution, being W.P. No. 31 70 of 1989 filed in this Court. The grievance of the petitioner was that the circular had no legal force since the rules were yet to be amended. A Division Bench of this Court in its order dated 21st August, 1989 dismissed the petition holding that while the Circular itself had no legal force, the reliefs sought for could not be granted since the circular itself presupposed the need for amending the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. Thereafter, according to the petitioners, the Director of Education by an order issued on 16th October 1989 stayed the circular of 4th April, 1989 and the State Government took no steps since for amending the Rules. On 16th November, 1999, the Director of Education has issued a circular informing all the Education Officers in the State that by a Government Resolution dated 27th October, 1999 the State Government has taken a decision to reduce the casual leave of employees of private schools from 15 days to 8 days with effect from June, 2000. On 27th October, 1999 a draft notification was issued by the State Government by which the draft Rules to amend the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 WCTC notified. The proposed amendment contemplates an amendment of Rule 16(4) by which it is proposed to provide as follows:
In Rule 16 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, in Sub-rule (4) the following sub-ruls shall be substituted, namely:
(4) Casual Leave may be granted to the teaching and non-teaching staff other than the Head, by the Head, and to the Head, by the Chief Executive Officer or by the Management if the Head himself is the Chief Executive Officer for a period, as the Government may, by order specify, from time to time.
Objections have been invited by the State Government to the proposed amendment. The Petitioners seek to challenge the draft notification dated 27th October, 1999 and the circular issued on 16th November, 1999 by the Director of Education furnishing an intimation of the draft notification.
7. At the outset, it needs to be emphasised that the extent to which employees of the private schools should be allowed casual leave, as indeed other employees in public service, raise an issue of policy. The Administrative and Regulatory Authorities, in this case the State Government, can legitimately determine (subject to constitutional & statutory safeguards) the extent to which leave can be allowed to employees, such as those of private schools. The Court, it is well settled, does not sit in judgment over matters of policy. The extent of judicial interference is limited and its objective is to ensure that the formulation, or implementation of policy does not contravene statutory or constitutional provisions. To the argument that there has been a contravention of statutory provisions we shall shortly turn but, before doing so, it would be necessary to emphasise that, in our view, it Is legitimately open to the Government to determine whether the extent of casual leave enjoyed by employees of private schools is not consistent with the need for meeting the demands of an efficient service and has to be suitably curtailed. The employees of private schools discharge important functions of the State in relation to the imparting of education. The absence from duty of employees of the State infringes upon the due discharge of the functions of the Welfare State. Absence away from work, whether in the form of leave, holidays or otherwise is the bane of a society which has an urgent and pressing need to attain higher levels of productivity. There is a need for ensuring the efficiency of administration. Productivity and efficiency shall not be norms which are alien to governmental functioning and, it is time that there is a realisation amongst employees of institutions, such as private schools, funded by the State that they owe a duty to the society at large to improve upon the woeful levels of efficiency. The role of the State is undergoing a rapid transformation particularly in the context of a liberalised economy. Our Society has ceased to be inward looking and has opened its frontiers to a global exchange of business and trade and in this context the State and its employees cannot constitute islands of exclusion from the winds of change. Educational institutions are expected to be efficient in training and developing human resources capable of meeting the challenges faced by a Society in transformation. The employees of private schools have a substantial protection under the law by virtue of the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. The underlying rationale for that protection is that these employees discharge important functions in the context of imparting of education and such employees should be protected against exploitation. The spread of education is an instrument of social and economic development. The protection of employees of private schools engaged in the dispensation of education must be commensurate with the corresponding responsibility which is placed upon them of ensuring that the manner in which they discharge their functions does not constitute a drag on the development of the Society.
8. In this background, we therefore have no hesitation in holding that it was and is legitimately open to the Government, subject to the fulfillment of constitutional and statutory requirements to decide as a matter of policy what should be the extent of leave that should be granted to employees of private schools. We, therefore, decline to entertain the request of the petitioners to enter into this area of policy which is best left to the Government to formulate. The notification which has been issued on 27th October, 1999 is a draft notification calling for suggestions and objections to the amendment of the Rules of 1981 in so far as the grant of casual leave is concerned. The notification invited suggestions and objections for consideration of the Government.
9. The point which has been urged before us by the learned Counsel appearing on behalf of the petitioners is that under Section 4(1) of the Act, the rights of an employees "in the employment of the existing private school" on the appointed date shall not be varied to the disadvantage of such an employee by the Rules framed by the State Government in so far as these rights relate to pay, leave of absence, age of retirement, post retirement benefits and other monetary benefits. The proviso to Section 4(1) of the Act thus preserves and protects certain rights in respect of service conditions in regard to those employees who were in the employment of "existing private school" on the appointed date. The expression "existing private schools is defined by Section 2(8) of the Act to mean a recognised private school which is in existence on the appointed date. "Private School" is defined by Section 2(20) to mean a recognised schools established or administered by a management other than the Government or Local Authority and the expression "recognised" is defined by Section 2(21) to mean 'recognised by the Director, the Divisional Board or the State Board, or by any officer authorised by him or by any of such Boards'. "Appointed date" is defined by Clause 1 of Section 2 to mean the date on which the Act has come into force. The Act came into force on 15th July, 1981 by virtue of a Government Notification issued under Sub-section (3) of Section 1 of the Act. The consequence of Section 4 is that where an employee was in the employment of an existing private school on 15.7.1981 his rights inter alia in respect of the leave of absence shall not be varied to the disadvantage of such an employee by the Rules. The right of this class of employees is thus safeguarded. The meaning of the proviso to Section 4 is not to place an embargo upon the amendment of the rules. The State Government has the rule making power under Section 16 of the Act for carrying out the purposes of the Act and this Rule making power extends to conditions of service, including the leave of employees of private schools. The contention of the learned Counsel appearing for the petitioner that since the Rules were in existence in 1981 no modification thereto could be made subsequently is without any basis and substance. Of course, any modification of the Rules must be consistent with the requirements of the proviso to Sub-section (1) of Section 4. In the circumstances aforesaid we do not find any basis to the challenge made by the Petitioner in this petition. We must clarify that since the grant of casual leave is provided in Rule 16 of the Rules framed under the Act any amendment to the Rules would be a matter for the Government to decide and must be brought into force by the State Government in accordance with law.
10. The petition is therefore rejected.
In the circumstances there shall be no order as to costs.