The fundamental right of a minority institution isn't infringed merely because the state govt has prescribed the maximum age limit to appoint non-teaching staff, the Bombay HC has held.
"The right to choose & appoint an employee in the non-teaching staff still rests with the petitioner... (prescribing maximum age limit) in no manner can be construed as putting fetters on the right to choose & appoint an employee of the choice of minority institution," said a bench of justices Satyaranjan Dharmadhikari & Makarand Karnik.
Its Sept 27 verdict came on a petition filed in 2012 by St Isabel High School, Mazgaon, challenging a Nov 25, 2005 govt resolution which prescribes a maximum age of 33 years for shikshan sevaks/junior clerks in pvt. schools. It had urged the court to set aside the education inspector's order of Jan 12, 2011 not granting approval to a jnr. clerk who was 38 years old when appointed.
The school's advocate Arvind Kothari argued that being a minority institution it had the right to choose & select staff of its own choice & any restriction would be gross violation of Article 30 (1) of the Constitution. Also, the GR violates Rule 9 (4) (b) of Maharashtra Employees of Private Schools Rules which stipulate a minimum age of 18 years, but not a maximum age.
State's advocate Ajay Shastri countered that notwithstanding the absolute rights under Article 30 (1), the state can make regulations to advance it. The judges agreed with him that for purpose of grant-in-aid & releasing salary grants, the state has formulated a revised structure & norms which are in consonance with the Maharashtra Employees of Private Schools Act & Rules. "The fundamental right guaranteed under Article 30 (1) cann't be said to be infringed merely on a prescription made by the state govt stipulating maximum age limit for approving the appointment of a non-teaching staff," said justice Karnik wrote for the bench.
The judges said the state, while issuing the GR, hasn't tinkered with the minimum age prescribed by the rules. "As the rules are silent on prescription of the maximum age limit for non-teaching employees, the GR provides for a maximum age limit in pursuance to the policy prescribing revised structure & norms as a condition for approval. By doing so, it cann't be said the GR is contrary to the Act or the Rules,'' they added.
The judges noted that salary grant of the non-teaching employees is to be released only if the appointment of the employee is approved. "There is no embargo on the petitioner-institution in making appointment of an employee of their choice even beyond a maximum age limit, but if the petitioner is seeking approval for the purpose of releasing salary grant, then...the school has to necessarily comply with norms prescribed by the GR," the bench said.
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