Laxmi Vidya Mandal And Ors. vs State Of Maharashtra Through Its ...
2003 Latest Caselaw 411 Bom

JUDGMENT

Kanade V.M., J.

1. The petitioner is a Public Trust duly registered under the Bombay Public Trusts Act. The said trust is an Educational Trust and it has established and is administering one Educational Institution viz. Laxmi Vidyalaya which has a Secondary school from 5th to 10th standard. The petitioner has filed this petition under Article 226 of the Constitution of India and is seeking appropriate writ, order and direction from this Court directing respondents to permit the petitioner to close the said school with effect from the academic year 1999-2000 and further direct respondents 1 to 4 to absorb respondents 5 to 17 in some other school which is receiving grant-in-aid. The petitioner is also seeking a direction that respondents 1 to 4 may be directed to pay salary of respondents 5 to 17 from August, 1997 till they are absorbed in another school.

2. The brief facts, which are necessary for the purpose of deciding the petition, are as follows:

That the petitioner school was started in the year 1962 and from 1962 to 1986 the school was running smoothly. However, from the academic year 1986-87 there was a reduction in the strength of the students and by the academic year 1990-91 only one section of each standard remained in the school. It is an admitted position that the petitioner school was receiving grant-in-aid from its inception. It is submitted by the petitioner that the reduction in the strength of the students was principally because of the fact that the respondents 1 to 4 had granted permission to various institutions for starting secondary schools in the same area. That in 1962 when the petitioner had established the school, it was the only school in the area. However, as a result of indiscriminate grant of permissions granted by respondents 1 to 4, there were as many as 13 schools which were in existence by 1990. It is the contention of the petitioner that by the academic year 1997-98, the strength of the students in standard 5th and 7th was reduced to 7 and 19 respectively and, therefore, by letter dated 14-10-1997 the Education Officer respondent No. 4 directed the society that the standard 5th and 7th of the school would not be admissible for grant as the strength of the students had reduced to less than 20. Similarly, the penal fine of Rs. 2500/- was imposed so far as 8th standard was concerned.

3. It is an admitted position that all the respondents 5 to 17 had become permanent employees and were entitled to get protection of their services as per the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Act and Rules framed therein.

4. It is the contention of the Management of the petitioner that they had no other options but to terminate the services of respondents 5, 6 and 7 and accordingly the orders of termination were issued to them. Respondents 5 to 7 preferred an appeal before the Presiding Officer, School Tribunal and an interim order was passed granting status quo in the matter and as a result respondents 5 to 7 were continued in service.

5. The petitioner made a representation to the respondents 1 to 4 on 24-3-1998 requesting respondents to take action under Rule 26 of the Rules and absorb surplus teachers and also requested them to release their salary till their absorption. It is the contention of the petitioner that the resolution was passed by the Management on 30-3-1998 whereby it was resolved to close the school with effect from 30-6-1998 and to issue notice of retrenchment of the services of the teaching and non-teaching staff. The management of the petitioner accordingly issued the Notice of termination. However, these notices were challenged by the respondents 5 to 17 before the Presiding Officer, School Tribunal, Nagpur and an interim order was passed protecting the services of the respondents and accordingly the services of the petitioner were continued.

6. It is the contention of the petitioner that again on 3-4-98, a representation was made to respondents 1 to 4 requesting them to take action under section 26 of the M.E.P.S. Act. However, the Education Officer in stead of taking any action, issued a communication dated 24-3-98 in which it was alleged that the Management has violated Rule 3.2 of the School Code and, therefore, the approval for running the school was not continued. He further directed that since the issue of recognition has not been decided finally; the Management would be responsible to pay salary of all the employees and also to pay examination fees of the students.

7. The petitioner society challenged this order of respondent No. 4 before respondent No. 3 in appeal and respondent No. 3 was pleased to pass an order dated 8-7-98. The order of the Education Officer was set aside and the recognition of the school was continued for the academic year 1998-99. It is the contention of the petitioner that the respondent No. 3 had heard both the representations made by the Management for closure of the school as also the impugned order passed by the Education Officer dated 23-4-98, but no orders were passed regarding the request for granting permission for closure of the school and on the contrary the management was directed to continue the school for the academic year 1998-99.

8. It is the case of the petitioner that after the academic year 1998-99, there was a steep decline in the strength of the students and so far as 5th and 6th standards are concerned, no students took admission in the said standards whereas in 7th, 8th and 10th standards, there remained 17.17 and 14 students respectively. The petitioner, therefore, again made 2 representations dated 3-8-98 and 5-8-98 requesting the respondents to grant permission to close the school and to declare all the teaching and non-teaching employees as surplus staff. However, respondent No. 3 by an order dated 14-1-99 refused to grant permission for the closure of the classes. It is the contention of the petitioner that the respondents had not taken any decision of granting permission to close down the school though they were well aware that there was a decline in the strength of the students and in spite of that no action was taken by them. It is the case of the petitioner that respondents 1 to 4 were aware that from 1986 and 1992 the respondents had declared 12 teachers, one Clerk and one Peon as surplus employees and all these employees were absorbed in the other school. It is the contention of the petitioner that the orders were issued of absorption of these teaching and non-teaching staff earlier in 1992 after their representations were heard. The respondents ought to have declared the staff as surplus and ought to have protected their services as per the provisions of the Rule 26 of the said Rules. In the petition, the petitioner has initially by way of amendment challenged the validity of Rule 25-A of the said Rules. However by filing a pursis dated 21-8-03 they had dropped the challenge to the constitutional validity of Rule 25-A of the M.E.P.S. Act.

9. The respondents filed their affidavit and in the said affidavit it was submitted by the respondents 1 to 4 that the provisions of the Rule 26 of the Rules was not applicable and that the school had been closed as per the provisions of the Rule 25-A of the said Rules. It is submitted by the respondents in their affidavit that the teaching and non-teaching staff could not be immediately absorbed in another school. However, as per the provisions of Rule 25-A of the M.E.P.S. Rules, the names of these teachers would be taken in the list for recommendation for absorbing them in other school and as and when vacancies would arise these teachers would be absorbed in the other school.

10. Respondents 5 to 17 have also independently filed the Writ Petitions being W.P. Nos. 764/99, 541/99, 365/99, 403/99, 405/99, 909/99, 404/99, 1590/98, 1591/98 and 1716/98. In all these petitions the petitioners-teachers in the said petitions had initially challenged the validity of Rule 25-A of the M.E.P.S. Rules, 1981. However, by pursis dated 28-1-2003 the challenge to the constitutional validity was not pressed. The petitioners teachers in these petitions had sought directions that the respondents be directed to absorb the petitioners teachers as per the provisions contained in Rule 26.2(iii) of the Rules and also to direct them to pay salary of the petitioners from August, 1998 till the petitioners are absorbed in other schools. The cause of action arising in these petitions filed by the Management and by the teachers is the same and hence these petitions filed by the Management and the petitions filed by the teachers are being heard and decided together.

11. The respondents in this batch of petitions filed by the teachers also have taken the same stand and have submitted in their reply that the teachers could not be absorbed under Rule 26 but the names of these teachers could be placed in the waiting list for being recommended to be absorbed in other schools as and when vacancy would arise.

12. We have heard the learned Counsel appearing on behalf of the Management, the learned Counsel appearing on behalf of the teachers-petitioners in other petitions and also the learned A.G.P. appearing for respondents 1 to 4.

13. We have gone through the petitions and annexures thereto as also replies filed by the learned A.G.P. appearing on behalf of the respondents in the petitions.

14. From the various representations which are made by the Management, one thing is absolutely clear that the respondents were very well aware about the reduction in the strength of the students right from 1986. In fact, it is an admitted position that in the year 1991-92, 12 teachers and few non-teaching staff was declared surplus by the respondents and all of them were absorbed in other schools. Even thereafter the Education Officer was very well aware about the reduction of the strength of the students which is evident from the fact that he has imposed penalty cut of Rs. 2500/- for the reduction of the strength of the students in 8th standard and had stopped the grant in respect of the standard 5th and 7th. The management had made various representations right from March, 1998 informing the respondents that 3 teachers viz. Shri Kalambe, Dahate and Rawale be declared as surplus. Similarly, by representation dated 3-8-98, names of 3 teachers and one non-teaching staff were communicated to the respondent with the request that they may be declared as surplus. By representation dated 5-8-98 the names of 2 teachers viz. Khade and Khawas were communicated to the respondents with a request to declare them as surplus and the names of 2 non-teaching staff viz. Shende and Paunikar were also communicated by the same representation. The respondents had finally issued impugned order of the closure of the school in June 1999. In our view, it was the duty of the Education Officer to have promptly considered the representations and decided the same within a reasonable time so that at least few of the teachers would have been declared as surplus. However, the Education Officer instead of declaring these teachers as surplus proceeded to pass order of derecognition dated 24-8-98.

15. It would be relevant at this stage to take into consideration the provisions of Rule 25-A and Rule 26 of the M.E.P.S. Rules. Perusal of these two rules clearly shows that these two rules contemplate two different situations. Rule 25-A which was inserted by way of subsequent amendment contemplates a situation where there is a voluntary closure of the school on account of the complete decline in the strength of the students or in the alternative on account of derecognition of the school by the Education Officer. Rule 25-A, therefore, contemplates a situation of total closure of the institution. In such a situation, the only protection which is afforded to the employees is by way of recommendation of their names in the waiting list of the employees/teachers who would be absorbed as and when vacancy arises in any of the other school and the liability of the Management and the State Government in respect of the payment of their salary etc. comes to an end after the voluntary closure and derecognition after the permission is granted by the Education Officer.

16. However, so far as Rule 26 is concerned, it contemplates a situation where there is a reduction in the number of classes or divisions on account of various factors as contemplated under Rule 26(1) and as a result of the reduction or abolition of posts, the institution is not closed down but continues to function either on the reduced strength or on the basis of the remaining classes which is permitted as per the guidelines and executive instructions laid down under the Secondary School Code. In such a situation, Rule 26(iii) contemplates that the responsibility of such teachers will necessarily have to be borne by the State Government as long as the said teacher is not absorbed in some other school. This provision, therefore, affords protection to the teachers and they are not left high and dry as a result of the partial reduction in the number of classes or abolition of post.

17. The question which arose in the present case is as to whether the petitioners-employees are entitled to get protection under the provisions of Rule 26(iii) or the closure of the school would be governed by the provisions of Rule 25-A. After going through the various representations which are made by the Management and from the admitted facts i.e. reduction in the strength of the students from the academic year 1995-96 which is admitted by respondents 1 to 4 in their affidavit. It is clear that there was a gradual reduction in the number of students and as a result some of the classes had to be closed down. It is also clear from the record that respondent No. 3 Education Officer was very well aware that there was a reduction in the strength of the students because he had issued specific orders for stopping the grant-in-aid and it imposed a fine as provided under the guidelines and the provisions of the Secondary School. It is, however, difficult to arrive at the definite conclusion as to who was responsible for the reduction in the strength of the students because these facts are disputed by both the parties. The Management in their petitions at one stage have stated that the reduction of the students was on account of indiscriminate permissions granted by respondents 1 to 4 to other institutions to start new schools in the said area and at the same time the Management in their petition and further affidavit filed in the said petition, have alleged that the teachers were also responsible for the poor results and there was a reduction in the strength of the students and new students did not take admission. The Education Officer has blamed the Management for the reduction in the strength of the students and by various orders refused to accept the representations of the Management for closure of the schools and in one order has imposed the liability of payment of salary on the Management. In our view, it is not possible to decide these disputed questions of fact in these writ petitions.

18 In our view, the Education Officer ought to have made an inquiry in respect of this question and thereafter issued an order after finding whether or not the concerned teachers were responsible for derecognition or whether derecognition of the school, was on account of other reasons unconnected with the action, inaction or conduct of the teachers concerned. The learned Counsel appearing on behalf of the petitioners teachers has relied upon the judgment of this Court in the case of Chanda Nazma Abdul Razak v. Education Officer (Primary) Zilla Parishad, Solapur and others, reported in 2001(Supp. 2) Bom.C.R. 869 : 2001(3) Mh.L.J. 766. The Division Bench of this Court in the said case directed the Education Officer to make an inquiry was required under sub-rule (2) of Rule 25-A of the Rules and thereafter to pass an appropriate order.

19. In our view, even under the facts and circumstances of the present case, it would be appropriate to direct the Deputy Director of Education to hold an inquiry as to whether or not the teachers and the non-teaching staff would be entitled to be declared as surplus and consequently get the benefits under Rule 26(iii) or whether the case of the employees would fall under Rule 25-A of the said Rules. Under these circumstances, we direct the Deputy Director of Education to hold an inquiry afresh and consider the representations made by the petitioner Management and teachers within the period of 3 months from the date of receipt of writ of this order after hearing the concerned parties.

20. During the course of hearing, the learned Counsel appearing on behalf of the Management has fairly conceded that up to the end of academic year i.e. 20-7-1999, the Management would pay salary up to the teacher as per the separate agreement between the Management and the teachers and other employees. The statement made and affidavit filed on record by the Management dated 20-1-2003 is taken on record. The Deputy Director of Education, therefore, is accordingly directed to hold enquiry and to decide with reasons whether or not teachers/employees would be entitled to be absorbed under Rule 26(iii) after June 1999 or they would fall under the provisions of Rule 25-A after the said period and take steps accordingly so as to implement the enquiry report. It would be open for the parties to the petition to challenge the findings of the enquiry in accordance with law if found aggrieved.

21. In the result, writ petitions are disposed of in the above terms. Accordingly, Rule is made absolute with no order as to costs.