Rizwan Hawaldar Khan vs The Deputy Director Of Education
2012 Latest Caselaw 184 Bom

                                      1 of 9                           WP.944.2012


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                         
                    CIVIL APPELLATE JURISDICTION

                      WRIT PETITION NO.944 OF 2012




                                                 
     Rizwan Hawaldar Khan                                          Petitioner
           versus
     The Deputy Director of Education




                                                
     and others                                                    Respondents


     Mr.Sunil D. Dighe for Petiitioner.




                                    
     Ms.Anjali Helekar, AGP for Respondents 1, 2 and 8.
     Mr.Ashish Rao with Mr.Tejas Shah i/by M & M Legal Ventures for
                      
     Respondents 3 to 5.
                     
                        CORAM : DR.D.Y.CHANDRACHUD AND
                                A.A.SAYED, JJ.

                        DATE     : 15 October 2012
      

     PC :
   

1. The Petitioner was employed as a Laboratory Assistant with the Fourth Respondent, which at the material time, was an aided

institution. The Third Respondent, which conducts the school, addressed a communication to the First Respondent on 2 February 2007 for the grant of its no objection for a change of affiliation from

the SSC Board to the ICSE Board. The First Respondent, it is common ground, granted its no objection. The Court is informed by counsel for the management that the school stopped accepting aid from the State Government from 2007. On 4 August 2008, the Principal of the School addressed a communication to the School Inspector stating that the Petitioner was not willing to join the ICSE

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section but preferred absorption in any other government aided

school. The management, therefore, requested the Education Inspector to find for the Petitioner a proper fitment and absorb him in

a government aided secondary school. The Petitioner also addressed a letter on 1 February 2010 seeking absorption in an aided institution since he was not willing to join the ICSE section. On 25 August

2010, an order was passed by the Education Inspector directing absorption of the Petitioner at Saint Joseph High School, Wadala. The said school refused to absorb him following which the Principal

of the Fourth Respondent addressed another communication to the

Education Inspector to accommodate the Petitioner else where. On 14 July 2011 the Education Inspector addressed a communication to

another school noting that the Petitioner had been declared as a surplus employee under Rule 26 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1981 and

directing absorption. Even that school declined to absorb the

Petitioner. Following this, on 7 October 2011, the Education Inspector addressed a further communication, this time to the Seventh

Respondent, directing absorption of the Petitioner with effect from July 2010 when he was declared as surplus. After this order was passed, the Education Inspector on 29 December 2011 addressed another communication recording that though the Petitioner had been

absorbed by the Seventh Respondent with effect from 8 October 2011, the Seventh Respondent shall immediately relieve the Petitioner so that he could be reabsorbed by the Fourth Respondent. The Seventh Respondent addressed a communication on 14 February 2012 to the Education Inspector stating that the school was in urgent need

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of a Laboratory Assistant in view of the SSC examinations and

seeking co-operation of the department. Eventually these proceedings have been instituted. The Petitioner has challenged the order of the

Education Inspector dated 29 December 2011 and has sought a direction for an order of absorption in the Seventh Respondent as a Laboratory Assistant.

2. In the affidavit-in-reply filed by the Deputy Education Inspector, it is sought to be urged that the Petitioner was wrongly

directed to be absorbed in the Seventh Respondent, consequent upon

which corrective action was taken by addressing a communication dated 29 November 2011 to the Principal of the Seventh Respondent.

However, it has been stated that the Petitioner was relieved from duty only on 1 March 2012. According to the Education Department, since the Third Respondent decided to change the affiliation of the Fourth

Respondent from the SSC Board to the ICSE Board, it was the sole

responsibility of the Third and Fourth Respondents to bear the burden of their own employees. The Third Respondent absorbed eight

teachers who were also working with the Fourth Respondent in another school under the same management namely, the Fifth Respondent. Five members of the staff retired as per rules from the Fourth Respondent, two opted for voluntary retirement while two

persons resigned from service. On 13 March 2012, the Fourth Respondent had informed the Education Inspector that the school had not closed its classes and an assurance was given to the staff in writing that if they chose to continue with the school as unaided staff, their pay scales, emoluments and post retirement benefits would

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continue in accordance with the provisions applicable to Government

aided staff under the MEPS Act, 1981. In other words, it is the contention of the department that though the Petitioner was not

entitled to be absorbed in a government aided school, an erroneous order was passed by the Education Inspector which has been corrected.

3. Rule 26 of the MEPS Rules provides for the method for retrenching a permanent employee from service and the grounds on

which retrenchment may be carried out. Sub-rule (2) of Rule 26

provides for conditions subject to which retrenchment from service shall be effected. Sub-rules (1) and (2) of Rule 26 provides as

follows:

"26. Retrenchment on account of abolition of posts :

(1) A permanent employee may be retrenched from

service by the Management after giving him 3 months notice, on any of the following grounds, namely :

(i) reduction of establishment owing to reduction in the number of classes or divisions;

(ii) fall in the number of pupils resulting in reduction of establishments;

(iii) change in the curriculum affecting the number of certain category of employees;

(iv) closure of a course of studies;

(v) any other bona fide reason of similar nature.

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(2) The retrenchment from service under sub-rule(1) shall be subject to the following conditions, namely :

(i) The principle of seniority shall ordinarily be

observed;

(ii) Prior approval of the Education Officer in the

case of Primary and Secondary Schools or, of the Deputy Director in the case of Higher Secondary Schools and Junior Colleges of Education shall be obtained by the Management in each case of retrenchment including such cases in which the

principle of seniority is proposed to be departed from and a senior member of the staff is proposed to be

retrenched when a junior member should have been retrenched, stating the special reasons therefor;

(iii) The employees from aided schools, whose services are proposed to be retrenched shall be absorbed by the Education Officer in the case of Primary and Secondary Schools or by the Deputy Director in the

case of Higher Secondary Schools and Junior colleges of Education. The order of absorption of such

employees shall be issued by registered post acknowledgement due letter, and till they are absorbed, the Management shall not be permitted to effect

retrenchment on account of any reasons mentioned in sub-rule (1).

4. It is evident from the Rules that the question of the application

of sub-rule (2) arises where a retrenchment from service is sought to be effected under sub-rule(1). In that event, the principle of seniority is to be followed, prior approval of the Education Inspector is to be taken and the employees from aided schools whose services are proposed to be retrenched are to be absorbed by the Education Inspector in other institutions. In the present case, as the admitted

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material on record would indicate, there was no apprehension of the

Petitioner being retrenched from service. As a matter of fact, when the management of the Fourth Respondent addressed a

communication to the Education Inspector on 4 August 2008, it made it clear that the management was willing to absorb the Petitioner in the ICSE section. The Petitioner himself in his letter dated 1 February

2010 stated that though the school management was willing to absorb him in the ICSE section of the school, he was not willing to join that section. In other words, it is evident that the basic precondition for

the applicability of Rule 26 that there must be a proposed

retrenchment of a permanent employee, was not attracted. The management did not seek to retrench the Petitioner. It was the

Petitioner who was unwilling to continue in the ICSE section. Rule 26(1) was hence not attracted. Hence, there was no occasion to declare the Petitioner as surplus or to direct his absorption in another

school. This aspect of Rule 26 of the MEPS Rules is not res-integra

but is governed by a Division Bench judgment in Meera Babulalji Modi Vs. Education Officer (Secondary), Zilla Parishad Nagpur

and others1. The Division Bench has held that before the protection that is afforded by Rule 26(2) of absorption else where is attracted, the employee must in reality be facing a danger of retrenchment. In that case it was held that there was no occasion for the retrenchment

of the Petitioners who could have been accommodated in any other schools run by the same management. Hence, it was held that there was no occasion for the Petitioners to have acquired a right for absorption, when there was no apprehension of retrenchment. The same principle applies to the present case.

     1 1998(4)-Bom.C.R.425





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5. In the facts of the present case, it is evident that the Education Inspector proceeded on an obvious misconstruction of the provisions

of Rule 26(2). Unless there was a proposal to retrench the Petitioner, there was no occasion to exercise the power under Rule 26(2)(iii) of absorbing him in any other school. In this view of the matter, the

original action of the Education Inspector was clearly ultra vires the provisions of Section 26(2)(iii) of the MEPS Rules and was corrected by taking a subsequent decision dated 29 December 2011 directing

that the Petitioner shall be reabsorbed by the Fourth Respondent with

whom the Petitioner had been in service as a permanent employee.

6. Insofar as the Fourth Respondent is concerned, it had proposed to change the affiliation of its school from the SSC Board to the ICSE Board. The affidavit-in-reply filed by the Education Department sets

out that the Fourth Respondent in fact absorbed nine employees in the

Fifth Respondent which is conducted by the same management. The process of change in the affiliation of the school from the SSC to the

ICSE Boards could not obviously be at the cost of foisting the liability to pay the salaries of the existing staff on the State Government. The management of the Fourth Respondent would continue to be under the obligation which it originally had of looking after the interests of

its own employees. As a matter of fact, it has been stated before the Court that the Fourth Respondent was ready and willing to apply the same terms and conditions of service as before to all the employees of the aided section affiliated to the SSC Board.

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7. We are cognizant of the fact that the impugned order dated 29

December 2011 recalling the earlier directions was passed without hearing the Petitioner. Ordinarily, we would have relegated the

Petitioner to pursue an opportunity of being heard before the Education Inspector or, as the case may be, the Education Officer. However, on the basis of the admitted facts as they stand, it is evident

that there was no apprehension of the retrenchment of the services of the Petitioner and, therefore, the precondition for the applicability of Rule 26 was not attracted to the facts of the present case. Relegating

the parties to a further round of hearing would only delay and protract

the whole issue and no substantial purpose would be served, since it is evident that the basic requirements of Rule 26(2) were not fulfilled.

At the same time, it is evident that the Petitioner, who was a permanent employee of the Fourth Respondent, should not be made to suffer. His contract of employment with the Fourth Respondent

would, in view of the fact that Rule 26 was not attracted and there

was no proposal to retrench him, continue to remain intact. The Education Inspector has by his order dated 29 December 2011

directed the Fourth Respondent to continue him in service, which directions cannot be faulted. The Petitioner would be entitled to a protection of his salary and all other benefits that he would have received as if his contract of employment with the Fourth Respondent

has continued.

8. Accordingly, we dispose of the petition by upholding the order dated 29 December 2011 passed by the Education Inspector but by clarifying that in compliance of the order, the Fourth Respondent

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would be bound and liable as an employer of a permanent employee,

to furnish to the Petitioner the benefit of all service conditions as they obtained before the illegal order of absorption was passed. However,

the Fourth Respondent would not be liable to pay wages for the period during which the Petitioner worked with the Seventh Respondent in pursuance of the order dated 7 October 2011 of the

Education Inspector.

9. The petition is accordingly disposed of. There shall be no order

as to costs.

(DR.D.Y.CHANDRACHUD, J.)

(A.A.SAYED, J.)

MST