Bombay High Court
Dr.Antonio Da Silva Technical ... vs State Of Maharashtra And 5 Ors on 7 August, 2015
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1034 OF 2015
1 Dr. Antonio Da Silva Technical
High School and Junior College,
Through its Head Master,
A Private, recognized, Aided,
Minority Educational Institution,
having its office at
S. Veer Savarkar Marg,
Dadar, Mumbai-400 028.
2 Dr. Antonio Da Silva Trust,
Through its Trustees/Hon. Secretary,
Prof. Mrs. Lilla D'Souza,
a/w the Trustees Mr. Erol Murzello
Mr. Ralph Misquitta,
A registered Public Trust
registered under the Bombay
Public Trust Act, 1950 having
its office at
S. Veer Savarkar Marg,
Dadar, Mumbai-400 028. ....Petitioners.
Vs.
1 State of Maharashtra
Through the Principal Secretary
Higher & Secondary Education
Department.
Through the Govt. Pleader,
PWD Building, Fort,
Mumbai 400 023.
2 The Principal Secretary,
Minority Development Department.
State of Maharashtra,
1/7
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Through the Govt. Pleader,
PWD Building, Fort,
Mumbai 400 023.
3 Director of Vocational Education
& Training, 3, Mahapalika Marg,
Dhobi Talao, Mumbai 400 001.
4 Joint Director Vocational Education
& Training, Regional Office, 49,
Kherwadi, Bandra (E), Mumbai-400 051.
5 District Officer,
Vocational Education & Training,
Government Technical High School,
Dadar, Mumbai-400 028.
6 Mrs. Archana Swapnil Gonsalves,
Prajyot, Umrale-Jasgar,
Near Umrale Church,
Post Sopara, Tal. Vasai,
Dist. Thane 401 203 (Nalasopara) ....Respondents.
Mr. S.C. Naidu with Mr. T.R. Yadav, Mr. Rahul Tanwani and Mr.
Aniketh Poojari i/by C.R. Naidu & Co. for the Petitioners.
Ms. I.C. Calcuttawala, AGP for Respondent Nos. 1 to 5.
CORAM : ANOOP V. MOHTA AND
V.L.ACHLIYA, JJ.
DATE : 7 AUGUST 2015.
ORAL JUDGMENT (PER V.L. ACHLIYA, J.):-
Rule. Rule made returnable forthwith.
By consent of the parties, taken up for final disposal at the
stage of admission itself.
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2 By this Petition, the Petitioners have challenged the order
dated 21 February 2015 passed by the Director of Vocational
Education & Training i.e. Respondent No.3 to refuse to grant approval
for appointment of Respondent No.6. The order is mainly challenged
on the ground that the authority concerned i.e. Respondent No.3 has
erroneously considered that Rule 9(7) to 9(10) of the Maharashtra
Employees of Private Schools (Conditions of Service) Rules, 1981 (for
short, MEPS Rules), are also applicable in the matter of institution
established, run and administered by non-aided, minority
institutions/trusts, as that of the Petitioners. The order is also assailed
on the ground that no proper opportunity of hearing was given to
Petitioners so as to explain and convince the authority concern that
the said provisions of law are not applicable in the matter of
appointments to be made to the Petitioner's institution. In support of
the submissions advanced, the learned counsel appearing for the
Petitioners has placed reliance on the decision of Full Bench of this
Court in the case of St. Francis de Sales Education Society & Anr. Vs.
State of Maharashtra & Anr. 1 wherein, this Court has ruled that the
1 2002(1) Bom. C.R. 650
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Sub-Rule (7) to (10) of Rule of MEPS Rules 1981 are not applicable in
the matter of unaided minority institutions.
3 In this context, the learned counsel appearing for the
Petitioners invited our attention to paragraph 36 of said judgment,
wherein, the Full Bench of this Court in the case based on identical
facts ruled as under:-
"In our judgment, the petitioner, being a minority
institution, cannot be directed to appoint teachers
or other staff on the basis of the reservation policy
followed by the State as evidenced in Rules 9(7) to
9(10) of the Maharashtra Employees of Private
Schools (Conditions of Service) Rules, 1981. We,
therefore, hold that the said Rules 9(7) to 9(10), if
applied to the petitioner, would violate the
fundamental right guaranteed to the petitioner as
a minority institution under Article 30(1). Hence,
we allow the writ petition."
4 The learned counsel appearing for the Petitioners, has
further invited our attention to the decision rendered by Division
Bench of this Court in the case of Canossa Society, Mumbai Vs.
Commissioner, Social Welfare, Pune 2 wherein, this Court has again
reiterated that the provisions of reservation is not applicable in the
matter of aided minority institutions. In this context, the learned
counsel has referred the observations of this Court as recorded in
2 2014 (4) ABR 521
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paragraph No. 22, which reads thus:-
22 ...................."The State authorities cannot indirectly
do an act which cannot directly be done. In other
words, when the State has no authority to make
appointment of teaching and non-teaching staff in
respect of a minority institution, even if aid has been
granted, such action of making an appointment
cannot be taken by directing absorption of a surplus
employee. This is nothing but, making appointment of
a staff member in a minority institution. The law
confers no such authority and power with the State
Government to thrust an employee rendered surplus
in other schools to be absorbed by a minority
institution. Rule 25A of the Maharashtra Employees
of Private Schools (Conditions of Services) Rules
cannot be made applicable to appoint surplus staff in
a minority institution unless the minority institution
is consulted and concurs for such an appointment.
We, therefore have no hesitation to conclude that the
impugned order dated 17.6.2011 issued by
respondent No. 1 is wholly arbitrary and illegal as the
same infringes on the petitioner's right guaranteed
under Article 30(1) of the Constitution of India."
5 On due consideration of the submissions advanced by the
learned counsel appearing for the Petitioners in the light of aforesaid
two decisions rendered by this Court, we are of the view that the
impugned order is not sustainable in law and liable to be set aside.
Since the legal position appears to be not brought to the notice of
concerned authority, it is desirable to direct the Petitioner to appear
before the concerned authority and submit the detailed representation
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supported by the precedents of law, so as to enable the authority
concern to consider the case in the light of settled position in law and
take the decision afresh in respect of the proposal submitted by the
Petitioners' institution, seeking approval in respect of the appointment
of Respondent No.6.
6 We, therefore, pass the following order:-
ig ORDER
a) Impugned order dated 21 February 2015, is
quashed and set aside.
b) The Petitioner is directed to appear before
Respondent No. 3 on 24 August 2015 and submit
the representation in detail, in addition to
representation, if any already submitted before the
authority.
c) The Petitioner is further permitted to submit the
documents in support of the contentions that the
provisions of Rules 9(7) to 9(10) of MEPS Act 1981
are not applicable in the matter of Petitioner's
institution.
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d) Respondent No.3 is directed to consider afresh the
proposal already submitted in respect of grant of
submitted by Petitioners in the light of observations
recorded in forgoing paragraphs of this
Judgment/order as well as, the documents, if any,
to be filed by the Petitioners.
e) The final decision in the matter be taken on or
before 5 September 2015.
f) Writ Petition is disposed of with the aforesaid
directions.
g) Rule made absolute in above terms, with no order
as to costs.
(V.L. ACHLIYA, J.) (ANOOP V. MOHTA, J.)
