Bombay High Court
Anjuman Faroge E Taleem And ... vs The State Of Maharashtra And ... on 21 October, 2015
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO. 6265 OF 2015
WITH
WRIT PETITION NO.5919/2015
1. Sardar Shikshan Sanstha
Deopur Dhule, Taluka & Dist. Dhule,
through President.
2. L.M. Sardar Urdu Primary School
Deopur Dhule, Taluka & Dist. Dhule
through Head Master. ..PETITIONERS.
VERSUS
1. The State of Maharastra
through Secretary,
School Education Department,
Mantralaya,
Mumbai -32.
2. Deputy Director of Education,
Nashik Region, Nashik.
3. Education Officer (Primary),
Zilla Parishad, Dhule,
Tal. & Dist. Dhule. ..RESPONDENTS.
...
Advocate for Petitioners : Mr.Brahme Shailesh P.
AGP for Respondents/State: Mr.S.K. Kadam.
Advocate for Respondent 3 : Mr.R.S. Pawar.
...
WITH
WRIT PETITION NO.5919/2015
1. Anjuman Faroge-E-Taleem,
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2
Azad Nagar, Dhule,
Tal. & Dist. Dhule,
through Secretary.
2. National Urdu Primary School,
Dhule, Taluka & Dist. Dhule
through Head Master. ..PETITIONERS.
VERSUS
1. The State of Maharastra
through Secretary,
School Education Department,
Mantralaya,
Mumbai -32.
2. Deputy Director of Education,
Nashik Region, Nashik.
3. Education Officer (Primary),
Zilla Parishad, Dhule,
Tal. & Dist. Dhule. ..RESPONDENTS.
...
Advocate for Petitioners : Mr.Brahme Shailesh P.
AGP for Respondents/State: Mr.S.K. Kadam.
Advocate for Respondent 3 : Mr.R.S. Pawar.
...
CORAM : S.S. SHINDE & A.M. BADAR, JJ.
Dated: OCTOBER 21, 2015
ORAL JUDGMENT : (PER SHINDE, J)
1. Rule. Rule is made returnable forthwith. By consent
of the parties, taken up for final hearing.
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2. These petitions take exception to the direction of the
respondent - 3 Education Officer (Primary), Zilla Parishad,
Dhule to absorb the surplus teachers in the petitioners -
institutions. It is submission of the learned Counsel for the
petitioners that since the petitioner No.1 is a minority
institution, and in view of the judgment of the Division
Bench of this Court in case of Canossa Society & anr vs.
Commissioner & ors.1, the respondent - Education Officer
should not have asked the petitioner No.1 to absorb the
surplus teachers.
3. On the other hand, learned Counsel for the
respondent No.3 submits that the surplus teachers are also
from minority institutions and keeping in view the said fact,
respondent No.3 - Education Officer directed the petitioner
No.1 to absorb those surplus teachers in the schools run by
the petitioners.
4. We have heard learned Counsel for the petitioners and
learned Counsel for respondent No.3. The issue / point
raised in these petitions is no longer res integra. In similar
1 2014(3) Bom.C.R. 556;
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fact situation, the Division Bench of this Court in case of
Canossa Society & anr (supra), in paragraphs 19 to 22
observed, thus:
"19. In a judgment of the Full Bench of this Court in
the case of St. Francis De Sales Education Society,
Nagpur & another vs State of Maharashtra & another
2001 (3) Mh.L.J. 261 in dealing with an issue falling
under the Maharashtra Employees of Private Schools
(Conditions of Service) Act and rules framed
thereunder, it has been held that a minority
institution cannot be directed to appoint teachers of
other staff on the basis of reservation policy followed
by the State as evidenced in rule 9 (7) to Rule 9 (10) of
the Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981. It has been held
that the fundamental right guaranteed under Article
30 of the Constitution of India are absolute and not
subject to reasonable restrictions as under Article 19.
It was held that a minority institution cannot be
directed to appoint teachers or other staff on the basis
of reservation policy followed by the State.
20. The similar issue as raised in the present
petition also fell for consideration of the Division
Bench of the Gujarat High Court in the case of
Hajinural Hasan Master Charitable Trust vs State of
Gujarat in Letters Patent Appeal No.1225 of 2003.
Considering the law laid down by the Supreme Court
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in regard to the rights of a minority institution. The
Division Bench of the Gujarat High Court in its
judgment dated 15.1.2013 held that only because aid
has been granted to a minority educational institution
it would not take away the its minority character of a
minority institution and its rights to make
appointment of the teaching and non- teaching staff.
A similar view has been taken by the Division bench
of this Court of Aurangabad bench in Writ Petition
No.3707 of 2013.
21. Adverting to the settled legal position as
discussed herein above it becomes clear that a
minority educational institution has a fundamental
right to establish and administer an educational
institution of its choice. This right encompasses
several facets one of them being a right to appoint
teaching and non-teaching staff. It is held that the
right to appoint teaching and non-teaching staff is an
integral part of a right conferred under Article 30 of
the Constitution of India namely to administer a
minority educational institution. Merely because aid
has been granted to a minority institution it would not
loose its character as a minority institution and cease
to enjoy constitutional guarantee conferred on it by
virtue of the provisions of Article 30 of the
Constitution of India. The grant of aid would not
convert a minority institution into a departmentally
conducted school or a department of the Government
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so that its autonomy of administration of an
educational institution of its choice conferred under
Article 30 of the Constitution of India would stand
restricted. The State would be within its right to
impose only such restrictions so as to maintain
standards of education and to check any kind of
maladministration. However, the autonomy in regard
to day to day administration of the minority
institution cannot be taken away by imposing any
condition or restrictions which would take away the
minority character of a minority institution and
infringe the Constitutional guarantee conferred by
Article 30 of the Constitution of India.
22. There is merit in the submissions of the learned
counsel for the petitioners. In the present case by the
impugned directive dated 17.6.2011 the respondent
nos. 1 to 3 have foisted upon the petitioners the
appointment of the respondent no.4 who is rendered a
surplus employee in view of the closure of a school
situate in Nanded District. Admittedly, there is no
consultation with petitioner no.2-school before such
appointment is thrusted upon the petitioner no.2-
school. The respondent-authorities have also failed to
take into consideration the fact that there is no
vacancy as urged by the petitioners before the
authorities, in view of the appointment of Mrs.Jyotsna
Thorat who came to be appointed on 30.9.2006 and
whose appointment was approved on 18.8.2007.
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Consequence of the impugned order issued by the
respondent no.1 is that the approved appointment of
Mrs.Jyotsna Thorat as validly done by the petitioner
No.2-institution in exercise of its right to administer a
minority educational institution is being interfered,
coupled with a consequence that such valid
appointment would be required to be cancelled. In our
considered opinion it is impermissible for respondent
nos. 1 to 3 to resort to such an action of foisting
appointment of respondent no.4 on the petitioner
no.1-institution as it directly infringes the
fundamental right guaranteed under Article 30(1) of
the Constitution of India conferred on the petitioner
no.2 institution to administer and establish petitioner
no.2 school. 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 25 A of
the Maharashtra Employees of Private Schools
(Conditions of Services) Rules cannot be made
applicable to appoint surplus staff in a minority
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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 bay 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. In that view of the matter, since the issue raised in
this petition is clearly answered by the authoritative
pronouncement of the Division Bench of this Court in case
of Canossa Society & anr (supra), the directions of the
respondent No.3 - Education Officer (Primary), Zilla
Parishad, Dhule deserve to be set aside.
6. Accordingly, the letter 2nd May, 2015 issued by the
respondent No.3 - Education Officer (Primary), Zilla
Parishad, Dhule stands quashed and set aside. As a
consequence of quashing and setting aside the impugned
communication dated 2nd May, 2015, it is needless to
observe that, the subsequent order of the respondent No.3
canceling one sanctioned post of the Assistant Teacher in
the petitioner No.1 Institution also stands quashed and set
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aside. It is needless to observe further that, the proposals of
the petitioners for approval of the appointments to the post
of Assistant Teacher pending with the respondents shall be
decided expeditiously.
Both the petitions are allowed to above extent. Rule is
made absolute accordingly, with no order as to costs.
( A.M. BADAR, J. ) ( S.S. SHINDE, J. )
Kadam/*
