Bombay High Court
Abhijit Kishor Patil And Others vs The Union Of India And Others on 30 October, 2015
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH
AT AURANGABAD
WRIT PETITION NO.452 OF 2015
1] Abhijit Kishor Patil,
age 40 years, Occu. Service,
r/o 235, Swapnapurti, Shivaji Nagar,
Jalgaon, Tq. & Dist. Jalgaon.
2] Smt. Sarika Bhaskarrao Nikam,
age 36 years, occu. Service,
r/o as above.
3] Shaikh Israr Ahmed Abdul Majid,
age 36 years, occu. Service,
r/o 204,Shivaji Nagar, Jalgaon,
Dist. Jalgaon.
4] Deepak Mohansing Patil,
age 34 years, Occu. Service,
r/o at/Post Sakri, Tq. Bhusawal,
Dist. Jalgaon.
5] Mahendra Kashinath Chaudhary,
age 36 years, occu. Service,
r/o Gandhipura, Chahardi,
Tq. Chopda, Dist.Jalgaon.
6] Tukaram Kisansing Patil,
age 38 years, occu. Service,
r/o Wazarkhede, Tq. Bhusawal,
Dist. Jalgaon ..PETITIONERS.
VERSUS
1] The Union of India,
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through Secretary
Human Research Development
School Education & Letersee Department,
Delhi.
2] The State of Maharashtra
through Secretary of
School Education Department,
Mantralaya, Mumbai.
3] Director of Education (Primary)
Pune, Dist. Pune.
4]
Deputy Director of Education,
Nashik Region Nashik,
Dist. Nashik.
5] Education Officer (Secondary),
Zilha Parishad, Jalgaon,
Dist. Jalgaon.
6] Gram Vikas Vidyalay Pimprala,
Tal & Dist. Jalgaon,
through Head Master.
7] Anglo Urdu High School
Pratapnagar, Jalgaon,
Taluka & Dist. Jalgaon,
through Head Master.
8] Madhyamik Vidyalay Wazarkhede
Taluka & Dist. Jalgaon,
through Head Master.
9] Pandit Jawaharlal Neharu Vidyalay,
Akulkhede, Tq. Chopda, Dist. Jalgaon,
through Head Master. .. RESPONDENTS.
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...
Mr.S.P. Brahme, Advocate for the Petitioners.
Mr.Ajay Talhar, ASG for Respondent No.1.
Mr.C.V. Dharurkar, AGP for the Respondent Nos.2 to 5 - State.
Mr.J.K. Bansod, Advocate for respondents 6 to 9.
...
WITH
WRIT PETITION NO.3811 OF 2015
1] Prashant Ramkrushna Patil
Age: 36 years, Occu: Service
R/o. Plot No.3B, LIC Colony,
Behind Hotel Samrat, Dhule Road,
Amalner, Tq.Amalner, Dist. Jalgaon
2] Ramesh Chintaman Wagh
Age: 33 Years, Occu: Service,
R/o. At / Post Jatode, Tq. Shirpur,
Dist. Dhule
3] Ghansham Bharat Chaudhari
Age: 33 Years, Occu: Service
R/o. At / Post Kalamsare,
Tq. Pachora, Dist. Jalgaon
4] Nikam Mai Pandurang
Age: 35 Years, Occu: Service
R/o. Plot No.38, Bhalerao Nagar,
Dhule Road, Amalner,
Tal. Amalner, Dist. Jalgaon
5] Rajput Premendrasingh Machhcindrasingh
Age: 34 Years, Occu. Service,
R/o. Nagai Colony, Satana Naka,
Malegaon, Tq. Malegaon, Dist. Nashik
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6] Nikam Harish Vasantrao
Age: 40 Years, Occu. Service
R/o. Vanshri, Samartha Nagar,
Dhule Road, Amalner,
Tq. Amalner, Dist. Jalgaon
7] Patil Sanjay Shantaram
Age: 43 Years, Occu. Service,
R/o. At / Post Sarbete [Kh.], Tq.Amalner,
Dist. Jalgaon
8] Patil Simabai Shalikrao
Age: 31 Years, Occu. Service,
R/o. Plot No.3B, LIC Colony,
Behind Hotel Samrat, Dhule Road,
Amalner, Tq.Amalner, Dist. Jalgaon
9] Patil Vishalkumar Vasantrao
Age: 26 Years, Occu: Service,
R/o. Mangalmurti Nagar,
Near Deshmukh Bunglow, Amalner,
Tq.Amalner, Dist. Jalgaon .. PETITIONERS
VERSUS
1] The Union of India
Through Secretary
Human Research Development
School Education & Literacy Department
Delhi.
2] The State of Maharashtra
Through Secretary of
School Education Department
Mantralaya, Mumbai
Copy to be served on Govt. Pleader,
High Court of Bombay Bench at Aurangabad
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3] Director of Education [Primary],
Pune, Dist. Pune
4] Deputy Director of Education
Nashik Region, Nashik
Dist. Nashik
5] Education Officer [Primary]
Zilha Parishad, Jalgaon
Dist. Jalgaon
6] Z.D.Sonawane High School
Mudi, Tq. Amalnar, Dist. Jalgaon
Through its Head Master
7] Madhyamik Vidyalay Loan [Gr]
Tal. Amalner, Dist. Jalgaon,
Through its Head Master
8] Balaji Vidyalay Gandhali - Pilode
Tal. Amalner, Dist. Jalgaon
Through its Head Master
9] Late Shri H.P. Patil Madhyamik Vidyalay,
Ambapimpri, Tq. Parola, Dist. Jalgaon
Through its Head Master RESPONDENTS
...
Mr. S.P.Brahme, Advocate for the petitioners
Mr. A.G.Talhar, Assistant Solicitor General for Respondent No.1
Mr. C.V.Dharurkar, AGP for the respondent Nos.2 to 4
Mr. M.S.Sonawane, Advocate for the Respondent No.5
Mr. Sachin Deshmukh, Advocate for the respondent Nos.6 to 9
...
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WITH
WRIT PETITION NO.3813 OF 2015
1] Savita Madhukar Suryawanshi
Age: 39 Years, Occu: Service
R/o. C/o. Pramod Madhukar Suryawanshi
At/Post Mudi, Tq. Amalner, Dist. Jalgaon
2] Dnyaneshwar Bhaskar Patil,
Age: 33 Years, Occu: Service,
R/o. At / Post Mudi, Tq. Amalner,
Dist. Jalgaon
3] Pravin Bhaidas Patil,
Age: 25 Years, Occu. Service
R/o. Shirud Naka, Hanuman Nagar,
Amalner, Tq. Amalner,
Dist. Jalgaon. ..PETITIONERS
VERSUS
1] The Union of India
Through Secretary
Human Research Development
School Education & Literacy Department
Delhi
2] The State of Maharashtra
Through Secretary of
School Education Department
Mantralaya, Mumbai.
3] Director of Education [Primary],
Pune, Dist. Pune
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4] Deputy Director of Education
Nashik Region, Nashik
Dist. Nashik
5] Education Officer [Primary]
Zilha Parishad, Jalgaon
Dist. Jalgaon
6] Madhyamik Vidyalay Loan [Gr]
Tal. Amalner, Dist. Jalgaon,
Through its Head Master
7] Z.D.Sonawane High School
Mudi, Tq. Amalnar, Dist. Jalgaon
Through its Head Master
8] Late Shri H.P. Patil Madhyamik Vidyalay,
Ambapimpri, Tq. Parola, Dist. Jalgaon
Through its Head Master ..RESPONDENTS
...
Mr. S.P.Brahme, Advocate for the petitioners
Mr. A.G.Talhar, Assistant Solicitor General for Respondent No.1
Mr. C.V.Dharurkar, AGP for the respondent Nos.2 to 4
Mr. M.S.Sonawane, Advocate for the Respondent No.5
Mr. Sachin Deshmukh, Advocate for the respondent No.8
Respondent Nos.6 and 7 served.
...
WITH
WRIT PETITION NO.5794 OF 2015
1] Pankaj Kantilal Kate
Age: 27 Years, Occu: Service
R/o. Gurukrupa Colony, Plot No.25
Behind Cotton Market, Dhule Road
Amalner, Tq.Amalner, Dist. Jalgaon
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2] Sunita Shivaji Saner
Age: 29 Years, Occu:Service,
R/o.C/o. Sayaji Deoram Kalu
Plot No.23, Sinchai Colony,
Walwadi, Dhule, Dist. Dhule
3] Pratibha Santosh Patil,
Age: 29 Years, Occu: Service
R/o. At Indwa Post Jirali
Tq. Parola, Dist. Jalgaon
4] Pratap Bhagatrao Mahajan,
Age: 42 Years, Occu: Service
R/o. A/P. Shirud, Tq.Amalner
Tal. Amalner, Dist. Jalgaon ..PETITIONERS
VERSUS
1] The Union of India
Through Secretary
Human Research Development
School Education & Literacy Department
Delhi.
2] The State of Maharashtra
Through Secretary of
School Education Department
Mantralaya, Mumbai
Copy to be served on Govt. Pleader,
High Court of Bombay Bench at Aurangabad
3] Director of Education [Primary],
Pune, Dist. Pune
4] Deputy Director of Education
Nashik Region, Nashik
Dist. Nashik
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5] Education Officer [Primary]
Zilha Parishad, Jalgaon
Dist. Jalgaon
6] B.S.High School
A/P. Kolpimpri, Tq.Parola,
Dist. Jalgaon
Through its Head Master ..RESPONDENTS
...
Mr. S.P.Brahme, Advocate for the petitioners
Mr. R.B.Bagul, Assistant Solicitor General for Respondent No.1
Mr. C.V.Dharurkar, AGP for the respondent Nos.2 to 4
Mr. M.S.Sonawane, Advocate for the Respondent No.5
Mr. A.S.Kulkarni, Advocate holding for Mr. S.B.Yawalkar,
Advocate for the Respondent No.6.
...
CORAM : S.S. SHINDE &
A.M. BADAR, JJ.
Reserved on : 16th October, 2015.
Pronounced on : 30th October, 2015.
JUDGMENT [Per S.S.Shinde, J.]:
1. Rule, returnable forthwith. By consent of the parties,
heard finally at the admission stage.
2. By way of filing writ petitions No.452/2015, 5794/2015,
3811/2015 and 3813/2015 the petitioners have challenged the
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communication / instructions dated 7.7.2015 issued by
respondent No.1 to respondent No.2. The petitioners have further
sought directions to the respondents to include the names of the
petitioners in the eligible or qualified list of special teachers
maintained by respondents 2 to 5, to award all service benefits,
benefits of permanency to the petitioners and regularization of
services. Petitioners further prayed for directions to pay their
monthly salary. The petitioners have also prayed for directions to
the respondents to absorb them in any other school receiving
grants-in-aid.
3. The facts in brief, as narrated in Writ Petition No.452 of
2015, are as under:
The petitioners herein were appointed as special teachers
in the respondent No.6 to 9 schools, they hold requisite
qualifications and it is stated that they are rendering services
presently also. It is stated that the petitioners were appointed by
following due procedure, their appointments were approved, they
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were appointed on sanctioned posts, their appointments were as
per the scheme sponsored by Central Government. Under the
said scheme, the petitioners have to help the students with
disabilities to bring them in the main stream. The funds have
been disbursed by the respondent No.1 for the salary and other
implementation. However, the petitioners are deprived of regular
salary and the service benefits without assigning any reasons or
without conducting any inquiry. It is stated that the respondents
have prepared list of 328 qualified teachers. A separate list of
679 unqualified teachers is also made. A separate list of 384
teachers is prepared with objections. The petitioners are not
included in any of these lists. It is stated that the lists prepared
by the respondents are defective and the petitioners ought to
have been placed in the list of qualified teachers. Without
apprising any reasons, the service benefits of the petitioners are
stopped. It is stated that the petitioners are qualified, approved
and appointed on sanctioned posts over unit of disabled
students. There is requirement of services of the petitioners.
They are in service but, there is no disbursement of grants for
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salary. The petitioners made representations to the respondents
however, there is no response from the respondents. Hence,
these petitions.
4. The learned counsel Mr. S.P.Brahme appearing for the
petitioners submits that, petitioners are appointed as a special
teachers for helping the disabled students, taking education in
the units run by the respondent No.6. After following due
procedure, the permanent approval is granted by the respondent
No.3 to the appointment of the petitioners. However, after
withdrawal of the approval of the units, the services of the
petitioners are terminated. Therefore, the petitioners are
required to be declared as surplus and required to be absorbed in
other granted school. It is submitted that, after passing of the
order dated 17th May, 2014, thereby withdrawing the approvals
granted to the units run by the respondent No.5, the petitioners
made various representations to the respondent Nos.1 and 2 for
declaring them surplus and absorbing them in any other granted
school, but no attention was given by the respondent Nos.1 and 2
towards the representations made by the petitioners.
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5. It is further submitted that, all the petitioners held
requisite qualifications. They have also registered with
Rehabilitation Council of India. They were appointed after
following due procedure of law, and the appointment of
petitioners are also approved by the Deputy Director of
Education. Their unit was approved. The said unit was
functioning when so called inspection was conducted on
10.01.2013 and 25.11.2013. There was adequate strength of the
students required for functioning of the unit. No proper inquiry
was conducted on the date of inspection. The said inspection
report is defective and erroneous. Without ascertaining the
factual aspects, the report was submitted. The inspecting
Officers have recorded favourable remarks in the school record.
It is submitted that, the instruction issued by the respondent No.
1 to the respondent No.2 on 07.07.2015 is based upon erroneous
inspection, conducted on 10.01.2013 and 25.11.2013. It is
submitted that, on the basis of said report, the instructions are
issued to cancel the appointments of the petitioners and other
special teachers. It is submitted that, the impugned orders are
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passed in breach of the principles of natural justice. It is further
submitted that, the services of the petitioners are approved by
the Competent Authority, and the scale of salary of the
petitioners are fixed by Competent Authority, still the arrears of
salary are not paid to the petitioners.
6.
It is further submitted that, the instructions, to revoke
personal approval granted to the petitioners as well as approval
given to the unit operating in the respective schools of the
petitioners, are arbitrary and illegal. The instructions to cancel
the appointments of the petitioners are perverse, shocking, and it
was based upon the faulty report of the inspection, conducted on
10.01.2013 and 25.11.2013. The blanket instruction to
terminate 1185 special teachers and 72 Attendants, are
unsustainable. It is further submitted that, the instruction to
cancel the appointment of the petitioners and to terminate their
services is without considering the nature of the appointment,
their qualifications, their registration with the Rehabilitation
Council of India, and length of service rendered by them after
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their appointments. It is submitted that, the instruction dated
07.07.2015 run contrary to the Government Resolution dated
31.08.2009. The petitioners were appointed after following due
procedure of law. The units over which they were appointed was
approved. Their appointments were also approved by the
competent authorities. The few of special teachers received
salary and other service benefits. Hence, it is not desirable and
reasonable to discontinue the petitioners.
7. It is further submitted that, the respondent No.1
overlooked that, the petitioners have rendered considerable
services with the respective schools. They were qualified and
appointed after following due procedure of law. Their services
were approved. Under these circumstances, without individual
cases, their services cannot be terminated. It is pertinent to note
that, no fault can be attributable to the petitioners. It is
submitted that, the respondent No.1 committed gross illegality
and arbitrariness in directing to terminate the services of the
petitioners, because after rendering services for considerable
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period, the rights are created in them and termination of the
services is not the solution for effective implementation of the
policy of the respondents or to achieve its objectives. It is
desirable to accommodate the petitioners in the private schools
as well as at the block level or cluster level if they are regularly
appointed employees.
8. It is further submitted that, the instructions to terminate
the services of 1185 special teachers and 72 Attendants is
patently illegal and against equity. Unless, the individual claims
of the petitioners are verified by the Competent Authorities, and
the defects in their appointments are found, the services of the
petitioners cannot be discontinued. The instructions impugned
needs to be set aside, because those are based upon incorrect
data collected by the respondents, vide their inspections
conducted on 10.01.2013 and 25.11.2013. The impugned
instructions are not applicable to the petitioners.
9. The learned AGP appearing for the respondents 2 to 5,
relying upon the affidavit-in-reply filed on behalf of respondents
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No.2 to 5 in Writ Petition No.452 of 2015, submitted that the
Petitioners have filed the Writ Petitions seeking direction to
quash and set aside the order dated 17.5.2014 issued by the
Respondent no. 2 after examining the legality, validity and
propriety thereof. The learned counsel placed reliance on the
exposition of the Supreme Court in the case of Sethi Auto Service
Station & Anr. Vs. Delhi Development Authority & Ors.1 and
submits that, a denial of legitimate expectation in a given case
amounts to denial of right.
10. The learned AGP submitted that, by the said
communication the Respondent no. 2 i.e. Director of Education
(Primary) has canceled the unit under I.E.D.S.S.. The reasons
behind this communication is that, the scheme is sponsored by
the central Government for the students within 14-18 years of
age who take education with general students. These units were
started in the regular schools. During the State wide inspection
dated 10.01.2013 and 25.11.2013, these units were inspected
and the Deputy Director of Education/ Education Officer
1 2009 [1] SCC 180
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(Secondary), have made recommendation on the basis of factual
inspection. The Government therefore, issued letter to the
Director of Education on 15.5.2014. In pursuance to said
communication further communication dated 17.5.2014 is
issued and the Government has accepted the recommendation
for closure of these 679 units and thereby approved action of
cancellation of recognition of these units.
11. The learned AGP further submitted that, the Petitioners
have prayed for payment of arrears of salary on 17.5.2014. The
scheme is sponsored by Central Government and now the
Government has issued guidelines in respect of the appointments
approved to the units and the appointments of the special
teacher are non teaching employee after 31.8.2009. It is informed
that, considering the need of special education to the
handicapped students, training facilities were made available
through the special units and it was a part of integrated
education. However, as per the Government policy of inclusive
education, the handicapped students were to be accommodated
along with the regular students, therefore the central
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Government has started integrated education scheme (Secondary
Education) from 13.4.2009.
12. It is further submitted that, this scheme is 100% financed
by the Central Government and guidelines are issued on
31.8.2009 for implementation of the said scheme. While
implementing the scheme facilities were inspected to be proved to
the special disabled student in cooperation with the special
teacher and general, teacher. However, it is noticed by the
Government that, after introduction of the scheme these specially
disabled students were given education according to the
integrated education system and in the said scheme till
31.8.2009, new units were sanctioned and 1185 special teachers
were approved along with the 72 attendants. It appears from the
report submitted by the Director of Education that, these
appointments are made by the non Government
organization/private institutions.
13. It is further submitted that, as per the academic year
2015-16 there are 43569 specially disabled students however,
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according to integrated education system at the school level one
unit for 5 students and one special teacher to be appointed.
Even after appointment of 1185 special teachers in this manner,
only 9096 specially disabled students should be benefited due to
the scheme,. Therefore, rest of these students deprived from the
benefits of the education scheme.
14. The learned AGP submitted that, it is noticed that, it is not
possible to retain 5 students every year in the same school and if
that required strength of student is reduced or are not remained
sufficient than the teacher appointed for the said unit in that
school, his service will not be properly utilized. This issue is
discussed in the meeting conducted by the Human Resource
Development Ministry, Union of India and it is opined that, the
State Government is empowered to look after the need of special
students while recruiting special teacher. It is also noticed that,
the Human Resource Development Ministry has issued
guidelines in December, 2014 that appointment of these special
teachers be made at block/cluster level and those special
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teachers be asked to teach the special teacher in the schools
within the respective blocks/cluster and training to that effect is
given to these teachers. The teaching method will be at par with
the integrated inclusive education implemented under the Sarva
Shiksha Abhiyan/Scheme i.e. Instead of appointing teachers on
it, it will be cluster based because strength of students is found
unequal in the units. Therefore with a view to equalize the
education process to a specially disabled students, cluster will be
the base.
15. He submitted that, it is also noticed that, the teachers
appointed by the private institutions, their services are restricted
to that school only and such appointment cannot be made at
group/ cluster level. The 1185 special teachers are mostly
appointed by the private institutions and they cannot be
appointed on district/cluster level. The financial aid and the
salary of special teachers appointed under the scheme is entirely
sponsored by the Central Government. Therefore, the Central
Project Approval Boards meeting in 2014 -2015, it is noticed
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that, as to why the benefits of scheme is not given to all these
students and it is specifically directed after discussion that, all
these students should be benefited.
16. The learned AGP submitted that, in view of this, financial
supports from the Central Government, it was necessary before
granting approval to the appointments, the necessary consent or
sanction from the Central Government ought to have been taken.
Moreover during the State wide verification of schools done on
10.01.2013 and 25.11.2013 and on inspection of integrated
units, it is noticed that, some units are closed as well as the
appointments of special teachers made on the units are irregular
and many objectionable discrepancies are noticed, those are as
under; A) at the time making appointments of special teacher
those were made without holding requisite professional
qualification. B) persons who completes educational
course conducted by rehabilitation council of India according to
Rehabilitation Council Act, 1995, his registration is compulsory
and without verifying such R.C.I registration appointment of
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special teacher were made and approvals are granted to them.
C) without obtaining sanction to the unit, the local bodies/
private unaided schools have appointed special teachers.
D) According to inclusive education scheme appointment in
private unaided or local Government institutions, the special
teachers were to be appointed through open competition mode of
open competition is violated.
17. It is further submitted that, considering the irregularities
and difficulties while making appointments of the special
teachers on cluster/block level, there will be many difficulties i.e.
1) According to the G.R dated 26.3.2002 no appointments
shall be made without prior permission of Government therefore,
while making appointment Government sanction for basic post is
necessary. 2) According to the Government circular dated
25.8.2005, issued in pursuance to the directions issued by the
Hon'ble Supreme Court in Dr. Smt. Goal Vs. State of Rajasthan
dated 28.2.2003, J. Umrani Vs. Registrar, Cooperative Societies
dated 27.7.2004, 3) Initial appointment is not according to
the prescribed norms then the regularization in service is not
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permissible. The special teachers were to be appointed according
to prescribed procedure.
18. He further submitted that, the special teachers appointed
are not within the basic post and therefore, for creation of post,
sanction from the High Power Committee was necessary and
such sanction was not there. The appointments of 1185 special
teachers and 72 attendants under the units are approved
without following due procedure all the sanctioned units and the
approval granted to the special teacher should be cancelled by
the Deputy Director of Education as well as these special
teachers/attendants should be removed from the posts. While
canceling the appointments the authorities are directed to see
that existing rules are followed as well as existing rules and
principle of natural justice are followed.
19. It is further submitted that, in view of the facts and
circumstances mentioned above, it may be seen that the unit
sanctioned earlier and the payment made on the said units are
not sufficiently governing all the special disabled students and
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huge number of students were remained beyond scope and
benefits of the inclusive education scheme. Purpose and
intention of introduction of scheme by the Central Government is
to provide education facilities to the special disabled students
and to bring them in the main stream of education. On sanction
of units earlier and granting approval to 1185 teachers, only
9096 out of 43569 specially disabled students were benefits and
huge number of students are deprived from the exclusive
education scheme.
20. It is further submitted by the AGP that, to give benefits of
inclusive education all the disabled students, Government has
decided to have comprehensive policy. The earlier
implementation is not found suitable and it is not
accommodating all the specially disabled student. The
appointments of the special teachers and sanction of unit was
not in consultation or approval by the Central Government.
Though the Central Government is providing 100% grant and
implementation of scheme itself is at the instance of Central
Government. Therefore, views expressed during the conference
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with Human Resources Development Ministry should prevailing
as it is for the benefits of specially disabled student. Central
Government funds shall not go waste or mis-utilized therefore, all
the specially disabled students needs to be clubbed under
clusters because unit attached to the school has many limitation
which cane be sorted out by bringing them under cluster.
21.
The learned AGP submitted that, the communication dated
17.5.2014 was issued considering the fact that, during the
inspection, irregularities are noticed by the inspecting authority
and recommendations were made by the Deputy Director/
Education Officer for closing down the units. Subsequent to said
communication issued by the Director of Education, the policy as
referred above, vide communication dated 7.7.2015 is remained
with the Government at present and the Government has decided
not to regularize services of these teachers in view of the
comprehensive policy laid down.
22. He submitted that, appointments are made on the 100%
finance sponsored scheme of Central Government for specially
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disabled student, when it is noticed that, every unit may not get
5 students consistently therefore it is decided to make
appointment of block/district cluster level and the teachers
appointed by the private management may not accept the
appointments of block/cluster level because the special teacher
appointed will have to impart education at cluster level by way of
mobile teaching under the respective cluster/taluka. This
scheme is introduced for the benefits of specially disabled
students and the regularization claimed as of right is not
permissible and the Writ Petition seeking benefits of
regularization is not maintainable. It is submitted that, the
Petitioners have prayed for arrears of salary, since the grants are
not available for disbursement, there is no question of payment
of salary to the teachers.
23. Lastly, the learned AGP submitted that, in view of the facts
and circumstances mentioned above, the relief claimed by the
Petitioners cannot be granted and the Writ Petitions deserve to
be dismissed with costs. The learned AGP pressed into service
exposition of the Supreme Court in the case of Nazira Begum
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Lashkar and others Vs. State of Assam and others2 and submits
that, the appointment of the petitioners was not in accordance
with procedure prescribed in law, therefore, this Court may not
issue direction for adjustment of equities in favour of petitioners.
24. The learned Assistant Solicitor General appearing for the
respondent No.1, relying upon the affidavit-in-reply filed on
behalf of respondent No.1 - Union of India, submitted that, the
'Inclusive Education for Disabled at Secondary State' is launched
by the Central Government from the year 2009-10. This scheme
replaces the earlier scheme of 'Integrated Education for Disabled
Children' (I.E.D.C.) and provides assistance for the Inclusive
Education of the Disabled Children in Classes IX to XII. The
scheme covers all children studying at the Secondary Stage in
'Government, local body and Government-aided schools' with one
or more disabilities as defined under the Persons with Disabilities
Act, 1995 and the National Trust Act, 1999 in the Class-IX to XII,
namely 'blindness, low division, leprosy cured, hearing
impairment, locomotory disabilities, mental retardation, mental
2 AIR 2001 SC 102
452.15wp+
illness, autism, and cerebral palsy. It is further submitted that it
may eventually cover speech impairment, learning disabilities
etc. Girls with the disabilities receive special focus to help them
gain access to secondary schools, as also to information and
guidance for developing their potential. The privately aided
Schools are not covered in the scheme. Setting up of model
inclusive schools in every State is envisaged under the Scheme.
25. The learned ASG appearing for the respondent No.1 further
submitted that, the subject of appointment of special teachers is
entrusted to the State Government. The special education
teachers under the scheme of 'Inclusive Education for Disabled
at Secondary State' are recruited by the State Governments as
per the eligibility norms of the scheme. It is submitted that, the
Union of India has no role to play in selection or recruitment of
the special disability teacher.
26. The learned ASG further submitted that the Government of
Maharashtra was sanctioned Rs.298.45 lakhs as first installment
452.15wp+
in the year, 2009-10 for the I.E.D.S.S. Scheme. The special
education teachers under the I.E.D.S.S. Scheme were required to
be appointed by the State Government in Government and
Government aided schools but the State Government appointed
them at schools including private aided schools, which are not
covered under the Scheme. In spite of this, the State
Government appointed such teachers in private aided schools
also. The State Government also decided to reorganize the
scheme making it totally student-centric. The State had also
proposed to close all the centres in private aided schools and
merge the eligible teachers in these schools at the block levels.
27. The learned ASG further submitted that, in the Project
Approval Board (PAB) meeting in the Ministry of HRD for the year
2014-15, the State Government had submitted a proposal for the
Salary of 1080 special education teachers. While considering the
same, the State Government was requested to furnish the
complete details of special education teachers for whom the
salary had been requested. Accordingly, the State Government
452.15wp+
had submitted a list of 993 teachers vide their mail dtd. 20th
June, 2014. this list included the names of all the six petitioners
at Sr.Nos.260, 261, 262, 291, 292 and 785. Further vide letter
dtd. 31st July, 2014, the State Government furnished a list of 752
special education teachers for consideration of their salary. This
list did not include the name of six petitioners. After
examination of the list of 752 special education teachers
information in respect of only 238 special education teachers was
found complete. Accordingly, Rs.1112.69 lakhs as first
installment of salary of 238 teachers for the year 2014-15 was
released on 1.8.2014 by the Ministry of HRD. It was found that,
328 teachers were eligible as per the norms of I.E.D.S.S. Scheme.
On furnishing of complete information, the grant for remaining
special education teachers would be considered by the
Government of India. Only those special education teachers
whose names are recommended by the State Government are
considered by the Government of India. It is further submitted
by the ASG that, regarding eligibility of petitioners, the State
Government has to decide the same and their entitlements as per
452.15wp+
the norms of the scheme. The Central Government will consider
only those names submitted by the State Government. The
learned ASG submitted that, the petitioners have not challenged
any action of Central Government i.e. the respondent No.1 and
therefore, the name of Union of India may be deleted from the list
of respondents.
28.
We have given careful consideration to the submissions of
the learned Counsel appearing for the petitioners, the learned
AGP appearing for the respondent Nos.1 to 4, and the learned
counsel appearing for the respondent Nos.5 and 6. With their
able assistance, we have perused the pleadings, and grounds
taken in the Petition, and annexure thereto, affidavit-in-reply
filed by the respondent Nos.1 to 4, and also by the respondent
Nos.5 and 6, and also the Judgments cited across the bar by the
learned counsel appearing for the respective parties.
29. The petitioners in all Petitions were appointed, initially, in
particular pay scale for one year and approval was granted for
the said academic year by the Deputy Director of Education.
452.15wp+
Thereafter again appointment for one year was given. Thereafter,
in cases of some of the petitioners, 'continuity of service' [lsok
lkrR; ] was granted without stipulating further time limit.
However, the Deputy Director of Education granted approval to
the appointments of the petitioners time to time on certain
conditions. Two important conditions for the purpose of proper
adjudication of these Petitions are as under:
a1½ ;quhV deh >kY;kl vuqnku feG.kkj ukgh o lnj
deZpk&;kaph osruph tckcnkjh laLFksph jkghy
rlsp ifjpjkl lek;kstu vU; ;quhVoj
djrk ;s.kkj ukgh-
2½ Hkfo";kr fo|kFkhZ la[;k vHkkoh vFkok dks.kR;kgh
dkj.kkLro lnjps ;qfuV can iMY;kl dqBY;kgh
izdkjps vuqnku feG.kkj ukgh o lnj fo'ks"k f'k{kd
lek;kstu vu; ;qfuVoj djrk ;s.kkj ukgh- rlsp
lacaf/kr fo'ks"k fo'ks"k f'k{kd lek;kstukph o
osrukph laiq.kZ tckcnkjh gh laLFksph jkghy ;k
vVhojp ekU;rk ns.;kr ;sr vkgs ;kph ukasn ?;koh-ß
The true translation of the above conditions
translated by the office Translator is as under:
1. If a unit is closed grant shall not be released
and it will be the responsibility of institution to pay
452.15wp+
salary of such employee and such attendant shall not
be adjusted to any other unit.
2. No any grant in aid will be given if any unit is
closed in future for want of strength of students or
otherwise. And the adjustment of the said special
teacher will not be made in any other unit. Similarly,
the adjustment of such special teacher and the
responsibility of his salary will be completely on the
institution. It be noted that this approval is granted
only on the aforesaid terms and conditions.
[Underlines added]
30. Upon perusal of the conditions in the approval letter,
it is specifically mentioned therein that, in future if the Unit is
closed due to less number of students or any other reasons, the
Institution will not entitle for grants and said special teacher
cannot be absorbed / accommodated in any other unit and
responsibility of absorption of such special teacher and also
salary will be of concerned management. Therefore, the approval
granted to the services of the petitioners was on aforesaid
conditions.
452.15wp+
31. Upon careful perusal of the entire material placed on
record, it is not specifically mentioned that, the posts were
advertised. Though it is stated that, the petitioners are
appointed after following proper procedure. There is no
document placed on record, showing that, prior permission of the
respondent authorities was taken before appointing the
petitioners, and also whether there was sanction for the basic
post. During the course of arguments, the learned Assistant
Solicitor General submitted that, the scheme is not for private
school; and it is for the Government - Local Bodies run schools.
It is true that, the respondent authorities have granted approval
on year to year basis, and in cases of some of the petitioners, the
continuity in service without stipulating further period in the
same pay scale, and also salary is paid by the Unit in the Zilla
Parishad. However, while granting approval, the conditions are
stipulated in the said approval - order.
32. In that view of the matter, in view of the conditions of the
approval letters / orders mentioned hereinabove, the relief
452.15wp+
claimed by the petitioners for declaring them surplus or for
absorbing them in some other aided school cannot be
entertained. It is not possible for this Court to issue any
mandatory directions to the respondent - State and State
authorities, in view of the condition enumerated in the approval
letters / orders by the Deputy Director of Education. It is the
entire responsibility of the concerned Institution to take care of
the grievances of the petitioners. During the course of hearing,
the learned counsel appearing for the petitioners have informed
this Court that, the services of the petitioners have already been
terminated. Upon perusal of the documents placed on record,
and in particular appointment letters and the approval letters, it
is mentioned that, the petitioners' services shall be governed by
the Maharashtra Employee of Private Schools [Conditions of
Service] Regulation Act, 1977 and the Rules, 1981. In that view
of the matter, if the petitioners are aggrieved by termination of
services, the petitioners can avail remedy under the said Act, by
filing appropriate proceedings before the School Tribunal. In that
respect, we do not express any opinion. However, we make it
452.15wp+
clear that, in case the petitioners wish to approach the School
Tribunal, in that case the School Tribunal to consider their cases
on merits, without being influenced by the observations made in
this Judgment, and not to reject it on the ground of limitation,
since the petitioners were prosecuting the present Writ Petitions
for considerable period.
33. The learned counsel appearing for the petitioners placed
reliance on the interim order passed by the Bombay High Court
at Principal Seat in the case of Sangeeta d/o.Maruti Pund & Ors.
Vs. The State of Maharashtra & ors. in Writ Petition No.
4902/2012, decided on 21st November, 2012. The learned counsel
appearing for the petitioners further placed reliance on the order
passed by the Bombay High Court Bench at Aurangabad, in the
case of Pratibha Dinkar Sonawane @ Archana Sunil Patil Vs. The
State of Maharashtra and others in Writ Petition No.2924/2014
along with connected matters, decided on 12th August, 2015.
However, said decision cannot be made applicable in the facts of
the present case, inasmuch as, in the facts of that case, the
452.15wp+
petitioners therein were working with respondent No.5 under the
Integrated Education Scheme and subsequently, under the
Inclusive Education Scheme and these petitioners were
transferred to respondent No.6. Even orders were issued by the
authorities absorbing the petitioners with respondent No.6
Institution. However, in the present case, all the petitioners are
appointed by the private institution.
34. Though we are not inclined to issue mandatory directions
to the respondents State, nevertheless for the period for which
the petitioners have rendered services, they are entitled for the
salary. The Deputy Director of Education, Nashik Division,
Nashik, is directed to consider the said aspect, either to pay
salary from the Public Exchequer, or to ask the concerned
Institution to pay the salary, if the petitioners' services are
continued after withdrawing the unit. We are aware that, the
petitioners have worked for couple of years, and by virtue of
rendering services, they have gained experience of teaching /
working. It has come on record that, there are in 1185 teachers
452.15wp+
and 72 attendants though mostly appointed by the private
institutions. The State Government can frame the scheme as a
one time measure / solution, so as to address the grievances of
the petitioners, and other similarly situated teachers and
attendants, in the light of the observations of the Hon'ble
Supreme Court in para 53 of the Judgment in the case of
Secretary, State of Karnataka and others V/s Umadevi (3)
and others3 which reads thus :-
"53. One aspect needs to be clarified. There
may be cases where irregular appointments (not
illegal appointments) as explained in S.V.
Narayanappa, (supra), R.N. Nanjundappa
(supra), and B.N. Nagarajan (supra), and referred
to in paragraph 15 above, of duly qualified
persons in duly sanctioned vacant posts might
have been made and the employees have
continued to work for ten years or more but
without the intervention of orders of courts or of
tribunals. The question of regularization of the
services of such employees may have to be
considered on merits in the light of the principles
3 (2006) 4 SCC 1
452.15wp+
settled by this Court in the cases abovereferred to
and in the light of this judgment. In that context,
the Union of India, the State Governments and
their instrumentalities should take steps to
regularize as a one time measure, the services of
such irregularly appointed, who have worked for
ten years or more in duly sanctioned posts but
not under cover of orders of courts or of tribunals
and should further ensure that regular
recruitments are undertaken to fill those vacant
sanctioned posts that require to be filled up, in
cases where temporary employees or daily
wagers are being now employed. The process
must be set in motion within six months from this
date. We also clarify that regularization, if any
already made, but not sub judice, need not be
reopened based on this judgment, but there
should be no further bypassing of the
constitutional requirement and regularizing or
making permanent, those not duly appointed as
per the constitutional scheme."
35. In the light of the observations of the Hon'ble Supreme
Court, it is possible for the State Government to frame the
scheme for redressal of the grievances of the petitioners, and
452.15wp+
other teachers and attendants as one time measure. It is also
possible for the Government that, the petitioners and the other
special teachers can be given appointment as block / cluster
level as per the new scheme. We hope and expect that, the State
Government may take appropriate steps to formulate the scheme
as one time measure, and solve the problems faced by the
petitioners and other similarly situated teachers and the
attendants.
36. With above observations, the Petitions stand rejected. Rule
stands discharged.
Sd/- Sd/-
[A.M. BADAR, J.] [S.S. SHINDE, J.]
kadam/ddc*
