Bombay High Court
Aurangabad Silk Mills Education ... vs The State Of Maharashtra And ... on 26 July, 2016
Bench: S.S. Shinde
1 WP No.259/2016
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.259 OF 2016
1) Aurangabad Silk Mills Educational
Society, Silk Mills Colony,
Aurangabad, through its
Secretary.
2) Shekh Pasha Shekh Ali,
Age: 38 Yrs., occu. Service.
3) Mahendra s/o Vishwasrao Deshmukh,
Age: 29 Yrs., occu. Service,
4) Sayyed Azharuddin Sayyed Rafiuddin,
Age: 28 Yrs., occu. Service.
5) Qazi Faheemuddin Nizamuddin,
Age: 23 Yrs., occu. Service.
Moinul Uloom High School
Silk Mills Colony, Aurangabad,
Tq. And Dist. Aurangabad. - PETITIONERS
VERSUS
1. The State of Maharashtra,
Through its Secretary,
School Education Department,
Government of Maharashtra,
Mantralaya, Mumbai -32.
2. The Education Officer (Secondary)
Zilla Parishad, Aurangabad. - RESPONDENTS
...
Mr. Chandrakant K. Shinde, Advocate for Petitioners;
Mr. SB Yawalkar, AGP for Respondent Nos.1 and 2.
...
CORAM : S.S.SHINDE &
P.R.BORA,JJ.
DATE :
26 July,2016.
th
ORAL JUDGMENT (PER:- S.S.SHINDE,J.)
1) Heard. Rule. Rule made returnable
forthwith. With the consent of learned Counsel for
the parties, the petition is taken up for final
disposal at admission stage.
2) This petition takes exception to
communication dated 31.12.2015 issued by Respondent
No. 2 - Education officer (Secondary), Zilla
Parishad, Aurangabad, thereby refusing to accord
approvals to the appointments of the petitioners Nos.
2 to 5 as Shikshan Sevak.
3) It is the submission of learned Counsel for
the petitioners that since Petitioner No. 1 is a
minority institution, and in view of the Judgment of
the Division Bench in the case of Cannossa Society &
Anr. Vs. Commissioner and Ors. - 2014(3) Bom.C.R.
556, Respondent No. 2 - Education officer ought to
have granted approval to the appointments of the
petitioners.
4) On the other hand, learned counsel for
Respondent No.2 submits that the approval to the
appointments of the petitioners as prayed for cannot
be granted due to following reasons, -
(i) The appointments of the petitioners were made
after issuance of Government Resolution dated 2nd
May, 2012; and
(ii) There is ban to recruitment till absorption of
the surplus teachers in view of clause 1.8 of
issued
Government Resolution dated 2nd
by School Education
May, 2012
Department,
Mantralaya, Mumbai.
5) We have heard learned Counsel for the
petitioners; learned AGP and learned Counsel for
respondents. The issue / point raised in this
petition is no longer res integra. In similar 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 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 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. 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 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."
6) It is necessary to reproduce clause 2 of
Government Resolution dated 20th June, 2014, which
reads thus, -
"02½ ;k fcxj vYila[;kad 'kkGkae/;s vfrfjDr BjysY;k
f'k{kdkaps lek;kstu vYila[;kad 'kkGk rlsp Hkkf"kd
vYila[;kad 'kkGkae/;s ykxw gks.kkj ukgh -"
7) 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 impugned communication of the respondent No.2 -
Education Officer (Secondary), Zilla Parishad,
Aurangabad deserves to be set aside.
8) Accordingly, the letter 31st December, 2015
issued by the respondent No.2 - Education Officer
(Secondary), Zilla Parishad, Aurangabad stands
quashed and set aside. It is needless to observe
that, the proposals of the petitioners Nos. 2 to 5
for approval of the appointments to the post of
Shikshan Sevak pending with the respondents shall be
decided within ten weeks from today.
9) The writ petition is allowed to above
extent. Rule is made absolute accordingly, with no
order as to costs.
sd/- sd/-
(P.R.BORA) (S.S.SHINDE)
JUDGE JUDGE
bdv/
