Bombay High Court
Shikshan Prasarak Mandal, ... vs Ramesh Bhimrao Narayankar And Ors on 10 March, 2016
Bench: S.C. Dharmadhikari
1 of 62 WP.126.2012-FB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.126 OF 2012
WITH
CIVIL APPLICATION NO.3181 OF 2015
ig AND
CIVIL APPLICATION NO.3182 OF 2015
1. Shikshan Prasarak Mandal,
Awasari (BK), Tal.Ambegaon,
District Pune through Chairman/Secretary
2. Vidya Vikas Mandal,
Awasari (BK), Tal.Ambegaon,
District Pune through Head Master Petitioners
versus
1. Ramesh Bhimrao Narayankar,
R/o.Awasari (BK), Tal.Ambegaon.
2. The Education Officer (Secondary),
Zilla Parishad, Pune.
3. Deputy Director of Education,
Pune Region, Pune.
4. The Learned Presiding Officer,
School Tribunal, Pune. Respondents
::: Uploaded on - 11/03/2016 ::: Downloaded on - 12/03/2016 00:02:07 :::
2 of 62 WP.126.2012-FB
WITH
WRIT PETITION NO.5199 OF 2011
1. Shri Gajanan Maharaj Shikshan
Prasarak Mandal, at Otur, Tal.Junnar,
District PUne through Secretary.
2. Veer Savarkar Vidyalaya Ballalwadi
(Pangari Matha), Tal.Junnar, Dist. Pune. Petitioners
versus
1. Balu Shrimant Sarvade,
R.o.Ishwar Wathar, Post Tungat,
Tal. Pandharpur.
2. The Education Officer (Secondary),
Zilla Parishad, Pune.
3. The State of Maharashtra. Respondents
WITH
WRIT PETITION NO.10686 OF 2011
WITH
CIVIL APPLICATION NO.319 OF 2015
1. Rangdas Swami Shikshan Vikas
Mandal, at Post Ane, Tal. Junnar,
Dist. Pune, through President.
2. The Head Master,
Kamalajadevi Secondary and Higher
Secondary Vidyalaya, At Post Kalamb,
Tal.Ambegaon, Dist. Pune.
3. The Head Master,
Rangdas Swami Post Basic Ashram Shaha,
At Post Ane, Tal.Junnar, Dist.Pune. Petitioners
::: Uploaded on - 11/03/2016 ::: Downloaded on - 12/03/2016 00:02:07 :::
3 of 62 WP.126.2012-FB
versus
1. Mutyal Vilas Rambhau,
R/o.Post Alkuti, Tal.Parner,
District Ahamednagar.
2. The Education Officer (Secondary),
Zilla Parishad, Pune.
3. The Special District Social Welfare
Officer, PMT Building, Swargate, Pune. Respondents
Mr.N.V.Bandiwadekar with Mr.Sagar Mane, Advocates, for
Petitioners in Writ Petition No.126 of 2012.
Mr.Parvinder Singh Sethi with Mr.R.R.Nair and Mr.Nilesh Shah
i/by Mr.Mathew Nedumpara for Respondent no.1 in WP No.126
of 2012 and for Applicants in CAW No.3182 of 2015.
Mr.Prashant Bhavke for Applicants in CAW No.3181 of 2015.
Mr.A.B.Vagyani, Government Pleader, with Mr.A.I.I.Patel, AGP,
for Respondent nos.2 and 3 in WP Nos.126/2012 and
10686/2011.
Mr.Machhindra A. Patil with Mr.A.M.Katkar for Respondent no.1
in WP No.5199 of 2011.
Mr.D.S.Mhaispurkar for Petitioners in WP No.10686/2011.
Mr.Vilas B. Tapkir for Respondent no.1 in WP and for Applicants
in CAW No.319 of 2015.
Mr.Shaikh Nasir Masin, Mr.Murtaza Najmi, Mr.Surel Shah and
Mr.A.M.Kulkarni assisted the Court.
::: Uploaded on - 11/03/2016 ::: Downloaded on - 12/03/2016 00:02:07 :::
4 of 62 WP.126.2012-FB
CORAM : S.C.DHARMADHIKARI, G.S.PATEL
AND A.K.MENON, JJ.
Date of Reserving the Judgment : 21st January 2016
Date of Pronouncing the Judgment : 10th March 2016
CAV JUDGMENT - (Per : S.C.Dharmadhikari, J.) :-
1. On 30 March 2012, while dealing with Writ Petition
No.126 of 2012, a learned Single Judge of this Court was
confronted with two judgments, both rendered by Division
Benches of this Court, on the point involved, namely whether a
retired teacher can be a member of the Inquiry Committee to
inquire into the misconduct of Respondent no.1 appointed as
Assistant Teacher in Petitioner no.2 school?
2. The management was aggrieved and dissatisfied
with the findings of the School Tribunal: firstly, that the
constitution of the inquiry committee was defective; And
secondly, that the inquiry and the punishment imposed on this
teacher were both bad in law. The School Tribunal therefore
directed the management to reinstate the School Teacher with
full back wages but reserving liberty to the management to
conduct a fresh inquiry against him.
5 of 62 WP.126.2012-FB
3. One Division Bench sitting at Aurangabad in Writ
Petition No.5867 of 2008 (Leelatai d/o. Annapa Patil Vs. The
State of Maharashtra) held that the third member appointed on
the inquiry committee has to be not only an awardee teacher
but ought to be in service. There is a prior judgment, according
to the learned Single Judge, rendered in the case of Sudha d/o.
Bhaskarrao Saikhede Vs. Yashodabai Shikshan Sanstha and
others reported in 2003 (4) Mh.L.J. 659, which suggests and
seems to take a view that there is no bar for a retired awardee
teacher to be a member of the inquiry committee. The learned
Single Judge found that the attention of the later Division Bench
in Leelatai Patil's case (supra) was not invited to the judgment
in the case of Sudha Saikhede (supra).
4. Then the learned Single Judge's attention was
invited to a third judgment rendered in the case of Kranti Junior
Adhyapak Mahavidyalaya (D.Ed.) Vs. State of Maharashtra (Writ
Petition No.10032 of 2010) decided on 28 September 2011
reported in 2012 (1) Mh.L.J. 370. Though both the above
referred Division Bench judgments were cited before the learned
Single Judge while dealing with Writ Petition No.10032 of
2010, he has not assigned any reason why he chose to follow
the judgment rendered by the Division Bench in Leelatai Patil's
case (supra) and not earlier judgment in Sudha Saikhede's case
(supra).
6 of 62 WP.126.2012-FB
5. In the referral order it has been observed that this
issue arises repeatedly in large number of cases before the School
Tribunal and the School Tribunal faces a precarious situation as to
which judgment, out of the above referred two judgments, both of
Division Benches, should be followed. In view thereof and there
being necessity of an authoritative pronouncement on the issue,
the learned Single Judge who was dealing with Writ Petition
No.126 of 2012, requested the Hon'ble Chief Justice to refer the
issue to a Larger Bench of three Judges. That is how this Larger
Bench has been constituted and to answer the following
questions :
"(i) Whether a Teacher or Headmaster on whom
State/ National Award has been conferred, who is to be
chosen as a third member in an Inquiry Committee
constituted under the Maharashtra Employees of Private
Schools (Conditions of Service) Regulation Act, 1977 and
Rules, 1981, can be a retired Teacher/Headmaster or has
essentially to be an in service Teacher/Headmaster?
(ii) Which of the judgments of the Division
Benches in the case of Leelatai d/o. Annapa Patil and
Sudha d/o. Bhaskarrao Saikhede lay down a binding
precedent regarding the age of the Award Winning
Teacher/Headmaster?"
Accordingly, these questions were posed for answer and opinion
by us.
7 of 62 WP.126.2012-FB
6. At the outset, we clarify that we have not addressed
the merits of the individual cases before us. Upon the questions
referred being answered, the individual matters will go back to
their respective Benches for being heard and disposed of in light
of this judgment.
7. Mr.N.V.Bandiwadekar making the lead arguments
invited our attention to the provisions of Maharashtra
Employees of Private Schools (Conditions of Service) Regulation
Act, 1977 ('MEPS Act' for the sake of brevity) and Maharashtra
Employees of Private Schools (Conditions of Service) Rules,
1981 ('MEPS Rules' for the sake of brevity). Then he invited our
attention to Rule 36 of the MEPS Rules to submit that a careful
perusal of all the sub-rules therein and particularly Rule 36(2)
(a) and (b), reveals that the inquiry committee has to be
constituted in the manner set out therein. Inviting our attention
to clause (a) of sub-Rule 2 of Rule 36 and particularly sub-
clauses (ii) and (iii), it is submitted by Mr.Bandivadekar that
there is no embargo or prohibition in choosing a member of the
inquiry committee any teacher from the panel of teachers on
whom State/National Award has been conferred. Meaning
thereby, the awardee teacher in the panel need not be an in-
service candidate. The inquiry committee, therefore, cannot be
said to be defective if the Chief Executive Officer chooses from
the panel any awardee teacher who has retired from service.
8 of 62 WP.126.2012-FB
8. In support of the above contention, apart from
emphasizing the language and rather the difference in the same
as far as Rules 36(2)(a)(ii) and (iii) are concerned, he also
relies upon certain definitions. He would specifically rely upon
the expression "Chief Executive Officer" as defined in Rule 2(c)
of MEPS Rules. He would also rely upon the definitions of the
word "Teacher" as defined in Section 2(26) of MEPS Act.
According to Mr.Bandivadekar, prior to the MEPS Act and Rules,
the field of disciplinary proceedings and inquiry was covered by
paragraph 77.3 of the Secondary School Code. However, it was
on account of the grievance that there was no proper
representation given to the employees proceeded against and
the Secondary Schools Code fell short of the requirements of
fairness and justice, that this MEPS regime was brought in.
Mr.Bandivadekar has outlined the difference between Rule 36
prior to its amendment in 1984 and thereafter. He would submit
that there is no substance in the complaints generally made that
all inquiry committees are dominated by the managements.
Now equal representation has been given to the delinquent
employees. Further, an independent person in the form of an
awardee teacher is also a part of such inquiry committee. That
would ensure that the inquiries are fair, just and proper.
Mr.Bandivadekar has also invited our attention to Annexure-A
to the Rules. The argument is that the mischief in the earlier
provisions has been completely done away with. Now there is a
guarantee of an independent and impartial inquiry.
9 of 62 WP.126.2012-FB
9. The further argument of Mr.Bandivadekar is that the
Division Bench in Leelatai Patil (supra) seems to suggest that the
award winning teachers necessarily have to be in service. The
award is conferred for a meritorious service rendered in the
past. If the schemes for awarding teachers at the State and
National levels are considered in their proper perspective, it is
apparent that even after superannuation, a teacher is entitled to
retain the award conferred while the teacher was in service. For
conferring the award while the teacher is in service, detailed
information is called for about every teacher, which includes his
teaching abilities, his performance and the views of fellow
teachers and students. {NB: the scheme, included in the
compilation, p. 45 @ 46, indicates that normally retired
teachers are ineligible; the narrow exception seems to be only
for those who have served part of the calendar year} Once the
award can be conferred even on the verge of retirement, then
Rule 36(2)(a)(iii) will have to be interpreted with the aid of
these award schemes. If that is how it is interpreted, then the
distinction in the language of these two sub-clauses would be
maintained. Our attention is invited to certain other definitions
in the MEPS Act namely the word "Employee" appearing in
Section 2(7) and "Head of a School" appearing in Section 2(9).
The premise on which the Division Bench in Leelatai Patil's case
(supra) has proceeded is erroneous, according to Mr.
Bandivadekar, for the scheme of Rule 36 of MEPS Rules and
particularly sub-rule 2, sub clause (a) and the other sub-clauses
10 of 62 WP.126.2012-FB
thereof do not warrant reading any further requirement in the
same. If as suggested in Leelatai Patil's case (supra), this sub-rule
(iii) is read to mean that the awardee teacher has to be part and
parcel of the teaching staff of a school, then, that would amount
to adding words in the sub-rule/clause. The clause and sub-
clause does not omit anything nor does it include anything of
this nature. Therefore, going by its plain language, it is apparent
that an awardee teacher could be a retired awardee teacher as
well and does not necessarily have to be an in-service awardee
teacher.
10. Mr. Bandivadekar has also relied upon a Circular
issued by the State Government which clarifies that a retired
awardee teacher can be part of the inquiry committee, but as far
as possible he should be less than 65 years of age and secondly
he should not be overburdened with several inquiries. Though
these are merely administrative instructions, they come closer to
the view taken in Sudha Saikhede's case (supra). Therefore, Mr.
Bandivadekar would submit that Leelatai Patil's case (supra)
does not lay down the correct law.
11. Mr. Bandivadekar also submits that ordinarily the
School Tribunal follows the later judgment in Leelatai Patil's
case (supra). That was a judgment rendered without the benefit
of full and complete arguments. Rather the issue arising before
us was not specifically raised there. Mr. Bandivadekar submits
11 of 62 WP.126.2012-FB
that emphasis ought to be on the words "panel of teachers" on
whom the award has been conferred. Mr. Bandivadekar has also
invited our attention to Rule 17 of the MEPS Rules.
12. Mr. Bandivadekar's arguments have been adopted by
Mr. Shaikh Nasir Masin appearing in other petitions. Mr.Shaikh
Nasir Masin submits that the state maintains a panel of awardee
teachers. The name of an awardee teacher is not deleted from
the panel merely because he/she has retired from service. The
only condition that has to be fulfilled in the present case is that
the Chief Executive Officer must choose an awardee teacher.
He/she may be from an adjoining district. Thus, there is no
ambiguity in sub-clause (iii) of clause (a) of sub-rule 2 of Rule
36 of MEPS Rules.
13. This line of argument is also adopted by Mr. Murtaza
Najmi. He would submit that the status 'awardee teacher' is not
lost even after his/her retirement. The status is achieved due to
the award conferred by the State for his/her excellence and
merit. His presence on the inquiry committee would lend it the
necessary moral and intellectual strength. That is why there is
no scope for importing the definition of the term "Teacher" as
appearing in Section 2(26) of the MEPS Act.
14. Mr.Surel Shah, learned Advocate, also adopted the
same line of arguments in supporting Mr.Bandivadekar. It must
12 of 62 WP.126.2012-FB
be stated that Mr.Shaikh, Mr.Murtaza Najmi, Mr.Surel Shah and
Mr.A.K.Kulkarni have been allowed to appear on their request
and with a view to assist the Court. Mr.Bandivadekar relied
upon the following judgments :
1 Sudha d/o Bhaskarrao Saikhede Vs.
Yashodabai Shikshan Sanstha reported in
2003(4)-Mh.L.J.-659 (DB).
2 Leelatai d/o Anna Patil Vs. The State of
Maharashtra and others - Writ Petition
No.5867 of 2008 decided on 18 November
2008.
3 Savita d/o Vinay Nandre Vs. The State of
Maharashtra and others - Writ Petition
No.3926 of 2008 decided on 9 September
2008.
4 Kranti Junior Adhyapak Mahavidyalay
(D.Ed) and others Vs. The State of
Maharashtra and others reported in 2012(1)-
Mh.L.J.-370
5 Shikshan Prasarak Mandal, Pune Vs. The
State of Maharashtra and others reported in
2009(5)-Mh.L.J.-969 (FB).
15. A contrary line of argument is canvassed by
Mr.Machhindra Patil, Mr.Parvinder Singh Sethi, Mr.Vilas Tapkir
and Mr.A.M.Kulkarni. All of them contended that the view taken
in Leelatai Patil's case (supra) is the only possible and plausible
view of the matter. They would contend that it is erroneous to
13 of 62 WP.126.2012-FB
assume or contend that the expression "Teacher" which finds
place in sub-rule (iii) of Rule 36(2)(a) will not have the same
meaning as is assigned to it in the substantive part of MEPS Act.
Therefore, nothing is being imported or read into the sub-rule,
as is suggested by Mr.Bandivadekar and other learned
Advocates. It is the plain meaning of the sub-rule that if a
teacher has to be on the inquiry committee and that too an
awardee from the State, he must be a serving employee. Else,
the inquiry committee will not be legally and validly
constituted. They would submit that there cannot be two
conflicting uses of the word 'teacher', one referring to an in-
service employee as part of the teaching staff and the other
referring to a past teacher or ex-employee who has been
superannuated. The constitution of the inquiry committee
would then be not in accordance with Rule 36 of the MEPS
Rules. Each one of them has also relied upon the expression
"Head of School". Therefore, according to them, a in-service
member or a serving teacher would add qualitatively to the
committee. In the circumstances, the only view can be as in
Leelatai Patil's case (supra) and that is correctly decided. The
questions, therefore, be answered accordingly.
16. Mr.Surel Shah, learned Advocate assisting the
Court, relies on the following decisions :
14 of 62 WP.126.2012-FB
1 Vanguard Fire and General Insurance Co.
Ltd., Madras Vs. Fraser and Ross and
another reported in AIR-1960-SC-971.
2 Ramesh Mehta Vs. Sanwal Chand Singhavi
and others reported in (2004)5-SCC-409.
3 Indian City Properties Ltd. and another Vs.
Municipal Commissioner of Greater
Bombay and another reported in (2005)6-
SCC-417.
4 Mathuradas Mohta College of Science
Nagpur Vs. R.T.Borkar and others reported
in 2011(1)-All.M.R.-912.
5 Nishad Sadashiv Pawar and others Vs.
Dnyansadahana College (through Hon.
Gen. Secretary) and others reported in
2005(4)-All.M.R.-101.
17. For properly appreciating the rival contentions, a
reference will have to be made firstly to the MEPS Act. That is
an Act to regulate recruitment and conditions of service of
employees in certain private schools. The preamble to the Act
says that it is expedient to regulate the recruitment and
conditions of service of employees in certain private schools in
the State, with a view to providing such employees security and
stability of service to enable them to effectively and efficiently
15 of 62 WP.126.2012-FB
discharge their duties towards pupils and their guardians in
particular, and the institution and society in general. The further
aspect which is relevant for us is that the Legislature intended
that it is expedient in the public interest to lay down the duties
and functions of such employees with a view to ensuring that
they become accountable to the management and contribute
their might for improving the standard of education. That is
how it was necessary to make certain supplemental, incidental
and consequential provisions.
18.
We have, therefore, an enactment before us which
not only seeks to regulate the recruitment and conditions of
service of employees in certain private schools with a view to
providing such employees security and stability in service, to
enable them to discharge their duties towards pupils and their
guardians and also to the institution and society in general
effectively and efficiently but their duties and functions are laid
down in the public interest. That is to make them accountable
to the management and to the public by directing their efforts to
improving the standard of education. It is therefore, apparent
that the provisions of the MEPS Act must receive such
interpretation as would advance the object and purpose sought
to be achieved and equally suppress the mischief which is
noticed by the Legislature. The Act extends to the whole of the
State of Maharashtra.
16 of 62 WP.126.2012-FB
19. Section 2 of MEPS Act contains definitions. The
definitions of the expressions "Coaching Class", "College",
"Department", "Deputy Director" and "Director" are to be found
in Sections 2(2) to 2(6) of the Act. The expression "Divisional
Board" is defined in Section 2(6A). Section 2(7) defines the
expression "Employee" as under :
"Employee" means any member of the teaching and
non-teaching staff of a recognised school and includes
'Assistant Teacher (Probationary)'.
A bare perusal of this definition indicates that it means any
member of the teaching and non-teaching staff of a recognised
school and includes Assistant Teacher (Probationary). The
expression "Employee" is thus a comprehensive term taking in
its fold the members of teaching and non-teaching staff of a
recognised school. The expression "Existing Private School" is
defined in Section 2(8) to mean a recognised private school
which is in existence on the appointed date. The expression
"Head of a School" is defined in Section 2(9), which reads as
under :
"Head of a School" or Head means the person, by
whatever name called, in-chargeof the academic and
administrative duties and functions of a school conducted
by any management and recognised or deemed to be
recognised under this Act, and includes a principal, vice-
principal, head master, head mistress, assistant head
master, assistant head-mistress, or superintendant
thereof.
17 of 62 WP.126.2012-FB
The nomenclature apart, the expression "Head of a School" is
defined to mean a person, by whatever name called, in-charge
of the academic and administrative duties and functions of a
school conducted by any management and recognised or
deemed to be recognised under this Act. The expression "Junior
College of education" is defined in Section 2(10) to mean a
school imparting teacher education to persons for being
appointed as teachers and assistant teacher (probationary) in
pre-school centres or primary schools. The expression "Local
Authority" is defined in Section 2(11) to mean a Zilla Parishad,
a Municipal Corporation, or a Municipal Council, as the case
may be. The expression "Management" is defined in Section
2(12) and reads as under :
"Management" in relation to a school, means :
(a) In the case of a school administered by the
State Government, the Department;
(b) in the case of a school administered by local
authority, that local authority; and
(c) in any other case, the Person, or body of
persons, whether incorporated or not and by
whatever name called, administering such school.
Therefore, there could be a school administered by the State
Government through its Department of Education; there could
be a school administered by a local authority; and there could
18 of 62 WP.126.2012-FB
be a school administered by a person or body of persons
whether incorporated or not and by whatever name called.
Then come the expressions "Minority School" in Section 2(13)
and "Municipal Corporation", "Municipal Council", "Pre-School
Centre" in Sections 2(14), 2(15) and 2(16) respectively. Section
2(17) defines the expression "Prescribed" to mean prescribed by
the Rules. The expression "Primary Education" defined under
Section 2(18) means education imparted in such subjects and
upto such standards as may be determined by the State
Government, from time to time, located either in primary or a
secondary school. The expression "Primary School" is defined in
Section 2(19). The important definition is then of the term
"Private School" which means a recognised school established or
administered by a management, other than Government or a
local authority. Section 2(21) defines the term "Recognised" to
mean recognised by the Director, the Divisional Board or the
State Board, or by any officer authorised by him or by any of
such Boards. Section 2(23) defines the expression "Rules" to
mean the Rules made by the State Government under MEPS
Act.
20. The expression "School" is defined in Section 2(24)
to mean a primary school, secondary school, higher secondary
school, junior college of education or any other institution by
whatever name called including technical, vocational or art
institution or part of any such school, college or institution,
19 of 62 WP.126.2012-FB
which imparts general, technical, vocational, art or, as the case
may be, special education or training in any faculty or discipline
or subject below the degree level. Section 2(24A) defines the
expression "Assistant Teacher (Probationary)". Section 2(25)
defines the expression "State Board" and Section 2(26) defines
the expression "Teacher" to mean a member of the teaching
staff, including the Head of a School. The expression "Zilla
Parishad" is defined in Section 2(27). Here the definition
section ends.
21.
By Section 3 it is stated that the provisions of this
Act shall apply to all private schools in the State of Maharashtra
whether receiving any grant-in-aid from the State Government
or not. By sub-section 2 of Section 3, it is clarified that the
provisions of this Act shall not apply to the recruitment of the
Head of a Minority School and any other persons not exceeding
three, who are employed in such school and whose names are
notified by the management to the Director or, as the case may
be, the Deputy Director for this purpose.
22. By Section 4, the terms and conditions of service of
employees of private schools are set out. That section reads as
under :
"Section 4 - Terms and conditions of service of
employees of Private schools :
20 of 62 WP.126.2012-FB
(1) Subject to the provisions of this section, the State
Government may make rules providing for the minimum
qualification for recruitment (including its procedure),
duties, pay, allowances, post-retirement and other
benefits, and other conditions of service of employees of
private schools and for reservation of adequate number of
posts for members of backward classes :
Provided that, neither the pay nor the rights in respect of
leave of absence, age of retirement and post-retirement
benefits and other monetary benefits of an employee in
the employment of an existing private school on the
appointed date shall be varied to the disadvantage of
such employee by any such rules.
(2) Every employee of a private school shall be
governed by such Code of Conduct as may be prescribed.
On the violation of any provision of such Code of
Conduct, the employee shall be liable to disciplinary
action after conducting an enquiry in such manner as
may be prescribed.
(3) If the scales of pay and allowances, post retirement
and other benefits of the employees of any private school
are less favourable than those provided by the rules made
under sub-section (1), the Director shall direct in writing
the Management of such school to bring the same upto
the level provided by the said rules, within such period or
extended period as may be specified by him.
(4) Failure to comply with any direction given by the
Director in pursuance of sub-section (3) may result in the
recognition of the school concerned being withdrawn,
provided that the recognition shall not be withdrawn
unless the Management of the school concerned has been
given a reasonable opportunity of being heard.
(5) No employee working in a private school shall
work in any coaching class. If any employee, in
21 of 62 WP.126.2012-FB
contravention of this provision, works in any coaching
class, his services shall be liable to be terminated by the
Management, provided that no such order of termination
shall be issued unless the employee concerned has been
given a reasonable opportunity of being heard.
(6) No employee of a private school shall be
suspended, dismissed or removed or his services shall not
be otherwise terminated or he shall not be reduced in
rank, by the Management, except in accordance with the
provisions of this Act and the rules made in that behalf."
A perusal of this substantive provision would indicate how the
terms and conditions of service of employees of private schools
are determined by the Rules which may be made by the State
Government. There is by sub-section 2 of Section 4 a Code of
Conduct which may be prescribed for every employee of a
private school. On the violation of any provision of such code of
conduct, the employee may be liable to face disciplinary action
after conducting an inquiry in such manner as may be
prescribed. Then, there is power given to the Director to issue
directions in writing to the management of a school to
determine the scales of pay and allowances, post retirement and
other benefits on par with those provided by the Rules made by
the State Government within the meaning of sub-section 1 of
Section 4. A failure to comply with any direction given by the
Director under Section(3) may result into recognition of the
school concerned being withdrawn. No employee working in
private school shall work in any coaching class and if any
employee contravenes these provisions, his services shall be
22 of 62 WP.126.2012-FB
liable to be terminated by the management, provided that no
such order of termination shall be issued unless the employee
concerned has been given a reasonable opportunity of being
heard. By sub-section 6 of Section 4, it is mandated that no
employee of a private school shall be suspended, dismissed or
removed or his services shall not otherwise be terminated or he
shall not be reduced in rank by the management, except in
accordance with the provisions of Rules in that behalf.
Therefore, the terms and conditions of service are determined
so as to carry forward the object and purpose of the Act. A
teacher who does not have safety and security so also fixed
tenure in service is exploited by not paying him adequately and
properly, is not expected then to render efficient and effective
service to the pupils and their guardians, to the institution and
to society as a whole. The public has a definite stake in the
administration and management of even private schools. It is
erroneous to assume that a school is only for employees,
students and their parents. A school has a definite role in
society. No employee including a teacher or a student can be
seen as a disconnected or detached individual or person. Once
the school is set up to educate and which means to teach, to
inculcate, to imbibe and to impress upon the students the moral
and social values, assist them in attaining skill by a process of
learning together, then, the terms and conditions of service of
employees of private schools have to be determined by the
intervention of the State.
23 of 62 WP.126.2012-FB
23. By Section 4A, a power is conferred in the Director
to hold or order holding of inquiries. This provision reads as
under :
"4A. Director's power to hold or order holding of
inquiries :
(1) Notwithstanding anything contained in sub-section
(6) of section 4 or any other provisions of this Act or the
rules made thereunder, where in any case of alleged
misconduct or misbehaviour of a serious nature or moral
turpitude of an employee,-
(a) an inquiry is held by an Inquiry Committee
into such allegations and the Director is of the opinion
that the Inquiry Committee has unreasonably exonerated
the employee, he may call for and examine the record and
proceeding of such inquiry for the purpose of satisfying
himself as to the correctness of the decision on the basis of
its findings, and may either annul, reverse, modify or
confirm the said decision or may direct the Inquiry
Committee to make further inquiry for taking such
additional evidence as he may think necessary or he may
himself take or authorise any other officer not below the
rank of the Education Officer to take such additional
evidence; and while making an order under this clause, if
the Director is satisfied that the charges of serious
misconduct, misbehaviour, or as the case may be, moral
turpitude have been substantially proved, he shall direct
the Management to impose on such employee any of the
penalties as specified in sub-section (4) :
Provided that the Director shall not record any
order under this sub-section without giving the party
affected thereby and the Management an opportunity of
being heard;
24 of 62 WP.126.2012-FB
(b) the Management has either neglected or
refused to hold an inquiry against such employee in
accordance with the provisions of this Act and rules made
in that behalf, the Director shall direct the Management
to initiate action within thirty days from the receipt of
such direction, for holding inquiry into the allegations
against such employee and to complete the same in
accordance with such provisions and rules.
(2) Where there is a failure on the part of the
Management to initiate action as directed under clause
(b) of sub-section (1), to hold an inquiry and to complete
the same within the period prescribed under the rules, the
Director may himself hold, or direct any officer not below
the rank of Education Officer to hold, such inquiry.
(3) While holding an inquiry the Director or the officer
authorised by him shall follow the same procedure as is
followed by the Inquiry Committee under the rules made
under this Act as if the Director or the Officer so
authorised were an Inquiry Committee for the purpose of
holding such inquiry.
(4) On holding such inquiry by the Director himself or
on receipt of the report of the inquiry officer, if the
Director is satisfied that the charges of serious
misconduct, misbehaviour or, as the case may be, moral
turpitude have been substantially proved, he shall by an
order in writing, direct the Management that penalty of
dismissal, removal from service, termination of service, or
as the case may be, reduction in rank as he may, in
circumstances of the case deem fit, be imposed on the
employee concerned;
Provided that, no such order shall be passed by the
Director unless the employee and the Management
concerned are given a reasonable opportunity of showing
cause against the proposed order;
25 of 62 WP.126.2012-FB
(5) The order of the Director under clause (a) of sub-
section or sub-section (4) shall be binding on both the
Management and the employee and the same shall be
complied with by the Management within such period as
may be specified by the Director."
24. A perusal of this provision would reinforce our
conclusion that the overriding power of the Director to hold or
direct the holding of inquiries subserves the larger public
interest. That is subserved by the statutory power conferred on
the Director to intervene in the event an inquiry held is
unsatisfactory and the management has unreasonably
exonerated any employee accused of a serious misconduct or
misbehaviour of a serious nature or moral turpitude. By clause
(b) of sub-section 1 of Section 4A of the MEPS Act, if the
management has neglected to hold an inquiry against an
employee who has misconducted or misbehaved himself, then,
the Director can order holding of an inquiry into the allegations
against such employee and to complete the same in accordance
with the Rules. The Director can also hold such inquiry himself
or direct any officer not below the rank of Education Officer to
hold it. The Director can also intervene and interfere with the
report of the Inquiry Officer to the extent of punishment within
the meaning of sub-section 4 of Section 4A, and by sub-section
5 of Section 4A, the directions of the Director are binding.
25. By Section 5, certain obligations are cast on the
managements of private schools. This section reads as under :
26 of 62 WP.126.2012-FB
"5. Certain obligations of Management of private
schools :
(1) The Management shall, as soon as possible, fill in,
in the manner prescribed every permanent vacancy in a
private school by the appointment of a person duly
qualified to fill such vacancy :
Provided that unless such vacancy is to be filled in
by promotion, the management shall, before proceeding
to fill such vacancy, ascertain from the Educational
Inspector, Greater Bombay, the Education Officer, Zilla
Parishad, or, as the case may be, the Director or the
officer designated by the Director in respect of schools
imparting technical, vocational, art or special education,
whether there is any suitable person available on the list
of surplus persons maintained by him, for absorption in
other schools, and in the event of such person being
available, the Management shall appoint that person in
such vacancy.
(2) Every person appointed to fill in a permanent
vacancy except Assistant Teacher (Probationary) shall be
on probation for a period of two years. Subject to the
provisions of sub-sections (4) and (5), he shall on
completion of this probation period of two years, be
deemed to have been confirmed.
Provided that, every person appointed as Assistant
Teacher (Probationary) shall be on probation for a period
of three years.
(2A) Subject to the provisions of sub-sections (3) and
(4), the Assistant Teacher (Probationary) shall, on
completion of the probation period of three years, be
deemed to have been appointed and confirmed as a
teacher.
27 of 62 WP.126.2012-FB
(3) If in the opinion of the Management, the work or
behaviour of any probationer, during the period of his
probation, is not satisfactory, the Management may
terminate his services at any time during the said period
after giving him one month's notice or salary or
honorarium of one month in lieu of notice.
(4) If the services of any probationer are terminated
under sub-section (3) and he is reappointed by the
Management in the same school or any other school
belonging to it within a period of one year from the date
on which his services were terminated, then the period of
probation undergone by him previously shall be taken
into consideration in calculating the required period of
probation for the purposes of sub-section (2).
(4A) Nothing in sub-sections (2), (3) or (4) shall apply
to a person appointed to fill a permanent vacancy by
promotion or by absorption as provided under the proviso
to sub-section (1).
(5) The Management may fill in every temporary
vacancy by appointing person duly qualified to fill such
vacancy. The order of appointment shall be drawn up in
the form prescribed in that behalf, and shall state the
period of appointment of such person."
26. It would appear from a bare perusal of this section
how the obligation in the matter of recruitment of teachers has
to be discharged and we have a complete scheme for the same
in the rules. Then comes Section 6 which provides for
obligations of the Head of a private school. By Section 7, the
procedure for resignation of employees of private schools is set
out.
28 of 62 WP.126.2012-FB
27. Then the MEPS Act takes care of a forum for
redressal of the grievances and that is how a School Tribunal is
constituted. A right of appeal to the Tribunal by the employees
of private schools is conferred by Section 9. By Section 10, the
general powers and procedure of Tribunal are set out. By
Section 11, the Tribunal is conferred with the power to give
appropriate reliefs and directions and the decision of the
Tribunal is made final and binding by Section 12. Section 13
provides for penalizing managements for failure to comply with
the directions of the Tribunal. Section 14 excludes legal
practitioners from appearance before the Tribunal and transfer
of pending appeals is also envisaged by Section 15.
28. Section 16 is titled as Rules and reads as under :
"16. Rules :
(1) The State Government may, by notification in the
Official Gazette, make rules for carrying out the purposes
of this Act.
(2) In particular and without prejudice to the
generality of the foregoing power, such rules may provide
for all or any of the following matters, namely:-
(a) the minimum qualifications for recruitment
of employees of private schools (including its procedure);
(b) their scales of pay and allowances;
(c) their post retirement and other benefits;
29 of 62 WP.126.2012-FB
(d) the other conditions of service of such
employees including leave, superannuation, re-
employment and promotions;
(e) the duties of such employees and code of
conduct and disciplinary matters;
(f) the manner of conducting inquiries;
(g) any other matter which is required to be or
may be prescribed.
(2A) The power to make rules under clauses (a) to (d)
conferred by sub-section (2) shall include the power to
give retrospective effect to the rules or any of them but no
retrospective effect shall be given to any rule so as to
prejudically affect the interests of any person to whom
such rule may be applicable.
(3) All rules made under this Act shall be subject to the
conditions of previous publication.
(4) Every rule made under this Act shall be laid, as
soon as may be, after it is made before each House of the
State Legislature, while it is in session for a total period
of thirty days, which may be comprised in one session or
in two or more successive sessions, and if, before the
expiry of the session immediately following the session or
the successive sessions aforesaid, both Houses agree in
making any modification in the rule or both Houses
agree that the rule should not be made and, notify such
decision in the official gazette, the rule shall from the
date of publication of such notification have effect only in
such modified form or be of no effect, as the case may be;
so, however, that any such modification or annulment
shall be without prejudice to the validity of anything
previously done or omitted to be done under that rule."
30 of 62 WP.126.2012-FB
A perusal of Section 16 would indicate as to how in widest
terms a rule making power is conferred in the State
Government. It may, by notification in the official gazette, make
rules for carrying out the purpose of MEPS Act. The Rules may
provide for all or any of the matters enumerated in sub-section
2 of Section 16 of the Act. By sub-section 2A of Section 16, a
power to make rules and give them retrospective effect is
conferred on the State in respect of clauses (a) to (d) of sub-
section (2) of Section 16. However, Section 2A prohibits the
State from giving retrospective effect to any rule so as to
prejudically affect the interests of any persons to whom such
rule may be applicable. Sub-sections 3 and 4 of Section 16 of
the Act set out the manner in which rules have to be published
and laid before the House.
29. It is conceded before us that the MEPS Rules are
traceable to this power under Section 16 and that by the said
Rules, it is permissible for the State to include therein the
matter of duties of the employees and code of conduct and
disciplinary matters so also the manner of conducting inquiries.
30. For this reference, we refer to a few rules. A
screening of the rules would indicate that under Rule 2 of MEPS
Rules, certain expressions are defined. We are concerned in this
matter with the definition of the expression "Chief Executive
Officer" appearing in Rule 2(c). That would mean the Secretary,
31 of 62 WP.126.2012-FB
Trustee, Correspondent, Trustee Correspondent or a person by
whatever name called who is empowered to execute the
decisions taken by the management. The expression "Director"
is defined in Rule 2(d) and the expression "Education Officer" is
defined in Rule 2(e). The definition of the word "Government"
is in Rule 2(f) and the other definitions are of the expressions
"Girls Schools", "Schedule", "School Committee", "Trained
Graduate", "Trained Teacher" and "Night School" in Rules 2(g)
to 2(l) respectively. It is clarified by sub-rule 2 of Rule 2 that the
words and expressions used but not defined in these rules shall
have the meanings respectively assigned to them in the Act.
31. Rule 3 sets out the qualifications and appointment of
Head. Rule 4 sets out his responsibilities and Rule 5 lays down
qualifications and appointment of Assistant Head and
Supervisor. Rule 6 sets out the qualifications of the teachers.
Rule 7 deals with their scales of pay and allowances of the full
time as well as part time assistant head, head, supervisors,
teachers and non-teaching staff in the primary schools,
secondary schools including night schools etc.. Rule 8 provides
for determination of the pay scale admissible to the head and
the admissibility of the posts of assistant head, supervisors etc..
Rule 9 provides for appointment of staff. Rule 10 sets out the
categories of the employees and there shall be permanent or
non-permanent appointments. Non-permanent employees may
be either temporary or on probation. A temporary employee is
32 of 62 WP.126.2012-FB
one who is appointed to a temporary vacancy for a fixed period.
Rule 11 provides for the maintenance of a service book and by
Rule 12 a seniority list is provided for and is to be prepared and
maintained by every management in terms of the guidelines in
Schedule-F. Rules 13 to 21 deal with several aspects such as
vacation and vacation pay, assessment of employee's work,
writing of confidential reports etc; leave, superannuation and
re-employment, discharge certificate, pension, provident fund,
workload etc.
32.
By Rule 22, duties and code of conduct of head,
assistant head, supervisor, teachers and non-teaching staff
(clerks) are set out. They read as under :
"22. Duties and Code of Conduct :
(1) The duties of Head, Assistant Head, Supervisor,
teachers and non-teaching staff (clerks) shall be specified
in Schedule-I.
(2) All teachers and employees shall observe the
following code of conduct namely :-
(a) An employee shall treat all students without
discrimination on political ground or for reasons of race,
religion, caste, language or sex or any other reason of
arbitrary or personal nature and shall refrain from
instigating students against other students or other
employees or school administration.
(b) A teacher shall not misuse the facilities of
33 of 62 WP.126.2012-FB
the school while exercising freedom of academic thought
or expression.
(c) An employee shall not make use of the
resources and facilities of the institution or Management
for his personal use or for commercial, political or
religions purposes.
(d) A teacher shall be impartial in assessment of
students and shall not deliberately overmark or
undermark or victimize students on any ground.
(e) A teacher shall not conduct or be employed
in any private coaching classes or give private tutions on
commercial basis, except as otherwise provided in rule
23.
(f) An employee shall communicate change in
address, if any during vacation or leave period to the
Head, Chief Executive Officer or President, as the case
may be.
(g) Full-time teaching staff shall not accept
part-time employment on payment or for any
consideration in another educational, cultural or literary
institution without obtaining prior written permission
from the authorities, of the school in which he is
employed on full-time basis. Such work shall, however, be
limited to two hours per day including private tutions. In
respect of a full-time non-teaching employee desirous of
working in night school, he shall be so allowed for the
entire working period of the night school.
(h) The behaviour of an employee with male
and female students and employees shall be modest.
(i) An employee shall -
34 of 62 WP.126.2012-FB
(i) Strictly abide by any law relating to
intoxicating drinks or drugs in force in any area in which
he may happen to be for the time being;
(ii) Not consume any intoxicating drink
or be under the influence of any intoxicating drink or
drug, during the course of his duty; and shall also take
due care that the performance of his duties at any time is
not affected in any way by the influence of any such
drink or drug;
(iii) refrain from consuming any
intoxicating drink or drug in a public place;
(iv) not appear in a public place in a state
of intoxication;
(v) not use any intoxicating drink or drug
in excess so that he is unable to control his behaviour.
Explanation : For the purpose of this rule,
"Public Place" means any place or premises (including
conveyance) to which the public have or are permitted to
have access, whether on payment or otherwise.
(3) Failure to conform to any of the rules of
Code of Conduct mentioned in sub-rule (2) shall be
treated as an act of negligence or mis-conduct or both."
33. Private tution is not permitted save and except in
the manner laid down in Rule 23. Rule 24 provides for
submission of representations. Rule 25 deals with requirement
of obtaining higher or additional qualifications. Rule 25A deals
with termination of service on account of abolition of posts and
35 of 62 WP.126.2012-FB
Rule 26 deals with retrenchment on account of abolition of
posts. Rule 27 sets out the principles of termination of service in
the event of retrenchment. Rule 28 deals with removal or
termination of service. The provisions of Rule 28(5) are material
for our purpose and they read as under :
"Rule 28(5) - An employee shall be liable to be punished
on one or more of the following grounds, namely :-
(a) misconduct;
(b) moral turpitude;
(c) willful and persistent negligence of duty;
(d) incompetence.
For the purpose of this rule -
(a) "Misconduct" shall include the following
acts, namely :-
(i) breach of the terms and conditions of
service laid down by or under these rules;
(ii) violation of the code of conduct; and
(iii) any other act of similar nature.
(b) "Moral turpitude" shall include the
following acts, namely :-
(i) immodest or immoral behaviour with
a female or male student or employee; and
(ii) any other act of similar nature.
36 of 62 WP.126.2012-FB
(c) "Willful negligence of duty" shall include the
following acts namely :-
(i) dereliction in, or failure to discharge,
any of the duties prescribed by or under these rules;
(ii) persistent absence from duty without
previous permission; and
(iii) any other act of similar nature;
(d) "Incompetence" includes the following acts,
namely:-
(i)
ig failure to keep up academic progress
and up to date knowledge in spite of repeated
instructions in that behalf and provisions of facilities;
(ii) failure to complete the teaching of the
syllabus determined for the year within the fixed periods
for reasons not beyond his control; and
(iii) any other act of similar nature."
34. Thus, the punishment can be inflicted or an
employee shall be punished on one or more of the grounds set
out in sub-Rule 5 of Rule 28 reproduced above. Rule 29 sets out
the penalties for the acts covered under Rule 28. Rule 29 sets
out that without prejudice to the provisions of the rules, an
employee guilty of misconduct, moral turpitude, wilful and
persistent neglect of duty and incompetence, as specified in
Rule 28, shall be liable for any of the penalties enumerated in
Rule 29. Rule 30 deals with imposition of penalty of
withholding of increment and Rule 31 classifies the penalties.
37 of 62 WP.126.2012-FB
Rule 32 sets out the procedure for imposing minor penalties and
Rule 33 sets out the procedure for inflicting major penalties.
Then comes Rule 34 which deals with the payment of
subsistence allowance. Rule 35 sets out the conditions of
suspension. Then comes Rule 36 which reads as under :
"36. Inquiry Committee :
(1) If an employee is allegedly found to be guilty on
any of the grounds specified in sub-rule (5) of Rule 28
and the management decides to hold an inquiry, it shall
do so through a properly constituted Inquiry committee.
Such a committee shall conduct an inquiry only in such
case where major penalties are to be inflicted. The Chief
Executive officer authorised by the management in this
behalf (and in the case of an inquiry against the head
who is also the Chief Executive Officer, the President of
the management) shall communicate to the employee or
the Head concerned by registered post acknowledgement
due the allegations and demand from him a written
explanation within seven days from the date of receipt of
the statement of allegations.
(2) If the Chief Executive Officer or the President, as
the case may be, finds that the explanation submitted by
the employee or the Head referred to in sub-rule (1) is
not satisfactory, he shall place if before the management
within fifteen days from the date of receipt of the
explanation. The management shall in turn decide within
fifteen days whether an inquiry be conducted against the
employee and if it decides to conduct the inquiry, the
inquiry shall be conducted by an Inquiry Committee
constituted in the following manner, that is to say -
(a) in the case of an employee -
(i) one member from amongst the
38 of 62 WP.126.2012-FB
members of the management to be nominated by the
management, or by the President of the management if so
authorised by the management, whose name shall be
communicated to the Chief Executive Officer within 15
days from the date of the decision of the management;
(ii) one member to be nominated by the
employee from amongst the employees of any private
school;
(iii) one member chosen by the Chief
Executive Officer from the panel of teachers on whom
State/National Award has been conferred;
(b)
in the case of the Head referred to in sub-
rule (1) -
(i) one member who shall be the
President of the management;
(ii) one member to be nominated by the
Head from amongst the employees of any private school;
(iii) one member chosen by the President
from the panel of Head Masters on whom State/National
Award has been conferred.
(3) The Chief Executive Officer or, as the case may be,
the President shall communicate the names of members
nominated under sub-rule (2) by registered post
acknowledgement due to the employee or the Head
referred to in sub-rule (1), as the case may be, directing
him to nominate a person on his behalf on the proposed
Inquiry Committee and to forward the name along with
the written consent of the person so nominated to the
Chief Executive Officer or to the President, as the case
may be, within fifteen days of the receipt of the
communication to that effect.
39 of 62 WP.126.2012-FB
(4) If the employee or the Head, as the case may be,
communicates the name of the person nominated by him
the Inquiry Committee of three members shall be deemed
to have been constituted on the date of receipt of such
communication by the Chief Executive Officer or the
President, as the case may be. If the employee or such
Head fails to communicate the name of his nominee
within the stipulated period, the Inquiry Committee shall
be deemed to have been constituted on expiry of the
stipulated period consisting of only two members as,
provided in sub-rule (2).
(5) The Convener of the respective Inquiry Committee
shall be the nominee of the President, or as th case may
be, the President who shall initiate action pertaining to
the conduct of the Inquiry Committee and shall maintain
all the relevant record of the Inquiry.
(6) The meetings of the Inquiry Committee shall be
held in the school premises during normal school hours
or immediately thereafter, if the employee agrees and
even during vacation."
35. A bare perusal of this entire Rule 36 would indicate
that if an employee allegedly found guilty on any of the grounds
specified in sub-rule 5 of Rule 28 of the MEPS Rules and the
management decides to hold an inquiry, it shall do so through a
properly constituted inquiry committee. Such a committee shall
conduct an inquiry only in such cases where major penalties are
to be inflicted. The Chief Executive Officer authorised by the
management in this behalf and in the case of an inquiry against
the head who is also the Chief Executive Officer, the President of
the management, shall communicate to the employee or the
head concerned by registered post acknowledgement due the
40 of 62 WP.126.2012-FB
allegations and demand from him a written explanation. If this
explanation is not satisfactory in the opinion of the Chief
Executive Officer or the President, then he shall place it before
the management and the management shall, in turn, decide
within the time stipulated in sub-rule (2) whether an inquiry be
conducted against the employee concerned and if it decides to
conduct an inquiry, that shall be conducted by an inquiry
committee constituted in the manner set out in sub-rule (2).
36. Thereafter sub-clauses (a) and (b) provide for
constitution of inquiry committee and the persons comprising
the same. In the case of inquiry against an employee, clause (a)
of sub-rule 2 of Rule 36 enumerates that one member from
amongst the members of the management to be nominated by
the management or by the President, if so authorised by the
management, whose name shall be communicated to the Chief
Executive Officer within fifteen days from the date of decision of
the management, one member to be nominated by the
employee from amongst the employees of any private school
and one member chosen by the Chief Executive Officer from the
panel of teachers on whom state/national award has been
conferred have to act as a Inquiry Committee. Similarly, in the
case of inquiry against the head of the school, the inquiry
committee must be constituted in accordance with clause (b) of
sub-rule (2) of Rule 36. Sub-rules 3 to 6 of Rule 36 provide for
communication of the names of the members nominated by
41 of 62 WP.126.2012-FB
registered post acknowledgement due to the employee or the
head, as the case may be and directing him to nominate a
person on his behalf on the proposed inquiry committee and to
forward the name along with written consent of the person so
nominated to the Chief Executive Officer or to the President, as
the case may be, within fifteen days of the receipt of
communication to that effect. The consequence of failure to
communicate the name of the nominated person by the head or
the employee would result in the inquiry committee comprising
of or constituted with only two members. By sub-rule (5) of
Rule 36, a convener is contemplated for the purposes of
maintaining the record and he shall be the nominee of the
President. The convener can be the President himself.
37. All the provisions of the Act and the Rules especially
those outlining the qualifications, duties and responsibilities of the
Head, Teachers and Employees other than teachers coupled with
the Code of Conduct prescribed for them, the consequences of
violation thereof, the penalties for the same, demonstrate that a
private school employee performs a public duty. He can be
penalised for serious misconduct, indiscipline and immoral so also
immodest conduct. The inquiry leading to such penalty cannot be
a private or domestic affair. The State makes provision for the
same by the Rules for good reason. Even private education needs
to be regulated to subserve larger public good. The State as a
trustee of the public ensures that sanctity, purity and probity in the
field of education is not sacrificed when it goes in private hands.
42 of 62 WP.126.2012-FB
None can profit or benefit at the cost of core moral and social
values. Education is not trade and business but a noble, charitable
and philanthropic activity. If that is the basis, then, penalties on
teachers and others ought to be imposed by treating them fairly,
reasonably and in a non-discriminatory manner. The respect for
them and their position, image in the society should be borne in
mind. While inflicting penalties and punishing them every attempt
is made to guarantee that their version is truthfully and
completely presented or placed before the inquiry committee. That
guarantee and assurance comes by permitting and providing for
effective representation by all those involved in the inquiry and
the silent, yet most important third entity, namely, the society at
large. Further, a judicial officer in the form of a Presiding Officer
of a School Tribunal, if approached by the employee of a private
school, examines the record of such inquiry and determines the
issue of its legality and validity. For that examination and scrutiny
as well, the composition and constitution of the inquiry committee
is vital.
38. We do not see how any interpretation other than as
suggested by Mr.Bandivadekar can be placed on sub-clause (iii)
of clause (a) of sub-rule 2 of Rule 36 of MEPS Rules. If the Chief
Executive Officer has to choose one member from the panel of
teachers on whom a State or National award has been
conferred, such member need not be a serving awardee teacher
or a teacher who is conferred with the award, empaneled and
working as a member of the teaching staff. All that the
43 of 62 WP.126.2012-FB
definition of the expression "Teacher" as appearing in Section
2(26) means that he should be a member of the teaching staff
and that will include a head of the school. Section 2(7) defines
the expression "Employee" to mean any member of the teaching
and non-teaching staff of a recognized school. Thus, a teacher is
an employee but every employee is not a teacher. An employee
can be a part of non-teaching staff of a recognized school. The
head of a school and the member of teaching staff, both being
expected to teach, have thus been termed as teachers. However,
by aid of this definition and all these expressions, we cannot
construe sub-rule 2(a)(iii) of Rule 36 of the MEPS Rules
restrictively. A narrow or restricted interpretation would defeat
the purpose of insertion of sub-clause (iii) totally. The Chief
Executive Officer has to choose one member from the panel of
teachers on whom a State or National award has been
conferred. His choice is not narrowed down to only members of
the teaching staff of that particular private school or other
private school on whom a State or National award has been
conferred. Therefore, that member need not necessarily be a
serving awardee teacher. Even a retired empanelled awardee
teacher but from the panel can be chosen by the Chief Executive
Officer. The only requirement is that he should be an empaneled
awardee teacher. If the award is conferred on the teacher, then,
both a serving and a non-serving teacher meaning thereby a
retired awardee teacher, can be chosen by the Chief Executive
Officer, provided his name is in the panel of the awardee
44 of 62 WP.126.2012-FB
teachers. If the interpretation suggested by Mr.Machhindra Patil
and others is placed on sub-clause (iii) of clause (a) of sub-rule
2 of Rule 36 of MEPS Rules, then in a given case, it would give
rise to a peculiar situation. In a given case, the panel may
contain names of both serving and retired teachers but by the
time the choice is exercised, such serving teachers may have
retired or been superannuated from service. The Legislature did
not intend that the inquiry committee should not be constituted
with three members. Its constitution in terms of sub-clauses of
clauses (a) and (b) of sub-rule 2 of Rule 36 is the rule and the
exception is only in the event of a situation arising and
contemplated by another sub-rule of Rule 36 of the MEPS Rules.
Therefore, the Chief Executive Officer in the case may choose
one member from the panel of the teachers on whom a State or
National award has been conferred. He can be a serving or a
retired teacher but his name must appear in the panel of
awardee teachers. Similarly, in the case of inquiry against a
head, the President can choose from the panel of headmasters
one member on whom a State or Nnational award has been
conferred. Again this member need not be a serving or working
headmaster.
39. Ultimately we must be aware that we are construing
a provision which enables holding of an inquiry through a
properly constituted inquiry committee. Such a committee is
obliged to conduct an inquiry only in cases where major
45 of 62 WP.126.2012-FB
penalties are to be inflicted. Such inquiry has to be conducted
after the management takes a decision in terms of sub-rule (1)
of Rule 36 of MEPS Rules. The inquiry committee has to be
constituted in the manner provided by sub-clauses (a) and (b)
of sub-rule 2 of Rule 36 of MEPS Rules. Thus, an interpretation
which facilitates and assists the constitution of a proper inquiry
committee must be placed on the provisions. It is clear from
what we have emphasised above that MEPS Act is an Act which
regulates the recruitment and conditions of service of employees
in certain private schools. The avowed object, namely, to ensure
that employees have security and stability in service with a view
to enable them to effectively and efficiently discharge their
duties towards pupils and guardians in particular and the
institution and society in general, should be borne in mind. It
Therefore, while regulating recruitment and conditions of
service of employees in certain private schools, the Act contains
comprehensive measures to take care of situations where the
employees are found to have misconducted themselves. If their
conduct and behaviour is unbecoming of an employee of a
private school, then that conduct has to be inquired into. That
cannot go unpunished. We have found from a perusal of all the
rules and the substantive provisions of the Act, which must be
read together and harmoniously, that major penalties include a
reduction in rank and termination from service. They are to be
inflicted for misconduct, moral turpitude, wilful and persistent
negligence in duty and incompetence. There could be minor
46 of 62 WP.126.2012-FB
penalties but misconduct, as defined, is an inclusive term and
includes all that is enumerated in Rule 28(5)(a). Hence, the
public interest further demands that the inquiry ought to be fair,
just, independent and impartial. An employee must have
minimum security as is envisaged in the preamble to the Act.
The security and stability of service cannot be compromised by
inflicting light-heartedly or casually a punishment or a penalty
which is major in character. A disciplinary inquiry is a serious
proceeding. The principles of natural justice have to be followed
as is apparent from a reading of Rule 37 of the Rules, which sets
out the procedure of inquiry. In such circumstances, if the
constitution of the inquiry committee is improper or incomplete,
that will not only jeopardize the security and stability assured to
the employees but would be detrimental to the public interest. If
inquiry at the hands of an improperly constituted inquiry
committee results in serious prejudice or miscarriage of justice,
then the public interest would suffer immensely. An employee
who has indulged in serious misconduct amounting to moral
turpitude may have to be retained in service if inquiry is found
to be defective or deficient in any manner resulting in serious
prejudice and a travesty of justice. It is in these circumstances
that we are not in agreement with the counsel taking a contrary
view who insist that only an in-service awardee teacher can be
part of the inquiry committee.
47 of 62 WP.126.2012-FB
40. The arguments of Advocate Macchindra Patil and
others overlook the plain words of the sub-clauses and the
setting and pattern in which they appear. There has to be a
member from the side of management and he/she has to be
nominated by the management from amongst its own members.
Similarly, there has to be a nomination from the employee's
side, often termed as a defence representative. He/she could be
nominated by the employee, against whom an inquiry is
directed, from amongst the employees of another private school.
That member need not be an employee of a private school in
which the employee is serving or working. That freedom of
nomination is given to the employee so that he chooses as his
representative a person in whom he has complete faith and
trust. The management cannot dictate terms to him in this
matter. He can nominate one person from amongst the
employees of any private school and communicate his or her
name in the manner set out in Rule 36. However, when the
wording of sub-clause (iii) is perused carefully and minutely, it
is apparent that a third person's involvement is contemplated,
apart from the nominee of the management and the employee
who take care of their respective interests. An awardee teacher,
i.e., one on whom a State or National award has been
conferred, is expected to take care of the society's interest and
of the public at large. He is expected to be independent in true
sense of the term. Meaning thereby not influenced by any
interested versions or views. It is in these circumstances that the
48 of 62 WP.126.2012-FB
obligation on the Chief Executive Officer is to choose, as a third
member, a teacher from the panel of teachers on whom a State
or National award has been conferred. That such a panel has
been maintained by the State is not disputed. That from such a
panel a choice can be made by the Chief Executive Officer, is
also not disputed. The word "Panel" means in this case a list and
the legislature employs the word "chosen" deliberately. The act
of choosing means selecting out of a greater number. Once a
choice is given to the Chief Executive Officer to select a teacher
from the panel, then specific words would have been inserted to
limit or restrict such choice had that been the legislative intent.
The absence of such limiting or restrictive phrases would lend
support to our construction of this sub-clause as above.
However, this does not mean the choice of the Chief Executive
Officer cannot be questioned by the delinquent-employee and if
a particular choice or selection is challenged as vitiated by bias,
arbitrariness and mala fides resulting in the inquiry being unfair,
unjust and unreasonable or partial, then, depending upon the
prejudice established and proved, the Tribunal/Court can
always interfere with the same. We do not read anything more
in the sub-clauses and which is not specifically inserted therein.
Once the words are plain, unambiguous and clear, then, there is
no warrant for prefixing the expression "Teacher" as "in-service
teacher". In that event, it would not be possible for the Chief
Executive Officer to choose a third member. In all cases then,
the inquiry committee would not be complete. It is in these
49 of 62 WP.126.2012-FB
circumstances that we are unable to agree with the narrow
interpretation placed on this sub-clause.
41. There is one more reason why we are unable to
agree with the counsel propounding a contrary view. For every
definition in any statute opens with the following words :
"In this Act, unless the context otherwise requires"
In a decision in Vanguard Fire and General Insurance Co. Ltd.
Madras Vs. Fraser and Ross and another reported in AIR 1960 SC
971, the Supreme Court had an occasion to construe such
words. In paragraph 6 of this decision, this is what is held :
"6. The main basis of this contention is the definition of
the word "insurer" in Section 2(9) of the Act. It is pointed out
that that definition begins with the words "insurer means"
and is therefore exhaustive. It may be accepted that generally
the word "insurer" has been defined for the purposes of the Act
to mean a person or body corporate etc. which is actually
carrying on the business of insurance i.e. the business of
effecting contracts of insurance of whatever kind they might
be. But Section 2 begins with the words "in this Act, unless
there is anything repugnant in the subject or context" and
then come the various definition clauses of which (9) is one. It
is well settled that all statutory definitions or abbreviations
must be read subject to the qualification variously expressed in
the definition clauses which created them and it may be that
even where the definition is exhaustive inasmuch as the word
defined is said to mean a certain thing, it is possible for the
word to have a somewhat different meaning in different
sections of the Act depending upon the subject or the context.
That is why all definitions in statutes generally begin with the
qualifying words similar to the words used in the present case,
namely, unless there is anything repugnant in the subject or
50 of 62 WP.126.2012-FB
context. Therefore in finding out the meaning of the word
"insurer" in various sections of the Act, the meaning to be
ordinarily given to it is that given in the definition clause. But
this is not inflexible and there may be sections in the Act
where the meaning may have to be departed from on account
of the subject or context in which the word has been used and
that will be giving effect to the opening sentence in the
definition section, namely, unless there is anything repugnant
in the subject or context. In view of this qualification, the
court has not only to look at the words but also to look at the
context, the collocation and the object of such words relating
to such matter and interpret the meaning intended to be
conveyed by the use of the words under the circumstances.
Therefore, though ordinarily the word "insurer" as used in the
Act would mean a person or body corporate actually carrying
on the business of insurance, it may be that in certain sections
the word may have a somewhat different meaning."
42. Thus the argument that the word "Teacher"
appearing in of Rule 36(2)(a)(iii) must be construed and
interpreted with the aid of Section 2(26) of MEPS Act, cannot
be accepted because the same overlooks the context. It is a well
settled rule of interpretation that in a statute where a word of
wide and general amplitude may require a narrow
interpretation depending upon the context, that word will carry
a different meaning and connotation while construing and
interpreting some other provision in the same Act. Therefore, it
would not be proper to apply the definition of the expression
"Teacher" as understood by the employees' counsel. Even
otherwise, we have found that the definition of the word
"Teacher" is only to denote him as a member of the teaching
staff and to include therein the head of the school. It is not that
this definition would necessarily mean a member of the serving
51 of 62 WP.126.2012-FB
teaching staff or a functional teaching staff or a member of the
teaching staff working in a private school. A teacher even after
his superannuation or retirement carries this nomenclature for
the Act confers upon members of the teaching staff certain
benefits post retirement. We have scanned the rules extensively
and completely to see if throughout the Rules, the use of the
word 'teacher' is restricted to mean an in-service teacher. We
have not been able to find any such restrictive or limited
invariable use. Therefore, everything depends on not just the
text but the context. The Act lays down the qualifications of the
teachers, their scales of pay and allowances and their service
conditions which it seeks to regulate. Therefore, in Rule 17
which is titled as superannuation and re-employment, there is a
specific age prescribed for superannuation but equally there is a
power to re-employ him even beyond the age of
superannuation. We therefore, do not see any scope for the rigid
interpretation as is placed on the definition of the term
"Teacher" appearing in Section 2(26) of the MEPS Act.
43. Once we take the above view, then what remains for
consideration are the written submissions tendered by Advocate
A.M.Kulkarni. After inviting our attention to the relevant
provisions of MEPS Act and Rules, Mr.Kulkarni relied upon the
view emerging from the judgments delivered in the two Division
Bench judgments of this Court namely Leelatai Patil's case
(supra) and Ajaz Ahmed Khan s/o. Abdulla Khan Vs. The State of
52 of 62 WP.126.2012-FB
Maharashtra and others (Writ Petition No.9951 of 2012 with
Civil Application No.283 of 2014 and Civil Application (Stamp)
No.16863 of 2014, decided on 12 January 2015). Mr.Kulkarni
and Mr.Tapkir both argued that the judgment in Ajaz Ahmed
Khan (supra) following Leelatai Patil's case (supra), is the only
view which ought to commend itself to us.
44. For the elaborate reasons that we have indicated
above, we are unable to accept the contentions of either
Mr.Tapkir or Mr.Kulkarni. There is no warrant for reading sub-
clause (a)(iii) of sub-rule 2 of Rule 36 of MEPS Rules as
suggested by them. If their interpretation is accepted, then, it
would be easy to influence the choice of the Chief Executive
Officer. Apart from their own nominee the management may
include in the inquiry committee only an serving awardee
teacher. Then a complaint would be made by the delinquent
employee that the scales are uneven. If the scales are to be
balanced and the inquiry should be unbiased and impartial,
then it is not possible to place a narrow interpretation as
suggested by both the learned counsel. The requirement is that
the panel of teachers on whom a State or National award is
conferred as maintained by the State Government or by the
officers in the Education Department, from that panel any
teacher can be chosen by the Chief Executive Officer. He may
not necessarily be a teacher serving the management which is
holding the inquiry. He has to be a awardee teacher but may not
53 of 62 WP.126.2012-FB
be serving for even a teacher on the verge of retirement can be
awarded. It is only an award-winning teacher who can be
empaneled and from such a panel the Chief Executive Officer
has to make a choice. There is no restriction placed on his
choice and advisedly. It is expected that he will not choose an
awardee teacher favourable or pliable to the management. An
award is conferred on a teacher for his excellence and merit. It
is his teaching abilities and his exemplary character which won
him an award. The presence of an awardee teacher ensures
impartiality of the inquiry. The inquiry has to be free of bias and
prejudice. If the interpretation suggested by Mr.Kulkarni and
Mr.Tapkir is accepted, that may facilitate inclusion of somebody
convenient or congenial or friendly to the
employer/management. In such circumstances, we are unable
to accept the interpretation placed by them. Mr.Kulkarni
suggested that inclusion of third member namely an awardee
teacher is to ensure quality to the inquiry. Thus, it is not the
quantity that matters but a qualitative presence, on his own
showing. We cannot attribute to the Legislature inclusion of
somebody for the sake of inclusion and de hors the context as
well as the object and purpose sought to be achieved by such
inclusion. It is not a mere addition of one more number. Once
the object and purpose so also the context is understood, then,
these contentions deserve to be rejected. They are accordingly
rejected.
54 of 62 WP.126.2012-FB
45. Once we take the above view, it is apparent that we
cannot agree with the view taken in Leelatai Patil's case (supra). In
fact, in that case, the Division Bench was not really called upon to
answer any specific question or issue of interpretation of Rule
36(2)(a)(iii) of the MEPS Rules. An argument in passing with
regard to composition of the inquiry committee and being termed
as faulty, was required to be dealt with by that Division Bench.
That is apparent from the argument of the Petitioner-Teacher, who
sought to quash a departmental/ disciplinary inquiry against her.
During the course of dealing with this incidental argument, in
paragraph 8, the Division Bench held thus :
"8. So far as composition of 3-member enquiry
committee is concerned, Advocate Shri Killarikar has
taken an exception, because one Mr.Deshpande, who is
appointed from the panel of teachers on whom the
State/National award has been conferred, is a retired
teacher and on reference to definition of 'teacher' as
contained in Section 2(26), teacher means a member of
teaching staff and includes head of the school. Therefore,
if clause (iii) of Rule 36(2)(a) of MEPS Rules requires the
'teacher on whom State/National award has been
conferred' to be a member of the 3-member committee for
holding departmental/disciplinary enquiry of an
employee, the teacher has to be one who is in the
employment and not the one who has retired. We,
therefore, direct Respondent no.2 to rectify the
composition of 3-member committee."
46. For the reasons that we have indicated above, with
respect, we cannot agree with this exposition of Rule 36(2)(a) and
the meaning ascribed to the expression "award winning teacher" or
"Teacher on whom State/National award has been conferred".
55 of 62 WP.126.2012-FB
47. Another learned Single Judge of this Court had
before him both views namely in Sudha Saikhede's case (supra)
and Leelatai Patil's case (supra). He chose to follow the later one
i.e. Leelatai Patil's case (supra). This would mean that judgment
of the learned Single Judge in Kranti Junior Adhyapak
Mahavidyalaya (D.Ed.) and others Vs. The State of Maharashtra
and others reported in 2012 (1) Mh.L.J. 370, would have to be
held, with respect, as not laying down the correct law. In
dealing with the argument that the inquiry committee was not
properly constituted (see paragraph 11), the learned Single
Judge in paragraph 26 held as under :
"26. So far as the Committee, which was 'appointed for
inquiry, is concerned, Smt.Sonia D. Bagade, being the
Secretary of the Management, remained as Chief
Executive of the Inquiry Committee. The Management
has appointed Mr.L.G.Kale, a retired teacher as member
of the Committee, being awardee teacher. The appellant
objected for appointment of Mr.L.G.Kale on the ground
that he is a retired teacher and relevant rules do not
permit appointment of a retired teacher. The School
Tribunal referring to the judgment of this court in Writ
Petition No.5867/2008 in the case of Leelatai Annappa
Patil Vs. State of Maharashtra and others, has taken a
view that said Mr.L.G.Kale, who is a retired teacher, is
not competent to be member of the Committee. The
discussion in respect of said point is in paragraph 38 of
the impugned judgment. I do not see any reason to
interfere in the said finding/conclusion reached by the
School Tribunal. I find some substance in the arguments
of learned counsel appearing for the appellant that
Smt.Sonia Bagade, being daughter of Head Mistress
Mrs.Bagade, has some grudge and bias against the
appellant while conducting the inquiry. It has also come
56 of 62 WP.126.2012-FB
on record that Smt.Sulabha Mundhe was appointed as a
nominee of the appellant, however, she was not allowed
to participate in the inquiry. It further appears that said
grievance was brought before this Court and this Court
granted liberty to said Smt.Sulabha Mundhe, nominee of
the appellant, to participate in the inquiry proceedings. It
is also not disputed by the management that the report of
the committee was signed by only two members and not
by three members. Therefore, findings, which are
recorded by the School Tribunal in respect of
appointment of member of the committee and also on
other aspects, need no interference."
These conclusions in paragraph 26 following Leelatai Patil's case
(supra), with respect, cannot be approved. In Sudha Saikhede's
case (supra), though the question was not directly involved,
there was a circular of the Government to the contrary issued by
the Director of Education, Maharashtra State, Pune clarifying
certain points. While doing so in this circular of 6 February
1986, it was stated that retired persons below the age of 65
years on whom State or National level awards are conferred
should be taken on panel. The Division Bench approached the
issue thus:
"4. The learned counsel for the petitioner submits that
as the Awardee Teacher chosen in the instant case by the
Chief Executive Officer is above the age of 65 years and
as he is already conducting one more inquiry, he stands
disqualified to be nominated on the inquiry committee.
5. Shri Parsodkar, learned counsel appearing for the
management submits that Rule 36 of the Maharashtra
Employees of Private Schools (Conditions of Service)
Rules which deals with the constitution of Inquiry
57 of 62 WP.126.2012-FB
Committee, its powers and procedure, is a complete Code
and subject of inquiry is fully and completely regulated
by the statutory rule and as such it is impermissible for
the State to issue administrative instructions which runs
counter to the mandate of the Rules. Shri Parsodkar
submits that the power of the State Government to issue
administrative instructions under Article 162 of the
Constitution of India is subject to the legislation made by
the State in that regard. He as such contends that the
State Government's instructions cannot impinge upon the
statutory rules but the same ought to yield to Rule 36 of
MEPS Rules.
6. It is settled position of law that the executive power
of the State is co-extensive with the legislative power of
the State, subject to the provisions of the Constitution.
Proviso to Article 162 limits the executive power of the
State in regard to matters with respect to which the
legislature of a State has power to make laws. Section 16
of the MEPS Act empowers the Government to frame
rules which may provide for all or any of the matters
enumerated in the said section. Section 16(2)(e) and (f)
reads thus :
(e) the duties of such employees and Code of
Conduct and disciplinary matters;
(f) the matter of conducting inquiries.
Sub-section (4) lays down that the rules so framed
shall be laid before each House of State Legislature, in the
manner prescribed. The rules are then to be notified in
the Official Gazette and on such notification the rules
come into force. In tune with the mandate of section 16,
the MEPS Rules, 1981 have been brought into force with
effect from 15.7.1981. Rule 36 squarely deals with
composition and constitution of Inquiring Committees.
Rule 36(2)(a)(iii) reads as under :
58 of 62 WP.126.2012-FB
"36(2)(a)(iii) - One member chosen by the
Chief Executive Officer from the panel of
teachers on whom State/ National Award
has been conferred".
Reading of Rule 36(2)(a)(iii) of the MEPS Rules,
1981, makes it clear that it does not disqualify an
Awardee teacher if he is above 65 years of age nor does
Rule 36 limits the association of an Awardee teacher to
only one enquiry committee at a time. If this be the
position of law, we have no doubt that the clarification
issued by the Government cannot encroach upon Rule 36
of the MEPS Rules, and it must yield to the Rules. In the
result, we hold that the clarification issued by the
Government cannot either be read in Rule 36 nor can it
invalidate an Inquiry Committee constituted in breach
thereof. Having held that the breach of the Government
instructions in no way affects the validity of the
constitution of the Inquiry Committee, we proceed to
consider the scope and applicability of the said
instructions."
48. With respect, the interpretation placed on Rule
36(2)(a)(iii) of the MEPS Rules by the Division Bench does not
run in any manner counter or contrary to the view taken by us.
Whether an awardee teacher should be of a particular age or
not cannot control the interpretation of the legal provision, as
rightly held by the Division Bench in Sudha Saikhede's case
(supra). No circular or view of the executive can thus bind the
Court when interpreting a legal provision. However, whether it
would be advisable to include an awardee teacher on the panel
despite difficulties on account of old age or illness etc. are
matters of policy for the State to determine. They need not be
gone into and commented upon, for they may affect the
59 of 62 WP.126.2012-FB
outcome of inquiries or composition or constitution of the
inquiry committee in each individual case. No general rule can
be laid down in that behalf and everything must depend on the
facts and circumstances of each case.
49. Once we have taken the above view, then we cannot
agree with the judgment delivered by another Division Bench at
Aurangabad in Ajaz Ahmad Khan s/o Abdulla Khan (supra).
With respect, we overrule the judgment to the extent it takes a
view contrary to what has been held by us hereinabove. To be
fair, in Azaz Ahmad Khan's case (supra), the Division Bench only
follows Leelatai Patil's case (supra) and Krantee Junior Adhyapak
Mahavidyalay (D.Ed.)'s case (supra). Once we have overruled
both the above judgments, then Ajaz Ahmad Khan's case (supra)
to the extent indicated above, must be held as not laying down
a correct law. The observations in paragraph 5 of the said
judgment and which are contrary to our views are, therefore,
overruled.
50. Before parting, we may indicate that, as expressed
above, the constitution of the inquiry committee in terms of
Rule 36 provides for appointment of an awardee teacher. In
making such appointment, the Chief Executive Officer should
and is rather expected to peruse the panel of awardee teachers.
Before choosing and appointing, the Chief Executive Officer
should ascertain and in order to avoid any allegation of bias,
prejudice or malafides that he does not choose and appoint an
60 of 62 WP.126.2012-FB
awardee teacher who has served or is serving the management
holding inquiry, in any capacity. He should also verify the
antecedents and if there are any criminal cases in which any
awardee teacher is involved or if the awardee teacher is facing
inquiry into allegations of moral turpitude, then, he must avoid
appointing him on the inquiry committee. This will not only
ensure that the inquiry is fair, just and proper, but is not delayed
unnecessarily by the delinquent employee questioning the
process on the ground of antecedents of the awardee teacher.
All that we emphasise is that the Chief Executive Officer also
must discharge his duty bearing in mind the object and purpose
of the Act.
51. In the view that we have taken, it is not necessary to
scan the "Scheme of National Award to Teachers" which has
been formulated by Government of India, Ministry of Human
Resource Development Department of School Education and
Literacy, New Delhi. Mr.Bandivadekar has placed a copy of the
scheme only because he wanted to emphasise the conditions of
eligibility of teachers for consideration for the awards. Apart
from their teaching abilities, their expertise, it is apparent that
the main considerations for conferring the award are the
reputation in the local community, his/her academic efficiency
and desire for its improvement, his/her genuine interest in and
love for children; and his/her involvement in the social life of
the community. The proforma for recommending a teacher has
61 of 62 WP.126.2012-FB
several columns and items which take care of the above
qualities. Equally, the guidelines which are comprehensive in
character would guide the selection process. Beyond the
emphasis on the legal argument, Mr.Bandivadekar placed before
us the scheme only as a supporting material. We do not think
that any further reference is necessary. In the light of the above,
the question/issues referred for our consideration are answered
as under :
(i)
Whether a Teacher or A teacher or headmaster on
Headmaster on whom State/ whom State/National Award is
National Award has been conferred and who is chosen as a
conferred, who is to be chosen as third member of the Inquiry
a third member in an Inquiry Committee under MEPS Rules,
Committee constituted under the 1981, can be a retired teacher or
Maharashtra Employees of headmaster.
Private Schools (Conditions of
Service) Regulation Act, 1977
and Rules, 1981, can be a retired
Teacher/Headmaster or has
essentially to be an in service
Teacher/Headmaster?
(ii) Which of the judgments of For the reasons indicated above,
the Division Benches in the case the view taken by a Division
of Leelatai d/o. Annapa Patil and Bench of this Court in case of
Sudha d/o. Bhaskarrao Saikhede Sudha d/o Bhaskarrao Saikhede
lay down a binding precedent Vs. Yashodabai Shikshan Sanstha
regarding the age of the Award reported in 2003 (4) Mh.L.J. 659
Winning Teacher/Headmaster?" commends itself to us and while
concurring so also approving it,
we overrule all contrary views
and rendered in the three
decisions of this Court referred in
detail above.
62 of 62 WP.126.2012-FB
52. Now individual matters and petitions shall be placed
before appropriate Benches for being heard and disposed of in
the light of above enunciation of law.
53. The Court expresses its gratitude for the able
assistance rendered by all counsel including Mr.Shaikh Nasir
Masin, Mr.Murtaza Najmi, Mr.Surel Shah and Mr.A.M.Kulkarni
who appeared to assist the Court.
(S.C.DHARMADHIKARI, J.)
(G.S.PATEL, J.)
(A.K.MENON, J.)
MST
