Bombay High Court
Pramodini Prabhakar Parkhe And ... vs The State Of Maharashtra And ... on 29 March, 2016
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1079 OF 2016
1] Smt. Pramodini Prabhakar Parkhe,
Age 42 years, Occ. Service,
2] Kiran s/o. Janardan Chabukswar,
Age 34 yeaers, Occ. Service,
St. Francis De Sales High
School, Jalna Road, Aurangabad ..Petitioners
1]
versus
The State of Maharashtra,
Through its Secretary,
School Education Department,
Government of Maharashtra,
Mantralaya, Mumbai - 32
2] The Education Officer (Secondary),
Zilla Parishad, Aurangabad
3] St. Francis De Sales High School,
Jalna Road, Aurangabad
Through its Head Master ..Respondents
--
Mr.C.K.Shinde, advocate for petitioners
Mr.B.V.Virdhe, AGP for respondent nos.1 and 2
--
CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
DATE : MARCH 29, 2016
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ORAL JUDMENT (Per S.S.Shinde, J.) :
Heard.
2] Rule. Rule made returnable forthwith. With
consent of learned counsel for the parties, the
petition is taken up for final hearing.
3]
This petition takes exception to the impugned
communication dated 13th January, 2016 issued by
respondent no.2 - Education Officer (Secondary),
Zilla Parishad, Aurangabad, thereby refusing to
grant approval to the appointments of the present
petitioners as Shikshan Sevaks.
4] It is the contention of the petitioners that
respondent no.3 is a school run by 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, the respondent - Education Officer ought to
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have granted approval to the appointments of the
petitioners.
5] We have heard learned counsel for the
petitioners and learned AGP for respondent nos.2
and 3 - State. Though respondent no.3 is served,
none appeared for respondent no.3.
6]
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
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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
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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
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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.
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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
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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
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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."
7) 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 -"
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8) 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.
9] Accordingly, the communication dated 13th
January, 2016 issued by respondent no.2 -
Education Officer (Secondary), Zilla Parishad,
Aurangabad, stands quashed and set aside.
10] The proposal for approval to the appointments
of the present petitioners to the post of Shikshan
Sevaks be considered afresh in the light of the
discussion in the foregoing paragraphs, as
expeditiously as possible, however, within a
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period of ten weeks from today and the decision be
communicated to respondent no.3.
11] The Writ Petition is allowed to the above
extent. Rule is made absolute accordingly with no
order as to costs.
[SANGITRAO S. PATIL, J.]
ig [S.S. SHINDE, J.]
kbp
