Shamim Azad Education Society, ... vs The State Of Maharashtra Through ...
2017 Latest Caselaw 5415 Bom

WP343-15 & Others                                   1              Common Judgment

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR.
                        WRIT PETITION No. 343/2015
Shamim Azad Education Society, 
Giroli, Tq. Manora Dist. Washim,
Through its President
Sk.Abdullah Sk. Amanu,
Aged about 50 years,
R/o Giroli, Tq. Manora, Dist. Washim.                                     PETITIONER

                                    .....VERSUS.....
1.    The State of Maharashtra,
      through Principal Secretary,
      School Education Department,
      Mantralaya, Mumbai-32.
2.    The Deputy Director of Education,
      Amravati Division, Amravati.
3.    The Education Officer (Secondary),
      Zilla Parishad, Washim.
4.    The Education Officer (Primary),
      Zilla Parishad, Washim.                                              RESPONDENTS

                        WRIT PETITION No. 256/2015
Hazrat Dada Hayat Kalandar 
Education Society, Mangrulpir,
through its Secretary,
Ab.Waheed Ab.Rashid,
Aged about 38 years, R/o Diwanpura,
Ward No.4, Mangrulpir, Akola..                                            PETITIONER
                                    .....VERSUS.....
1.    The State of Maharashtra,
      through Principal Secretary,
      School Education Department,
      Mantralaya, Mumbai-32.
2.    The Deputy Director of Education,
      Amravati Division, Amravati.
3.    The Education Officer (Secondary),
      Zilla Parishad, Washim.
4.    The Education Officer (Primary),
      Zilla Parishad, Washim.
5.    Abdul Gani S/o Sheikh Chotu,
      Aged 65 years, R/o Mangrulpir,
      Distt.Washim (As per Schedule I)
      "Treasurer" of the Trust and later 
      on elected as Secretary).                                            RESPONDENTS



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 WP343-15 & Others                                  2               Common Judgment

                        WRIT PETITION No. 348/2015
Rehmaniya Urdu Education Society, Manora,
Tq. Manora Dist. Washim,
Through its President,
Wahidoddin Waziroddin Sheikh,
Aged about 50 years,
R/o Vasant Nagar, Manora, Dist. Washim.                                   PETITIONER

                                  .....VERSUS.....
1.    The State of Maharashtra,
      through Principal Secretary,
      School Education Department,
      Mantralaya, Mumbai-32.
2.    The Deputy Director of Education,
      Amravati Division, Amravati.
3.    The Education Officer (Secondary),
      Zilla Parishad, Washim.
4.    The Education Officer (Primary),
      Zilla Parishad, Washim.                                              RESPONDENTS

                        WRIT PETITION No. 345/2015
Shamim Azad Education Society, 
Tq. Manora Dist. Washim,
Through its President
Sk.Abdullah Sk. Amanu,
Aged about 50 years,
R/o Giroli, Tq. Manora, Dist. Washim.                                     PETITIONER

                                  .....VERSUS.....
1.    The State of Maharashtra,
      through Principal Secretary,
      School Education Department,
      Mantralaya, Mumbai-32.
2.    The Deputy Director of Education,
      Amravati Division, Amravati.
3.    The Education Officer (Secondary),
      Zilla Parishad, Akola.
4.    The Education Officer (Primary),
      Zilla Parishad, Akola.                                  RESPONDENTS

                        WRIT PETITION No. 346/2015
National Welfare Society, Washim, Tq. & Dist. Washim,
Through its President Md.Yusuf Md.Nizam,
Aged about 65 years,
R/o Hingoli Road, Near Water Tank,
Washim, Tq. & Dist. Washim.                                               PETITIONER



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 WP343-15 & Others                                  3              Common Judgment

                                  .....VERSUS.....
1.    The State of Maharashtra,
      through Principal Secretary,
      School Education Department,
      Mantralaya, Mumbai-32.
2.    The Deputy Director of Education,
      Amravati Division, Amravati.
3.    The Education Officer (Secondary),
      Zilla Parishad, Washim.
4.    The Education Officer (Primary),
      Zilla Parishad, Washim.                                             RESPONDENTS

                        WRIT PETITION No. 347/2015
Shamim Azad Education Society, 
Giroli, Tq. Manora Dist. Washim,
Through its President
Sk.Abdullah Sk. Amanu,
Aged about 50 years,
R/o Giroli, Tq. Manora, Dist. Washim.                                    PETITIONER
                                  .....VERSUS.....
1.    The State of Maharashtra,
      through Principal Secretary,
      School Education Department,
      Mantralaya, Mumbai-32.
2.    The Deputy Director of Education,
      Amravati Division, Amravati.
3.    The Education Officer (Secondary),
      Zilla Parishad, Washim.
4.    The Education Officer (Primary),
      Zilla Parishad, Washim.                                             RESPONDENTS

                        WRIT PETITION No. 349/2015
Rehmaniya Urdu Education Society, 
Manora, Tq. Manora Dist. Washim,
Through its President
Wahidoddin Waziroddin Sheikh,
Aged about 50 years,
R/o Vasant Nagar, Manora, Dist. Washim.                                  PETITIONER
                                  .....VERSUS.....
1.    The State of Maharashtra,
      through Principal Secretary,
      School Education Department,
      Mantralaya, Mumbai-32.
2.    The Deputy Director of Education,
      Amravati Division, Amravati.



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 WP343-15 & Others                                4              Common Judgment

3.    The Education Officer (Secondary),
      Zilla Parishad, Washim.
4.    The Education Officer (Primary),
      Zilla Parishad, Washim.                                           RESPONDENTS
                        WRIT PETITION No. 350/2015
Rehmaniya Urdu Education Society, 
Manora, Tq. Manora Dist. Washim,
Through its President
Wahidoddin Waziroddin Sheikh,
Aged about 50 years,
R/o Vasant Nagar, Manora, Dist. Washim.                                PETITIONER
                                  .....VERSUS.....
1.    The State of Maharashtra,
      through Principal Secretary,
      School Education Department,
      Mantralaya, Mumbai-32.
2.    The Deputy Director of Education,
      Amravati Division, Amravati.
3.    The Education Officer (Secondary),
      Zilla Parishad, Washim.
4.    The Education Officer (Primary),
      Zilla Parishad, Washim.                                           RESPONDENTS
                        WRIT PETITION No. 426/2015
Alhilal Alpasankhyak Shikshan Prasarak
Va Samaj Kalyan Sanstha, Risod, Dist. Washim,
Through its Secretary Mohd.Kabir Mohsin Sk.Ahmad,
Aged about 54 years, R/o Mominpura, 
Juna Court Road, Risod, Dist. Washim.                                  PETITIONER
                                  .....VERSUS.....
1.    The State of Maharashtra,
      through Principal Secretary,
      School Education Department,
      Mantralaya, Mumbai-32.
2.    The Deputy Director of Education,
      Amravati Division, Amravati.
3.    The Education Officer (Primary),
      Zilla Parishad, Washim.                                           RESPONDENTS
                        WRIT PETITION No. 427/2015
Alhilal Alpasankhyak Shikshan Prasarak
Va Samaj Kalyan Sanstha, Risod, Dist. Washim,
Through its Secretary Mohd.Kabir Mohsin Sk.Ahmad,
Aged about 54 years, R/o Mominpura, 
Juna Court Road, Risod, Dist. Washim.                                  PETITIONER




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 WP343-15 & Others                                  5              Common Judgment

                                    .....VERSUS.....
1.    The State of Maharashtra,
      through Principal Secretary,
      School Education Department,
      Mantralaya, Mumbai-32.
2.    The Deputy Director of Education,
      Amravati Division, Amravati.
3.    The Education Officer (Secondary),
      Zilla Parishad, Washim.
4.    The Education Officer (Primary),
      Zilla Parishad, Washim.                                             RESPONDENTS

                        WRIT PETITION No. 428/2015
Halima Education Society, Manora,
Dist. Washim, Through its President
Iqbal Suleman, Aged about 47,
R/o C/o Sulemaniya Urdu High School,
Manora, Dist. Washim.                                                    PETITIONER

                                    .....VERSUS.....
1.    The State of Maharashtra,
      through Principal Secretary,
      School Education Department,
      Mantralaya, Mumbai-32.
2.    The Deputy Director of Education,
      Amravati Division, Amravati.
3.    The Education Officer (Secondary),
      Zilla Parishad, Washim.
4.    The Education Officer (Primary),
      Zilla Parishad, Washim.                                             RESPONDENTS

                        WRIT PETITION No. 429/2015
Alhuda Education Social Welfare Society, 
Chinchambabhar, Dist. Washim,
Through its Secretary,
Mohd.Kabir Mohsin Sk.Ahmad,
Aged about 54 years, R/o Mominpura
Juna Court Road, Risod, Dist. Washim.                                    PETITIONER

                                    .....VERSUS.....
1.    The State of Maharashtra,
      through Principal Secretary,
      School Education Department,
      Mantralaya, Mumbai-32.
2.    The Deputy Director of Education,
      Amravati Division, Amravati.




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 WP343-15 & Others                                6              Common Judgment

3.    The Education Officer (Secondary),
      Zilla Parishad, Washim.
4.    The Education Officer (Primary),
      Zilla Parishad, Washim.                                           RESPONDENTS

                        WRIT PETITION No. 753/2015
1.    Mushtaque Ali S/o Ahmad Ali,
      aged about 41 years, Occ: Service,
      R/o C/o Janta Shikshan Prasarak
      Mandals Urdu Primary School, Pusad,
      Tq. Pusad, Dist. Yavatmal.

2.    The Janta Shikshan Prasarak Mandals
      Urdu Primary School, Pusad,
      Tq. Pusad, Dist. Yavatmal,
      Through its Head Master.                                       PETITIONERS
                                  .....VERSUS.....
1.    The State of Maharashtra,
      through Principal Secretary,
      School Education Department,
      Mantralaya, Mumbai-32.
2.    The Deputy Director of Education,
      Amravati Division, Amravati.
3.    The Education Officer (Primary),
      Zilla Parishad, Yavatmal.                                         RESPONDENTS

                       WRIT PETITION No. 1296/2015
1.    Lok Shikshan Mandal, Sarafa Line,
      Gandhi Ward, Hinganghat,
      Through its Roshan S/o Rajendra Daga,
      Aged about 35 years, R/o Hinganghat,
      Dist. Wardha.

2.    Janta Vidyalaya, Mangrul,
      Tq. Samudrapur, Dist. Wardha,
      Through its Head Master,
      Mr.Michael Francis Joseph.

3.    Nilkanth Murar Ghatwai High School,
      Wadner, Tq. Hinganghat, Dist. Wardha.
      Through its Head Master,
      Shri Rajesh S/o Vinayakrao Satpute,
      Aged about 49 Years.                                           PETITIONERS

                                  .....VERSUS.....
1.    The State of Maharashtra,
      through Principal Secretary,
      School Education Department,
      Mantralaya, Mumbai-32.




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 WP343-15 & Others                                     7                 Common Judgment

2.       The Deputy Director of Education,
         Nagpur Division, Nagpur.
3.       The Education Officer (Secondary),
         Zilla Parishad, Wadha.
4.       The Education Officer (Primary),
         Zilla Parishad, Wardha.                                              RESPONDENTS

               Shri F.T. Mirza and Shri A.I. Sheikh, Counsel for the petitioners.
     Shri K.L. Dharmadhikari and Shri I.J. Damle, Assistant Government Pleaders for the
                                      respondent-State.
        Shri Ram Karode, Advocate holding for Shri P.C. Madkholkar, counsel for the
                        respondent no.5 in Writ Petition No.256/2015.

                                       CORAM :SMT.VASANTI  A  NAIK AND
                                                     A.D. UPADHYE, JJ.                  

DATE : 2 ND AUGUST, 2017.

ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)

Since the issue involved in these writ petitions is identical and

since similar orders of the Education Officer (Secondary) are challenged

therein, they are heard together and are decided by this common

judgment.

2. By these writ petitions, the petitioners-minority institutions

have challenged the orders of the Education Officer (Secondary)

pertaining to staff justification for the year 2014-15 as also the orders of

the Education Officer asking the petitioners to remove the shikshan

sevaks that had not completed the tenure of three years if the teachers or

the non-teaching staff in the petitioner-institutions are declared as excess

in pursuance of the staff justification. According to the petitioners, the

Education officers were not entitled to make the staff justification for the

year 2014-15 as per the provisions of the Right to Education Act, 2009.

WP343-15 & Others 8 Common Judgment

3. The only submission made by the learned counsel for the

petitioners for challenging the impugned orders of the Education Officer

is that the staff justification is made under the provisions of the Right To

Education Act though the Constitution Bench judgment of the Hon'ble

Supreme Court in the case of Pramati Education and Cultural Trust and

others Versus Union of India and others, reported in 2014(7) Scale 306,

the Hon'ble Supreme Court had held that the Right to Education Act

2009, insofar as it is made applicable to minority schools referred in

Clause (1) of Article 30 of the Constitution of India is ultra vires the

Constitution. It is submitted that as the Hon'ble Supreme Court has

declared that the Act of 2009 would not be applicable to minority schools,

it would not be permissible for the Education Officer to make the staff

justification as per the provisions of the Right to Education Act and ask

the petitioners to remove the shikshan sevaks that had not completed

three years of service if any member of the non-teaching or teaching staff

has been declared surplus as per the staff justification. The petitioners

have taken exception to the use of the words 'Right to Education Act,

2009' in the communication dated 01.08.2014 in Writ Petition No.343 of

2015, which is similar to the communication issued by the Education

Officers in the cases of most of the petitioners. It is submitted that the

petitioners cannot be forced to remove the teachers and the non-teaching

WP343-15 & Others 9 Common Judgment

staff from their institutions after they are declared excess as this would

destroy the minority character of the schools.

4. The learned Assistant Government Pleaders appearing for the

Education Officers have supported the orders. It is submitted that there is

nothing in the staff justification for the year 2014-15 that is challenged by

the petitioners in these petitions, to show that the said is made in

pursuance of the provisions of the Right To Education Act, 2009. It is

submitted that though a mention is made in the other communications to

the Right to Education Act, 2009, it is apparent from a reading of the

communications that the Secondary School Code, the Rules, the

Regulations, the Government Resolutions and other documents were

considered by the Education Officer while directing the petitioners to act

as per staff justification for the year 2014-15 and if any teacher or a

member of the non-teaching staff is declared excess, to remove the

shikshan sevak who has not completed three years of service. It is

submitted that since the petitioner-minority institutions are receiving

grant-in-aid from the State Government, it would not be permissible for

the petitioner-institutions to decide how many employees could be

employed in their institutions. It is submitted that in most of the writ

petitions, there is no reduction in the strength of the teaching and the

non-teaching staff in the staff justification for the year 2014-15 and the

WP343-15 & Others 10 Common Judgment

staff justification of the year 2014-15 is like the staff justification for the

year 2013-14. It is submitted that the petitioners had not raised any

objection to the staff justification for the years 2012-13 & 2013-14 and

had abided by the same and there is no reason for the petitioners to

challenge the staff justification for the year 2014-15 when the same is

almost identical to the staff justification for the year 2013-14. It is

submitted that though it is held in the case of Pramati Education and

Cultural Trust (Supra) that the Right to Education Act, 2009 would not

apply to the minority schools, since the Education Officers have not

applied the Right to Education Act by itself and have referred to the

Secondary School Code, the Rules and Regulations, the Government

Resolutions and Circulars and other documents while making the staff

justification, there is no merit in the challenge raised by the petitioners to

the impugned orders. The learned Assistant Government Pleaders sought

for the dismissal of the writ petitions.

5. Admittedly, all the petitioners are the minority institutions

receiving 100% grant-in-aid from the State Government. This would

mean that the staff working in the petitioner-minority institutions is

receiving the salary grants from the government exchequer. Merely

because the petitioners are the minority institutions, it would not be for

them to decide as to how many employees should be appointed by them.

WP343-15 & Others 11 Common Judgment

Merely because the minority institutions are protected under Article 30(1)

of the Constitution of India, it would not be for them to decide the

strength of the teachers and non-teaching staff. A minority institution

which does not receive the grant-in-aid from the government is free to

appoint as many teachers and non-teaching staff as it likes, as it would be

for that minority institution to shell out the salaries and the other

monetary benefits meant for the teaching and the non-teaching staff from

their own funds. Since the petitioners are receiving 100% grant-in-aid

from the State Government, the State Government would be free to pass

appropriate orders in respect of staff justification in the minority schools,

in accordance with law. The minority character of the minority

institutions cannot be destroyed or diminished if the State suitably decides

the number of the employees that could be employed in the minority

institutions on the basis of the student - teacher ratio. It cannot be said

that because the minority institutions have a special constitutional right to

establish and administer the educational institutions of their choice, they

could employ as many teachers and non-teaching employees as they like,

though they receive the grant-in-aid for paying the salaries of the teaching

and non-teaching employees from the State Government. The State can

impose some appropriate regulatory measures for deciding the number of

the employees that could be employed in a minority institution that

receives grant-in-aid from the government considering the student -

WP343-15 & Others 12 Common Judgment

teacher ratio. In the case of Pramati Education and Cultural Trust (supra),

the Hon'ble Supreme Court was considering whether it would be

obligatory for the minority institutions, in view of the provisions of the

Right to Education Act 2009 to admit children belonging to the weaker

sections and disadvantaged groups who need not be the members of the

minority community which had established the schools. The Hon'ble

Supreme Court held that the minority institutions cannot be forced to

admit children belonging to the weaker sections and the disadvantaged

groups in the neighbourhood, under the provisions of the Right to

Education Act, 2009. After holding so, the Supreme Court held that the

Act of 2009 cannot be made applicable to the minority schools. In these

cases, we have noted that the staff justification does not refer to the

provisions of the Right to Education Act and the other impugned orders

that direct the petitioners to terminate the services of the shikshan sevaks,

that had not completed three years of service if the teachers or the other

employees in the school have been declared surplus, refer not only to the

Right to Education Act, 2009 but the Secondary School Code, Rules and

Regulations, Government Resolutions, Circulars, minutes of some

meetings and other documents. We do not, therefore, find anything

wrong in the staff justification orders on the basis of the only submission

made on behalf of the petitioners. If some of the petitioners are

aggrieved by the staff justification orders pertaining to their schools,

WP343-15 & Others 13 Common Judgment

which may require the petitioners to declare some staff as surplus and

which according to the petitioners is wrongful, it would be permissible for

the petitioners to make individual grievance in that regard to the

Education Officers by placing the entire data pertaining to the student -

teacher ratio before them.

As we are not inclined to uphold the only submission made on

behalf of the petitioners for challenging the impugned orders, the writ

petitions are dismissed with no order as to costs.

              JUDGE                                         JUDGE



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