Bombay High Court
Jyoti Mukundrao Ghuge And Others vs The State Of Maharashtra And ... on 6 June, 2017
Bench: S.V. Gangapurwala
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11771 OF 2015
1. Sadik S/o Bashir Pathan,
Age : 28 Years, Occu. : Nil,
R/o At Mahartakali, Post Ardhpimpari,
Tq. Georai, Dist. Beed.
2. Venudas S/o Dnyandeo Waghmode,
Age : 39 Years, Occu. : Nil,
R/o At Post Deulgaon Siddhi,
Tq. & Dist. Ahmednagar. .. Petitioners
Versus
1. The State of Maharashtra,
Through its : Principal Secretary,
School Education and Sports Department,
Mantralaya, Mumbai 400 032.
2. The Maharashtra Shikshan Parishad
(Government of Maharashtra
Undertaking), Through its Project
Director, Jawahar Bal Bhavan,
Netaji Subhash Marg,
Churni Road, Mumbai 400 004.
3. The Director of Education (Primary),
Directorate of Primary Education,
M. S. Pune .. Respondents
Miss P. S. Talekar, Advocate h/f Shri S. B. Talekar, Advocate for
Petitioners.
Shri Ram Apte, Senior Advocate with Shri A. P. Basarkar, A.G.P.
for Respondent Nos. 1 and 3.
Shri Deelip Bankar Patil, Advocate for the Respondent No. 2.
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WITH
WRIT PETITION NO. 3487 OF 2015
1. Jyoti Mukundrao Ghuge
Age:- 37 years, Occu.: Nil,
R/o. Gajanan Colony, Tq. Kannad,
Dist. Aurangabad.
2. Dnyaneshwar Bhausaheb Dakale
Age:- 32 years, Occu.: Nil,
R/o.Georai Mungi, Tq. Phulambri,
Dist. Aurangabad.
3. Shaikh Sikandar Shaikh Rahim
Age:- 27 years, Occu.: Nil,
R/o. Vasadi, Tq. Kannad,
Dist. Aurangabad.
4. Shaikh Chandpasha Shaikh Rahim
Age:- 36 years, Occu.: Nil,
R/o. Vasadi, Tq. Kannad,
Dist. Aurangabad. .. Petitioners
Versus
1. The State of Maharashtra
Through its Secretary,
School Education Department,
Mantralaya, Mumbai-400 032
2. The Maharashtra Prathamik
Shikshan Parishad
(Government of Maharashtra
Undertaking), Through its
Project Director, Jawahar Bal
Bhavan, Netaji Subhash Marg,
Charni Road, Mumbai-400 004.
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3. The Director of Education (Primary),
Maharashtra State, Pune.
4. Zilla Parishad, Aurangabad
Through its Chief Executive Officer,
5. The Education Officer (Primary),
Zilla Parishad, Aurangabad .. Respondents
Shri P. R. Katneshwarkar, Advocate h/f Shri A. G. Ambetkar,
Advocate for Petitioners.
Shri Ram Apte, Senior Advocate with Shri A. P. Basarkar, A.G.P.
for Respondent Nos. 1 and 3.
Shri Deelip Bankar Patil, Advocate for the Respondent No. 2.
Respondent Nos. 4 and 5 served.
WITH
WRIT PETITION NO. 3490 OF 2015
1. Dayanand Shidhaling Raut
Age:- 32 years, Occu.: Nil,
R/o. Shiradhon, Tq. Kalamb,
Dist. Osmanabad.
2. Rajkumar Dattatray Kumbhar
Age:- 24 years, Occu.: Nil,
R/o. Shiradhon, Tq. Kalamb,
Dist. Osmanabad.
3. Monika Bhaulal Chikse
Age:- 25 years, Occu.: Nil,
R/o. Vishnunagar, Kannad,
Tq. Kannad, Dist. Aurangabad. .. Petitioners
Versus
1. The State of Maharashtra
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Through its Secretary,
School Education Department,
Mantralaya, Mumbai-400 032.
2. The Maharashtra Prathamik
Shikshan Parishad
(Government of Maharashtra
Undertaking), Through its
Project Director, Jawahar Bal
Bhawan, Netaji Subhash Marg,
Charni Road, Mumbai-400 004.
3. Zilla Parishad, Osmanabad
Through its Chief Executive Officer,
4. The Education Officer (Primary),
Zilla Parishad, Osmanabad
5. Zilla Parishad, Aurangabad
Through its Chief Executive Officer,
6. The Education Officer (Primary),
Zilla Parishad, Aurangabad. .. Respondents
Shri P. R. Katneshwarkar, Advocate h/f Shri A. G. Ambetkar,
Advocate for Petitioners.
Shri Ram Apte, Senior Advocate with Shri A. P. Basarkar, A.G.P.
for Respondent Nos. 1 and 3.
Shri Deelip Bankar Patil, Advocate for the Respondent No. 2.
Shri Suhas B. Ghute, Advocate for the Respondent No. 4.
Respondent Nos. 5 and 6 are served.
WITH
WRIT PETITION NO. 10541 OF 2015
1. Govind Mukund Rathod
Age:- 42 years, Occu.: Nil,
R/o Rawankhola, Tq. Jalkot,
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Dist. Latur.
2. Savita Vishwasrao Mangate
Age:- 31 years, Occu.: Nil,
R/o Radhaswami Colony,
Jetwada Road, Tq.& Dist. Aurangabad.
3. Varsha Dnyaneshwar Patil
Age:- 24 years, Occu.: Nil,
R/o Bilwadi, Post. Vavadda,
Tq. & Dist. Jalgaon. .. Petitioners
Versus
1. The State of Maharashtra
Through its Secretary,
School Education Department
Mantralaya, Mumbai- 400 032.
2. The Maharashtra Prathamik
Shikshan Parishad
(Government of Maharashtra
Undertaking), through its
Project Director, Jawahar Bal
Bhawan, Netaji Subhash Marg,
Charni Road, Mumbai- 400 004.
3. Zilla Parishad, Latur
Through its Chief Executive Officer
4. Zilla Parishad, Aurangabad
Through its Chief Executive Officer
5. Zilla Parishad, Jalgaon
Through its Chief Executive Officer. .. Respondents
Shri P. R. Katneshwarkar, Advocate h/f Shri A. G. Ambetkar,
Advocate for Petitioners.
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Shri Ram Apte, Senior Advocate with Shri A. P. Basarkar, A.G.P.
for Respondent Nos. 1 and 3.
Shri Deelip Bankar Patil, Advocate for the Respondent No. 2.
WITH
WRIT PETITION NO. 10869 OF 2015
1. Mahesh S/o Dnyandeo Waditake,
Age : 30 Years, Occu. : Nil,
R/o Galnimb, Tq. Shrirampur,
Dist. Ahmednagar.
2. Pravin S/o Sudhakar Najan,
Age : 31 years, Occu. : Nil,
R/o Tajnapur, Tq. Shevgaon,
Dist. Ahmednagar. .. Petitioners
Versus
1. The State of Maharashtra,
[Through its : Principal Secretary,
School Education and Sports Department,
Mantralaya, Mumbai 400 032]
2. The Maharashtra Shikshan Parishad,
(Government of Maharashtra Undertaking),
Through its Project Director,
Jawahar Bal Bhavan, Netaji Subhash Marg,
Churni Road, Mumbai 400 004.
3. The Director of Education (Primary),
Maharashtra State, Pune.
4. The Zilla Parishad, Ahmednagar,
Through: It's Chief Executive Officer,
(Primary), Zilla Parishad, Ahmednagar.
5. The Education Officer (Primary),
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Zilla Parishad, Ahmednagar. .. Respondents
Shri P. R. Katneshwarkar, Advocate h/f Shri A. G. Ambetkar,
Advocate for Petitioners.
Shri Ram Apte, Senior Advocate with Shri A. P. Basarkar, A.G.P.
for Respondent Nos. 1 and 3.
Shri Deelip Bankar Patil, Advocate for the Respondent No. 2.
Shri Shivaji T. Shelke, Advocate for Respondent Nos. 4 and 5.
WITH
WRIT PETITION NO. 11197 OF 2015
1. Radhesham S/o Bhausaheb Misal,
Age : 34 Years, Occu. : Nil,
R/o and Tq. Phulambri,
Dist. Aurangabad.
2. Savita d/o Vitthal Pawar,
Age : 27 years, Occu. : Nil,
R/o Chincholi, Tq. Kannad,
Dist. Aurangabad. .. Petitioners
Versus
1. The State of Maharashtra,
Through its Secretary,
School Education Department,
Mantralaya, Mumbai 400 032]
2. The Maharashtra Prathamik Shikshan
Parishad, (Government of Maharashtra
Undertaking), Through its Project Director,
Jawahar Bal Bhavan, Netaji Subhash Marg,
Churni Road, Mumbai 400 004.
3. Zilla Parishad, Aurangabad,
Through its Chief Executive Officer .. Respondents
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Shri P. R. Katneshwarkar, Advocate h/f Shri A. G. Ambetkar,
Advocate for Petitioners.
Shri Ram Apte, Senior Advocate with Shri A. P. Basarkar, A.G.P.
for Respondent Nos. 1.
Shri Deelip Bankar Patil, Advocate for the Respondent No. 2.
WITH
WRIT PETITION NO. 11203 OF 2015
1. Bapurao s/o Shankarrao Chavan,
Age : 41 Years, Occu. : Nil,
R/o Panwadod Bu., Tq. Sillod,
Dist. Aurangabad.
2. Pradip S/o Ukhardu Chinchpure
Age : 35 years, Occu. : Nil,
R/o Rahimabad, Tq. Sillod,
Dist. Aurangabad
3. Ganesh s/o Pandurang Gavhane,
Age : 37 Years, Occu. : Nil,
R/o Golegaon Bk., Tq. & Dist. Aurangabad
4. Vivek s/o Prabhakar Suradkar
Age: 40 Years, Occu: Nil,
R/o Rahimabad, Tq. Sillod,
Dist. Aurangabad
5. Shivnath s/o Raosaheb Chindhe
Age: 27 years, Occu: Nil,
R/o Tupewadi Tanda, Tq. Paithan,
Dist. Aurangabad. .. Petitioners
Versus
1. The State of Maharashtra,
Through its Secretary,
School Education Department,
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Mantralaya, Mumbai 400 032.
2. The Maharashtra Prathamik Shikshan
Parishad, (Government of Maharashtra
Undertaking), Through its Project Director,
Jawahar Bal Bhavan, Netaji Subhash Marg,
Churni Road, Mumbai 400 004.
3. Zilla Parishad, Aurangabad,
Through its Chief Executive Officer .. Respondents
Shri P. R. Katneshwarkar, Advocate h/f Shri A. G. Ambetkar,
Advocate for Petitioners.
Shri Ram Apte, Senior Advocate with Shri A. P. Basarkar, A.G.P.
for Respondent Nos. 1.
Shri Deelip Bankar Patil, Advocate for the Respondent No. 2.
WITH
WRIT PETITION NO. 12113 OF 2015
1. Govind s/o Baliram Kamble
Age : 44 Years, Occu. : Nil,
R/o Ujlamb, Tq. Chakur,
Dist. Latur.
2. Deepali d/o Khushalrao Bhanuse
Age : 29 years, Occu. : Nil,
R/o Asola Pr. Tq. Sindkhed,
Dist. Buldhana
3. Rashid s/o Daudkhan Pathan
Age : 35 years, Occu: Nil,
R/o Sugaon, Tq. & Dist. Beed.
4. Chandrakant s/o Dilip Wagh
Age: 24 years, Occu: Nil,
R/o Aurala, Tq. Kannad,
Dist. Aurangabad .. Petitioners
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Versus
1. The State of Maharashtra,
Through its Secretary,
School Education Department,
Mantralaya, Mumbai 400 032
2. The Maharashtra Prathamik Shikshan
Parishad, (Government of Maharashtra
Undertaking), Through its Project Director,
Jawahar Bal Bhavan, Netaji Subhash Marg,
Churni Road, Mumbai 400 004.
3. Zilla Parishad, Latur
Through its Chief Executive Officer
4. Zilla Parishad, Jalna
Through its Chief Executive Officer
5. Zilla Parishad, Beed
Through its Chief Executive Officer
6. Zilla Parishad, Aurangabad,
Through its Chief Executive Officer .. Respondents
Shri P. R. Katneshwarkar, Advocate h/f Shri A. G. Ambetkar,
Advocate for Petitioners.
Shri Ram Apte, Senior Advocate with Shri A. P. Basarkar, A.G.P.
for Respondent Nos. 1.
Shri Deelip Bankar Patil, Advocate for the Respondent No. 2.
WITH
WRIT PETITION NO. 6559 OF 2016
Meenabahar Mohiddin Shaikh
Age : 35 Years, Occu. : Nil,
R/o Fattepur, Tq. Newasa,
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Dist. Ahmednagar. .. Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
School Education Department,
Mantralaya, Mumbai 400 032.
2. The Maharashtra Prathamik Shikshan
Parishad, (Government of Maharashtra
Undertaking), Through its Project Director,
Jawahar Bal Bhavan, Netaji Subhash Marg,
Churni Road, Mumbai 400 004.
3. Zilla Parishad, Ahmednagar,
Through: It's Chief Executive Officer
4. The Education Officer (Primary),
Zilla Parishad, Ahmednagar. .. Respondents
Shri P. R. Katneshwarkar, Advocate h/f Shri A. G. Ambetkar,
Advocate for Petitioners.
Shri Ram Apte, Senior Advocate with Shri A. P. Basarkar, A.G.P.
for Respondent No. 1.
Shri Deelip Bankar Patil, Advocate for the Respondent No. 2.
Shri Shivaji T. Shelke, Advocate for Respondent Nos. 3 and 4.
WITH
WRIT PETITION NO. 7904 OF 2016
1. Javed s/o Babulal Sayyed
Age : 37 Years, Occu. : Service,
R/o Shevgaon, Tq. Shevgaon,
Dist. Ahmednagar.
2. Ashok s/o Ramdas Popalghat
Age : 33 years, Occu. : Service,
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R/o Gunfa, Tq. Shevgaon,
Dist. Ahmednagar.
3. Pandurang s/o Balasaheb, Tupe,
Age: Major, Occu. : Service,
R/o Gandewadi, Tq. Shevgaon,
Dist. Ahmednagar
4. Anita Kashinath Dhawale
Age: Major, Occu. : Service,
R/o Tajanapur, Tq. Shevgaon,
Dist. Ahmednagar
5. Afreen Mehtab Patel
Age: Major, Occu. : Service,
R/o Shevgaon, Tq. Shevgaon,
Dist. Ahmednagar
6. Parveen Mehtab Patel,
Age: Major, Occu. : Service,
R/o Shevgaon, Tq. Shevgaon,
Dist. Ahmednagar
7. Shivkumar s/o Amrutrao Solanke,
Age: Major, Occu. : Nil,
R/o Hatadi, Tq. Partur,
Dist. Jalna
8. Bhagwan s/o Govindrao Shere
Age : Major, Occu: Nil,
R/o & Tq. Partur, Dist. Jalna.
9. Saral Babanrao Lale,
Age : Major, Occu: Nil,
R/o & Tq. Partur, Dist. Jalna.
10. Amol S/o Devidasrao Neb
Age: Major, Occu. : Nil,
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R/o Khandviwadi, Tq. Partur,
Dist. Jalna
11. Ramrao s/o Abasaheb Ambure
Age : Major, Occu: Nil,
R/o Shrishti, Tq. Partur,
Dist. Jalna
12. Mohan s/o Kisanrao Lalzare
Age : Major, Occu: Nil,
R/o Sathe Nagar, Tq. Partur,
Dist. Jalna
13. Gorakhnath s/o Kisanrao Rathod
Age : Major, Occu: Nil,
R/o Ashti, Tq. Partur,
Dist. Jalna
14. Faruk s/o Khudabisahab Kureshi
Age : Major, Occu: Nil,
R/o Ashti, Tq. Partur,
Dist. Jalna
15. Vashishta s/o Tulashiram Bavane
Age : Major, Occu: Nil,
R/o Ashti, Tq. Partur,
Dist. Jalna
16. Najiya Yasmin A. Sattar
Age : Major, Occu: Nil,
R/o Ashti, Tq. Partur,
Dist. Jalna
17. Shahadev s/o Sitaram More
Age : Major, Occu: Nil,
R/o & Tq. Partur, Dist. Jalna
18. Chandrakant s/o Ganpatrao Kapale
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Age : Major, Occu: Nil,
R/o Rameshwar Galli (Gaon),
Tq. Partur, Dist. Jalna.
19. Kashibai Rambhau Jogdand
Age : Major, Occu: Nil,
R/o Yanora, Post Patoda (Mav),
Tq. Partur, Dist. Jalna.
20. Vandana Manohar Kharat
Age : Major, Occu: Nil,
R/o & Tq. Partur, Dist. Jalna
21. Bhimrao Sheshrao Yevale
Age : Major, Occu: Nil,
R/o Anandwadi, Tq. Partur,
Dist. Jalna
22. Gajanan Devidas Bhapkar
Age : Major, Occu: Nil,
R/o Anandwadi, Tq. Partur,
Dist. Jalna
23. Satish Banshilal Gujar
Age : Major, Occu: Nil,
R/o Gujar Chauk, Tq. Partur,
Dist. Jalna
24. Jayprakash Ankushrao Bidwe
Age : Major, Occu: Nil,
R/o Satona Bk., Tq. Partur,
Dist. Jalna
25. Sakharam Daulatrao Gaikwad
Age : Major, Occu: Nil,
R/o Lingasa, Tq. Partur,
Dist. Jalna
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26. Pralhad Sopanrao Solanke
Age : Major, Occu: Nil,
R/o Bhramhanwadi, Tq. Partur,
Dist. Jalna
27. Dadarao Tulashiram Bonage
Age : Major, Occu: Nil,
R/o Amba, Tq. Partur,
Dist. Jalna
28. Yogita Madhukar Dhagare
Age : Major, Occu: Nil,
R/o Amba, Tq. Partur,
Dist. Jalna
29. Krushna Vitthalrao Solanke
Age : Major, Occu: Nil,
R/o Rameshwar Galli, Tq. Partur,
Dist. Jalna .. Petitioners
Versus
1. The State of Maharashtra,
[Through its : Principal Secretary,
School Education and Sports Department,
Mantralaya, Mumbai 400 032]
2. The Maharashtra Shikshan Parishad,
(Government of Maharashtra Undertaking),
Through its Project Director,
Jawahar Bal Bhavan, Netaji Subhash Marg,
Churni Road, Mumbai 400 004.
3. The Director of Education (Primary),
Maharashtra State, Pune.
4. The Zilla Parishad, Ahmednagar,
Through: It's Chief Executive Officer,
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(Primary), Zilla Parishad, Ahmednagar.
5. The Education Officer (Primary),
Zilla Parishad, Ahmednagar.
6. The Zilla Parishad, Jalna
Through : Its Chief Executive Officer,
(Primary), Zilla Parishad, Jalna
7. The Education Officer (Primary),
Zilla Parishad, Jalna .. Respondents
Shri P. R. Katneshwarkar, Advocate h/f Shri A. G. Ambetkar,
Advocate for Petitioners.
Shri Ram Apte, Senior Advocate with Shri A. P. Basarkar, A.G.P.
for Respondent Nos. 1 and 3.
Shri Deelip Bankar Patil, Advocate for the Respondent No. 2.
Shri Shivaji T. Shelke, Advocate for Respondent Nos. 4 and 5.
WITH
WRIT PETITION NO. 9424 OF 2016
1. Anil Navnath Devkate
Age : 28 Years, Occu. : Nil,
R/o Alsunde, Tq. Karjat,
Dist. Ahmednagar.
2. Vishnu S/o Kundalik Hiwale
Age : Major, Occu. : Nil,
R/o Shivkrupa Nagar, Georai
Tanda, Tq. & Dist. Aurangabad .. Petitioners
Versus
1. The State of Maharashtra,
Through its Secretary,
School Education Department,
Mantralaya, Mumbai 400 032.
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2. The Maharashtra Prathamik Shikshan
Parishad, (Government of Maharashtra
Undertaking), Through its Project Director,
Jawahar Bal Bhavan, Netaji Subhash Marg,
Churni Road, Mumbai 400 004.
3. Zilla Parishad, Ahmednagar,
Through: It's Chief Executive Officer
4. The Education Officer (Primary),
Zilla Parishad, Ahmednagar.
5. Zilla Parishad, Aurangabad,
Through: It's Chief Executive Officer
6. The Education Officer (Primary),
Zilla Parishad, Aurangabad. .. Respondents
Shri P. R. Katneshwarkar, Advocate h/f Shri A. G. Ambetkar,
Advocate for Petitioners.
Shri Ram Apte, Senior Advocate with Shri A. P. Basarkar, A.G.P.
for Respondent No. 1.
Shri Deelip Bankar Patil, Advocate for the Respondent No. 2.
WITH
WRIT PETITION NO. 2384 OF 2017
1. Kiran S/o Gangadhar Andure
Age : 25 Years, Occu. : Service,
R/o Kharwandi, Tq. Pathardi,
Dist. Ahmednagar.
2. Sangita Ramnand Kalpande
Age : 39, Occu. : Service,
R/o C/o. Z.P. C.P. School Pathardwad,
Tq. Hadgaon, Dist. Nanded
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3. Prajakta Prakash Joshi
Age : 27 Years, Occu. : Service,
R/o House No. 37, Bhartiy Building,
Priyadarshani Nagar, Nageshwarwadi,
Tq. & Dist. Aurangabad
4. Kasim Khan Mehabub Khan
Age: 25 Years, Occu. Service,
R/o Udavad, Tq. Chopada,
Dist. Jalgaon .. Petitioners
Versus
1. The State of Maharashtra,
Through its Secretary,
School Education Department,
Mantralaya, Mumbai 400 032.
2. The Maharashtra Prathamik Shikshan
Parishad, (Government of Maharashtra
Undertaking), Through its Project Director,
Jawahar Bal Bhavan, Netaji Subhash Marg,
Churni Road, Mumbai 400 004.
3. Zilla Parishad, Ahmednagar,
Through: It's Chief Executive Officer
4. The Education Officer (Primary),
Zilla Parishad, Ahmednagar.
5. Zilla Parishad, Nanded,
Through: It's Chief Executive Officer
6. The Education Officer (Primary),
Zilla Parishad, Nanded,
7. Zilla Parishad, Aurangabad,
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Through: It's Chief Executive Officer
8. The Education Officer (Primary),
Zilla Parishad, Aurangabad.
9. Zilla Parishad, Jalgaon,
Through: It's Chief Executive Officer
8. The Education Officer (Primary),
Zilla Parishad, Jalgaon .. Respondents
Shri A. G. Ambetkar, Advocate for Petitioners.
Shri A. P. Basarkar, A.G.P. for Respondent No. 1.
Shri. S. T. Shelke, Advocate for Respondents No. 3 and 4.
Ms. Yogita Kshirsagar, Advocate for Respondents No. 5 and 6.
Shri. Vijay Sharma, Advocate for Respondents No. 9 and 10.
CORAM : S. V. GANGAPURWALA AND
SANGITRAO S. PATIL, JJ.
Reserved for Judgment on : 05.04.2017
Judgment pronounced on : 06.06.2017
JUDGMENT (Per S. V. Gangapurwala, J.) :-
. Rule. Rule made returnable forthwith. With the consent
of parties taken up for final hearing.
. All these Writ Petitions assail the Govt. Resolutions dated
07/05/2015 and 07/01/2017 issued by the Dy. Secretary to the
Govt. of Maharashtra, School Education and Sports Department,
Mantralaya, Mumbai on the ground that these Govt. Resolutions
are contrary to the provisions of Right of Children to Free and
Compulsory Education Act, 2009 [for short, 'RTE ACT, 2009']
and Rules framed thereunder, so also against the directions of
this Court in its Judgment and Order dated 09/05/2014 in Writ
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Petition No. 7106 of 2013 with connected Writ Petitions. As all
these petitions are based on similar set of facts and involve
common question of law, to avoid rigmarole they are decided by
common Judgment.
2. Miss. Talekar, Mr. P.R.Katneshwarkar, Mr. Ambetkar and
the counsel appearing in respective Writ Petitions have
canvassed their submissions at length. According to the learned
counsel :
[a] The impugned Govt. Resolution dated 07/05/2015 and
Corrigendum Govt. Resolution dated 07/01/2017 are in gross
violation of the mandate of the RTE Act, 2009, so also the
Central and State Rules framed thereunder. The qualifications
prescribed for the Guest Instructor vide Govt. Resolution dated
07/01/2017, in stead of having certifications of the degree courses
in the subject and the teaching and merely giving consideration
to the invitation to village/town level programmes is in sheer
violation of the Central Govt. Notification dated 12/11/2014
issued by the National Council for Teachers Education
prescribing the minimum qualifications for persons to be
recruited as physical education teachers in schools and colleges.
The Govt. Resolution dated 07/01/2017 nowhere prescribes
educational qualifications. It is in total derogation of the
Central Govt. Notification dated 12/11/2014. The Govt.
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Resolution dated 20/08/2010 has outlined the importance of Arts,
Physical Education and Work Experience in the overall
development of the students and as emphasized upon having
proper guidance and training in that regard. However, the Govt.
Resolution in question does not prescribe for any qualifications
for part-time/Guest Instructor.
[b] The honorarium fixed for the part-time/Guest Instructor
in the impugned Govt. Resolution is less than the basic
minimum wages as prescribed by the Govt. of Maharashtra. The
Court in its Judgment dated 09/05/2014 in Writ Petition No.
7106 of 2013 with connected Writ Petitions had expected the
emoluments to the part-time/Guest Instructor to the extent of
half of the salary of full time teacher. The said direction is
completely ignored. The Govt. Resolution dated 29/04/2011
provides working hours of a teacher in a academic year.
According to it, even if the petitioners work for two hours a day,
the total working hours, including the preparatory hours, would
amount to six hours a week. The petitioners are getting only Rs.
50/- per lecture up to the maximum of Rs. 5,000/- per month.
[c] The scheme of the RTE Act and Rules prescribe mandatory
functions to be performed. If the entire structure of the RTE Act
and the Rules framed thereunder is perused, the respondents
are required to create a permanent and professional cadre of
22 wp 11771.15 odt
teachers with service regulations and pay scales so as to provide
quality education to the students. The statute, more
particularly Section 7 (5) of the RTE Act bestows the entire
responsibility on the State Govt. Section 8 (d) of the RTE Act
states that it is the duty of the appropriate Govt. to provide the
infrastructure including school building, teaching staff and
learning equipments. The appropriate Govt. is the State Govt.
No provision is made in respect of the same in the impugned
Govt. Resolutions.
[d] According to the learned counsel, the Schedule to Section
19 of the RTE Act prescribes norms and standards for the school.
Item No. 1 of the Schedule prescribes student - teacher ratio. It
states that where the admission in 6th to 8th class is above 100,
there shall be part-time instructors for the subjects, viz. Art
Education, Physical Education and Work Experience. The
powers to amend the Schedule vests with the Central Govt. as
per Section 20 of the RTE Act. State Govt. does not have power
to amend the Schedule. As such, the act of State Govt. of
replacing the part-time instructors with that of Guest
Instructors is non-est.
[e] Section 23 of the RTE Act enlists qualifications for
appointment and terms and conditions of service of teachers, the
minimum qualification is to be prescribed by the Central Govt.
23 wp 11771.15 odt
and as per Clause 2 of Section 23 of the RTE Act, only Central
Govt. has the powers to relax the minimum qualification
required for appointment as a teacher. State Govt. does not
have authority to prescribe qualification of the teachers.
Section 25 (1) of the RTE Act imposes obligation upon the
Appropriate Govt. and the Local Authority to ensure and
maintain student - teacher ratio as specified in the Schedule.
Thus, it is the responsibility of the State Govt. to make sure that
prescribed number of teachers, as provided in the Schedule, are
made available. Rule 17 of the Central Rules authorizes the
Central Govt. to notify the Academic Authority for laying down
the qualification for a person to be eligible for appointment as a
teacher. Clause 3 thereof states that minimum qualification
prescribed by the Academic Authority shall be applicable for
every school. Though rule 18 of the Central Rules titled as
'relaxation of minimum qualification prescribes for relaxation of
minimum qualification', however fixed procedure laid down has
to be followed i.e. the State Govt. has to request the Central
Govt. The respondents have not complied the said procedure. It
could not have relaxed the eligibility and the minimum
qualification for appointment of part-time instructors.
According to the learned counsel, the State Govt. is attempting
to harp on the impugned Govt. Resolutions of enriching the
students through different teachers specialized in different
aspects of Art, Physical Education and Work Experience that
24 wp 11771.15 odt
would fall under specialized training, over and above the
mandatory instructions in regular Art, Physical Education and
Work Experience class as required by the statute in view of
Section 24 read with Schedule of the RTE Act.
[f] The learned counsel further submit that the part-time
instructors would come under the ambit and definition of a
teacher. The respondents are committing gross error in not
treating part-time instructors as teachers.
[g] The learned counsel further submit that the Judgment
and Order dated 09/05/2014 in Writ Petition No. 7106 of 2013
with connected Writ Petitions has attained finality. Even the
Review has been dismissed. The said Judgment is binding upon
the respondents. The impugned Govt. Resolution dated
07/05/2015 and Corrigendum Govt. Resolution dated 07/01/2017
are against the directions issued in the said Judgment. The
learned counsel have referred to the following aspects, as
suggesting the directions of the Court in its Judgment dated
09/05/2014, not being adhered to :
Sr. Directions issued by Para No. of Policy framed
No. this Hon'ble Court Judgment by the State
Govt.
25 wp 11771.15 odt
1 The State Govt. while 118 (ii) The length of service of
taking final policy the different part-time
decision in respect of instructors has not been
appointments is bound given due weightage in
to consider the length of as much as any person
services rendered by the who has served as part-
respective petitioners time instructor is
working on the post of treated alike a
instructors in (a) Art differentiation was
Education, (b) Health required to be made
Education and Physical within the part-time
Education and (c) Work instructors based on
Education. their length of service.
26 wp 11771.15 odt
2 The State Govt. while 118 (iii) Rather than giving
making fresh priority and weightage to
appointments is bound to the experience and
give due weightage to the qualifications of the
experience gained by the petitioners, the G.R. now
petitioners and their introduces a policy of guest
requisite qualifications. instructors who are
expected to work without
pay, and need not have any
formal qualifications in
either Art, Physical
Education or Work
Experience.
The persons without any
qualification in these
subjects would be in no
position to impart any
necessary skills and
instruction to the
students, much less of a
quality and standard
expected in the Statute.
This is in sheer violation
of the requirement of
minimum qualification of
the teaching staff under
the RTE Act so also the
disciplinary authority on
such staff.
27 wp 11771.15 odt
3 Create permanent 118 (iv) The Govt. has introduced a
infrastructure and also concept of a panel of
appointments on instructors for each school,
permanent basis as long whose term shall extend
time measure. for a period of 3 years.
Such a policy measure is
in gross violation of the
direction of the Court as
the Court had directed the
Govt. to make
appointments on
permanent basis so as to
meet the mandate and
object of the RTE Act,
2009. Rather the
respondents have made an
eye-wash of 3 year panel,
and within the panel there
is no maximum number of
persons to be included, so
effectively each person in
the panel still remains as
an ad-hoc appointee,
rather with much more
uncertainty about his
payment and work load.
28 wp 11771.15 odt
4 Creation of permanent 118 (v) No permanent cadre of
cadre of part time part-time instructors is
instructors in (a) Art sought to be created.
Education, (b) Health Replacing the part-time
Education and Physical instructor as required in
Education and (c) Work the schedule and
Education. mandated by section 18
and 19 of the Act, the
Govt. has introduced the
concept of guest
instructors who will work
without pay and take one
or two classes each. Such
a policy decision is in total
circumvention of the
mandate of the RTE Act
requiring 3 instructors in
different subjects per 100
students.
The concept of guest
instructor can be used in
addition to the part-time
instructors not in its place,
as the part-time
instructors are mandated
by the Statute.
29 wp 11771.15 odt
5 Appointments can not 118 (vii) Instead of long term
be sanctioned each year, vision, a rather myopic
State has to make vision is taken and the
appointments on shortage of financial
sanctioned posts resources is the main
keeping in view long reason in finding escape
term plan. routes by the Govt. to
appoint highly qualified
and experienced
instructors at humane
service conditions.
30 wp 11771.15 odt
6 The State Govt. will 115 The 2015 Govt. Resolution
consider the aspect of has reduced honorarium
prescribing pay scales to paid to part-time
part-time instructors in instructors from 5,000
Art Education, Physical p.m. to a maximum of
Education and Work 2,500 p.m., depending on
Education as per their how many classes are
qualification, which is not taken by each person in
less than half the pay the panel every month.
scales prescribed for full- The 2017 Govt. Resolution
time teachers. has made this maximum
honorarium as 5,000 p.m.
though this is an illusory
figure as the number of
classes in a month will be
split amongst the number
of persons in the panel and
thus this 5,000 Rs. p.m.
per instructor will be
divided amongst the
number of persons in the
panel making this a much
worse service condition
than the one existing at
the time of the Judgment
and Order dated
09/05/2014 in W.P. No.
7106 of 2013.
31 wp 11771.15 odt
7 Direction to State Govt. 119 Policy formulated in
to take immediate steps, 2015 GR and thereafter
however well in advance in 2017 G R is grossly in
before commencement of violation to these
academic year 2014-15. directions and even
though 3 years are
lapsed since the
contempt of this
direction, the Govt. has
not allowed the
petitioners to join the
duty as part-time
instructors despite being
duly qualified.
[h] The learned counsel further submit that as per the earlier
Govt. Resolution, Physical Education Instructors were required
to possess certificate of Bachelor in Physical Education for the
post of Physical Education Instructor in Zilla Parishad school.
All these petitioners possess said qualification and the pay scale
prescribed of the Drawing teacher and Physical Education
Instructor as per Govt. Resolution dated 20/05/2009 is Rs. 9,300
- 34,800/- with grade pay of Rs. 4,300/-, Rs. 4,400/- [senior pay
scale] and Rs. 4,800/- [20% selection grade] and for Music
teacher Rs. 9,300 - 34,800/- [senior pay scale]. Further Circular
of the Govt. dated 14/05/1987 states that qualification of
Bachelor in Physical Education and Bachelor of Education shall
32 wp 11771.15 odt
be considered equivalent for determination of pay scale of
teachers. Despite such mandate of the Govt., the Instructors are
being provided a meagre, per class honorarium even less than
the minimum wage.
[i] The learned counsel further submit that the respondents
are misleading the Court with regard to the number of posts
available. They are considering the 'due dias data' as on
31/10/2013 instead of 30/09/2015. If the strength of students
studying in 6th, 7th and 8th standard is considered as on
30/09/2015, there would be at-least 7000 schools which have
strength of 100 or more students. However, the Govt. has stated
that there are only 1835 posts of part-time instructors, in which
strength of students in 6th to 8th standard is more than 100. The
strength of students in 8th standard is required to be considered.
The Govt. ought to have sanctioned more than 21,000 posts of
part-time instructors rather than 1835 posts of part-time
instructors. Earlier, at one point of time, State of Maharashtra
has sanctioned 18,645 posts of part-time instructors.
[j] The students who are entitled to have the benefit of Craft,
Art and Physical instructors are deprived of the special teaching
from such teachers. The respondents have deprived thousands
of part-time instructors, who were appointed on ad-hoc basis not
only of their source of livelihood, but have deprived lakhs of
33 wp 11771.15 odt
students from the facility of learning physical education also.
[k] The learned counsel further submit that thousands of
part-time instructors are required to be protected by allowing
them to join as physical education or work experience instructors
and grant them pay scale as per Govt. Resolution dated
20/05/2009 issued by the Rural Development and Water
Conservation Department revising pay scale of employees
working in Zilla Parishad. The learned counsel further submit
that the respondents have failed to frame the policy in
consonance with the directions issued by this Court in its
Judgment dated 09/05/2014 in Writ Petition No. 7106 of 2013
with connected Writ Petitions, so also is against the statutory
provisions enshrined under RTE Act. As such, the Govt.
Resolutions impugned in the present Writ Petitions are required
to be quashed and set aside.
3. Mr. Ram Apte, learned Senior Counsel appeared for
respondent No. 1 - State and put-forth following submissions.
4. The directions given by this Court in its judgment dated
09/05/2014 in Writ Petition No.7106 of 2013 have been complied
with. The State Government placed the directions issued by this
Hon'ble Court before the Cabinet and with the approval of the
Cabinet, the State Government has formulated a policy under
34 wp 11771.15 odt
Government Resolution dated 07/10/2015 and subsequent
corrigendum dated 07/01/2017.
5. The directions with regard to giving due weightage to the
experience gained by the petitioners has been complied under
Clause (Kh) of Government Resolution dated 07/10/2015. Part-
time Instructors are included in the Guest Instructors panel.
Permanent infrastructure is already created. All the schools
have permanent infrastructure. The directions with regard to
creation of permanent cadre of part-time Instructors is also
complied with. The same is writ large. Under Clause (kh) sub-
Clause 4 of the impugned Government Resolution, opportunity
has been given to the Guest Instructors to work in more than
one school.
6. The learned Senior Counsel further submits that though,
initially, the Government Resolution dated 07/10/2015 had
provided payment at the rate of Rs.50/- per period upto a
maximum of Rs.2,500/- per month, the same has been
reconsidered and a corrigendum is issued dated 07.01.2017
increasing payment upto a maximum of Rs.5,000/- per month.
The said amount is fixed considering the Sarva Shiksha
Abhiyan under Central Government budget for the said purpose.
A part-time Instructor has to work for a short period in the
school and is free to work for gain or to do other business or
35 wp 11771.15 odt
profession, in addition to his duty as a Guest Instructor. The
Government Resolution dated 07/01/2017 is not in supersession
of the Government Resolution dated 07/10/2015, but the
Government Resolution dated 07/01/2017 only further clarifies
and modifies a part of the Government Resolution dated
07/10/2015.
7. The learned Senior Counsel further submits that annual
work plan and budget of Sarva Shiksha Abhiyan is being
sanctioned and provided by the Ministry of Human Resource,
Department of School Education and Literacy, New Delhi for the
project which is being implemented within the State of
Maharashtra. Under Sarva Shiksha Abhiyan, for the State of
Maharashtra, the Ministry of Human Resource, Department of
School Education and Literacy has sanctioned Rs.50,000/- for
ten months for a part-time Instructor of Arts Education, Health
and Physical Education and Work Education. Hence, the slab of
honorarium is increased upto Rs.5,000/- per month. The part-
time Instructors are paid on clock-hour basis and not on daily
wages.
8. The learned Senior Counsel further submits that the
challenge to the Government Resolution on the ground of
violation of Article 21-A of the Constitution of India, does not
survive in view of the policy framed by the State Government.
36 wp 11771.15 odt
The State Government is providing free and compulsory
education to all children of the age group between 6 years to 14
years as per the RTE Act, 2009.
9. The learned Senior Counsel states that there is a clear
distinction between Teacher and Instructor. An Instructor can,
by no stretch of imagination, be equated with a Teacher under
the RTE Act. Reliance of the petitioner, therefore, on the
provisions regarding Teacher, is totally misplaced in view of the
distinct nature between Teacher and Instructor. The learned
Senior Counsel categorically states that those part-time
Instructors, who have earlier worked, will be accommodated first
in the respective schools, before making any additional
appointments. The State Government has created a permanent
cadre of part-time Instructors. This Court never directed
granting permanency to the petitioners, but had directed
creation of permanent cadre and the same has been done.
10. The learned Senior Counsel further contends that the
State Government, while framing policy as per the impugned
Government Resolution dated 07/10/2015, has made some out-of-
box thinking. The preamble in the said Government Resolution
gives justification for such thinking. The Government has
decided to create a panel of Instructors in each school for overall
development of the students. The Annexures to the impugned
37 wp 11771.15 odt
Government Resolution, which are illustrative in nature, would
clearly show that, what is required to be seen is experience,
expertise and knowledge of a person who will have to be
appointed as a Guest Instructor, as contemplated by the
provisions of the RTE Act. The provisions of the Government
Resolution would clearly show that the endeavor of State
Government is to get best available talent for imparting
education to the students which will be useful to them for their
overall development. The provisions of the Government
Resolution are in full conformity with the RTE Act and the
Rules framed thereunder.
11. The learned Senior Counsel further submits that
considering the vast variety of subjects involved, it will not be
possible to restrict part-time/Guest Instructors to limited
academic qualification. The students should be focal point of
every education system and in view of that, the State
Government is relying more on experience, expertise and
knowledge of a person in the particular subject for best possible
development of the students. The persons possessing exceptional
skill in Sports, Arts etc. can be invited as Guest Instructors,
though they may not be possessing a particular qualification.
The learned Senior Counsel, to illustrate, states that a person
who has acquired excellence in a particular sports and if he is
ready to instruct the students free of cost, he would be welcome.
38 wp 11771.15 odt
As such, insisting for qualification should not be necessary and
that is why, it is not necessary to have a particular qualification
for Instructors.
12. The learned Senior Counsel further submits that
there are various skilled and multi-talented personalities who
are ready to come forward to distribute their talent/skill free of
cost. They are also ready to disburse their talent to the students
by way of education. In the present mechanical system of
education, there is misconception that only if the honorarium or
payments are made, such persons are eligible to impart
education and those personalities who are eager to distribute
their talent by way of education free of charge, are not eligible to
impart such education. Because of such misconception, many
multi-talented personalities are not getting opportunity to
impart talent to the students in the schools. If the highly
talented personalities in the field of Arts, Sports, Work
education etc. are ready to carry out the object free of charge,
they can be rewarded by way of public felicitation at the end of
the academic year.
13. The challenge in the Writ Petition is to the policy of the
State Government and that involves financial implications. The
learned Senior Counsel, therefore, submits that the Writ
Petitions, in such circumstances, ought not be entertained and
39 wp 11771.15 odt
deserve to be dismissed.
14. We have considered the submissions canvassed by the
learned Counsel for the respective parties, the directions issued
by this Court in Writ Petition No.7106 of 2013 under its
judgment and order dated 09/05/2014, so also the provisions of
the RTE Act.
15. This Court, under its judgment and order dated 09/05/2014
in Writ Petition No.7106 of 2013 with connected Writ Petition,
had directed the State Government to formulate a policy in
respect of part-time Instructors. The directions issued by this
Court in its judgment and order dated 09/05/2014 in Writ
Petition No.7106 of 2013 with connected Writ Petition, read as
under :-
"....
118. In the light of elaborate/ detailed
discussion in foregoing paragraphs, this
Court has reached to following final
conclusions:-
i) It is the failure of the State Government
and in particular concerned Education
Department, not to formulate final policy
document within three years from 1.4.2010
i.e. the date when the RTE Act 2009 came into
force.
40 wp 11771.15 odt
ii) Since the State Government did not
formulate final policy document within
three years, as contemplated under RTE Act,
and in particular keeping in view provisions
of Sections 19 and 23 thereof, funds were
not released for the academic year 2013-14 by
the Central Government. Therefore, the
petitioners have to file hundreds of
petitions for redressal of their grievances.
No slightest fault can be attributed to the
petitioners.
iii) The State Government while taking final
policy decision in respect of appointments
is bound to consider the length of services
rendered by the respective petitioners
working on the post of Instructors in (a) Art
Education, (b) Health and Physical Education
and (c) Work Education, mental agony faced by
them in not appointing them for the academic
year 2013-14 because of failure of State
Government in not performing its obligation.
The State Government while making fresh
appointments is bound to give due weightage
to the experience gained by the petitioners
and their requisite qualifications and mental
agony faced by them by not continuing them
for the academic year 2013-14, for the
failure of the State Government in not
formulating permanent policy document.
41 wp 11771.15 odt
iv) The State Government keeping in view the
provisions of Article 21-A of the
Constitution of India and the provisions of
RTE Act, Rules thereunder and the Schedule
prescribed, will have to take decision to
create permanent infrastructure and also
appointments on permanent basis as a long
time measures so as to perform its
Constitutional and statutory obligations
under the provisions of Constitution of India
and RTE Act.
v) The State Government can certainly keep
in view and consider to create permanent
cadre of part time Instructors in (a) Art
Education, (b) Health and Physical Education
and (c) Work Education as specified in
Section 9 of RTE Act and Rule 20 of Rules
2010, in all Zilla Parishad Schools having 5th
to 7th standards and minimum strength of 100
students in the State of Maharashtra. Since
the State Government has not formulated final
policy document, we leave it to the State
Government to perform its obligation in
view of the provisions of RTE Act.
vi) As already observed, it would be open
for the State Government while appointing
the candidates on the posts of part time
Instructors in (a) Art Education, (b) Health
and Physical Education and (c) Work
42 wp 11771.15 odt
Education, or on any other post under RTE
Act, the State Government has to inform them
that due to inadequate work load in
particular schools, they will have to attend
other school so as to complete the work
hours/work load. The State Government can
very well keep in view the policy formulated
by the State of Karala or any other welfare
State, as a guiding factor.
Vii) The posts sanctioned by the State
Government, as reflected in affidavit in
reply filed by the State authorities and in
the light of the Government Resolution placed
on record cannot be considered for the
particular academic year. Therefore, the
State has to make appointments on these
sanctioned posts keeping in view long term
plan.
119. In the light of discussion herein
before, and the conclusion reached, we direct
the State Government to take immediate
steps/decision, as expeditiously as
possible, however well in advance before
commencement of next academic year 2014-15,
in all respects, in the light of para 118 of
this Judgment, keeping in view the provisions
of the RTE Act, Rules and Schedule
thereunder. "
43 wp 11771.15 odt
16. The impugned Government Resolutions dated 07/10/2015
and 07/01/2017 will have to comply with the aforesaid directions
and so also with the provisions with regard to part-time
Instructors, in the RTE Act.
17. The directive principles of the State policy enumerated in
the Constitution of India lay down that the State shall provide
free and compulsory education to all children upto the age of 14
years. Article 21-A of the Constitution of India, as inserted by
the Constitution (86th amendment) Act, 2002, provides for free
and compulsory education to all children in the age group
between 6 years and 14 years, as a fundamental right in such a
manner as the State may, by law, determine. Consequently, the
RTE Act 2009 is enacted.
18. Neither the expression "Instructor" is defined in the RTE
Act nor the expression "Teacher" is defined. The provisions of R.
T. E. Act are comprehensive. Section 19 of the RTE Act lays
down that no school shall be established, or recognised, unless it
fulfills the norms and standards specified in the Schedule. If the
norms, as laid down under Schedule, are not fulfilled, the
authority prescribed thereunder shall withdraw recognition
granted to such school. Section 23 of the RTE Act deals with the
appointment, terms and conditions of service of Teachers and
also specifies that any person possessing such minimum
44 wp 11771.15 odt
qualifications, as laid down by an academic authority,
authorised by the Central Government, by notification, shall be
eligible for appointment as a Teacher. Section 24 deals with the
duties of the Teachers and redressal of grievances. Section 25 of
the RTE Act mandates maintenance of Pupil-Teacher ratio as
specified in the Schedule.
19. The provisions of the RTE Act, as discussed supra,
mandate about the norms and standards to be maintained as
specified in the Schedule so also, Pupil-Teacher ratio to be
maintained as per the Schedule. The Schedule is an integral
part of the RTE Act of 2009. The said Schedule prescribes
norms and standards for schools.
20. The Schedule specifically lays down that for 6 th to 8th
classes, where admissions of students is above 100, there shall
be a full-time Head Teacher and Part-time Instructor for (a) Arts
Education, (b) Health and Physical Education, and (c) Work
Education. The schools are under obligation to maintain the
norms and standards as prescribed in the Schedule. The said
Schedule has to be scrupulously adhered to. Any deviation
therefrom is not permissible. In the impugned Government
Resolution, the State Government has termed the part-time
Instructor as Guest Instructor. Though nomenclature may not
be much relevant, still the respondent though has termed them
as Guest Instructors, they are, in fact, part-time Instructors as
45 wp 11771.15 odt
laid down in the Schedule of the RTE Act. They will have to be
treated as part-time Instructors.
21. The purpose of school is all-round development of a
student. Along with academic excellence, a student should get
training in extra curricular activities such as Arts, Health and
Physical education, Work education etc. It is to achieve the said
object and for all-round development of students. The legislation
has provided for appointment of Instructors in Arts Education,
Health and Physical Education and Work Education and has
referred them as part-time Instructor. They have not clubbed
these part-time Instructors with a full-fledged Teachers to be
appointed for academics.
22. This Court in its judgment and order dated 09/05/2014 in
Writ Petition No.7106 of 2013 with connected Writ Petitions, had
certainly not granted permanency to the petitioners therein, but
had only directed to create permanent cadre. Even as per Rule
4 of the Right of Children to Free and Compulsory Education
Rules, 2010, the school development plan has to be prepared.
The said plan shall be a three year plan comprising three annual
sub-plans. The said school development plan is required to
contain details of (a) class wise enrollment for each year, (b)
requirement of the number of additional teachers including head
teachers, special teachers and part time instructors separately
with reference to the norms specified in the schedule. It shall
46 wp 11771.15 odt
also contain the physical requirement of additional
infrastructure and equipments calculated with reference to
norms and standards specified in the schedule. The said plan
shall also contain details about financial requirements in respect
of additional teachers, part time instructors, so also physical
requirement of additional infrastructure and equipments. The
school development plan has to be for three years. Under the
Government Resolution, the panel of physical instructors is for a
period of three years and subject to the evaluation of their
performance to be continued further for three years. In fact,
these part time instructors are required to be continued as long
as their work is found to be satisfactory. The permanent cadre is
being created.
23. As far as permanent infrastructure is concerned, the
schools are bound to maintain the required infrastructure. If,
they fail to maintain the required infrastructure and do not
adhere to the norms and standards prescribed under the
provisions of the Act and the schedule, then the authority under
the statute has got powers to withdraw the recognition of that
school. The authority has to see that the permanent
infrastructure is created as is laid down under the provisions of
the statute and the schedule.
24. The strength of the students, no doubt, would be
fluctuating and the part-time Instructors, as per the Schedule to
47 wp 11771.15 odt
the RTE Act, are required to be appointed only if the strength of
the students from 6th to 8th classes is at least 100 students. The
post of part time instructor would be fluctuating according to
the number of students. Under the impugned Government
Resolution, the permanent cadre is created. It is also stated that
the part-time Instructors who have worked earlier would be
given first preference. They are required to give weightage to the
part-time Instructors who have worked earlier. Clause (iii) of
Para 118 of the judgment and order dated 09.05.2014 in Writ
Petition No. 7106 of 2013 mandates the State to give weightage
to the earlier service rendered by part time instructors. The
respondents are duty bound to give weightage to those part-time
Instructors who have worked earlier. Clause (Kh)(1) of the
Government Resolution dated 07/10/2015 lays down that those
part-time Instructors, who have worked earlier, will be given
preference for inclusion in the panel. Weightage will have to be
given to them in appointing them as part-time Instructors. In
fact, those who have worked are required to be continued if their
work was found satisfactory on evaluation of their work.
25. In fact, the Government ought to have come forward with
definite policy about weightage depending upon length of service
rendered by part time instructors. The Government shall lay
down guidelines in that regard.
26. The Government had not framed any policy regarding
48 wp 11771.15 odt
appointment of part time instructors. The part time instructors
had to approach this Court as they were not continued. This
Court eventually under the judgment and order dated
09.05.2014 in Writ Petition No. 7106 of 2013 with connected writ
petitions gave directions to the State to formulate policy
governing part time instructors. Pursuant to the judgment and
order in Writ Petition No. 7106 of 2013 and other matters, the
Government framed the policy vide Government Resolution
dated 21.08.2014. The said Government Resolution was
withdrawn and fresh guidelines are laid down under impugned
G. R. dated 07.10.2015 and 07.01.2017. These Govt. Resolutions
have to be in consonance with the judgment and order dated
09.05.2014 in Writ Petition No. 7106 of 2013, as the judgment
dated 09.05.2014 in W. P. No. 7106 of 2013 and order in civil
application for modification bearing C. A. No. 9191 of 2014 has
become final.
27. In Writ Petition No. 7106 of 2013 and other connected
matters, this Court gave directions as reproduced supra. The
Court directed State to formulate policy with regard to
appointment of part time instructors, keeping in mind the
length of service rendered by them and the mental agony faced
by them, because of failure of State Government is not
performing its obligation under R. T. E. Act.
28. The State Government under the impugned Government
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Resolution has decided to even appoint guest instructors in place
of part time instructors. According to respondent No. 1/State
guest instructor may be any person who has acquired necessary
skill in arts, sport, etc. and a person who wants to give voluntary
service is welcomed. No qualification is prescribed for him. If
guest instructors are allowed on regular basis without any
qualification, it would result in anomalous situation and may
pave path for arbitrariness.
29. The education in arts, physical education, work education
is integral part of curriculum. The same has to be taught by the
part time instructors. The part time instructor has to be
qualified person. We are not entering into a debate as to
whether a part time instructor has a status of a teacher, as the
same is not necessary for deciding present matters. However,
when education is to be provided in arts, health and physical
education, work education, the person imparting said courses
has to be qualified and has to possess the necessary knowledge.
An illiterate person who has achieved reputation in a particular
field can be welcomed as a guest instructor by way of an
exception, in addition to part time instructor. However, cannot
partake the status of part time instructor. It would be
necessary for the State to provide minimum qualification for
appointment of part time instructors so as to rule out
appointment of an incompetent person as part time instructor.
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30. The schedule being an integral part of the statute i. e. R.
T. E. Act and imparting education for the students where the
strength is above 100 and more in arts, health and physical
education, work education being mandatory, it is expected that
the said courses are taught by the persons holding necessary
qualification. Teaching would be different art and skill and we
do not approve the act of the State Government in laying down
policy of guest instructors even without qualification in the place
of part time instructors. However, we observe that the
respondent can appoint guest instructors of exceptional skill and
expertise, who are ready to render service voluntarily without
consideration, but the same shall be in addition to the part time
instructors to be appointed as laid down in the schedule and not
by way of substitution to part time instructors. The
respondent/State shall specify the qualification for the part time
instructors. The same is necessary considering the prelude to
the impugned Government Resolutions i. e. the order of this
Court in Writ Petition No. 7106 of 2013 with other connected
writ petition dated 09.05.2014. If guest instructors are allowed
to be appointed in the place of part time instructors, the same
shall not be in consonance with the spirit of the R. T. E. Act and
the judgment of this Court in Writ Petition No. 7106 of 2013
dated 09.05.2014. These guest instructors would not be under
the disciplinary control of the management and if they are not
under disciplinary control and a guest instructor is not
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rendering his service properly, the same would affect the welfare
of the students. The appointment of part time instructors is for
imparting knowledge to the students in arts, health and physical
education and work education. Those who would be rendering
voluntary service would not be under the control of the
management, as such would not be liable for disciplinary action.
The powers to amend the schedule to the R. T. E. Act vest
with the Central Government. If appointment of guest
instructors as is sought to be made by the respondent is allowed
to be sustained, the same would be contrary to the schedule,
which prescribes appointments of part time instructors. The
State Government would not have any authority to do so. The
same would result in amending the schedule by the State
Government, which is not permitted. Sec. 20 of the R. T. E. Act
bestows that power only upon the Central Government.
31. The next issue would be about emoluments to be paid to
the part time instructors. We have observed that, the schools
can invite persons who have achieved name and fame and
experts ready to render voluntary service as guest instructors in
addition to the part time instructors. The post of part time
instructors for classes 6th to 8th and where-ever strength is
above 100 students cannot be done away with. Of course, it is
said that the part time instructors will be concerned with some
lectures in a week and will also be entitled to do their other
52 wp 11771.15 odt
personal avocation and there would not be any restriction upon
it. The respondent under the impugned G. R. have decided to
pay Rs. 50/- per lecture subject to maximum Rs. 5,000/- per
month. The respondent/State will have to keep in view that,
these part time instructors would be imparting education to the
students. They are skilled in their work. They have acquired
necessary knowledge. Paying Rs. 50/- per lecture would not be in
tune with the status that would be attached to the part time
instructors. Even that would be less than daily wages to be paid
to the part time skilled daily wager. The emoluments to be paid
is the policy decision of the State, wherein the State has to
consider all the relevant aspects. The respondent has decided to
pay Rs. 50/- per lecture subject to maximum Rs. 5,000/- per
month. Considering the lectures to be allotted none of them
would be getting even Rs. 5,000/- per month. The same would be
too meager. We expect the State Government to fix a better,
lucrative and honourable remuneration to the part time
instructors. In the judgment dated 09.05.2014 in Writ Petition
No. 7106 of 2014, which is also maintained in Review Petition
No. 9191 of 2014, the Court though had not directed State, but
expected that the part time instructor to be paid half of the
salary of the teachers. The State may not calculate the same
with mathematical precision, still payment of Rs. 50/- per lecture
would be too meager, the same requires to be reconsidered. In
the result we pass following order.
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O R D E R
A. Respondent No. 1/State shall prescribe qualification for
the appointment of part time instructors.
B. Respondent No. 1/State shall give weightage to the part
time instructors considering the length of service rendered
by them earlier.
C. The guest instructors may be appointed in addition to the
part time instructors and not as substitutes to the part
time instructors and respondent No. 1/State shall
reconsider emoluments to be paid to the part time
instructors.
D. The decision in respect of Clauses "A" to "C" above shall be
taken expeditiously and preferably within three months
from today.
E. Rule accordingly made absolute in above terms.
F. No costs.
Sd/- Sd/-
[SANGITRAO S. PATIL, J.] [S. V. GANGAPURWALA, J.]
bsb/June 17
