Dnyansagar Shikshan Prasarak ... vs The State Of Maharashtra, Through ...
2021 Latest Caselaw 14059 Bom

                                           1          WP 6537-14.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE JURISDICTION

                               WRIT PETITION NO. 6537 OF 2014

 1. Dnyansagar Shikshan Prasarak Mandal
 C/o Vikas Mandir Primary School,
 Barrack No. 1274/1, OT Station,
 Ulhasnagar, District Thane.
 Through its Chairman.

 2. Mrs. Vaishali Pramod Sawant
 (Miss. Vaishali Shivaji Gaigavale)
 Aged 40 years, Occupation :- Service,
 R/o. Gurukrupa Apartment,
 Lokmanya Nagar, Pada No.4,
 Thane (W).

 3. Shri Ajay Brijlal Verma,
 Aged 26 years, Occupation Service,
 R/o Jagruti Colony, Near Municipal
 School No. 14, OT Station,
 Ulhasnagar-4, District-Thane.                             ... Petitioners
       Vs.
 1. The State of Maharashtra
 Through the Secretary,
 School Education Department,
 Mantralaya, Mumbai-400 032

 2. Ulhasnagar Municipal Corporation
 School Board, Ulhasnagar,
 District Thane,
 Through its Administrative Officer              ... Respondents
                                    -------
 Mr. Narendra V. Bandiwadekar with Mr. Vinayak Kumbhar, Advocates for
 Petitioners in both Petitions.
 Mr. A.I. Patel, Addl. Government Pleader, State with Ms. Kavita N.
 Solunke, Advocates for Respondents-State in both Petitions.
                                    -------


           Nikita Gadgil                                                              1 of 29


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                               CORAM       :      R.D. DHANUKA &
                                                  ABHAY AHUJA, JJ.

          RESERVED FOR ORDER ON            :      9TH SEPTEMBER 2021
          PRONOUNCED ON                    :      29TH SEPTEMBER 2021

 JUDGMENT : (PER ABHAY AHUJA, J.)

1. Rule. Rule made returnable forthwith. By consent of counsel for the

parties, petition is heard finally.

2. By this petition filed under Article 226 of the Constitution of India,

1950 petitioners are challenging the order dated 20th February 2014 issued

by respondent no. 1 thereby refusing to sanction posts of non-teaching

employees in private primary schools in the State and for a declaration

that the existing posts / in-service non-teaching employees as surplus and

to absorb them if the vacancies are available in the secondary and higher

secondary schools. In short petitioners have been appointed as non-

teaching staff in aided primary school of petitioner no. 1, but the second

respondent has not yet granted approval to the said appointments.

3. The facts leading to the filing of this petition are as under:-

(i) Petitioner no.1 is an educational institution registered under the

Bombay Public Trusts Act, 1950 and the Societies Registration Act, 1860

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and had been granted permission at various points in time for running

Marathi medium primary school at Ulhas Nagar, Dist. Thane on unaided

basis of permissions by Deputy Director of Education to run standard I

from the year 1995-96 to standard VII in the year 2001. The petitioner no.

1 runs the school by the name of "Vikas Mandir Primary School". It is

submitted that all these permissions were granted on an unaided basis. It

is also submitted that at present the school is having classes from standard

I to VII.

(ii) It is submitted that by order dated 25 th November 2003, respondent

no. 2 sanctioned 100% grant-in-aid for standard I to IV and thereafter by

order dated 4th December 2006, 40% grant-in-aid came to be sanctioned

to standard V, VII and VII from AY 2006-07. It is submitted that later on

further stages of grant-in-aid also came to be sanctioned and the school

became fully aided. It is submitted that at present the entire primary

school viz. Standard I to VII is receiving 100% grant-in-aid.

(iii) The 2nd respondent is the board established under the Bombay

Primary Education Act, 1947 (the "BPE Act"); is the authority competent

to sanction post of teachers and non-teaching employees for private,

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recognized primary schools and to grant approval to the appointments of

employees made in such sanctioned posts including those in respect of the

primary schools run by the 1st petitioner.

(iv) It is submitted by petitioners that in AY 2004-05 (as on 30 th

September 2004), the strength of students in the said primary school

became 503 and as per Rule 115 (3)(b) of the Bombay Primary Education

Rules, 1949 (the "BPE Rules") framed under the BPE Act, one post of clerk

became admissible to the primary school of the petitioner. On 12 th July

2004 the State Government issued a Government Resolution to lift ban

which had been imposed on the recruitment of non-teaching employees in

private, recognized and aided private primary schools and granted

permission to make appointment on an honorarium. It is under these

circumstances, it is submitted that petitioner no.1 decided to appoint a

clerk for the school. It is submitted that after the selection procedure, the

2nd petitioner came to be selected for the post of "clerk" and after passing

of the necessary resolution by the management, the 2 nd petitioner was

appointed as clerk with effect from 1 st December 2004 till 30th September

2006 on probation for a period of two years and the 2 nd petitioner joined

the school as clerk. It is further submitted that similarly in AY 2005-06 (as

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on 30th September 2005), as the students' strength continued to be around

500 being stated to be 513, the first petitioner decided to appoint a "peon"

for the primary school. After the selection procedure, the 3 rd petitioner was

selected for the post of peon and on 9 th May 2005 and after the necessary

management resolution, he was appointed as peon from 1 st June 2005 to

30th April 2007 on a probation period of two years and the 3 rd petitioner

joined as peon.

(v) By letter dated 12th April 2006, the head master of the school

submitted a proposal to the second respondent-corporation requesting for

grant of approval to the said appointments of petitioners no. 2 and 3 in

the respective posts of "clerk" and "peon". It is submitted that as there

was no response from the 2nd respondent, another letter dated 13 th

February 2007 was submitted to the 2nd respondent.

(vi) On 24th August 2007, the 2nd respondent submitted a detailed

proposal to the Deputy Director of Education, Mumbai region requesting

for sanction of one post of clerk and one post of peon in which the

petitioners no. 2 and 3 were shown to be working.

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(vii) By letter dated 12th February 2008, the Deputy Director of Education

forwarded the said proposal to the Director (Primary), Maharashtra State,

Pune and by letter dated 23rd September 2010, the said Director (Primary)

forwarded proposals including that of the 1 st petitioner to the 1st

respondent, requesting issuance of a Government Order sanctioning the

requested posts for the schools mentioned therein.

(viii) It is submitted that on 29th May 2014 a representation was

submitted to the office of the first respondent-State reiterating the

aforesaid request.

(ix) That despite the proposal pending at Government level and the said

employees working for about 9 to 10 years, Government failed to grant

sanction stating vide its Minutes of Order dated 20 th February, 2014 that in

view of the Right Of Children To Free And Compulsory Education Act,

2009 and (the "RTE Act"), the non-teaching posts could not be sanctioned

to the private primary schools and therefore, the posts which were in

existence would be declared surplus; that if vacant posts were available in

the secondary and higher secondary schools, then the non-teaching

employees in the private primary schools should be absorbed in those

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posts. The relevant portion of the said minutes at item no. 4 is reproduced

as under:-

4- ;kiwohZP;k fud"kkuqlkj vuqKs; vlY;kizek.ks vkjVhbZuqlkj l|fLFkrhr [kktxh izkFkfed [kktxh izkFkfed 'kkGkauk 500 fdaok vf/kd 'kkGkalkBh f'k{kdsrj ins eatwj xVla[;klkBh 1 dfu"B fyfid o 1 lsod djrk ;s.kkj ukgh- l/;k vfLRkRokr in iwohZizek.ks eatwj dj.ksckcr fopkj Ogkok- vlysyh ins vfrfjDr Bjokohr- rlsp fjDr tkxk miyC/k vlY;kl ek/;fed rlsp mPp ek/;fed 'kkGsr R;kaps lekos'ku dj.;kr ;kos-

Aggrieved by the said decision, representation was also made to the

respondent no.1. Inspite of the aforesaid, there has been no favourable

response and the petitioners have approached this Court.

4. On behalf of the petitioners, learned counsel, Mr. Bandiwadekar

submits that it is evident that since the strength of the students in the

Primary School of the Petitioner No.1 institution exceeded 500, the school

became entitled to be sanctioned one post of Clerk and one post of Peon,

in accordance with Rule 115 (3) (b) of the Bombay Primary Education

Rules, 1949. That, therefore, the management made appointment of

Petitioner No.2 as a Clerk and thereafter made the appointment of

Petitioner No.3 as a Peon in the said Primary School. After making the

aforesaid appointments, the necessary proposal was submitted by the

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Head Master of the school seeking approval to the said appointments.

However, no immediate action was taken on the said proposal. Learned

Counsel submits that the Respondent No.2 by letter dated 24.8.2007

submitted detailed proposal to the Deputy Director of Education, Mumbai

Region, and requested to sanction the said 2 posts. Thereafter, the said

Deputy Director of Education forwarded the proposal by letter dated

12.2.2008 to the Director (Primary), M.S. Pune making similar

recommendation. By his letter dated 23.9.2010, the said Director made

recommendatory proposal to the Respondent No.1 and requested to

sanction one post of Clerk and one post of Peon for the Primary School of

Petitioner No.1 Institution.

5. Learned counsel submits that inspite of the above referred

recommendations made by all the lower authorities and the school

otherwise being qualified to obtain the sanction the Respondent No.1

failed to take any decision on the said proposals.

6. Learned counsel would submit that even otherwise the proposal was

submitted long back in the year 2007-2008, it was necessary for the

Respondent No.1 to take decision on that proposal immediately. The

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Respondent No.1 cannot refuse to sanction the said posts now on the basis

of the impugned decision taken at the meeting held on 20.2.2014. The

said order will be applicable prospectively, and the same cannot be made

applicable retrospectively to the proposals which were made long back,

but were kept undecided by the Respondent No.1.

7. It is urged that the decision taken on 20.2.2014, deciding not to

sanction the non teaching posts in respect of private aided Primary

Schools in the State of Maharashtra, is illegal and bad in law. Learned

counsel submits that every Primary School requires the services of a Junior

Clerk and a Peon for its day-to-day functioning; a Junior Clerk is required

to carry out the clerical work of the Primary School such as preparation of

salary bills, making correspondence with the Education Department and

other concerned offices, all other clerical work required for daily

functioning of the school etc.; the services of a Peon are also very much

required in every Primary School for different types of work such as

cleaning the school premises, ringing the school bells, circulating notices

in the schools amongst the staff and to the students in the class rooms, to

carry the correspondence of the school to the Management, to the

Education Officer, School Board etc. A Primary School therefore cannot

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function without a clerk and also without a peon. It is submitted that the

impugned order dated 20.2.2014 is totally illegal and without due

application of mind and without considering repercussions due to the said

decision.

8. Mr. Bandivadekar submits that in accordance with the impugned

order in view of the RTE Act and Rules, the non teaching posts cannot be

sanctioned in the aided Primary Schools. He submits that the said reason

is totally illegal and unsustainable. That only because in the RTE Act there

is no provision regarding appointment of non teaching employees in the

Primary Schools, that does not mean that no sanction should be granted

for new Clerk and new Peon in the existing Primary School and that even

the existing posts of non teaching employees in the private Primary

Schools should be abolished or declared surplus. There is no such

provision made either under the RTE Act or under the Maharashtra RTE

Rules, which requires the Government to abolish/declare surplus even the

existing sanctioned posts of non teaching employees in the Primary

Schools. That the Respondent has erred in not taking into consideration

the provisions of the BPE Rules framed under the BPE Act. In the absence

of any contrary provision in the RTE Act and the Rules, the Respondent

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ought to consider the provisions of the BPE Act and the Rules thereunder.

He submits that under Rule 115 of the Rules 1949, one Junior Clerk and

one Class IV servant is admissible for the Primary School having strength

of 500 or more. Hence, considering the said provision under the Rules

1949, even today the posts of Junior Clerk and Peon are admissible for

such Primary Schools.

9. The Petitioners state that under the above circumstances, it is

necessary to quash and set aside the impugned order dated 20.2.2014 so

far as it relates to non sanctioning of the non teaching posts in private

Primary Schools.

10. He submits that due to this inaction on the part of Respondent No.1,

in the interest of justice, it is necessary to direct the Respondent No.1 to

pass necessary order and to direct the Respondent No.2 to grant approval

to the appointment of Petitioner No.2 and 3 made in their respective posts

from the date on which they came to be appointed in those posts

respectively.

         Nikita Gadgil                                                           11 of 29



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11. On behalf of the respondents, a detailed affidavit in reply dated 9 th

March 2021 has been filed. It is submitted that pursuant to the coming

into force the RTE Act, the private primary schools which are run by

institutions registered either under the Maharashtra Public Trusts Act,

1950 or the Societies Registration Act, 1860 are expected to raise their

own resources and are not expected to rely fully on Government support.

It is then submitted that such organisations are expected to use their own

resources to the extent of at least 10% of their total expenses while the

Government bears the bulk of 90 % of expenses. It is further submitted

that the Right to Education Act has consciously not made any provision for

providing Government support for non-teaching staff in primary schools as

primary schools are not expected to have much requirement of non-

teaching staff such as librarian and lab assistant and that cleaning services

can be easily obtained by outsourcing.

12. It is also submitted that primary schools are not directly provided

support in terms of non-teaching staff but they are provided many other

types of support in view of non-teaching expenses which are not even

provided to secondary schools. Also the staffing pattern is applicable only

for secondary and higher secondary aided/partially aided schools. The

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Government does not even give any grant for non-teaching staff to Zilla

Parishad Primary Schools as they are expected to manage the same from

their own resources. The local bodies provide the services of non-teaching

staff informally to primary schools as and when required through their

own local resources and private aided schools are also expected to do the

same. It was also submitted that the Government does provide other major

support to primary schools which is not available to secondary schools.

The private aided primary schools are provided with free text books, free

mid-day meals and also lumpsum non-salary grant apart from salary

grant.

13. It is submitted that approximate expenditure incurred on about

5926 private aided schools for non-teaching purposes is approximately

Rs.2400 crores, in addition to Rs.6232 Crores on the salary of teachers of

primary schools run by private management in the State. To provide

additional financial support for non-teaching staff in the private primary

schools as that of the first petitioner, the State Government will have to

bear huge additional financial liability beyond the scope of the RTE Act.

That even in regular government offices, the State Government has taken

a decision of outsourcing class-IV employees instead of appointing them

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on regular posts in Government and semi-Government offices. It is

submitted that the school education department would also be bound by

such a policy. It was also submitted that with effect from 1 st April 2010

after the commencement of RTE Act, the Bombay Primary Education Act

1947 and the Rules framed thereunder have been repealed with effect

from 1st July 2013. Learned AGP, Mr. Patel, reiterates the above and

submits that the petition, therefore, does not merit any orders.

14. Mr. Bandivadekar, learned counsel for the petitioners rejoins that

even though by the coming into effect of the RTE Act, the Bombay Primary

Education Act 1947 has been repealed and even though there is no

provision in the RTE Act to provide for sanction to non-teaching posts, in

view of the fact that when the proposal of the first petitioner was

recommended by the Deputy Director Education, the first petitioner was

entitled to the sanction for one post of clerk and one post of peon in their

primary school.

15. Learned counsel also draws our attention to Rule 115(3)(a) of the

BPE Rules to submit that the actual expenditure on salaries which is paid

as grant to the school is also in respect of non-teaching staff as applicable

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to pay scale to similar employees of the State Government. Reference is

also made to Rule 115(3)(b) of the BPE Act to submit that such salaries of

one junior clerk and one class-IV servant in the approved pay scale similar

to State Government employees is granted in the case of a school having

strength of 500 or more. He reiterates that the RTE Act nowhere prohibits

grant-in-aid for non-teaching staff.

REASONS AND CONCLUSIONS

16. We have heard learned counsel Mr. Bandivadekar for petitioners and

Mr Patel, learned AGP for respondents and with their able assistance we

have perused the papers and proceedings in the matter.

17. Facts not being in dispute, the question to be answered is whether

the proposal requesting sanction to the two posts as recommended by the

Deputy Director, Director (Primary) of Respondent no.1 would survive in

the face of the repeal of the Bombay Primary Education Act 1947 and the

Bombay Primary Education Rules.

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18. Before we answer this question, a few relevant dates and events are pertinent :-

              Date                                   Event

        01/12/04               Petitioner No.2 appointed as Clerk.

        01/06/05               Petitioner No.3 appointed as Peon.

        12/04/06               Headmaster submitted proposal to the Municipal

Corporation for grant of approval for the said appointments.

26/08/07 The Corporation submitted a detailed proposal to Deputy Director of Education requesting for the said sanction.

12/02/08 Deputy Director of Education forwarded proposal to Director (Primary) Maharashtra State.

23/09/10 Director (Primary) Maharashtra State forwarded proposals to 1st Respondent requesting issuance of Government Order sanctioning the posts.

        01/04/10               RTE Act, 2009 comes into force.

        01/07/13      The City of Mumbai Primary Education, the

Maharashtra Primary Education, the Hyderabad Compulsory Primary Education and the Madhya Pradesh Primary Education (Repeal) Act, 2013 (the "Repeal Act") comes into effect.

19. The Right of Children to Free and Compulsory Education Act, 2009

("RTE Act") has been brought into force with effect from 1 st April 2010. It

is also to be noted that the Bombay Primary Education Act, 1947 came to

be known as the Maharashtra Primary Education Act, in 2012 (by

Maharashtra Act 24 of 2012).

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20. With a view to have uniformity in the primary education system and

strict implementation of the provisions of the RTE Act in the state of

Maharashtra, the State Government decided to repeal inter alia the City of

Mumbai Primary Education Act, 1920 the Maharashtra Primary Education

Act, 1947. As both houses of the State Legislature were not in session, an

Ordinance was issued by the Governor of Maharashtra repealing inter

alia the City of Mumbai Primary Education Act, the Maharashtra Primary

Education Act on 1st July 2003. The said Ordinance was replaced by an act

of the State Legislature and was known as Repeal Act which is deemed to

have come into effect on 1st July 2013.

21. It would now be pertinent to refer to the RTE Act as well as the BPE

Act to ascertain whether there are any saving clauses for acts or rights

accrued prior to the coming into effect of the RTE Act or the repeal of the

Bombay / Maharashtra Primary Education Act 1947. Having perused the

RTE Act we are unable to locate any provision which saves any acts or

rights that have accrued prior to the coming into force of the RTE Act.

22. However, Section 3 of the said Repeal Act is relevant and is quoted

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as under:

"3 (1) On the commencement of the City of Mumbai Primary Education, the Maharashtra Primary Education, the Hyderabad Compulsory Primary Education and the Madhya Pradesh Primary Education (Repeal) Act, 2013 (hereinafter referred to as "the said Act"),--

(a) the City of Mumbai Primary Education Act;

(b) the Maharashtra Primary Education Act;

(c) the Hyderabad Compulsory Primary Education Act, 1952; and

(d) the Madhya Pradesh Primary Education Act, 1956, shall stand repealed.

(2) On and from the date of commencement of the said Act,--

(a) the School Boards, Local Committees or any other Committees or Boards constituted under the repealed Acts and the rules made thereunder, shall stand dissolved at the expiry of their respective terms and the members shall vacate their offices accordingly ; such School Boards, Local Committees or any other Committees or Boards shall work under the superintendence, direction and control of the concerned local authority ;

(b) the concerned local authority may constitute School Boards, Local Committees or any other Committees or Boards as per their requirements and in accordance with the provisions of the law applicable to such local authority;

(c) all properties movable and immovable, and interests of whatever nature and kind therein, vested in the School Boards and Local Committees, immediately

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before the commencement of the said Act shall be deemed to be transferred to, and shall vest in the concerned local authority subject to all limitations and conditions and rights or interests of any person, body or authority in force or subsisting immediately prior to such commencement;

(d) all debts, liabilities and obligations incurred by School Boards and Local Committees, immediately before the commencement of the said Act and lawfully subsisting against any such School Boards and Local Committees shall be discharged and satisfied by the concerned local authority;

(e) every employee serving under the School Boards and Local Committees, immediately before the commencement of the said Act shall stand transferred to the concerned local authority, and the salaries and existing terms and conditions of service of such employees shall continue until duly altered or modified by the local authority : Provided that, the conditions of service applicable to such employees immediately before the commencement of the said Act shall not be varied to their disadvantage;

(f) the salaries and existing terms and conditions of service of the teaching and non-teaching employees of the schools established under the repealed Acts and appointed as per the Government orders, issued from time to time, shall be continued as per the existing Government policy until duly altered or modified by the Government: Provided that, the conditions of service applicable to such employees immediately before the commencement of the said Act shall not be varied to his disadvantage;

(g) the setup of the officers conferred with duties under the repealed Acts and rules made thereunder such as

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Director, Joint Director, Deputy Director, Education Officer, Deputy Education Officer and the like, appointed by the State Government, shall be continued until duly altered or modified by the Government;

(h) the Provident Fund, Gratuity, Pension and other benefits payable to the teaching and non-teaching employees of schools established under the repealed Acts, shall be maintained and paid by the concerned local authority as per the existing policy under the repealed Acts and the rules made thereunder ;

(i) the grants and rent payable to the schools established under the repealed Acts shall be paid by the Government as per the existing policy under the repealed Acts and the rules made thereunder until duly altered or modified by the Government;

(j) the Primary Education Fund maintained under the repealed Acts, shall stand transferred to the concerned local authority;

(k) the concerned local authority shall prepare the Budget in respect of the schools run by it in accordance with the provisions of the law applicable to such local authority;

(l) the powers of superintendence, inspection and control, in respect of the schools run by the Municipal Corporations shall be with the concerned Municipal Commissioner and other sub-ordinate officers authorized by him in that behalf; and in respect of the schools run by the Municipal Councils, Nagar Panchayats, Industrial Townships, and the Zilla Parishads, such powers shall be with the concerned Chief Officer or, as the case may be, the Chief Executive Officer and other sub-ordinate officers authorized by him in that behalf;

(m) the establishment of schools, syllabus,

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examinations, administration and all related matters shall be subject to the provisions of the Right of Children to Free and Compulsory Education Act, 2009;

(n) all directions or orders issued by the Government in respect of the repealed Acts and the rules made thereunder before the commencement of the said Act, not inconsistent with the provisions of the Right of Children to Free and Compulsory Education Act, 2009, shall be continued and applicable, unless altered, modified or revoked by the Government;

(o) all appeals of employees of the schools established under the repealed Acts relating to the service conditions filed and pending before any authority under the repealed Acts, shall be continued and disposed of by such authority, until a new authority is established by the Government.

(3) The repeal of the Acts under sub-section (1) shall not affect--

(a) the previous operation of the repealed Acts or anything duly done or suffered thereunder ;

(b) any agreement, contract, right, privilege, obligation or liability acquired, accrued or incurred under the repealed Acts; (emphasis supplied)

(c) any penalty, forfeiture or punishment incurred in respect of any offence committed under the repealed Acts;

(d) any investigation, legal proceedings or remedy in respect of any such agreement, contract, right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceedings or remedy may be instituted, continued or enforced as if the repealed Acts had not been repealed;

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(e) any appointments made by the School Boards and Local Committees, as per the Government orders, issued from time to time ; and (f) subject to the provisions of the Right of Children to Free and Compulsory Education Act, 2009, the schools established under the repealed Acts.

Explanation.--For the purposes of this section, the expressions " School Boards " and " Local Committees" means the Boards and Committees dissolved under clause (a) of subsection(2).

(4) Save as otherwise provided in this Act, the provisions of section 7 of the Maharashtra General Clauses Act, with regard to effect of repeal, shall apply."

23. Section 3(3)(b) of the Repeal Act is relevant. It stipulates that the

repeal shall not affect the previous operation of any enactment so repealed

or anything duly done or suffered thereunder; or affect any right

privilege/obligation or liability acquired, approved or incurred under any

enactment so repealed.

24. It is undisputed that the 1st petitioner's proposal for sanction of the

post of one clerk and one peon had been made to the first respondent duly

recommended by the Deputy Director of Education and the Director

Primary. It is quite apparent that the proposal for sanctioning the above 2

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posts were submitted to the 1st Respondent prior to the coming into force

of the Repeal Act on 1st July, 2013 as well as the Minutes of Meeting dated

20th February 2014.

25. The Petitioners had acted on the basis of the applicable provisions of

the BPE Act and the Rules and submitted their proposal for sanction to the

local authority who in turn submitted to the Deputy Director who in turn

submitted to the Director (Primary), Maharashtra State and the Director

(Primary), Maharashtra State submitted the proposal to the Government

on 23rd September 2010, much prior to the coming into effect of the

Repeal Act on 1st July 2013.

26. It is also important to note that the petitioner no.1 had commenced

the process of sanction of the proposal with respect to Petitioner Nos. 2

and 3 even prior to the coming into effect of the RTE Act on 1 st April 2010.

Also the submission of the proposal by the Director (Primary),

Maharashtra State to the 1st Respondent was also prior to the coming into

effect of the Repeal Act on 1 st July 2013. Therefore, in our considered view

in accordance with Section 3(3)(b) of the Repeal Act a right or a privilege

had accrued in favour of the Petitioner under the Repeal Act which in

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accordance with the Section quoted above shall not be affected.

27. It is also not in dispute that the petitioners were otherwise qualified

to obtain the grant of approval under the BPE Act and the BPE Rules.

However, as can be seen from the submissions made on behalf of the

respondents that in view of the RTE Act which provides for sanction/

approval of the teaching staff of primary private schools, the non-teaching

posts could not be sanctioned to the private primary schools and the

existing posts would be declared surplus thereby failing to sanction

Petitioner's proposal. While it may be true as submitted on behalf of the

respondents that the Government's policy is to outsource class-IV

employees or non-teaching staff as it may be strung on financial resources

already spending more than 6000 crores on the salary of teachers of

private primary schools and approximately 2400 crores towards non-

teaching expenses for such schools, but that argument would hold good if

first petitioner would have either made the application after the coming

into force of the Repeal Act or that it was otherwise not qualified to obtain

the approval.

28. The proposal of the first petitioner duly recommended by the

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authorities sent to the first respondent gives rise to a right or privilege

accrued in favour of the petitioners to receive sanction/approval of the

two posts as the said actions/right/privilege were prior to the repeal of the

BPE Act. As noted above, the RTE Act does not provide for any clause on

repeal or saving and therefore, in our considered view in accordance with

Section 3(3)(b) a right or a privilege had accrued in favour of the

Petitioner under the Repeal Act which in accordance with the Section

quoted above shall not be affected. Therefore, the State Government

ought to have considered the proposal in respect of the Petitioner in

accordance with the now repealed BPE Act and Rules and could not have

vide its Minutes of Meeting dated 20 th February 2014 stated that "in view

of the RTE Act, the non-teaching posts could not be sanctioned to private

primary schools and that the posts which were in existence would be

declared surplus and that the non-teaching employees in the private

primary schools should be absorbed in those posts if vacant posts were

available in the secondary and higher secondary schools".

29. The provisions of the BPE Act and BPE Rules would therefore

have application in the case of the petitioner. Rule 115 of the BPE Rules

which is relevant for the purpose, is quoted as under:-

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                                      26             WP 6537-14.odt

"115. Determination of grant:- (1) Normally grant paid to an approved private school in any year is the grant for that year and shall be calculated on the basis of the total admissible expenditure of the preceding year : provided that no grant for approved schools shall be paid in any year unless the average attendance of the pupils is 25 or above in Standards I to IV and 20 or above each in Standards V and VI, and 15 and above in Standards VII during preceding year.

(2) The maximum maintenance grant for an approved private schools shall be 66 2/3 percent of the admissible expenditure on approved items of the preceding year or net deficit, whichever is less.

(3) For the purposes of sub-rule (2), the admissible expenditure includes-

(a) the actual expenditure on salaries of approved pay-scale laid down from time to time by the Department on the number of admissible teaching and non-teaching staff applicable to similar employees in the service of the State Government.

Explanation:- For the purpose of clause (a), the admissible teaching staff shall be determined as follows, namely:-

(i) For private primary schools running Standard I to IV only, the number of teachers admissible should be decided according to the average number of students on roll per month in the preceding year. One teacher should be held admissible for an average of 40 students on roll. If 11 students exceed the average of 40, one additional teacher should be held admissible. If the average students on roll exceed 200 one additional teacher should be held admissible. For example, if the average number of students on roll is 200 to 210, then 6 teachers should be held admissible (5teachers according to the ratio of 1 teacher for 40 students and 1 additional teacher for the reason that the average strength exceeds 200);

(ii) For private primary schools running Standards I to V, I to VI or I to VII, 1 teacher should be held admissible for an average of 40 students in Standards I to IV and for each division of Standards V to VII 1-3 teachers should be

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27 WP 6537-14.odt

held admissible. In such schools no extra teacher should be held admissible when the average number of students of roll exceeds 200;

(iii) If the condition of average attendance prescribed for Standards V to VII is not fulfilled in any of these Standards, the admissible number of teachers for all the Standards from I to VII may be determined on the basis of one teacher per 40 students on the total average monthly enrollment and one additional teacher if the total average monthly enrollment of the school exceeds 200;

(b) Salaries of one Junior Clerk and one Class IV servant in the approved pay-scale applicable to similar employees in the service of the State Government in case of school having strength of 500 or more. (emphasis supplied)

(c) Leave salaries, that is to say, the expenditure incurred by the management of a school on account of leave salaries paid to its employees provided the leave granted is within the limits of leave rules.

(d) Provident Fund contribution, that is to say, the contribution paid by the management of a school to the approved P. F. Scheme in respect of its employees.

(e) The amount of rent, taxes and insurance.-

(a) Rent

(i) Reasonable rent for the school building provided the rent is actually paid, and a certificate regarding reasonableness is obtained from the Executive Engineer of the Buildings and communications Department within whose jurisdiction the school building is situated.

(ii) Charges on account of taxes on school buildings provided these are actually paid by the management in respect of school building of which no rent is paid.

Example:- The total cost of a school building is Rupees on lakh. Assuming that a building grant of Rs. 20,000 was paid by Government to the school for construction of the school building and the remaining amount of Rs.

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                                      28             WP 6537-14.odt

80,000/- was collected from donations or their own fund or loans from Government or from any other source. The amount of Rs. 80,000 is thus exclusive of the building grant. 7 1/2 percent of this cost."

30. The above Rule clearly authorises sanction of grant of actual

expenditure on salaries of approved pay scale on admissible teaching as

well as non-teaching staff and Explanation (iii)(b) refers to salaries of one

junior clerk and one class IV servant in a school having a strength of 500

or more. Undisputedly, the Petitioners meet the criteria.

31. In this view of the matter, we are inclined to exercise our writ

jurisdiction in the matter. The decision at item No.4 of the Minutes dated

20th February 2014 is not tenable in the circumstances and is accordingly

quashed and set aside.

32. We accordingly direct the first respondent to grant the proposal of

the first petitioner for sanction of one post of clerk and one post of peon in

respect of petitioners no. 2 and 3 in accordance with our aforesaid

observations and release grant and other dues payable on such approval

from the initial date of appointment of the petitioners no.2 and 3 within

four weeks from today.

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                                     29              WP 6537-14.odt

33. We direct the first respondent to enter the name of the petitioners

no. 2 and 3 in Shalarth ID within two weeks from the date of granting

approval in the name of the petitioners no. 2 and 3 to the said post.

34. Rule is made absolute in the above terms. Writ petition is disposed

with no order as to costs. Parties to act on the authenticated copy of this

judgment.

 (ABHAY AHUJA, J.)                                     (R.D. DHANUKA, J.)




         Nikita Gadgil                                                           29 of 29