Bombay High Court
Smt. Deepali Amit Shinde( Nee ... vs The State Of Maharashtra Through ... on 6 February, 2024
Bench: Nitin Jamdar, M.M. Sathaye
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
WRIT PETITION NO. 1182 OF 2024
Anuja Sangram Kadam. ... Petitioner.
V/s.
State of Maharashtra and others. ... Respondents.
WITH
WRIT PETITION NO. 1493 OF 2024
WITH
WRIT PETITION NO. 16161 OF 2023
WITH
WRIT PETITION NO. 4460 OF 2022
WITH
WRIT PETITION NO. 9877 OF 2022
WITH
WRIT PETITION NO. 4463 OF 2022
SANJAY
KASHINATH WITH
NANOSKAR WRIT PETITION NO. 9900 OF 2022
Digitally signed by
SANJAY KASHINATH
WITH
NANOSKAR
Date: 2024.02.13
WRIT PETITION NO. 8007 OF 2021
15:32:52 +0530
WITH
WRIT PETITION NO. 9524 OF 2022
WITH
WRIT PETITION NO. 9525 OF 2022
WITH
WRIT PETITION NO. 5058 OF 2021
WITH
WRIT PETITION NO. 10933 OF 2022
WITH
WRIT PETITION NO. 7246 OF 2018
WITH
WRIT PETITION (ST.) NO. 5450 OF 2019
WITH
WRIT PETITION NO. 4236 OF 2019
WITH
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WRIT PETITION NO. 9768 OF 2019
WITH
WRIT PETITION NO. 8784 OF 2018
WITH
WRIT PETITION NO. 9192 OF 2018
WITH
WRIT PETITION NO. 1800 OF 2022
WITH
WRIT PETITION NO. 155 OF 2024
WITH
WRIT PETITION NO. 187 OF 2024
WITH
WRIT PETITION NO. 3237 OF 2019
WITH
WRIT PETITION NO. 6831 OF 2019
WITH
WRIT PETITION NO. 12314 OF 2019
WITH
WRIT PETITION NO. 9230 OF 2022
WITH
WRIT PETITION NO. 9269 OF 2022
WITH
WRIT PETITION NO. 9273 OF 2022
WITH
WRIT PETITION NO. 13435 OF 2022
WITH
O.S.WRIT PETITION (L) NO. 9595 OF 2023
Mr.Meelan Topkar i/b. Pavitra Manesh for Petitioners in WP-
1182/24.
Mr. Vinod P. Sangvikar for Petitioner in WP-1493/24
Mr.Deepak Pote i/b. Sandeep B. Sontakke for the Petitioner in WP-
7246/18, 4236/19, 9768/19, 8784/18, 9192/18 and WP(ST.)-
5450/2019.
Mr.Mihir Desai, Senior Advocate with Ms.Rishika Agarwal for the
Petitioners in WPL-9595/23
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Dr. Uday Warunjikar for Respondent Nos.2 and 3 in WP-9192/18.
Mr. Utkarsh Desai for Respondent Nos.6 & 7 in WP/9269/2022.
Dr. Birendra Saraf, Advocate General with Mr.P.P Kakade,
Government Pleader for the Respondent-State in all writ petitions
along with Mr.V.M.Mali, AGP for the Respondent-State in WP-
16161/23, 4460/22, 7246/18 and WP(ST.)-5450/2019 along with
Ms.Nisha Mehra, AGP for the Respondent-State in WP-9900/22
and 12314/19 along with
Mr. R.M. Shinde, AGP for the Respondent-State in WP-9524/22,
1800/22, and 9525/22 along with
Ms. A.A. Purav, AGP for the Respondent-State in WP-10933/22
and 1493/24 along with
Mr.M.M. Pable, AGP for the Respondent-State in WP-155/24 and
187/24 along with
Mr. S.B. Kalel, AGP for the Respondent-State in WP-9230/22,
9269/22, 3237/19, 6831/19, 4236/19, 9768/19, 9877/22,,1182/24,
4463/22 and IA-3422/22 along with
Mr.K.S. Thorat, AGP for the Respondent-State in WP-13435/22.
Mr.Himanshu Takke, AGP for Respondent- State in WPL-9595/23.
CORAM : NITIN JAMDAR, AND
M.M. SATHAYE, JJ.
DATE : 6 February 2024.
P.C. :
We have grouped these Petitions, arising from the orders
of the Education authorities of the State, together for a reason, even
though they are not connected as such. The reason is that the
common factor in all these petitions is that the Petitioners are forced
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to approach this Court even though, in the majority of cases, the law
is already declared in their favor by this Court.
2. Routinely petitions are filed at the principal seat and
benches at Nagpur and Aurangabad arising from orders of the
Education Department, often running into four digits on issues
already ruled upon by this Court. Despite settling the law by judicial
pronouncements more than once, interpreting or setting aside the
Government Resolutions, Instructions, and Circulars, or interpreting
the concerned statutes, the Authorities of the Education Department
in each individual case repeat the same orders, which are set aside by
this Court. In the process, teachers or educational institutes are
forced to approach this Court to rely upon judicial pronouncements,
and the orders are required to be set aside. If the order is set aside by
the Court on one ground and remitted back to the Education
Authority, the same is rejected on the other ground. These needless
litigations have clogged the already crowded docket of this Court,
entailing expenses not only for the teachers and educational
institutes but also for the State.
3. On 19 March 2021, in Writ Petition (ST.)
No.5450/2019 and others, the following order came to be passed:
" This group of matters is one more instance were large
number of cases are being filed in spite of the law laid down
by this Court, because the State has not issued clarifactory
Government Resolution to bring the position in consonance
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with the law laid down and the officers are not passing the
orders in consonance with the law. We have not been shown
any order by which the legal position consistently laid down
is varied or set aside. Routinely such orders are passed by the
Authorities and following the law laid down, the Court is
setting aside the same.
2. The State will be well advised to take a note of this
situation. The State and the Central Government have a
litigation policy in place. Such non action/acts on the part of
the authority not only adds to the already crowded dockets of
the Courts, it also forces the teachers to come to the Court
spending time and money. To defend such matters, the
government machinery, is also burdened. We, therefore,
direct that a responsible officer who can take a decision will
remain present in the Court on the next date.
3. As of suitable date, the Additional Government
Pleader states that the concerned officer will remain present
in the Court on 30 March 2021.
4. Stand over 30 March 2021."
4. Thereafter, on 1 April 2021, the following order was
passed:
" These petitions, though unconnected, are placed on
board under the caption "For Directions" to enable the learned
Advocate General for the State to address the broader issue
that arises in these matters. A common feature is that the
impugned orders are challenged on the ground that they are
illegal since various orders by this Court have already been
passed covering the issue.
2. It has been brought to our notice that there are
specific recurring issues regarding which a large number of
petitions have been filed by teaching and non-teaching staff in
the State of Maharashtra. The recurring issues are, for
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instance: transfer from unaided to aided section; the benefit of
Carrier Progression Scheme to those working in Ashram
Shalas; qualifying period of service for the Librarians;
additional increment for the awardee teachers etc.
2. Once the position of law is laid down by this
Court and if the State does not challenge the view taken, there
is no reason why the State Government should not issue
clarificatory instructions to its Officers to bring the position in
consonance with the law laid down. That not being done, the
Education Authorities keep passing the same orders, which are
then challenged in writ petitions which simply annex the
impugned order and the orders already passed by this Court
and such impugned orders are then set aside following the
earlier decisions. Countless petitions keep getting filed on the
same subject by the teaching and non-teaching staff with the
same result, and we are informed that the number at the
Principal Seat and the Benches at Nagpur and Aurangabad of
such petitions would cross four digits. This is a creation of
needless litigation. The teaching and non-teaching staff are
forced to come to the Court, spending money and time. Time
also important as the petitioners can invest the same in
imparting education for which grants are paid by the State.
The State spends money on defending such petitions, and,
thus, the resultant position is of enormous social and
economic costs. Apart from adding to the already crowded
docket of this Court.
3. The learned Advocate General states that such a
situation will not be healthy and further states that a Study
Group would be set up to examine the issue and to find out in
which areas such recurring petitions arise where the issue is
already concluded by the orders of this Court. He states that
the information will be collected from the Principal Seat and
the Benches at Nagpur and Aurangabad and advocates so that
the Study Group can give suggestions as to how this type of
litigation does not arise in the first place.
4. At the request of the learned Advocate General to
inform us about the progress, stand over to 26 April 2021. To
be listed under the caption "For Directions"."
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5. Thereafter, the Government of Maharashtra issued a
Government Resolution dated April 26, 2021, whereby a Study
Group is set up. It is stated in the said Government Resolution that
the Study Group is set up in the School Education and Sports
Department to, inter alia, identify the common areas of disputes
between employees on the one hand and their employers or the
concerned authorities of the State Government on the other hand,
where recurring judicial proceedings arise out of issues or
controversies that have already been finally concluded by the
Judgments and Orders of this Court or the Supreme Court. This
Study Group was to give suggestions as to how this type of litigation
does not arise in the first place. This Study Group was to give
suggestions as to how, in respect of such disputes, the State
Government and, resultantly, the School Education and Sports
Department are able to put up a common as also consistent defense
in all such matters before the Courts. It was stated that the Study
Group shall meet the requirements as addressed by the Advocate
General and submit its suggestions at the earliest.
6. Further detailed order was passed on 30 July 2021 as
under:
" Pursuant to the order passed by this Court on 19th
March2021 and 1st April 2021 pointing out various issues
being raised in large number of petitions and though having
been concluded by one or other judgments of this Court or
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the Hon'ble Supreme Court, repeated orders are passed by the
authorities contrary to such judgments, we required the
intervention of the learned Advocate General in the matter.
2. It is submitted by the learned Advocate General that a
Study Group consisting of several members of Education
Department, Law Officers, Additional Government Pleaders,
Assistance Government Pleaders is formed, who would
consider the common areas of disputes between the
employees on the one hand and their employers or the
concerned authorities of the State Government on the other
hand, where recurring judicial proceedings arise out of issues
or controversies that have already been finally concluded by
the judgments and orders of this Court or Supreme Court.
The Study Group will also give suggestions as to how in
respect of such common disputes, the State Government and
reluctantly, the School Education and Sports Department is
able to put up a common and also consistent defence in all
such matters, before this Court. Learned Advocate General
produced a copy of the Resolution dated 26th April 2021 in
this regard. Copy of the said resolution is taken on record.
3. We are informed that State Government has also
formulated21 issues relating to School Education Department
which would be discussed by the State Government on
priority basis. Learned Advocate General assured this Court
that all these issues would be looked into at the earliest and
appropriate solution would be suggested to the Court to
reduce pending litigations on those issues and to obviate fresh
litigation on concluded issues.
4. It is submitted by the learned Advocate General that
the issues would be crystallized by the Study Group based on
the judicial verdict already declared by this Court and the
Supreme Court on various issues relating to the education
and would be circulated amongst all the officers of the
Education Department with a direction to follow such
decisions in every case where such decisions are applicable.
5. It is submitted that the issues which are not covered by
any of those judgments delivered by this Court or the
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Hon'ble Supreme Court, State Government in all such
matters pending before the Principal Bench as well as before
the Aurangabad bench and Nagpur Bench would file
standard affidavit so as to take consistent stand and to avoid
any conflicting decision. It is stated by the learned Advocate
General that the judgments which are already pronounced by
this Court and the Hon'ble Supreme Court if required to be
reconsidered, according to the State Government, the State
Government would consider whether to file review petitions
or to challenge those judgments of this Court before the
Hon'ble Supreme Court or not. In this regard, appropriate
decision would be taken by the Government on or before
13th August 2021.
6. Dr. Warunjikar, learned counsel for the Zilla Parishad
in some of the matters makes a suggestion that there should
not be any conflict between the State Government and Zilla
Parishad in the matters arising before this Court in such
matters. His suggestion is that State Government shall issue
circular to all the Zilla Parishad clarifying its stand in the
matters including the stand on the question of law as well as
on interpretation of the circular issued by the State
Government from time to time in such matters. Learned
Advocate General states that the suggestion given by
Dr.Warunjikar has already been taken care of.
7. Mr.Sontakke, learned counsel for the petitioners in
some of the matters states that large number of the orders are
passed by the authorities contrary to the judgments of this
Court and the Hon'ble Supreme Court. The litigants are
unnecessarily required to spend time and money. He states
that the Government shall take an appropriate decision on
the issue involved at the earliest and shall not render any
conflicting orders.
8. We accept the statements and the assurance made to
this Court by the learned Advocate General. We also make
the following suggestions:-
(i) The State Government to consider whether the
Education Officers and higher authorities who are
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empowered to pass such quasi judicial orders whether
should be law graduate or at least should have legal
background. State Government to make such statement
before this Court on the next date.
(ii) he pension matters shall be given priority by the
authorities and shall be disposed of at the earliest and
not later than four weeks from the date of receipt of such
applications.
(iii) The representations made by the litigants remain
pending before the authorities for years together. The
authorities shall dispose of such representations in
accordance with law at the earliest and not later than
eight weeks from the date of receipt of such
representations.
(iv) It is made clear that today we are adjourning these
matters to enable the State Government to take
appropriate decision by discussing the matters through
Study Group or via intervention of the learned Advocate
General.
(v) We reasonably expect that large number of litigations
would be resolved with the intervention of the learned
Advocate General and the Study Group. We are
reluctant to state that passing any orders by the
authorities in gross and deliberate defiance of the
judgments of this Court and the Hon'ble Supreme Court
may invite action under Contempt of Courts Act, 1971.
Parties shall not be forced to approach the Court and
spend time and money on unnecessary litigations. Such
unnecessary litigation takes lot of precious time of the
Court.
(vi) The petitioners are also free to give valuable suggestions
to the learned Advocate General within one week from
today and if any suggestion are received, such suggestion
also shall be looked into by the learned Advocate
General and shall take appropriate decision thereon.
9. Place the matter High on board on 13th August 2021,
preferably before the physical Court.
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7. Thereafter, on 7 March 2022, the following order came
to be passed:
" Heard learned Counsel for the parties.
2. It is pointed out to us that on the statement made by
learned Advocate General regarding constitution of Study
Group consisting of staff members of Education Department,
Law Officers, Additional Government Pleaders, Assistant
Government Pleaders, that this Court directed that the matter
to be placed 'High on Board' on 13th August2021 expecting
that the report of the Study Group would be placed before this
Court for its appropriate consideration, however, period of six
months has gone by but the report is not before this Court.
3. Resultantly, this matter is pending and the similar other
matters involving similar issues are also pending. It will be
appropriate that the Study Group comes out with its own
views based upon the decisions of the Apex Court and
different Benches of this Court and also the GRs issued from
time to time and also its own decision on the suggestions given
by this Court in the order dated 30th July 2021.
4. Learned AGP submits that if additional time is granted,
she would take instructions in the matter.5.Stand over to 21st
March 2022."
Since the inflow of such petitions remained unabated, we called
upon the learned Advocate General to address us on the steps taken
by the State Government in that regard. The learned Advocate
General accepted that there is no further progress in the Study
Group. We have already noted that the resultant position is of
enormous social and economic consequences. The learned Advocate
General assured the Court that the matter will be looked into
seriously.
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8. The learned counsel for the parties have also given their
suggestions. One such suggestion is with regard to an amendment to
section 9 of the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977 (MEPS Act) to enlarge
the jurisdiction of the School Tribunal constituted under section 8 of
the MEPS Act. Under section 9, the School Tribunal can decide
disputes between the employees of the private schools and the
management only in regard to dismissal or removal of the employee,
or whose services are otherwise terminated, or who is reduced in
rank by the order passed by the management, or who is superseded
by the management while making an appointment to any post by
promotion. As regards other incidental service disputes, there is no
remedy for the teachers to the School Tribunal, forcing the
employees either to resort to writ jurisdiction or resort to other
remedies. In this regard, the State of Maharashtra issued a
Government Resolution dated 1 October 2019, constituting a
Grievance Cell for deciding disputes between the employees and the
management other than those provided under section 9 of the Act of
1977. However, as regards the implementation of the orders of the
Committee, there is no mechanism. The learned Advocate General
states that the State is exploring the possibility of amending section 9
of the Act of 1977. He states that if the advocates for the Petitioners
seek to give inputs in that regard, the same would be conveyed to the
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State Government. This is in respect of litigations between the
employees and the management.
9. The next area concerns the petitions filed at the principal
seat and the benches of this Court at Nagpur and Aurangabad in the
State of Maharashtra, which involve the tripartite relationship
between the employees, management, and the State Government,
either for approval of appointments, transfers, increments, pension
etc. When a proposal is submitted by the management, the
Education Authorities often reject it without giving an opportunity,
citing grounds that have already been ruled upon by this Court. This
necessitates the management or the employee to approach this Court
to set aside the order in each case. Often, reply affidavits are filed by
the Education Authorities, taking grounds which were not taken in
the impugned order. In a series of orders passed by this Court, for
example in Writ Petition Nos. 16642/2023, 91/2024, 10225/2023,
2334/2023, 11455/2023, 5100/2023, 8367/2022, and several
others, we have converted the orders of rejection to show cause
notices. We have also directed the Education Authorities to
communicate their proposed grounds of rejection of approval to the
Management, if any, within a stipulated period. Subsequently, the
Management is required to submit its explanation to the proposed
grounds along with supporting materials and case laws/orders of this
Court. Furthermore, we have directed the Education Authorities to
decide the pending proposals by considering the explanation given
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by the Management, as well as by referring to case law/orders of this
Court, and to pass a reasoned order within a stipulated period from
the receipt of the explanation from the Management. A Government
Resolution was issued by the State on 6 February 2012- whereby the
directions issued by this Court in the aforementioned petitions were,
in fact, the methodology as stated by the State itself. Yet, the same is
not being followed.
10. According to us, the State should streamline the process
to entertain and decide the applications for consideration of
approval. The procedure can reiterate what is stated in the
Government Resolution dated 6 February 2012 with elaboration. It
should also state that before if any adverse order is to be passed on
the proposal, the Education Authorities will inform the proposed
grounds of rejection, giving an opportunity to the one who has
submitted the proposal to respond. After dealing with the response
and any cited judicial pronouncements, if applicable, a reasoned
order should be passed. This would obviate the filing of a reply by
the State, and such an order would be a speaking order.
11. The State can also consider creating an appellate forum
from the order passed by the Education Officer regarding approval,
where an opportunity can be given to the teacher/management, as
the case may be to challenge the order of rejection, and a reasoned
order can be passed. This would substantially reduce litigations, as
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both the Education Officer and the Appellate forum would deal with
the judicial pronouncements cited before them, as many of the
points raised by them are already covered by the judicial
pronouncements.
12. The learned Advocate General assures us that all these
aspects and creation of appellate authority would be seriously looked
into by the State Government as the State also does not find such
needless litigation as a healthy state of affairs.
13. Stand over to 27 February 2024 at 2.30 p.m., to be listed
under the caption "For Directions".
14. The learned Advocate General states that he is open to
suggestions from the counsel for the parties. In that regard, it would
be fruitful if the learned Advocate General holds a meeting with the
counsel for the parties so that, on the next date, positive steps taken
can be reported to the Court.
(M.M. SATHAYE, J.) (NITIN JAMDAR, J.)
