Bombay High Court
Vijay Damodar Khude And Ors vs The State Ofmaharashtra Thru Prin. ... on 8 May, 2024
Author: M.M. Sathaye
Bench: Nitin Jamdar, M.M. Sathaye
JPP 1 29. WP-8786-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8786 OF 2021
Gayatri w/o Subhash Mule and Ors. ... Petitioners
V/s.
The State of Maharashtra and Ors. ... Respondents
with
INTERIM APPLICATION NO. 3003 OF 2019
in
WRIT PETITION NO. 8786 OF 2021
The State of Maharashtra through the
Maharashtra Prathamik Shikshan Parishad
through Project Director ... Applicant
V/s.
Gayatri w/o. Subhash Mule and Ors. ... Respondents
with
WRIT PETITION NO. 4788 OF 2022
Sharad Vinayak Chavan and Ors. ... Petitioners
V/s.
The State of Maharashtra and Anr. ... Respondents
with
WRIT PETITION NO. 6553 OF 2022
Krushna s/o Ramdas Gode and Ors. ... Petitioners
V/s.
The State of Maharashtra and Anr. ... Respondents
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with
INTERIM APPLICATION NO. 17978 OF 2022
in
WRIT PETITION NO. 6553 OF 2022
Shamsundar s/o Kautikrao Katkar & Ors. ... Applicants
V/s.
Krushna s/o Ramdas Gode and Ors. ... Respondents
with
INTERIM APPLICATION NO. 17549 OF 2023
in
WRIT PETITION NO. 6553 OF 2022
Avinash s/o Madhukar Changale & Ors. ... Applicants
V/s.
Krushna s/o Ramdas Gode and Ors. ... Respondents
with
INTERIM APPLICATION (St.)NO. 13071 OF 2024
in
WRIT PETITION NO. 6553 OF 2022
Navnath Ganpat Bhokare & Ors. ... Applicants
V/s.
The State of Maharashtra and Anr. ... Respondents
with
WRIT PETITION NO. 193 OF 2023
Maheshkumar s/o Audappa Pujari & Ors. ... Petitioners
V/s.
The State of Maharashtra and Anr. ... Respondents
with
WRIT PETITION NO. 10487 OF 2023
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Vijay Damodar Khude & Ors. ... Petitioners
V/s.
The State of Maharashtra and Or. ... Respondents
Mr. S.B. Talekar wit Ms. Madhavi Ayyappan i/b. Talekar & Assoc.
for the Petitioners in WP 8786/21 and 10487/23
Mr. Arvind Ambetkar for the Petitioners in WP Nos.4788/22,
6553/22 and 193/23
Mr. Deelip Patil Bankar for Respondent No.3 - MPSP
Mr. B.V. Samant, Addl. G.P. with Ms. Pooja Joshi Deshpande, AGP
for the Respondent - State
CORAM: NITIN JAMDAR &
M.M. SATHAYE, JJ.
DATE: 8 MAY 2024
P.C. :-
Heard the learned Counsel for the parties.
2. The Petitioners-Part Time Instructors, 1349 in number
in one Petition and others in the other two Petitions, are before us.
3. What emerges is a sorry state of affairs regarding the
plight of part-time Instructors who teach Art Education, Health and
Physical Education, and Work Education in the primary schools run
by the various Zilla Parishads in Maharashtra.
4. The Petitioners are challenging the Government
Resolution dated 1 September 2017 issued by the Government of
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Maharashtra on the ground that the Government Resolution/Policy
is contrary to the decision of this Court under the Right of Children
to Free and Compulsory Education (RTE) Act, 2009. The
Petitioners pray that they be appointed as part-time instructors as per
Sections 19 and 23 and Schedule I of the Act of 2009.
5. The Petitioners have heavily relied on the decision in
Writ Petition No. 7106 of 2013, Balaji Kisan Ade and Ors. V/s.
State of Maharashtra & Ors. dated 9 May 2014. In this decision, the
Division Bench of this Court (Aurangabad bench) of this Court
considered a group of petitions filed by the craft or physical
instructors in the primary schools run by the Zilla Parishads of
Aurangabad, Beed, Hingoli and Others. It was the case of the
petitioners that a substantial number of part-time instructors post in
Art, Craft and Physical Education posts were sanctioned. However,
even though the Act of 2009 has been brought into force, the
Instructors do not have any security of tenure. The Division Bench
analyzed the provision of Act of 2009 and framed question as to
whether the State Government is under obligation to formulate a
policy to give meaning and effect to the provisions of Act of 2009
and whether the Constitution of India and the provision of Act of
2009 mandate the appropriate Government who is under obligation
to perform its role under the Constitution of India and provisions of
Act of 2009. The Division Bench referred to and relied upon Article
21A of the Constitution of India and analyzed the duties of the
JPP 5 29. WP-8786-2021.doc
appropriate government and other entities under the Act of 2009.
The Division Bench also analyzed the Schedule appended to the Act
of 2009. After considering the contentions of the Petitioners, the
Division Bench, in paragraph 111, of the judgment, observed that the
State Government has to formulate its policy on permanent
infrastructure and also appointments on a permanent basis as long-
term measures to perform its constitutional and statutory obligations
to take a decision in the light of the discussion. Thereafter, in
paragraph 118, the Division Bench issued various directions,which
are 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.
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
201314 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
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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 201314 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 201314, for
the failure of State Government in not formulating
permanent policy document.
iv) The State Government keeping in view the
provisions of Article 21A 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 5 th 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.
JPP 7 29. WP-8786-2021.doc
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
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 hours/work 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 Government, as sanctioned reflected
by in the State 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.
(emphasis supplied)
Thus, the Bench directed the State Government to take the decision
to for appointments of the Instructors on a permanent basis as a
long-term measure so as to perform its constitutional and statutory
obligations under the provisions of the Constitution of India and the
Act of 2009. This decision is not challenged, modified or set aside.
6. Another set of Petitions came up for consideration of the
Division Bench of this Court (Aurangabad Bench) in the case of
Arvind Dattarao Tupkari v/s. The State of Maharashtra (Writ
JPP 8 29. WP-8786-2021.doc
Petition No.12238 of 2017) and Ors. In this case, the Division
Bench considered the challenge on the grounds that the State
Government has failed to create a permanent cadre of part-time
teachers in spite of the directions of the Court and that the State is
offering honorarium instead of making the provisions of salary and
the due weightage should be given while considering selection of
candidates. The Court rejected the contention of the Respondent -
State that there was no direction of the Division Bench in the case of
Balaji Ade for the creation of the permanent cadre and that it was
only the submission of the Petitioners. The Division Bench referred
to the observations in the case of Balaji Ade regarding the fluctuating
number of students and that the instructors have to be appointed if
the strength of students in sixth to eighth standard classes is at least
one hundred. After observing this, reference was made to the
observations in Balaji Ade regarding the weightage to be given. The
Division Bench, in the case of Arvind Tupkari, partly allowed the
petitions and directed the State Government to frame a fresh policy
in respect of the creation of a permanent cadre for the posts of part-
time instructor and the emolument to be paid within a reasonable
period. The Division Bench did not accept the petitioners' prayer for
permanency.
7. When the present Petitions came up on board on 13
November 2017, while issuing notice, the Division Bench directed
the parties to maintain status-quo.
JPP 9 29. WP-8786-2021.doc
8. The first grievance of the Petitioners is that due to
misinterpreting the order of status-quo, the appointment of part-
time instructors are not continued in the schools even though the
school have crossed the students' strength above 100. Query was put
to the learned Addl. G.P. as to the position. The learned Addl. G.P.,
on instructions, informed us that currently, in view of the status-quo
order, no appointments are being made. This is a complete
misinterpretation of the order of the status quo. This Court granted
the order of status quo at the Petitioners' request so as to protect
their services. However, this order did not intend that no
appointment of part-time Instructors be made even where it is
necessary and the post is vacant. Further, what is a matter of concern
is that, as of today, there are no part-time Instructors in many
schools. This erroneous interpretation of the State Government has
affected the students, who are left without instructors to teach them.
9. Since the State Government had come up with the
policy pursuant to the orders of this Court in the case of Balaji Ade
and on five occasions, it had to be set aside on the ground that it
infringed the orders of this Court. The Division Bench of this Court,
by order dated 19 January 2021 in these Petitions, had directed that
a working draft of the policy should be placed before the Court.
10. The Petitions were adjourned from time to time for
placing the draft policy on record. Various orders have been passed.
JPP 10 29. WP-8786-2021.doc
On 2 April 2024, the following order came to be passed :-
" Heard learned Counsel for parties.
2. In the order dated 23 February 2024, we have given
the background of the controversy and deferred the
matter till today to enable the State to examine draft
policy, so that it does not conflict with any decisions of
this Court holding the field. We had directed that the
exercise is to be carried out by today and reply to be
filed by a responsible officer either by the Secretary of
the concerned department or vetted by the Secretary.
3. Today the learned AGP seeks time. No affidavit is
filed. Learned Counsel for the Petitioners oppose grant
of any further time, stating that judgment of this Court
dated 9 May 2014 is not complied with till date and
whenever the State Government has come up with a
faulty policy, it has been set aside.
4. Learned AGP has shown us a draft policy which
was stated to be prepared some time in the year 2021.
This policy refers to a scheme with contribution from
the Central Government and State Government in
60:40 percent ratio. The scheme postulates absorption
of the similarly situated persons as like Petitioners in
phase wise manner. The policy contemplates a
honorarium at the rate of Rs.7,000/- per month.
Learned Counsel for the Petitioners submits that even
Rs.7,000/- is not received by many of the Petitioners
and other similarly situated persons, as the
Respondents are trying it up to per hour basis
honorarium.
5. Learned AGP submitted that honorarium should be
paid per hour with the maximum of Rs.7,000/-. The
JPP 11 29. WP-8786-2021.doc
draft policy however, refers to monthly honorarium of
Rs.7,000/-. It refers to the amount of Rs.7,000/- being
sanctioned by the Central Government for the
academic year 2020-2021. Clearly the amount of
Rs.7,000/- as of today in the year 2024 per month is
not substantial. Though it is sought to be argued that
the Petitioners and others would work for only few
hours in a day, as far as the work-day of the said
employees is concerned, it will have to be devoted for
this work. Perhaps that is why, there is reference of
monthly honorarium in the draft policy.
6. We also note the submission made before this
Court which is recorded in the order dated 21 October
2020 in Writ Petition No. 12238 of 2017 and others,
recording that in State of Kerala, the consolidated pay
@ Rs. 14,000/- is paid. Though the Central
Government may have sanctioned Rs.7,000/-, keeping
in mind its own share, prima facie nothing stops the
State Government to increase its share to bring
monthly honorarium to a reasonable amount. As
pointed out to us, even the persons on Employment
Guarantee Scheme would get more amount per day
than Rs. 7,000/- per month.
7. Therefore, though we defer hearing of these writ
petitions at the request of the learned AGP to 30 April
2024, we direct that as per the draft policy, the
Petitioners and similarly situated persons working as
Craft Instructors or Physical Instructors or Sport and
Health Instructors shall be paid Rs.7,000/- per month
as honorarium from this month. The State will
however demonstrate before us on the next date, as to
why it cannot increase its shares to the amount which
is reasonable as of the year 2024, keeping in mind the
amount which is paid by the State of Kerala in the year
JPP 12 29. WP-8786-2021.doc
2020 was Rs.14,000/-.
8. We put the State to notice that if we do not find
that there is any embargo on the State to increase its
contribution, then the Court may consider directing it
to increase its contribution to an amount which is
commensurate with minimum wage to be paid under
the Employee Guarantee Scheme.
9. As regards the work to be given to the Petitioners
there is consensus at the bar that the same should not
be restrained. Therefore, we clarify that the order of
status quo in these petitions is not an embargo for the
Petitioners and other similarly situated persons being
given work."
On 2 April 2024 copy of the draft policy was shown to us wherein
we observed that Rs. 7,000/- is referred to has been paid monthly
and we also expected the State Government to keep in mind that the
State of Kerala paying Rs.14,000/- and consider whether the amount
could be increased.
11. Now an affidavit is filed by the Deputy Secretary, School
Education, annexing the copy of the draft policy is tendered. The
draft policy refers to payment on per lecture basis. Per lecture the
amount is around Rs. 75 with not more than 8 lectures per month.
As regards the appointments of Instructors, it is stated that the
appointments would be made on a lecture basis on contract for a
period of 10 months, from 15 June to 15 April. The Instructors for
the remaining two months will not be paid.
JPP 13 29. WP-8786-2021.doc
12. The learned Counsel for the Petitioners rightly points
out that this mode of appointment was not contemplated in the
decision of the Division Bench of this Court in both Balaji Ade and
Arvind Tupkari. In the case of Balaji Ade, the Division Bench clearly
expressed that the appointment should be made on a permanent
basis as a long-term measure to conform to the Constitutional and
statutory obligation. In the case of Arvind Tupkari, the Division
Bench has directed the creation of permanent cadre for the post of
part-time instructor.
13. The Schedule appended to the Act of 2009 also does not
refer to appointment on contract basis. It only specifies that where
the admissions of children in schools is 100 or more, the part time
instructors subject to what is specified therein be appointed. The
draft policy now presented again has stepped the Schedule as
interpreted by this Court and brought in a methodology based on
contract.
14. In order to ensure quality education for students, it is
important to keep their needs and interests at the forefront while
formulating policies for the appointment of instructors. This is in
line with the Act of 2009, which has been enacted pursuant to
obligations under Article 21A of the Constitution. However, despite
the draft policy, it has been set aside four times in contravention of
JPP 14 29. WP-8786-2021.doc
this broader principle, the State Government is once again placing a
draft policy that seeks to introduce a method of appointments on a
contract basis. The policy should be aimed at enhancing the quality
of education being provided to students, while also ensuring that
instructors receive fair compensation for their services and security
of tenure.
15. The Hon'ble Supreme Court has deprecated such
practices in the education field. In Rabinarayan Mohapatra v. State
of Orissa,1 the Supreme Court has observed thus:
5. We have heard Mrs Uma Mehta Jain, learned Counsel for
the appellant. This Court in Rattan Lal v. State of Haryana
[(1985) 4 SCC 43 : 1985 SCC (L&S) 938 : AIR 1987 SC 478]
speaking through Venkataramaiah, J. (as the learned Judge
then was) observed as under: (SCC pp. 44-45, paras 1 and 3)
"The State Government of Haryana has failed to
discharge that duty in these cases. It has been appointing
teachers for quite some time on an ad hoc basis for short
periods as stated above without any justifiable reason. In
some cases the appointments are made for a period of six
months only and they are renewed after a break of a few
days. The number of teachers in the State of Haryana
who are thus appointed on such ad hoc basis is very large
indeed. If the teachers had been appointed regularly,
they would have been entitled to the benefits of summer
vacation along with the salary and allowances payable in
respect of that period and to all other privileges such as
casual leave, medical leave, maternity leave etc. available
to all the government servants. These benefits are denied
(1991) 2 SCC 599
JPP 15 29. WP-8786-2021.doc
to these ad hoc teachers unreasonably on account of this
pernicious system of appointment adopted by the State
Government. These ad hoc teachers are unnecessarily
subjected to an arbitrary 'hiring and firing' policy. These
teachers who constitute the bulk of the educated
unemployed are compelled to accept these jobs on an ad
hoc basis with miserable conditions of service. The
government appears to be exploiting this situation. This
is not a sound personnel policy. It is bound to have
serious repercussions on the education institutions and
the children studying there. The policy of 'ad hocism'
followed by the State Government for a long period has
led to the breach of Article 14 and Article 16 of the
Constitution. Such a situation cannot be permitted to
last any longer. It is needless to say that the State
Government is expected to function as a model
employer...
We strongly deprecate the policy of the State
Government under which 'ad hoc' teachers are denied
the salary and allowances for the period of the summer
vacation by resorting to the fictional breaks of the type
referred to above. These 'ad hoc' teachers shall be paid
salary and allowances for the period of summer vacation
as long as they hold the office under this order. Those
who are entitled to maternity or medical leave, shall also
be granted such leave in accordance with the rules."
6. The Validation Act has been enacted by the Orissa
legislature with the obvious object of granting relief to those
members of teaching community who are being exploited for
years together by keeping them in short spell appointments
like 89 day-appointments as here with one day break and in
the process denying them their rightful dues and other service
benefits. In spite of repeated deprecations by this Court the
practice continues to be followed by various State
Governments in the country. Under the Constitution the State
is committed to secure right to education for all citizens. Bulk
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of our population is yet illiterate. Till the time illiteracy is
effaced from the country the resolution enshrined in the
Preamble cannot be fulfilled. Education is the dire need of the
country. There are neither enough schools nor teachers to
teach. Insecurity is writ large on the face of the teaching
community because of nebulous and unsatisfactory conditions
of service. In order to make the existing educational set up
effective and efficient it is necessary to do away with ad hocism
in teaching appointments. An appointment on 89 day basis
with one day break which deprives a teacher of his salary for
the period of summer vacation and other service benefits, is
wholly arbitrary and suffers from the vice of discrimination.
The Validation Act covers the field up to 31 December, 1984.
The State of Orissa will do well to consider the cases of all
those who have completed one year or more as ad hoc teachers
after 31 December, 1984 and come out with a scheme or any
other appropriate measure to regularise their services.
(emphasis supplied)
The underlying principle in the above passage applies to the
appointments of the Instructors.
16. In these circumstances, we direct the State Government
to re-examine its draft policy to bring in with the decision of this
Court and what is observed in this order, failing which we will have
to consider the Petitioners' contention that by repeatedly bringing in
a policy in contravention of this order of this Court, the action under
the contempt jurisdiction be initiated. We expect the State will not
give any cause of exercise of contempt jurisdiction.
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17. Accordingly, place the group of Petitions on board on 2
July 2024 under the caption "For Directions".
18. We further direct that the order of payment at the rate of
Rs.7000/- per month shall continue even for the month of April and
May till further orders. In fact, the Division Bench in the case of
Balaji Ade has observed that the amount for part-time instructors
should be at least 50% of the amount to be paid to the full-time
teacher, which we are informed is around Rs.50,000/-.
19. Since the Petitioners' services have been discontinued on
a misinterpretation of the order of status-quo, it is necessary that the
position be restored. Therefore, we direct the State Government to
continue the Petitioners in the school where they were initially
appointed after examining that the strength of students is above one
hundred. Services of the such Petitioners will be continued, and they
will be paid Rs.7000/- per month, subject to further orders.
Necessary action be taken within four weeks.
M.M. SATHAYE, J. NITIN JAMDAR, J.
