Bombay High Court
Prashant Pandurang Hingne vs The State Of Maharashtra Through Its ... on 3 February, 2025
2025:BHC-AUG:2919-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4488 OF 2024
Prashant s/o. Pandurang Hingne,
Age 44 years, Occu. Service as Primary Teacher,
R/o. Behind Hotel Prasad, Sai Vihar Colony,
Sangamner, Tq. Sangamner, Dist.Ahmednagar .. Petitioner
Versus
1. The State of Maharashtra
Through its Secretary
School Education Department
Mantralaya, Mumbai - 32
2. The Principal Secretary,
Rural Development and Panchayat Raj
Department, Mantralaya, Mumbai - 400 032
3. The Education Officer (Primary),
Zilla Parishad, Ahmednagar,
Taluka and District Ahmednagar
4. The Secretary,
Navin Marathi Shala Mandal, Sangamner,
Tq. Sangamner, District Ahmednagar
5. The Head Master,
Navin Marathi Shala, Sutar Galli,
Sangamner, Taluka Sangamner,
District Ahmednagar .. Respondents
Mr. H. P. Jadhav, Advocate for Petitioner;
Mr. D. R. Korade, A.G.P. for Respondents No.1 and 2;
Mr. S. B. Pulkundwar, Advocate for Respondent No.3;
Mr. S. T. Shelke, Advocate for Respondent No.4
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CORAM : S. G. MEHARE &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 15-01-2025
PRONOUNCED ON : 03-02-2025
JUDGMENT (PER : S. G. MEHARE, J.) :
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1. Rule. Rule made returnable forthwith. Heard finally, with
consent of both parties.
2. The petitioner has impugned communications dated
06.11.2023 and 20.03.2024 of respondent No.3 / the Education
Officer (Primary), Zilla Parishad, Ahmednagar, declaring the
petitioner surplus and not granting benefits and protection as per
the Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 (for short, "the Act") and
Government Resolution dated 28.08.2012.
3. In nut-shell, the petitioner was declared surplus teacher and
he was posted to Padmarasik Shaha Vidya Mandir, Sangamner, as
per roster. However, that school did not allow him to join. Hence,
an action was proposed against that school. Thereafter, the
petitioner was granted an opportunity to select the School.
Respondent No.3 had no option but to absorb him to the school
from the available vacant post. Therefore, respondent No.2 vide
order dated 20.02.2024 directed the petitioner to join in Dada
Waman Joshi Navin Marathi School, Shrirampur.
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4. It is the contention of respondent No.3 that the petitioner did
not join and remained absent unauthorizedly from duties. He was
not following the orders of superior authorities. It is also the
contention of respondent No.3 that the employee is not complying
with the order of the respondent-authority. As per the Government
Resolution dated 04.10.2017, such surplus teacher is not entitled
for salary and wages. It is also the case of respondent No.3 that
Government Resolution dated 04.10.2017 is applicable.
Government Resolution dated 28.08.2012, relied upon by the
petitioner was issued by respondent No. 2. Hence, it is not
applicable.
5. It is not disputed that the petitioner was physically
handicapped. The case revolves around the ground that the
petitioner being handicapped, has been protected under the Act
and Government Resolution dated 28.08.2012 and the Act.
6. The learned counsel for the petitioner has vehemently
argued that the scheme of declaration of any employee surplus,
do not applicable to physically handicapped person. Therefore,
the Government Resolution dated 28.08.2012 is squarely
applicable, but not the Government Resolution dated 04.10.2017.
The said resolution is about absorbing excess teachers from
private aided school to local Government School and vice-versa.
The Government Resolution dated 28.08.2012 is specific, in which
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the said Act has been considered. It has been decided that the
employees who are physically handicapped having valid
certificate, they should be eliminated from absorption process
under the said Act and some immunities have been given to such
employees.
7. He further argued that declaring the petitioner surplus by
communication dated 06.11.2023 and rejecting his objection by
impugned communication dated 20.03.2024, is in violation of the
provisions of the Act. Government Resolution dated 28.08.2012
has not been correctly interpreted. The authorities misconstrued
Government Resolution dated 04.10.2017. Hence, incorrectly
applied it to the petitioner. The petitioner being physically
handicapped, has been protected under the Act. General
guidelines have been issued ignoring protection to the
handicapped teachers. The principle of natural justice has also not
been considered. By way of the impugned communications, the
object of the Act has been frustrated. Hence, the petition
deserves to be allowed.
8. Per contra, Mr. Pulkundwar, learned counsel for respondent
No.3 submits that there was no special consideration for the
handicapped teachers declared surplus. They were covered under
the same law. Thereafter, the petitioner was a private employee.
The Government Resolution dated 28.08.2012 does not cover the
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teachers of private schools since the Government was
overburdened with the salaries of the surplus teachers without
services. Thereafter, the Government took a decision suited to the
circumstances and issued Government Resolution dated
04.10.2017. The said Government resolution was squarely
applicable to the petitioner. The first school where he was directed
to be absorbed, refused to join him. The action was initiated
against that school. However, the petitioner was immediately
absorbed in the nearest school, the petitioner did not join. There
was no protection to the petitioner being handicapped about
surplus and absorption. He also submits that none of the
provisions of the Act have been violated. There is no illegality in
the impugned communications. Hence, the petition deserves to
be dismissed.
9. Rule 26 of the Maharashtra Employees of Private Schools
(Conditions of Services) Regulation Act, 1977 and Rules, 1981 (for
short, "Rules") deals with retrenchment on account of abolition of
posts. This provision would apply to the employees of the private
schools. Sub-rule (3) thereof provides, in case any employee
refuses to accept the alternative employment offered to him under
clause (iii) of sub-rule (2), he shall lose his claim for absorption,
and the Management of the school shall be allowed to retrench
such employee from the services after completion of 3 months'
notice. Sub-rule (4) thereof speaks that if the posts retrenched are
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revived or additional posts for the same subject are created, the
Management shall, by a registered post acknowledgment due
letter addressed to the employee who is retrenched and absorbed
in other school, give him the first opportunity of rejoining services
in the school. Sub-rule (5) provides, the employee retrenched if
absorbed in another school, has an option either to get repatriated
to his original school or to continue in the school in which he has
been absorbed.
10. Rule 27 thereof speaks of the principles of termination of
service in the event of retrenchment. Clause (e) of Rule 27
immune the protection to the employees of backward classes
already in service from retrenchment. However, the Rules are
silent about any such immunities to handicapped persons. In some
circumstances of the Surplus process, the employees are not
retrenched. Hence, it is essential to absorb such employees in
another school as they should not lose their bread and butter.
Since absorption in another school was not suitable to the
employees and their salaries were continued, they did not join the
posts where they were absorbed. Therefore, the Government has
set out the policy of transferring the teachers from the private
schools and the local Government schools till the posts are again
created in their original schools. In this resolution dated
04.10.2017, also no specific immunities to the physically
handicapped persons.
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11. The object of the Act was to eliminate the discrimination
against the persons with disabilities. They were granted equality of
opportunity, accessibility, equality between men and women. They
are equal inherent dignity, individual autonomy including the
freedom to make one's own choices, and independence of
persons, was also to be protected. The very title of the Act speaks
of the equal opportunities, protection of rights and full
participation. The discrimination on physical disability was
eliminated by the Act. All barriers in the society in common field
were also taken away. All restrictions and distinctions in relation to
disability were also eliminated. However, the Act does not speak
of any special concession in case of retrenchment or surplus.
12. Nowhere, it is the case that the petitioner having disability,
has been discriminated in applying the Government policies on
surplus. The Government also took care that such persons if
transferred, should be transferred to the nearest place of their
residence, subject to availability of the posts. Hence, we are not in
agreement with the arguments of the learned counsel for the
petitioner that the provisions of the Act have not been followed
and he has been discriminated, being disabled.
13. As far as the facts of the case are concerned, initially the
petitioner was accommodated in the same town. However, the
school where he was directed to be absorbed, did not allow him to
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join and as per his option, he was given another posting where he
could be accommodated. An absorption is not a mechanical
process. The various moderates are to be considered. The various
factors like availability of the posts equal in rank and subject, are
to be borne in mind. There is nothing on record that any
discrimination, as such, was done with the petitioner. On the
contrary, a care has been taken immediately. The petitioner was
posted to the nearer school. The petition is completely silent,
whether he joined the said school or not.
14. As far as the Government Resolution dated 28.08.2012 is
concerned, it was about primary teachers of Zilla Parishads. The
petitioner was not the employee of Zilla Parishad. Hence, it would
not be helpful to the petitioner.
15. After having gone through the record with the able
assistance of the respective learned counsels, we do not find any
illegality and arbitrariness in the impugned communications.
16. In view of the above, the writ petition stands dismissed.
17. Rule stands discharged.
[ SHAILESH P. BRAHME ] [ S. G. MEHARE ]
JUDGE JUDGE
rrd
