m E h I G H 9 0 9 3 ? ? E _ M E W E S E § T _ d i \ E § ( § 2 U § - - « Z j Z Q Q / M i s c . P e t i t i o n N o e a . . § . . , / 1 9 9 2 S p m x w x o m g g y . , 1 ) x v g r r . i v i . m t i x ~ w \ K N r ‘ C F 0 0 0 0 1 1 0 9 0 8 a g e d a b o u t 3 2 y e a r s , W / o I V K J d O d U J . R a h m a n y R / O Q . l \ § o . 4 - C ¢ S t r e e t 1 3 , S e c t o r 7 , B h i l a i w N a g a r , T a m s : D i s t t a D u r g ( M u ? ) ( E X - w - ‘ E r i B C i p a l $ h r i M a h a v i r J a i n H i g h e r S e c o n d a r y S c h o o i , b u r g ) 2 ) M I S S J . N O G R J A H & N a g e d a b o u t y e a r s I C / o M r . E & . f ; J D e e n , Q t r . N ’ 0 . 2 1 ~ A , $ t r e e t N O J O , ‘ 3 a c t o r 8 , B h i l a i = = N a g a r ; T a h ‘ : 5 4 D i s i m Q u r g ( W u ? ) R S U 3 ‘ . 1 ) S T A T E O F W W H Y A P R i E J D E S i - T h m u g h z $ e c r e t a r y i S c h 0 0 l E d u c a t i c n D e p a r t m e n t , G o v t . o £ M e ? “ B h Q p a l . V 2 ) D R E C E G R , ” 1 ‘ 3 3 J a m ? m a a c i c k , ‘ P u b l i c i n s t m c t i o n s . \ $ 7 P u b l i c i n s t r u c t i o n s , G o v t . o £ E V E . P . E h : 3 p a l . ' 1 m r g ~ E < i u c a t i o n D i v i s i o n : B u r g ( M o P ) . , O s ‘ n t d a s u 2 ’ / ® / \ ‘ E . i f N l r W V ^ AF^ HIGH COURT QF CHHATTISGARH : BILASPUR PETITIONER RESPONDENTS WRIT PETITION N0.219 OF 1992 Smt. M. Rahaman Versus State of Madhya Pradesh Chhattisgarh) and Others (now And WP Nos.2290 & 2292 of 1992 -t^\ Post for pronouncement ofthe order on the _/o'day of February, 2010 Sd/- Satish K. Agnihotri Judge ; , HIGH COURT OF CHHATTISGARH : BILASPUR PETITIONER RESPONDENTS WRIT PETITION N0.219 OF 1992 Smt. M. Rahaman Versus State of Madhya Pradesh Chhattisgarh) and Others OiA (now PETITIONER RESPONDENTS PETITIONERS RESPONDENTS WRIT PETITION N0.2290 OF 1992 Smt. Gayatri Soni Versus State of Madhya Pradesh (now Chhattisgarh) and Others And WRIT PETITION N0.2292 OF 1992 Smt. M. Rahaman & Another Versus State of Madhya Pradesh Chhattisgarh) and Others (now (Writ petitions under Article 226/227 of the Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri V.G. Tamaskar, counsel for the petitioners. Shri M.P.S. Bhatia, Dy. Govt. Advocate for the State. None for other respondents. ORDER (Delivered on this /o"day of February, 2010) 1. Since W.P.Nos.219, 2290 & 2292 of 1992 involve a common question of law as well as common facts and, as such, all the petitions are being considered together and disposed of by this common order. ...-"T^. ^'^' "5S@^^?i The facts, in nutshell, as projected by the petitioners, are that the petitioners were appointed in the respondent - Mahavir Jain Vidyalaya, Shikshak Nagar,Durg, by orders dated 1-7-1978, 25-11-1968 and 1-9-1986 as Lower Division Teacher, Assistant Teacher and Teacher, respectively. Thereafter, the petitioners were terminated from the service by individual orders dated 22-6-1992 w.e.f. 5-6-1992 without issuing any show cause notice and without conducting a departmental enquiry. Further case of the petitioner/Smt. M. Rahaman is that earlier she was demoted from the post of Principal to the post of Upper Division Teacher and against the said action; she preferred a petition before this Court being W.P.No.219 of 1992, which is being under consideration in the bunch of these matters. In the said petition notices were issued on 29-1-1992 by this Court and after receipt of the notice, the impugned removal order was passed. Shri Tamaskar, learned counsel appearing for the petitioners, would submit that the termination of the petitioners is in flagrant violation of provisions of the Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Adniymam, 1978 (for short "the Adhiniyam, 1978"). The petitioners have not committed any misconduct; therefore, the impugned orders of termination are illegal and arbitrary. The respondent is a recognized, grants-in-aid institution. The respondent Management and the Executive Committee have not followed the statutory provisions while passing the impugned orders. s ..^^, .4 " -^' " ^:^ •^ 5. On the other hand, Shri Bhatia, learned Dy. Govt. Advocate appearing for the State, would submit that the respondent Mahavir Jain Vidyalaya, Shikshak Nagar, Durg is not an aided institution from the State Government and, as such, the petitioners are not entitled for any relief against the respondenV State. The entire control of employees is withthe respondents No.4 & 5. The provisions of the Act, 1978 do not apply in case of the present petitioners. 1 have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. 7. The contention of learned counsel appearing for the petitioners is that there is violation of provisions of the Adhiniyam, 1978, thus the impugned orders of termination are violative of statutory rules and the basicprinciples of natural justice. The Adhiniyam, 1978 provides for regulation of salaries to teachers and other employees of Non Government Schools receiving grant-in-aid from the State Government. It appears that the provisions of the Adhiniyam, 1978 would not be applicable to the schools, which are not receiving grant-in-aid from the State Government. 8. The relevant introductory preamble of the Adhiniyam, 1978 reads as under: "An Act to make provision for regulating of salaries to teachers and other employees of Non Government Schools receiving grant-in-aid from the State Government and Non Government Educational Institutions for Higher Education receiving grants from the Madhya Pradesh Uchcha Shiksha Anudan Ayog and other matters ancillary thereto. Gt^ 1. Short title, extent, commencement and application.- L ^h^... f^^^-Sg^^a, XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX (1) (2) (3) (4) Save as otherwise provided in this Act, it shall apply to all institutions falling under clause (e) of Sec.2. 2. Definitions.—Inthis Act, unless the context otherwise requires,- (a) xxx xxx xxx (b) (c) (d) xxx xxx xxx (e) 'lnstitution' means a non- Government School or non- Government Educational Institution for Higher education for the time being receiving maintenance grant from the State Government or from the Madhya Pradesh Uchcha Shiksha Anudan Ayog, as the case may be, established, administered and managed by a society registered or deemed to be registered under the Madhya Pradesh Society Registrikaran Adhiniyam, 1973 (No.44 of 1973) but does not include an institution established, administered and managed by— (i) the Central Government; or (ii) the State Government; or (iii)a local authority; or (iv)any agency managed, controlled, approved or sponsored by the Central Government or the State Government, as the State Government may, by notification specify; (v) a non-trading corporation formed and registered under the Madhya Pradesh Non-Trading Corporation Act, 1962 (No.20 of 1962) or deemed to have been registered thereunder; ^^ 1% ^'W'^^^K^ •-~w?>^^@^. (f) 'Maintenance grant' means grant payable to the Institution by the State Government or the Ayog, as the case may be, for maintenance ; (g) xxx xxx xxx (h) xxx xxx xxx (i) 'Teacher' means a teacher of an institution in respect of whose employment maintenance grant is paid by the State Government or the Ayog, as the case may be, to the institutions and includes any other teacher employed, with the prior approval of the authority specified by the State Government in this behalf, in fulfillment of the conditions of recognition/ affiliation of an institution orof a new subject or a higher class or a new section in the existing class by the Madhya Pradesh Board of Secondary Education or any University or the Ayog, as the case may be, and shown on the pay roll of the institution against a post as being in the employment as such but does not include a teacher whose appointment is dis-approved under clause (c) of section 6; 9. Section 6 of the Adhiniyam, 1978 deals with the prohibition of creation of posts and appointments of staff and termination of services. 10. The respondent/State as well as respondent/School have specifically pleaded that the respondent Schools are not Government grant-in-aid schools. 11. The respondenVSchool has chosen not to appear before the Court. 12. Reliance of the petitioner on the decision of the Supreme Court rendered in Superstar Education Society v. State of /', y &. ^^ n | "•^^5^^ te^.^.^., y^- Maharashtra and Others , is misplaced, as the Supreme Court in the said decision has considered grant of recognition to the private schools. There is nothing with regard to service conditions of the teachers. Thus, submission of learned counsel appearing for the petitioners that the provisions of the Adhiniyam, 1978 would be applicable does not merjt acceptance. 13. On bare perusal of the aforesaid provisions of the Adhiniyam, 1978, it is crystal clear that the service conditions of only those schools, which are receiving grants-in-aid from the State Government are governed/regulated by the Adhiniyam, 1978. Thus, the contention that it is a case of glaring violation of the provisions oftheAdhiniyam, 1978, merits rejection. 14. The respondent-school appears to be a recognized school, but not grants-in-aid school. The petitioners have failed to demonstrate that the school is receiving grants-in-aid from the State Government. 15. The appointment order of Smt. Gayatri Soni (petitioner in W.P. No.2290 of 1992) was filed with the petition. Appointment orders of other petitioners have not been filed. It appears that the appointment of Smt. Soni was purely on temporary basis. She was accordingly removed from the service. Thus, it cannot be held that the appointments of the petitioners were against the regular post in accordance with any regulations/rules, as nothing has been produced before this Court. 1 (2008)38cc 315 (5^) 16. It is not necessary to go into several judgments cited by the petitioners, as the said judgments deal with those cases where provisions of the Adhiniyam, 1978 were applicable, in the present cases as heldthe provisions ofAdhiniyam,1978 are not applicable. 17. The decision of the High Court of Madhya Pradesh rendered by learned Single Judge in Neeti Bhan v. Miss Hill Education Society, Lashkar2, relied on by the petitioners, deals with the ruleof'/7/re ancf f/re'. 18. The Madhya Pradesh Ashaskiya School Viniyam Adhiniyam, 1975 (forshort "the Adhiniyam, •/975") provides for regulation of Ashaskiya Schools in the State of Madhya Pradesh/Chhattisgarh for their better organization, development and matters connected therewith or incidental thereto. 19. Section 9 of the Adhiniyam, 1975 deals with terms and conditions of service of employees, which reads as under: "9. Terms and conditions of service of employees.-(l) The State Government may make rules regulating the minimum qualifications for recruitment and the conditions of service of employees of recognised schools. Provided that neither the salary nor the rights in respect of leave of absence and pension of an employee in the employment of an existing school at the commencement of this Act shall be varied to the disadvantages of such employees: Provided further that every such employee shall be entitled to opt for terms and conditions of service as they were applicable to him 1999(1)MPu23 fe^ft^^ o ~:"':''"^'CTS»|», immediately before commencement of this Act. the 20. (2) No existing employee or employee of a recognised school shall be dismissed, removed or reduced in rank nor shall his services be otherwise terminated save in accordance with the rules made in this behalf. (3) Any existing employee or employee of a recognised school who is dismissed, removed or reduced in rank may, within thirty days from the date of communication to him of the order of such dismissal, removal or reduction in rank, appeal against such order to the Tribunal constituted under section 11. (4) If an existing employee or employee who is placed under suspension continues to be so for more than three months he may make an application for revision to the Director. After giving opportunity of being heard to the parties concerned, the Director shall pass such orders thereon as he may deem fit. (5) Notwithstanding anything contained in sub-section (2), sub-section (3) or sub-section (4), the provisions of these sub sections shall not apply to the employees of schools established and administered by local bodies." Sub-section (2) of Section 9 of the Adhiniyam, 1975 provides that no existing employee or employee of a recognised school shall be dismissed, removed or reduced in rank norshall his services be otherwise terminated save in accordance with the rules made in this behalf. Sub-section (3) of Section 9 of the Adhiniyam, 1975 provides for an appeal against such order to theTribunal. /',^"^ '^^i^ te-^a^ m^^^__ ^::'?B:^s:^te,^ 21. Though no rules framed under Rule 9 of the Adhiniyam, 1975 has been produced before this Court, however, having regard to the provisions of Section 9 of the Adhiniyam, 1975, it is necessary that the Education Department should examine the facts in detail and pass appropriate orders in respect of the individual cases of the petitioners. 22. The petitions lack pleadings, materials and relevant circulars. Thus, it is not possible to adjudicate the disputes on merit. 23. In view of foregoing, without expressing any opinion on the merits of the case, particularly on the nature of the appointment whether the same was done in accordance with the rules so farmed under Section 9 ofthe Adhiniyam, 1975 and whether the removal orders were passed in accordance with the rules or not, the writ petitions^ are allowed. The Director, Public Instructions, Government of Chhattisgarh, Raipur and the Joint Director, Public Instructions, Durg Division, Durg, are directed to examine the matter in the light of above stated statutory provisions and pass appropriate orders, in accordance with law and on its own merits, as expeditiously as possible, preferably within a period of three months from the date of receipt of a copy of this order. 24. Before parting with this order, it is made clear that the observations made hereinabove, if any, may not be construed as opinion ofthis Court. 25. There shall be no order asto costs. —- -——— Gowri Sd/- Satish K. Agnihotri Judge