[1] IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3996 OF 2008 1. The President/Secretary, Mrs. Suneeta Manohar Kotwal, Manohar Kotwal Trust, 224, Kannamwar Nagar, Vikroli, Mumbai-400 083. 2. Head Master, Madhyamik Vidyalaya, 224, Kannamwar Nagar, Vikroli, Mumbai-400 083. .... Petitioners - Versus - 1. Smt. Vaishali Manohar Parulekar, New Chikhalwadi, Rachna 3/24, N.B. Marg, 2nd Floor, Grant Road, Mumbai-400 007. 2. Education Inspector, Brihanmumbai (North Zone), 59, New Administrative Building No.2, 2nd Floor, Ram Krishna Chemburkar Marg, Chembur, Mumbai-400 071. .... Respondents Shri Hemant Ghadigaonkar for the Petitioners. Shri Mihir Desai for Respondent No.1. Shri S.N. Patil, AGP, for Respondent No.2. Shri Suryakant Chougule, Deputy Education Officer, North Zone, Mumbai present. CORAM: CORAM: CORAM: DR. D.Y. CHANDRACHUD, J. DATED: DATED: DATED: DECEMBER 18, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Rule, by consent of the learned counsel made returnable forthwith. Counsel appearing for the [2] respondents waives service. With the consent of the learned counsel and at their request, the matter is taken up for hearing and final disposal. 2. The first respondent was appointed as a part-time Librarian in the Secondary School conducted by the petitioners on 18-12-1996. By a Government Resolution dated 30-8-1997, which was issued on the recommendations of the report of the Chiplunkar Committee, a post of part-time Librarian was created. The post of part-time Librarian was created on the condition that the strength of the students should not be less than 500. The appointment of the first respondent was approved by the Education Inspector on probationary basis for a period of two years, by a letter dated 4-2-1998 (a reference to this letter is contained in the affidavit filed by the Deputy Education Inspector in these proceedings). The strength of the students in the institution is purported to have fallen below 500. In accordance with a circular issued by the Directorate of Education, the post of part-time Librarian came to be abolished and a decision in that regard was communicated to the petitioners by the Education Inspector by a letter dated 11-8-2004. The Management terminated the services of the first respondent owing to the abolition of the post. The first respondent moved the School Tribunal which granted [3] reinstatement with back wages and continuity of service to the first respondent. The Tribunal proceeded ex parte against the petitioners who filed an application thereafter for setting aside the Judgment together with an application for condoning the delay that had occurred. By the impugned order dated 29-2-2008 the School Tribunal dismissed the application for condonation. 3. When the petition came up before this Court, it was urged before the Court that the entire dispute in relation to the services of the first respondent could be resolved if the learned AGP could take instructions as to whether the first respondent could be declared surplus under Rule 26 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter called as "the MEPS Rules") to facilitate her absorption elsewhere. An affidavit was directed to be filed to explain the position of the Government. In pursuance thereof, the Deputy Education Inspector has filed an affidavit dated 17-12-2008 and has remained present personally before the Court with instructions to the learned AGP. 4. The petition challenges only the order of the Tribunal declining to condone the delay in filing the application for setting aside the main Judgment. The [4] Court has on the request of the learned counsel taken up the dispute in its entirety with the view to obviate another round of proceedings. 5. Rule 26 of the MEPS Rules deals with retrenchment on account of an abolition of posts. Sub-rule (1) provides that a permanent employee may be retrenched by the Management after giving him three months’ notice inter alia on account of a reduction of the establishment owing to a reduction in the number of classes or divisions; a fall in the number of pupils resulting in a reduction of the establishment, and for any other bona fide reason of a similar nature. Under sub-rule (2) retrenchment under sub-rule (1) is subject to the following conditions: "(i) The principle of seniority shall ordinarily be observed; (ii) Prior approval of the Education Officer in the case of Primary and Secondary Schools or, of the Deputy Director in the case of Higher Secondary Schools and Junior Colleges of Education shall be obtained by the Management in each case of retrenchment including such cases in which the principle of seniority is proposed to [5] be departed from and a senior member of the staff is proposed to be retrenched when a junior member should have been retrenched, stating the special reasons therefor; (iii) The employees from aided schools, whose services are proposed to be retrenched shall be absorbed by the Education Officer in the case of Primary and Secondary Schools or by the Deputy Director in the case of Higher Secondary Schools and Junior Colleges of Education. The order of absorption of such employees shall be issued by registered post acknowledgement due letter, and till they are absorbed, the Management shall not be permitted to effect retrenchment on account of any reasons mentioned in sub-rule (1)." 6. In the present case, admittedly, the prior approval of the Education Officer was not taken nor was three months’ notice furnished. The retrenchment, therefore, did not comply with the mandatory requirement of law. However, at this stage, the Court cannot be unmindful of the fact that as a result of the number of students falling below 500, the post of part-time [6] Librarian in the institution has been abolished under the directions of the Education Inspector. Counsel appearing on behalf of the petitioners and Counsel appearing on behalf of the first respondent had, therefore, urged before the Court that it would be appropriate if the services of the first respondent are absorbed in another institution in terms of clause (iii) of sub-rule (2) of Rule 26. The learned AGP has, on the instructions of the Deputy Education Inspector, who is personally present before the Court, stated before the Court that steps would be taken to declare the first respondent as surplus and to pass necessary orders for the absorption of the first respondent in any other institution in accordance with the provisions of clause (iii) of sub-rule (2) of Rule 26. Counsel appearing on behalf of the first respondent, on the instructions of the first respondent who is personally present in the Court, stated that in view of the aforesaid arrangement, the first respondent shall not press a claim for back wages. 7. In the circumstances, the petition shall stand disposed of in terms of the following directions: (i) In compliance with the order of the School Tribunal, the petitioners shall reinstate the first respondent in service. In view of the [7] concession made before the Court that the first respondent does not press the claim for back wages, the direction in regard to the payment of back wages shall stand set aside. The first respondent shall, however, be entitled to continuity of service for fixation of pay and for computation of retiral dues, if any. The learned counsel appearing on behalf of the petitioners states, on the instructions of the second petitioner who is personally present in the Court, that the first respondent shall in terms of the arrangement which has been arrived at by the parties be reinstated immediately on the reopening of the school on 2-1-2009; (ii) The second respondent shall take steps to declare the first respondent as surplus as a result of the abolition of the post of part-time Librarian in the institution conducted by the petitioners, on the number of pupils falling below 500; (iii) Upon the first respondent being declared as surplus, steps shall be taken by the second respondent (in terms of the statement made by the AGP on instructions) for the absorption of the services of the first respondent in any [8] other institution where a vacancy may be available in accordance with the provisions of Rule 26(2)(iii); (iv) The orders passed by the School Tribunal on 26-6-2007 and 29-2-2008 shall accordingly stand substituted by consent in terms of the aforesaid directions; (v) In terms of the provisions of Rule 26(2)(iii), the petitioners shall, until the first respondent is absorbed elsewhere, not be permitted to effect retrenchment, as provided in the aforesaid Rule. The salary bills shall be submitted by the petitioners to the second respondent upon which necessary directions in accordance with law shall be issued. The petition is accordingly disposed of. (Dr. D.Y. Chandrachud, J.) sjs/D8wpj3996.8 sjs/D8wpj3996.8 sjs/D8wpj3996.8