1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1246 OF 2008 WITH WRIT PETITION NO.1247 OF 2008 WITH WRIT PETITION NO.1325 OF 2008 WITH WRIT PETITION NO.1327 OF 2008 TO WRIT PETITION NO.1335 OF 2008 WITH WRIT PETITION NO.1337 OF 2008 TO WRIT PETITION NO.1339 OF 2008 WITH WRIT PETITION NO.1347 OF 2008 TO WRIT PETITION NO.1352 OF 2008 (All Petition Numbers are Lodging Numbers) State of Maharashtra & Ors. .. Petitioners V/s. Shri Gopalkrishna N.Gaggar & Ors. Smt.Geeta Narayan Modale and Ors Mrs.Archana Rajesh Yawal and Ors. Mrs.Parvathy T. and Ors Mrs.Priyanka Prashant Savant & Ors. Mrs.Kundane Moreshwar Patil & Ors. Mrs.Rajeshree Vasantrao Kalianpur & ors Mr.Jayantilal Virchand Mewada & Ors. Mr.Laxman Sitaram Bhalerao and Ors. Birudev Dagadu Gadade and Ors 2 Mrs.Veena Nikkiran Mudaliar & Ors. Mrs.Vandana Jawaharlal Pol & Ors. Mrs.Rita Jayant Desai & Ors. Mrs.Bhagwant Kaur Sandhu & Ors. Ashok Mahadevrao Bansod & Ors. Sheshu Rama Mogera and Ors. Shyam D.Bonde and Ors. Suryakant Vsaant Nipase and Ors. Dattatray Shankar Gaikwad & Ors. Mrs.Elizabeth Mammen and Ors. Mrs.Neelima Priyan Shah & Ors. Dharmraj Namdeo Lanjewar & Ors. Jaydeep Balaji Jadhav & Ors. .. Respondents Mr.C.J.Sawant, Senior Advocate with Ms.Geeta Shastri, Mr.D.A.Nalawade, G.P., Ms.S.M.Dandekar, A.G.P., Mr.R.J.Mane, Mr.P.K.Jadhav, Mrs.Mugdha Jadhav, Mrs.Uma PalsuleSawant, Mr.I.C.Calcuttawala, Mr.J.G.Saluja, Mr.A.B.Ketkar, Ms.Smeeta Gaidhani, Ms.S.S.Joshi and Ms.Sandhya Shridharan, A.G.Ps. for petitioner - State Mr.Sunil Dighe for respondent No.1 Mr.C.R.Sadashivan for respondent No.1 in W.P.Nos.1352/08, 1329/08 and 1351/08. Mr.M.P.S.Rao with Mr.Kothari i/by Prakash Mahadik for respondent No.2 and 3. Mr.Venkatesh Dhond i/by Sundeep Dadwal for respondent No.1 in W.P.1329, 1351 and 1352 of 2008. CORAM : S.C.DHARMADHIKARI, J. DATE : 30th June 2008 ORAL JUDGEMENT:- 3 . Rule. Learned Advocates for respective respondents waive service. Heard parties by consent. . These writ petitions are by the State of Maharashtra and they are directed against the order of the School Tribunal dated 3rd November 2007 in a batch of appeals preferred by the employees. The appeals of the employees/teachers have been allowed in the following terms:- "a) The Respondent No.1 and 2 to forward the name of appellant as surplus teacher due to reduction in workload to the Respondent No.3 within a period of thirty days from the date of this order. b) The Respondent No.3 is directed to absorb the appellant as surplus teacher in another aided Junior College 4 in the City of Mumbai. Till then the Department shall pay the salary to the appellant." 2. The petitions are filed by the State of Maharashtra through the Secretary, Department of School Education and Sports and the Director and Dy.Director of Education, Greater Mumbai Region. Secretary. Petitioners state that respondent No.1 in each of these petitions is the original appellant and respondent Nos. 2 and 3 are the respective respondents (Management). They are Original Appellants and the Respondents before the Tribunal. Later on, the Deputy Director of Education is also impleaded as party to the proceedings before the Tribunal. 3. The petitioners have stated that the teachers approached the Tribunal in the facts and circumstances more particularly mentioned in the 5 memo of petition. 4. Respondent No.2 is a Chairman/Secretary of a Registered Public Trust. That is an Educational Trust viz., Laxmi Education Society. It is managing two Degree/senior colleges and two Junior colleges. The first one is known as Sheth L.U.Zaveri and Sir M.V.College of Arts, Science and Commerce. The second is known as Chinai College of Commerce, Andheri. The other respondents before the Tribunal are the Principals of these colleges. The colleges are aided and recognised by the Education Department of State of Maharashtra. 5. The petition proceeds on the basis that the respondent No.2 Trust decided to close down the junior colleges and therefore sought permission by letter dated 23rd March 2007 from the Dy.Director of Education. The Dy.Director of Education informed respondent No.2 by a letter 6 dated 29th March 2007 that the permission sought is refused. It was however decided by the Trust that the Junior College will be conducted upto the second term of academic year 2007 - 2008. The Trust decided not to grant any admission to the students for 11th std. in the academic year 2007-08. 6. The petition proceeds to state that two junior colleges can accommodate 120 students per division as per rules laid down by the Government. There are Four (4) divisions in Science, Two (2) in Arts and Eight (8) in Commerce sanctioned by the petitioners, for Junior colleges. As against the total intake capacity of 1560 Students for the academic year 2007-08, respondent No.2 admitted only 135 students. 7. It is in these circumstances that a termination notice dated 13th June 2007 came to 7 be issued to the teachers. The termination notice reads thus:- ."Notice under Section 25A/26 of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. . You are employed by the Sheth L.U.J. & Sir M.V.College of Arts, Science & Commerce, Andheri (East), Mumbai 400 069, run by the Laxmi Education Society as a Teacher in the subject of Chemistry. 2. The Laxmi Education Society has decided to close down the Junior Colleges run by it as under: (a) XIth Std. of the Colleges would be closed down at the end of the first term of the academic year 2007-2008. 8 (b) XIIth Std. of the Colleges would be closed down by the end of the second term of the academic year 2007-2008. (c) The Junior Colleges would be completely closed down at the end of the second term of the academic year 2007-2008. . In view of the closure of the Junior College wherein you are employed as above, your services would no longer be required beyond the end of the first term of the academic year 2007-2008. . Notice is hereby given to you as required the provisions of the Section 25A/26 of the Maharashtra Employees of Private School (Conditions of Service) Rules, 1981 that on the closure of the 9 Junior College as from the end of the First Term of the academic year, your services shall automatically stand terminated from the close of the first term of the academic year 2007-2008. . By endorsing a copy of this Notice to the Dy. Director of Education, Greater Mumbai we are requesting him/her to absorb you elsewhere under the provisions of Maharashtra Employees of Private Schools, (Conditions of Service) Rules, 1981 and in particular Section 26(2)(iii) of the said Rules." 8. Such letters are issued to all Teachers who approached the Tribunal. The termination notice states that the Education society has decided to close down Junior College run by it and more particularly in the manner set out 10 therein. In view of the closure of the Junior College, wherein the teacher has been employed the service would no longer be required beyond the end of the first term of the academic year 2007-08. The notice has further informed the teacher that on the closure of the Junior College, the services will stand automatically terminated and this is a notice under Rule 25A and 26 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981 (MEPS Rules for short). The intimation was sent to the Dy.Director so that he takes steps to comply with Rule 26(2)(iii) of the MEPS Rules. 9. The petitioners state that aggrieved by this termination notice teachers approached the Tribunal by filing appeals under section 9 of the MEPS Regulation Act, 1977. The appeals were filed on the basis that the term "School" as defined in the said Act includes a Junior College and, therefore, the employees and Teachers 11 employed by the same can approach the Tribunal against the termination. 10. Before proceeding further, it would be advantageous to refer to section 9 of MEPS Act. The same reads thus:- "9. (1) Notwithstanding anything contained in any law or contract for the time being in force, any employee in a private school - (a) who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank, by the order passed by the management; or (b) who is superseded by the Management while making an appointment to any post by promotion, and who is aggrieved, shall have a right of appeal 12 and may appeal against any such order or supersession to the Tribunal constituted under section 8; Provided that, no such appeal shall lie to the Tribunal in any case where the matter has already been decided by a Court of competent jurisdiction or is pending before such court, on the appointed date or where the order of dismissal, removal otherwise termination of service or reduction in rank was passed by the Management at any time before the 1st July 1976; (2) Such appeal shall be made by the employee to the Tribunal, within thirty days from the date of receipt by him of the order of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be; Provided that where such order was made before 13 the appointed date, such appeal may be made within sixty days from the said date. (3) Notwithstanding anything contained in sub-section (2) the Tribunal may entertain an appeal made to it after the expiry of the said period of thirty or sixty days as the case may be, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within that period; (4) Every appeal shall be accompanied by a fee of (five hundred) Rupees, which shall not be refunded and shall be credited to the consolidated fund of the State." 11. The petition also proceeds to state that two writ petitions and one Public Interest 14 Litigation were filed in this Court. The petitions were filed on the Original Side of this Court by a teacher, by the Management and one person claiming to be a public spirited citizen. These petitions were placed before the Division Bench presided over by the Hon’ble The Chief Justice and by a common order the division bench disposed of the petitions. The Division Bench in the operative order directed thus:- "(a) The Government would expeditiously take decision in accordance with law, upon the notice for closure submitted by the management of the colleges. (b) The teachers who have approached this Court are entitled to pursue their applications before the College Tribunal and the Tribunal is free to decide their applications in accordance with law, 15 without being influenced by any of the observations made in this order. (c) The parties to the proceedings before the Tribunal are free to put forward their points of view for the consideration of the Tribunal and as permissible in law. (d) The students who have already been granted admission by the college by its own or under the orders of this Court in the presence of the Education Officer shall be permitted to complete their academic course for two years i.e.11th and 12th standards. The college will not in any way hamper the educational career or curtail the said period under any circumstances. (e) Out of 23 applications of the 16 students filed before us, since seven students are already studying in other colleges, their request for admission to the colleges is declined and it will not be proper to transfer them from one college to another at this juncture particularly when first term has practically concluded. However, as regards the remaining sixteen students, who have not taken admission anywhere, the college is directed to grant them admission forthwith and admit them to the current academic year of 11th standard. In the event the above students do not take admission by 5.00 p.m on 21st September 2007, they shall be deemed to have waived the benefit of this order. (f) The above directions are obviously without prejudice to the rights and contentions of the parties, which are 17 available to them before the respective authorities/tribunal and they are also free to take all the pleas that have been taken by them in the present petitions." 12. Thereafter, the appeals were placed before the School Tribunal. The School Tribunal had before it the written statement filed by the Management. It had before it the orders and directions of the Court in the above writ petitions and public interest litigation. It had before it the data/record of the students admitted in the Junior College. The Tribunal had before it the stand of the teacher that the termination of a permanent employee without any adherence to the principles of natural justice and contrary to the Rules and Regulations, is ex facie bad in law. There is no question of the Institution or the Junior College being required to be closed down. The closure is with ulterior 18 motive of converting an aided institution into an unaided one for profits and benefits. Their appeals proceed on the basis that the permission sought by the Management from the Government/Dy.Director of Education has been refused. Therefore, the notice could not have been displayed on the notice board. If there is no closure in the eyes of law, then, there cannot be any termination under the garb of the same. 13. At the same time, the Tribunal also had before it the stand of the respondent No.3 before it, viz., Dy.Director of Education. The written statement which was filed by the Dy.Director proceeds on the basis that the management has resorted to the above action, despite the permission not being granted. It is very categorically averred that the Trust should not be allowed to close down the Junior College. No permission is given in that behalf. It was also contended that from a perusal of Rule 25A and 19 other Rules, it is apparent that the notice does not attract these rules. Once the Dy.Director has sent a letter intimating that the permission to close down the Junior College has been refused, then, there is no question of the Rules coming into play. That apart, placing reliance upon Rule 7.5 of the Secondary School Code, it was contended that the proviso thereto would apply and without any permission, the closure cannot be resorted to. It was specifically urged in the written statement that the case set up of reduction of workload in junior colleges is not something natural. The management and principals of both colleges have prevented admission intentionally to close down the junior college. Therefore, the closure due to shortage of students is not bonafide. The State Government has specifically stated that after the High Court’s decision, admissions were given under supervision of Dy.Director of Education who deputed one Inspector, Mr.Pawar, to supervise the 20 admission process. At that time, very few students remained to be admitted. Admissions, therefore, were much less than the sanctioned capacity. In such circumstances, if teachers are rendered surplus, then, to absorb them is not the responsibility of State and, therefore, their payment, allowances and other benefits must be borne by the Management of the Institution. In such circumstances, the Tribunal was requested to issue appropriate directions to the Management in the interest of students and society as a whole. 14. At this stage, it would be pertinent to reproduce the prayers in the Appeal. They read thus:- "(a) that this Hon’ble School Tribunal be pleased to hold and declare that the Termination Notice dated 13.06.2007 (Exhibit "C") received by Appellant during Summer Vacation illegally 21 terminating services at the end of First Term of Academic Year 2007-08 quashing and setting aside the same and declare it as illegal and direct Respondent Nos.1 and 2 to continue the Appellant on the same post of the same subject as permanent Asst.Teacher in Respondent No.2 Junior College and pay salary to Appellant regularly; Alternatively; (b) that this Hon’ble School Tribunal be pleased to issue directives to Respondent Nos.1 and 2 to declare Appellant as a permanent Asst.Teacher as surplus and direct Respondent No.3 to absorb Appellant in nearest Aided Junior College for the same subject and pay salary regularly till the date of absorption of Appellant in the new 22 College according to provisions of Rule 26 of the MEPS Rules, 1981." 15. The Tribunal consistent with this material and in the light of rival contentions framed points for determination and the first point was, whether the closure notice dated 13th June 2007 is proper and legal. The finding therein is in affirmative. The second point is whether the teacher - appellant is rendered surplus and entitled for absorption. That finding is also in the affirmative. 16. The Tribunal on the first point had before it the arguments of the appellants who reiterated the contents of the appeal memo. The appellants urged that permission to close down the college has been refused. There is no closure contemplated in law. Thus, there is no question of a unilateral decision to close down 23 being taken by the management. Therefore their services cannot be terminated. It was also contended that the number of students taking admissions had reduced because the students could not wait indefinitely for being admitted to colleges. Therefore, alternatively, it was urged that the teacher is rendered surplus and entitled for absorption in any aided junior college as per Rule 26 of the MEPS Rules. 17. The management reiterated its stand. Its stand is very clear, inasmuch as its written statement proceeds on the basis that there is no question of any prior permission being sought or granted for closure. All that the management is required to do is to intimate its intention to close down at the end of an academic year so that from the next academic year, alternate arrangement can be made by all concerned. The stand taken in written statement and reiterated before the Tribunal was that respondent No.2 is a 24 Minority institution. Reasons for closure are bonafide. No prior permission is necessary. That apart, it was contended that there is no adequate response from the students. There are very few students who have secured admission for current academic year. There is considerable reduction in the strength of students because of which workload is reduced. In such circumstances and when the management has no objection for absorption of the teacher in other Junior Colleges as per law, the Tribunal should sustain the decision of the management. 18. The management also highlighted the point that the financial loss and gradual reduction in strength is on account of accumulated losses in both colleges, figures of which were made available, till 31st March 2007. The losses have occurred on account of the State not disbursing the non salary grant on time. The laxity of the Education Department and its refusal to release 25 the grant is subject matter of challenge in writ petition No.73 of 2002. That writ petition is still pending in this Court. Therefore, the Management was constrained to close down the Junior College and its decision is bonafide. Consequently, all Appeals be dismissed. 19. The Tribunal did not dispute that the teacher was a permanent employee of the Junior College. There is no denial and no dispute about the master - servant relationship. As far as the submission that respondent No.2 is linguistic minority institution, there is no discussion on this aspect in the order of Tribunal. The Tribunal took up for consideration three reasons put forward by the management viz., financial loss, reduction in the strength of students and financial constraints on account of non salary grant being not made available. It observes that reasons that have been put forward would show that there are no sufficient funds with the 26 management for stationery, electricity and water charges and, therefore, it is not possible to conduct any educational institution. As far as reduction in the strength of student is concerned, management’s stand that two new colleges have been started in the vicinity has been accepted. The new colleges being established in the vicinity which reduced the strength of students in the two colleges in question. This stand has been accepted. According to the Tribunal, there is fall in strength of students from 2001. Some of the Lecturers were rendered surplus and absorbed in other Junior Colleges as per the orders of Dy.Director. For all these reasons, the Tribunal found that there is substance in the plea of management and observed that the closure is bonafide. 20. The Tribunal also accepted the contention of the management that no permission is required 27 in law for closure of junior college. It also took into account the situation subsequent to the order of Division Bench of this Court and that is how it passed the order. 21. Thus, Tribunal’s conclusion is that the termination is not bad in law. The termination is on account closure and which is bonafide. However, the teacher is rendered surplus due to reduction in workload and, therefore, the concerned Appellant must be treated as surplus teacher and he should be directed to be absorbed by respondent No.3, Dy.Director as surplus teacher in another aided junior college in Mumbai. Till then, the department must pay the salary of the teacher. It is this conclusion of the Tribunal which is assailed in each of these petitions. 22. Mr.Sawant, learned Senior Counsel appearing for petitioners contended that the 28 order of the Tribunal is patently erroneous and unsustainable. He submits that the Division Bench order of this Court is very clear. Despite the division bench directions being placed before the Tribunal, it proceeded to ignore them and has rendered a judgement which is wholly unsustainable in law. Mr.Sawant submits that the order passed by the Tribunal holding that the closure is bonafide is without jurisdiction. He submits that when the Issue No.1 is framed by the Tribunal, it is apparent that the Tribunal was deciding the issue of closure being bonafide or not itself. Thus, the Tribunal is usurping the powers of the authorities under the Secondary School Code and more particularly the Education Department. He submits that the Tribunal was concerned with an appeal challenging the termination of the teacher. It may be true that under the garb of closure, the termination has been affected. Therefore, the Tribunal may be required to incidentally go into the question of 29 whether there is closure factually but that does not empower the Tribunal to render a conclusive finding with regard to bonafides of the same. That would mean that in all such matters, the Tribunal would become the authority displacing Education Department and Directorate of Education. When the institutions are recognised by the Education Department and the Financial assistance is also granted by it and law postulates its control over such institutions, the Tribunal is not a parallel authority. 23. Mr.Sawant’s submission is that if the Division Bench order is perused as a whole, it is apparent that the Tribunal acted contrary to it. The Division Bench had before it the entire controversy. The division bench had matters arising out of termination as well. The management went before the Division Bench with a grievance that the department desires to appoint Administrator taking over the management and put 30 the entire school in charge of the Administrator without any opportunity to the management to show cause. The order in that behalf is void as it is contrary to the principles of natural justice was the submission. The division bench recorded the statement of the State Government that it would not proceed to take action in pursuance of its orders and would be willing to give a fresh opportunity to the management before it passes any order appointing the Administrator. That is one part of it, according to Mr.Sawant. 24. However, the Division Bench was clearly told that the matter about closure is pending. The State has yet not taken a decision permitting closure of Junior college. The controversy is pending and the State would take a decision expeditiously. That is how the directions proceed. In such circumstances, the Tribunal should not have taken upon itself the task of