1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.1895 OF 2007 Gunwant s/o Narsing Kamble Age 34 years, Occu. Service, as Peon in Sane Guruji Vidyalaya, Yestar, Taluka Ahmedpur, District Latur. ... PETITIONER VERSUS 1. The State of Maharashtra, through its Secretary, School Education Department, Mantralaya, Mumbai - 32. 2. The Education Officer (Secondary), Zilla Parishad, Latur. 3. Sant Bhagwan Baba Shikshan Mandal, Ahmedpur, District Latur, through its Secretary. 4. Sane Guruji Vidyalaya, Yestar, Taluka Ahmedpur, District Latur, through its Headmaster. 5. Sant Bhagwan Vidyalaya, Dhamangaon, Taluka Shirur- Anantpal, District Latur, through its Headmaster. 2 6. Shri D.J. Tumram, Age major, Occ. Service, as Shikshan Sevak, Sane Guruji Vidyalaya, Yestar, Taluka Ahmedpur, District Latur. 7. Shri R.V. Sakolkar, Age major, Occ. Service, as Shikshan Sevak, Sant Bhagwan Vidyalaya, Dhamangaon, Taluka Shirur- Anantpal, District Latur. ... RESPONDENTS ----- Shri D.B. Bhange, Advocate for petitioner Shri D.R. Korde, A.G.P., for respondent Nos.1 and 2. Shri V.D. Gunale, Advocate for respondent Nos.4 and 5 Shri A.V. Patil, Advocate for respondent Nos.6 and 7 ----- CORAM : S.B. DESHMUKH AND SHRIHARI P. DAVARE, JJ. DATED : 17th November, 2009. ORAL JUDGMENT (PER DESHMUKH, J.): 1. We heard learned counsel for respective parties. Rule made returnable forthwith and by consent of parties, heard 3 finally. 2. This petition has been filed by the petitioner on 31.1.2007. On account of subsequent events and with the leave of this Court, the petition has been amended by the petitioner. We are reproducing hereinbelow amended prayers made by the petitioner. B-1) By a writ of certiorari or any other appropriate writ or direction in the like nature, the appointment of respondent No.7 Shri R.V. Sakolkar made by the respondent No.3 as Shikshan Sevak in respondent No.5 School w.e.f. 1.7.2008 may kindly be quashed and set aside. C-) By a writ of mandamus or any other appropriate writ or direction in the like nature, the respondent No.3 management may kindly be directed to appoint the petitioner forthwith as Shikshan Sevak in the respondent No.5 School and the respondent No.2 may be directed to grant approval to such appointment of the 4 petitioner. E-1) Pending hearing and final disposal of this petition, the respondent No.2 Education Officer may kindly be directed not to grant approval to the appointment of the respondent No.7 Shri R.V. Sakolkar as Shikshan Sevak in the respondent No.5 School. 3. The petitioner's grievance is that the petitioner has been appointed by respondent No.3, as Peon on June 14, 1991. On the date of appointment, petitioner claims that he was holding H.S.C. qualification. Petitioner claims, that he did improve his educational qualification with the leave of Headmaster and management concerned. According to petitioner, he has passed Bachelor of Arts examination somewhere in the year 2004. Thus, graduation has been conferred upon the petitioner by Yashwantrao Chavan Open University, Nasik. Petitioner has also passed Bachelor of Physical Education examination (B.P. Ed.) in the year 2005. According to petitioner, one Mr. Dhakne was working as Assistant teacher (Physical Education Teacher) with respondent No.3 management and stands retired on superannuation in the year 2006. The petitioner, therefore, claims 5 that there was clear vacancy of Assistant teacher and/or Physical Education Teacher in the school run by respondent No.3. The petitioner further submits that, he being qualified to be appointed as Assistant Teacher and/or Shikshan Sevak, made several representations to the respondent No.3, but in vain. The respondent No.3 appointed two persons i.e. respondent No.6 and respondent No.7. The petitioner is not raising his claim against the appointment of respondent No.6. However, petitioner seeks quashment of the appointment of respondent No.7 and further seeks his own appointment on the post of Shikshan Sevak. Such a prayer of the petitioner is prayer clause B-1 as we have reproduced hereinabove. 4. On behalf of the respondents more specifically respondent Nos.3 to 5, return has been filed so also on behalf of respondent Nos.6 and 7 affidavit has been filed, which is at page 51. On behalf of respondent Nos.1 and 2 i.e. State and Education Officer, there is no return filed. 5. Before adverting to the submissions of the counsel and controversy involved in this petition, a look to the provisions of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Regulation Act, 1977 for short) 6 would be useful. This Regulation of 1977 has received assent of the President on 16th March 1978 and published in the Maharashtra Government Gazette Part 4 on 20th March 1978. This Regulation of 1977 seems to have been brought on State Book by the State legislature, to regulate recruitment and conditions of service of employees in certain private schools. In this Regulation, we may refer to definition of word "management" under Section 2(12) management in relation to school means, in the case of a school administered by the State Government, the Department; in case of the school administered by local authority, that local authority; and in any other case, a person or body of persons, whether incorporated or not and by whatever names called, administering such school. In the State of Maharashtra, Societies are registered under the provisions of Societies Registration Act, 1860. Such societies are also registered as trusts under the provisions of Bombay Public Trusts Act, 1950 (Act of 1950 for short). Such societies and/or trusts, are imparting education ordinarily from primary level up to junior and senior colleges and in some cases even post-graduation also. Thus, in the case on hand, respondent No.3 is management within the meaning of Section 2(12) of Regulation of 1977. ‘Private School’ is also defined under Section 2(20) meaning thereby, recognised school, established or administered by the management other 7 than Government or a local authority. Word "rules" means the rules made by the State Government under this Act as per Section 2(23) of the Regulation 1977. In the case on hand, respondent No.3 management, is receiving grant-in-aid from the State Government. Section 5 of the Regulation 1977 imposes certain obligations on management of private schools. In the case on hand, respondent Nos.4 and 5 are the private schools run by respondent No.3. We have no concern with entire scheme of Section 5 of the Regulation 1977. However, we may notice amendment to Section 5 by way of Sub-section 2 and 2-A. Both these amended sections we are reproducing hereinbelow. “5. 2. Every person appointed to fill a permanent vacancy [except shikshan sevak] shall be on probation for a period of two years. Subject to the provisions of sub-sections (3) and (4), he shall, on completion of this probation period of two years, be deemed to have been confirmed. Provided that, every person appointed as shikshan sevak shall be on probation for a period of three years. 2-A. Subject to the provisions of sub-section 8 (3) and (4), shikshan sevak shall, on completion of the probation period of three years, be deemed to have been appointed and confirmed as a teacher. 6. Proviso to sub-section (2) Section 5 seems to have been brought on Statute by an amendment. This proviso is material for the reason that the proviso has recognised the appointment of a person as Shikshan Sevak. This proviso lays down that every person appointed as a Shikshan Sevak shall be on probation for a period of three years. As we have said in foregoing paragraphs that Shikshan Sevak was not contemplated and /or mentioned under Section 5 when said Section was brought on Statute in the year 1977. Shikshan Sevak, a concept, has been subsequently brought in by the State Government and that is the reason the State Government has issued an appropriate Government Resolution, scheming the appointments of Shikshan Sevak. The object of the scheme seems to be that the person duly qualified to be appointed initially as Shikshan Sevak in view of the scheme laid down by the State Government, shall be initially on a probation for the period of three years, other service conditions i.e. pay scale etc. would be as laid down by the State Government. Thus, the appointment of Shikshan Sevak is considered on probation and that too for a period of three years. This we are 9 recording for the reason that Section 5 of the Regulation 1977 contemplates appointment of a qualified person as a teacher on probation for the period of two years. Subsection 2A of Section 5 has furthered the intention of the State Government and has given permanency to a person appointed as Shikshan Sevak on completion of probation for the period of three years. This Section 2A has conferred deemed confirmation a teacher. In our view, considering the entire scheme of Section 5 of Regulation 1977, it appears that the State Government has accepted concept of Shikshan Sevak within the sweep of Section 5. 7. The Regulation Act, 1977 when was made applicable to the State of Maharashtra, concept of Shikshan Sevak was not even under the consideration of the State Government. This Regulation we have noticed in foregoing paras, assent given by the Hon'ble President to the Regulation 1977 and we have also referred to Section 5 of the Regulation 1977, which, at the relevant time, had made provision of filling in permanent vacancy in a private school. The legislature, in their wisdom, have carefully drafted Section 5 of the Regulation 1977. This Section 5 makes a reference of filling in permanent vacancy in a private school by appointing of a person duly qualified to such vacancy. From this Subsection 1 of Section 5, in our opinion, three words are 10 important i.e. permanent vacancy, private school and a person duly qualified. It is important to note that entire Section 5 as it was brought on Statute in the year 1977, does not make reference of appointment of any person either as a teacher, Peon etc. It is a matter of common knowledge that the private schools are having two types of employees firstly; members of the teaching staff and members of the non-teaching staff. The legislature, however, has not referred either member of the teaching staff or of the non- teaching staff under Section 5 of the Regulation 1977 when it has been brought on State Book. Section 16 of the Regulation 1977, gives rule making powers to the State Government. The State, exercising rule making powers under Section 16, has also notified Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as Rules 1981 for short). Rule 2(i) of the Rules, 1981 defines "School Committee, meaning thereby a committee constituted in accordance with provisions of Schedule A. Rule 2(k) defines "trained teacher" i.e. a teacher who has secured a professional certificate, a diploma or a degree recognized by the Department, which qualifies him for a teaching post in a school. Rule No.10 is relevant to be referred to in the facts of the case. "10. Categories of employees.-- (1) Employees 11 shall be permanent or non-permanent. Non- permanent employees may be either temporary or on probation. (2) A temporary employee is one who is appointed to a temporary vacancy for a fixed period.” 8. Rule 10 of the Rules of 1981 makes reference to categories of employees working in the private school. Sub-rule (1) of Rule 10 provides that employees shall be permanent or non permanent. Further it has been provided that non permanent employees may be either temporary or on probation. 9. In the case on hand, as we have mentioned in foregoing paragraphs, the petitioner has acquired and/or improved his educational qualification from the date of his appointment as a Peon, his grievance is that he made various representations to the respondent No.3 management for his appointment as a Shikshan Sevak. Such representation is placed on record. Representation made by the petitioner was not favourably considered. It is also not in dispute that present petitioner filed Appeal No.131/2006 before the School Tribunal. Counsel for the petitioner made statement that he has withdrawn 12 the appeal made before the School Tribunal on 5.1.2007. This fact is not disputed by the counsel appearing for the respondents. 10. On behalf of respondent No.3 management, Mr. Gunale, the learned counsel made twofold submission before us. He submits that, the Government Resolution which is made available to us by the counsel appearing for the parties, which we have marked by taking it on record, is dated 10.6.2005. According to Mr. Gunale, learned counsel, this Government Resolution does not have force to that of the statutory provision and/or Rules framed by the State Government exercising the powers under Section 16 of the Regulation 1977. According to petitioner, Item No.8 of this Government Resolution dated 10.6.2005, provides that if non-teaching staff member working in a private school, acquired educational qualification and/or improved educational qualification suitable for the appointment of Shikshan Sevak, such appointment should be given to him and remuneration or service conditions for Shikshan Sevak as notified by the State Government would be applicable to such member of the staff. Mr. Gunale, the learned counsel submits that this Item No.8 of the Resolution dated 10.6.2005 is not mandatory for the management. If vacancy is available, then only it can be considered. Mr. Gunale, the learned counsel further submits that 13 Schedule F under the Rules of 1981 is relevant. According to him, under this Schedule F, guidelines have been given for fixation of the seniority of the non-teaching staff. He pointed out from these guidelines the manner in which the seniority list to be prepared and promotion to be given to the person working as Oilman, Machine Attendant, Peon, Watchman, Chowkidar, Sweeper, call-woman, Kamathi, Attendant, Laboratory Hamal, Liftman etc. This provision under the guidelines is under the caption “Lower Grade Staff”. We may reproduce the provision hereinbelow: “A common seniority list of Laboratory Attendant, Naik, Oilman, Machine Attendant, Peon, Watchman, Chowkidar, Sweeper, call-woman, Kamathi, Attendant, Laboratory Hamal, Liftman and such other lower grade staff, if any, shall be maintained on the basis of the dates of their appointment. If any of the lower grade staff improves his qualification as prescribed either for the post of Laboratory Assistant or Clerk, such employee should be given preference while filling in the said post according to his place in seniority.“ 14 11. Submission of Mr. Gunale, learned counsel is that this guideline is for the promotion of Lower Grade Staff i.e. working in the private school. It is inter-se only amongst non- teaching staff. Such person at the highest can achieve the promotion as Laboratory Assistant or Clerk. Ceiling is non- teaching post alone. According to him, such person cannot by promotion acquire teachership and/or appointment as Assistant Teacher. In the case on hand, in our view, the lower grade staff or the guidelines pointed out by Mr. Gunale, learned counsel, has no relevance. The petitioner was appointed as a Peon on 16.4.1991. According to counsel for the petitioner, he is not seeking promotion. Appointment of Shikshan Sevak is altogether different matter. Qualifications have been laid down. Government Resolution and/or scheme for appointment of Shikshan Sevak is holding the field. He made a statement that advertisement which has been brought on record by respondent Nos.6 and 7 published in Daily newspaper called as “Lokman” was not within the knowledge of the petitioner. He fairly admits that there is no reference to the advertisement in his Writ Petition. So far Rules and Government Resolutions are concerned, Mr. Gunale, learned counsel relied on the judgment dated 14.8.2008 of the Division Bench of this Court in Writ Petition No.4068/2008, in the matter of 15 Mahesh P. Lad. Vs. State of Maharashtra (unreported). He pointed out paragraph No.10 of this judgment. One of us (S.B. Deshmukh, J.) was a party to this order passed in Writ Petition No.4068/2008. We have considered the averments of learned counsel Mr. Gunale. We have considered the facts available before this Court which are mentioned in paragraph Nos.4 and 5. We have also considered the ratio of cited judgment. The relevant portion of para 10 of the judgment is reproduced below: “The Government Resolution, therefore, is not be binding on the Committee nor will the Committee in exercise of its discretion bebound to follow the same.” 12. So far as appointment as Shikshan Sevak is concerned, Government Resolution dated 13.10.2000, is made available by the petitioner, which is taken on record. In fact it is annexed with the Government Resolution dated 10.6.2005. This Government Resolution dated 13.10.2000, in a nutshell, has given the background on which State Government thought it fit to issue this Government Resolution. This Government Resolution makes reference of the background for qualitative improvement in secondary school education, higher secondary school education 16 and various schemes initiated by the State Government. It is further mentioned that it becomes difficult for the State Government day by day, to make available funds to cope up with all these schemes and/or incur expenses for the secondary education in a State. Another reason given by the State Government is rise in preferences in secondary education. For all these reasons, the State Government in its wisdom, thought it fit to come with some scheme in aid to the private schools. It has been further mentioned by the State Government in this background and/or prelude that the Government has referred some schemes in primary education launched by the other State Governments. Reference to the scheme of Mahdya Pradesh is being made. So also reference to the scheme launched by the State of Gujarat from June 1998, appointing the primary teachers on consolidated salary or honourarium and appointment of Education Assistant (Vidya Sahayyak) scheme is also made. In such schemes, before appointing a person as Assistant Teacher, a person who has acquired required qualification, is being appointed on a consolidated salary of Rs.2500/-. The State of Gujarat has further provided absorption of such persons in a regular employment as a teacher. Scheme prepared and put into implementation by the State of Gujarat has been improved and/or modified by the Hon’ble High Court in the State of Gujarat. After 17 such modification, said scheme, has been ultimately being implemented in the State of Gujarat for some secondary schools. It is further mentioned by the State Government, in prelude of this Government Resolution that the Union of India, in consultation with all State Governments, has prepared scheme called as Sarva Shiksha Abhiyan. In this scheme also, concept of para- teachers before appointment of teacher is being considered. Lastly, the State Government, has referred to orders passed by this Court in various Writ Petitions. Thus, making reference of all these things, the State has granted approval on 27.4.2000 for appointment of Shikshan Sevaks in secondary schools. Entire scheme has been laid down this Government Resolution dated 13.10.2000. 13. Thus, Shikshan Sevak, concept, has its origin in recent past. In this view of the matter, it is impossible to find any reference of Shikshan Sevaks in Rules of 1981. State Government, however, has taken care of amending Section 5 of Regulation 1977. By this amendment, it can be said that Shikshan Sevak now has been recognized by Section 5 of the Regulation 1977. Not only the recognition has been received by ‘Shikshan Sevak’ but then further avenue is also made available by the Statute to them to be appointed as Assistant Teacher on 18 completion of probation of three years. Thus, appointment of Shikshan Sevak is a step first. If required qualification is obtained by person, appointment by the management in view of the scheme launched by the State Government and probation is completed on completion of probation, such person can be appointed to a post of Assistant Teacher. 14. In the case on hand, the advertisement surprisingly is brought on record not by the respondent No.3 management, but by respondent Nos.6 and 7. Said advertisement is at page 58 of the compilation. The newspaper, according to Mr. A.V. Patil, learned counsel for respondent Nos.6 and 7, is called as Daily ‘Loknan’ published at Latur district. We have seen the clipping concerned. Date of this clipping which is handwritten date is 1.6.2008. Copy of the relevant page of Daily Newspaper Lokman is not placed on record by respondent Nos.6 and 7. In affidavit filed on behalf of respondent Nos.6 and 7, on our query, counsel Mr. A.V. Patil could not point out the other details. Other details are important. It is mandatory for every daily newspaper to print and publish name of the printer and publisher, name of the editor etc. This is from the view point of authenticity of the newspaper concerned. Such details are absent in the affidavit. Copy of the relevant page of Daily newspaper Lokman is not on record. In 19 this fact situation, we may not accept the submission of learned counsel Mr. A.V. Patil that it is a newspaper, which can be said to be authentic newspaper. Thus, no importance can be attached to argument of learned counsel for respondent Nos.3 to 7 that there was advertisement published in the newspaper for Shikshan Sevak and in response to such advertisement there was no application made by the present petitioner. It is important to note that the petitioner is member of the non-teaching staff working with the respondent No.3 management since 1991. With the permission of the management, he claims that he has improved his qualification. His qualification is not disputed on behalf of the respondents. Fact that a permanent teacher Mr. Dhakne stands retired on superannuation is also not in dispute. Respondent No. 7 has been appointed as a Shikshan Sevak is an admitted fact. Mr. Gunale, the learned counsel is justified in submitting that the letter of the Education Officer (Page 42-H) is dated 24.7.2008 i.e. after the appointment of respondent No.7 as Shikshan Sevak on 30.6.2008. However, fact remains that the representation of the petitioner prior to publication of the alleged advertisement and/or date of appointment of the respondent No.7 was pending with the management. In fact petitioner made representation after retirement of Mr. Dhakne, Assistant Teacher. In our view, the appointment of respondent No.7 is illegal. Mr. Gunale, the 20 learned counsel, during the course of submissions, also submitted that Education Officer has granted approval to the appointment of respondent No.7. If appointment of respondent No.7 itself is illegal according to us, such approval granted by the Education Officer would not deter us from quashing and setting aside said appointment. In our view, in the facts and circumstances, the petitioner is eligible and entitled for such appointment as Shikshan Sevak. 15. In this view of the matter, we quash and set aside the appointment of respondent No.7 Mr. R.V. Sakolkar. However, we make it clear that salary paid to respondent No.7 Mr. R.V. Sakolkar from 30.6.2008 shall not be recovered either by respondent No.3 management or the respondent No1. State. We further direct respondent No.3 to appoint the present petitioner as Shikshan Sevak on or before 31.12.2009. We make it clear that so far as approval of the present petitioner after his appointment as Shikshan Sevak, shall be considered by the competent authority in accordance with the provisions of law. However, respondent No.3 management shall make appropriate proposal to the authority within a period of four weeks from the appointment of the petitioner as Shikshan Sevak. 21 16. Rule made absolute in above terms with no order as to costs. 17. Mr. Gunale, learned counsel seeks suspension of this order. Learned counsel for petitioner is opposing such prayer. In the interest of justice, we suspend our order for the period of six weeks from today i.e. till 31.12.2009. [ SHRIHARI P. DAVARE, J.] [ S.B. DESHMUKH, J.] fmp/ wp189507(judgment)