( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 382 OF 1998 1. Kumarnagar Social Welfare Centre, Kumarnagar, Dhule. 2. Hindhi-Sindhi Primary School, run by Kumarnagar Social Welfare Centre, Kumarnagar, Dhule. 3. Chairman, Hindhi-Sindhi Primary School, School Committee, Dhule. PETITIONERS VERSUS 1. Shri Dilip s/o Lalchand Atalani, R/o Block No. F/5, Room No. 8, Kumarnagar, Dhule. 2. Dy. Director of Education, Nasik Region, Nashik. 3. Nagarpalika Shikshan Mandal, Dhule Municipal Council, Dhule, through its Administrative Officer. 4. Education Officer, Zilla Parishad, Dhule. 5. State of Maharashtra RESPONDENTS .... Mr. S.S. Chaudhari, advocate for the petitioners. Mr. S.B. Talekar, advocate for the respondent No. 1. Mr. S.V. Kurundkar, Additional Govt. Pleader for the respondent No. 5. .... [CORAM : V.R. KINGAONKAR, J.] [DATE OF JUDGEMENT RESERVED : 12th July, 2010] [DATE OF JUDGEMENT PRONOUNCED : 20th July, 2010] ( 2 ) JUDGEMENT : 1. By this petition, the petitioners challenge judgement and order dated 11th November, 1997, rendered by learned Member of the School Tribunal, Nasik Region, Nasik, in appeal No. 14/1997. By the impugned judgement, the School Tribunal allowed appeal preferred by the respondent No. 1 – Dilip Atalani and directed continuation of his services. 2. It is an admitted fact that the respondent No. 1 – Dilip Atalani was working as school teacher with the petitioners since 1988. He was working in the division/section of the school which imparted education through Sindhi medium. He is a S.S.C., D.Ed. He was previously terminated from service. He had preferred an appeal before the School Tribunal vide appeal No. 35/1995. His appeal was dismissed. He challenged the order of the School Tribunal by filing writ petition No. 5047/1986. This Court held that he was in continuous employment. Since he was declared in the continuous service, he did not press into service the said writ petition. He remained in the service and continued to work as such. However, by order dated 2nd April, 1997, the petitioners terminated services of the ( 3 ) respondent No. 1 – Dilip Atalani alleging that due to lack of required number of students, the section of the school dealing in Sindhi medium had to be closed down. The petitioners served a notice of termination on the respondent No. 1 – Dilip Atalani alleging that after due approval from the Deputy Director of Education, the relevant section of the school itself was closed down and hence, termination of the respondent No. 1 – Dilip Atalani was permissible under Rule 27 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short, “the MEPS Rules”). Thus, respondent No. 1 – Dilip Atalani was again shunted out from the school. He challenged the termination order by filing appeal No. 14/1997. Since that appeal has been allowed by the order impugned, the petitioners have preferred the present petition. 3. The petitioners allege that there was no oblique intention while terminating services of the respondent No. 1 – Dilip Atalani. They allege that due to lack of required number of students, it was impracticable to run the section of Sindhi medium in the school. They allege that the Deputy Director of Education, Nasik Region granted permission for closure of the relevant section of the school and as such, ( 4 ) termination of the respondent No. 1 - Dilip Atalani became inevitable. They would submit that the termination of the respondent No. 1 – Dilip Atalani is legal and proper. Consequently, they urged to set aside the impugned judgement and order of the School Tribunal. 4. Heard learned counsel for the parties. 5. There is no substantial reason to infer that the Sindhi medium section of the school was purposefully closed down by the petitioners. It is matter of record that Sindhi section of the school was being run since 1987-88 on “no grant” basis. Gradually, grant was accorded to the Sindhi section in 1991-92 and thereafter. Though in 1993-94, 100% grants were issued for the Hindi medium section of the school, yet, the number of students were found to have decreased. The petitioners were required to take decision to close down the Hindi medium section of the school due to inadequacy of the number of students. The petitioners requested to grant permission for closure of the Sindhi medium section of the school vide letter dated 14th October, 1995. Again, reminders were issued from time to time. The Deputy Director of Education granted such permission on 13th September, 1996 to ( 5 ) close down the Sindhi medium section of the school w.e.f. June, 1996. It is pertinent to notice that the Deputy Director of Education did not issue blanket permission. It was conditional permission. The first condition was that the school teachers and other employees shall be absorbed in other schools by the petitioners and the Government will not be liable to cause absorption of such staff members. 6. Once it is found that the petitioners decided to close down the Sindhi section of the school as per the permission granted by the Deputy Director of Education, it follows that the petitioners were also bound to follow the conditions enumerated in the letter of permission. In other words, the petitioners were bound to arrange for absorption of the school teachers and the staff members in other schools run by the Educational Institution. It has come on record that the respondent No. 1 – Dilip Atalani was senior school teacher. Unless the senior school teachers were accommodated, the petitioners could not have absorbed the juniors. It appears that the petitioners committed anachronism by absorbing junior school teachers in preference to the respondent No. 1 – Dilip Atalani. One of the lady teacher by name Ku. Multani Shanti Mulchand was transferred to Hindi ( 6 ) medium school from 3rd September, 1996 before the Sindhi Section of the school was shut down. The petitioners did not explain as to how such favour was shown to said Ku. Multani by ignoring the lawful claim of the respondent No. 1 – Dilip Atalani. It appears that the respondent No. 1 – Dilip Atalani was regularly attending the school, yet, was not absorbed on establishment of the school in any other section. Close scrutiny of the reply-affidavit filed by Ashok Patil, Administrative Officer of the Municipal School Board goes to show that a post of teacher was lying vacant in the Hindi primary school. His affidavit further shows that the respondent No. 1 – Dilip Atalani could be easily absorbed in that vacant post. The petitioners did not take any such step. The petitioners also appointed another school teacher, by name, Ku. Sachdeo Anita Bhagchand w.e.f. 21st December, 1995. All these events go to show that the petitioners wanted to avoid absorption of the respondent No. 1 – Dilip Atalani, may be for the reason that he had previously challenged the termination of his services by filing appeal and also writ petition. This approach of the petitioners is reflective of vindictiveness and deserves to be condemned. 7. Rule 26 of the MEPS Rules provides for termination ( 7 ) of services on account of retrenchment. AT the same time, Rule 26 will have to be read alongwith Rule 27 of the MEPS Rules. Sub-Rule (2) (iii) of Rule 26 reads as follows : “(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).” Plain reading of clause (iii) of sub-rule (2) of Rule 26 would make it amply clear that the Management is under obligation to desist itself from calling retrenchment unless and until the employee is assured due absorption. In the present case, the Deputy Director of Education made it explicit that the petitioners shall effect due absorption of the school teachers and other employees and that the Government was not likely to ( 8 ) take up such responsibility on its shoulder. The petitioners were running other sections of the school like Hindi medium school, etc. The petitioners could have easily accommodated the respondent No. 1 – Dilip Atalani. That was not done. Under the circumstances, the School Tribunal rightly held that the respondent No. 1 – Dilip Atalani was entitled to continue in the service until he was duly absorbed. By virtue of clause (iii) of sub-rule (2) of Rule 26, there was a clog on legal retrenchment of the respondent No. 1 – Dilip Atalani. He could not have been retrenched by the petitioners without arranging for his absorption. It is not necessary, therefore, to examine other aspects of the matter. 8. For the reasons discussed hereinabove, there appears no merit in the present petition. Hence, the petition is dismissed. The petitioners do pay cost of Rs. 10,000/- (rupees ten thousand) to the respondent No. 1 – Dilip Atalani. [V.R. KINGAONKAR] JUDGE NPJ/wp382-1998