High Court · 2025
Legal Reasoning
1 WP-4488-24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 4488 OF 2024Prashant s/o. Pandurang Hingne,Age 44 years, Occu. Service as Primary Teacher,R/o. Behind Hotel Prasad, Sai Vihar Colony, Sangamner, Tq. Sangamner, Dist.Ahmednagar.. PetitionerVersus1.The State of MaharashtraThrough its SecretarySchool Education DepartmentMantralaya, Mumbai – 322.The Principal Secretary,Rural Development and Panchayat Raj Department, Mantralaya, Mumbai – 400 0323.The Education Officer (Primary),Zilla Parishad, Ahmednagar,Taluka and District Ahmednagar4.The Secretary,Navin Marathi Shala Mandal, Sangamner,Tq. Sangamner, District Ahmednagar5.The Head Master,Navin Marathi Shala, Sutar Galli,Sangamner, Taluka Sangamner, District Ahmednagar .. RespondentsMr. H. P. Jadhav, Advocate for Petitioner;Mr. D. R. Korade, A.G.P. for Respondents No.1 and 2;Mr. S. B. Pulkundwar, Advocate for Respondent No.3;Mr. S. T. Shelke, Advocate for Respondent No.4
Legal Reasoning
2 WP-4488-24.odt CORAM : S. G. MEHARE & SHAILESH P. BRAHME, JJ. RESERVED ON: 15-01-2025 PRONOUNCED ON: 03-02-2025JUDGMENT (PER : S. G. MEHARE, J.) :-1.Rule. Rule made returnable forthwith. Heard finally, withconsent of both parties.2.The petitioner has impugned communications dated06.11.2023 and 20.03.2024 of respondent No.3 / the EducationOfficer (Primary), Zilla Parishad, Ahmednagar, declaring thepetitioner surplus and not granting benefits and protection as perthe Persons with Disabilities (Equal Opportunities, Protection ofRights and Full Participation) Act, 1995 (for short, “the Act”) andGovernment Resolution dated 28.08.2012.3.In nut-shell, the petitioner was declared surplus teacher andhe was posted to Padmarasik Shaha Vidya Mandir, Sangamner, asper roster. However, that school did not allow him to join. Hence,an action was proposed against that school. Thereafter, thepetitioner was granted an opportunity to select the School.Respondent No.3 had no option but to absorb him to the schoolfrom the available vacant post. Therefore, respondent No.2 videorder dated 20.02.2024 directed the petitioner to join in DadaWaman Joshi Navin Marathi School, Shrirampur. 3 WP-4488-24.odt4.It is the contention of respondent No.3 that the petitioner didnot join and remained absent unauthorizedly from duties. He wasnot following the orders of superior authorities. It is also thecontention of respondent No.3 that the employee is not complyingwith the order of the respondent-authority. As per the GovernmentResolution dated 04.10.2017, such surplus teacher is not entitledfor salary and wages. It is also the case of respondent No.3 thatGovernment Resolution dated 04.10.2017 is applicable.Government Resolution dated 28.08.2012, relied upon by thepetitioner was issued by respondent No. 2. Hence, it is notapplicable.5.It is not disputed that the petitioner was physicallyhandicapped. The case revolves around the ground that thepetitioner being handicapped, has been protected under the Actand Government Resolution dated 28.08.2012 and the Act.6.The learned counsel for the petitioner has vehementlyargued that the scheme of declaration of any employee surplus,do not applicable to physically handicapped person. Therefore,the Government Resolution dated 28.08.2012 is squarelyapplicable, but not the Government Resolution dated 04.10.2017.The said resolution is about absorbing excess teachers fromprivate aided school to local Government School and vice-versa.The Government Resolution dated 28.08.2012 is specific, in which 4 WP-4488-24.odtthe said Act has been considered. It has been decided that theemployees who are physically handicapped having validcertificate, they should be eliminated from absorption processunder the said Act and some immunities have been given to suchemployees.7.He further argued that declaring the petitioner surplus bycommunication dated 06.11.2023 and rejecting his objection byimpugned communication dated 20.03.2024, is in violation of theprovisions of the Act. Government Resolution dated 28.08.2012has not been correctly interpreted. The authorities misconstruedGovernment Resolution dated 04.10.2017. Hence, incorrectlyapplied it to the petitioner. The petitioner being physicallyhandicapped, has been protected under the Act. Generalguidelines have been issued ignoring protection to thehandicapped teachers. The principle of natural justice has also notbeen considered. By way of the impugned communications, theobject of the Act has been frustrated. Hence, the petitiondeserves to be allowed.8.Per contra, Mr. Pulkundwar, learned counsel for respondentNo.3 submits that there was no special consideration for thehandicapped teachers declared surplus. They were covered underthe same law. Thereafter, the petitioner was a private employee.The Government Resolution dated 28.08.2012 does not cover the 5 WP-4488-24.odtteachers of private schools since the Government wasoverburdened with the salaries of the surplus teachers withoutservices. Thereafter, the Government took a decision suited to thecircumstances and issued Government Resolution dated04.10.2017. The said Government resolution was squarelyapplicable to the petitioner. The first school where he was directedto be absorbed, refused to join him. The action was initiatedagainst that school. However, the petitioner was immediatelyabsorbed in the nearest school, the petitioner did not join. Therewas no protection to the petitioner being handicapped aboutsurplus and absorption. He also submits that none of theprovisions of the Act have been violated. There is no illegality inthe impugned communications. Hence, the petition deserves tobe dismissed.9.Rule 26 of the Maharashtra Employees of Private Schools(Conditions of Services) Regulation Act, 1977 and Rules, 1981 (forshort, “Rules”) deals with retrenchment on account of abolition ofposts. This provision would apply to the employees of the privateschools. Sub-rule (3) thereof provides, in case any employeerefuses to accept the alternative employment offered to him underclause (iii) of sub-rule (2), he shall lose his claim for absorption,and the Management of the school shall be allowed to retrenchsuch employee from the services after completion of 3 months’notice. Sub-rule (4) thereof speaks that if the posts retrenched are 6 WP-4488-24.odtrevived or additional posts for the same subject are created, theManagement shall, by a registered post acknowledgment dueletter addressed to the employee who is retrenched and absorbedin other school, give him the first opportunity of rejoining servicesin the school. Sub-rule (5) provides, the employee retrenched ifabsorbed in another school, has an option either to get repatriatedto his original school or to continue in the school in which he hasbeen absorbed.10.Rule 27 thereof speaks of the principles of termination ofservice in the event of retrenchment. Clause (e) of Rule 27immune the protection to the employees of backward classesalready in service from retrenchment. However, the Rules aresilent about any such immunities to handicapped persons. In somecircumstances of the Surplus process, the employees are notretrenched. Hence, it is essential to absorb such employees inanother school as they should not lose their bread and butter.Since absorption in another school was not suitable to theemployees and their salaries were continued, they did not join theposts where they were absorbed. Therefore, the Government hasset out the policy of transferring the teachers from the privateschools and the local Government schools till the posts are againcreated in their original schools. In this resolution dated04.10.2017, also no specific immunities to the physicallyhandicapped persons. 7 WP-4488-24.odt11.The object of the Act was to eliminate the discriminationagainst the persons with disabilities. They were granted equality ofopportunity, accessibility, equality between men and women. Theyare equal inherent dignity, individual autonomy including thefreedom to make one's own choices, and independence ofpersons, was also to be protected. The very title of the Act speaksof the equal opportunities, protection of rights and fullparticipation. The discrimination on physical disability waseliminated by the Act. All barriers in the society in common fieldwere also taken away. All restrictions and distinctions in relation todisability were also eliminated. However, the Act does not speakof any special concession in case of retrenchment or surplus.12.Nowhere, it is the case that the petitioner having disability,has been discriminated in applying the Government policies onsurplus. The Government also took care that such persons iftransferred, should be transferred to the nearest place of theirresidence, subject to availability of the posts. Hence, we are not inagreement with the arguments of the learned counsel for thepetitioner that the provisions of the Act have not been followedand he has been discriminated, being disabled. 13.As far as the facts of the case are concerned, initially thepetitioner was accommodated in the same town. However, theschool where he was directed to be absorbed, did not allow him to
Decision
8 WP-4488-24.odtjoin and as per his option, he was given another posting where hecould be accommodated. An absorption is not a mechanicalprocess. The various moderates are to be considered. The variousfactors like availability of the posts equal in rank and subject, areto be borne in mind. There is nothing on record that anydiscrimination, as such, was done with the petitioner. On thecontrary, a care has been taken immediately. The petitioner wasposted to the nearer school. The petition is completely silent,whether he joined the said school or not. 14.As far as the Government Resolution dated 28.08.2012 isconcerned, it was about primary teachers of Zilla Parishads. Thepetitioner was not the employee of Zilla Parishad. Hence, it wouldnot be helpful to the petitioner. 15.After having gone through the record with the ableassistance of the respective learned counsels, we do not find anyillegality and arbitrariness in the impugned communications. 16.In view of the above, the writ petition stands dismissed.17.Rule stands discharged. [ SHAILESH P. BRAHME ] [ S. G. MEHARE ] JUDGE JUDGErrd