High Court · 2024
Facts
wp-12492.211 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.12492 OF 20211) The Suburaban Education Society, Aurangabad, Through its Secretary, Jayant S/o Sadashiv Lalsare, Age-69 years, Occu:Secretary of the Education Society, R/o-Plot No.8, Naiknagar, Beed-bye pass, Satara Parisar, Aurangabad, Tq. and Dist.-Aurangabad.2) Sanskar Prabodhini Prashala, Shiv Shankar Colony, Aurangabad, Through its Head Master, Sunil s/o Abhiman Nikam, Age-52 years, R/o-Deogiri Hills, Shivaji Nagar, H-60, Aurangabad, Tq. and Dist.-Aurangabad. ...PETITIONERS VERSUS 1) The State of Maharashtra, Through its Additional Secretary, School Education & Sports Department, Mantralaya, Mumbai-32,2) The Additional Chief Secretary, Finance Department, Mantralaya, Mumbai-32,3) The Commissioner of Education, Maharashtra State, Pune Central Building, Pune-1,4) The Director of Education, (Secondary & Higher Secondary), Maharashtra State, Pune Central Building, Pune-1,
Legal Reasoning
wp-12492.2177.The learned Advocate for the petitioners has reiterated allthe contents from the Petition which have been referred aboveas part of his argument. He has taken us through the MEPS Act,MEPS Rules, School Service Code, 2019, Equal RemunerationAct, 1976 and Maharashtra Primary Education Act, 1949. Hesubmitted that this Court while deciding Writ Petition No. 5959of 2015 on 4th May 2018 (Sanskar Prabodhini Secondary School,Through its Head Mistress vs. the State of Maharashtra andothers), observed that:-“ By now, it is well settled that the Secondary School Code hasa statutory force and is not merely an administrativeinstruction. The Secondary School Code will have its operationlimited to the secondary and higher secondary schools and maynot apply to the primary schools.” 8.Learned Advocate for the petitioners submits that theSecondary School Code prescribes the staffing pattern. So far asthe staffing pattern of Class-IV employees is concerned,Learned Advocate refers to the provisions of Rule 57.7 of theSecondary School Code, which reads thus:-“ 57.7 the number of full-time lower grade staff admissible toa school shall be as under: wp-12492.2181)School with one class22)Schools having upto 6full-fledged classesUpto 43)Schools with morethan 6 classesOne for every set of 6classes or a part thereof, excluding thefirst 6 classesN.B. - (1) The staffing pattern with regard to the non-teachingstaff as on 1st June 1963. If already approved, may becontinued.N.B. -(2) If any school maintains a lift used exclusively forschool purpose, the liftman appointed by it will be admissibleprovided the post of liftman is one of the lower grade staffadmissible as per above Rules.”9.Further, learned counsel for the petitioners submits thatSchedule “C” of the MEPS Rules lays down the staffing patternand pay-scales of non-teaching staff including lower grade staff,which includes laboratory attendants, naik, mali, oilman,machine attendant, peon, watchman or night watchman orchawkidar, sweeper, call woman, kamathi, attendant, laboratoryhamal of lower grade. Therefore, according to him, whenprovisions are in the Act and Rules, then the GovernmentResolutions, Circulars and Government instructions cannotsupersede them. The Government Resolution dated 11thDecember 2020 being contrary to the Secondary School Code, wp-12492.219MEPS Act and MEPS Rules, is ultra vires and needs to bequashed and set aside. 10.Learned AGP for respondent Nos.1 and 2 has submittedthat the staffing pattern is always settled by the Governmentsince the opening of the school. When a school is allowed to beopened then the staffing pattern is settled and allotted to thesaid school under which different posts are prescribed. Thestaffing pattern is controlled by MEPS Act and Secondary SchoolCode, respectively and along with the MEPS Act, the MEPS Ruleswould govern the field. Even when the staffing pattern wasinitially declared as per the MEPS Act, MEPS Rules andSecondary School Code, thereafter also the change as per theChiplunkar Committee regarding creation of additional posts waseffected by way of Government Resolution dated 28th June 1994.Therefore, it will not lie in the mouth of the petitioners that byGovernment Resolutions the Government cannot make changesin the staffing pattern. The petitioners cannot say that when thestaff is increased or additional posts are created then it cannotbe taken away by the Government by way of GovernmentResolution. Only favourable things cannot be so projected. Afterthe Government Resolution dated 28th June 1994 was issued by wp-12492.2110which in view of Chiplunkar Committee report additional postswere created, thereafter also Government Resolution dated 25thNovember 2005 was issued, by which changes were suggestedby the committee which was then freshly appointed. There wasno challenge to any of the stipulations in the said GovernmentResolution. All the posts which were differently named inSchedule “C” of the MEPS Rules were brought under onenomenclature i.e. “Class-IV employees”. However, it appearsfrom further Government Resolution dated 23rd October 2013that many institutions had raised objection with the Governmentand therefore the Government could not implement theGovernment Resolution dated 25th November 2005. So also itgave rise to some litigation and therefore once again high levelcommittee was appointed under the chairmanship of thePrincipal Secretary to the State. In view of the report of the saidcommittee, post-wise number was fixed / posts were sanctioned.By Government Resolution dated 12th February 2015, the staffingpattern as decided in Government Resolution dated 23rd October2013 was accepted as it is and appointment to the further postwas prohibited. Thereafter by Government Resolution dated 28thJanuary 2019, improved staffing pattern for other non-teachingstaff was sanctioned. But as regards Class-IV employees are wp-12492.2111concerned, it was stated that it would be considered separatelyand was not fixed and thereafter the impugned GovernmentResolution was passed on 11th December 2020. Learned AGPpointed out Clause No.4 from the said Government Resolutiondated 11th December 2020, which runs thus:-“4-ojhy fud”kkuqlkj T;k ‘kkGsr visf{kr is{kk tkLr prqFkZ Js.khdeZpkjh iwohZP;k eatqj inkaoj dk;Zjr vkgsr o l{ke izkf/kdk&;kadMwuekU;rkizkIr vkgsr] rsFks vfrfjDr gks.kkjh prqFkZJs.kh deZpk&;kaph ins R;kplaLFksr lnjps deZpkjh R;k inkoj lsokfuo`Rr gksbZi;Zar dk;Zjr jkgrhy]vFkok vfrfjDr deZpk&;kaP;k lsok uftdP;k ‘kkldh;@ftYgk ifj”kndk;kZy;kar@vuqnkfur@va’kr% vuqnkfur laLFkkae/;s vko’;drsuqlkj rkRiqjR;kizR;kofrZr dj.;kr ;srhy- lnj deZpk&;kaP;k lsokfuo`Rrhuarj gh vfrfjDrBjysyh ins vkiksvki O;ixr gksrhy o R;kuarj f’kikbZ HkRrk lq# gksbZy-”.English translation of above said clause No.4, reads asunder:-“4.According to the above criteria, in schools where thereare more Class IV employees working in the previouslysanctioned post and approved by the competent authority, theadditional posts of Class IV employees will remain in the sameinstitution until the said employee retires from that post, orthe services of additional employees will be temporarilydeputed / reverted to the nearest Government / Zilla Parishadoffices / Aided / partially aided institutions as per requirement. wp-12492.2112After the retirement of the said employee, these additionalposts will automatically lapse and thereafter peon allowancewill start.”(Translated by Senior Translator and Interpreter, High Court of Bombay, Bench at Aurangabad) 11.Learned AGP submits that in view of above said ClauseNo.4 of the Government Resolution, the person who is workingprior to coming into force the said Government Resolution, hispost is protected till the retirement or if some Class-IV employeewould turn out to be surplus, still he would continue there in thesame institute till the retirement or would be absorbed in nearbyGovernment or Zilla Parishad office / aided / partially aidedinstitution, as per the requirement. Therefore, all care has beentaken so that those persons who have been appointed prior to 1stDecember 2020 should not suffer. But, thereafter there shall notbe an appointment on regular post having salary by pay-scale.The Government has every power to issue such circulars,notifications, resolutions when it has the power to decide thestaffing pattern. The financial constraints are prompting theGovernment to take such decision and it is not only in schoolsbut in other Government offices also the Government ispromoting process of outsourcing instead of employing personsunder “Class-IV employees”. wp-12492.211312.Learned AGP relies on the observations in State of UttarPradesh and others vs. Principal Abhay Nandan Inter College andothers, 2021 AIR (SC) 4968: 2021 (15) SCC 600, wherein theHon’ble Apex Court has upheld the scheme for outsourcingissued in the State of Uttar Pradesh in respect of Class-IVemployees in colleges. It was considered that the challenge tothe amendment to the Regulation in respect of outsourcing andit was further considered that said Regulation which was in theform of a subordinate legislation was also in the form of a policydecision. A policy decision is presumed to be in public interestand such a decision once made is not amenable to challenge,until and unless there is manifest or extreme arbitrariness, aConstitutional Court is expected to keep its hand off. LearnedAGP strenuously submits that it is the policy decision that hasbeen taken, then the petitioners have no right to challenge thesaid Government Resolution unless it is shown that only thepetitioners are discriminated. 13.As the facts have already been narrated, the same neednot be reproduced once again. The challenge is to theGovernment Resolution dated 11th December 2020, which is ofcourse the outcome of the power within the State Government to wp-12492.2114make rules in respect of staffing pattern. Certainly, in view of theobservations in Writ Petition No. 5959 of 2015 on 4th May 2018(Sanskar Prabodhini Secondary School, Through its HeadMistress vs. the State of Maharashtra and others) (supra), theSecondary School Code has a statutory force. However, it can beseen that the main object is to have uniformity in the schools,especially the secondary school or higher secondary school orhigher secondary multipurpose school or vocational high school,which is described in the definition of “school” in Chapter-I of theSecondary School Code. Chapter-II of the Secondary SchoolCode deals with the recommendation, organization andmanagement of the schools including conditions, grant, refusaland withdrawal of recognition, admissions, staffing pattern etc.But when Chapter-III of Secondary School Code lays downprovisions for conditions of service of staff, records, register andinspection, then the number of clerical staff admissible to aschool has been prescribed in Clause 57.5. Clause 57.7 dealswith lower grade staff and all this is by virtue of GovernmentResolution dated 2nd January 1975. Even in respect of laboratoryassistant, the pattern is fixed as per Circular dated 21st May1981. wp-12492.211514.Section 16 of the MEPS Act prescribes for rules and Section16(1) gives power to the State Government to make rules forcarrying out the purposes of this Act by notification in the officialgazette. The MEPS Rules of 1981 have been framed underSection 16(1) and 16(2) of the MEPS Act and Rule 7 of the MEPSRules deals with scales of pay and allowances and it is said thatit should be as per Schedule “C”. Thus, it can be seen that theultimate power is with the State Government, which can makenecessary changes by way of Government Resolutions. VariousGovernment Resolutions, referred above, are the outcome ofpolicy decision by the Government and out of that evenGovernment Resolution dated 28th June 1994 was also theoutcome of the report of the committee constituted under thechairmanship of Mr. Chiplunkar by the Government and it wasthe outcome of policy decision. The subsequent GovernmentResolutions of 25th November 2005, 23rd October 2013 and 12thFebruary 2015 are also part of the policy decision and after theprocedure undertaken by the Government of appointing highlevel committee. Merely because now the impugned GovernmentResolution dated 11th December 2020 makes a provision forconsolidated pay for Class-IV employees after coming into forceof the said Government Resolution and says that hereinafter wp-12492.2116there shall not be a regular post for Class-IV, which is notfavourable to the petitioners; the petitioners cannot challengethe same as being arbitrary.15.In the State of Uttar Pradesh and others vs. PrincipalAbhay Nandan Inter College and others, (supra), the Hon’bleSupreme Court has considered the challenge to the regulation.Though that Regulation was made by the State of Uttar Pradeshwhich was under the Intermediate Education Act, 1921, wecannot say that the observations from the said decision are notapplicable here. In that case, the Hon’ble Supreme Court hadtaken note of Section 9(4) of the Intermediate Education Act,1921, which was giving power to the State Government tomodify or rescind or make any regulation. Here also we havetaken into account all enabling provisions to make the rulesunder the above Enactment and therefore, we say that thoseobservations / law laid down is applicable here, which is nowreproduced. Para Nos. 36 to 39 of the decision in Uttar Pradesh(supra) reads thus:-“36.The challenge before us is the amendment to theRegulation 101. This regulation is in the form of a subordinatelegislation. A subordinate legislation can also be in the form of a wp-12492.2117policy decision. We have already noted that a policy decisionhas come into force in the year 2010 itself. 37.A policy decision is presumed to be in public interest,and such a decision once made is not amenable to challenge,until and unless there is manifest or extreme arbitrariness, aconstitutional court is expected to keep its hands off.38.A challenge to a regulation stands on a different footingthan the one that can be made to an enactment. However,when the regulation is nothing but a reiteration of a policyreinforcing the decision of the Government made earlier, thenthe parameters required for testing the validity of an Act areexpected to be followed by the Court.39.An executive power is residue of a legislative one,therefore the exercise of said power i.e., the amendment of theimpugned regulation, cannot be challenged on the basis of merepresumption. Once a rule is introduced by way of a policydecision, a demonstration on the existence of manifest,excessive and extreme arbitrariness is needed.”16.In Paragraph No.45 of the decision in Uttar Pradesh(supra), the Hon’ble Apex Court has also dealt with theargument in respect of short comings in recruitment byoutsourcing. It was specifically observed that the challenge tothe said scheme is not by an employee recruited by way ofoutsourcing, and therefore, it cannot be presumed that the saidmethod of recruitment by outsourcing would necessarily be wp-12492.2118adopting contract labour and that there exists an element ofunfair trade practice.17.Further, in Paragraph No.47 of the decision in UttarPradesh (supra), the Hon’ble Apex Court has observed thus:-“47.The entire issue has to be looked at from differentperspective as well. By the policy decision made, theappellants have abolished the post though in an indirect wayby providing for “Outsourcing”. Now, a court cannot create orsustain the aforesaid post. There is nothing on record to holdthat the decision made is extraneous as it is obviously madeapplicable not only to the aided institutions but also to allgovernment departments as well.”18.We are taking note of the fact that the Government ofMaharashtra is also encouraging employment by contract inGovernment offices as regards Class-IV employees areconcerned and even as regards the work of cleanliness in variousGovernment premises is concerned, it is now by way ofoutsourcing or giving a contract of the same by inviting tenders.Taking similar situation in account, the Hon’ble Apex Court hasobserved in Paragraph No.48 of the decision in Uttar Pradesh(supra) thus:- wp-12492.2119“ 48. Arguments are advanced to the effect that interest ofpoor and needy is affected by the impugned Regulation. Wedo not know how the interest of the poor and needy isaffected by the impugned Regulation. Admittedly, nochallenge has been made to the decision taken in 2010 and2011 which was to be made applicable to all the recruitmentsfor Group ‘IV’ posts in the Government, and not only for theinstitutions and the persons recruited by them. The entirelitigation is triggered only by the institutions.”19.The Hon’ble Apex Court in Uttar Pradesh (supra) hasclearly observed in Paragraph No.43 thus:- “43. The Division Bench in considering the view has enteredinto an arena which was not required to be done. Muchlabouring was done in interpreting the word “Outsourcing”,however, such an exercise ought to have been avoided as itstands outside the scope of judicial review. We have alreadynoted the fact that “Outsourcing” as a matter of policy isbeing introduced throughout the State. It is one thing to say that it has to be given effect to withcaution as recommended by the Seventh Central PayCommission, and another to strike it down asunconstitutional. “Outsourcing” per se is not prohibited in law.It is clear that a recruitment by way of “Outsourcing” mayhave its own deficiencies and pit falls, however, a decision totake “Outsourcing” cannot be declared as ultra vires of theconstitution on the basis of mere presumption andassumption. Obviously, we do not know the nature of thescheme and safeguards attached to it.” wp-12492.212020. Herein this case, said employee Smt. Wani has notchallenged the said Government Resolution or the order dated3rd February 2021, by which the Education Officer (Secondary),Zilla Parishad, Aurangabad had rejected the proposal to grantapproval to her appointment. Further, said Smt. Wani is also notmade party to the present Petition and therefore, taking intoconsideration the prayers, we find no merit in the presentPetition and it deserves to be dismissed.21.Accordingly, the Writ Petition is dismissed. [S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/APR24
Arguments
wp-12492.2125) The Director of Education (Primary), Maharashtra State, Pune Central Building, Pune-1 ...RESPONDENTS ... Mr. V.G. Salgare Advocate for Petitioners. Dr. Kalpalata Patil-Bharaswadkar, A.G.P. for Respondent Nos. 1 and 2. Respondent Nos. 3 to 5 are served. ... CORAM: SMT. VIBHA KANKANWADI AND S.G. CHAPALGAONKAR, JJ.DATE OF RESERVING JUDGMENT : 20th MARCH 2024DATE OF PRONOUNCING JUDGMENT : 23rd APRIL 2024 JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :1.Rule. Rule made returnable forthwith. Heard learnedcounsel appearing for the respective parties finally, by consent.2.The petitioner No.1 is the society and petitioner No.2 is theschool run under the management of petitioner No.1. They arechallenging the Government Resolution dated 11th December2020 whereby respondent No.1 fixed the staffing pattern ofClass-IV employees under secondary and higher secondaryschools run under the State of Maharashtra. As per the said wp-12492.213Government Resolution dated 11th December 2020 contractualemployees are to be appointed to perform the work of Class-IVemployees in place of regular appointed Class-IV employees andrespondent No.1 will grant peon allowance to the schools forsuch contractually appointed employees. The said GovernmentResolution abolishes the sanctioned and regular posts of Class-IVemployees, but while making a provision for contractualemployees, providing for a meager peon allowance and changingthe ratio of number of students to the number of Class-IVemployees is said to be detrimental to the interest of the schoolsand students. Further, it is also contrary to the provisions ofEqual Remuneration Act, 1976 as the regular employee wouldget salary as per the pay-scale and the contractual employeedoing the equal work will not get equal pay and therefore, it isviolative of Article 14 and 16 of the Constitution of India. It isalso said that the said Government Resolution is contrary to theprovisions under the Secondary School Code, MaharashtraEmployees of Private Schools (Conditions of service) Act, 1977(for short “MEPS Act”) and Rules framed thereunder of 1981 aswell as contrary to Maharashtra Primary Education Act, 1949.The said Government Resolution is totally a departure from theearlier staffing pattern of Class-IV employees provided under the wp-12492.214previous Government Resolutions which have proved to the testof time till today. The petitioners are praying that the earlierGovernment Resolution dated 28th June 1994 under which, onthe basis of Chiplunkar Committee, regular pay scales areprovided under the Maharashtra Employees of Private Schools(Conditions of Service) Regulation Rules, 1981 (for short “MEPSRules”) with amendments from time to time be implemented asbefore. The petitioners have quoted the data of the studentsfrom their school from the academic year 2017-2018 on-wardsand submits that in all eight posts of non-teaching employeeswere sanctioned to petitioner No.2 school. 3.It is also the case of the petitioners that one Smt. KokilabaiWani, who is the widow, was working as Class-IV employee outof the four employees, on admissible post since 2000 ontemporary basis. She was appointed on sanctioned post on 1stAugust 2017 for the probation period of three years. Thereafterpetitioner No.2 submitted proposal for the approval of herappointment on the said post, however it was rejected by theEducation Officer (Secondary), Zilla Parishad, Aurangabad. Thesaid employee Smt. Wani had then approached this Court byfiling Writ Petition No.2820 of 2020. As per the orders passed by wp-12492.215this Court on 17th February 2020, the Education Officerprocessed the proposal and the Deputy Director of Educationcondoned over age of the said employee and the said proposalwas to be decided on the lines of the Judgment in the case ofRavindra Ghansing Sonwane vs. State of Maharashtra, decidedon 11th February 2019 in Writ Petition No.2906 of 2018.However, by referring to the Government Resolution dated 11thDecember 2020, the Education Officer rejected the proposal ofSmt. Wani by order dated 3rd February 2021. 4.According to the petitioners, initially petitioner No.2 wasentitled to have six posts of Class-IV employees as per theSecondary School Code and the Government Resolution dated28th June 1994 but only four posts were sanctioned for Class-IVemployees and in spite of several representations andproceedings before this Court, two additional posts of Class-IVemployees were not sanctioned on the ground that no staffingpattern for Class-IV employees is decided by respondent No.1.Now, in view of the rejection of approval to the appointment ofSmt. Wani and the Government Resolution dated 11th December2020, the posts sanctioned to petitioner No.2 school for Class-IVemployees would be further reduced by two. It would be wp-12492.216injustice to petitioner No.2 to carry on the school withinadequate staff of Class-IV employees and now the posts ofClass-IV employees would get abolished. The allowance that isfixed under the said Government Resolution is very meager andthere would be very few persons who would come forward toperform said duties. In Central Schools the staffing pattern isdifferent and sufficient posts of Class-IV employees aresanctioned. The said Government Resolution is alsodiscriminatory as the schools run by the Zilla Parishad andMunicipal Corporation have regular and sanctioned posts ofClass-IV employees till today. Therefore, the discrimination withthe schools run by the private institutions is violative of Article14 and 16 of the Constitution of India. 5.There is no reply given by the respondents, however, oralsubmissions have been made on behalf of respondent Nos.1and 2.6.Heard learned Advocate Mr. V.G. Salgare appearing for thepetitioners and learned AGP Dr. Kalpalata Patil-Bharaswadkarappearing for respondent Nos. 1 and 2.