High Court
Legal Reasoning
Writ Petition No.9901/2014:: 11 ::13.Close reading of the aforesaid rules would indicatethat, Rule 26 has no application at all since it is not a case ofretrenchment of the Petitioners from service. Close reading ofRule 25A would also suggest that, case of the Petitionerswould not be covered thereby. In our view, there is some grayarea as regards dealing with a case of the Petitioners and alikesituation. It is true that, by virtue of Article 98.1 of the Code,salary grants may be withdrawn on account of the strength ofpupils of the school reduced to below 30. The rules and theCode do not provide for taking care of services and otherbenefits of the employees like Petitioners who were serving onthe post in the schools receiving 100% grants. Moreover, thePetitioners, except petitioner No.3 rendered service more than13 years by 2013. By abruptly withdrawing salary grants,compelling the management to close down the school isnothing but driving the employees to fend on themselves.When other employees of the school who were allegedlyterminated for misconduct, were allowed to be reinstated inservice with back wages as the officials of the EducationDepartment did not prefer to contest their appeals. There canbe no two views over what has been observed by the Division Writ Petition No.9901/2014:: 12 ::Bench of this Court in case of Sayyad Manjur (supra) relied bythe learned A.G.P. In the said case, the Division Benchobserved in paragraph Nos.12 to 18 as under :12. Thus absorption in another school is not amatter of right. The Education Officer/DeputyDirector merely recommends the surplus teacherto the management of either newly opened aidedschool or the existing aided schools which areallowed to open additional divisions or classes forconsideration.13. The issue of entitlement of surplus teacherfor absorption has been interpreted in variousdecisions of this Court. The Full Bench of thisCourt in the case of Kanhaiyyalal SonbajiGajbhiye (supra) has held in para No. 29 as under :29. A bare reading of rule 25A would showthat it deals with termination on account ofabolition of posts resulting from closure,voluntary or on the ground of de-recognitionof the school. It does not refer to the conceptof “retrenchment” which appears to dominatethe newly amended rule 26. That apart, rule25A does not grant same degree of protectionto the terminated employees as was availableto them in earlier rule 26 and which was inthe nature of their absorption in anotherschool and protection of their services tillabsorption. Instead, rule 25A gives new kindof protection, rather privilege, to theterminated employees of aided schools. Sub-rule (2) of rule 25A lays down that if suchemployees from aided schools are notdirectly responsible for the de-recognition ofthe school, their names must be included inwaiting list by the competent authority, who Writ Petition No.9901/2014:: 13 ::may be either the Education Officer or theDeputy Director depending upon the class ofthe school. It imposes further duty upon thecompetent authority to recommend theirnames to the Managements of newly aidedschools or the existing aided schools whichare allowed to open additional divisions orclasses for consideration.14. In the case of Prabhakar Panjabrao Mahajan(supra) this Court has held in para No. 27 asunder:27)A teacher who is terminated onaccount of contingency covered by rule 25Acan only be considered for recommendationsto the management of other school for beingappointed on their establishment as a freshcandidate and such management is requiredto consider the case of employee forabsorption and any such appointment ofemployee terminated under rule 25A isrequired to be treated as newly appointedemployee who has (the petitioner in thiscase) suffered termination under rule 25A ofthe MEPS Rules. All new appointees arerequired to be treated as Shikshan Sevakcovered under the Scheme of ShikshanSevak framed by the Government videGovernment Resolution dated 27th April2000 read with modified GovernmentResolution dated 13th October 2000. 15. So far as payment of salary to the absorbedteacher is concerned, the same is governed by theprovisions of Rule 91(2) of the Code of 2018,which provides that the absorbed teacher shall notbe entitled to salary till the date of joining by wayof absorption. The period between the date ofdeclaration as surplus teacher till the date ofjoining in absorbed school is required to be treated Writ Petition No.9901/2014:: 14 ::as dies non.16. The issue of payment of salary in the lightof the provisions of Rule 25A of the Rules of 1981has been dealt with by this Court in variousdecisions. In the case of Gramin Vikas ShikshanVa Krida Prasarak Mandal Khadki (supra) thisCourt has held in para No. 39 as under :39. If it is closure under Rule 25A, there is noquestion of payment of any back wages andemployee becomes entitled to placement in list ofsurplus candidates. If it is retrenchment underRule 26, there can be no termination andrespondent no.1 continues to earn salary everymonth till she is absorbed. We have alreadyconcluded that even if it is a case of closure underRule 25A, still otherwise termination on20.06.1997 is bad. Hence, the entitlement to reliefof reinstatement or then to relief of absorption andalso to relief of wages denied (back wages) turnsupon the answer to question whether on20.06.1997 respondent no.1 has been retrenchedunder Rule 26 or terminated under Rule 25A?(emphasis supplied) 17. Also this Court in the case of ChandramaMilind Bhatkar and others (supra) and Shri SawantPandurang Dattatraya and another (supra) hasdenied salary prior to the date of actual joiningconsequent to absorption.18. Considering the inter play between Rule25A of the Rules of 1981 and Rule 91(2) of theCode of 2018, it is clear that absorption of asurplus teacher is not a matter of right and thatupon absorption, the teacher is not entitled to bepaid salary till the date of actual joining. There isyet another difficulty for the petitioner. He isseeking implementation of order dated 26.07.2016and payment of salary in pursuance thereof. Writ Petition No.9901/2014:: 15 ::However, by subsequent order dated 16.11.2019,the order dated 26.07.2016 has been cancelled.The order dated 26.07.2016 no longer survives.The petitioner has not challenged the order dated16.11.2019 in the present petition at least quacancellation of order dated 26.07.2016. Thecancellation of order dated 26.07.2016 has thusattained finality. Therefore, the order dated26.07.2016 can no longer be relied upon whiledeciding petitioner’s entitlement to salary.14. It would not be in the fitness of things to concede tothe submissions of the learned A.G.P. that when themanagement had come with a stand of having terminated thePetitioners from service, their remedy would be to preferappeal to the School Tribunal against their termination. In thepeculiar facts and circumstances of this case, theRespondents No.2 to 6 need to be directed to take thepetitioners (Smt. Surekha Kashinath Margane, Shri ShivajiManikrao Birajdar, Shri Abhang s/o Vithalrao Indrale, Smt.Chhaya Rambhau Nannure and Shri Rajendra s/o BaliramHarale) on the list of surplus Teachers and accommodate onthe schools receiving 100% grant-in-aid.15.So far as regards back wages are concerned, weare not inclined to grant the Petitioners the said relief in view of Writ Petition No.9901/2014:: 16 ::the principle of “No work no pay”. The learned Advocate forthe petitioners has relied on the judgment of the Apex Court incase of U.P. State Brassware Corpn. Ltd. v. Tapan KumarBhattacharya and another (2002) 6 SCC 41, UttaranchalForest Development Corpn. v. M.C. Joshi (2007) 9 SCC353, Jaipur Development Authority v. Ramsahai andanother (2006) 11 SCC 684, and Jagbir Singh v. HaryanaState Agriculture Marketing Board and another (2009) 15SCC 327.But in the recent years the Supreme Court isreiterating its earlier decisions that reinstatement with full backwages is normal rule, it has emphasised that if the employerwants to avoid payment of full back wages, then he has toplead and prove that the employee was gainfully employedand was getting wages equal to the wages he/ she wasdrawing prior to termination of service. It has held that theCourts must keep in view that the wrongdoer is the employerand the sufferer is the employee and there is no justification togive a premium to the employer for his wrongdoings by notgranting full back wages. Sometimes the Courts take the view Writ Petition No.9901/2014:: 17 ::that due to pendency of the cases for a long time the employershould not be saddled with the payment of full back wages, butthis view was not found favour with the Supreme Court and itwas held in the case of Deepali Gundu Surwase (supra) thatlack of infrastructure and manpower is one of the principalreasons for the delay in disposal of the cases in the tribunalsand Courts and for this the employee cannot be blamed orpenalised. It was further held that it would be miscarriage ofjustice if he is denied back wages simply because there was along lapse of time between termination of his service andreinstatement by the Court and in such situation, the employer,who is a wrongdoer, gets the benefit of the delay. The relevantpart of the judgment of the Supreme Court in Deepali GunduSurwase (supra) reads as under : “38.6. In a number of cases, the superior courtshave interfered with the award of the primaryadjudicatory authority on the premise thatfinalisation of litigation has taken long time ignoringthat in majority of cases the parties are notresponsible for such delays. Lack of infrastructureand manpower is the principle cause for delay in thedisposal of cases. For this the litigants cannot beblamed or penalised. It would amount to graveinjustice to an employee or workman if he is deniedback wages simply because there is long lapse oftime between the termination of his service and
Arguments
Writ Petition No.9901/2014:: 1 ::CORRECTED ORDERIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.9901 OF 2014Smt. Surekha Kashinath Margane & ors.… PETITIONERSVERSUSThe State of Maharashtra & ors.… RESPONDENTS.......Mr. V.D. Gunale, Advocate for petitionersMr. A.S. Shinde, A.G.P. for StateMr. A.D. Sonkawade, Advocate holding for Mr. A.V. Hon, Advocate for respondents No.5 and 6....… CORAM : R.G. AVACHAT ANDSANDIPKUMAR C. MORE, JJ.Date of reserving order : 8th May, 2025Date of pronouncing order : 1st August, 2025O R D E R :This Petition, under Article 226 of the Constitutionof India, is filed for the following main reliefs :C-1)By writ of certiorari or any other appropriatewrit, order or directions, the impugnedcommunication dated 02/07/2014 issued by theEducation Officer thereby seeking guidance Writ Petition No.9901/2014:: 2 ::from the Deputy Director of Education, whetherthe Education Officer has jurisdiction to absorbthe petitioners be quashed and or set aside andfor that purpose necessary orders be issued.C-2)By a writ of mandamus or any other appropriatewrit, order or directions, the Respondents bedirected to pay all the pensionery and all retiralbenefits to the Petitioner No.2, Petitioner No.4a& 4b and Petitioner No.5, and for that purposenecessary orders be passed.D)By writ of mandamus or any other appropriatewrit, order or directions in the nature of writ ofmandamus, the Respondents be directed toabsorb the Petitioners in any other recognizedgranted schools with continuity of their servicesand other consequential benefits and release thenon-salary of the petitioners from August, 2013onwards and for that purpose necessary ordersbe passed.2.Heard. The Petitioners joined service as teachingand non-teaching staff with the Respondent No.6 school, runby the Respondent No.5- Educational Institution. ThePetitioners claim to have been qualified and duly appointed onthe respective posts by following due process of law. Even inthe course of time, their appointments have been approved.The Respondent No.6 school would receive full grants-in-aid.All was not well between the Petitioners on one hand and thethen Head Mistress and the management of the school on the Writ Petition No.9901/2014:: 3 ::other. The Head Mistress issued leaving certificates to almostall the pupils of the school. Thereby, the number of studentsgot substantially reduced.3.The Respondents No.1 and 2 withdrew the grants-in-aid of the school on account of the strength of the pupil tohave been reduced substantially. The management closeddown the school. The Petitioners were driven to fendthemselves. They made many a representations to theRespondents No.1 to 4 with a request for absorbing them insome other grant-in-aid school. Since there was no positiveresponse from the authorities concerned, the Petitionersapproached this Court. 4.Pending the Writ Petition, original Petitioner No.4passed away. Her legal representatives have been brought onrecord. Moreover, 3 of the 6 Petitioners attained the age ofsuperannuation. For the sake of convenience, the parties tothis Petition are referred to as the Petitioners and theRespondents as per their status in the Petition. Writ Petition No.9901/2014:: 4 ::5.The Respondents No.1 to 3 filed affidavit-in-replycontending that, since the strength of pupils of the school wasreduced to less than 30, in exercise of powers under ItemNo.98.2 of the Secondary School Code, grants-in-aid of theRespondent No.6 were withdrawn. The Petitioners may haveremedy against the management of the school.6.The learned A.G.P. made the submissionsconsistent with the affidavit-in-reply and relied on the authorityin the case of Sayyad Manjur s/o Mujafar Vs. The State ofMaharashtra & ors. (Writ Petition No.1934/2017, decided on3/10/2022).7.The educational institute filed its affidavit-in-replylittle over 10 years after this Writ Petition was admitted. It camewith a case of the services of the Petitioners to have beenterminated on the ground of misconduct. Certain documentshave also been placed on record. It was also submitted thatthe Petitioners may have remedy of appeal before the SchoolTribunal. The dismissal of the Petition was ultimately urgedfor. Writ Petition No.9901/2014:: 5 ::8.We have considered the submissions advanced.Perused the documents on record. The details of thePetitioners joining service and approval to their appointmentsis given in tabular form below : Sr.No.Name of PetitionerDate ofappointment Date of approval1.Smt. Surekha Kashinath Margane16/9/199420022.Shivaji Manikrao Birajdar22/6/199219973.Abhang Vithalrao Indrale2/8/2010Three years4.Smt. Mangal Sheshrao Bhosale25/6/199319975.Smt. Chhaya Rambhau Nannure16/9/199419976.Rajendra Baliram Harale9/6/200420069.A reference is required to be made to Rule 25A ofthe Maharashtra Employees of Private Schools (Conditions ofService) Rules, 1981. However, for the sake of convenience,the said Rule is referred to at the relevant place. 10.The petitioners No.1 to 3 were initially appointed as Writ Petition No.9901/2014:: 6 ::Assistant Teachers/ Shikshan Sevaks. The petitioners No.4 to6 were appointed as Peons. Up till 2013, all of them exceptPetitioner No.3 had completed number of years of service,entitling them for pensionery benefits. It is in 2013, thestrength of the pupils in the school with which they wereserving, was reduced to below 30. It appears that, all was notwell between the Petitioners on one hand and the then HeadMistress and some other staff of the school on the other. Themanagement appears to have initially been on the side of thePetitioners. The then Head Mistress was terminated fromservice along with some other staff. They approached theSchool Tribunal in appeals. Their appeals were allowed with adirection to reinstate them with back wages. The wages weredirected to be paid by the management. In those proceedings,the Education Officer and other officials of EducationDepartment of the State did not appear. Meaning thereby, theappeals were heard ex-parte. It also appears that, the orderspassed by the School Tribunal were not challenged by thoseauthorities. Be that as it may.11.The management filed affidavit-in-reply ten years Writ Petition No.9901/2014:: 7 ::after receipt of the notice of this Writ Petition. It came with astand of having terminated the services of the Petitioners onthe ground of misconduct. It also claimed that an enquiry wasmade before terminating their services. Nothing tangible has,however, been placed on record in that regard except thedocuments in the nature of show-cause-notice sent throughR.P.A.D. It is re-iterated that, there is no material at all tosuggest the services of the Petitioners were terminated byfollowing due process of law. The Education Officer in his firstaffidavit-in-reply admitted that all was not well between thePetitioners on one hand and the then Head Mistress of themanagement of the school on the other. The same reinforcesthe claim of the Petitioners that, on reinstatement of the thenHead Mistress, she did not allow the petitioners to sign themuster roll. How come there be termination of the petitionersfrom service three years thereafter. We are concerned hereinwith the claim of the Petitioners to take them on the list ofsurplus teachers and absorb in service with the schoolreceiving grants-in-aid. The record indicates that, the schoolwas closed in 2013. To decide the claim of the petitioners, itwould first be necessary to advert to the relevant rules. Rules Writ Petition No.9901/2014:: 8 ::25A and 26 of the Maharashtra Employees of Private Schools(Conditions of Service) Rules, 1981 are reproduced below :25A.Termination of Service on account ofabolition of posts.The services of permanent employee may beterminated by the Management on account of abolitionof posts due to closure of the school after giving himadvance intimation of three months to the effect that inthe event of closure of the school, his services shallautomatically stand terminated. In the case of closureof school due to de-recognition, such advanceintimation of three months shall be given by theManagement to the permanent employees after receiptof a show cause notice from the Deputy Director.Explanation : For the purpose of this sub-rule, theexpression 'closure of the school' shall include,-(i)voluntary closure by the Management of theentire school if it is imparting instruction through onemedium or a part of the school comprising one ormore media of instruction if it is imparting instructionthrough more than one medium; and(ii)closure of the school due to de-recognition bythe Department. 2.The names of the employees in aided schools,whose services stand terminated in accordance withsub-rule (1) on account of de-recognition and who arenot directly responsible for such de-recognition, shallbe taken on a waiting list by the Education Officer inthe case of Primary and Secondary Schools or by theDeputy Director in the case of Higher Secondary Writ Petition No.9901/2014:: 9 ::Schools and Junior College of Education, and sameshall be recommended by him to the Managements ofnewly opened aided schools or of the existing aidedschools which are allowed to open additional divisionsor classes for consideration.26.Retrenchment on account of abolition of posts.(1)A permanent employee may be retrenched fromservice by the Management after giving him 3 months'notice, on any of the following grounds, namely :(i)reduction of establishment owing to reduction inthe number of classes or divisions;(ii)fall in the number of pupils resulting inreduction of establishments;(iii)change in the curriculum affecting the numberof certain category of employees;(iv)closure of a course of studies;(v)any other bona fide reason of similar nature.(2)…………….(3)…………….(4)…………….(5)…………….(6)…………….(7)…………….(8)…………….(9)…………….” 12.It would also be necessary to refer to Articles 98.1,98.2 and 98.3 of the Secondary School Code (Code for short),which read thus : Writ Petition No.9901/2014:: 10 ::98.1No grant will be paid for any class in asecondary school with less than an average dailyattendance of 30 pupils. However, the DeputyDirector concerned may at his discretion relax thecondition in the following cases :-(0) Batches of students admitted during the first fiveyears of the existence of a school(i)Schools exclusively for girls;(ii)Schools exclusively in Scheduled areas;(iii)Schools for children of minority languagesgroups teaching though the medium of one or moreof the following minority languages viz. Gujarati,Kannada, Tamil, Telgu, Urdu, Sindhi, Hindi,Malyalam;(v)Schools which have been started at placeswhich were planned in the Educational Survey of1957.98.2The rule may be relaxed by the DeputyDirector concerned in the case of standards with astrength of 50 or more pupils which have been splitup into classes for imparting instruction effectively,and in other deserving cases. No relaxation shall bemade in cases that may result in local unhealthycompetition.98.3relaxation of the condition of averageattendance for certain temporary period has beenindicated in appendix TWENTY-TWO.Note : (These rules have been superseded videGovernment Resolution, E, and Y.S.D.No.SSN.1074/68698NII of 22nd April 1976, whichhas been printed as “Appendix-22”.
Decision
Writ Petition No.9901/2014:: 18 ::finality given to the order of reinstatement. Thecourts should bear in mind that in most of thesecases, the employer is in an advantageous positionvis-a-vis the employee or workman. He can avail theservices of best legal brain for prolonging the agonyof the sufferer i.e. the employee or workman. He canavail the services of best legal brain for prolongingthe agony of the sufferer i.e. the employee orworkman, who can ill-afford the luxury of spendingmoney on a lawyer with certain amount of frame.Therefore, in such cases it would be prudent to adoptthe course suggested in Hindustan Tin Works (P) Ltd.v. Employees (1979) 2 SCC 80.16.Since there is nothing to indicate who is to beblamed for the mess or reasons compelling withdrawal of thegrants-in-aid, it would not be in the fitness of things to grant thePetitioners back wages. Moreover, the petitioners could onlybe taken on the list of surplus Teachers/ staff for beingaccommodated. The State is not under obligation to paysalary for unserved period on such account. So far as regardsdeceased Petitioners are concerned, a direction to give thempensionery benefits after considering the period during whichthey were not in service, to be in continuous service.17.For all the aforesaid reasons, the Writ Petition isallowed in terms of the following order : Writ Petition No.9901/2014:: 19 ::O R D E R(i)The Writ Petition is allowed.(ii)The Respondents No.2 to 6 are directed to take thepetitioners No.1 Smt. Surekha Kashinath Margane; No.3 ShriAbhang s/o Vithalrao Indrale; and No.6 Shri Rajendra s/oBaliram Harale on the list of surplus Teachers/ staff and absorbthem in service with the school/s receiving 100% grant-in-aidwithin a period of six months from the date of this order. Theearlier services of the petitioners No.1, 3 and 6 be treated astheir notional service for the purpose of pensionery benefitswithout back wages.(iii)So far as deceased Petitioners No.4 Smt. MangalSheshrao Bhosale, who died pending the Petition; andpetitioners No.2 Shri Shivaji Manikrao Birajdar and No.5 Smt.Chhaya Rambhau Nannure, who attained the age ofsuperannuation is concerned, the Respondents No.2 to 6 aredirected to count the period as regular service until the date oftheir death or attaining the age of superannuation, and grant Writ Petition No.9901/2014:: 20 :: them consequential pensionery and other benefits within aperiod of six months from the date of this order. (SANDIPKUMAR C. MORE, J.) (R.G. AVACHAT, J.) fmp/-