LAXMI EDUCATION SOCIETY & ORS. vs. STATE OF MAHARASHTRA & ORS.

1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.73 OF 2002
1.Laxmi Education Society,
9, Wallace Street, Fort,
Mumbai – 400 001.
2. The Principal,
Sir.M.V.College of Science & Commerce,
Seth L.U.Jhaveri College of Arts,
Dr.S.Radhakrishna Marg,
Andheri (E), Mumbai – 400 069.
3. The Principal,
Shri Chinai College of Commerce & Economics,
Dr.S.Radhakrishnan Marg, Andheri (E),
Mumbai – 400 069. ...Petitioners
Versus
1.The State of Maharashtra,
through the Government Pleader,
Original Side, Mumbai.
2.The Joint Director,
Department of Higher Education,
Mumbai Divisional Officer,
Elphinstone Technical School Campus,
3, Mahapalika Marg,
Mumbai – 400 001.
3.The Deputy Director of Education,
Greater Mumbai, Jawahar Bal Bhavan,
Charni Road, Mumbai – 400 004.
4.The Director of Education,
Higher Education, Pune.
5.The University of Bombay,
M.G.Road, Fort,
Mumbai – 400 023. ...Respondents
......
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WITH
APPEAL NO. 299 OF 2008
IN
WRIT PETITION (L) NO. 1246 OF 2008
The Chairman/Secretary,
Laxmi Education Society,
9, Wallace Street, Fort,
Mumbai 400 001. ....Appellant
(Ori.Respdt. No.2)
Versus
1. State of Maharashtra, through the
Secretary, School Education and
Sports Department, Mantralaya,
Mumbai 400 032.
2. The Director of Education,
Maharashtra State (Higher
Secondary Central Building,
Opp. Collector’s Office,
Pune 411 001.
3. The Deputy Director of Education,
Greater Mumbai, Jawahar Bal Bhavan,
Netaji Subhash Road, Charni Road,
Mumbai 400 004.
4. Shri Gopalkrishna N. Gaggar,
134/3567, Pant Nagar, Ghatkopar,
Mumbai 400 075.
5. The Principal,
Sheth M.V.L.U. Junior College and
Chinoy College of Arts, Science
And Commerce,
Dr. S. Radhakrishnan Marg, Andheri(East)
Mumbai 400 069. ...Respondents
(Nos. 1to 3 – Or.Petitioners
Nos.4 & 5-Ori.Respdt.Nos.1 & 3)
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WITH
NOTICE OF MOTION NO. 2497 OF 2008
IN
APPEAL NO. 299 OF 2008
IN
WRIT PETITION (L) NO. 1246 OF 2008
The Chairman/Secretary,
Laxmi Education Society,
9, Wallace Street, Fort,
Mumbai 400 001. ....Appellant
(Ori.Respondent No.2)
Versus
1. State of Maharashtra, through the
Secretary, School Education and
Sports Department, Mantralaya,
Mumbai 400 032.
2. The Director of Education,
Maharashtra State (Higher
Secondary Central Building,
Opp. Collector’s Office,
Pune 411 001.
3. The Deputy Director of Education,
Greater Mumbai, Jawahar Bal Bhavan,
Netaji Subhash Road, Charni Road,
Mumbai 400 004.
4. Shri Gopalkrishna N. Gaggar,
134/3567, Pant Nagar, Ghatkopar,
Mumbai 400 075.
5. The Principal,
Sheth M.V.L.U. Junior College and
Chinoy College of Arts, Science
And Commerce,
Dr. S. Radhakrishnan Marg, Andheri(East)
Mumbai 400 069. ...Respondents
(Nos. 1to 3 –
Ori.Petrs.Nos. 4 & 5-
Ori.Respdt.Nos.1 & 3)
.......
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WITH
WRIT PETITION NO. 2327 OF 2008
Laxmi Education Society,
Registered Trust through its
Trustees, having office at 9,
Wallace Street,
Fort, Mumbai. .....Petitioner
Versus
1. The Director of Education,
Central Bldg.,
Pune 400 101.
2. The State of Maharashtra,
Through the Secretary School
Education, Mantralaya,
Mumbai 400 032.
3. Laxmi Charitable Trust,
Registered Trust through its
Trustees, having office at
9, Wallace Street,
Fort, Mumbai .....Respondents
WITH
CHAMBER SUMMONS NO. 246 OF 2008
IN
WRIT PETITION NO. 2327 OF 2008
1. Laxmi Education Society,
a registered Trust through
its Trustees, having office
at 9, Wallace Street, Fort,
Mumbai 400 001.
2. Hemant Vissanji, of Mumbai
Indian Inhabitant, Trustee and
Honorary Secretary of
Laxmi Education Society,
a Regd. Trust having office at
9, Wallace Street, Fort,
Mumbai 400 001. .....Petitioners
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Versus
1. State of Maharashtra,
2. Secretary, State of Mah.
(Respondent No. 1 & 2 to
be served on the Government
Pleader, High Court (O.S.)
Mumbai.
3. M.R. Kadam,
The Director of Education,
Central Building,
Pune 400 101
4. Smt. Sheela Tiwari,
Dy. Director of Education,
Mumbai (School Education
Department), Jawahar Bal Bhavan,
Netaji Subhash Marg,
Charni Road (West)
Mumbai 400 004.
5. Shri V.S.Mhatre,
Asst. Director of Education,
Mumbai (School Education
Department), Jawahar Bal
Bhavan, Netaji Subhash Marg,
Charni Road (West),
Mumbai 400 004. ....Respondents
6. Gopalkrishna N. Gaggar,
residing at C/o 134/3567,
Pant Nagar, Ghatkopar,
Mumbai 400 075. .....Applicant/Intervenor
(Prop.Respdt.No. 6)
WITH
CHAMBER SUMMONS NO. 248 OF 2008
IN
WRIT PETITION NO. 2327 OF 2008
1. Laxmi Education Society,
a registered Trust through
its Trustees, having office
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at 9, Wallace Street, Fort,
Mumbai 400 001.
2. Hemant Vissanji, of Mumbai
Indian Inhabitant, Trustee and
Honorary Secretary of
Laxmi Education Society,
a Regd. Trust having office at
9, Wallace Street, Fort,
Mumbai 400 001. .....Petitioners
Versus
1. State of Maharashtra,
2. Secretary, State of Mah.
(Respondent No. 1 & 2 to
be served on the Government
Pleader, High Court (O.S.)
Mumbai.
3. M.R. Kadam,
The Director of Education,
Central Building,
Pune 400 101
4. Smt. Sheela Tiwari,
Dy. Director of Education,
Mumbai (School Education
Department), Jawahar Bal Bhavan,
Netaji Subhash Marg,
Charni Road (West)
Mumbai 400 004.
5. Shri V.S.Mhatre,
Asst. Director of Education,
Mumbai (School Education
Department), Jawahar Bal
Bhavan, Netaji Subhash Marg,
Charni Road (West),
Mumbai 400 004. ....Respondents
And
1. Shailendra Eknath Kamble
Co-Convener of LUMV Chinai
College Bachhav Samiti residing at
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B/232 Apli Ekta SRA CHS
Navpada, Marol Naka
Andheri-Kurla Road
Mumbai 400059. .....Applicant
WITH
NOTICE OF MOTION NO. 304 OF 2009
IN
WRIT PETITION NO. 2327 OF 2008
1. Laxmi Education Society,
registered under the Societies
Registration Act, 1860,
having its office at
9, Wallace Street, Fort,
Mumbai 400 001.
2. Hemant Vissanji of Mumbai
Indian Inhabitant, Trustee and
Honorary Secretary of
Laxmi Education Society,
a registered trust having office at
9, Wallace Street, Fort,
Mumbai 400 001. .....Petitioners
Versus
1. State of Maharashtra,
2. Secretary, State of Maharashtra,
(Respondent No. 1 & 2 to
be served on the Government
Pleader, High Court (O.S.)
Mumbai.
3. M.R. Kadam,
The Director of Education,
Central Building,
Pune 400 101
4. Smt. Sheela Tiwari,
Deputy Director of Education,
Mumbai (School Education
Department), Jawahar Balbhuvan,
Netaji Subhash Marg,
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Charni Road (W)
Mumbai 400 004.
5. Shri V.S.Mhatre,
Asstistant Director of Education,
Mumbai (School Education
Department), Jawahar Balbhuvan,
Netaji Subhash Marg,
Charni Road (W),
Mumbai 400 004. ....Respondents
WITH
NOTICE OF MOTION NO. 338 OF 2009
IN
WRIT PETITION No. 2327 OF 2008
The Chairman/Secretary,
Laxmi Education Society,
9, Wallace Street, Fort,
Mumbai 400 001. .....Petitioner
Versus
1. The Director of Education,
Maharashtra State (Higher Secondary)
Central Building,
Opp. Collector’s Office,
Pune-411001.
2. State of Maharashtra, through the
Secretary, School Education and
Sports Department, Mantralaya,
Mumbai 400 032.
3. Laxmi Charitable Trust, a registered
Trust, through its Trutees, having office at
9, Wallace Street, Fort, Mumbai. ....Respondents
.....
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WITH
WRIT PETITION NO.2521 OF 2008
Laxmi Charitable Trust, a educational Trust,
registered under the Bombay Public Trusts Act,
having its office at 9, Wallace Street,
Fort, Mumbai. ...Petitioner
Versus
1.State of Maharashtra,
through Secretary Education,
with service to be done on Government
Pleader, Bombay High Court.
2.The Director of Education,
Secondary & Higher Secondary Education,
Department of Education, Maharashtra State,
Central Building, Pune-400 101 AND at
Jawahar Bal Bhavan, Netaji Subhash Marg,
Charni Road-West, Mumbai – 400 001. ...Respondents
WITH

CHAMBER SUMMONS NO.330 OF 2009
IN
WRIT PETITION NO.2521 OF 2008
Laxmi Charitable Trust, a educational Trust,
registered under the Bombay Public Trusts Act,
having its office at 9, Wallace Street,
Fort, Mumbai. ...Petitioner
Versus
1.State of Maharashtra,
through Secretary Education,
with service to be done on Government
Pleader, Bombay High Court.
2.The Director of Education,
Secondary & Higher Secondary Education,
Department of Education, Maharashtra State,
Central Building, Pune-400 101 AND at
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Jawahar Bal Bhavan, Netaji Subhash Marg,
Charni Road-West, Mumbai – 400 001. ...Respondents
......
WITH
WRIT PETITION NO.1640 OF 2009
1.Madhu Rambal Subramaniam, age 45 years,
A-2/3, Shriram Nagar,
S.V.Road, Andheri (West),
Mumbai – 400 058.
2.Pundalik Vishnu Ghadigaonkar, age 45 years,
Saisharan Co-op. Hsg. Society,
th
Room No.407, 4 floor, Pump House,
Jijamata Road, Andheri (East),
Mumbai – 400 093.
3.Sudhakar B. Tiwari, age 41 years,
Room No.3, Hari Tiwari Chawl,
Gundavali, Old Nagardas Road,
Andheri (East), Mumbai-400 069. ....Petitioners
Versus
1.State of Maharashtra,
through Secretary, Education,
Mantralaya, Mumbai.
2.The Director of Education,
Secondary & Higher Secondary Education,
Department of Education, Maharashtra State,
School Building, Pune-411 101 AND at
Jawahar Bal Bhavan, Netaji Subhash Marg,
Charni Road (W), Mumbai – 400 001.
3.Laxmi Charitable Trust,
Registered under the Bombay Public Trust Act,
having its office at 9, Wallace Street,
Fort, Mumbai – 400 001.
4.Laxmi Education Society,
Registered Public Trust having its
Office at a Wallace Street, Fort,
Mumbai – 400 001. ...Respondents
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WITH
NOTICE OF MOTION NO.307 OF 2009
IN
WRIT PETITION NO.1640 OF 2009
1.Madhu Rambal Subramaniam, age 45 years,
A-2/3, Shriram Nagar,
S.V.Road, Andheri (West),
Mumbai – 400 058.
2.Pundalik Vishnu Ghadigaonkar, age 45 years,
Saisharan Co-op. Hsg. Society,
th
Room No.407, 4 floor, Pump House,
Jijamata Road, Andheri (East),
Mumbai – 400 093.
3.Sudhakar B. Tiwari, age 41 years,
Room No.3, Hari Tiwari Chawl,
Gundavali, Old Nagardas Road,
Andheri (East), Mumbai-400 069. ....Petitioners
Versus
1.State of Maharashtra,
through Secretary, Education,
Mantralaya, Mumbai.
2.The Director of Education,
Secondary & Higher Secondary Education,
Department of Education, Maharashtra State,
School Building, Pune-411 101 AND at
Jawahar Bal Bhavan, Netaji Subhash Marg,
Charni Road (W), Mumbai – 400 001.
3.Laxmi Charitable Trust,
Registered under the Bombay Public Trust Act,
having its office at 9, Wallace Street,
Fort, Mumbai – 400 001.
4.Laxmi Education Society,
Registered Public Trust having its
Office at a Wallace Street, Fort,
Mumbai – 400 001. ...Respondents
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WITH
NOTICE OF MOTION NO.385 OF 2009
IN
WRIT PETITON NO.1640 OF 2009
1.Madhu Rambal Subramaniam, age 45 years,
A-2/3, Shriram Nagar,
S.V.Road, Andheri (West),
Mumbai – 400 058.
2.Pundalik Vishnu Ghadigaonkar, age 45 years,
Saisharan Co-op. Hsg. Society,
th
Room No.407, 4 floor, Pump House,
Jijamata Road, Andheri (East),
Mumbai – 400 093.
3.Sudhakar B. Tiwari, age 41 years,
Room No.3, Hari Tiwari Chawl,
Gundavali, Old Nagardas Road,
Andheri (East), Mumbai-400 069. ....Petitioners
Versus
1.State of Maharashtra,
through Secretary, Education,
Mantralaya, Mumbai.
2.The Director of Education,
Secondary & Higher Secondary Education,
Department of Education, Maharashtra State,
School Building, Pune-411 101 AND at
Jawahar Bal Bhavan, Netaji Subhash Marg,
Charni Road (W), Mumbai – 400 001.
3.Laxmi Charitable Trust,
Registered under the Bombay Public Trust Act,
having its office at 9, Wallace Street,
Fort, Mumbai – 400 001.
4.Laxmi Education Society,
Registered Public Trust having its
Office at a Wallace Street, Fort,
Mumbai – 400 001. ...Respondents
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WITH
WRIT PETITION NO.1638 OF 2009
Prof.Mohan Pillai,
Part time Teacher in Business law at
Laxmi Charitable Trust M.V. & L.U.
College of Arts, Science & Commerce,
Mumbai, residing at 304, `Anant Ravi’
Plot No.230, Sector-5, Charkop,
Kandivali (W), Mumbai – 400 067. ...Petitioner
Versus
1.Mr.Hemant Visanji,
The President & Secretary,
Laxmi Charitable Trust,
9, Wallace Street, Fort,
Mumbai – 400 001.
2.The Principal,
M.V. & L.U. College of Arts,
Science & Commerce,
Dr.S.Radhakrishna Marg,
Andheri (E), Mumbai – 400 069.
3. The Principal,
Shri Chinai College of Commerce & Economics,
Dr.S.Radhakrishnan Marg, Andheri (E),
Mumbai – 400 069.
4. Deputy Director,
Education Department,
State of Maharashtra,
Mumbai.
5. State of Maharashtra,
Thru Government Pleader,
High Court, Bombay. ...Petitioners
........
Mr.S.H.Mehta i/b. Madekar & Co. for Petitioner in WP Nos.73/2002 and WP No.
2521/08 and for Respondent No.3 in WP No.1640/09.
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Mr.M.P.Rao,Sr.Counsel a/w Mr.Girish Kulkarni i/b. Prakash Mahadik & Co. for
Appellant in Appeal No.299/08.
Mr.M.P.Rao, Sr.Counsel a/w Mr.Girish Kulkarni i/b. A.G.Kothari for Petitioner in WP
No.2327/08 and for Respondent No.4 in WP No.1640/09.
Ms.Gayatri Singh i/b. Bhavana Mhatre for Petitioners in WP No.1640/09.
Mr.Mohan Pillai, Petitioner present in person in WP No.1638/09.
Mr.Nilesh Pawaskar, Sp. Counsel a/w Mr.B.H.Mehta, AGP for State in all matters.
......
CORAM:- SWATANTER KUMAR,CJ. AND
A.M.KHANWILKAR, J.
RESERVED ON :- NOVEMBER 24, 2009.
PRONOUNCED ON :- DECEMBER 10, 2009.
JUDGMENT: (Per A.M.Khanwilkar,J.)
1. We propose to dispose of all the six main matters and the derivative
proceedings therein together by this Judgment. For, all these matters pertain
to the same educational institution, which had started and administering two
junior colleges in question on grant in aid basis and also because the issues
raised are overlapping.
2. The main proceedings(Writ Petitions) are filed by the Management
on one hand and by the Public spirited persons espousing the cause of the
students on the other. Besides, the above numbered appeal being Appeal
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No.299 of 2008 arises out the decision of the School Tribunal. This Appeal
is filed by the Management against the decision of the School Tribunal on
the appeal instituted by the permanent employees of the junior colleges,
who in turn challenged their termination on account of closure of junior
colleges.
3. The first main Petition being W.P.No.73 of 2002 which is in earlier
point of time, has been filed by three Petitioners-the Management(Laxmi
Education Society), the Principal of Sir. M.V.College of Science and
Commerce, Seth L.U.Jhaveri College of Arts and the Principal of Shri
Chinai College of Commerce & Economics respectively. According to the
Management, they were running two colleges for Arts and Commerce and
Science and Economics and Commerce faculties which were affiliated to
the University of Mumbai. All the three Colleges were receiving 100%
grants from the State of Maharashtra. However, in due course the State
stopped disbursing non-grant salaries payable to the concerned colleges, as
also failed to carry out requisite assessment of accounts within a reasonable
time and did not revise their fees structure. As the Colleges were aided
colleges, there was restriction on amount of fees to be collected from the
students. As a result, the Colleges were facing severe financial hardship
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and led to a situation where it was practically impossible to run and manage
the Colleges and conduct classes. It is in this backdrop the Management
filed the said Petition for the following reliefs.
“a) issue a writ of mandamus or a writ, order or direction
in the nature of mandamus or any other appropriate writ,
order or direction, conduct and complete the assessment for
the Junior Colleges run by the petitioner No.2 from the year
1991-92 and furnish the Assessment Reports and be further
directed to assign, reasons in the event certain expenditure
were to be disallowed;
b) issue a writ of mandamus or a writ, order or direction
in the nature of mandamus or any other appropriate writ,
order or direction, conduct and complete the assessment for
the Junior Colleges run by the Petitioner No.3 from the year
1995-96 and furnish the Assessment Reports and be further
directed to assign, reasons in the event certain expenditure
were to be disallowed;
c) issue a writ of mandamus or a writ, order or direction
in the nature of mandamus or any other appropriate writ,
order or direction, effect payments of the non-salary
expenditure incurred by the Junior Colleges run by the
Petitioner No.1 as per Exhibit C;
d) issue a writ of mandamus or a writ, order or direction
in the nature of mandamus or any other appropriate writ,
order or direction, conduct and complete the assessment for
the Degree Colleges run by the Petitioner No.2 from the
year 1997-98 and furnish the Assessment Reports and be
further directed to assign, reasons in the event certain
expenditure were to be disallowed;
e) issue a writ of mandamus or a writ, order or direction
in the nature of mandamus or any other appropriate writ,
order or direction, conduct and complete the assessment for
the Degree Colleges run by the Petitioner No.3 from the
year 1998-99 and furnish the Assessment Reports and be
further directed to assign, reasons in the event certain
expenditure were to be disallowed;
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f) issue a writ of mandamus or a writ, order or direction
in the nature of mandamus or any other appropriate writ,
order or direction, effect payments of the non-salary
expenditure incurred by the Degree Colleges run by the
Petitioner No.1 as per Exhibits G-1 & G-2;
(f1) to issue a writ of mandamus or a writ, order or
direction, directing the Respondent Nos.1 to 4 to evolve a
proper fee structure keeping in mind the financial crisis
faced by the Petitioners Institution and revise the fee
structure accordingly in respect of the Junior Colleges;
(f2) to issue a writ of mandamus or a writ, order or
direction, directing the Respondents to evolve a proper fee
structure keeping in mind the financial crisis faced by the
Petitioners Institution and revise the fees structure
accordingly in respect of the Degree Colleges;
g) pending the hearing and final disposal of the present
Writ Petition ad-hoc payments in respect of the non-salary
expenditure on the basis of the audited accounts furnished
by the Petitioners as well as the guidelines detailed in the
Government Resolution and Circular for effecting payments
as per number of Divisions/percentage of salary formula for
both the Junior as well as Degree Colleges;
h) ad-interim and interim reliefs in terms of prayer
clause (g) above;
i) such other and further orders as this Honourable
Court may deem fit and proper in the facts and
circumstances of the case.
j) costs of this Writ Petition be provided for.”
4. The second main matter is Appeal No.299 of 2008, which is again
filed by the Management. In this Appeal, the Management has challenged
th
the Judgment of the Learned Single Judge of our High Court dated 30
June, 2008 passed on WP No.1246 of 2008 and other 8 connected Petitions,
which in turn were filed by the State of Maharashtra challenging the
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rd
decision of the School Tribunal dated 3 November, 2007. The proceedings
before the School Tribunal were instituted by respective permanent
employees questioning the action of termination of their services by the
concerned colleges.
5. Here it may be relevant to advert to the background in which the said
appeals were filed by the permanent employees before the School Tribunal.
As a matter of fact, the learned Single Judge has meticulously reproduced
the relevant facts in the impugned Judgment, which is reported in 2008(6)
Bombay C.R. 451. To obviate repetition and prolixity, we would
conveniently refer to the facts so reproduced. We would only highlight the
broad facts, that would be relevant to decide the controversy on hand. The
th
Management passed resolution on 14 February, 2007, whereby it was
decided that the two junior Colleges run by the Educational Institution
should be closed. This decision, according to the Management, was
necessitated on account of non-receipt of non-salary grants for considerable
long time, which was quite substantial amount. It had become impossible
for the Management to continue to run the two Junior Colleges any more,
due to severe financial burden. Besides, there was no sufficient response
and the students ratio was depleting, which was making it unviable to run
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the two junior colleges, which were started sometime in 1975 after
introduction of 10+2+3 course. Moreover, the two junior colleges were
started in the same building where the degree college run by the
Management was already functional. According to the Management, it was
felt that the space occupied by the Junior Colleges can be effectively
utilised for introducing new courses in the degree college. For all these
reasons, the Management decided to close down the two junior colleges. As
a consequence of the said decision, the Management issued notice to its
permanent employees in two junior colleges, purported to be under Rules
25A/26 of The Maharashtra Employees of Private Schools (Conditions of
Service) Rules 1981 (hereinafter referred to as “the Rules”), informing the
concerned permanent employees that his/her services were terminated and
would be no longer required as the Management (Laxmi Education
th
Society) has decided to close the Junior Colleges run by it. In that, 11
Standard of Colleges would be closed down at the end of the first term of
th
the academic year 2007-2008. The 12 Standard of the colleges would be
closed down at the end of the second term of the academic year 2007-2008
and the Junior Colleges would be completely closed down by the end of the
Second term of 2007-2008. For that reason, the services of the concerned
permanent employees to whom such notices were issued were no longer
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required beyond the end of the academic year 2007-2008. The permanent
employees of the junior colleges on receipt of such notices rushed to the
School Tribunal and filed appeals under section 9 of the Maharashtra
Employees of Private Employees of Private Schools (Conditions of Service)
Regulation Act, 1977(hereinafter referred to as “the Act”).
6. During the pendency of the said appeals before the School Tribunal,
three Writ Petitions were filed before this Court being Writ Petition(L) No.
1379 of 2007, Writ Petition (L) No.1569 of 2007 and PIL Writ Petition No.
55 of 2007. The first amongst these Writ Petitions, (first two Writ
Petitions), were filed by the Management(Laxmi Education Society Trust),
which was running two junior colleges, seeking declaration that the closure
notice issued by the Management was legal and proper and further the show
cause notice issued by the Director of Education proposing to appoint an
administrator to run the two junior colleges was illegal and unjustified and
to quash the same and pass consequential directions. The third Writ Petition
was filed by one Sarvanand Shukla for direction against the colleges to
hold educational activities and to give admissions to the students for full
academic course and to withdraw all notices. The said three Writ Petitions
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came to be disposed of by common Judgment on 20 September, 2007 by
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the Bench to which one of us was party(Swantanter Kumar, C.J.). That
decision is reported in 2008(1) All MR 270[Bhagwant Kaur Sandhu & ors
v/s. Laxmi Education Society & Ors.]. This Court kept all the contentions
open and disposed of all the three Petitions on the following terms.
“10. In the peculiar facts and circumstances aforestated,
we would dispose of these petitions with the following
directions:
a) The Government would expeditiously take decision
in accordance with law, upon the notice for closure
submitted by the management of the colleges.
b) The teachers who have approached this court are
entitled to pursue their applications before the College
Tribunal and the Tribunal is free to decide their applications
in accordance with law, without being influenced by any of
the observations made in this order.
c) The parties to the proceedings before the Tribunal
are free to put forward their points of view for the
consideration of the Tribunal and as permissible in law.
d) The students who have already been granted
admission by the college by its own or under the orders of
this court in the presence of the Education Officer shall be
permitted to complete their academic course for two years
th th
i.e. 11 and 12 standards. The college will not in any way
hamper the educational career or curtail the said period
under any circumstances.
e) Out of 23 applications of the students filed before us,
since seven students are already studying in other colleges,
their request for admission to the colleges is declined and it
will not be proper to transfer them from one college to
another at this juncture particularly when first term has
practically concluded. However, as regards the remaining
sixteen students, who have not taken admission anywhere,
the college is directed to grant them admission forthwith and
th
admit them to the current academic year of 11 standard. In
the event the above students do not take admission by
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22
st
5.P.M., on 21 September, 2007, they shall be deemed to
have waived the benefit of this order.
f) The above directions are obviously without prejudice
to the rights and contentions of the parties, which are
available to them before the respective authorities/tribunal
and they are also free to take all the pleas that have been
taken by them in the present petitions.
g) These writ petitions are disposed of with the above
directions. However, we leave the parties to bear their own
costs.
Ordered accordingly.”
7. As a consequence of the directions issued by this Court the
proceedings instituted by the permanent employees before the School
Tribunal proceeded further. The School Tribunal allowed the appeals filed
by the respective permanent employees on the following terms.
“ O R D E R”
1. The Appeal is allowed in the following terms:
a) The Respondent No.1 and 2 to forward the name of
appellant as surplus teacher due to reduction in workload to
the Respondent No.3 within a period of Respondent No.3
within a period of thirty days from the date of this order.
b) The Respondent No.3 is directed to absorb the
appellant as surplus teacher in another aided Junior College
in the city of Mumbai. Till then the Department shall pay the
salary to the appellant.
c) Parties to bear their own cost.
d) The appeal as well as the application for interim
relief stand disposed of accordingly.”
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23
8. Against the said decision of the Tribunal, the State Government filed
9(nine) separate Writ Petitions on the original side of this Hon’ble Court
under Article 226 of the Constitution of India, questioning the jurisdiction
of the Tribunal to opine on the issue of bonafides of the decision of closure
of the two junior colleges taken by the Management and moreso treating the
concerned permanent employees as surplus teachers and of directing their
absorption in other aided junior colleges in the city of Mumbai and to pay
their salary till their absorption. The Learned Single Judge allowed the said
Writ Petitions, but relegated the parties before the Tribunal for
reconsideration of all aspects of the matter afresh. While doing so, the
learned Single Judge also issued direction to the competent Authority of
Education Department of the State to decide the issue of closure of Colleges
pending before it expeditiously as possible and within four weeks from the
date of receipt of the copy of the order. The Management has filed the
present appeal to challenge the remand order passed by the learned Single
Judge whereby the parties have been relegated before the School Tribunal
for consideration of the entire matter afresh.
9. During the pendency of the present Appeal, the Appellant took out
Notice of Motion No.2497 of 2008 praying that the implementation and
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24
th
effect of the impugned order dated 30 June, 2008 passed in WP(St.) No.
1246 of 2008 be stayed and further the concerned authorities of the State be
th
restrained by an order of injunction of giving any admissions to the 11 and
th
12 Standard of the Junior Colleges in the MVLU and Chinai College.
10. The third main matter is also filed by the Management (Laxmi
Education Society), being Writ Petition No.2327 of 2008. This Petition
essentially challenges the decision of the Director of Education as recorded
st
in the Minutes of the Meeting dated 21 July, 2008 and the consequential
th
order dated 25 July, 2008. The Director of Education pursuant to the
direction given by the learned Single Judge of this Court in its decision
th
dated 30 June, 2008 (2008 (6) Bom.C.R. 451) , gave opportunity of
hearing to all concerned and held that the closure request or permission to
close down the two junior colleges as made by the Management cannot be
granted in public interest. The reasons which weighed with the Director of
Education to reach at that conclusion can be discerned from the Minutes
st
dated 21 July, 2008, which has been challenged by the Management. The
relevant extract of the said minutes reads thus:
“After that Director of Education explained the
following points.
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25
1. Hearing is organized as per High Court order.
Accordingly Director of Education has to conduct the
hearing. Director of education is for the entire State. There
are so many Schools in the State, therefore it is not true that
there will be pre decided decision.
2. According to provision of rule 7.5 of S.S.Code there
is a provision made for appeal to the Director of Education
against the decision given by Dy.Director of Education.
Considering the appeal provision it is necessary to obtain the
permission of the authorized officer.
3. Non Salary matter of Junior College is already in the
court and necessary action will be done as per the High
Court Order. Pending shown by the Colleges is not
according to the present procedure. Action will be taken as
per the High court orders.
4. Points raised by the Management regarding the fees
of Junior Colleges, fee collected by the Junior Colleges is to
be deposited to Govt. and therefore there is no loss to
Management even the fees is charges is less.
5. Action of starting the new courses by closing XIth
and XIIth classes is not proper. By closing down the
necessary courses to start the new courses is not proper also.
School is not an institution to look after the benefits but it is
a institute to look after the public interest.
6. To close down the aided Junior College and to start
the permanent unaided courses in higher education is not
proper.
7. Considering efforts made by the Management to
reduce the students strength, it is concluded that
Management is intentionally trying to reduce the students
strength e.g. Admissions made for one terms only, even after
having the intake capacity of 120 to ask the permission to
admit 80 students only, by displaying the notice of
25/06/2007 to create a insecurity in the minds of parents and
students. These clearly indicate that Management is trying to
reduce the students strength intentionally.
8. Absorption order of some teachers might have been
issued but these happen every year due to the students’
strength. In the year in which the result is low percentage
there is an increase in surplus teachers. Such type of surplus
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26
teachers is to be absorbed. In future if there is increase in
students’ strength, the teacher is to be absorbed in the
original School. This process is continued in some Junior
Colleges. It is not proper to close down the Junior College
because the teachers are surplus.
9. To close the Junior College, to terminate the teacher
is not according to rule.
10. Admissions to Std. XIth are based on merit and
therefore in aided Colleges there is no fee in huge amount. If
aided Junior College is closed, there will be a financial
burden to parents and therefore, there will be damage to
public interest if admissions are not given.
11. A building utilized for Junior College for quite a long
time, to use for something else by the Management is not
proper. Terminated teachers have approached the Court and
the decision is pending. Work related to the Non teaching
staff required for Junior Colleges, is to be done by the non
teaching staff of the senior College, as per the provision of
rule. This non teaching staff was also terminated and they
are in service as per the High Court orders, Managements
this statement is not proper.
12. During the year 1975-1976, at the time of obtaining
permission for Junior College, Management have assured
that all facilities will be made available, and all the Govt.
rules will be followed. Accordingly Management have made
all the facility available. Now to refuse the facility for Junior
College is not according the rules. No any authorized
document is produced indicating the linguistic minority and
therefore it is not proper to say that Junior College is
linguistic minority.
13. It is stated that L.U.M.V. Degree College and Chinai
Degree College is handed over to trust in May 2007.
Management action to hand over the Degree only excluding
Junior College is indicating to keep away all the facility.
14. It was necessary to provide the new building for the
new courses but still Management’s action to close down the
Junior College and to keep away the poor students from
education is not according to natural justice.
15. I agree to the point raised by Advocate Shri Dighe, as
per provision 25A & 26 of MEPS Rules 1981 and Rule 7.5
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27
of S.S.Code it is necessary to obtain the Dy.Director’s
permission for closing down the Junior College.
16. I agree and conclude that Management has taken
their own decision to close down the Junior College.
Considering the result of 14/02/2007 it is clear that the
resolution of closing down the Junior College is passed
without the permission of competent authority. According to
this resolution it is seen that efforts are made to close down
the Junior College since 17/11/1997. It was known to the
Management that Dy.Director’s permission is necessary to
close down the Junior College. According to resolution the
decision taken to close down the Junior College is not with
good intention and not according to rules. I agree with this
opinion. It clearly shows that, this not a bonafide closure but
this is a fabricated closure.
17. Agreed to opinion, that it is necessary for any
student, staying in Mumbai to get admission, according to
merit.
18. Junior Colleges have no status of linguistic minority
and hence all Govt. rules are applicable are also agreed.
19. After that, it is noticed, that there is substance in the
points raised by the teacher representative.
20. On 11/07/2008 the Director of Education,
Dy.Director of Education and other officer from department
has visited with the police personal, the Principal have
refused the permission to remain present in the office, closed
the office. Management has informed in writing that the case
will be file against the officers. Letters were refused. This
stand is not correct.
21. Provision in MEPS (Service Condition) Rules 1981
are related to the service condition. There is no provision to
close down the School. It is improper to take the support of
these rules to close down the Schools.
22. Management has not produced any evidence that
they have served the notice officially to close the Junior
College.
23. Management has not produced any evidence, that
there is contract, between the owner of land and
Management, about the use of land and the Junior College
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28
building.
24. Action of the management, at the time of hearing to
appoint the administrator, to remain absent even after
sending letters, to make the time pass, to refuse the letters of
hearing, to return the letters as well as to file the legal
litigation is not correct. There is a strong opposition of local
people. To give the admission for one term only even after
having with a good record for quite a long time is not
proper. According to the Management Registration Act 1860
and 1950 the provision of Charity Commissioners Office,
building of the Junior College cannot be closed as personal
property. The same Management runs the Degree College
and closing down the Junior College is not according to
rules. During the hearing Management has not produced any
sub rule in the matter. Throughout the state the numbers of
School are increasing but the international city like Mumbai
is closing down the Junior College is not proper.
25. According to the present provision of S.S. Code,
Rule 7.5 amended provision it is clear that, to close down
the Junior College by Management on own side needs one
term advance notice to the Dy. Director of Education is
indispensable. After issuing the notice for closing down the
Junior College Dy. Director will take the decision according
to merit and either to accept the request or to reject the
request. This means that to issue the notice is not enough to
close down the College. After issuing the notice Dy.Director
decision is finally important. To issue the notice for closing
the Junior College is not enough for one more reason and
i.e. the provisions of the words in Rules no 7.5 of S.S. Code
is made “to act according to his decision”. This means Dy.
Director has the right to take the decision on the application
of closing down the Junior College. The decision might be
to allow closing down the Junior College or to refuse the
permission to close down the Junior College. If notice is the
only required condition in law, the word “decision” would
have not been use for the Dy.Director. In addition to this
there is a provision to make the appeal against the
Dy.Director’s decision. This clearly proves that Dy. Director
can take the decision on merit to close down the Junior
College. And Director of Education can check the
correctness in appeal. If the provision of notice to close
down the Junior College with own wish is enough, then the
arrangement of the word / provisions have no meaning. If
we consider the notice is enough then various Junior
College/School can close down by giving the notice in large
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29
number and there will be a problem for student education
and teacher services. Students’ basic right of education will
be snatched away and there will be lot of problem of the
employees who is in service for quite a long time.
26. It is seen from the Laxmi Education Society's letter
th
no.LES/207/07-08, dated 11 June, 2007, issued to the
Dy.Director of Education, regarding the closing down the
Junior College, para1 permission was asked to close down
both the Junior Colleges. Whereas para 2 states that
permission of Dy.Director to close down the Junior Colleges
is not necessary this is a contradictory stand. Considering
the content of the letter Management have tried to ask the
permission to close down the Junior Colleges. By assuming
the permission is granted action to close down the Junior
colleges is improper.
Decision
Considering all the factors mentioned above I, in the
capacity of the Director of Education, in the public interest,
st
the Regional Dy.Director Greater Mumbai’s decision of 21
June, 2007 refusing permission to close down the Junior
Colleges, namely Sheth L.U.M.V. Junior College Andheri
(E), Mumbai and Chinai Junior College is here by
conformed.
Sd/-
(M.R.Kadam)
Director of Education
Secondary & Higher
Secondary M.S. Pune-1.”
11. We thought it appropriate to reproduce the relevant portion of the
Minutes as correctness whereof will have to be tested by this Court in the
present proceedings. On the basis of the above view taken by the Director
th
of Education, the Management was informed by communication dated 25
July, 2008, which also is a subject matter of the challenge in this Writ
Petition. The same reads thus:
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30
“NO.HSC/152007/12 HS
Secondary & Higher Secondary
Education Director,
Maharashtra State,
Pune-1.
25/07/2008
Mumbai Camp.
To
Chairman/Secretary
Laxmi Education Society,
9 Wallace Street, Fort,
Mumbai – 400 001.
Subject : Sheth L.U. & M.V. Junior College, Andheri (E),
Mumbai & Chinai Junior College, Andheri
(E),
Mumbai : Closure of these Junior Colleges.
th
The W.P.No.1753/2008 and 1730/2008 were heard on 18
July 2008 by Hon’ble High Court. Accordingly the
application for closure of L.U. & M.V. And Chinai Junior
st
Colleges were heard by Director of Education, on 21 July
2008 at 3 p.m. the same was held at the Regional Dy.
Director, Mumbai’s Office. At this hearing owner of the
Junior College land, concerned Colleges and teacher
representatives were present. A speaking order was
delivered as an outcome of the hearing if this order is
against the appellant it will not be implemented for 3 days as
th
per the direction of Hon’ble High Court Order on 18 July
2008. In this regard hearing was held at Divisional Dy.
Director of Education Office, Mumbai.
The details of this speaking order are enclosed. Accordingly,
in public interest, the order Dy.Director of not permitting the
closure of two Junior Colleges of L.U. & M.V. And Chinai
College are upheld.
This decision will not be implemented until 3 days of the
receipt of this order signed.
M.R.Kadam
Director Eduction
Secondary & Higher Secondary.”
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31
12. During the pendency of the Writ Petition No.2327 of 2008, two third
parties filed Chamber Summons for being impleaded. The first was filed by
one Gopalkrishna N. Gaggar being Chamber Summons No.246 of 2008 and
the Second has been filed by Shri Shailendra E. Kamble being Chamber
Summons No.248 of 2008. Besides the two Chamber Summons, the State
Government filed Notice of Motion No.304 of 2009 praying for setting
th
aside the order dated 7 August, 2008 passed in Writ Petition (L) No.1825
th
of 2008 and to confirm appointment of administrator dated 25 July, 2008
passed by the Director of Education, Secondary and Higher Secondary,
Maharashtra State, Pune.
13. Here it may be relevant to note that the order of appointing
administrator came to be been passed by the Competent Authority in
exercise of powers under section 3(1) of Maharashtra Educational
Institution (Management) Act,1976 with a view to take over the
management of the two junior colleges for a period of one year.We are not
concerned with the correctness of the said action as the management has
been relegated to file statutory appeal available against that decision. In
that, we have relegated the Management to take recourse to statutory
remedy available under the said Act of 1976 while disposing of the Writ
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32
Petition filed by the Management challenging the said decision, vide order
th
dated 18 November 2009 in Writ Petition No.1639 of 2009. The said
order reads thus:
th
“This writ petition is directed against the order dated 25 July,
2008 passed by the Director of Education, State of Maharashtra
exercising his powers under the Maharashtra Education Institutions
(Management) Act, 1976. Vide his order, Administrator came to be
appointed. The operative part of the order reads as under:-
ORDER
“As per order of Directorate No.HSC/132007/Pr.Ni./
Mumbai/12HS dated 25.07.2008 of Maharashtra Education
Dept.Transfer of Management Act, 1976 section 3(1), LES,
Mumbai’s LUMV Junior College and Chinai Junior College
Andheri (E) will be under administrator for a period of one
year from the date he assumes office. I as Director of
Secondary & Higher Secondary Education Dept., Maharashtra
State, Pune I pass this order.
In order to regularize the Junior College education/teaching
and in the interest of the Junior College students it has become
necessary to appoint an Administrator.
As per Transfer of Management Act, 1976 section 3(1) I,
Director of Education, Secondary & Higher Secondary,
Education Dept., Maharashtra State, Pune I appoint Shri
V.S.Mhatre, Asst.Director of Education as Administrator to
look after the management of the Junior Colleges for a period
of 1 year from the date he assumes office.”
2. It is contended that the order is violative of principles of
natural justice, the findings recorded are perverse at the face of it in
asmuch as the Management of Junior Colleges are found to be
unsatisfactory but the whole institution has been placed under the
Administrator. It is also argued that the petitioner No.1 is a minority
institution, thus, in terms of section 12 of the said Act, the provisions
of the Act would not be applicable.
3. We may notice that under sub-section (4) of section 3 the
order passed by the Director of Education while exercising powers
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33
under sub-section (3) of section 3 is appealable to the State
Government which has been termed as Appellate Authority. In our
view, all these contentions can safely be considered by the Appellate
Authority viz. The State Government and therefore, it is not necessary
for us to entertain this writ petition.
th
4. The ad-interim order dated 29 July, 2008, passed by the court
is in force till today. It shall remain in force for a period of four weeks
subject to such orders as may be passed by the competent authority
henceforth.
5. The appeal in terms of sub-section (4) of section 3 is to be
filed within 15 days but as the applicant was pursuing the present writ
petition before this court bonafiedly which at that stage had been
entertained as other matters filed by same Management in regard to
the closure of school were pending. In view of the above, we are of
the considered view that the petitioners should file appeal before the
Appellate Authority and if filed within 15 days from today, the same
shall be entertained by the Appellate Authority.
6. With the above directions, writ petition stands disposed of.”
14. Be that as it may, the Petitioners filed Notice of Motion No.338 of
2008 in Writ Petition No.2327 of 2008 for issuance of directions to
Respondent No.1 to file on record entire factual details as listed in
Schedule-I to the Motion. Besides, the Writ Petitioners have filed Chamber
Summons No.261 of 2009 praying for permission to amend the Writ
Petition so as to incorporate the facts referred to in the schedule to the
st
Chamber Summons. The same was allowed by us on 31 August, 2009.
However, the Petitioners have failed to carry out amendment of the Petition
till the hearing was concluded.
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34
15. The fourth main Petition being Writ Petition No.2521 of 2008 is filed
st
by Laxmi Charitable Trust to challenge the Minutes dated 21 July, 2008
th
and the order dated 25 July, 2008 passed by the Director of Education and
for further relief of direction against the Authorities to cease and desist from
in any manner interfering with or disturbing the conduct of educational
activities of the Degree College of the Petitioner-Trust at its campus situated
at Dr.Radhkrishnan Marg, Andheri-East, Mumbai-69 on the basis of
th
decision dated 25 July, 2008. This Petition has been filed on the
apprehension that taking advantage of the proposed action against the two
junior colleges on account of the decision to voluntary close those
colleges, the Authorities may interfere with the affairs of the Degree
College which is run by the Trust in the same building (complex).
According to the Petitioners therein, the transfer of the Degree College has
th
been approved by the Mumbai University with effect from 18 May, 2007
and the Trust was in seisin of the affairs and activities of Degree College.
Incidentally, activities of the two Junior Colleges were also being carried
out from the same complex in which the Degree College was run.
Essentially, this petition is intended to thwart any action of the Authorities
directly or indirectly against the Degree College or the affairs of the Degree
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35
College under the garb of taking action against the two Junior colleges and
of the Management of the Trust itself.
16. The fifth main Petition being Writ Petition No.1640 of 2009 is filed
by one Madhu Rambal Subramaniam and 2 others, who claim that they
th
have children, who after passing out 10 Standard will have to seek
admission in a junior college in the vicinity. According to them, the two
junior Colleges located in Andheri are the only aided colleges in that area
and catering to the needs of the lower middle income group and the persons
who are not in a position to pay hefty admission fees and donation for
admission as in the case of unaided colleges. According to them, the
decision of the Management to close down the two Junior Colleges is not a
bonafide decision. The substance of their grievance is that the Management
should not be permitted to close down the two junior colleges as it would
be against the public interest. They have prayed for the following reliefs:
“a) That this Hon’ble Court be pleased to issue a writ of
mandamus or any such other appropriate writ, order or
directions, directing the Respondent Nos.3 and 4 to furnish
the required details according to form at EXHIBIT “ L ” to
the Dy.Director of Education regarding the availability of
courses and divisions of the Junior Colleges so as to enable
the students to seek admission in the college and to enable
Deputy Director of Education to take the necessary steps in
processing the admissions of the students for the academic
year 2009-2010.
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36
b) That this Hon’ble Court be pleased to issue a writ of
mandamus or any such other appropriate writ, order or
direction directing Respondent Nos.1 and 2 to ensure that
the two Junior Colleges are not closed and that the students
who have sought admission are admitted.
c) That this Hon’ble Court be pleased to restrain the
Respondent Nos.3 and 4 from closing down the Junior
Colleges.
d) That this Hon’ble Court be pleased to form a
committee of citizens including teaching staff and parents to
ensure that the procedure for completing the admission
process to the Junior Colleges is complied with
expeditiously and in a transparent manner.
e) that pending hearing and final disposal of the
Petition the Respondents Nos. 3 & 4 be directed to furnish
the required details according to form at EXHIBIT “ L ” to
the Dy.Director of Education regarding the availability of
courses and divisions of the Junior Colleges so as to enable
the students to seek admission in the college and to enable
Deputy Director of Education to take the necessary steps in
processing the admissions of the students for the academic
year 2009-2010.
f) That pending hearing and final disposal of the
Petition the Respondents Nos.1 & 2 be directed to ensure
that the two Junior Colleges are not closed and that the
students who have sought admission are admitted.
g) that pending hearing and final disposal of the
Petition the Respondent Nos.3 and 4 be restrained directed
to restrain from closing down the Junior Colleges.
h) that pending hearing and final disposal of the
Petition to form a committee of citizens including teaching
staff and parents to ensure that the procedure for completing
the admission process in the Junior Colleges is complied
with expeditiously and in a transparent manner.
i) Ad interim Relief/interim relief in terms of prayers e
to h above be granted.
j) For costs of the petition.
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37
k) For such further and other reliefs or direction as the nature
and circumstances of the case may require.”
17. During the pendency of this Writ Petition No.1640 of 2009, the
Management (Laxmi Education Society-Respondent No.4) took out Notice
of Motion praying for direction against the Respondent- State of
Maharashtra and its Officials, from in any manner whatsoever treating
and/or representing and/or publicizing that the information to be supplied
th
by the Respondent No.4 management, as per order dated 29 May, 2009 of
this Court , would tantamount to the Management having provided the said
information for the purpose of registration for online admissions of the
XIth Standard and/or that it is in any way committed to the registration of
online admissions of the XIth Standard. This Motion was taken out on the
assertion that the two junior colleges were already closed down and should
not be compelled to participate in the on-going online admission process,
which in turn would result in giving admission to prospective students to
first year junior college. Besides the above said Notice of Motion, the
Management (Laxmi Education Society) filed another Notice of Motion in
the said Writ Petition being Notice of Motion No.385 of 2009 praying for
direction against the Writ Petitioners to file on record the factual details and
documents as listed in Schedule-I to the Motion.
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38
18. The sixth main Petition being Writ Petition No.1638 of 2009 is filed
by one Prof. Mohan Pillai, claiming to be public spirited citizen.
Incidentally, he is also a practicing advocate in this Court. He was
associated as part time professor with MVLU College of Arts, Science &
Commerce - one amongst the two junior colleges. The substance of his
grievance is that the Management adopted modus operandi to dissuade the
students/parents in taking admission to the two Junior Colleges by resorting
to different methods. According to him, the decision of the Management
to close down the two junior colleges is not bonafide. It is his case that the
justification put forth by the Management for closing the two junior
colleges is false and cannot be countenanced. According to this Petitioner,
the Management is under solemn obligation to run the two junior colleges
and participate in the admission process of the junior colleges. He has
highlighted the fact that the Management has not only defied the decision of
the Competent Authority of refusal of permission to close the two junior
colleges but have also successfully rendered the direction of the
Competent Authority to participate in the admission process of the junior
colleges for the academic year 2009-2010 nugatory. Moreover, the
Management has had the audacity to overreach the order passed by this
th
Court on 29 May, 2009 in Notice of Motion No.304 of 2009 in Writ
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39
Petition No.2327 of 2008 and connected matter, which obliged the
Management to participate in the on-going online admission process for
th
standard 11 for the academic year 2009-10. The said order passed by the
th
Division Bench of this Court on 29 May, 2009 reads thus:
“1. Heard learned Counsel for the parties.
2. Laxmi Education Society, the petitioner in Writ
Petition 2327 of 2008 has, from time to time, intimated the
authorities about its intention to close down the two colleges
run by the Society, but the authorities have refused them
permission to close down the colleges and against the order
of the Director, refusing such permission, it has filed Writ
Petition No.2327 of 2008. That Writ Petition has been
admitted. However, no interim relief for closure of the
colleges has been granted.
3. It may be noted that the Government had appointed
administrator to run the management of the said colleges.
th
By an order dated 7 August, 2008, in bunch of Writ
Petitions, the Division Bench of this Court has stayed the
appointment of administrator subject to continuation of the
undertaking (direction) given in Writ Petition Nos.1329/07,
th
1569/07 and 55 of 2007 on 18 September, 2007. The
Government has taken a Notice of Motion No.304 of 2009
to vacate the stay to the appointment of Administrator
mainly on the ground that the management of the colleges is
no co-operating with the authorities by not supplying
necessary data which is required to the Government for
Online process of admission.
4. A Public Interest Litigation i.e. Writ Petition No.971
of 2009 is also filed by parents of the some students, who
propose to take admission in college in the ensuing
academic session and in that petition, they have sought
direction that the management should supply the data for the
Online admission process of standard XI for the academic
year 2009-10 as prescribed by the Government.
5. The learned Counsel appearing for the management
makes a statement that they had complied with the direction
th
given by the Division Bench in the order dated 18
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40
September, 2007 in respect of the students who were
admitted and according to them, all those students have
completed their course and during last two years the said
two colleges have not given admission to any students. On
the other hand, the Special Counsel Mr.Pawaskar for the
Government makes a statement that last year, admission to
some 500 students was given by the Government in the said
colleges but they were required to be accommodated
elsewhere because the management had removed all the
teaching faculty. He contends that this year, the teaching
faculty and the Government can take care that the students
are not required to be removed for accommodation
elsewhere. The learned Counsel also makes the statement
that data/information is required at this stage only for the
purpose of making preparations before the actual admission
process starts because the admission process will actually
begin only after the results of SSC are declare which are
th
expected some time after 8 June, 2009.
6. In view of the facts and circumstances, for the
present, the following directions will meet the ends of
justice.
i) The Management shall provide and information
to starting online admission process for Standard XI
(2009-10) in the prescribed proforma which is
st
already supplied to the management on or before 1
June without fail, without prejudice to their contentions
which they have taken in their Writ Petition.
ii) Both the petitions and the Notice of Motion be
th
placed together before the Regular Court on 10 June,
2009.”
It is in this backdrop, said Mr.Mohan Pillai has prayed for
following reliefs:
a) A Writ of mandamus or any other appropriate Writ,
order and/or direction to the Respondent No.1, 2 & 3 to
th th
participate in the 11 & 12 Std. admission process
including online admission to both the Education Institution
run by the First Respondent Trust and enroll the student for
th th
the said 11 & 12 Standard.
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41
b) A Writ of mandamus or any other appropriate Writ, order
and/or direction to the Respondent No.4 & 5 to ensure that
th th
11 & 12 Standard’s admission to both the Educational
Institutions i.e. M.V. & L.U. College of Arts, Science &
Commerce and Shri Chinai College of Commerce &
Economics, is carried out by the Respondent No.1, 2 & 3.
c) Pending the hearing and final disposal of the Writ
Petition this Hon’ble Court be pleased to appoint
Administrator with all powers to run the College in order to
comply with the orders, directions and guidelines issued by
this Hon’ble Court as well as the State from time to time in
respect of the Educational Institution managed and run by
the Respondent No.1, 2 & 3.
d) Pending the hearing and final disposal of the Writ
Petition this Hon’ble Court be pleased to direct the
Respondents No.1, 2 & 3 to commence the admission
th th
process in respect of 11 & 12 Std.in due compliance of the
order of this Hon’ble Court from time to time and more
particularly the orders of 29/5/09 which is at Ext.”A”.
e) Ad-interim/Interim Reliefs in terms of prayer clause (c)
and (d) hereinabove;
f) Such other and further reliefs as deemed fit and proper by
this Hon’ble court on the facts and circumstances of the
case;
AND
g) Award the cost of this Petition.”
19. We had the benefit of erudite submissions made by the Counsel
appearing for the respective parties. Mr. Rafiq Dada, Mr. M.P.S. Rao, Mr.
B.H.Mehta and Mr. Kulkarni addressed us in support of the decision of the
Management to close down the two junior colleges. Mr.Dighe espoused the
cause of the permanent employees of the two junior colleges who were
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42
directly affected by the decision of closure of the two junior colleges. Ms.
Gayatri Singh and Mr.Mohan Pillai represented the cause of students. Mr.
Pawaskar appeared for the State and supported the decision of the Director
of Education.
20. The submissions revolved around the question as to whether the
decision of Management to close down the two junior colleges can be
sustained. Further, if the said decision of Management was to be
maintained what would be the cascading effect on the rights and privileges
of the permanent employees engaged by the two junior colleges, as also on
the existing students of the colleges, if any, and on the prospective students
who were keen to get admission in the two junior colleges which were the
only aided colleges in the vicinity. Incidental issues have also been raised
as to whether the School Tribunal would have jurisdiction to examine the
bonafides of the closure by undertaking a parallel enquiry and more
particularly when the authority if at all to examine that question vested in
the Competent Authority of the Education Department of the State.
Besides, whether the permanent employees who have been terminated on
account of closure of Junior Colleges are entitled to be absorbed in another
Junior Colleges in the vicinity. Counsel appearing for the parties have
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43
placed reliance on several decisions to buttress their respective pleas to
which we shall refer to at the appropriate place.
21. Before we proceed to examine the matter any further, it would be
th
apposite to analyse the decision of the learned Single Judge, dated 30
June, 2008 (reported in 2008 (6) BCR 451 ), impugned in the appeal filed by
the Management before us. The reasons which weighed with the learned
Single Judge to allow the Writ Petitions filed by the State of Maharashtra
can be discerned from paragraph-31 onwards. According to the learned
th
Single Judge, in view of the Division Bench decision dated 20 September,
2007 (reported in 2008(1) All MR 270 ), the Tribunal could not have
examined the question of bonafides of closure and answered the same in
favour of the Management. It is further held that under the garb of going
into the reasons of termination of teacher, the Tribunal could not have
undertaken an enquiry into the issue of closure being bonafide or not in the
facts of the case on hand. It is held that the Tribunal should have first
considered as to whether it had jurisdiction to make enquiry on the issue of
closure being bonafide or not, which inevitably would result in parallel
enquiry and thwart the enquiry before the Competent Authority of the
Education Department pending on the application of the Management for
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44
permission to close the two junior colleges. The learned Single Judge has
then observed that since he was inclined to remand the matter to the
Tribunal, the Tribunal will have to consider the legality and validity of the
termination order afresh on all other grounds, which means grounds other
than the bonafides of closure. The learned Single Judge also opined that the
Tribunal will have to consider whether it had the jurisdiction to direct
absorption on the assumption that the concerned permanent employees were
rendered surplus on account of closure of the Junior Colleges, in the
context of applicability of Rule 25A and Rule 26 of the Rules. The learned
Single Judge also observed that the Tribunal did not examine the allegations
contained in paragraph-7 and 8 in the memo of appeal at all; and that it
failed to apply its mind to alternative plea of absorption in proper
perspective and to consider the same from all angles. The contention of the
Management has been noted to the effect that the issue of termination and
the reasons for the same are interlinked and therefore, the Tribunal must
have jurisdiction to examine all pleas including the aspect of his own
jurisdiction. The learned Single Judge has further opined that the Tribunal
can go into the aspect of termination of employees and whether the
termination of the permanent employee by notice, without any enquiry
preceding it, is fair, just and proper. Similarly, the Tribunal must apply its
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45
mind by considering the applicability of Rule 25A and 26 afresh, if it
concludes that the termination cannot be quashed and set aside, while
keeping in mind financial impact of its direction. For all these reasons, the
learned Single Judge allowed the Writ Petition preferred by the State of
Maharashtra and relegated the parties before the School Tribunal.
22. The principal question that needs to be considered is: whether the
Management of an aided Junior College has absolute and unquestionable
right to close down the college as and when it decides to do so. This
question will have to be tested from two angles. Firstly, whether it would
make any difference if the Junior College is an aided college and secondly,
as to what would be the scope of enquiry before the Appropriate Authority
while considering the closure proposal of the Management. The extreme
argument of the Management is that - as much as right to start a School or
Junior College is a fundamental right, it also posits with it right to run and
close the School or College at the discretion of the Management. By now,
however, it is well established that even if right to start an education
institution is a fundamental right guaranteed in Article 19(1)(g) of the
Constitution of India, it can be controlled by restrictions which are in the
interests of general public and are reasonable restrictions on the exercise of
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46
such right. In that sense, it is not an absolute right as such. It is open to the
State to regulate the fundamental rights under Article 19(1)(g) of the
Constitution by imposing restrictions which are in the interests of general
public and are reasonable restrictions. The Apex Court while considering
the constitutional validity of Section 25FFF of the Industrial Disputes Act in
the case of M/s. Hatisingh Mfg. Co. Ltd. Vs. Union of India [(1960) 3
SCR 528 ] opined that by Article 19(1)(g) of the Constitution, freedom to
carry on any trade or business is guaranteed to every citizen but this
freedom is not absolute. It has further opined that in the interests of general
public law may impose the restrictions on the freedom of the citizen to start,
carry on or close their undertakings. In the case of Excel Wear V/s. Union
of India & ors. [AIR 1979 SC 25] , while referring to the above decision,
the Apex Court held that it is clear that the whole ratio of the case is based
upon the footing that the right to carry on any business includes a right to
start, carry on or close down any undertaking . In para-20 of this decision,
the Apex Court dealt with the two extreme contentions put forward on
either side as to the nature of the alleged right to close down a business.
The Court held thus:
“20 . We propose first to briefly dispose of the two extreme
contentions put forward on either side as to the nature of the alleged
right to close down a business. If one does not start a business at all,
then, perhaps, under no circumstances he can be compelled to start
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47
one. Such a negative aspect of a right to carry on a business may be
equated with the negative aspects of the right embedded in the concept
of the right to freedom of speech, to form an association or to acquire
or hold property. Perhaps under no circumstances a person can be
compelled to speak; to form an association or to acquire or hold a
property. But by imposing reasonable restrictions he can be compelled
not to speak; not to form an association or not to acquire or hold
property. Similarly, as held by this Court in Cooverjee Bharucha v.
The Excise Commissioner and the Chief Commissioner, Ajmer, and
Ors. MANU/SC/0010/1954 : [1954]1SCR873 ; Narendra Kumar and
Ors. v. The Union of India and Ors. MANU/SC/0013/1959 :
[1960]2SCR375 total prohibition of business is possible by putting
reasonable restrictions within the meaning of Article 19(6) on the right
to carry on the business. But as pointed out at page 387 in the case of
Narendra Kumar (supra):
"The greater the restriction, the more the need for strict scrutiny by the
Court" and then it is said further :
“In applying the test of reasonableness, the Court has to consider the
question in the background of the facts and circumstances under
which the order was made, taking into account the nature of the evil
that was sought to be remedied by such law, the ratio of the harm
caused to individual citizens by the proposed remedy, to the beneficial
effect reasonably expected to result to the general public. It will also
be necessary to consider in that connection whether the restraint
caused by the law is more than was necessary in the interests of the
general public.”
But then, as pointed out by this Court in Hatisingh's case (supra) the
right to close down a business is an integral part of the right to carry it
on. It is not quite correct to say that a right to close down a business
can be equated or placed at par as high as the right not to start and
carry on a business at all. The extreme proposition urged on behalf of
the employers by equating the two rights and then placing them at par
is not quite apposite and sound. Equally so, or rather, more
emphatically we do reject the extreme contention put forward on
behalf of the Labour Unions that right to close down a business is not
an integral part of the right to carry on a business, but it is a right
appurtenant to the ownership of the property or that it is not a
fundamental right at all. It is wrong to say that an employer has no
right to close down a business once he starts it. If he has such a right,
as obviously he has, it cannot but be a fundamental right embedded in
the right to carry on any business guaranteed under Article 19(1)(g) of
the Constitution. In one sense the right does appertain to property. But
such a faint overlapping of the right to property engrafted in Article
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48
19(1)(f) or Article 31 must not be allowed to cast any shade or eclipse
on the simple nature of the right as noticed above.”
23. The Apex Court in paragraph-34 while considering the argument that
a right to close down business is a right appurtenant to the ownership of the
property and not an integral part of right to carry on business opined that,
not to permit the employer to close down is essentially an interference with
his fundamental right to carry on the business. In the case of TMA Pai
Foundation & Ors. vs. State of Karnataka & Ors. reported in (2002) 8
SCC 481 , the Apex Court considered the question regarding the right to
establish and administer an educational institution under Article 19(1)(g) of
the Constitution. In Paragraph 26 of the said decision, the Apex Court has
noted that the said right may also be sourced to Article 26(a), which grants
in positive terms, the right to every religious denomination and every
section thereof to establish and maintain institutions for religious and
charitable purposes, subject to public order, morality and health. In the
present case, the Management claims that the institution has been
recognised as linguistic minority institution by the Authorities. The
th
Certificate relied to buttress this fact, however, is issued only on 9
February 2009. In any case, the question to be addressed is: whether the
Management has absolute right to abruptly close down its School/Junior
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49
College whenever it decides to do so. In Paragraphs 71 to 72 of the same
decision, the Apex Court considered the question as to rights of private
aided institutions (non minority). It has noted that while giving aid to
professional institutions, it would be permissible to Authority giving aid by
prescribing Rules or Regulations, the conditions on the basis of which
admission will be granted to different aided Colleges by virtue of merit,
coupled with the reservation policy of the State. It has further expounded
that once aid is granted to a private professional institution, the Government
or the State Agency as a condition of the grant of aid, can put fetters on the
freedom in the matter of administration and Management of the Institution.
It further observed that the State which gives aid to an educational
institution, can impose such conditions as are necessary for the proper
maintenance of the high standards of the education, as the financial burden
is shared by the State. The State is also under an obligation to protect the
interest of the teaching and non-teaching staff, whose working conditions
should be governed by proper service conditions.
24. A priori, there is no difficulty in accepting the stand of the
Management that the right to start a school/junior college would also
include a right to close down the same. However, that right has to be
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50
subservient to the reasonable restrictions which can be imposed or would
apply in the interests of general public. Indubitably, the functions and
activities of a junior school are in public domain. Besides the employees
employed by the Colleges, there are other stake holders in the existence and
running of a school or college. The students on the roll of the school or
college are equally concerned with the existence and running of a college as
much as the prospective students in the vicinity, who are likely to be denied
of such facility upon closure thereof. In the event of closure of a School or
College, prospective students residing in the vicinity who have a right to
pursue education would be affected by the abrupt decision of closure
thereof. Besides, even the general public has interest in the existence of a
school or college which receives grant in aid from the Government, which
is paid out of public exchequer. The Apex Court in the case of Francis
John V/s. The Director of Education [AIR 1990 SC 423] has expounded
that in private school which receives aid from the Government under the
grant in aid scheme, which is promulgated not merely for the benefit of
the Management but also for the benefit of the employees in the school for
whose salary and allowance, the Government was contributing from the
public funds under the Grant-in-aid scheme. They cannot be escaped from
the consequences flowing from the breach of the scheme and particularly
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51
where the Director of Education who is an instrumentality of the State,
which has participated in the decision making process. In the case of Nelson
& Anr. Vs. Kallayam Pastorate & ors. reported in 2006 (11) SCC 624 ,
the Apex Court has expounded that keeping in view interest of the general
public, even if it were to be a minority organisation, the Court can oversee
its function in case of mis-management. While referring to its earlier
decision in the case of Guruvayoor Devaswom Managing Committee has
observed that even otherwise rights under Article 25 and 26 of the
Constitution are not absolute and unfettered. Even in the case of Rt.Rev.
Msgr Mark Netto vs. State of Kerala & ors.[AIR 1979 SC 83] the Court
has noted that the right of the State to regulate education, educational
standards and allied matters cannot be denied. In that case the Court
considered the argument in the context of rights of minority institution.
Our attention has been invited to several other decisions, but it is not
necessary to multiply the authorities as by now it is well established
position that the right to start a school or college would no doubt include
the right to close the same. Such right, however, will be controlled by the
reasonable restrictions imposed in the interests of the general public.
25. The question is: whether the existing law provides for any
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52
restrictions. Reliance has been placed on the provisions of Rules 25A and
26 of the said Rules, as also on Rule 7.5 of the Secondary School Code. In
so far as the Secondary School Code is concerned, it is well established
position that it is only a compendium of administrative instructions and do
not have force of law. It is in the nature of administrative instructions
without statutory force of law. The Full Bench of our High Court in the
case of Shikshan Prasarak Mandal V/s. State of Maharashtra & ors.
[2009(5) Mh.L.J. 969] had occasion to make the above observations
considering the exposition of the Apex Court in the case of State of Assam
V/s. Ajit Kumar [AIR 1965 SC 1196] and State of Maharashtra V/s.
Lok Shikshan Sanstha [1973 Mh. L.J. (SC) 712=AIR 1973 SC 588] . The
Full Bench has also referred to later decision of the Apex Court in the case
of Tikaram V/s. Mundikota Shikshan Prasarak Mandal[1984 Mh.L.J.
(SC) 861=AIR 1984 SC 1621] and Francis John(Supra) and also
Division Bench of our High Court in Kobad Jahangir vs. Farukh Sidheva
[1990 Mh.L.J. 883] that the contravention of the Rule of the Code can be
challenged before the High Court. Nevertheless, the provision of the Code
are merely executive and administrative instructions, which are not
statutory in character. Even in the case of M.G. Pandke & ors. v/s.
Municipal Council Hinganghat reported in 1993 (3) Bom.C.R. 162 , the
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53
Apex Court has opined that the Code by itself is not statutory and is in the
nature of executive instructions but once framed, it will be obligatory for
the authority to follow it. The Code has been framed with the purpose of
bringing security of service, uniformity, efficiency and discipline in
working of non-Government Schools. It has to be applied uniformly to the
schools run by the Municipal Councils in the State. To consider the
efficacy of the provision of Rule 7.5. of the Code, even though the said
Rules are administrative instructions, the question is : can the provisions of
the Code be pressed into service for considering the claim of the
Management of closure of the junior colleges. In the case of Bishambher
Dayal Chandra Mohan & ors Vs. State of UP [1982 Vol.I SCC 39], the
Court had occasion to answer some what similar question. In that case, a
teleprinter message which mirrored the policy decision of the Government
was pressed into service to answer the contention of infringement of
fundamental rights guaranteed under Article 19(1)(g) r/w 301 of the
Constitution of India. The Apex Court in the first place found that the
teleprinter message was in the nature of executive instructions to the
Regional Food Controllers of the various regions to secure compliance
with the orders. It further held that there was nothing unusual in the State
Government issuing such executive instructions. In paragraphs-20 to 22
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54
and 27 of the decision, the Court answered the issue in favour of the State.
While relying on its earlier decisions, it held that the State Government
could act in exercise of the executive power of the State under Article 162
in relation to any matter with reference to which the State Legislature has
power to make laws even if there was no legislation to support such
executive action. The Court observed thus:
“20] Even assuming that the impugned teleprinter message is not relatable
to the two Control Orders, the State Government undoubtedly could, in
exercise of the executive power of the State, introduce a system of
verification on movement of wheat from the State of Uttar Pradesh to
various other States at the check-posts on the border and place
restrictions; on inter-district movement of wheat by traders on private
account within the State. The executive power of a modern State is not
capable of any precise definition. In Ram Jawaya Kapur v. State of Punjab
(1955) 2 SCR 225: (AIR 1955 SC 549), Mukherjea, C. J., dealt with the
scope of Arts, 73 and 162 of the Constitution. The learned Chief Justice
observed that neither of the two Articles contains any definition as to what
the executive function is or gives an exhaustive enumeration of the
activities which would legitimately come within its scope. It was
observed : "Ordinarily the executive power connotes the residue of
governmental functions that remain after legislative and judicial functions
are taken away." It is neither necessary nor possible to give an exhaustive
enumeration of the kinds and categories of executive functions which may
comprise both the formulation of the policy as well as its execution. In
other words, the State in exercise of its executive power is charged with
the duty and the responsibility of carrying on the general administration
of the State. So long as the State Government does not go against the
provisions of the Constitution or any law, the width and amplitude of its
executive power cannot be circumscribed. If there is no enactment
covering a particular aspect, certainly the Government can carry on the
administration by issuing administrative directions or instructions, until
the legislature makes a law in that behalf. Otherwise, the administration
would come to a standstill.
[21] In Ram Jawaya Kapur's case (1955) 2 SCR 225 at p. 236 : (AIR 1955
SC 549 at p. 556) (supra) it was contended that the executive power of the
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55
State did not extend to the carrying on of trade of printing, publishing and
selling of text-books for schools unless such trade was authorised by law.
In repelling the contention, Mukherjea, C. J. speaking for the Court,
observed :
Our Constitution, though federal in its structure, is modeled
on the British Parliamentary system where the executive is
deemed to have the primary responsibility for the
formulation of governmental policy and its transmission into
law though the condition precedent to the exercise of this
responsibility is its retaining the confidence of the legislative
branch of the State. The executive function, comprises both
of the determination of the policy as well as carrying it into
execution. This evidently includes the initiation of
legislation, the maintenance of order, the promotion of social
and economic welfare, the direction of foreign policy, in fact
the carrying on or supervision of the general administration
of the State.
The learned Chief Justice then went on to observe : Ibid at 239 (of SCR) :
(at P. 557 of AIR)
The Indian Constitution is a written Constitution and even
the legislature cannot override the fundamental rights
guaranteed by it to the citizens. Consequently, even if the
acts of the executive are deemed to be sanctioned by the
legislature, yet they can be declared to be void and
inoperative if they infringe any of the fundamental rights of
the petitioners guaranteed under Part III of the Constitution.
On the other hand, even if the acts of the executive are
illegal in the sense that they are not warranted by law, but no
fundamental rights of the petitioners have been infringed
thereby, the latter would obviously have no right to complain
under Article 32 of the Constitution though they may have
remedies elsewhere if other heads of rights are infringed.
In Naraindas Indurkhya v. State of Madhya Pradesh, (1974) 3 SCR 624:
(AIR 1974 SC 1232), Bhagwati, J., speaking for the Court, reiterated the
principles laid down by Mukherjea, C. J. in Ram Jawaya Kapur's, case,
(supra) and held that the State Government could not in exercise of the
executive power of the State under Art. 162 of the Constitution in relation
to any matter with respect to which the State Legislature has power to
make laws even if there was no legislation to support such executive
action. There is no denying the fact that the State Legislature is competent
to enact a law on the subject covered by Entry 33, List III, which reads :
33. Trade and commerce in, and the production, supply and
distribution of,-
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(b) foodstuffs, including edible oilseeds and oils.”
In the same Judgment, the Court then noticed that the
instructions issued in the teleprinter message were to achieve three main
objectives, which were obviously intended to subserve the objective of the
legislation and were in public interest. In paras- 27 and 32 of the same
decision, the Court observed thus:
“27. The quintessence of our Constitution is the rule of law. The
State or its executive officers cannot interfere with the rights of others
unless they can point to some specific rule of law which authorises
their acts. In State of M.P.v.Thakur Bharat Singh, the Court repelled
the contention that by virtue of Article 162, the State or its officers
may, in the exercise of executive authority, without any legislation in
support thereof, infringe the rights of citizens merely because the
legislature of the State has power to legislate in regard to the subject
on which the executive order is issued. It was observed:
Every act done by the Government or by its officers
must, if it is to operate to the prejudice of any person, be
supported by some legislative authority.
The same principle was reiterated by the Court in Satwant Singh
Sawhney v. Dr.Ramarathnam, Assistant Passport Officer, Government
of India, New Delhi and Smt.Indira Nehru Gandhi v. Raj Narain.”
“32. The real, question at issue is whether or not the seizure of
wheat was with the authority of law. The fundamental right to carry
on trade or business guaranteed under Art. 19 (1) (g) or the freedom
of inter-State trade, commerce and intercourse under Art. 301 of the
Constitution, has its own limitations. The liberty of an individual to
do as he pleases is not absolute. It must yield to the common good.
Absolute or unrestricted individual rights do not and cannot exist in
any modern State. There is no protection of the rights themselves
unless there is a measure of control and regulation of the rights of
each individual in the interests of all. Whenever such a conflict comes
before the Court, it is its duty to harmonise the exercise of the
competing rights. The Court must balance the individual's rights of
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57
freedom of trade under Art. 19 (1) (g) and the freedom, of inter-State
trade and commerce under Art. 301 as against the national interest.
Such a limitation is inherent in the exercise of those rights.”
26. For the time being, we shall revert to the provisions of the
Rules of 1981. It may be relevant to note that the Rule as originally
introduced under the 1981 Rules i.e., Rule 26 governed both the situations,
now separately dealt with by Rule 25A and Rule 26. The said Rule reads
thus:
“26. Retrenchment on account of abolition of posts.- (1) The services of
a permanent employee may be terminated by the Management after
giving him 3 months’ notice or 3 months’ pay (together with allowances)
in lieu of notice, on the following grounds namely:-
(i) Reduction of establishment owing to reduction in the
number of Classes or Divisions.
(ii) Fall in the number of pupils resulting in reduction of
establishment.
(iii) Change in the curriculum affecting the number of
certain category of teachers.
(iv) Closure of a course of studies or of the school itself.
(v) Any other bonafide reason of similar nature.
(2) Termination of services under sub-rule (1) above shall
be subject to the following conditions, namely:-
(i) The principle of seniority shall ordinarily be observed.
(ii) Prior approval of the Education Officer, or in the case of
the Junior College of Education the Deputy Director shall be
obtained by the Management in each and every case of
retrenchment including cases in which the principle of
seniority is proposed to be departed from and a senior
member of the staff is proposed to be retrenched when a
junior member should have been retrenched.
(iii) The employees whose services are proposed to be
terminated shall be absorbed by the Education Officer or as
the case may be, the Deputy Director, in other Schools. Till
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the employees are so absorbed the Management shall not be
permitted to close down the Classes or Divisions or to effect
retrenchment on account of any other reason mentioned in
sub-rule (1) above.
(3) If posts retrenched are revived or additional posts for
the same subjects are created, the Management shall, by a
letter registered post acknowledgment due addressed to the
employee who is retrenched and absorbed in other School,
give him the first opportunity of re-joining services in the
school. For this purpose the employee shall communicate to
the Management his address and availability for the job
every year before April by a letter sent by registered post
acknowledgment due.
(4) The retrenched person who may have been absorbed
in other School shall have an option either to get repatriated
to his original School or to continue in the School in which
he has been absorbed.
(5) If the employee opts to continue in the School in
which he has been absorbed or if no written reply is received
from the employee within a fortnight from the date of
receipt of the letter addressed to him by the Management
regarding the offer for re-appointment or repatriation to the
School or on refusal by him to receive the letter containing
such an offer, the Management shall be free to fill the post
or posts by appointing some other qualified person or
persons.
(6) In the3 event of the employee opting to get
repatriated to the original School he shall be restored to his
original position in pay, seniority etc.”
As per the old Rule, it is noticed that closure of a course of
study or a school itself, was covered by sub-clause (iv) of Sub-Rule (1).
Sub-clause(ii) of Sub-Rule (2) stipulated that prior approval of the
Education Officer should be obtained by the Management in each and
every case of retrenchment. Sub-clause (iii) of Sub-Rule-2 further provided
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59
that the employees whose services are proposed to be terminated shall be
absorbed by the Education Officer or as the case may be, the Deputy
Director. Further, till the employees are so absorbed the Management
shall not be permitted to close down the Classes or Divisions or to effect
retrenchment on account of any other reason mentioned in sub-rule(1). The
Scheme of old Rule 26 plainly provided for “prior approval” of the
Competent Authority before closure of the school. With passage of time and
the contemporaneous developments, the Legislature thought it necessary to
amend the old Rule 26. The same was substituted by introducing Rule 25A
th
and Rule 26 by amendment, which was notified on 20 October, 1987. The
existing rule 25A and 26 which are statutory rules read thus:
“25A. Termination of Service on account of abolition of posts :-
(1) The services of permanent employee may be terminated by the
Management on account of abolition of posts due to closure of the
school after giving him advance intimation of three months to the
effect that in the event of closure of the school, his services shall
automatically stand terminated. In the case of closure of school due
to de-recognition, such advance intimation of three months shall be
given by the Management to the permanent employees after receipt
of a show cause notice from the Deputy Director.
Explanation:- For the purposes of this sub-rule, the
expression "closure of the school" shall include, -
(i) voluntary closure by the Management
of the entire school if it is imparting
instruction through one medium or a part
of the school comprising one or more
media of instruction if it is imparting
instruction through more than one
medium; and
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60
(ii) closure of the school due to de-
recognition by the Department.
(2) The names of the employees in aided schools, whose services
stand terminated in accordance with sub-rule (1) on account of de-
recognition and who are not directly responsible for such de-
recognition, shall be taken on a waiting list by the Education Officer
in the case of Primary and Secondary schools or by the Deputy
Director in the case of Higher Secondary Schools or Junior Colleges
of Education, and the same shall be recommended by him to the
Managements of newly opened aided schools or of the existing
aided schools which are allowed to open additional divisions or
classes, for consideration".]
26. Retrenchment on account of abolition of posts :-
(1) A permanent employee may be retrenched form service by the
Management after giving him 3 months notice, on any of the
following grounds, namely:-
(i) reduction of establishment owing to reduction in the
number of classes or divisions;
(ii) fall in the number of pupils resulting in reduction
of establishment;
(iii) change in the curriculum affecting the number of
certain category of employees.
(iv) Closure of a course of studies;
(v) any other bonafide reason of similar nature.
(2) The retrenchment from services under sub-rule (1) shall be
subject to the following conditions, namely:-
(i) The principle of seniority shall ordinarily be
observed;
(ii) Prior approval of the Education Officer in the case
of Primary and Secondary Schools or of the Deputy
Director in case of Higher Secondary Schools and
Junior Colleges of Education shall be obtained by the
Management in each case of retrenchment including
such cases in which the principle of seniority is
proposed to be departed from and a senior member, of
the staff is proposed to be retrenched when a junior
member should have been retrenched, stating the
special reasons therefor;
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61
(iii) The employees form 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 or absorption
or such employees shall be issued by registered post
acknowledgment 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)
(3) In case any employee refuses to accept the alternative
employment offered to him under clause (iii) of sub-rule (2), he
shall lose his claim for absorption, and the Management of the
school shall be allowed to retrench such employee from the services
after completion of 3 months notice period.
(4) If the posts retrenched are revived or additional posts for the
same subject are created, the Management shall, by a registered post
acknowledgment due letter addressed to the employee who is
retrenched and absorbed in other school, give him the first
opportunity of re-joining services in the school. For this purpose,
the employees shall communicate to the Management, his address
and availability for the job ever year before April by a letter sent by
registered post acknowledgment due .
(5) The retrenched person who may have been absorbed in other
school, shall have an option either to get repatriated to his original
school or to continue in school in which he has been absorbed.
(6) If the employee opts to continue in the school in which he has
been absorbed, or if no written reply is received from the employee
within a fortnight from the date of receipt of letter addressed to him
by the Management regarding the offer for re-appointment or
repatriation to the school or on refusal by him to receive the letter
containing such offer, the Management shall be free to fill the post
or posts by appointing some other qualified person or persons.
(7) In the event of the employee opting to get repatriated to the
original school, he shall be restored to his original position in pay,
seniority etc.
(8) In the event of the employee opting to continue in the school in
which he has been absorbed, and even during the intervening period
when he has not been given an opportunity to rejoin his previous
school, his services shall not be terminated by the Management
under sub-rule (1) of Rule 28 by treating him as temporary. If the
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62
services of such an absorbed employee are required to be terminated
under Rule 25A or he is to be retrenched under the rule, the
procedure prescribed under Rule 25A, as the case may be, in this
rule, shall apply. However his seniority for the purpose of
promotion in the school in which he is absorbed shall be fixed in the
respective category form the date of his absorption.
(9) In case, the fall in the number of pupils, classes or divisions
affects the scale of the employee or his status, the facility of
absorption admissible as per provisions of clause (iii) of sub-rule (2)
shall not be admissible to him and he shall have to work on the
lower scale or lower post or part-time post, as the case may be. in
the event of such an employee showing unwillingness to work on
such a post, the authorities mentioned in clause (iii) of sub-rule (2)
shall permit the Management to retrench him after giving him three
months' notice or, as the case may be, after completion of the notice
period if already given."]
The distinction between the two Rules has already been
expounded by the Division Bench of this Court (see Dattaraj Janraoji
Nimkar & ors. vs. Swargiya Sakharamji Shikshan Sansthan 2004 (1)
Mah. L.J. 516 – paras 6-8 thereof). The two Rules now operate in different
fields. Rule 25A is specific to closure of the School as a whole, whether on
account of voluntary closure or on account of de-recognition.
Consequences in either case is of abolition of posts in which the permanent
employees were engaged by the concerned school. As a result, the
permanent employees are required to be terminated by the Management.
The expression “closure of School” has been amplified in the explanation
below Rule 25A(1). Significantly, Rule 25A does not even remotely require
the Management to take prior approval or permission of any Authority
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63
before issuance of notice of termination to its permanent employees. In
other words, condition of prior approval in the case of closure of a school
either be a case of voluntary closure or on account of de-recognition of the
school, which obtained under the old Rule 26 has been done away with after
the amendment of 1987.
27. We have no doubt in our mind that the case of voluntary closure of
the junior colleges would be governed only by the regime provided in Rule
25A. The Management however, issued notice of termination to its
permanent employees mentioning Rule 25A as well as Rule 26. Merely
because the notice refers to Rule 26, that does not mean that the rigours of
Rule 26 would be attracted to the case on hand. Nor it is possible to read the
rigours provided in Rule 26 into the requirements of Rule 25A. That
interpretation would defeat the very object for which the amendment was
effected in 1987 and will be in the teeth of the legislative intent. For, the
existing Rule 26 deals with retrenchment of the permanent employees from
service by the Management on account of situations specified in sub-rule
(1), which are other than closure of the school as a whole. The situations
specified under sub-rule (1) of Rule 26 are on account of reduction of
establishment. By its very nature, temporary reduction of establishment is
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64
attributable to the closure of a course of studies, reduction of the number
of classes or division or fall in the number of pupils or change in the
curriculum effecting number of certain category of employees. It is
certainly not comparable with the closure of a school as a whole. The fact
that one of the situation specified in sub-rule (1) of Rule 26 as to any other
bonafide reasons of similar nature cannot be amplified to mean that even a
closure of a school as a whole would be governed by the regime provided
in sub-rule (2) of Rule 26. Whereas, the said sub-clause(v) will have to be
read Ejusdem generis keeping in mind the preceding sub-clauses in the
same Rule.
28. Suffice it to observe that both Rule 25A and Rule 26 operate in
different fields and are mutually exclusive. Both the Rules were introduced
simultaneously by the same amendment but it is only in the latter Rule i.e.
Rule 26, the Legislature has provided that “prior approval” of the
Education Officer or the Deputy Director as the case case may be shall be
obtained by the Management in each case of retrenchment justifying the
situations provided therein. Since Rule 26 has no application at all to the
situation arising out of voluntary closure of the school, which situation is
governed by Rule 25A of the Rules, the question of taking any “prior
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65
approval” of the Competent Authority is not contemplated by Rule 25A- as
in the case of situations specified in Rule 26. To that extent, the
Management is right that atleast the Rules of 1981 will be of no avail, as it
do not provide for taking “prior approval” of the Competent Authority
before implementing the decision of voluntary closure of a School/Junior
College. That however, does not mean that the Management has absolute
right to close the Junior Colleges unilaterally. Inasmuch as, Rule 7.5 of the
th
Secondary School Code as amended on 17 December, 1990 will have to be
kept in mind while examining this aspect. Rule 7.5 reads thus:
“7.5 The management of the school, the partial or the
total recognition to which has been withdrawn by Deputy
Director, may submit an appeal to the Director within thirty
days from the date of the said order. The appeal shall be sent
by registered post. Appeals received after the prescribed
time-limit will not be entertained. [The Director or his
representative not below the rank of the joint Director of
Education, may decide the appeal after giving hearing to the
representatives of the Management and his decision shall be
final and binding on the Management.]
[No Management shall close school or any of the
recognised classes or make voluntary change in approved
school subjects, which may result in any of its permanent
staff being rendered surplus, without due notice to the
Regional Deputy Director of Education, at least one
academic term in advance, and act as per his decision. An
appeal on the decision of the Deputy Director of Education
in this case shall lie with the Director of the Education.]”
(emphasis supplied)
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It will have to be borne in mind that Rule 7.5 of the Code appears in
Section I of Chapter II of the Code. Chapter II of the Code deals with
recognition, organisation and management of the schools. Section I thereof
deals with conditions, grants, refusal and withdrawal of recognition. Rule
7.1 to Rule 7.6 are grouped under the heading withdrawal of recognition.
The code provides for elaborate procedure for recognition of a school.
Once the recognition is granted, the school has to abide by the specified
norms, failing which it would entail in withdrawal of recognition. The
withdrawal of recognition can be either partial or total recognition. The
first part of the Rule 7.5 is of no relevance to the controversy on hand. It
merely provides remedy of appeal against the decision of partial or total
withdrawal of recognition. The remedy of appeal is before Director to be
availed before 30 days from the date of the order passed by the Deputy
th
Director. Amended second part of Rule 7.5(as amended on 17 December,
1990), has some bearing on the present matter. It provides that no
Management shall close school, without due notice to the Regional Deputy
Director of Education atleast one academic term in advance. It further
provides that the Management shall have to act as per the decision of the
said Authority. It further provides that it is open to the Management to
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67
question the decision of the said Authority before the Director of
Education. In the case of closure of a school, there would be no question of
permanent staff being rendered surplus. That is relevant to the other
situation spelt out in Rule 7.5, to wit, closure of recognised classes or make
voluntary change in approved school subjects. That is ascribable to
situations specified in Rule 26 as amended in 1987. In the latter situation
the school continues to function but the permanent staff is rendered surplus
due to closure of recognized classes or of making voluntary change in the
approved school subjects. Whereas, when the whole school is to be closed,
it presupposes that the permanent staff of the school at the relevant point of
time will inevitably have to be terminated. The provision is obviously
intended primarily to supplement the legislative intent under the statutory
Rules of extending benefits to the permanent employees engaged by such
institution. The statutory Rules is a welfare legislation. Besides
safeguarding the interests of the permanent employees, this provision-Rule
7.5 of the Code also attempts to safeguard the interests of other stakeholder
in the school such as students and general public who are also likely to be
affected by the abrupt closure of a school. Thus understood, the requirement
under this provision of giving “due notice” to the Regional Deputy Director
of Education has been made essential. This provision makes no distinction
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68
between aided and unaided schools. Considering the decision of the Apex
Court in the case of Bishambher Dayal(Supra), it would necessarily
follow that Rule 7.5 of the Code, which is in the nature of executive
instructions issued in exercise of powers under Article 162 of the
Constitution by the State Government, being a reasonable restriction, the
Management would be obliged to comply with the stipulation specified
therein.
29. The question is: whether Rule 7.5 of the Code obliges Management
to take “prior approval” or “prior permission” of the Competent Authority
before translating its decision of closing down the school. The Language
employed in Rule 7.5 is only one of the giving “due notice” to the
Regional Deputy Director of Education and not of taking “prior approval”
or “prior permission” as such. “Due notice” would mean giving adequate or
legally prescribed notice, which is atleast one academic term in advance.
The term “notice” has originated from the Latin word “notifia” which
means “a being known or a knowing and is wide enough in the legal circle
to include a plaint filed in a suit”. The term “notice” has been defined in
various dictionaries. It denotes merely giving information or intimation to
the party concerned of a particular fact. [See CST vs. Subhash & Co.
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69
[(2003) 3 SCC 454 and Parasramka Commercial Co. vs. Union of
India[(1969) 2 SCC 694]]. In that sense, what is provided by Rule 7.5 of
the Code is only giving intimation about the decision to close the school,
which has to be atleast one academic term in advance. The said provision
per se does not speak of “prior approval” or “prior permission” at all. The
term “approval” does not mean anything more than either confirming,
ratifying, assenting, sanctioning or consenting. It is an administrative
power which limits the jurisdiction of the authority to apply its mind to see
whether the proposal is acceptable. Distinction between the term
“approval” and “permission” is also well established. In the case of
U.P.Avas Evam Vikas Parishad vs. Friends Coop. Housing Society Ltd.
[1995 Supp(3) SCC 456], the Apex Court has expounded that ordinarily,
the difference between approval and permission is that in the first case the
action holds good until it is disapproved, while in the other case it does not
become effective until permission is obtained. Suffice it to observe that
Rule 7.5 makes no reference to requirement of prior “approval” or
“permission”, but speaks only of giving due notice. Expression “due
notice” would, therefore, ordinarily mean that the Management is obliged
only to send intimation to the Appropriate Authority of the fact that it
intends to close the school.
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70
30. The argument of the State and the employees, however, is that, Rule
7.5 plainly requires the Management to abide by the decision of the
Regional Deputy Director unless the same is to be appealed and reversed.
Relying on the expression “and act as per his decision”, it was argued that
even though earlier part of the same provision merely provides giving of
due notice to the Authority it would necessarily follow that after giving
such notice, the Management is obliged to abide by the decision of the
Appropriate Authority. Thus understood, it would nevertheless be a case of
a prior approval, if not a case of prior permission. This aspect has already
been dealt with in the decisions of learned Single Judges of our Court in the
case Pujya Sane Guruji Vidya Prasarak Mandal & Ors. Vs. Prakash M.
Patil & Anr.[2002(1) All MR 766] and Mahatma Gandhi Taluka
Shikshan Mandal, Chopda & Anr. Vs. Sambhaji A. Patil & Anr. etc.etc.
[2004(2) M.L.R.854]=Maharashtra Education Cases 132. In the case of
Pujya Saneguruji VPM(supra) , it is held that prior permission of any
authority under the Code is not necessary for voluntary closure of the
School. The Court however, held that that the closure of the School under
Rule 25A has also to be for any bonafide reason of similar nature, as
specified under Clause (v) of Rule 26(1). In compelling circumstances, the
Management would decide to close down the School for bonafide reason,
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71
which would include fall in number of pupils or financial constraint and the
like. In the case of Mahatma Gandhi TSM(supra), the view taken in the
earlier decision in Pujya Sane Guruji VPM(supra) has been restated to
the effect that no prior permission is required before enforcing the decision
of the Management to voluntarily close the School, except to issue notice to
the employees and of giving due notice of closure to the Deputy Director
one academic term in advance.
31. In our opinion, however, the amended second part of Rule 7.5 if read
as a whole and particularly keeping in mind the avowed purpose of giving
notice of one academic term in advance coupled with the obligation of the
Management to abide by the directions of the Appropriate Authority to be
passed on such intimation, it would mean that the intimation to be given
by the Management to the Appropriate authority is “analogous to”
application for grant of approval of the Authority. We would bend forwards
to take this view keeping in mind the purpose of giving advance notice of
atleast one academic year - so as to obviate the insurmountable cascading
effect to be caused due to the abrupt closure of any School/Junior College
by the Management unilaterally. Any other view would be frought with
serious civil consequences to the stakeholders in the school, who may not
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72
only be the employees of the school but also the students community and
the interests of public in general. Indubitably, the intent behind the
amendment to Rule 7.5 of the Code, introduced posterior to the
amendment of Rules of 1981 in 1987 and coming into force of amended
Rules 25A and 26, was to address the abovestated mischief by requiring the
Management not only to give notice of its intent to close the School/Junior
College atleast one academic year in advance but also to act as per the
decision of the Appropriate Authority. The State has administrative and
executive power to impose reasonable restrictions on the school before
enforcing the decision of closing the school as a whole. In other words, the
existing provision in Rule 7.5 of the Code deserves to be construed as
“analogous to” approval of the Appropriate Authority. That would subserve
the larger public interest and the same time will be a reasonable restriction.
However, the power to be exercised by the Appropriate Authority can be
only of confirming, assenting or consenting to the proposal of closure of
the school by imposing such conditions which would be necessary to
safeguard the interests of the permanent employees and also of the students
community. While doing so, however, it cannot sit over the decision of the
Management to close the school as an Appellate Authority or assume the
power to refuse permission and outright reject the proposal of the
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73
Management. That approach would obviously interfere with the
fundamental rights of the Management to close down the School when it so
desires and especially when it was unwilling to continue to run the same.
In exercise of powers under Rule 7.5 of the Code to issue directions to the
Management, the Appropriate Authority can provide for suitable and
reasonable time frame so as to accommodate the existing students in other
neighbouring schools/junior colleges and also to secure the interests of the
prospective students in the vicinity. Besides, the Appropriate Authority has
to consider the issues relating to permanent employees of the school who
are likely to be dislocated or terminated from service. The directions to be
issued in this behalf would obviously be reasonable restrictions. It is not
possible to spell out diverse situations which the Appropriate Authority may
have to address while considering the proposal of the Management to close
the school. As aforesaid, the Appropriate Authority cannot be unmindful of
the fact that the directions to be issued by it should be germane to the cause
for which the same are issued and in any case, the directions should be just
and reasonable restrictions. What direction would be just and reasonable
is a matter which would depend on facts of each case. Suffice it to observe
that the Appropriate Authority cannot outright reject the proposal of the
Management of closure of the school. If the situation so demands, there is
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74
ample power with the Appropriate Authority, bestowed in terms of
provisions of Maharashtra Educational Institution (Management) Act, 1976,
even to take over the management of the concerned school for a limited
period in the public interest. Those are options, which will have to be
generated and considered by the Appropriate Authority. The validity of
provisions similar to one under 1976 Act have been considered by the Apex
Court while examining the provisions of Gujarat Secondary Education Act,
1972 in the case of Bharat Sevashram Sangh vs. State of Gujarat[(1986)
4 SCC 51].
32. Be that as it may, in our opinion, the substance of the requirement of
Rule 7.5 is that the Management has to give intimation to the Appropriate
Authority well in advance, who in turn has authority coupled with the duty
to issue directions as he may deem fit which ought to be just and reasonable
and the Management is bound to act upon such directions. This restriction
is for the limited purpose of giving sufficient time to the Appropriate
Authority to make suitable remedial arrangement so that the interest of
stakeholders in the school - of permanent employees and students
community - is not jeopardized. The Appropriate Authority is expected to
attended to the said intimation with immediate despatch to avoid any
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75
prejudice to the stakeholders in the school. The necessity of giving one
academic year notice will have to be held as mandatory having regard to the
consequences that would follow on account of abrupt closure of a School.
At the same time, period of one academic year intimation is sufficiently
long enough to enable the Authority to make suitable alternate arrangement
for the students and employees concerned. It is not possible for us to
accept the extreme argument of the State and the employees as well as the
Petitioners espousing the cause of students that “prior permission” of the
Appropriate Authority is the quintessence for allowing the Management to
close down the school. The language of Rule 7.5 does not support that
position. Indeed, it is always open to the Legislature to introduce such
requirement expressly in the Act governing the subject or the statutory
Rules. The validity of such a provision however, can be tested when
occasion arises. For the present, we would proceed on the basis that the
Management of the school has a right to close the school but it is subject to
complying the obligation of giving advance notice of one academic year
and the restrictions which are likely to be imposed by the Appropriate
Authority, which ought to be just and reasonable restrictions and in the
interests of general public. We are conscious of the fact that Rules of 1981
are essentially in relation to the conditions of service of employees of
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76
private schools. However, at the same time, the Secondary School Code,
which is compendium of executive and administrative instructions, is
ascribable to the executive power of the State under Article 162 of
Constitution and the provision such as Rule 7.5 of the Code is primarily
intended to further the interests of the general public and not limited to the
service conditions of employees. Thus understood, right to close a
School/Junior College of Management is not an absolute right and moreso,
when the School is a government aided school. The extreme argument of
the State that Rule 7.5 of the Code empowers the competent Authority even
to refuse permission and force the Management to continue to run the
School for all times to come, if accepted would render the said provision
unconstitutional as it would interfere with the fundamental rights
guaranteed under Article 19(1)(g) of the Constitution-to start a school which
includes right to close the school when the Management decides to do so.
33. The next question is what are the consequences of closure of the
school qua permanent employees. That question in our opinion, will have to
be addressed by the School Tribunal in the first instance, keeping in mind
the provisions of Rule 25A of the Rules. We have already observed that the
closure of the school would be governed only by the regime of Rule 25A of
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77
the Rules. We do not propose to elaborate on this issue any further. Lest, it
may affect the merits of the pleas available to the Management as well as
the concerned permanent employees. All questions in this behalf will have
to be addressed by the Tribunal. Even the question as to whether the
Tribunal can direct absorption of the affected permanent employees in the
school on the assumption that they have been rendered surplus due to
voluntarily closure of the School/Junior College by the Management, will
have to be considered by the Tribunal in accordance with law. We do not
wish to detain ourselves on those aspects.
34. The next question is: whether the School Tribunal can examine the
question of bonafides of closure. In this context, we will also consider the
correctness of the opinion recorded by the learned Single Judge in the
impugned decision that the Tribunal has misdirected itself in considering
the said question inspite of the observations of the Division Bench in the
case of Bhagwant Kumar Sandhu[2008(1) All MR 270. In the first place,
jurisdiction of the School Tribunal flows from Section 9 of the Act, which
read thus:
9. Right of appeal to Tribunal to employees of private schools. :-
(1) Notwithstanding anything contained in any law or contract for
the time being in force, [any employee in a private school-
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78
(a) who is dismissed or removed or whose services are
otherwise terminated or who is reduced in rank, by the
order passed by the Management or
(b) who is superseded by the Management while
making an appointment to any post by promotion, and
who is aggrieved, shall have right of appeal and may
appeal against any such order or suppression to the
Tribunal constituted under section 8 ;.]
Provided that , no such appeal shall lie to
the Tribunal in any case where the matter
has already been decided by a Court of
competent jurisdiction or is pending
before such Court, on the appointed date
or where the order of dismissal, removal,
otherwise termination of service or
reduction in rank was passed by the
Management at any time before the 1st
July 1976.
(2) Such appeal shall be made by the employee to the Tribunal,
within thirty thirty days from the date of receipt by him of the order
of dismissal, removal, otherwise termination of service or reduction
in rank, as the case may be:
Provided that, where such order was made before the
appointed date, such appeal may be made within sixty
days from the said date.
(3) Notwithstanding anything contained in sub-section (2), the
Tribunal may entertain an appeal made to it after the expiry of the
said period of thirty or sixty days, as the case may be, if it is
satisfied that the appellant has sufficient cause for not preferring the
appeal within that period.
(4) Every appeal shall be accompanied by a fee of [five hundred]
rupees, which shall not be refunded and shall be credited to the
Consolidated Fund of the State.
It is a remedy provided to the employee of a private school, who is
dismissed or removed or whose services are terminated or who is reduced
by rank by order passed by the Management. All questions arising in
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respect of the said grievance will have to be considered by the Tribunal.
However, at the same time, that does not mean that the Tribunal can
undertake parallel enquiry on matters which the Education Department is
expected to examine upon receipt of intimation from the Management about
its proposal to close the School. Indeed, the Tribunal can incidentally go
into the question of whether there is closure effected, but it does not
empower the Tribunal to render conclusive finding with regard to the
bonafides of closure. As we have observed in earlier part of this Judgment,
even the Appropriate Authority of the Education Department cannot sit over
the decision of the Management to close down the School as an Appellate
Authority. The scope of enquiry even before the Appropriate Authority of
the Education Department is only to consider as to what suitable directions
are warranted in the fact situation of the case, so as to minimise the loss and
hardship to be caused to the stakeholders, in particular, the students
community and the permanent employees of the school. In our view,
therefore, the School Tribunal cannot render conclusive finding with regard
to the bonafides of the decision of the Management to close the school.
Moreover, an enquiry with regard to the bonafides of voluntary closure will
be an exercise in futility as the right of the Management to close the school
can only be regulated by imposing reasonable restrictions in the interests of
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general public. For, it would not be open even to the Appropriate Authority
to outright reject the proposal of voluntary closure of the school, as that
would impinge upon the rights guaranteed under Article 19(1)(g) of the
Constitution.
35. The next question is: is it open to the School Tribunal to consider the
issue of closure resulting in causing prejudice to the existing students of the
school or prospective students and that of the Society as a whole. We are
afraid, it is not open to the School Tribunal to reopen the issue of closure
of the school, which would attain finality with the directions to be issued
by the Appropriate Authority of the Education Department. The School
Tribunal in any case would be competent only to address the matters in the
context of privileges or benefits available and accrued to the permanent
employees if any, on account of the closure of the school. The School
Tribunal has no concern with any other issue, since it has been constituted
only to examine the limited grievance brought before it under section 9 of
the Act.
36. The next issue that needs to be addressed is regarding appointment of
Administrator by the Appropriate Authority in exercise of powers under the
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provisions of Maharashtra Educational Institution (Management) Act, 1976
to take over the Management of the junior colleges for a limited period in
public interest. Here we may notice that after the hearing of the present
batch of matters was concluded and the same were adjourned for
pronouncement of judgment, in the interregnum, the Petitioners in Writ
Petition No. 1639 of 2009 have filed Review Petition for recalling the order
th
dated 18 November, 2009. The principal grievance in the said Review
Petition is that the statutory remedy of appeal is not an efficacious remedy
in the fact situation of the present case. In that, the circumstances on
record would indicate that the exercise of that power by the Authority is
for extraneous consideration and malafide. Moreover, there is no provision
of appeal against the order passed under section 4 of the Act of 1976. In the
present case, the order passed by the Appropriate Authority is a composite
order under section 3 as well as section 4 of the Act. Insofar as the order
under Section 4 of the Act is concerned, the same is made on the basis of
approval given by the State Government in that behalf. Taking any view of
the matter remedy of appeal is not an efficacious remedy. The argument
though attractive, in our opinion, need not detain us. Even if the
Management were to succeed in the Review Petition the question regarding
appropriateness of the order of appointing Administrator and taking over
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of the Management will have to be examined on its own merits. That can be
considered at the appropriate stage. We express no opinion on the said
aspect, except to clarify that all questions in that behalf are left open to be
decided on its own merits in accordance with the law. Indeed, depending
on the outcome of the decision in the said matter, the question as to whether
the school can be continued and managed for the limited period as provided
under the said Act or otherwise will become relevant. We are of the view
that even if the Management were to succeed in their stand that the
Appropriate Authority could not have outright rejected their proposal of
closing the School, even so, the Management would be bound by the
suitable directions to be issued by the Appropriate Authority and moreso,
subject to the final decision in the action initiated by invoking the
provisions of the Act, 1976 of taking over the Management of the Junior
Colleges to minimise the hardship to be caused to the students community
and the employees thereof. .
37. The next question is whether the effect of appointment of
administrator can be in relation to the entire management of the Trust or
only limited to the management and running of the two junior colleges.
Inasmuch as, if it were to be a case of taking over the Management of the
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trust, it would not only result in taking over the Management of the Degree
college but also other activities of the Public Trust which can be regulated
only by the Charity Commissioner under the provisions of the Bombay
Public Trusts Act. Once again this question will have to be considered in
the context of powers under the Act of 1976. We may however, observe
that going by the order of appointing administrator and taking over the
management, the same merely refers to taking over the management of the
two junior colleges. Be that as it may, all aspects in this behalf can be
considered and addressed at the appropriate stage – be it by the Appellate
Authority or this Court, as the case may be. We keep all questions in that
behalf open to be considered in the said proceedings.
38. The next question is whether the decision of the Appropriate
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Authority, which has culminated in the Order dated 25 July, 2008 can be
sustained. We have already reproduced the relevant extract of the said
decision. The basis on which the Appropriate Authority considered the
intimation given by the Management, in our opinion, was plainly
extraneous. In the first place, the Appropriate Authority could not have
outright rejected the proposal submitted by the Management of closing
down the junior colleges. In any case, the reasons recorded by the
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Appropriate Authority do not commend to us. The Appropriate Authority at
the outset has observed that prior permission was necessary. This aspect is
already answered by us. The provisions pressed into service do not require
permission of the Authority much less prior permission, but the decision of
the Authority is only in the nature of approval for the limited purpose of
issuing directions to provide for suitable remedial arrangement to safeguard
the interests of the employees and more particularly of the students
community. The Authority cannot sit over the decision of the Management
of closing the junior colleges as an Appellate Authority. The next reason
recorded by the Appropriate Authority is that, the Management passed
th
resolution on 14 February, 2007 to close down the school without taking
prior permission. That view is the outcome of clear misunderstanding. The
th
resolution passed by the Management on 14 February, 2007 was the basis
on which the proposal has been submitted to the Authority, as required
under Rule 7.5 of the Code within the specified time, which was in accord
with the time specified under the said Rule. Rule 7.5 requires submission
of such proposal atleast one academic term in advance. The Appropriate
Authority has then opined that the decision of the Management was not
bonafide and the Management was making concerted efforts to close down
the school since November, 1997. Even this reason is of no consequence,
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once it is found that the Appropriate Authority cannot sit over the decision
of the Management to close down the School or Junior College as an
Appellate Authority. Even the other reasons recorded by the Appropriate
Authority that the Management was not cooperative and that there was
strong opposition from the local people or of students basic right to
education will be affected does not take the matter any further. The
Appropriate Authority has gone to the extent of observing that there is no
provision in MEPS Act to close down the school, clearly overlooking the
fact that the provisions of MEPS Act are invoked by the Management only
for issuance of notice to its permanent employees. Giving notice to the
permanent employees as per Rule 25A, does not mean that the
Management has no right to close the junior colleges, if it intends to do so.
Suffice it to observe that the decision of the Director of Education of
outright rejection of the proposal to close the junior college, is
unsustainable. The Appropriate Authority including the Director of
Education at best were empowered to examine the issues which would
emanate as a consequence of closure of the junior college and could have
issued directions only in that regard. Accordingly, the decision of the
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Director as recorded in the Minutes dated 21 July, 2008 as well as
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communication dated 25 July, 2008 cannot be sustained and the same will
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have to be quashed and set aside.
39. The next question that will have to be considered is: whether the
grievance brought before this Court by way of Writ Petition No.73 of 2002
survives for consideration. As aforesaid, the limited grievance in this Writ
Petition is about failure to conduct assessment for junior colleges from the
academic year 1991-92 and furnish the assessment report to the
Management in respect of junior colleges as well as in respect of Degree
college. The Management has prayed for issuance of direction to the
Appropriate Authority to complete the assessment, both in relation to the
junior colleges as well as Degree College and thereafter, release the
payment of non-salary grants to the concerned colleges. The Management
has also asked for direction to evolve proper fee structure of the junior
colleges as well as Degree College.
40. In the first place, since the Management decided to close down junior
colleges during the pendency of the Writ Petition, all reliefs claimed in
respect of two junior colleges would not survive for consideration. In any
case, the Petition is resisted by the State by filing affidavit of Chandrakant
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Dagdu Kotwal, Deputy Educational Inspector sworn on 11 February, 2002;
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as also by the affidavit of Appaji Chandrakant Sawant, Administrative
nd
Office in the office of Joint Director, Higher Education sworn on 12
February, 2002. It is stated that as per the Annexure (70) (xx) of the
Secondary School Code an amount not exceeding 80% of the actual
expenditure incurred other salary allowances or Rs.2400/- per division of
science stream and Rs.2000/- per division of Arts/Commerce stream
whichever is less is payable as non-salary grant. It is stated that as per the
said policy, colleges run by the Petitioner Trust have been compensated as is
mentioned in the statement in respect of non-salary grant during the
academic years 1995-1996 to 2000-2001. Further, it was noticed that
amount of Rs.99,952/- is payable in respect of Chinai Junior College
whereas, nothing was due and payable to the L.U.& M.V.Junior College. In
fact, an amount of Rs.3,71,770/- was recoverable from junior college.
Affidavit also records that the junior colleges were 100% aided colleges and
all salary grants are paid by the government apart from the said non-salary
grant. It is stated that it has been noticed that the colleges were deliberately
refusing admission to the deserving students for reasons best known to
them. More or less on the same lines in the other affidavit filed, the amount
disbursed to the junior colleges has been mentioned. It is further stated that
due to financial constraints Government is not in a position to disburse the
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entire amount of Non-salary grants to any institutions. It is stated that non-
salary grants of 167 colleges in Mumbai Region have not been disbursed.
That Petitioners were not discriminated or singled out. It is also stated that
the Institution can raise funds by way of other fees and receipts on account
of Gymkhana fee, extra curricular activity fees, Library fees, Laboratory
fees, Admission fees and Laboratory breakages, fines, receipts on account
of sale of Prospectus, forms etc. Income from such other receipts is
considerably high for the colleges in Urban Areas and cannot be treated as
negligible amount. It is further stated that it has been noticed that the
Management has spent substantial amount which was avoidable and cannot
therefore, make grievance about financial crisis.
41. Having regard to the nature of reliefs claimed in this Writ Petition, we
would think it proper to direct the concerned Respondents to examine the
claim of the Petitioners stated in this Petition, if already not done so far.
The Respondents would treat the present Petition as further representation
of the Petitioners, both in respect of junior colleges as well as Degree
College and issue appropriate orders, as may be advised in accordance with
law. This Petition, therefore, is being disposed of leaving all questions
open. The concerned Authorities would consider the claim of the
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Petitioners by giving fair opportunity to the Petitioners/Management to put
across their point of view and to allow them to produce such other
documents, as may be advised. The Authorities would however, dispose of
the representation as expeditiously as possible.
42. The next question is whether on account of unilateral action of the
school Management to close down the junior colleges inspite of refusal of
closure permission and no interim relief granted by the Court of competent
jurisdiction and more particularly, disregarding the positive order passed by
the Court to participate in the admission process, what is the consequence
of such conduct. The fact that the appropriate authority failed to take a
final decision on the proposal submitted in terms of Rule 7.5 of the Code
by the Management regarding closure of the School does not mean that the
Management could unilaterally close its Junior Colleges. There is no
dispute that the issue regarding closure of the two Junior Colleges got
embroiled in litigation between Management of the Junior Colleges on one
hand and the permanent employees as well as the public spirited persons
espousing the cause of the students on the other. So long as the
Appropriate Authority had not recorded its final view on the proposal of the
Management, the Management could not have unilaterally given effect to its
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decision of closing down the Junior Colleges. Admittedly, the final order
was passed by the Director of Education on the proposal for closure of the
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two Junior Colleges only on 21 July, 2008, pursuant to the directions
issued by the Court in that behalf. On account of rejection of the proposal,
even if were to be a wrongful rejection, the Management was obliged either
to challenge the said decision before the Appellate Authority and till the
Appellate Authority were to accept their claim were duty bound to operate
and run the Junior Colleges.
43. In the present case, because of the grievance made even this Court
had to intervene as it prima facie found that the Management was adopting
modus operandi so as to dissuade the fresh students from taking admission
in the Junior Colleges and then using it as a ground of depletion of the
students strength so as to justify the closure of the two Junior Colleges.
th
This Court by order dated 29 May, 2009 directed the Management to
cooperate in the admission process. Inspite of the directions issued by this
Court, the Management successfully ensured that no admission was given
to any fresh students in the two Junior Colleges. This attitude of the
Management cannot be countenanced at all. The fact that the Management
has right to close the Junior Colleges does not mean that it would disregard
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the directions of the Competent Authority and moreso of the Court of
competent jurisdiction.
44. In our opinion, the decision of the Appropriate Authority of rejection
of the proposal submitted by the Management for closue of two Junior
Colleges would bind the Management until it was to be reversed. In that
situation, the Management was obliged to conduct the two Junior Colleges
so as to comply with the directions of the Competent Authority and more
so, the expectations of the local students and other stakeholders in the
Junior Colleges. In any case, after categoric directions issued by this Court,
the Management had no choice but continue to run the two Junior Colleges.
The directions issued by this Court remained on paper because of the
recalcitrant attitude of the Management. In law, till final decision of the
Competent Authority on the proposal of closure submitted by the
Management was to attain finality, it would follow that the Management
was obliged to run the Junior Colleges and the same were deemed to be
operated irrespective of the fact that no students could take admission in the
two Junior Colleges for the relevant academic years. The fact that no fresh
students were admitted in the Junior Colleges was the making of the
management.
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45. We are of the considered view that the Management in the present
case cannot be allowed to take advantage of its own wrong. For, it has
come on record that the Management did not cooperate with the online
admission process. Besides, although no new admissions were given in the
two Junior Colleges, the Management continued to receive salary grants in
respect of permanent employees in the two Junior Colleges and the said
employees had virtually no work and were made to sit idle. Ordinarily, the
Petitions filed by the Management ought to be thrown out at the threshold
on this count alone. Be that as it may, in our opinion, the Competent
Authority may consider of recovering the amount so paid to the Junior
Colleges towards salary grants for the relevant period, which is from the
public exchequer. It would be open to the Competent Authority to take
recourse to such measures, as may be permissible in law in that behalf. It is
for the Authorities to take appropriate action against the Management for
their act of commission and omission, if they so desire. Besides, it would
be open to the other private parties to take recourse to such remedy, as may
be permissible against the Management for the breach of direction issued by
the Competent Authority as well as that of the order of the Court. All
aspects will have to be dealt with on its own merit in such proceedings. In
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addition, the Management would be obliged to abide by the directions that
would be issued by the Competent Authority on the proposal for closure of
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the two Junior Colleges. Although we have set aside the order dated 21
th
July, 2008 and the communication dated 25 July, 2008, we would however,
relegate the Management before the Competent Authority for
reconsideration of the proposal regarding closure of the two Junior Colleges
afresh in the light of the observations made by us in this Judgment.
46. Taking overall view of the matter, therefore, we proceed to pass
following order.
ORDER
(i) Insofar as Writ Petition No.73 of 2002 is concerned, the
same is disposed of with direction to the concerned
Respondent to consider the Petition as representation in
respect of reliefs claimed by the Petitioners and to take
final decision in the matter in accordance with law by
giving opportunity to the Petitioners and upon recording
reasons for its decision. That be done as expeditiously as
possible. No order as to costs.
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(ii)Insofar as Appeal No.299 of 2008 is concerned, the same
is partly allowed with no order as to costs. The operative
order passed by the learned Single Judge in para-43 of
the Judgment under Appeal is maintained, but for the
reasons recorded by us in this Judgment. All questions
involved in the remanded proceedings to be decided by
the Tribunal on its own merits in accordance with law.
The School Tribunal shall proceed with the hearing of
the appeal filed by the employees expeditiously.
In view of the Judgment in Appeal No.299/2008,
nothing survives for consideration in Notice of Motion
No.2497 of 2008. The same is disposed of.
(iii)Insofar as Writ Petition No.2327 of 2008, this Writ
Petition partly succeeds with no order as to costs. The
same is made absolute in terms of prayer clause (a),
subject to the observations made in this Judgment. The
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order dated 21 July, 2008 and the communication dated
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25 July, 2008 impugned in this Petition are set aside
and instead the proposal submitted by the Petitioners for
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closure of the two Junior Colleges stands restored before
the Competent Authority for reconsideration on its own
merits in accordance with law. Further, the order in this
Writ Petition shall not influence or affect the pending
action against the Management for appointment of
Administrator to take over running of the two junior
colleges in exercise of powers under the provisions of
1976 Act.
In view of the decision in Writ Petition No.2327 of
2008, nothing survives for consideration in Chamber
Summons Nos.246/2008 and 248/2008 and Notice of
Motion Nos. 304/2009 and 338/2009. The same are
disposed of accordingly.
(iv)Insofar as Writ Petition No.2521 of 2008, this Writ
Petition partly succeeds with no order as to costs. The
same is made absolute in terms of prayer clause (a),
subject to the observations made in this Judgment. The
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order dated 21 July, 2008 and the communication dated
th
25 July, 2008 impugned in this Petition are set aside
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and instead the proposal submitted for closure of the two
Junior Colleges stands restored before the competent
Authority for reconsideration on its own merits in
accordance with law. Further, the order in this Writ
Petition shall not influence or affect the pending action
against the Management for appointment of
Administrator to take over running of the two junior
colleges in exercise of powers under provisions of 1976
Act.
In view of the decision in Writ Petition No.2521 of
2008, nothing survives for consideration in Chamber
Summons No. 330/2009 The same is disposed of
accordingly.
(v)Insofar as Writ Petition No.1640 of 2009 is concerned,
the same is disposed off with the above observations
with no order as to costs.
In view of the dismissal of the Writ Petition,
nothing survives for consideration in Notice of Motion
Nos.307/2009 and 385/2009. The same are disposed of
accordingly.
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(vi)Insofar as Writ Petition No.1638 of 2009 is concerned,
the same is disposed off with the above observations
with no order as to costs.
CHIEF JUSTICE
A.M.KHANWILKAR, J.
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