Rita T. Verghese Vs. Headmistress, Vidya Mandir English Primary School, Bombay and ors. - Court Judgment

R.M. Lodha, J.

1. The petitioner, through this Writ Petition, challenges the orders dated 31-1-1985 (Ex. B) and 1-2-1986 (Ex. D) whereby her services as Assistant Teacher were discontinued. The petitioner has also prayed for direction to respondents to reabsorb her on the same post with similar benefits and continuity of service with effect from 30-4-1985. The petitioner has further prayed that the Government Notification, Education and Employment Department No. PST. 1087/18/SE-3-Cell dated 4-1-1988 (Ex. H) be struck down as ultra vires to the extent it makes the amendment to Rule 2(1)(b) retrospective only from 7-8-1987 and not from 16-7-1987.

2. The petitioner was appointed as Assistant Teacher in the Vidya Mandir English Primary School, Tagore Nagar, Vikhroli (East), Bombay-400 083, (respondent No. 1) with effect from 13-6-1983. The appointment letter describes the vacancy as purely temporary. The petitioner claims to have continued to work upto 12-6-1985 continuously. However, by letter dated 31-1-1985 (Ex.B) the petitioner was informed that her services would stand terminated with effect from 30-4-1985 on account of reduction of workload due to anticipatory closure of two divisions. It is the petitioner's case that her services, however, were notdiscontinued on 30-4-1985 and she continued to work and was paid salary upto 12-6-1985. By letter dated 14-6-1985 the respondent No. 1 re-appointed the petitioner as Assistant Teacher as purely temporary for the academic year 1985-1986. The petitioner worked upto 12-6-1986 and was paid upto that period. By letter dated 1-2-1986 the petitioner was informed that with effect from 30-4-1986 her services would come to an end. As already noted above, the petitioner seeks to challenge the communication dated 31-1-1985 (Ex. B) and the communication dated 1-2-1986 (Ex. D) in this Writ Petition.

3. In opposition to the writ petition, reply affidavit has been filed. It is averred therein that the respondent No. 1 is a private primary school and receiving grant-in-aid from Municipal Corporation of Greater Bombay and as such the terms and conditions of service for appointment of Teachers and other staff are governed by the Grant-in-aid Code as applicable for approved Private Primary Schools in Greater Bombay. According to respondent No. 1, the Maharashtra Employees of Private Schools (Conditions of Service) Act, 1978 and Rules 1981 are not applicable. In the reply it is submitted that the petitioner was temporary teacher and as per Rule 23 of the Grant-in-aid Code her services were terminated by giving one month's notice. The termination of the petitioner was necessitated in view of the reduction of division. The respondent No. 1 has therefore set up the defence that the petitioner is not entitled to any relief.

4. Mr. Mihir Desai, learned counsel for the petitioner, strenuously urged that the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977 (for short, 'Act of 1977') and Rules 1981 (for short, 'Rules of 1981') are applicable to respondent No. 1 - school. In this connection he invited our attention to Section 3(1) read with Sections 2(20), (21) and (24) of the Act of 1977 and also Rule 2(b) of Rules of 1981. He fairly submitted that though the learned Single Judge of this Court in Shri Vasantrao Naik Education Society, v. The Presiding Officer and Anr., : 2000(4)BomCR773 has taken the view that any employee, who is member of the teaching and non-teaching staff of any private school recognised by a Competent Authority under the Municipal law, would be governed by the provisions of the Act of 1978, the view of Division Bench of this Court in Sushila Dixit v. Laxmibai Valanju Prathamik Shala and Ors., 1998 2 CLR 265 is otherwise. He, however, submitted that the view of the learned Single Judge is more sound.

5. On the other hand, the learned Counsel appearing for Bombay Municipal Corporation submitted that the private primary school receiving Grant-in-aid from Bombay Municipal Corporation is not governed by the provisions of the Act of 1977 and Rules framed thereunder.

6. Section 3(1) of the Act of 1977 reads thus :

'3. Application of Act. -- (1) The provisions of this Act shall apply to all private schools in the State of Maharashtra, whether receiving a grant-in-aid from the State Government or not.

(2)......................'

7. Section 2 of the Act of 1977 deals with the definitions. Clause (20) defines 'Private School' which means a recognised school established or administered by a Management other than the Government or a local authority.'Recognised' under Clause (21) means recognised by the Director, the Divisional Board or the State Board, or by any officer authorised by him or by any of such Boards. The 'School' under Clause (24) means a primary school, secondary school, higher secondary school, junior college of education or any other institution by whatever name called including technical vocational or art institution or part of any such school, college or institution, which imparts general, technical, vocational art or, as the case may be, special education or training in any faculty or discipline or subject below the degree level.

8. A close reading of Section 3(1) with Sections 2(20), 2(21) and 2(24) would show- that the Act of 1977 is made applicable to all private schools covered under Sections 2(20), 2(21) and 2(24) in the State of Maharashtra irrespective of whether these private schools are receiving grant-in-aid from the State Government or not. The expressions 'Private school', 'recognised' and 'school' are defined and, therefore, the expression 'private school' occurring in Sub-section (1) of Section 3 has to be read to mean a private school (primary school, secondary school, higher secondary school, junior college, education or any other institution by whatever name called) established or administered by the management other than the government or local authority and recognised by the Director, the Divisional Board or the State Board or by any officer authorised by him or by any such Boards. The private school recognised other than recognised by the Director, the Divisional Board or the State Board or by an officer authorised by him or by any such Boards is not governed by the Act of 1977. There is no dispute that the respondent No. 1 is not recognised by the Director, the Divisional Board or the State Board or by any officer authorised by him or by any such Boards and, therefore, the Act of 1977 shall not be applicable to such school. Merely because the respondent No. 1 receives grant-in-aid from Bombay Municipal Corporation, it would not be governed within the meaning of private school as defined under the Act of 1977. The view which we have taken finds support from the Division Bench judgment of this Court in Sushila Dixit. The question raised in Sushila Dixit before the Division Bench of this Court was regarding her claim for unpaid salary by the Management of the school and the Municipal Corporation of Greater Bombay. The school where Sushila Dixit was appointed as Assistant Teacher came to be recognised by the Municipal Corporation of Greater Bombay in the year 1979. Opposing the writ petition, the school and the Management set up the plea that Sushila Dixit (petitioner therein) had an alternate remedy of appeal under Section 9 of Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, 1977 and therefore petition could not be entertained. Overruling the objection the Division Bench of this Court in para 12 of the report observed thus:

'12. Dr. Kulkarni, learned counsel for the 1st and 2nd Respondents, strenuously contended that the petitioner had an alternative remedy of moving the School Tribunal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as 'the MEPS Act') and, therefore, the petition should not be entertained. The contention is unsound in our view. Section 3 of the MEPS Act provides that the provisions of the Act would apply to all private schools in the State of Maharashtra, whetherreceiving any grant-in-aid from the State Government or not. The expression 'Private Schools' is defined in Section 2(20) as a recognised school established or administered by a Management other than the Government or a local authority. The expression 'recognised' is defined in Section 2(21) to mean recognised by the Director, the Divisional Board or the State Board, or by any officer authorised by him or by any of such Boards. In the present case, the petitioner was working in a School which was not recognised by the Director, Divisional Board or the State Board (who are all officers of the State Government) or by any officer authorised by the Director of by any of such Boards. It is not in dispute that the recognition of the 1st Respondent School, was granted by the 3rd Respondent-Corporation in accordance with its Grant-in-Aid Code.'

9. The provisions which we have referred above leave no manner of doubt that a private school which is recognised by local authority or for that matter, the Municipal Corporation of Greater Bombay is not covered under the Act of 1977 if it is not recognised by one of the authorities mentioned in Section 2(21) of the Act of 1977. The mere fact that in the Rules of 1981, 'aided school' defined under Rule 2(b) earlier to mean a school which receives grant-in-aid either from Government or a local authority, but does not include a primary school recognised by the Municipal Corporation, Corporation of Greater Bombay has been subsequently amended to mean a school which receives grant-in-aid either from Government or a local authority does not alter the position.

10. It is true that the learned Single Judge of this Court in Shri Vasantrao Naik Education Society while dealing with the question whether the school run by the said society can be said to be amenable to the jurisdiction of School Tribunal under Section 9 of the Act of 1977 did hold that any employee who is member of teaching and non-teaching staff of any of the private schools recognised by the competent Authority under the Municipal law would be entitled to maintain an appeal under Section 9 of the said Act against such school. The said view does not seem to be correct view. Paragraphs 8 and 9 of the judgment of the learned Single Judge in Shri Vasantrao Naik Education Society, through its Secretary v. The Presiding Officer and Anr., read thus :

'8. Having regard to the rival contentions and the aforesaid provisions, it appears that the expression 'employee' and 'private school' employed in Section 9 will have to be understood in the context of the 'school' defined in Section 2(24) of the Act. Restricting the scope of the said provision only to private schools, as defined in Section 2(20) of the Act, that too recognised only by the authorities specified in Section 2(21) of the Act, would result in depriving remedy of an appeal before the school Tribunal to large number of employees in the primary schools throughout the State. It is not possible to accept such a pedantic approach, as suggested by the learned Counsel for the petitioner. On the other hand, it would appear that the employee, as referred to in Section 9, shall necessarily be an employee being member of the teaching or non-teaching staff of a recognised school. The school, however, should be a school recognised by a competent authority under the Municipal law andnothing more. In other words, in case of a primary school, the authority competent to recognise, would be an officer appointed by the State Government to exercise power under Section 39 of the Bombay Primary Education Act, 1947.

9. The argument, advanced on behalf of petitioner that the employee should be from a recognised private school, which is recognised by the Director, Divisional Board or the State Board or by any officer authorised by him or by such person is wholly devoid of merits and would not fit into the legislative scheme. In my view, if this contention is accepted it would be limiting the application of the said Act only in respect of schools recognised by the aforesaid officers, named under Section 2(21), notwithstanding the fact that other primary schools are also recognised schools within the meaning of Municipal Law. In the circumstances, I am of the view that any employee who is member of the teaching and non-teaching staff of any of the private schools recognised by competent authority under the Municipal Law, would be entitled to maintain an appeal under Section 9 of the said Act against such a school.'

11. The view of the learned Single Judge does not flow from the provisions contained in Section 3(1) read with Section 2(20), 2(21) and 2(24) of the Act of 1977. The learned Single Judge appears to have gone more by sympathetic view of providing remedy of an appeal before the School Tribunal to large number of employees in the private schools recognised by local authority though not recognised within the meaning of Section 2(21) of the Act of 1977. We are afraid, the learned Single Judge failed to take the correct view based on the statutory provisions contained in Sections 3(1), 2(20), 2(21) and 2(24) of the Act of 1977. The Judgment of the Division Bench of this Court in Sushila Dixit was not brought to the notice of the learned Single Judge. Had the judgment of the Division Bench in Sushila Dixit been brought to the notice of the learned Single Judge, we are sure, he would not have taken the view that any employee who is member of the teaching and non-teaching staff of any private school recognised under Municipal law, would be entitled to maintain an appeal under Section 9 of the Act of 1977. We, accordingly, hold that the judgment of the learned Single Judge in Shri Vasantrao Naik Education Society does not lay down the correct law.

12. For what we have said above, we have no hesitation in holding that respondent No. 1 school which is primary school recognised by Bombay Municipal Corporation under Grant-in-aid Code is not covered by the Act of 1977 and the Rules framed thereunder.

13. Before we close, we may deal with one more submission raised by the learned counsel for the petitioner that even though the petitioner was assured that as and when vacancy arises in future, she would be given an appointment, in the year 1989 when there was vacancy in the respondent No. 1 school she was not appointed and, thus, the respondent No. 1 school had acted arbitrarily and unreasonably. The petitioner, in this connection, has made the following averments':--

'12. The petitioner therefore, approached the School authorities on or around 9th June, 1989 and requested the headmistress to give her firstpreference and re-absorb her as per the written promise made by her in her letters dated 31-1-1985 and 1-2-1986. The School Headmistress, then told her to come after 10 days. Again on 21st June, 1989 the Petitioner approached the school authorities. Once again the first Respondent gave evasive replies and asked her to wait patiently. In the first week of July, 1989 the petitioner received information that the first two respondents had appointed Miss Shirley and some one by the name of Mr. Dyaneshwar in her place and had no intention to re-absorb her as per the promise. She then visited the school again and asked the 1st Respondent why she was not being re-absorbed. The 1st Respondent then rudely shouted at her and told her that she had no right to question the headmistress and she should quietly accept a good character certificate and a service certificate which would help her to get a job elsewhere. The Headmistress of the School then issued a Service Certificate dated 18-7-1989 Ref. No. VM/EPR/RV/89-90 which mentioned her service from 13th June, 1983 upto 12th June, 1985. The service rendered by the petitioner thereafter was not mentioned in the said letter. Hereto annexed and marked Exhibit 'F' is a true copy of the said Service Certificate dated 18-7-1989. When the petitioner protested against the omission of her service record between 14th June, 1985 to 18th November, 1986, the 1st Respondent then issued another service certificate dated 18-7-1989 which mentioned her service between 14-6-1985 to 12-6-1986. But she refused to mention the service rendered by the Petitioner for the period between 19th June, 1986 upto 18th November, 1986, and the Headmistress asked the petitioner to leave the premises.'

14. The reply from the respondent No. 1 in that regard is that in January, 1987 one Ms. Gracy Cyril resigned on medical grounds and the petitioner was sent message if she was interested in joining the service to which the petitioner had turned down the offer and the said vacancy was filled in by appointment of a teacher. The respondent No. 1, has, further set up the case that the allegation made by the petitioner that she was not considered in the year 1989 is totally false. The respondent No. 1 had advertised for vacancy in the Times of India daily dated 20-6-1987 and on 16-3-1988 regarding vacancy for regular appointment but the petitioner failed to apply and did not approach at any time in that regard. Except the bald statement made in paragraph 12 of the writ petition there is nothing on record which may satisfy us that the petitioner had in fact made an application for her appointment in the year 1989. We, therefore, are unable to accept the case set up by the petitioner that in the year 1989 any vacancy was filled in by respondent No. 1 - school and/or that the petitioner's claim for absorption was not considered despite her having applied for the same.

15. We are, thus, satisfied that the petitioner is not entitled to any relief from this Court in extraordinary jurisdiction under Article 226 of the Constitution of India.

16. Writ petition is, accordingly, dismissed with no order as to costs.