RIZWAN HAWALDAR KHAN Vs. DEPUTY DIRECTOR OF EDUCATION

JUDGEMENT

(1.) The Petitioner was employed as a Laboratory Assistant with the Fourth Respondent, which at the material time, was an aided institution. The Third Respondent, which conducts the school, addressed a communication to the First Respondent on 2 February 2007 for the grant of its no objection for a change of affiliation from the SSC Board to the ICSE Board. The First Respondent, it is common ground, granted its no objection. The Court is informed by counsel for the management that the school stopped accepting aid from the State Government from 2007. On 4 August 2008, the Principal of the School addressed a communication to the School Inspector stating that the Petitioner was not willing to join the ICSE section but preferred absorption in any other government aided school. The management, therefore, requested the Education Inspector to find for the Petitioner a proper fitment and absorb him in a government aided secondary school. The Petitioner also addressed a letter on 1 February 2010 seeking absorption in an aided institution since he was not willing to join the ICSE section. On 25 August 2010, an order was passed by the Education Inspector directing absorption of the Petitioner at Saint Joseph High School, Wadala. The said school refused to absorb him following which the Principal of the Fourth Respondent addressed another communication to the Education Inspector to accommodate the Petitioner else where. On 14 July 2011 the Education Inspector addressed a communication to another school noting that the Petitioner had been declared as a surplus employee under Rule 26 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1981 and directing absorption. Even that school declined to absorb the Petitioner. Following this, on 7 October 2011, the Education Inspector addressed a further communication, this time to the Seventh Respondent, directing absorption of the Petitioner with effect from July 2010 when he was declared as surplus. After this order was passed, the Education Inspector on 29 December 2011 addressed another communication recording that though the Petitioner had been absorbed by the Seventh Respondent with effect from 8 October 2011, the Seventh Respondent shall immediately relieve the Petitioner so that he could be reabsorbed by the Fourth Respondent. The Seventh Respondent addressed a communication on 14 February 2012 to the Education Inspector stating that the school was in urgent need of a Laboratory Assistant in view of the SSC examinations and seeking co-operation of the department. Eventually these proceedings have been instituted. The Petitioner has challenged the order of the Education Inspector dated 29 December 2011 and has sought a direction for an order of absorption in the Seventh Respondent as a Laboratory Assistant.

(2.) In the affidavit-in-reply filed by the Deputy Education Inspector, it is sought to be urged that the Petitioner was wrongly directed to be absorbed in the Seventh Respondent, consequent upon which corrective action was taken by addressing a communication dated 29 November 2011 to the Principal of the Seventh Respondent. However, it has been stated that the Petitioner was relieved from duty only on 1 March 2012. According to the Education Department, since the Third Respondent decided to change the affiliation of the Fourth Respondent from the SSC Board to the ICSE Board, it was the sole responsibility of the Third and Fourth Respondents to bear the burden of their own employees. The Third Respondent absorbed eight teachers who were also working with the Fourth Respondent in another school under the same management namely, the Fifth Respondent. Five members of the staff retired as per rules from the Fourth Respondent, two opted for voluntary retirement while two persons resigned from service. On 13 March 2012, the Fourth Respondent had informed the Education Inspector that the school had not closed its classes and an assurance was given to the staff in writing that if they chose to continue with the school as unaided staff, their pay scales, emoluments and post retirement benefits would continue in accordance with the provisions applicable to Government aided staff under the MEPS Act, 1981. In other words, it is the contention of the department that though the Petitioner was not entitled to be absorbed in a government aided school, an erroneous order was passed by the Education Inspector which has been corrected.

(3.) Rule 26 of the MEPS Rules provides for the method for retrenching a permanent employee from service and the grounds on which retrenchment may be carried out. Sub-rule (2) of Rule 26 provides for conditions subject to which retrenchment from service shall be effected. Sub-rules (1) and (2) of Rule 26 provides as follows: