SINDHU EDUCATION SOCIETY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The short point for our consideration is whether the judgment of the Division Bench of this Court in this case dated 23-4-1986, as approved by the Full bench of this Court in the case of St. Francis de Sales Education Society, Nagpur and another Vs. State of Maharashtra and another, 2001 (3) Mh. L. J. 261, requires reconsideration in the light of the judgment of the Supreme Court in the case of T. M. A. Pai foundation and others Vs. State of karnataka and others, (2002) 8 SCC 481, in view of the decision of that court dated 1-4-2003 in Special W. P. No. 9501 of 1986 In other words, the issue that arose for consideration in S. F. S. Education Society (Supra) was whether the reservation policy followed by the State applies to a minority educational Institution

(2.) The petitioner claiming to be a minority institution and claiming the protection of Article 30 (1) of the Constitution, has been resisting the imposition of reservation policy of the State of Maharashtra as contained in sub-Rules (7) , (8) , (9) of Rule 9 of the maharashtra Employees of Private Schools (Conditions of Services) Act, 1981. The petitioner in this petition challenged the said provisions of the Sub-Rules and also the communication dated 7-10-1981 issued by the additional Education Officer, Z. P. , Nagpur- respondent no. 4. The petition was initially decided on or about 12-10-1984. But in view of the conflict of opinions between two learned judges of the Division Bench of this Court (Sarvashree V. A. Mohta and H. W. Dhabe, JJ. ) the petition was referred to the 3rd Learned judge namely Shri. Puranik, J. By then it was noticed by Shri. Puranik, J. that there were two judgments of two different Benches, one in appeal No. 157/85 decided on 21-3-1985 and the other in the case of Khan Abdul Hamid abdul Razak Vs. Mohamed Haji Saboo siddik Polytechnic, 1985 Mh. L J. 400, which had expressed the view held by Shri. Dhabe, J. in respect of very issues involved in the petition and, therefore, the learned 3rd Judge shri. Puranik, J. held that the view expressed by Shri. Dhabe, J. was the correct view and accordingly the Writ Petition came to be decided finally by order dated 23-4-1986.

(3.) In the mean time another learned division Bench of this Court (Sarvshree V. A. Mohta and Dr. B. P. Saraf, JJ. ) doubted the correctness of the view held by the Learned division Bench of this Court in Khan Abdul hamid Abdul Razak Vs. Mohamed Haji saboo Siddik Polytechnic, 1985 Mh. L J. 400, and in the light of subsequent Supreme Court pronouncement has suggested it for reconsideration by a Full Bench. The Full bench, in the case of St. Francis De Sales education Society, Nagpur and another Vs. State of Maharashtra and another, 2001 (3) mh. L J. 261 (Supra) approved the view taken in Sindhu Education Society, after considering a number of judgments of the Supreme Court, by holding that judgment of the Division Bench of (his Court in Khan Abdul Hamid Abdul kazak Vs. Mohamed Haji Saboo Siddik polytechnic, 1985 Mh. L. J. 400 (Supra) was wholly unexceptional and the view held in this case (Sindhu Education Society Vs. State of maharashtra and others) by Sarvashree H. W. Dhabe and Puranik, JJ. as well as in case of Father Anthony Mendonca, (1985 mh. LJ. 148) and Rev. Sister Mary Damian and another Vs. The Education Officer, zilla Parishad Nagpur and others (Writ petition No. 1770 of 1980) , laid down the law correctly, and ultimately held that the petitioner in that case, being a minority Institution, could not be directed to appoint teachers or other staff on the basis of reservation Policy followed by the State as evidenced in Rules 9 (7) to 9 (10) of the said Rules and in case the said Rules were applied to the petitioner, they would violate the fundamental Rights guaranteed to the petitioner as a Minority Institution under article 30 (1) of the Constitution.