JUDGMENT
S. B. Deshmukh, J.
1. The petitioners, whose services stand terminated on account of derecognition of Kakde Kanya Vidyalaya, a Secondary School (for Girls) run by the respondent No. 1, seek to challenge the vires of Rule 25(A) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as ‘the said Rules of 1981’ for short) by filing this petition in this Court, along with some ancillary reliefs.
2. Though the constitutional validity of Rule 25(A) of the said Rules of 1981, principally, is challenged in this petition, to understand the controversy for the said reliefs, few facts relevant need to be stated as under:–
Kakde Kanya Vidyalaya, Kalmeshwar, tahsil Kalmeshwar, district Nagpur, was established by the respondent No. 1 Swargiya Sakharamji Shikshan Sanstha (hereafter referred to as ‘the Management’ for short) which is a registered Public Trust, also registered as Society under the provisions of the Societies Registration Act, 1860. The respondent No. 1 – Management, could get permission for the said Kakde Kanya Vidyalaya, Kalmeshwar, somewhere in the year 1984. Kakde Kanya Vidyalaya, was comprising of 5th to 10th standard. Kakde Kanya Vidyalaya, was admitted to the grant-in-aid from the State Government from the year 1985, for the classes from Standard 8th to 10th and from the year 1987 for the classes from standard 5th to 7th. Thus said Kakde Kanya Vidyalaya was recognized and aided Secondary School. The petitioners were appointed by the respondent No. 1-Management and their appointments were approved of by the respondent No. 3. The respondent No. 2 had served a notice dated 27-12-1995 to the respondent No. 1, for derecognition of the said Kakde Kanya Vidyalaya on account of short comings and violation of the provisions of the Secondary School Code. The respondent No. 2 – Deputy Director of Education, after hearing the respondent No. 1, passed an order on 22-1-1996 derecognising the said school i.e. Kakde Kanya Vidyalaya from the end of the academic session of 1995-1996. The respondent No. 2 i.e. the Deputy Director of Education, in the order dated 22-1-1996 recorded a finding that said Kakde Kanya Vidyalaya was having very short attendance of the students, the classrooms made available were not adequate and lack of proper ventilation. The respondent No. 2 also found that up-to-date Library was not made available by the respondent No. 1 to the said School. The respondent No. 2 found that the result of the said school for the year 1994-95 was not satisfactory. The respondent No. 2 also recorded a finding that on account of poor attendance of the pupils, said Kakde Kanya Vidyalaya, had suffered penal action under Rule 98.3 of the Secondary School Code and, therefore, no grants were payable to said School. It is important to note that the respondent No. 2 in the said order dated 22-1-1996 also held that the Head Mistress, teachers, members of the non-teaching staff and Management are responsible for the said action of derecognition of Kakde Kanya Vidyalaya. Ultimately, respondent No. 2 as stated above, derecognised said Kakde Kanya Vidyalaya by the order dated 22-1-1996. The petitioners, in their petition, have stated that being aggrieved by the said order of derecognition dated 22-1-1996, have filed the writ petitions bearing Nos. 985/96, 1.174/96, 1190/96 and 1192/96 in this Court and this Court by the common judgment and order dated June 21st 1996 directed the Deputy Director of Education, Nagpur, to consider the claim of each of the petitioners on merit and after affording opportunity of being heard to them. The Deputy Director of Education, Nagpur, heard the petitioners accordingly and by the order dated 10-7-1996 held that the petitioners could not be held undisputedly guilty for action of derecognition of the said Kakde Kanya Vidyalaya and, therefore, petitioners are eligible to the benefit of Rule 25(A)(2) of the said Rules of 1981. The Deputy Director, Nagpur, further directed that the names of the petitioners be taken on wait list as per Rule 25(A)(2) of the said Rules of 1981.
3. The petitioners contention is that there could only be two categories of the teachers, one those who are not directly responsible for the derecognition resulting in closure of the school or reduction of establishment etc. and those who are responsible for the same. According to the contention of the petitioners, provision laid down under Rule 25(A)(2) itself is unconstitutional and ultra vires of the Article 14 of the Constitution of India inasmuch as the said Rule creates a separate class for different treatment and the said classification made in Rule 25(A)(2) vis-a-vis the one in Rule 26 of the said Rules of 1981 has no intelligible differentia. The petitioners, therefore, in this backdrop seek to challenge the vires of the said Rule 25(A)(2) of the said Rules of 1981 and further seek to strike down the said Rule 25(A)(2) from the said Rules of 1981.
4. We have heard the learned counsel for the petitioners as well as respondents. We have also gone through the submissions filed on behalf of respondent No. 3 which is duly verified on July 6th 1998. In the written submissions filed on behalf of the respondent No. 3, a statement is made that the respondent No. 3 had taken an action for the absorption of the petitioners and accordingly petitioner Nos. 1, 3, 4 and 5 have already been absorbed in other schools. At the time of hearing of this writ petition, the learned advocate appearing for respondents No. 2 and 3 made a statement before us that the petitioner No. 2 is also absorbed by this time and offer of absorption to petitioner No. 6 was given, however, petitioner No. 6 did not report or resume according to said offer. The learned counsel for respondents No. 2 and 3, therefore, states that so far as absorption of the petitioners is concerned, till this date it is complete.
5. The petitioners contention is that Rule 25(A) of the said Rules of 1981 is ultra vires and violative of Article 14 of the Constitution of India, The petitioners state that different treatment is given to the employees whose services are terminated/retrenched under rule No. 26 of the said Rule of 1981 which is unsustainable classification. According to the petitioners, the employees are of one class and as such, need to be given same treatment and or protection. The petitioners are further contending that the employees whose services are terminated because of de-recognition or voluntary closure of the School by the Management also need to be absorbed in some other School, as is done in relation to the employees who are retrenched by Rule 26 of the said Rules 1981. According to the petitioners, the rational nexus with the object ought to achieve by the provision contained in Rule 26 as also Rule 25(A) of the said Rules of 1981 is to provide the alternate employment to the employees who are not responsible for the closure of the School. Rule 25(A)(ii) has no rational nexus with the object sought to be achieved and there is no intelligible differentia in the class of employees who are falling under Rule 25(A) vis-a-vis Rule 26 of the said Rules 1981. To understand the contention raised by the petitioners regarding unconstitutionality of Rule 25(A), both these rules need to be considered. Rule 25(A) and 26 of the said Rules of 1981 reads as under:
“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 purpose 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 (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 and Junior College of Education and same shall be recommended by him to the Management of newly opened aided Schools or of the existing aided schools which are allowed to open additional Division or classes for consideration.
“26. Retrenchment on account of abolition of posts — (1) A permanent employee may be retrenched from 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 division. (ii) fall in the number of pupils resulting in reduction of establishments; (iii) change in the curriculum affecting the number of certain category of employees; (iv) closure of course of studies; (v) any other bona fide reason of similar nature. (2) The retrenchment from service 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 the 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 as 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; (iii) The employees from 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 of absorption of 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 rejoining services in the school. For this purpose, the employees 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. (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 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 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 services of such an absorbed employee are required to be terminated under Rule 25(A) or he is to be retrenched under this rule, the procedure prescribed under Rule 25(A) or, 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 from 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.
6. If we look to the provisions laid down in Rule 25(A) of Rules 1981, it appears that the services of the employees may be terminated by the management on account of abolition of the posts due to closure of the school after giving an advance intimation of three months. Rule says that in that contingency services of the said permanent teachers shall automatically stand terminated. The rule also provides that in case of the closure of the school due to de-recognition, such advance intimation of three months shall be given by the management to the permanent employees. Here, the closure of the school has been clarified by explanation to include voluntary closure of the entire school by the management if it is imparting instruction through one medium or a part of the school comprising one or more media of instruction. Closure of the school due to dercognition by the department also includes closure of the school. Therefore, in these contingencies the management is permitted to terminate the services of the permanent employees, on account of abolition of posts, under Sub-rule (1) of Rule 25-A. Sub-rule (2) of Rule 25, in the eventuality of the action of the management under Sub-rule (1) provides that the names of the employees in aided schools, whose services stand terminated in accordance with Sub-rule (1) of Rule 25-A on account of derecognition 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 and Junior College of Education and same shall be recommended by him to the Management of newly opened aided schools or of the existing aided schools which are allowed to open additional division or classes for consideration. Rule 25-A has made available the protection and/or privilege to the permanent employees who are suffering action under Sub-rule (1) of Rule 25-A which have been grouped as one class in itself.
While considering Rule 26 of the said Rules, 1981, retrenchment on account of abolition of posts is being provided to the permanent employees by the management after giving three months notice on the grounds (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 establishments; (iii) change in the curriculum affecting the number of certain category of employees; (iv) closure of course of studies; and (v) any other bona fide reason of similar nature.
Rule 26 provides retrenchment from service under Sub-rule (1) shall be subject to condition enumerated in that rule. Sub-rule (3) of Rule 26 speaks about cases of employees who refuse to accept the employment offered. Sub-rule (4) of Rule 26 contemplates about the manner of communication by the management. If the posts retrenched are revived or additional posts for the same subject are created. In case of revival of posts retrenched or additional posts for the same subject, 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 rejoining services in the school and for this purpose the employees 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. Sub-rule (5) of Rule 26 gives an opportunity to the retrenched person who may have been absorbed in other school, either to get repatriated to his original school or to continue in school in which he has been absorbed. Sub-rule (6) gives liberty to the management to fill in the post by qualifying person if the repatriated 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 reappointment or repatriation to the school or on refusal by him to receive the letter containing such offer. Sub-rule (7) of Rule 26 speaks about restoration of the retrenched employee to his original position in pay, seniority if such employee opting to get repatriated to the original school. Sub-rule (8) of Rule 26 provides that in the event of 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 terminated by the management under Sub-rule (1) of Rule 28 by treating him as temporary. Sub-rule (9) of Rule 26 speaks about facility of absorption admissible as per provision of Clause (iii) of Sub-rule (2).
7. To sum up, Rule 26 speaks about retrenchment on account of abolition of posts of permanent employees on account of eventualities which are enumerated under Sub-rule (1) which may be of temporary nature. Reduction of establishment owing to reduction in the number of classes or divisions under Sub-rule (i) of Rule 1 of Rule 26 may be for temporary period and subsequently, number of classes may be increased or number of division of a particular class may be increased. Sub-rule (ii) of Rule 1 of Rule 26 operates if there is a fall in the number of pupils resulting in reduction of establishment, but after some span of time, number of pupils may be increased and may have an effect in the class or division of the School or establishment . Sub-rule (iii) of Rule 1 of Rule 26 contemplates in the curriculum affecting number of certain category of employees. Curriculum of the School depends upon the policy or guidelines from the Education Department or University or the Board and is subject to change and, therefore, is in temporary nature. Sub-rule (iv) of Rule 1 of Rule 26 speaks about closure of course of studies, but not the entire school, and therefore, is a partial or temporary closure of the school. Sub-rule (iv) of Rule 1 of Rule 26 contemplates the retrenchment on account of any other bona fide reason of similar nature. In our opinion, the words “similar nature” refers to the grounds mentioned in Sub-rule (i) to (v) of Rule 1 of Rule 26. Therefore, the class of retrenched employees, which comes into existence because of the contingencies enumerated in Sub-rule (1) of Rule 26 is considered by the rule makers and so as to make available protection to that class of employees, Sub-rule (2) to (9) are embodied in Rule 26 so as to achieve the object to extend protection of the employment to those class of employees.
8. While considering the provisions laid down under Rule 25(A) which speaks about the termination of service on account of abolition of posts, Sub-rule (1) is important which considers the termination of the service of the permanent employee by the Management on account of the closure of the School. Here it is to be noted that closure of the school which is explained, in the explanation of said Sub-rule (i) of Rule 25 as “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” or (ii) closure of the school due to de-recognition by the Department” is having a permanent nature. Therefore, the class of retrenched permanent employees, which comes into existence in accordance with the provisions laid down under Sub-rule (1) of Rule 25(A) is permanently retrenched in nature, therefore, this class of employees, which is being contemplated, is altogether different on account of different contingencies and having a permanent nature. In short, the school which suffered closure in accordance with the Sub-rule (1) of Rule 25(A) never would resurgent and there will be no occasion for the employees working in the said School to repatriate. Therefore, privilege here made available by Sub-rule (ii) of this class of retrenched employees is also different in nature by way of preparation of waiting list by the Education Officer and or Dy. Director of Education for recommending these teachers to the Management of newly opened aided School or of the existing aided schools which are allowed to open additional divisions or classes for consideration. Therefore, the rule makers have rightly considered classes of permanent employees of the aided schools and have made available equal protection to both the classes. In any circumstances, Rule 25(A) of the said Rules of 1981, therefore, cannot be considered to be arbitrarily denying equal protection of law and or ultra vires to Article 14 of the Constitution of India. The distinction, therefore, between the teachers/employees of schools suffering, action under Sub-rule (1) of Rule 25(A) and employees/teachers suffering action under Sub-rule (1) of Rule 26 in the matter of extension or protection of services cannot be called to be arbitrary, artificial and or evasive. The Rule makers have made a real distinction between these two classes of employees and has enacted distinct rules extending protection to their employment and or privilege to them of an employment.
9. In our considered view, therefore, Rule 25(A) of said Rules of 1981 is not ultra vires to Article 14 of the Constitution of India and challenge made by the petitioners, therefore, falls to the ground. Apart from the absorption of the petitioners, petitioners have also claimed a direction to the respondents to pay the salary of the petitioners from April, 1995 till the end of the academic session 1995-96. The petitioners have filed this petition, in this Court somewhere in December 18th, 1996. In our considered view the claim of the petitioners for past salary for the period from April, 1995 till the end of the academic Session 1995-96 cannot be considered and granted in this petition filed under Article 226 of the Constitution of India. Besides this, the State Government is being deprived from its legitimate revenue by way of Court fees in case of action by the petitioners for recovery of the past salary in the Civil Court. We, therefore, dismiss this Writ Petition. Rule is discharged. No order as to costs.