IN THE HIGH COURT OF JUDICATURE AT BOMBAY

WRIT PETITION NO. OF 2005

In the matter of Articles 226

and 227 of the Constitution

of India.

AND

In the matter of Grant in

Aid Code applicable to

Primary Schools in Greater

Bombay.

AND

In the matter of

Maharashtra Employees

Private Schools (Conditions

of Service) Act, 1977 and

Regulation 1981.

(Hereinafter referred to as

the MEPS Act.)

AND

In the matter of Shikshan

Sevak Scheme as modified

by Hon’ble Division Bench

of Bombay High Court and

as amended from time to

time.

AND

In the matter of Judgment

and Order dated 15-10-

2005 passed by the Ld

Education Officer at
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Mumbai directing

reinstatement of Shikshan

Sevak.

Smt. Madhavi Datye,

Managing Trustee,

Lokamanya Vidyamandir Trust,

A Trust registered under the Bombay

Public Trust Act, 1950 and having its

registered address at Mahim,

Mumbai – 400

016. … Petitioner

V/s.

1. State of Maharashtra

Through the Office of Govt. Pleader,

High Court, Bombay.

2. Education Officer,

Mahanagar Palika School Bldg.,

1st Floor, Hindu Colony,

Dadar East, Mumbai 400014.

3. Urmila S Tarkare

411 / B / 4940, Tagore Nagar,

Vikhroli Eas …Respondents

TO

THE HON'BLE CHIEF JUSTICE AND OTHER

PUISNE JUDGES OF THE HIGH COURT OF

JUDICATURE AT BOMBAY.
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THE HUMBLE PETITION OF

THE PETITIONER ABOVENAME

D.

MOST RESPECTFULLY SHEWETH:

1. The Petitioner is the Managing Trustee of the

Trust registered under Bombay Public Trust Act, 1950

and runs the School in the name and style Lokamanya

Vidya Mandir School and Junior College. The said

institution has a recognised and unaided Primary section (

Marathi Medium) in respect of which the present Petition

is filed.

2. The Respondent No.1 is the State of

Maharashtra which has enacted the Shikshan Sevak

Yojana & regulates the same in the State of Maharashtra.

The respondent No 2 is the Education Officer who has

passed the impugned order purportedly under the

provisions of the Grant-in-Aid Code read with MEPS Act.

The Respondent No 3 is the concerned Shikshan Sevak

whose service has come to an end but the Respondent No

2 has directed by an order to reinstate her on the

presumption that she is Asst. Teacher since 2001, though

she was not in continuous employment since then.

3. The Petitioner states that the number of

students in the Marathi primary section of the School is

dwindling day by day and the Petitioner apprehends that

the said section may be required to be closed for lack of

students. Even presently the said Marathi primary

section is being funded by the Trust and, by itself, the said

section is not economically viable. The Petitioner has

applied for receiving grant in aid and the said application

is pending because of certain objectionable stifling
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conditions being imposed upon the School for receiving

aid. The petitioners representation to remove the said

objectionable conditions was/is also pending.

4. The Petitioner states that Respondent No 3 was

appointed as a Shikshan Sevak with effect from the 5 Jul

2005. Prior to that Respondent No 3 had worked for the

Petitioner in the Marathi primary section on a temporary

basis and the said temporarily appointments had

automatically come to an end by efflux of time and the

same were never disputed. In any event Respondent No 3

had never completed one year of continuous service.

Thereafter Respondent No 3 was appointed as Shikshan

Sevak by the Petitioner in the Marathi primary section as

per appointment order dated 5 Jul 2005 . Hereto annexed

and marked Exhibit A is a true copy of the said

appointment order as Shikshan Sevak issued to the

Respondent No 3 and duly accepted by her by giving the

required affidavit. Hereto annexed and marked Exhibit

B is a true copy of the said affidavit.

5. The Petitioner states that while working as

Shikshan Sevak the Respondent No 3, along with some

other Shikshan Sevak, had indulged in several grave and

serious misconducts for which a show cause notice was

issued to her. Hereto annexed and marked Exhibit C is a

true copy of the said show cause notice dated 30 Aug

2005 issued to the Respondent No 3. The Petitioner states

that similarly show cause notice was issued to other

Shikshan Sevaks. The Petitioner states that Respondent

No 3 has replied to the same by her letter of explanation

dated 5 Sep 2005 . Hereto annexed and marked Exhibit

D is a true copy of the said reply submitted by Respondent

No 3. The Petitioner states that the language used in the

said reply reflects the defiant attitude and disrespectful

behaviour of the Respondent No 3. Besides the fact that

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the allegations levelled against Respondent No 3 are not

seriously disputed, but the actions are sought to be

justified.

6. The Petitioner states that after considering the

said reply the management of the Petitioner was

constrained to discontinue the Respondent No 3 as

Shikshan Sevak by their letter dated 13 Sep 2005. Hereto

annexed and marked Exhibit E is a true copy of the said

letter discontinuing the Respondent No 3 as Shikshan

Sevak. The Petitioner states that the said letter is issued

in accordance with the provisions of the Shikshan Sevak

Scheme and clause 2 of the appointment letter issued to

the Respondent No 3. The Petitioner craves leave to refer

to and rely upon the documents annexed to the said letter

if deemed necessary.

7. The Petitioner states that thereafter the

Respondent No 3 and other Shikshan Sevak had

approached the local Shiv Sena leader, and had issued

threats to the managing trustee of the Petitioner through

the said leader, viz. Mr Prakash Aire (also President of

Education Committee, BMC ) who had spoken very rudely

using unparliamentary language and had threatened to

close down the School if the management does not

withdraw its action. The Respondent No 3 and other

Shikshan Sevaks also approached newspapers and

tarnished the image of the Petitioner institution by getting

published articles against the Petitioner

institution. Hereto annexed and marked Exhibit F is a

true copy of the police Complaint dated 23 Sep 2005 filed

by the Managing Trustee of the Petitioner. The Petitioner

states that the Respondent No 3 and other Shikshan

Sevaks also managed to persuade some parents of the

students to join them in their efforts. In view of the

aforesaid facts the management was also constrained to

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seek police protection. In the meantime the Petitioner

institution has received several other oral complaints

about the said Shikshan Sevak from other parents, but

they are not willing to give anything in writing due to the

fear and terror created in the institution by the said

Respondent No 3 and other Shikshan Sevak with the help

of local Shiv Sena leaders.

8. The Petitioner states that under the influence of

the said Mr Prakash Aire, the Education Inspector Mr

Prakash Pimple & Supt. Mr Bagnikar threatened the

Petitioner of dire consequences like derecognition of the

School if the said action is not withdrawn

immediately. The management has also filed a complaint

in this respect by their letter dated 22 Sep 2005. The

Petitioner states that considering all the aforesaid facts it

was not at all desirable or in the interest of discipline and

administration to withdraw the said action and the said

authorities were informed accordingly.

9. The Petitioner states that on 7 Oct 2005 they

received a notice about the hearing in the office of the

Education Officer which had reference of letters dated 5

Oct 2005 & directives of Education Officer dated 5 Oct

2005 allegedly forwarded to the Petitioner and informing

the Petitioner of hearing on 10 Oct 2005. Hereto annexed

and marked Exhibit G is a true copy of the said notice

received by the Petitioner on 7 Oct 2005. The Petitioner

states that immediately by their letters dated 7 Oct 2005

and 10 Oct 2005 informed the Education Officer that the

aforesaid letters dated 5 Oct 2005 & directives of the

Education Officer dated 5 Oct 2005 were never received by

the Petitioner and requested him to provide copies of the

same and thereafter, permit the petitioners to file detailed

reply and then hear the matter. Hereto annexed and

marked Exhibit H and Exhibit I are petitioners letters

dated 7 Oct 2005 & 10 Oct 2005 respectively.
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10. The Petitioner states that in spite of request the

said letters were never given to the Petitioner nor any time

was granted as per the request. Petitioner submits that

the Education Officer heard the Petitioner as if completing

a formality on 10 Oct 2005 itself. He refused to give

copies of the said letters as per the request of the

Petitioner and also refused to grant even one weeks

time. In the circumstances the petitioners state and

submit that they had no opportunity to know what was

the complaint in respect of which the hearing was being

conducted by the Education Officer. The entire matter

was conducted in a predetermined manner without

following even the basic principles of Natural Justice. The

Petitioner had prepared an interim representation / reply

which was merely received but not considered by the

Education Officer. Hereto annexed and marked Exhibit-

J is a true copy of the said interim representation /

reply. The Petitioner craves leave to refer to and rely upon

the documents annexed to the said reply as and when

deemed necessary.

11. The Petitioner states that to their shock the

Education Officer proceeded to pass an order directing the

Petitioner to reinstate all the Shikshan Sevaks, including

Respondent No 3 and treat them as permanent Assistant

Teachers since 2001. Hereto annexed and

marked Exhibit K is a true copy of the said order dated

15 Oct 2005 passed by the learned Education Officer. The

Petitioner states and submits that the said order was

passed without complying with even the basic principles of

Natural Justice and under the influence and political

pressure from Mr Prakash Aire, who also happens to be

the Corporator in the BMC & President of the Education

Committee.

12. Being aggrieved by the said order dated 15th Oct

2005 (Exhibit J) passed by the Education Officer at

Mumbai, the Petitioner begs to file this Petition on the

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following amongst other grounds which are stated herein

below without prejudice to one another: --.

(A) The Ld. Education Officer has no

jurisdiction to pass an order in respect of Shikshan

Sevak for reinstatement and the Petitioner

respectfully submits that the said jurisdiction vests

solely and exclusively with the Special Committee

constituted under Shikshan Sevak Scheme as

amended from time to time.

(B) That the impugned order amounts to

usurpation of the powers of the special committee

by the Education Officer and the same is ex-facie

illegal and without jurisdiction.

(C) That the impugned order is in gross

violation of the principles of Natural Justice because

the complaints/letters mentioned in the notice of

hearing by the Education Officer and on which basis

the Education Officer issued notice and passed

impugned order were not given to the Petitioner in

spite of request.

(D) That the impugned order amounts to giving

the Respondent No 3 a backdoor entry to

employment as Assistant Teacher without complying

with the statutory provisions of the Grant-in-aid

Code and/or MEPS Act. Petitioner respectfully

submits that such order is unsustainable in law.

(E) the Petitioner submits that the issue

regarding termination of Shikshan Sevak can be

dealt with only by the special committee constituted

under the Shikshan Sevak Scheme and that no

other authority has power or jurisdiction to decide

the said issue. Assuming without admitting that

Respondent No 3 was Assistant Teacher, even then

the issue of termination can be dealt with only by

the School Tribunal. The Petitioner submits that

looking to the impugned order from any angle, the

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same is without jurisdiction and requires to be set

aside on this ground alone.

(F) the Petitioner submits that admittedly the

last appointment letter duly accepted by

Respondent No 3 and the affidavit given by her,

shows that the Respondent No 3 was appointed as

Shikshan Sevak and the Education Officer has no

authority for justification to change the nature of

appointment and that too with retrospective effect.

(G) that the impugned order suffers from total

nonapplication of mind to the facts on record which

show that some of the concerned Shikshan Sevaks

were employed in other schools between 2001 and

now while some have worked only for eight months (

and that too not continuously ) in the primary

section of the Petitioner till April 2005, and hence it

was incorrect to grant them benefit of continuity of

service as Assistant Teacher with the Petitioner.

(H) that the impugned order suffers from total

nonapplication of mind to the following admitted

facts

1. Admittedly appointment was as Shikshan

Sevak.

2. the said appointment was duly accepted.

3. in the visitors book the Education Inspector

and Superintendent have referred to Respondent

No 3 as Shikshan Sevak.

4. documentary evidence was admitted.

5. breaks in service prior to Shikshan Sevak

appointment were admitted.

6. employment in other schools after 2001 was

admitted in respect of some of the concerned

Shikshan Sevaks.

7. admittedly some of the Shikshan Sevaks had

not even completed total of one year service till
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April 2005 and they could not have been treated

as Assistant Teachers since 2001.

The Petitioner submits that had the concerned

authority considered the said facts in their right

perspective, he would not have passed the

impugned order.

(I) The Ld Education Officer did not take into

consideration the subsequent threats issued to the

Managing Trustee of the Petitioner at the instance of

and on behalf of the Respondent No 3 and other

Shikshan Sevak and hence forcing the Petitioner to

employ Respondent No 3 was not in the interest of

discipline and administration of the Petitioner

institution.

(J) The Ld. Education Officer grossly erred in

not appreciating that that the impugned order is

contrary to the provisions of Grant-in-aid Code

and the M.E.P.S. Act, 1977 and that he ought not

to have granted back-door entry and/or

appointment as Assistant Teacher to the

Respondent No 3 when entire record showed that

she was Shikshan Sevak. The Petitioner respectfully

submits that this is done with ulterior motive and

under political pressure.

(K) The learned Education Officer grossly erred

in holding that the Respondent No 3 is a permanent

employee with effect from 2001, when in fact she

was appointed only as Shikshan Sevak from 5 Jul

2005. Even the Education Inspector and

Superintendant had noted in the visit book that

Respondent No 3 is a Shikshan Sevak.

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(L) The learned education Officer failed to

appreciate that the number of students in the

Marathi primary section was reducing every year

and facing the prospect of closure hence it would

not be possible for the School to employ permanent

teachers in the said section.

(M) That the order is perverse and contrary to

the material on record.

(N) That the order incorrectly records that the

representative of the Petitioner was shown

complaint letters. The Petitioner submits that their

representative was permitted to see only a few lines

and the alleged complaint to the President of the

School committee or letter from Shri Prakash Aire

was not even shown to the said representative

inspite of request.

(O) That the order incorrectly states that the

proposal for approval of Respondent No 3 was never

sent for approval. The Petitioner submits that the

said proposal for approval was kept pending by the

Department.

(P) That the management had produced before

the learned authority the entire material on the

basis of which action was taken and the

management ought to have been given opportunity

to justify its action. The concerned Shikshan Sevak

had made grave and serious allegations against the

management and Headmaster which is a very

serious misconduct. It was admitted that the

concerned Shikshan Sevak had no proof in support

of the allegations made which is reflected in the
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impugned order. This itself shows that the action of

the management was justified.

(Q) That the impugned order fails to take into

consideration that it is not in the interest of

discipline and administration to continue

Respondent No 3 in service in view of the false and

baseless allegations levelled by her against the

management and the Headmistress, especially when

she failed to produce any material in support of her

allegations even before the Education Officer.

13. The Petitioner submits that in the circumstances,

it is just and proper that this Hon'ble Court should

exercise its jurisdiction under Articles 226 and 227 of the

Constitution of India and issue a Writ of Certiorari or a

Writ in the nature of Certiorari or any other appropriate

Writ, direction or Order calling for the records and

proceedings in the matter and after examining the

legality, validity and propriety and correctness thereof, be

pleased to quash and set aside the impugned order dated

15-10-2005 (at Exhibit K) passed by the Education Officer

at Mumbai.

14. The Petitioner further submits that in the

circumstances, it is also just and proper that pending

hearing and final disposal of the petition, the impugned

order passed by the Education Officer at Bombay be

stayed as the same is passed without jurisdiction.

15. The Petitioner submits that they have no other

alternative and efficacious remedy available to them other

than to approach this Hon'ble Court under Articles 226 &

227 of the Constitution of India for the reliefs sought

herein.
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16. The Petitioner states that no other petition or

proceedings have been filed by the Petitioner either in this

Hon'ble Court or in the Hon'ble Supreme Court of India

with regard to the subject matter of the present Petition.

17. The impugned order is passed in Bombay and all

the parties are of Bombay, hence this Hon Court has the

jurisdiction to entertain this Writ Petition.

18. The Petitioner states that there is no delay in

filing this Petition.

19. The Petitioner therefore prays:

(A) The Writ of Certiorari or a Writ in the

nature of Certiorari or any other

appropriate Writ, direction or Order calling

for the records and proceedings in the

matter and after examining the legality,

validity and propriety and correctness

thereof, be pleased to quash and set aside

the impugned judgment and order dated

15-10-2005 at Exhibit-K to the Petition

passed by the Education Officer at Mumbai.

(B) Pending hearing and final disposal of the

Petition, the impugned order dated 15th Oct

2005 passed by the Education Officer be

stayed.

(C) Ad-interim reliefs in terms of prayer clauses

(B) above be granted.

(D) Any other relief the Court may deem fit in

the circumstances of the case be granted.
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(E) The costs of this Petition be provided for.

20. The Petitioner craves leave to add to, alter, amend,

modify and/or rescind any part of this Petition if deemed

necessary.

MUMBAI

DATED ___ DAY OF Oct,

2005. PETITIONER

ADVOCATE OF THE PETITIONER

VERIFICATION

I, Smt. Madhavi Datye, Managing Trustee of the

Petitioner abovenamed, aged 58 years, residing at Bombay, do

hereby solemnly declare that what is stated in paragraphs

_____ are true to the best of my knowledge and what is stated in

the paragraphs _____ is stated on information and record and

what is stated in the paragraphs ________ are the legal

submission and what is stated in paragraph _____ are the

prayers.

VERIFIED AT MUMBAI

ON THIS ___ DAY OF Oct, 2005.

ETITIONER.

ADVOCATE FOR THE PETITIONER.