Supreme Court of India
SANT BHAGWAN BABA SHIKSHAN MANDAL & ORS.versusGUNWANT & ORS.
- Citation
- 2024 INSC 405
- Decided
- 3 April 2024
- Disposal
- Disposed off
Holding
A non‑teaching employee who acquires the requisite qualifications is statutorily entitled to be appointed as Shikshan Sevak on a permanent vacancy, and the High Court’s order directing such appointment is affirmed.
Summary
The appellant society employed respondent No.1 as a peon from 1991, and after he obtained a B.A. and B.P.Ed., he sought promotion to the post of Shikshan Sevak, a teaching position reserved for non‑teaching staff who acquire the requisite qualifications. The High Court had directed the society to appoint him to that post, rejecting the society’s contention that promotion to a teaching cadre was barred by the service rules. The Supreme Court examined the Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977, as amended, which obliges a school to fill a permanent vacancy of Shikshan Sevak by appointing a qualified non‑teaching employee without requiring a public advertisement. The Court held that the statutory scheme conferred an entitlement on respondent No.1, and the High Court’s order was well‑reasoned. Consequently, the appeal was disposed, confirming the appointment and ordering compensation for loss of earnings, while also directing relief for the other respondent appointed in the interim.
Issues considered
- Whether a non‑teaching employee who acquires the prescribed educational qualifications is entitled to appointment as Shikshan Sevak under the Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977.
- Whether the management was required to appoint the qualified employee directly, bypassing a public advertisement, in accordance with the 2005 Government Resolution and the amended Act.
- Whether the High Court erred in granting relief to the employee and directing his appointment.
- Whether the appellant society is liable to pay monetary compensation for the loss suffered by the employee due to non‑appointment.
Legislation cited
Subjects
Service LawAppointmentShikshan SevakRequisite qualificationsNon‑teaching employeeEntitlement to appointmentBalancing equitiesSeniorityRetiral benefits
Judgment
[2024] 5 S.C.R. 523 : 2024 INSC 405
Sant Bhagwan Baba Shikshan Mandal & Ors.
v.
Gunwant & Ors.
(Civil Appeal No. 2225 of 2011)
03 April 2024
[Hima Kohli and Ahsanuddin Amanullah, JJ.]
Issue for Consideration
Whether the High Court was justified in allowing the writ petition
filed by the respondent no.1 and appointing him to the post of
Shikshan Sevak in the appellant no.3-school.
Headnotes
Service Law – Appointment – Shikshan Sevak – Respondent
no.1 was appointed as a peon in the appellant no.3-school
– According to respondent no.1, he acquired requisite
qualifications for the post of Shikshan Sevak and he had
submitted several representations for the said post, but the
same were not considered favourably – Appellant no.1 issued
advertisement inviting application for appointment to the post
of Shikshan Sevak – Respondent no.1 did not apply, instead
after the post was filled by the appellants, respondent no.1
filed writ petition before the High Court – The writ petition was
decided in favour of respondent no.1 – Correctness:
Held: Once the respondent no.1 had acquired the requisite
qualification in the course of his service with the respondent no.
3-School, and the relevant GR which was ultimately incorporated
in the Maharashtra Employees of Private Schools (Conditions
of Service) Act, 1977, permitted appointment of a non-teaching
employee in a school as a Shikshan Sevak subject to the
employee acquiring the requisite educational qualifications and
further, subject to such a post being available, the appellants
cannot be heard to state that the respondent no.1 being a part
of the non-teaching staff, was not entitled for being considered
for appointment to the subject post – In fact, the language used
in the regulation dated 10.06.2005, itself makes it clear that
the employee was not required to take any steps by making a
representation for being appointed to the post of a Shikshan
Sevak and an obligation was cast on the appellants to ensure
524 [2024] 5 S.C.R.
Digital Supreme Court Reports
that on a permanent vacancy being available to the post of
Shikshan Sevak, a member of the non-teaching staff, who would
have acquired the educational qualification required for such a
post, ought to be appointed directly – Therefore, the impugned
judgment is well reasoned and does not require any interference.
[Paras 11 and 12]
List of Acts
Maharashtra Employees of Private Schools (Conditions of Service)
Act, 1977.
List of Keywords
Service Law; Appointment; Shikshan Sevak; Requisite qualifications;
Non-teaching employee; Entitlement to appointment; Balancing
equities; Senority; Retiral benefits.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2225 of 2011
From the Judgment and Order dated 17.11.2009 of the High Court of
Bombay, bench at Aurangabad in WP No. 1895 of 2007
Appearances for Parties
Adarsh Kumar Pandey, Shivaji M. Jadhav, Vignesh Singh, Ms. Apurva,
Brij Kishor Sah, Prafulla, Alok Kumar, Advs. for the Appellants.
Vivek C. Solshe, Varun V. Solshe, Anjani Kumar Jha, Sachin Patil,
Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla,
Sourav Singh, Geo Joseph, Durgesh Gupta, Risvi Muhammed, Aditya
Krishna, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Order
1. The appellants are aggrieved by the judgment dated 17th November,
2009, passed by the High Court of Judicature at Bombay, Aurangabad
Bench, whereunder a Writ Petition1 filed by the respondent no.1
praying inter alia for being appointed to the post of Shikshan Sevak
in the appellant no.3-School was allowed and the appellants were
1 Writ Petition No. 1895 of 2007
[2024] 5 S.C.R. 525
Sant Bhagwan Baba Shikshan Mandal & Ors. v. Gunwant & Ors.
directed to ensure that he is appointed to the subject post on or
before 31st December, 2009, in accordance with law.
2. We may briefly advert to the relevant sequence of events. The
respondent no.1 was appointed as a Peon in the appellant no.3-
School, being run by the appellant no.1-Society on 14th June, 1991.
His appointment to the subject post was approved vide letter dated
29th January, 1998. While working on the subject post, in the year
2004, the respondent no.1 passed Bachelor of Arts examination
from the Yashwant Rao Chavan Open University, Nasik. In the year
2005, he passed the Bachelor of Physical Education Examination.
On 10th June, 2005, the respondent no.2-State of Maharashtra
issued a Government Resolution2 for implementation of the revised
Shikshan Sevak Yojana in aided Secondary and Higher Secondary
Schools/Colleges, D.Ed. Colleges and Sainik Schools in the State.
The tenure of the Shikshan Sevak was fixed as three years and it
was clarified in paragraph 8 as follows:
“8. Where the non-teaching employee in the secondary
school and Junior college acquires educational qualification
required for teachers and such posts are available in the
secondary and higher secondary/school/colleges, then
such non-teaching member will have to be appointed as
Shikshan Sevak and he will be entitled for honourarium
as applicable to Shikshan Sevak and all other terms
and conditions will be applicable to him. However,
service rendered by non-teaching staff will be taken into
consideration for pension”.
3. On 15th February, 2007, the respondent no.2-State of Maharashtra
issued a fresh GR in the background of the Central Government
framing the Sarva Shiksha Abhiyan (Education for All Campaign),
which left it to the States to develop a framework for appointment
of teachers within the guidelines of the National Council of Teachers
Education. Keeping in mind the said Scheme, the respondent no.2-
State considered it imperative to implement an alternative Scheme
for appointing Shikshan Sevaks on vacant posts of teachers in all
Secondary/Higher Secondary Schools/Junior Colleges and College
Education in the State. For the purposes of implementing the said
2 For short the ‘GR’
526 [2024] 5 S.C.R.
Digital Supreme Court Reports
Scheme, several Resolutions were passed from time to time, starting
with the first GR dated 13th October, 2000, followed by GRs dated
26th July, 2001, 27th July, 2001, 18th December, 2003, 28th May, 2004,
07th January, 2005, 10th January, 2005 and 26th April, 2006.
4. All the aforesaid GRs were clubbed and included in the original GR
dated 13th October, 2000, which was updated by virtue of GR dated
15th February, 2007. After updating the original GR, the Maharashtra
Employees of Private Schools (Conditions of Service) Regulation Act3,
1977 was amended and the post of Shikshan Sevak was included
in the definition Clause, i.e., Section 2(24A) and the consequential
amendments were included by virtue of the Maharashtra Act XIV of
2007. Section 5 of the Act, 1977 that mandates the management to
fill up every permanent vacancy in a Private School by appointment
of a person duly qualified to fill such a vacancy was also amended
in the following manner:
“5. (1) The Management shall, as soon as possible, fill
in, in the manner prescribed, every permanent vacancy
in a private school by the appointment of a person duly
qualified to fill such vacancy:
[Provided that, unless such vacancy is to be filled in by
promotion, the Management shall, before proceeding to fill
such vacancy, ascertain from the Educational Inspector,
Greater Bombay, [the Education Officer, Zilla Parishad or,
as the case may be, the Director or the officer designated
by the Director in respect of schools imparting technical,
vocational, art or special education, whether there is any
suitable person available on the list of surplus persons
maintained by him, for absorption in other schools; and in
the event of such person being available, the Management
shall appoint that person in such vacancy.]
(2) Every person appointed to fill a permanent vacancy
[except Shikshan sevak] shall be on probation for a period
of two years. Subject to the provisions of sub-sections (3)
and (4), he shall, on completion of this probation period of
two years, be deemed to have been confirmed.
3 For short the ‘Act of 1977’
[2024] 5 S.C.R. 527
Sant Bhagwan Baba Shikshan Mandal & Ors. v. Gunwant & Ors.
[Provided that, every person appointed as [Shikshan
sevak)] shall be on probation for a period of three years.]
[(2A) Subject to the provisions of sub-sections (3) and
(4), shikshan sevak shall, on completion of the probation
period of three years, be deemed to have been appointed
and confirmed as a teacher.]
(3) If in the opinion of the Management, the work or
behaviour of any probationer, during the period of his
probation, is not satisfactory, the Management may
terminate his services at any time during the said
period after giving him one month’s notice [or salary [or
honorarium] of one month in lieu of notice].
(4) If the services of any probationer are terminated under
sub-section (3) and he is reappointed by the Management
in the same school or any other school belonging to it within
a period of one year from the date on which his services
were terminated, then the period of probation undergone
by him previously shall be taken into consideration in
calculating the required period of probation for the purposes
of sub-section (2).
[(4A) Nothing in sub-section (2), (3) or (4) shall apply to a
person appointed to fill a permanent vacancy by promotion
or by absorption as provided under the proviso to sub-
section (1).]
(5) The Management may fill in every temporary vacancy
by appointing a person duly qualified to fill such vacancy.
The order of appointment shall be drawn up in the form
prescribed in that behalf, and shall state the period of
appointment of such person.”
5. It is the case of the respondent no.1 that on acquiring requisite
qualifications for the post of Shikshan Sevak, he submitted several
representations to the appellant no.1 for being appointed to the
said post, but the same were not considered favourably. In the
year 2006, one Mr. B.R. Dhakne, who was working as a Physical
Education teacher in the school, was to retire on attaining the age
of superannuation. The appellant no.1 claims to have issued an
advertisement on 01st June, 2008, published in the daily newspaper,
528 [2024] 5 S.C.R.
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‘Lokmaan’ inviting application for appointment to the post of Shikshan
Sevak. The appellants claim that though the respondent no.1 was
aware of the said vacancy and the advertisement issued for filling
up the vacancy for appointment to the post of Shikshan Sevak, he
did not submit his application. Instead, after the post was filled up
by the appellants, he challenged the appointment of the respondent
no.5 by filing a Writ Petition4 before the High Court. The respondent
no.1 separately filed an appeal5 before the School Tribunal, Latur,
which was dismissed for want of prosecution. On 31 st January,
2007, the respondent no.1 approached the High Court by filing a
Writ Petition, which has been decided in his favour by virtue of the
impugned judgment.
6. Mr. Adarsh Kumar Pandey, learned counsel for the appellants submits
that the High Court has erred in allowing the Writ Petition filed by the
respondent no.1 for the reason that it failed to take into consideration
the fact that the respondent no.1 was given promotion from the post
of a Peon (non-teaching staff) to the post of Shikshan Sevak, which
is a teaching post which is in contravention of the provisions of the
Act and the Rules. In support of the said submission, he seeks to
place reliance on Clause 3 of the Schedule ‘F’ of the Maharashtra
Employees of Private School Rules, 1981, that lays down the guidelines
for fixation of seniority of non-teaching staff and casts an obligation
on the concerned school to maintain a common seniority list of the
lower grade staff on the basis of the date of their appointment and
further mandates that if any of the lower grade staff improves his
qualification as prescribed for the post of Laboratory Assistant or
Clerk, then the said employee ought to be given preference by filling
up the said post as per his placement in the common list of seniority.
It is submitted by learned counsel for the appellants that respondent
no.1 was working on the post of a Peon and at best, he could have
been promoted in accordance with the placement of his name in the
seniority list, to the position of a Laboratory Assistant or Clerk, but to
no other post, including the post of Shikshan Sevak, which was under
the category of teaching staff. It is thus submitted that the respondent
no.1 was not entitled for promotion to the post of Shikshan Sevak, a
post that is a part of the teaching cadre and a non-promotional post.
4 Writ Petition No. 1895 of 2007
5 Appeal No. 131 of 2006
[2024] 5 S.C.R. 529
Sant Bhagwan Baba Shikshan Mandal & Ors. v. Gunwant & Ors.
7. Per contra, Mr. Vivek C. Solshe, learned counsel for the respondent
no.1 supports the impugned judgment and submits that the entire
controversy has been set at rest on amendment of the Maharashtra
Employees of Private Schools (Conditions of Service) Regulation Act,
1977, by including the post of Shikshan Sevak under the Act and
casting an obligation on the management of Private Schools to fill
up the said post by appointing a person suitable in the list of surplus
persons maintained by the office of Education Inspector, Greater
Bombay or the Education Officer, Zilla Parishad, as the case may
be, for absorption to the post.
8. We have heard learned counsel for the parties, perused the records as
also the impugned judgment. In our opinion, the arguments advanced
by learned counsel for the appellants regarding non-entitlement of
the respondent no.1 for appointment from a non-teaching cadre to
a teaching cadre has been duly considered and turned down by the
High Court for valid reasons.
9. It is not in dispute that the respondent no.1 who was working on the
post of Peon, had taken permission from the appellants-Management
for undergoing further education and improving his qualifications. It
is also not in dispute that in terms of the qualifications acquired by
him in the course of his service, the respondent no.1 qualified for
being appointed to the post of Shikshan Sevak. Thirdly, on completion
of the requisite qualification, the respondent no.1 had submitted a
representation to the appellants-management for being appointed
to the subject post as and when a vacancy would arise.
10. Despite the aforesaid position, when a vacancy to the subject post
arose on Mr. Dhakne superannuating in the year 2006, instead of
approaching the Education Inspector/Education Officer/Zilla Parishad,
as the case may be, being the office designated by the Director of
Education for vacancies to be filled up by a suitable person available
on the list of surplus persons maintained in that office, the appellants
proceeded to issue an advertisement inviting applications from the
public at large for filling up the subject post, thereby completely
ignoring the claim of the respondent no.1 for being appointed to
the subject post. The High Court has noticed in paragraph 14 of the
impugned judgement that even the aspect of issuing a public notice
in the daily newspaper is doubtful, since the appellants did not file
the relevant page of the daily newspaper along with their counter
530 [2024] 5 S.C.R.
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affidavit and what was filed, could not be treated as an authentic
newspaper. Further, the application submitted by the respondent No.1
for being appointed to the subject post has not been disputed by the
appellants. Their only plea is that the respondent no.1 did not qualify
for being appointed as a Shikshan Sevak and that the appellants were
well entitled to fill up the post in terms of the advertisement issued.
11. Once the respondent no.1 had acquired the requisite qualification
in the course of his service with the respondent no. 3-School,
and the relevant GR which was ultimately incorporated in the Act
of 1977, permitted appointment of a non-teaching employee in a
school as a Shikshan Sevak subject to the employee acquiring the
requisite educational qualifications and further, subject to such a
post being available, the appellants cannot be heard to state that
the respondent no.1 being a part of the non-teaching staff, was not
entitled for being considered for appointment to the subject post.
In fact, the language used in the regulation dated 10th June, 2005,
itself makes it clear that the employee was not required to take any
steps by making a representation for being appointed to the post
of a Shikshan Sevak and an obligation was cast on the appellants
to ensure that on a permanent vacancy being available to the post
of Shikshan Sevak, a member of the non-teaching staff, who would
have acquired the educational qualification required for such a post,
ought to be appointed directly.
12. In view of the aforesaid discussion, we are of the opinion that the
impugned judgment is well reasoned and does not deserve any
interference.
13. Now coming to the aspect of molding the relief. Though the appellants
have duly impleaded the private respondents no. 4 and 5 in this
appeal, being necessary and proper parties, they have not entered
appearance. Respondent No.5 was issued an appointment letter
to the post of a Shikshan Sevak, in terms of the letter dated 24th
August, 2009, issued by the appellants. He had executed a consent/
guarantee letter stating inter alia that in the event the respondent
no.1 succeeds in his Writ Petition, he shall not claim any right to
the subject post. Additionally, a consent letter was also executed
by the Secretary of the appellant no.1 on behalf of the appellant
no.1 and the appellant no.3-School stating inter alia that in the
event the judgement in the Writ Petition filed by the respondent
[2024] 5 S.C.R. 531
Sant Bhagwan Baba Shikshan Mandal & Ors. v. Gunwant & Ors.
no.1 goes against the Society, then the entire responsibility shall
be that of the Society. The respondent no.3-Education Officer had
also approved the appointment of the respondent no.5 to the post
of Shikshan Sevak subject to the outcome of the Writ Petition filed
by the respondent no.1.
14. The records reveal that while issuing notice in the present appeal
on 18th December, 2009, operation of the impugned judgment was
stayed. As a result, the respondent no.5 has been continuing to
discharge his duties in the respondent no.3-School as a Physical
Education teacher, on the post of an Assistant Teacher. As noticed
above, the respondent no.5 was duly served in the present appeal
but he has elected not to appear or participate in the proceedings.
Now that the impugned judgement has been upheld by this Court
and the respondent no.1 has been held entitled to appointment to
the post of Shikshan Sevak w.e.f. 01st January, 2010 and on expiry of
a period of three years reckoned therefrom, to the post of Assistant
Teacher, this Court is required to consider balancing the equities. We
are informed that in all these years, respondent no.1 has been serving
on the post of Peon in the appellant no.3-School. Though learned
counsel for the respondent no.1 states that the financial impact of
depriving him for appointment to the post of Shikshan Sevak in terms
of the impugned judgment comes to ₹.21,00,000/- (Rupees Twenty
One Lakhs) approximately, we are of the opinion that ends of justice
would be met if the appellants are directed to pay a consolidated
sum of ₹.10,00,000/- (Rupees Ten Lakhs) to the respondent no.1
on account of the financial loss incurred by him and for his non-
appointment to the subject post. Needful shall be done within eight
weeks. For purposes of claiming seniority and retiral benefits, the
notional date of his appointment to the post of Shikshan Sevak shall
be reckoned as 01st January, 2010. Respondent no.3 shall issue a
letter indicating the pay scale of the respondent no.1 by notionally
computing it on the post of Shikshan Sevak w.e.f. 01st January, 2010
and to the post of Assistant Teacher w.e.f. 01st January, 2013 and
furnish a copy thereof to the appellants within three months.
15. As for the respondent no.5, it is directed that in the event the post
of a Physical Education Teacher is vacant and available in any of
the schools/colleges being run by the appellant no.1-Society, he
shall be duly accommodated on the post of an Assistant Teacher
there. In the alternative, the respondent no.5 shall be considered
532 [2024] 5 S.C.R.
Digital Supreme Court Reports
by the State authorities for appointment in terms of Regulation 5 of
the Act of 1977, as amended from time to time, on being declared
as a surplus teacher. However, there shall not be any recovery of
salary or emoluments from the respondent no.5 for the period during
which he has rendered services with the appellant no.3 – School.
16. The appeal is disposed of on the above terms, while leaving the
parties to bear their own expenses.
Headnotes prepared by: Ankit Gyan Result of the case:
Appeal disposed of.
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