Nagpur bench of the Bombay High Court has held that minority institutions cannot be directed by the state government to absorb surplus employees from other institutions. Concurrence is mandatory for such an absorption to take place.
Divison bench of Justices Vasanti Nayak and Swapna Joshi were hearing a writ petition filed by a minority institution challenging orders from Education Officer, Zilla Parishad, Amravati directing them to absorb two assistant teachers in a school run by the minority institution.
Although Assistant Government Pleader GR Tiwari argued that the aforesaid order was passed before a minority certificate was issued to the concerned institution, court refused to accept the argument. The Education Officer’s order was communicated on September 14 and 15 whereas the minoritry certificate was issued on September 23.
The bench observed that the Bombay High Court had previously, in a reported judgement of 2014 held that minority institutions cannot be compelled to absorb surplus teachers from other schools to their schools. This judgement was pronounced by a division bench headed by Justice VM Kanade in Cannossa Society v. Commissioner, Social Welfare, Pune. Holding that the state cannot make such appointments without a minority institutions consent, the said order reads thus- “The State authorities cannot indirectly do an act which cannot directly be done. In other words, when the State has no authority to make appointment of teaching and non-teaching staff in respect of a minority institution,even if aid has been granted, such action of making an appointment cannot be taken by directing absorption of a surplus employee. This is nothing but, making appointment of a staff member in a minority institution. The law confers no such authority and power with the State Government to thrust an employee rendered surplus in other schools to be absorbed by a minority institution. Rule 25 A of the Maharashtra Employees of Private Schools (Conditions of Services) Rules cannot be made applicable to appoint surplus staff in a minority institution unless the minority institution is consulted and concurs for such an appointment.”
All earlier orders passed by the Education Officer were quashed and set aside.
Read the Judgment here.
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