RAM AVADH MAHEL PAL Vs. SHIVDUTTA EDUCATIONAL TRUST

JUDGEMENT

(1.) The reference before the Full Bench has been occasioned by an order dated 21st August, 2006 passed by a learned Single Judge. The learned Single Judge formulated the issue upon which there are conflicting judgments of two Division Benches of this Court and which consequently required determination by the Full Bench, thus :

(2.) In a judgment dated 11th December, 2003 delivered by a Division Bench of this court consisting of Dr. Justice S. Radhakrishnan and Mr. Justice V. M. Kanade in (Swati Vasant Patil Vs. Kandivli Education society) , 2002 (3) Bom. C. R. (O. O. C. J. ) 51 : 2002 (1) All. M. R. 333. Writ Petition 2627 of 2003, the Court held that Clause 8 of the government Resolution dated 13th October, 2000 indicated that on the satisfactory completion of three years service, the candidate has to be absorbed on a regular post, on a regular pay scale. The Court was also of the view that Clause (6) (3) of the Appendix to the government Resolution dated 13th October, 2000 made it clear that if a Shikshan Sevak has completed three years of service, such a person shall be absorbed in a regular post, in a regular pay scale. However, a contrary view was expressed by another Division bench of this Court consisting of mr. Justice H. L. Gokhale (as he then was) and Smt. Justice V. K. Tahilramani in Swati Vasant Patil vs. Kandivli Education Society, 2002 (3) Bom. C. R. (O. O. C. J. ) 51: 2002 (1) All. M. R. 333. In its decision the Division Bench held that the relationship of a Shikshan Sevak with the appointing authority is purely contractual and there was a doubt as to whether the "various propositions concerning the probationers will have an applicability to this kind of contractual appointment". The Division Bench noted that while a probationer obtains the benefit of service during the period of probation on the completion of the period of probation, this was not so in the case of a Shikshan Sevak except that after the completion of three years' service a shikshan Sevak will become eligible for fresh appointment. This service, noted the Division Bench, would qualify for increments and the service would count only for retirement benefits provided a regular appointment as a teacher was made after three years. It was in view of this divergence of the views expressed by two Division Benches that the reference was made before the Full Bench.

(3.) The learned Associate Advocate General has during the course of these proceedings on the reference before the Full Bench placed on the record the provisions of the bombay Primary Education and the maharashtra Employees of Private Schools (Conditions of Service) Regulation (Amendment) Act, 2007 which was published in the gazette on 30th April, 2007 after the assent of the Governor. The Statement of Objects and Reasons appended to the Bill notes that the State Government introduced the scheme for appointment of Shikshan Sevaks on "honorarium basis" on the post of teachers since 2000. The scheme was implemented by issuing Government resolutions from time to time and a number of petitions were instituted to challenge the validity of the scheme including on the ground that it was ultra vires the provisions of the Bombay Primary Education Act, 1947 and the Maharashtra Employees of Private schools (Conditions of Service) Regulation act, 1977. Accordingly, the Government had decided to continue the scheme by suitably amending the aforesaid statutory enactments so as to bring the post of Shikshan Sevak under the purview of the said Acts.