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Judgment
The petitioners before this Court have filed this petition under Article 226 of the Constitution of India against the order dated 11.07.2017 passed by the
respondent No.2-Commissioner, Department of Public Instructions, Govt. of M.P., Bhopal whereby the respondent No.2 has upheld the cancellation
of the absorption of the petitioners in the services of the State Government. The petitioners' contention inter alia is that the said order has been passed
without issuing any show cause notice or opportunity of hearing to the petitioners which is against the mandate of the order dated 9.2.2017 passed by
this Court in W.P. No.22704/2003 and other connected cases.
In brief the case of the petitioners is that they were working in unaided private educational institution Janta Uchchatar Madhyamik Vidyalaya,
Majhigava on their respective posts of UDT, Lecturer, Lab Technician UDC etc .
The said private unaided school was taken over by the State Government on 02.11.2000Â and posts were sanctioned for absorption of the employees
working therein. On 26.06.1995 instructions were issued for absorption of staff of the nongovernment schools taken over by the State Government.
In the said memo it was provided that the Upper Division Clerk, Teachers, Lecturers and other staffs will be absorbed on the posts held by them at
the time of taking over of the institutions and no specific educational qualification was provided for employees working on the post of UDT, Lecturers
and on other posts, hence as per the aforesaid instructions contained in the order dated 26.06.1995 the claim of the petitioners for absorption was
considered by a screening committee constituted at the District Level. It was found that they are fit for absorption on the post of UDT, Lecturer, Lab
Technician UDC etc. and on recommendation of the committee an order was also passed in this behalf on 28.02.2001 (Annexure P/4) whereby
the petitioners have been absorbed on their respective posts.
It is submitted by the counsel for the petitioners that after around two years, i.e. on 28.3.2003 the order of absorption of the petitioners was
cancelled on the ground that the screening committee which passed the order of absorption was not properly constituted. Being aggrieved by the order
dated 28.3.2003 an original application was preferred by the petitioners before the M.P. State Administrative Tribunal at Jabalpur which was
registered as O.A. No.1145/2003Â wherein an interim order was also passed by the Tribunal on 10.04.2003 and by which the effect and operation of
the order dated 28.3.2003 was stayed. After the abolition of the SAT, the said original application was transferred to this Court and was registered
as W.P. No.22694/2003 and vide order dated 04.09.2003 this Court has continued the interim order passed by the Tribunal on 10.04.2003.
Counsel for the petitioners has contended that despite the petitioners were allowed by the SAT and as well as by this Court to continue on their
respective posts, they were not paid the salary for the same, hence an interim application was also filed before this Court and this Court, vide order
dated 2.9.2004 in W.P. No.4656/2003Â directed the respondents to pay the salary, and as a result vide order dated 10.1.2007 directions were also
issued by the District Education Officer to pay the salary. Subsequently, the respondents again examined the case of the petitioners for
absorption in the Government services and vide order dated 01.12.2009 (Annexure P/10) declined the absorption on the ground of non-availability of
the sanctioned posts for general category candidates and being aggrieved of the same the petitioners the petitioners challenged it by way of an
amendment in an already pending Writ Petition No.22694/2003 and this Court vide its order dated 05.01.2010 also stayed the effect and operation of
the aforesaid order dated 01.12.2009.
Counsel for the petitioners has also submitted that in the case of N.K.Rai and others Vs. State of M.P. and others, reported in 2005(5) MPHT 305
directions were issued for absorption of the employees working in the private unaided educational institutions taken over by the State Government,
hence the petitioners have also filed W.P. No.18814/2012 seeking the benefit of the order passed by this Court in the case of N.K.Rai (supra). The
aforesaid writ petition was disposed of by this Court vide order dated 7.11.2002 (Annexure P/12) by directing the respondents to decide the
petitioners' case in the light of the judgment rendered in the case of N.K. Rai (supra) and thus on 4.3.2014 directions were issued for absorption of the
employees of schools taken over by the State Government during the period 1998 to 2001. In the list of such schools dated 04.03.2014, the name of
petitioners' school, viz. Janta Higher Secondary School, Majhigawa appeared at Sr. No.13. In compliance of the aforesaid order, the Director, Public
Instructions also issued a further order dated 13.05.2014 directing absorption of the employees working in schools taken over by the State Government
with a specific direction that no further screening or scrutiny shall be required for absorption.
Counsel for the petitioners has stressed upon the fact that the rules of reservation are not applicable to unaided private educational institutions,
which fact has also been clarified by the State Government vide memo dated 03.02.1997 (Annexure P/15) and vide memo dated 24.10.1998
(Annexure P/16) it was further clarified that the rules of reservation are not applicable to unaided private educational institutions. The petitioners have
also relied upon a decision rendered by this Court on 14.10.2010 passed in W.P. No.1638/2008(s). Thus, consequently on 07.07.2014Â orders were
passed absorbing the services of the petitioners on the post of UDT, Upper Division Clerk, Lab Assistant, Lecturer etc. The counsel has further
submitted that despite all these orders on record, the pay fixation order dated 14.7.2014 (Annexure P/19) was canceled by the District
Education Officer vide order dated 4.3.2015 (Annexure P/20) on the ground that the dispute pertaining to petitioners' absorption is pending
consideration before this Court, hence, again the petitioners filed a new Writ Petition No.5109/2015 in which an interim order was also
passed and all the petitions were heard analogously by this Court and were decided by a common order dated 9.2.2017 whereby the order dated
28.03.2003 as also the order dated 01.12.2009 were quashed but the respondents were granted liberty to take action against the petitioners in
respect of their absorption with a specific direction that it should precede with a show cause notice and the order be passed after affording due
opportunity of hearing to the petitioners. Subsequently, the respondent No.2 issued a notice dated 14.3.2017 whereby the petitioners were directed to
appear for hearing before the said authority on 21.03.2017.
However, in the aforesaid notice it was not mentioned as to what action is proposed to be taken against the petitioners. It is further submitted that
the said notice was also not issued to all the petitioners and subsequently on 11.7.2017 the respondent No.2 has passed the order which is
under challenge before this Court whereby the petitioners were again denied the absorption on the ground of non-availability of sanctioned posts for
general category candidates.
Counsel for the petitioners submits that the impugned order has been passed in clear violation of the order passed by this Court in W.P.
No.22704/2003 dated 9.2.2017. It is further submitted that a mere perusal of the show cause notice reveals that the language used is vague
inasmuch as it does not indicate that as to what action is proposed by the respondents in the aforesaid show cause notice. The aforesaid order
has been challenged on the ground that it has been passed arbitrarily, the same is illegal and is passed defying  the order passed by this Court. It
is further submitted that even otherwise the reasons assigned for denying the absorption to the petitioners cannot be accepted as the rules of
reservations were not applicable to the private unaided government schools and therefore the petitioners cannot be denied absorption by applying the
rules of reservation. The petitioners have also challenged the subsequent undated order passed by the respondent No.3 wherein directions have been
issued for termination of their services as their case for absorption has already been rejected.
On the other hand, counsel for the respondents submits that in their reply the respondents have denied the claim of the petitioners It is submitted
that the petitioners were engaged on their respective posts in Janta Uchchatar Madhyamik Vidyalaya, Majhigava which is unaided private school and
it was taken over by the Government on 2.11.2000. It is further submitted that as no post was available for the general category in the school, hence
the absorption of the petitioners could not be continued. It is admitted by the respondents in their reply also that so far as the rules of
reservations are concerned, the same are not applicable in the private unaided school, however it is further stated that in the circular dated 3.2.1997
it is provided that the private aided educational institutions where the State Government has provided 51% or more than that of the financial aid, in
the case of such institution the rules of Reservation of 1994Â Â shall be applicable. It is further submitted that after taking over the school on
2.11.2000, the Rules of Reservation shall be applicable.
A rejoinder of this reply has also been filed by the petitioners wherein it is submitted that the petitioners were working in the private unaided schools
and are governed by the policy framed by the State Government in the year 1995 and the petitioners' school was taken over by the respondents and
their services were absorbed vide order dated 1.11.2000 and this fact has already been examined properly by the District Level Scrutiny Committee.
The petitioners have reiterated that as per the order dated 3.2.1997 (Annexure P/15) the State Government has directed that the reservation
rules are not applicable on the employees of the private unaided school which has again been confirmed vide communication dated 24.10.1998
(Annexure P16). It is further submitted that vide order dated 20.5.2016 filed as Annexure RJ-1 along with the rejoinder, the employees in other
21 schools have already been absorbed by the State Government without following the reservation rules. It is further submitted that the non-
compliance of the reservation rules is also not one of the grounds in the show cause notice to the petitioners and thus they had no occasion to reply
to the said notice.
Heard learned counsel for the parties and perused the record.
The dispute in the present case relates to the show cause notice issued to the petitioners on 14.3.2017 and the resultant order dated 11.7.2017. The
show cause notice was issued to the petitioners as directed by this Court on 9.2.2017 in W.P. No.22704/2003, the operative part of the said order
reads as under :
“9. Consequently, the impugned order dated 28.03.20003 (Annexure P-2) as also the order dated 01.12.2009 (Annexure P/4A) are hereby quashed
and the writ petition stands allowed. The respondents are at liberty to take any action against the petitioners in respect of their absorption, but the
same should precede with a show cause notice and after affording the petitioners due opportunity of hearing, a reasoned and speaking order be passed
in accordance with law.â€
The aforesaid orders dated 28.03.2003 and 01.12.2009 which have been quashed relate to cancellation of the absorption of the petitioners. A bare
perusal of the show cause notice reveals that the contention raised by the petitioners cannot be said to be unfounded as they were simply asked to
show cause and no details have been provided that regarding which issue the petitioners are required to give their answer. However, it appears
that the respondents have presumed that the petitioners were aware of the nature and proposed action to be taken on the aforesaid notice, which in
the considered opinion of this Court cannot be said to be proper compliance of the order passed by this Court. However, since the petitioners have
been forced to run from pillar to post to assail their rights, it would not be proper at this stage after i.e. almost two decades of litigation to again
remand the matter back to the respondents as the only issue involved in the case is that whether the respondents have rightly cancelled the order of
absorption of the petitioners on the ground that the reservation policy has not been adopted. In the considered opinion of this Court, the aforesaid
order has been passed without taking note of the earlier circular issued by the State Government in this behalf. In the order dated 13.5.2014 issued by
the Deputy Director of the Public Education, it is clearly mentioned that in the private schools which have been acquired from 1998 to 2001Â the
regular pay scale shall be given and it is further specifically mentioned that there is no necessity to again review the order of absorption.
So far as the contention raised by the respondents that in those schools in which 51% or more aid has been given to the private schools are
required to follow the reservation rules of 1994, it is nowhere averred even in the reply that the petitioners' school falls within the aforesaid category.
The petitioners have also filed on record an order dated 24.10.1998 filed as Annexure P/16 in a similarly situated school wherein the Additional
Director, Public Instructions has informed the Secretary, School Education Department, Bhopal that private Kisan Higher Secondary School,
Kasmada district Morena is an unaided institution hence the reservation rules would not be applicable to the aforesaid school. This Court also finds
force in the submission of learned counsel for the petitioners that this case is also covered by the order of this Court in the case of N.K. Rai
(supra) wherein directions have been made for absorption of the employees working in the private unaided institutions taken over by the State
Government. Para 12 of the same reads as under:-
“12. Way back in the year 1967 Govt. of M.P. Education Department has approved the terms and conditions for absorption of the staff of Non-
Government and local bodies schools taken over under Government control. The initial instructions contained in Departmental memo dated 28th June,
1960 were superseded by memo (P/5) dated 21st Dec. 1967. In continuation of the said memo (P/5) dated 21st December, 1967, yet another memo
(P/6) has been issued by Govt. of M.P., Department of School Education on 26-6-1995. The memo (P/6) supersedes the instructions contained in
memo dated 28th June, 1960 and memo dated 21st December, 1967. Clause (2) of memo (P/6) provides that qualification of the member of the
staff of non-Government/Local body schools to be absorbed in Government service shall be the same as prescribed by the Government for these
posts. Clause 3(a) provides for absorption. The Upper Division Teachers, Lecturers and other staff will be absorbed on the posts held by them at the
time of taking over of the institutions under Government control provides (i) he is qualified for the post held by him and (ii) he is receiving the
prescribed scale of the pay of the post. A person who does not fulfil the conditions laid down may be absorbed in lower grade/post for which he is
entitled on the strength of his qualifications and pay.â€
In view of the same, this Court also finds that the petitioners have made out a case for interference and the respondents have not been able to
substantiate their orders dated 11.7.2017 and 14.7.2017.
14.. As a result, the petition stands allowed. The impugned order dated 11.7.2017Â (Annexure P/24) and order dated 14.7.2017 (Annexure P/25)
are hereby quashed. It is further directed that the petitioners shall be entitled to receive all the consequential benefits. The aforesaid exercise shall
be completed within a period of two months from the date of receipt of certified copy of this orders.