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Judgment
S.V. GANGAPURWALA, J.
All these writ petitions are based on similar set of facts and involve common question of law, as such, are decided by common judgment.
The petitioners in all these writ petitions claim to have been appointed as Swayam Sevaks to teach the students under Mahatma Phule Shikshan Hami Kendra and Rajiv Gandhi Sandhi Shala to provide basic elementary education to the students between 6 to 14 years of age. These petitioners are subsequently discontinued. They have filed these petitions seeking benefit of Government Resolutions dated 05th February, 2009, 27th September, 2011 and 31st July, 2009 as extended to the Vasti Shala teachers run under Sarva Shiksha Abhiyan.
Mr. Sapkal, the learned Counsel for the petitioners strenuously submits that those teachers appointed as Vasti Shala teachers have been subsequently absorbed as Para teachers and Assistant teachers in regular schools. The Vasti Shala commenced under Sarva Shiksha Abhiyan. As the Vasti Shalas and the schools under Mahatma Phule Shikshan Hami Kendra are under Sarva Shiksha Abhiyan, the petitioners cannot be treated differently than Vasti Shala teachers. After the decision was taken to close down the Vasti Shala under Sarva Shiksha Abhiyan, the Vasti Shala teachers have been absorbed as Para teachers and subsequently as Regular Assistant Teachers, whereas the petitioners have been discontinued. Such discrimination is not permissible. Vasti Shala teachers and Swayam Sevaks (petitioners) ought to be treated similarly. The learned Counsel referring the Government Resolution dated 22nd July, 2005 submits that Mahatma Phule Prathamik Shikshan Hami Yojana and Mahatma Phule Uccha Prathamik Shikshan Hami Yojana commenced under Sarva Shiksha Abhiyan. The same was to provide elementary education to the students who are not in a position to attend the school. They were child labourers. To provide the education to the child labourers, the Government started Mahatma Phule Prathamik Shikshan Hami Yojana. The petitioners have rendered the services under the said scheme and the same was part of Sarva Shiksha Abhiyan. The scheme provided the details about the number of students and the teachers. Timings were also fixed. Qualification was prescribed for the teachers i.e. they should be at least 12th pass and those possessing D.Ed. qualification were preferred. The learned Counsel submits that under Government Resolution dated 05th February, 2009, the Vasti Shala teachers were also permitted to avail the facility of postal D.Ed. The learned Counsel further submits that Para teachers were appointed on contract basis. These Para teachers were appointed from amongst Swayam Sevaks working as Vasti Shala Teachers. Government Resolution dated 31st July, 2009 also refers to Government Resolution dated 22nd July, 2005. It is the scheme under Sarva Shiksha Abhiyan. Benefit of Government Resolution dated 31st July, 2009 is not accorded to the petitioners. As Vasti Shalas were closed down, the Swayam Sevaks working on Vasti Shala were absorbed as Para Teachers. The petitioners were also working as Swayam Sevaks under the same scheme of Sarva Shiksha Abhiyan under which Vasti Shalas were introduced. The learned Counsel further submits that under Government Resolution dated 27th September, 2011 the decision was taken that those Swayam Sevaks, who have worked on Vasti Shalas for at least two years would be eligible to be appointed as Para Teachers. The petitioners have also worked for two years and more. They ought to have given benefit of being appointed as Para Teachers and subsequently absorbed as teachers in regular schools. The act of the respondents in not affording the same benefit as afforded to Vasti Shala Teachers is arbitrary, discriminative and unreasonable.
Mr. Bankar, the learned Special Counsel appearing for the respondents submits that the petitioners are appointed under Mahatma Phule Shikshan Hami Kendra scheme. The purpose was to provide basic elementary education to the child labours and those children, who were not in a position to attend the regular school. The petitioners cannot equate themselves to claim parity with Vasti Shala Teachers. The schools under Mahatma Phule Shikshan Hami Kendra and Rajiv Gandhi Sandhi Shalas were not full time schools. No fix timing was prescribed for such schools. It was stated that the schools will run for four hours. It may be in morning or evening as per the convenience of the children. The learned Counsel submits that the Vasti Shalas were run by local bodies whereas the schools under Mahatma Phule Shikshan Hami Kendra could be run by local body or registered voluntary association or registered educational institutions. For functioning of Vasti Shala, 15 students from 1st to 4th standards are necessary, whereas under Mahatma Phule Shikshan Hami Kendra scheme, the school can be started even for ten students. The Vasti Shala was functioning as regular school. The Gram Shikshan Samitee can demand Vasti Shala and it was multi class primary school. The Vasti Shala has to function for minimum 200 days per year, whereas under Mahatma Phule Shikshna Hami Kendra, such schools can function for four hours in a day for primary and six hours for higher primary level as per the convenience. The school could be started at any time and continued adhoc for two years for primary and three years for higher primary level. The students in Vasti Shala can come in main stream of the schools as Vasti Shala functions as Regular School, whereas under Mahatma Phule Shikshan Hami Kendra scheme, the students are required to be admitted to regular primary or higher primary school after they have spent 23 years at the Center. The eligibility of Swayam Sevak at Vasti Shala was D.Ed. and if D.Ed. candidate is not available then at least H.S.C. passed candidate was required. For Center under Mahatma Phule Shikshan Hami Kendra if D.Ed. Candidate is not available, minimum 10th passed candidate would also be eligible to teach or even a retired teacher or national employment / NCC or Nehru Youth Center workers can also be appointed to teach at primary level and for secondary level the qualification was D.Ed. or B.Ed. and if the candidates are not available, minimum 12th passed was permissible and in tribal areas even if 12th passed candidate is not available, qualification can be relaxed further. Vasti Shalas could be converted into regular schools who are fulfilling the criteria and others in alternative innovative education, whereas the center under Mahatma Phule Shikshan Hami Kendra ceased to function after 2/3 years.
The learned Counsel for the respondent submits that in view of the above, the petitioners could not claim parity with Vasti Shala Teachers. The learned Counsel submits that regularization cannot be claimed as of right. The learned Counsel relying on the judgment of the Apex Court in cases of Secretary, State of Karnataka and Others Vs. Umadevi and Others reported in AIR 2006 SC 1806 and the judgment of Delhi High Court in case of Anil Lamba and Others Vs. Govt. of NCT and Others reported in LEX(DLH) 2017 3 29, submits that contractual employees do not have any right to seek regularization. The learned Counsel further submits that the petitioners ceased to function as Swayam Sevak in the year 200708 and have approached this Court after eight years, therefore, on the ground of delay also, the petitioners are not entitled for eligibility. The learned Counsel relies on the judgment of the Apex Court in the case of State of Maharashtra Vs. Digambar reported in AIR 1995 SC 1991. The learned Counsel relying on the judgment in the case of Ekta Shakti Foundation Vs. Govt. of NCT of Delhi reported in (2006) 10 SCC 337, submits that in case of policy matters this Court would not exercise its powers of judicial review. The learned Counsel also relies on the judgment of the Apex Court in the case of Shankarsan Dash Vs. Union of India reported in 1991 (3) SCC 47 and judgment of Apex Court in the case of Ugar Sugar Works Ltd. Vs. Delhi Administration and Others reported in (2001) 3 SCC 635 to submit that classification can be made by the State Government. The policy decision of the State Government is not prompted by mala fides nor is unreasonable and arbitrary and hence the Court would not intervene. The petitioner cannot claim benefit of regularization as is given to the Vasti Shala Teachers.
We have considered the submissions canvased by the learned Counsel for the petitioner and the learned Counsel for the respondent. The case of the petitioners is founded on discrimination. The petitioners seek parity with Vasti Shala Teachers. The teachers working on Vasti Shalas are absorbed as Para Teachers and subsequently as Assistant Teachers in the regular schools. The petitioners working under Mahatma Phule Shikshan Hami Yojana claim parity with the Vasti Shala Teachers thereby claim equality under Article 14 of the Constitution of India.
Article 14 of the Constitution of India ensures equality before law, which means that only persons who are in like circumstances should be treated equally. Equality under Article 14 of the Constitution of India means equality amongst equals. It does not provide for an absolute equity of treatment to all persons in utter disregard in every circumstance. The aim of this Article is to ensure that invidious distinction or arbitrary discrimination shall not be made by the State between the citizens and the citizens who answer the same description. Article 14 would apply only when invidious discrimination is meted out to equals and similar circumstance without any rational basis or relationship in that behalf.
On the touchstone of the aforesaid principle, the petitioners are required to demonstrate that those teachers working as Shikshan Sevaks on Vasti Shalas and the petitioners are similarly situated. The respondents have illustrated the distinction in the working environment and the circumstances of the petitioners and those on the Vasti Shalas.
Though both the schemes are under Sarva Shiksha Abhiyan, there are inherent distinctions in the nature of the work, working conditions and qualifications. The same are detailed below :
1
Name of the Scheme
Vastishala
Mahatma Phule Shikshan Hami Yojana
2
Beneficiaries
Children of 6 to 14 years age group
Child laborers and out of school children
3
Implemented by
Local autonomous bodies
Local autonomous bodies / Registered voluntary associations / Registered educational institutions
4
Object
To provde facility like regular school to students where within 1 km at Vasti no educational facility of school is available
To provide opportunity to the out of school children of the age 6 to 14 years to bring into the mainstream of the schools
5
Nature of the scheme
About 15 students from 1 st to 4th standard are necessary Vastishala functions as a regular school. The Gram Shikshan Samiti can demand the Vastishala. It is a multiclass primary school
Center can be started for about 10 to 20 out of school children
6
Duration
It functions at least 200 days per year
Such center can be started at any time and can continue ad hoc for 2 years for primary level and for 3 years for higher primary level Such centers can function about 4 hours in a day for primary level and for 6 hours for higher primary level as per convenience
7
Status of students
Students of Vastishala are in the mainstream itself. Vastishala functions as regular school
After the period of 2/3 years of the center, the students are required to be admitted to the regular primary / higher primary schools to bring them in the mainstream
8
Eligibility of Swayam Sevak / Center Administrator
Local D.Ed. Candidate If not available, minimum 12th pass, etc.
For primary level center : D.Ed. OR if not available, minimum 10th pass, etc. OR Retired teachers/ national employment/ NCC/ Nehru Youth Center workers also can be appointed. For secondary level : D.Ed./ B.Ed./ B.P.Ed. OR if not available, minimum 12th pass, etc. OR if not available, in tribal area even educational qualification can be relaxed with the approval of MPSP
9
Appointment by
Gram Shikshan Samiti on contractual basis
Local autonomous body/ Registered voluntary association, etc. on contractual basis
10
Stream of the students
Vastishala functions as regular schools. Hence, students remain in the mainstream itself.
After completion of 2/3 years of the center, the child laborers, out of school students are admitted to the appropriate standard into 5th / 8th as the case may be
11
Status of vastishala / center
Vastishalas converted into regular schools who are fulfilling the criteria and others in alternative innovative education
Centers cease to functions after 2/3 years.
On perusal of the aforesaid distinguishing factors it would be clear that the Vasti Shalas function as regular schools. It is Multi Class Primary School. The students of Vasti Shala are in the main stream itself and even minimum qualification of Swayam Sevaks is 12th pass. Under Mahatma Phule Shikshan Hami Yojana, where the petitioners were working, after 23 years at the center, the students are to be admitted to the regular primary / higher primary schools. The minimum qualification is 10th pass and even retired teachers / those under national employment / NCC / Nehru Youth Center workers can also be appointed as Swayam Sevak. Primary school runs only for four hours in a day and that too as per convenience, either in the morning or in the evening and not as regular school. After 23 years, the center ceases to function, whereas Vasti Shalas are converted into regular schools fulfilling the criterion and others in alternative innovative education. Thus the Vasti Shala functions as regular school and the centers under Mahatma Phule Shikshan Hami Yojana do not function as regular school, but the center continues adhoc for two years for primary level and for three years for higher primary level. There are inherent distinguishing circumstances between the both. The petitioners cannot ipso facto claim parity and equally absorption as Para Teachers or Assistant Teachers in regular school only because the Vasti Shala Teachers, upon satisfying some conditions, get absorbed as Para Teaches and later on as Assistant Teachers.
The policy of the Government in absorbing the Swayam Sevaks working at Vasti Shalas as Para Teacher and subsequently as Assistant Teachers in the regular school and not absorbing Swayam Sevaks under Mahatma Phule Shikshan Hami Yojana is not malafide and arbitrary. The scope of the judicial enquiry with regard to the policy decision of the State would be confined to the question whther the decision taken by the Government is against any statutory provision or is violative of the fundamental rights of the citizen or is against the provisions of the Constitution of India. The policy decision has to be left to the State. The State has exhibited before the Court that the Swayam Sevaks, such as the petitioners, cannot be equated with Swayam Sevaks working for Vasti Shalas. A reasonable classification is made out by the State and the action of the State cannot be faulted as violative of Article 14 of the Constitution of India. The petitioners cannot be treated equally with the Vasti Shala Teachers and cannot seek equal treatment or parity with them. Interalia, the Government Resolution, pursuant to which the Vasti Shala Teachers were absorbed as Para Teachers and subsequently as Assistant Teachers, cannot be ipso facto applied to the petitioners. It is for the State Government to take a policy decision in that regard.
In light of the above, no case for interference is made out. No relief can be granted to the petitioners by this Court. Though the issue of delay and latches in the present case is not irrelevant, we have not dealt with the same. As, on merits, we find that this Court cannot grant any relief to the petitioners, Writ Petitions are disposed of. No costs. In case the petitioners approach the State Government, it is for the State Government to take a policy decision in that regard.