Dismissed

Shivaji Jagannath Kshirsagar v. 1. the State of Maharashtra and Ors.

Bombay HC27 Mar 2014PIL/59/2012

Case brief

AI extract

What is this about?

The court dismissed a PIL challenging the election of teachers from private schools to the Barshi Municipal Council. The High Court held that teachers in fully grant-aided private schools do not hold offices of profit under the Government and distinguished precedents relying on statutory bodies. The election petitions were found to be misconceived and dismissed.

What did the court decide?

The public interest litigation challenging the election of Respondents and seeking directions against educational institutions was dismissed.

Shivaji Jagannath Kshirsagar Vs 1. the State of Maharashtra and… — Election Law | Bombay HC (2014)

pil-59.12

pmw

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION PUBLIC INTEREST LITIGATION NO.59 OF 2012

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Shivaji Jagannath Kshirsagar ... Petitioner

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Vs.

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The State of Maharashtra and others ... Respondents

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Mr. Ashish S. Gaikwad, for the Petitioner. Mrs. M.P. Thakur, AGP, for the Respondent No.1. Mr. Kuldip T. Pawar i/by Mr. S.M. Gorwadkar, for Respondent No.10.

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CORAM : A.S. OKA & A.A. SAYED, JJ. DATE : 27^th MARCH, 2014

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P.C.

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. Heard the learned counsel appearing for the Petitioner. At the outset, we must record that the entire PIL is misconceived. The first challenge in this PIL is to the election of the Respondent Nos.3 to 10 as the Councillors of the Barshi Municipal Council. There are three substantive prayers in the PIL. The first substantive prayer is prayer clause (b) which reads thus :

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“(b) Be pleased to issue the Writ in nature of Certiorari, appropriate Order, Direction, Writ calling for the record and proceeding and Gazette of general elections of Barshi Municipal Council held on 11^th December, 2011, election of respondent No.10 as coopt member and after going

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through the legality, validity and propriety of impugned Gazette be pleased to quash and set aside the impugned elections of respondent Nos.310 for the reasons and circumstances mentioned herein above.”

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The only other substantive prayers are in terms of prayer clauses (d) and (g) which read thus :

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“(d) Be pleased to direct Respondent Nos.1 and 2 to take time bound action against all employees working in the institutions receiving grants in aid from the State who are elected members at all local bodies in the State of Maharashtra to debar them.”

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(g) Be pleased to direct Respondent No.1 to take action against the educational institutions for violating section 27 of The Right of Children to Free and Compulsory Education Act, 2009.”

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The learned counsel appearing for the Petitioner does not dispute that the Respondent Nos.3 to 10 are the employees of private schools and none of them are the employees of a school run by the State Government or any local authority. His contention is that the said Respondents are employed in schools receiving 100% grants from the State Government. Relying upon clause (g) of Subsection (1) of Section 16 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (for short “the said Act”), his submission

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is that the Respondent Nos.3 to 10 are holding office of profit under the Government and, therefore, the disqualification under the said clause (g) is attracted. His submission is that the State Government has a control over the private schools receiving 100% grantinaid and even the service record of the employees of such schools is subject to the scrutiny by the State Government. He has placed reliance on the decisions of the Apex Court in the case of Manmohan Singh Jaitla Vs. Commissioner, Union Territory of Chandigarh and others¹ and Biharilal Dobray Vs. Roshan Lal Dobray² . He also placed reliance on the decision of the Division Bench of this Court dated 9^th April, 2012 in Writ Petition No.2623 of 1995 in the case of Shriram Dattu Bhoyar Vs. Ashok Kashinath Raut and another . He submitted that as on the date of election, the concerned Respondents were the employees of private schools and as they were receiving salary from the Government, they were holding office of profit within the meaning of clause (g) of Sub section (1) of Section 16 of the said Act.

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He relied upon Subrule (2) of Rule 42 of the Rules framed under the Maharashtra Private Schools (Conditions of Service) Rules, 1981 and submitted that the concerned Respondents could not have contested the election without obtaining prior permission of their

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1 1984 (SUPP) SCC 540

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2 (1984) 1 SCC 551

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employers and, therefore, action needs to be taken against them. Lastly, he relied upon the provisions of Section 27 of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as “the said Act of 2009”) and submitted that the teachers are not expected to do any noneducational work. He urged that if the teachers are allowed to get elected as councillors of a local authority, not only that the quality of education imparted by them in the school will be adversely affected, but the teachers will be attracted to one or the other political parties.

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We have carefully considered the submissions. Clause (g) of Subsection (1) of Section 16 of the said Act reads thus :

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“16. Disqualification for becoming a Councillor – (1) No person shall be qualified to become a Councillor whether by election or nomination, who ….....

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(g) is a subordinate officer or servant of Government or any local authority or holds an office of profit under Government or any local authority; or”

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It is not in dispute that Respondent Nos.3 to 10 are the employees of private schools. Merely because the schools are receiving 100% grantinaid, by no stretch of imagination, it can be said that the said Respondents become servants of the Government or local authority or that they hold office of profit under the Government or any local

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authority. Reliance placed on the decision of the Apex Court in the case of Biharilal Dobray is completely misconceived inasmuch as the Apex Court was dealing with a case of an Assistant Teacher employed in a school run by the Uttar Pradesh Board of Basic Education constituted under the Uttar Pradesh Basic Education Act, 1972. It is in the context of the statutory provisions of the Uttar Pradesh Basic Education Act, 1972 that the Apex Court came to the conclusion that the Assistant Teacher was holding an office of profit under the Government. The Apex Court found that the school was run by a statutory body created by a statute which was having a direct control of the State Government.

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As far as the decision in the case of Manmohan Singh Jaitla is concerned, the same does not deal with the issue at all. Even the decision of the Division Bench in the case of Shriram Dattu Bhoyar does not deal with the issue. It deals with the issue of Police Patil taking active participation in the politics. Hence, by no stretch of imagination, it can be said that clause (g) of Subsection (1) of Section 16 is attracted in the case of the Respondent Nos.3 to 10.

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Apart from this, whether an elected councillor is holding an office of profit within the meaning of clause (g) of Subsection (1) of Section 16 or not is an issue which can be decided only on evidence.

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Any person entitled to vote at the election is entitled to raise an election dispute under Section 21 of the said Act.

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Even assuming that Respondent Nos.3 to 10 have not taken permission of the Management of their respective Schools before contesting election, that will not touch the issue of qualification of the said Respondents to contest the election. At highest, it will be for the concerned school managements to initiate disciplinary proceedings against the teachers concerned who have contested the election without taking prior permission.

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Section 27 of the said Act of 2009 reads thus :

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“27. Prohibition of deployment of teachers for non educational purposes.

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No teacher shall be deployed for any noneducational purposes other than the decennial population census, disaster relief duties or duties relating to elections to the local authority or the State Legislatures or Parliament, as the case may be.”

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Purport of the Section is that no teacher shall be compelled to do any noneducational work. In the present case, the teachers concerned have themselves opted to contest the election. In any event, the prohibition under Section 27 of the said Act of 2009 will not operate as a disqualification under any of the provisions of the said Act.

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Therefore, there is no merit in the Petition. The Petition is

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completely misconceived and the same is accordingly dismissed.

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(A.A. SAYED, J ) (A.S.OKA, J )

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Shivaji Jagannath Kshirsagar v. 1. the State of Maharashtra and Ors.

Case brief

What is this about?

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Shivaji Jagannath Kshirsagar v. 1. the State of Maharashtra and Ors.

Case brief

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