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St. Isabel's High School Vs. The Education Inspector and Ors. - (High Court of Bombay) (27 Sep 2019)

Right to choose and appoint an employee cannot be taken away merely because Government Resolution prescribes a maximum age limit of 33 years

MANU/MH/2693/2019

Service

The Petitioner - St. Isabel's High School, invokes the jurisdiction of present Court under Article 226 of the Constitution of India to challenge the impugned Government Resolution ('GR') dated 25th November, 2005 of the Respondent No. 2 - State Government to the extent, it prescribes a maximum appointment age of 33 years for Shikshan Sevaks/ Junior Clerk. Consequently, the Petitioner prays for setting aside the impugned order passed by Respondent No. 1 - the Education Inspector thereby not approving the proposal submitted by the Petitioner for approval of the appointment of a junior clerk, Shri Godwin D'Almeida.

The question is whether the said GR. stipulating maximum age limit of 33 years amounts to putting fetters on their right to select staff of their own choice being minority institution under Article 30(1) of the Constitution of India. Further, whether the State Government by issuance of G.R. is empowered to prescribe maximum age limit when no such limit is prescribed by the 'Rules'.

Merely prescribing a maximum age limit does not take away the right to choose and appoint an employee of the Petitioner's choice. The right to choose and appoint an employee in the non teaching staff still rests with the petitioner. What the State has done is to prescribe a maximum age limit of 33 years for non teaching employees for the purpose of approval. This in no manner can be construed as putting fetters on the right to choose and appoint an employee of the choice of the minority institution.

Reading of Rule 9(1)(4a) and (4b) of Maharashtra Employees of Private Schools Rules, 1981 would reveal that in respect of appointment to be made to any post in a primary school, a candidate shall not be less than 18 years of age and more than 28 years of age. However, in so far as an appointment to be made to any post in any school other than primary school, Rule 9(4b) provides that candidate shall not be below 18 years of age. Rule 9(4b) does not provide for the maximum age limit in respect of employees in any school other than primary school.

It is not possible to accept the submission of Petitioner that, their right to choose and appoint an employee is taken away merely because GR. prescribes a maximum age limit of 33 years. The petitioners obviously have a right to choose and appoint an employee of their choice subject to the maximum age limit of 33 years. For the purpose of grant-in-aid and releasing salary grants, the State has formulated revised structure and norms which are in consonance with the provisions of the Act and the Rules. This in no manner takes away the right of petitioner to administer the minority educational institution. The fundamental right guaranteed under Article 30(1) of the Constitution of India cannot be said to be infringed merely on a prescription made by the State Government stipulating maximum age limit for the purpose of approving the appointment of a non teaching staff.

The salary grant of the non teaching employees is to be released only if the appointment of the employee is approved. The G.R. lays down the detailed revised structure and the norms to be applied to the non teaching staff in the State. There is no embargo on the petitioner - institution in making appointment of an employee of their choice even beyond the maximum age limit, but if the petitioner is seeking approval for the purpose of releasing salary grant, then it is not open for the Petitioner to contend that the State Government cannot provide any norms prescribing the conditions for approval.

The G.R. issued by the State is not at all contrary to the mandate of Rule 4(b). In the absence of a stipulation of maximum age limit in the 'Rules' for appointment of a non teaching employee, the State is well within its rights to prescribe the upper age limit as a condition of approval in the revised structure and norms to fill the non teaching posts in a given method. The right of the Petitioner to choose and appoint an employee of its own choice is in no manner restricted. The Petitioner, if seeks approval for the appointment of a non teaching employee, then it has to necessarily comply with the norms prescribed by the G.R. Petition dismissed.

Tags : RESOLUTION   MAXIMUM AGE   LEGALITY  

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