MERAJ FARHAT HASHMAT KHANversusYATEEMKHANA AND MADRASA ANJUMAN KHAIRUL ISLAM AND 6 ORS.

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            ORDINARY ORIGINAL CIVIL JURISDICTION

                  WRIT PETITION NO. 3676 OF 2018

Meraj Farhat Hashmath Khan
Age-Adult, Occ.-Teacher,
R/at 2nd Sankli Street, Namakwala Chawl,
Room No.11, Byculla, Mumbai-400 008.                  … Petitioner

        Versus

1. Yateemkhana and Madrasa Anjuman Khairul Islam
   Baitul Aman Co-op. Housing Society Ltd.,
   First Floor, 2, Maulana Azad Road, Nagpada,
   Mumbai-400 008.

2. Anjuman Khairul Islam Urdu Primary School (Boys)
   Through its Head Teacher,
   2nd Ghelabai Street, Madanpura, Mumbai-400 008.

3. Education Department, School
   Through its Secretary,
   4th Floor, Mantralaya, Mumbai.

4. The Dy. Director of Education,
   Private Primary School Department (BMC),
   1st Floor, 112 Municipal School Building,
   L N Road, Opposite King George School,
   Hindu Colony, Dadar (E), Mumbai – 400 014.

5. The Commissioner,
   Municipal Corporation of Greater Mumbai
   Municipal Corporation Building,
   Mahapalika Marg, Mumbai-01.

6. The Education Officer (BMC) Education Department
   Bhaantewadi Municipal School Building,
   Near Portuguese Church,
   Prabhadevi Mahanagar Telephone Nigam Ltd Marg,
   Dadar (W), Mumbai – 400 028.



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7. The Superintendent
   The Municipal Corporation of Greater Mumbai
   ‘E’ Ward, Municipal Office, 3rd Floor, Byculla,
   Mumbai – 400 008.                                      ... Respondents

                       __________________________

Mr. Amit Singh a/w. Ms. Anasamah Sayed and Ms. Ashlesha Suryawanshi
i/b Nazish Sayed for the Petitioner.
Mr. Manish Upadhye, AGP for the Respondent-State.
Ms. Rishika Agarwal i/b Mr. Swaraj Jadhav for Respondent Nos.1 & 2.
Mr. Anupkumar Khaitan (through VC) a/w. Mr. Pratik Garde for the
Respondents-BMC.
                       __________________________

                                      CORAM       : M. S. KARNIK AND
                                                    S. M. MODAK, JJ.
                                      DATED       : 17th FEBRUARY, 2026.

ORAL JUDGMENT (PER M. S. KARNIK, J.)

1.     By this Petition under Article 226 of the Constitution of India, the

petitioner prays for a direction to the respondent-Municipal Corporation

and the management to absorb the petitioner who is working on part-time

basis as a full time teacher with consequential benefits from the original

date of appointment i.e. from 16th September, 1995. The petitioner prays

for quashing and setting aside the Grievance Redressal Committee’s Order

dated 23rd March, 2021, rejecting the petitioner’s request for absorption as

a full time teacher.

2.     The brief facts of the case are that, the petitioner was appointed as

part-time craft teacher in respondent No.2-School against a clear vacancy

on 20th September, 1995. The petitioner possesses requisite qualifications

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of S.S.C. with a diploma in Craft Teacher Course. In 2011, the petitioner

completed her graduation (B.A.).        The petitioner was appointed on

probation basis from 16th September, 1995 till 31st April, 1996, subject to

approval      from   Education   Department.       The   respondent    No.7-

Superintendent, Municipal Corporation of Greater Mumbai, granted

approval to the appointment of the petitioner by an Order dated 13 th

November, 1995.       Education Department of the Corporation issued a

circular dated 4th September, 1996 for discontinuation of appointments of

Special Teachers in private primary schools in Greater Mumbai from June,

1993.      Between 2000 to 2018, the petitioner made representations for

absorbing her as full time teacher. Despite these letters, no action was

taken by the respondents.

3.      During    2016-2017,     respondent    No.3-Education    Department

recommended to respondent No.1 that the petitioner be made full time

teacher.     Respondent No.4-The Dy. Director of Education rejected the

proposal of the petitioner as full time teacher by the Order passed in

February, 2018. The present Petition was filed in December, 2018.

4.      During the pendency of the Petition, the petitioner filed a complaint

before the Grievance Redressal Committee on 23rd September, 2019. The

Grievance Committee rejected the complaint of the petitioner on 23rd

March, 2021 on the ground that as per Circular dated 4 th September, 1996,



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after June, 1993 there cannot be any appointment of Special Teachers.

5.        Learned counsel for the petitioner submitted that the Circular dated

4th September, 1996 is not applicable as the petitioner was appointed much

prior to the issuance of the circular.          It is further submitted that

administrative Order/Circular cannot apply retrospectively.       It is further

submitted that the petitioner’s services were not terminated at the time of

issuance of circular and she continued in services. Learned counsel for the

petitioner relied upon the decision of this Court in Swati Satish Nazare Vs.

State of Maharashtra & Ors.1.

6.        Mr. Khaitan, learned counsel appearing for the respondent-

Corporation, on the other hand, supported the impugned Order.             It is

submitted that the Committee’s Order dated 23rd March, 2021 is a

complete answer to the petitioner’s contentions inasmuch as the Circular

clearly provided that after June, 1993 there cannot be any appointment

made of Special Teacher. It is submitted that the case of the petitioner is in

the teeth of the GR dated 4th September, 1996. In any case, it is submitted

that the petitioner is working on part-time basis in one of the schools and

therefore cannot claim appointment on full time basis.

7.        Heard learned counsel for the petitioner.

8.        It is not in dispute that the petitioner was appointed against the

clear vacancy.         The petitioner had the necessary qualifications for

1    2019 (2) AIR Bom R 803

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appointment to the said post as per Clause 2 of Schedule ‘B’ of the

Maharashtra Employees of Private Schools (Conditions of Service)

Regulation Act, 1977 as it existed prior to the 2017 amendment. The

petitioner is, for the last 31 years, continuously working as a part-time

teacher in respondent-school. There is no dispute as regards this fact and

even the learned counsel for the management supports the stand of the

petitioner that the petitioner is continuously working as a part-time teacher

for the last 31 years. It is the stand of the management that the same was

done after following due procedure. There is really no dispute about the

fact that the petitioner was appointed on a clear vacancy and after

following the due procedure.

9.     Learned counsel for the petitioner relied upon the decision of this

Court in Swati Satish Nazare (supra). It would be pertinent to refer to the

relevant observations, which in our opinion squarely cover the case of the

present petitioner.

       “19. Let us now deal with the objection of the learned Counsel for
       the Corporation that as the appointment of the petitioner was after
       June 1993, her appointment being not in conformity with the G.R.
       dated 04/09/1996, approval is rightly rejected. A plain reading of
       G.R. dated 04/09/1996 would reveal that Special Teachers are not
       allowed with effect from June 1993 as of policy in accordance with
       the State Government's new education policy. The School
       Management was therefore informed not to appoint a Special


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       teacher either a full time or part time basis in their Schools. The G.R
       is dated 04/09/1996. Admittedly, the information is passed on to
       the Schools regarding the policy only after 04/09/1996. It is not
       even the case of respondent Corporation that the Schools were
       aware about the applicability of the State Government policy. It is
       only after 04/09/1996 that Schools were informed about the State
       Government's new educational policy not to appoint Special Teacher
       from June 1993. The respondent No.2 is not justified in giving
       retrospective effect to the G.R.dated 04/09/1996.
       20.   We find that after following the prescribed procedure and
       upon issuance of advertisement, the petitioner was duly selected as
       a Drawing Teacher. The petitioner was appointed as a Drawing
       Teacher on permanent basis prior to the issuance of circular dated
       04/09/1996. The regular salary as per pay-scale prescribed under
       the Rules for Drawing Teacher was paid to the petitioner by
       respondent No.3-School. Respondent No.3-School started receiving
       grant-in-aid from 2010 and was in receipt of 100% grant-in-aid from
       the academic year 2014.”

10.    The petitioner was admittedly appointed on 20th September, 1995

and the said Circular was issued on 4 th September, 1996. As held in Swati

Satish Nazare (supra), the Circular dated 4th September, 1996 cannot apply

retrospectively. The impugned Order passed by the Grievance Redressal

Committee dated 23rd March, 2021 as well as that of the Dy. Director are

therefore quashed and set aside.

11.    The petitioner’s services as a part-time teacher have been approved

all throughout. It is submitted by the learned counsel for the petitioner as

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well as the learned counsel for the management that there are two schools

in the same premises where the petitioner is presently working as a part-

time teacher.    Learned counsel for the petitioner submitted that the

petitioner’s case for appointment as a full time teacher could be considered

by clubbing these two posts of part-time teachers. It is submitted that the

boys school is running during the morning shift whereas the girls school is

running during the afternoon shift.       Both the schools are run by the

respondent No.1-Trust in the same premises.

12.    In such view of the matter, in the facts of the case, in our view there

should be no difficulty in clubbing these part-time teachers’ posts for giving

the benefits of a full time teacher’s post to the petitioner. The petitioner

has been working on part-time basis for the last 31 years.           Even the

management is ready to appoint the petitioner on a full time basis by

clubbing these two posts.     There is substance in the contention of the

learned counsel for the petitioner and the fact that the petitioner has been

working for the past 31 years on part-time basis needs to be considered

favourably, more so when there is another post of part-time teacher

available in the same premises where two schools are functioning in two

different shifts. Accordingly, we direct that, so far as the petitioner’s part-

time services are concerned and which has been approved, the same are

now protected and the petitioner is thus entitled to all the benefits arising



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from such part-time services, as we have held that the petitioner’s services

cannot be covered by GR dated 4th September, 1996. Now that we have

held that the Circular dated 4th September, 1996 is not applicable to the

petitioner, the management to forward the proposal for absorption of the

petitioner on a full time basis by clubbing the two part time teachers posts

in the aforesaid terms to the Education Officer of the Mumbai Municipal

Corporation, within a period of four weeks from the date of

communication of this Order. Within a period of four weeks from the

receipt of the proposal, the Education Officer, Mumbai Municipal

Corporation to consider the proposal for absorbing the petitioner as a full

time teacher by clubbing the two posts and communicate the decision to all

concerned.

13.    The Petition is, accordingly, disposed of.



(S. M. MODAK, J.)                                        (M. S. KARNIK, J.)




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