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2006 DIGILAW 1248 (BOM)

YADAV GANPAT BHAMARE v. STATE OF MAHARASHTRA

2006-08-14

A.P.DESHPANDE, RANJANA DESAI

body2006
JUDGMENT SMT. RANJANA DESAI, J. : - In this petition filed under Article 226 the Constitution of India, the petitioner has prayed for a direction to the respondents to sanction and reimburse medical expenditure bills to the tune Rs. 1,53,000/ - incurred by the petitioner for undergoing Angiography on 23 -1 -1997 and By -pass surgery operation on 31 -12 -1997 in Poona Medic Foundations, Ruby Hall Clinic. 2. It is necessary to give a gist of the facts as stated in the petition. T petitioner had obtained degree in B.Sc. (Agri.) and B. Ed. He was appointed Asstt. Teacher with effect from 12 -6 -1972 in K. B. High School Chinchwa Taluka Peth, District Nashik. He was transferred as Headmaster in Post Basi Ashram School (Secondary) Chinchwad, Taluka Peth by order dated 15 -7 -197 According to the petitioner the said school is receiving grant of the 1 respondent State of Maharashtra. 3. It is the case of the petitioner that he discharged his duties Headmaster in Chinchwad school upto 1979 and thereafter he was transferred Headmaster to Post Basic Ashram School Manur, Taluka Kalwant, Distri Nashik where he worked till 1987. The petitioner was thereafter transferred Post Basic Ashram School at Pandane Taluka Dindori, District Nashik. 4. The petition is filed in May, 1999. It is stated in the petition that t petitioner was due to retire on 28th December, 2000. The petitioner h obviously retired from service by now. 5. According to the petitioner he was advised to undergo Angiography accordingly on 23 -12 -1997 he underwent Angiography in Poona Medic Foundations, Ruby Hall Clinic and the petitioner was operated for By -pa surgery at the same hospital on 31 -12 -1997. The petitioner was discharged fro the said hospital on 16 -1 -1998. He was advised bed rest till the end of April, 1998. The petitioner incurred expenditure to the tune of Rs. 1,53,000/ - toward Angiography and By -pass surgery. 6. According to the petitioner in the meantime the school committee Post Basic Ashram School Pandane passed a Resolution on 28 -12 -19 recommending the submission of the petitioners medical bills to the tune Rs. 1,20,000/ - to the State Government for sanction. 7. 1,53,000/ - toward Angiography and By -pass surgery. 6. According to the petitioner in the meantime the school committee Post Basic Ashram School Pandane passed a Resolution on 28 -12 -19 recommending the submission of the petitioners medical bills to the tune Rs. 1,20,000/ - to the State Government for sanction. 7. From the annexures to the petition it is evident that letter dated January, 1998 was sent by the Principal of the Post Basic Ashram Sch, Pandane to the Project Officer Ekatrnik Adivasi Vikas Prakalp Nashik requesti payment towards medical expenses of the petitioner. The said officer by his let dated 6 -1 -1998 forwarded a copy of letter dated 18 -3 -1996 of Additional Commissioner Tribal Division, Nashik, to the effect that the employees of aid Ashram School Post Basic Ashram Schools are not entitled to reimbursement medical expenditure bills. It was, however, conveyed to the Principal that petitioners proposal was under consideration. 8. Another letter dated 18 -3 -1996 was also enclosed to the said letter dated 6 -1 -1998. It was addressed on behalf of Adivasi Vikas Nashik to Project Office Nashik stating that Government Resolution dated 12 -3 -1989 does not co Ashram Schools of Tribal Development Department and, therefore, employees of Ashram Schools/Post Basic Ashram Schools are not entitled to reimbursement of medical expenditure bills. 9. The petitioner then made a representation dated 30 -4 -1998 to the Secretary Tribal Development Department, Government of Maharashtra, requesting for reimbursement of medical expenses. The petitioner has addressed several letters to various authorities requesting for reimbursement. However, the said authorities have not responded to the petitioners letters. The petitioner has, therefore, approached this Court. 10. We have heard Mr. Ketkar, the learned counsel appearing for the petitioner at some length. Mr. Ketkar contended that there is no distinction between the employees of the Ashram Schools/Post Basic Ashram Schools and employees of Secondary Schools. He submitted that both are governed by the same terms and conditions and in fact their services are transferable inter se. He pointed out that in the year 1993, the petitioners medical bills were reimbursed as a special case. He submitted that there is no reason for the authorities to now contend that the petitioner being an employee of Post Basic Ashram School is not entitled to reimbursement. He pointed out that in the year 1993, the petitioners medical bills were reimbursed as a special case. He submitted that there is no reason for the authorities to now contend that the petitioner being an employee of Post Basic Ashram School is not entitled to reimbursement. He pointed out that employees of Post Basic Ashram School are entitled to dearness allowance as is admissible to the Secondary School staff and the same pension scheme is applicable to the employees of Ashram Schools and the Secondary Schools. 11. Mr. Ketkar placing reliance on the Government Resolution dated 21 -51989 has pointed out that clause 2 of the said resolution extends all the benefits enjoyed there -before by the State Government employees, Zilla Parishad employees, Senior College and University employees, in regard to the availing of medical treatment in Government Hospitals and Hospitals recognized / approved by the State Government so also the benefit of reimbursement of medical expenses, to the employees working in the recognized and aided primary schools, secondary and higher secondary schools, colleges of education, schools imparting technical education, administered by Private Managements. The benefits and medical facilities are extended with effect from the date of the G.R. viz. Government Resolution dated 21 -5 -1989. It is then contended that the petitioner is admittedly a teacher working in a Post Basic Ashram School which has been held to be a Private School (secondary school), by this Court, to which the provisions of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 ("M.E.P.S. Act" for short) apply. If this is the position, then the petitioner is entitled to all the benefits extended by Government Resolution dated 21 -5 -1989. 12. Elaborating the submission, in the first place it is canvassed that employees working in Post Basic Ashram School are very much covered by the Government Resolution dated 21 -5 -1989 and hence the petitioner is entitled to the facilities of medical treatment and reimbursement. It is alternatively submitted that if it is held that the petitioner is not entitled to the benefit extended by the said Government Resolution dated 21 -5 -1989, then the Government Resolution to the extent it excludes the employees of Post Basic Ashram School, is bad in law, being in violation of the equality clause enshrined in Article 14 of the Constitution of India. It is submitted that there is no intelligible differentia between the class which has been extended the benefit and the class which is sought to be excluded from the benefits. It is pointed out that all the service conditions which are applicable to employees working in private schools administered by private managements are applicable to the employees working in Post Basic Ashram Schools and hence denial of one of the service conditions, which is dealt with by Government Resolution dated 21 -5 -1989 in regard to extending the benefits of medical treatment and reimbursement of medical expenses would violate Article 14 of the Constitution of India. He submits that the rules uniformly regulate all other service conditions including qualifications for appointment, pay scale and allowances, mode of payment of salary, seniority, leave and vacation, age of superannuation, work load, duties and code of conduct so also the provision in regard to pension of the employees of the Private Schools which includes the employees working in a Post Basic Ashram School. It is thus contended that there is no reason to exclude the employees of Post Basic Ashram School from the facility of medical treatment and medical reimbursement. 13. Lastly it is submitted that there is no rational nexus with the object sought to be achieved by the Government Resolution dated 21 -5 -1989 in denying medical treatment and medical reimbursement to the employees of the Post Basic Ashram Schools. It is submitted that if the Government Resolution dated 21 -51989 is read so as to exclude its applicability to the employees working in Post Basic Ashram School the said exclusion will be bad in law and violative of Article 14 of the Constitution of India. 14. Mr. Ketkar drew our attention to Government Resolution dated 28 -9 -1999 which inter alia states that the Government has now decided to make medical facilities which are available to teaching and non -teaching employees of recognised and aided Private, Primary, Secondary and Higher Secondary Schools available to recognised aided Ashram Schools and Post Basic Ashram Schools full time teaching and non -teaching employees prospectively i.e. from the date of the said resolution. Mr. Ketkar contended that there is absolutely no reason to make the said benefit prospective when Post Basic Ashram Schools have always been on par with the other schools mentioned in the said resolution. Mr. Ketkar contended that there is absolutely no reason to make the said benefit prospective when Post Basic Ashram Schools have always been on par with the other schools mentioned in the said resolution. Denying the said benefit to the petitioner, argues Mr. Ketkar, is arbitrary and discriminatory. 15. Mr. Ketkar contended that the Full Bench decision of this Court in Suryakant Sheshrao Panchai vs. Vasantrao Naik Vimukta Jati, Bhatakya Iamati Aadarsh Prasarak Mandai and ors., 2002 (3) Mh.L.I. (FB) 659 and the Division Bench decision of this Court in Muriidhar Narayan Nangare vs. State of Maharashtra and ors., 2003 (1) Mh.L.J. 992 put any doubts about the petitioners entitlement to rest. 16. The learned AGP Shri Sonpal on the other hand took us to the affidavit of Shri Gopal Tungar, Under Secretary Tribal Development Department and contended that Post Basic Ashram Schools and the Secondary Schools are governed by different rules. Ashram schools are under the Tribal Development department whereas Secondary Schools are under the Education Department. H submitted that Resolution dated 12 -5 -1989 is passed by the Education Department and it does not extend the benefit of the medical reimbursement to the teaching and non -teaching employees of the Adivasi Ashram School receiving grant -in -aid from the Tribal Department. He submitted that in the circumstances the petitioner is not entitled to medical reimbursement. 17. As the legislature thought it expedient to regulate the recruitment and conditions of service of the employees working in certain private schools in the State it enacted the M.E.P.S. Act with a view to providing such employees security and stability of service to enable them to discharge their duties towards the pupils and their guardian in particular and the institution and society in general, effectively and efficiently. 18. Section 3(1) lays down that the provisions of this M.E.P.S. Act shall apply to private schools in the State of Maharashtra whether receiving grant in aid from the State Government or not. Section 2(20) defines private school thus; "Private School means a recognized school established or administered by a Management other than the Government or a local authority". 19. In Suryakant Panchal vs. Vasantrao Naik Vimukta Jati Bhatkya Jamati Adarsh Prasarak Mandal and ors., 2002 (3) Mh.L.J. 659 , a Full Bench of this Court was considering whether the employees of Ashram Schools have remedy of appeal under section 9 of the M.E.P.S. Act. 19. In Suryakant Panchal vs. Vasantrao Naik Vimukta Jati Bhatkya Jamati Adarsh Prasarak Mandal and ors., 2002 (3) Mh.L.J. 659 , a Full Bench of this Court was considering whether the employees of Ashram Schools have remedy of appeal under section 9 of the M.E.P.S. Act. The Full Bench traced the history of the Ashram Schools. It was observed that the State Government came out with the policy of encouraging Ashram Schools to be started by the private management as fully aided primary schools with the permission either of the Deputy Director of Social Welfare or the Deputy Director of Tribal Development as the case may be. The Full Bench noted that looking to the growing needs of education beyond primary level, the State Government revised its policy and allowed Post Basic Ashram Schools to be started by the private managements as aided schools. The Full Bench quoted the definition of the term recognised as found in section 2(21) of the MEPS Act which states that recognised means recognised by the Director, the Divisional Board or the State Board or by any officer authorised by him or by any such Boards. The Full Bench observed that an Ashram School running classes from 1st to 10th Standard would requires recognition from any of the authorities as specified in section 2(21) of the MEPS Act and would fall within the ambit of the term "private school" as defined in section 2(20) of the MEPS Act. 20. We must also refer to Murlidharans case (supra). In that case the petitioner had worked in Abhinava Kala Mahavidyalaya. It was an art school. It was a private but aided institution. This Court found that the said school was covered by the definition of "school" as found in section 2(24) of the MEPS Act. The question was whether pensionary benefits available to any aided private school, should be made available to the employees of the said school. This Court held that all benefits which are otherwise available to employees, who had served in any aided private school, must also be made available to employees of the said school. 21. The question was whether pensionary benefits available to any aided private school, should be made available to the employees of the said school. This Court held that all benefits which are otherwise available to employees, who had served in any aided private school, must also be made available to employees of the said school. 21. In our opinion, in the present case also once it is held that the Post Basic Ashram School is an aided private school covered by the MEPS Act, all benefits which are otherwise available to teaching and non -teaching staff of recognised, aided private schools must be made available to the employees of Post Basic Ashram School. On a plain reading of the Government Resolution dated 21 -5 -1989 it is clear that the facilities and benefits extended thereunder are in fact extended to the members of teaching and non -teaching staff working in private schools, recognized and admitted to grants, from the state exchequer. As the Full Bench judgment holds that the employees working in Post Basic Ashram School are covered by the definition of private school the petitioner is very much entitled to the benefits/facilities extended by the Government Resolution dated 21 -5 -1989. 22. In fact number of resolutions issued by the Government of Maharashtra indicate that it has always treated Post Basic Ashram Schools on par with other aided schools. In this connection, it is necessary to note that Education Department of the Government of Maharashtra vide its letter dated 9 -12 -1974 bearing No. ASC -2174 -100025 issued a clarification that dearness allowance admissible to teachers employed in Secondary Schools is also admissible on par to teachers employed in Post Basic Ashram Schools. 23. It is also necessary to note that the Government of Maharashtra issued a Resolution on 14 -2 -1978 clarifying that the sanctioned pension scheme should be made applicable to the teaching and non -teaching staff of the Post Basic Ashram Schools with immediate effect by passing a resolution. Accordingly with the concurrence of the Education Department and the Finance Department, the Zonal Welfare, Cultural Affairs, Sports and Tourism Department of the Govt. of Maharashtra issued a Resolution dated 19 -1 -2/77 bearing No. 2370/EXP -5 to that effect. 24. Accordingly with the concurrence of the Education Department and the Finance Department, the Zonal Welfare, Cultural Affairs, Sports and Tourism Department of the Govt. of Maharashtra issued a Resolution dated 19 -1 -2/77 bearing No. 2370/EXP -5 to that effect. 24. Demand of employees of Post Basic Ashram Schools that their salaries should be paid through the Bank as in the case of non -aided Secondary Schools was conceded by the Government by passing a resolution dated 23 -4 -1979 to the effect that the scheme of payment of salary through the Bank as sanctioned under the Government Resolution, Education Department No. SSW/1867/76142 -G dated 29 -5 -1973 should be made applicable to the teaching and non -teaching staff of aided Post Basic Ashram Schools with effect from 1 -6 -1979. 25. The payscales recommended by Bhole Commission was made applicable to teaching and non -teaching staff in all the schools of the State Government. However, the teaching and non -teaching staff of aided Post Basic Ashram Schools was given its benefit from 1 -6 -1979. It appears that grievance made by them was upheld by this Court. Government of Maharashtra then issued resolution dated 1 -12 -1987 making the pay scale applicable to them with effect from 1 -6 -1976. 26. In accordance with the provisions of the Maharashtra Civil Services. (Medical Case) Rules 1961, the Government of Maharashtra passed a resolution on 21 -5 -1989 to the effect that facilities of reimbursement of medical reimbursement should be made available to recognised and aided Private Primary Schools, Secondary, Higher Secondary Schools, Teaching Colleges and Technical Schools from the date of the resolution i.e. 21 -5 -1989. When the petitioner underwent angiography on 23 -1 -2/97 and was operated upon for Bypass surgery on 31 -12 -1997 the school committee of the Post Basic Ashram School at Pandane recommended the petitioners case for medical reimbursement and correspondence was made with the State Government in that behalf. The State Government surprisingly took a stand that its resolution dated 21 -5 -1989 does not cover Ashram Schools of Tribal Development Department and, therefore, employees of Ashram Schools/Post Basic Ashram School are not entitled to medical reimbursement. 27. We find this stand of the State Government totally untenable. The State Government surprisingly took a stand that its resolution dated 21 -5 -1989 does not cover Ashram Schools of Tribal Development Department and, therefore, employees of Ashram Schools/Post Basic Ashram School are not entitled to medical reimbursement. 27. We find this stand of the State Government totally untenable. We have already referred to the Full Bench decision of this Court in Suryakant Panchals case (supra) where the Full Bench has observed that the State Government has revised its policy and allowed Post Basic Ashram Schools to be started by private management as aided schools and they are covered by the definition of the term private school as found in section 2(20) of the MEPS Act. Once Post Basic Ashram Schools are held to be private schools covered by the MEPS Act they would be covered by Government Resolution dated 12 -5 -1989 which makes medical reimbursement available to teaching and non -teaching staff of recognised and aided private schools. Such a view is in tune with the Full Bench decision and also with the decision of this Court in Murlidhars case (supra). It is also in tune with several government resolutions to which we have made reference hereinabove. In the circumstances the petitioner cannot be denied medical reimbursement. We are informed that medical reimbursement is now made available to teaching and non -teaching staff of recognised aided Post Basic Ashram Schools from 28 -9 -1999. We do not find any valid reason why persons like the petitioner who have suffered ailment prior to 28 -9 -1999 should be denied the benefit of medical reimbursement, if for that ailment Medical reimbursement is allowed. The entire approach of the State Government is discriminatory. We, therefore, hold that teaching and non -teaching staff of Post Basic Ashram School is entitled to medical reimbursement. They are covered by the Government Resolution dated 12 -5 -1989. The petitioner is, therefore, entitled to medical reimbursement. 28. We, therefore, direct the State Government to forthwith sanction and reimburse medical expenditure bills of the petitioner to the tune of Rs. 1,53,000/ - incurred by the petitioner for undergoing Angiography on 23 -12 -1997 and Bypass Surgery operation on 31 -12 -1997 in Poona Medical Foundations Ruby Hall Clinic. 29. The petition is disposed of in the afore stated terms. Order accordingly.