The Bombay High Court, Aurangabad Bench, has clarified that absorption of surplus teachers following the derecognition of a grant-in-aid school is not a matter of right under Rule 25-A of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. The Court held that surplus teachers are not entitled to backwages for the period between their declaration as surplus and their absorption in another school, treating this period as dies non. This judgment reinforces the principle that surplus employees are entitled only to inclusion in the waiting list for absorption, without financial compensation for the interim period.
Background & Facts
The Dispute
The petitioners, four Assistant Teachers employed at Bajirao Patil Primary School, Osmanabad (hereinafter referred to as the said school), were declared surplus on 18.09.2019 following the derecognition of their school by the State Government. The school, managed by Respondent No. 5 (Trimurti Magaswargiya Shikshan Prasarak Mandal), was a recognized institution receiving 100% grant-in-aid. The petitioners, who had attained permanent status, were absorbed in other schools after a delay of nearly three years but were denied salary for the interim period.
Key Facts
- The said school had 9 sanctioned posts of Assistant Teachers, but due to a reduction in student strength, 4 teachers were declared surplus.
- The State Government cancelled the recognition of the said school by order dated 16.07.2017, though the order appears to have been signed on 16.07.2019.
- Respondent No. 4 (Education Officer, Zilla Parishad, Osmanabad) intimated the school about its derecognition on 18.09.2019, declaring the petitioners surplus.
- The petitioners were placed on a waiting list of surplus teachers and subsequently absorbed in other schools as follows:
- Balasaheb Manik Bhore: Absorbed on 01.11.2022
- Manesh Atmaram Navale: Absorbed on 17.12.2022
- Rajendra Ramrao Pawar: Absorbed on 01.11.2022
- Mahendra Pandurang Jagtap: Absorbed on --.02.2023
- The petitioners sought payment of salary from September 2019 (date of declaration as surplus) till their absorption in other schools.
Procedural History
- Writ Petition No. 1153 of 2021 filed under Article 226 of the Constitution of India seeking:
- Prayer Clause-B: Absorption in other recognized grant-in-aid schools.
- Prayer Clause-C: Payment of salary from September 2019 till absorption.
- During pendency, the petitioners were absorbed in other schools and began receiving salary from the date of absorption, rendering Prayer Clause-B infructuous.
- The matter was heard at the admission stage with the consent of parties and reserved on 08.06.2026.
Relief Sought
The petitioners sought:
- A writ of mandamus directing Respondents No. 1 to 4 to pay salary from September 2019 till the date of absorption in other schools.
- Continuation of salary payment post-absorption.
The Legal Issue
The central question was whether surplus teachers declared surplus due to derecognition of their school under Rule 25-A of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 are entitled to backwages for the period between their declaration as surplus and their absorption in another school.
Arguments Presented
For the Petitioners
- The petitioners were permanent employees of a recognized grant-in-aid school and were declared surplus due to derecognition, not due to any fault of their own.
- They were absorbed after a delay of nearly three years, during which they were denied salary despite being available for duty.
- They relied on the principle of natural justice and argued that the delay in absorption should not prejudice their financial entitlements.
For the Respondents
- Respondent No. 4 (Zilla Parishad) contended that Rule 25-A(2) of the Rules of 1981 does not entitle surplus teachers to backwages. The rule only provides for inclusion in a waiting list and recommendation for absorption in other schools, without guaranteeing salary for the interim period.
- Cited the judgment in Sayyad Manjur v. State of Maharashtra (Writ Petition No. 1934 of 2017, Aurangabad Bench, decided on 03.10.2022), where the Court held that absorption is not a matter of right and that surplus teachers are not entitled to salary till the date of actual joining.
- Argued that the period between declaration as surplus and absorption is to be treated as dies non (non-working days), for which no salary is payable.
- Relied on the Full Bench decision in Kanhaiyyalal Sonbaji Gajbhiye v. Bhartiya Jagruti Shikshan Sanstha (2020(6) Mh.L.J. 595), which distinguished between closure under Rule 25-A (no backwages) and retrenchment under Rule 26 (entitlement to salary till absorption).
The Court's Analysis
The Court examined the interplay between Rule 25-A of the Rules of 1981 and Rule 91(2) of the Maharashtra Special Schools for Handicapped and Training Centre Code, 2018, which governs the payment of salary to absorbed teachers. The Court observed:
"A plain reading of aforesaid rule depicts that absorption in another school is not a matter of right. Rule 25-A of the Rules of 1981 gives new kind of protection or privilege to permanent employees of aided schools. Sub-rule (2) of Rule 25-A lays down that employees of an aided school who are not directly responsible for de-recognition of the school, have to be included in waiting list by the competent authority, and such wait listed candidates can be recommended to management of newly aided schools or existing schools which are allowed to open new divisions. This rule doesn’t contemplate wait listed employee to be absorbed as a matter of right and therefore there is no question of paying backwages/salary to such an employee till his absorption."
The Court relied on the precedent in Sayyad Manjur v. State of Maharashtra, which held:
"The issue of payment of salary in the light of the provisions of Rule 25A of the Rules of 1981 has been dealt with by this Court in various decisions. [...] If it is closure under Rule 25A, there is no question of payment of any back wages and employee becomes entitled to placement in list of surplus candidates. If it is retrenchment under Rule 26, there can be no termination and respondent no.1 continues to earn salary every month till she is absorbed."
The Court further noted that Rule 91(2) of the Code of 2018 explicitly provides that an absorbed teacher shall not be entitled to salary till the date of joining by way of absorption, and the interim period is to be treated as dies non.
The Verdict
The Court dismissed the writ petition, holding that the petitioners are not entitled to arrears of salary for the period between their declaration as surplus (18.09.2019) and their absorption in other schools. The petition was dismissed with no order as to costs, and the rule was discharged.
What This Means For Similar Cases
Absorption Is Not a Matter of Right
- Rule 25-A(2) of the Rules of 1981 does not guarantee absorption as a right. It only mandates inclusion in a waiting list and recommendation for absorption in other schools.
- Surplus teachers cannot claim backwages for the period between declaration as surplus and absorption, as this period is treated as dies non.
Distinction Between Closure and Retrenchment
- Closure under Rule 25-A: No entitlement to backwages. Employees are only entitled to inclusion in the surplus list.
- Retrenchment under Rule 26: Employees continue to earn salary till absorption.
- Practitioners must carefully plead the nature of termination (closure vs. retrenchment) to determine entitlement to backwages.
Compliance with Procedural Safeguards
- Schools and authorities must ensure strict compliance with Rule 25-A(2) while declaring teachers surplus, including:
- Inclusion in the waiting list of surplus candidates.
- Recommendation to managements of newly opened or expanded schools.
- Failure to follow these steps may render the declaration of surplus arbitrary or illegal, potentially entitling affected employees to relief.
Practical Implications for Surplus Employees
- Surplus teachers should proactively follow up with authorities for early absorption, as delays do not entitle them to financial compensation.
- Legal recourse is limited to challenging the procedural validity of the surplus declaration, not the denial of backwages.
- Employees may explore alternative remedies, such as seeking directions for expedited absorption, but cannot claim salary for the dies non period.
