Bombay High Court
Swati Shivaji Lawhare vs The State Of Maharashtra And Others on 7 May, 2021
Equivalent citations: AIRONLINE 2021 BOM 1092
Author: M.G. Sewlikar
Bench: Ujjal Bhuyan, M.G. Sewlikar
(1) wp 940.18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 940 OF 2018
Swati Shivaji Lawhare,
Age 30 years, Occu. Service as
Cook, R/o Sane Guruji Residential
Secondary School, Kaij, Taluka Kaij,
District Beed. ... Petitioner
Versus
1. State of Maharashtra
Through its Secretary,
Department of Social Justice &
Special Assistance
Mantralaya, Mumbai - 400 032.
2. Director, Vimukta Jatis,
O.B.C. & Special Backward Classes,
Welfare, 3, Church Road, Pune.
3. Regional Deputy Commissioner,
Social Welfare,
Aurangabad Division, Aurangabad.
4. Special District Social Welfare
Officer, Beed.
5. President,
Us-tod Kamgar Vikas Mandal,
Beed, District Beed.
6. Head Master,
Sane Guruji Residential
Secondary School, Kaij,
Tq. Kaij, District Beed. ... Respondents
::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:14 :::
(2) wp 940.18
...
Advocate for Applicant : Mr. Sachin S. Deshmukh
APP for Respondents/State : Mr. P.N. Kutti
...
CORAM : UJJAL BHUYAN &
M.G. SEWLIKAR, JJ.
RESERVED ON : 05.04.2021
PRONOUNCED ON : 07.05.2021
JUDGMENT :(Per: M.G. Sewlikar, J.) Rule. Rule made returnable forthwith. With the consent of the parties, taken up for final hearing at the admission stage.
2. By this petition under Article 226 of the Constitution of India, petitioner has challenged the order dated 28 th December, 2017 by which the proposal dated 20th June, 2014 submitted by responent nos.5 and 6 for according approval to the post of the petitioner as a Cook has been rejected by respondent no.3-Regional Deputy Commissioner Social Welfare, Aurangabad.
3. Factual matrix leading to this petition is as under:
Respondent no.6 runs Sane Guruji Secondary School, Taluka Kaij, District Beed. Initially the school had classes from 1 st to 7th standard.
Permission for 8th standard was granted from the academic year 2012-2013 vide resolutions dated 2nd August, 2008 and 28th August, 2012. Accordingly, ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:14 ::: (3) wp 940.18 by Government resolution dated 14th February, 2006 one post of Cook was sanctioned. Vide corrigendum dated 24 th March, 2006 and resolution dated 14th February, 2006 it was modified and post of Cook was created for 9 th standard as well. By the resolution dated 14th February, 2006 post of one Cook was made admissible for every forty students. Thus, since 14 th February, 2006 and corrigendum dated 24th March, 2006, there were two sanctioned posts of Cook.
For filling up second post of Cook, school management issued an advertisement on 17th May, 2012 inviting applications for various posts including the post of Cook. Petitioner made an application for the post of Cook whereafter he was selected. Accordingly, order of appointment of petitioner was issued on 20th June, 2012. Respondent authorities accorded approval to the services of the petitioner in the pay scale of Rs.4400-7400 with grade pay of Rs.1600 for two academic years on probation.
Respondent no.6 submitted proposal dated 21.06.2015 to the office of Assistant Commissioner Social Welfare. Additional Commissioner Social Welfare forwarded the proposal of respondent no.6 dated 21 st June, 2015 recommending approval to the post of petitioner as Cook vide communication dated 30th May, 2017. The said proposal was turned down by the respondent ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:14 ::: (4) wp 940.18 no.3-Regional Deputy Commissioner Social Welfare, Aurangabad by order dated 28th December, 2017, only on one ground that post of second Cook was not sanctioned. On the basis of this order, respondent no.6 issued a show cause notice to petitioner calling upon him to explain as to why his services should not be terminated. This show cause notice dated 04 th January, 2018 was served upon the petitioner on 06 th January, 2018. These two orders i.e. the order of respondent no.3 dated 28 th December, 2017 and 04th January, 2018 are impugned in this writ petition.
4. Respondent no.3 has filed affidavit in reply. Respondent no.3 has contended that post of second Cook was not sanctioned. Therefore, appointment of petitioner is not against a sanctioned post. Respondent no.3 has further contended that petitioner has an alternate efficacious remedy of appeal created by Government resolution dated 03 rd August, 2017. On these two counts, respondent no.3 has sought rejection of the writ petition.
5. Respondent nos.1 to 4 have filed their affidavit in reply contending that by virtue of Government resolution dated 14 th February, 2006 one post of Cook was created for 8 th standard and by corrigendum dated 24 th March, 2006, resolution dated 14 th February, 2006 was made applicable to both 8th and 9th standards. Respondent nos.1 to 4 contended that by ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:14 ::: (5) wp 940.18 Government resolution dated 30 th June, 2006 out of two sanctioned post, one post was converted from Cook to Helper. Therefore, sanctioned post of Cook was only one. Appointment of petitioner was, therefore, not against the sanctioned post. Respondent nos.1 to 4 contended that Assistant Commissioner Social Welfare and the school management by active connivance got sanctioned incorrect staffing pattern which shows that two posts of Cook were sanctioned. In fact only one post of Cook was sanctioned. Therefore, appointment of petitioner is not against the sanctioned post. Respondent no.4 also contended that petitioner has an alternate efficacious remedy of appeal. For these reasons, writ petition is not maintainable.
6. Heard Shri Sachin S. Deshmukh learned counsel for the petitioner, Shri P.N. Kutti, learned AGP for the respondent-State.
7. Shri Deshmukh submitted that by resolution dated 14 th February, 2006 one post of Cook was admissible for 8 th standard. According to the said resolution one post of Cook is sanctioned for every forty students. He submitted that by corrigendum dated 24 th March, 2006 resolution dated 14th February, 2006 was made applicable to the 9th standard as well. Special District Social Welfare Officer, Beed has communicated respondent no.5 that sanctioned posts for Cook are two and therefore appointment of petitioner ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:14 ::: (6) wp 940.18 was made by respondent no.6. He further submitted that resolution dated 30th June, 2006 is applicable only to 10 th standard. He submitted that on the basis of the communication dated 19 th September, 2012, two posts were sanctioned for respondent no.6-school and therefore second post was filled. He submitted that appointment of petitioner was therefore against sanctioned post. He further submitted that appeal is not a forum created by statute but it is created by an executive order which is impermissible. For this purpose he placed reliance on the cases of U.P. Bhoodan Yagna Samiti, U.P. V/s. Braj Kishore and Others; (1988) 4 Supreme Court Cases 274, Secretary, A.P.D. Jain Pathshala V/s. Shivaji Bhagwat More and Others; (2011) 13 Supreme Court Cases 99 and Devi Multiplex and Another V/s. State of Gujarat and Others; (2015) 9 Supreme Court Cases 132.
8. Shri Kutti submitted that Assistant Commissioner Social Welfare, Beed made a mistake by sanctioning two posts of Cook vide communication dated 19th September, 2012. He submitted that by Government resolution dated 30th June, 2006, one post of Cook was converted into the post of Helper. Without considering resolution dated 30 th June, 2006, Assistant Commissioner Social Welfare issued order dated 19th September, 2012 mentioning therein that sanctioned post of Cook were two. He submitted that an inquiry has also been initiated against said Assistant Commissioner Social Welfare, Beed. He ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:14 ::: (7) wp 940.18 submitted that when no second post was available, advertisement was issued for second post of Cook which cannot be permitted. He further submitted that efficacious remedy of appeal is provided by Government resolution dated 03 rd October, 2017. Without exhausting remedy of appeal, writ petition is not maintainable. He, therefore, prayed for dismissal of the writ petition.
9. We have carefully considered the submissions of both the parties.
10. It is not in dispute that on 02nd August, 2012 a Government resolution was passed sanctioning 8th standard to respondent no.6-school and vide communication dated 28th August, 2012 classes of Standard 9 th and 10th were granted since 29th August, 2011 on account of natural growth.
11. Government resolution dated 14th February, 2006 has sanctioned following staffing pattern for the academic year 2004-2005 for standard 8 th as under:
Two Assistant Teachers in the pay scale of Rs. 5500. One Cook in the pay scale of Rs. 2660 and one Peon in the pay scale of Rs.2550. This resolution further states that for every forty students there would be one post of Cook. This resolution further states that with natural growth of standards, as per Secondary School Code, additional posts would be automatically admissible. Corrigendum dated 24th March, 2006 makes Government ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:14 ::: (8) wp 940.18 resolution dated 14th February, 2006 applicable to both 8 th and 9th standards and sanctioned staffing pattern was as under:
Year Class Teacher Clerk Laboratory Servant Cook Helper Kamati Attendant 2004-05 8th std 2 1 1 1 1 - -
2005-06 9th std 1 - - 1 1 - -
Total 3 1 1 2 2 - -
11.1. Thus Government resolution dated 14th February, 2006 and corrigendum dated 24th March, 2006 clearly indicate that for 8th standard one post of Cook was sanctioned and for 9 th standard also one post of Cook was sanctioned. Thus, in the school of respondent no.6 two posts of Cook were sanctioned. One post of Cook was earlier filled in. Second post of Cook was filled in by appointing petitioner vide appointment order dated 20 th June, 2012. No dispute seems to have arisen till this date i.e. 20th June, 2012.
12. The communication dated 19th September, 2012 by Special District Social Welfare Officer, Beed shows that post of two Cooks were sanctioned. The strength of students according to this communication for the year 2012-2013 was shown as under:
::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:14 :::
(9) wp 940.18
Sr.No. Class Year 2012-2013
Sanctioned divisions Students
strength
1. 8th std 1 54
2. 9 std
th
2 44
3. 10th std 1 42
Total 1 140
This communication further shows that for the years 2011-12 and 2012-
13, two posts of Cook were shown to have been sanctioned.
13. On 30th June, 2006 Government passed another resolution mentioning therein that staffing pattern was sanctioned for 8 th and 9th standard since the academic year 2004-2005 for secondary schools and since the academic year 2006-2007, because of natural growth 10 th standard was sanctioned and staffing pattern was sanctioned. This resolution dated 30 th June, 2006 further states that out of two sanctioned posts one post of Cook was converted into Helper.
14. Thus, the position that emerges is that by resolution dated 14 th February, 2006 and corrigendum dated 24 th March, 2006 one post of Cook was sanctioned for 8th standard and one post of Cook was sanctioned for 9 th standard. Thus, there were two sanctioned posts of Cook. By resolution dated 30th June, 2006 one post of Cook was converted into Helper. However, ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:14 ::: ( 10 ) wp 940.18 by communication dated 19th September, 2012 staffing pattern was communicated to respondent nos.5 and 6 in which two posts of Cook were shown to have been sanctioned. This position seems to have been admitted by the State also. The letter addressed to Assistant Government Pleader (AGP) dated 24th April, 2019 by Deputy Director, Social Welfare, Aurangabad is placed on record by the learned AGP. This letter shows that for the years 2011-12 and 2012-13 two posts of Cook were sanctioned. It is pertinent to note that petitioner was appointed as a Cook by following the due procedure by respondent nos.5 and 6. Vide communication dated 19 th September, 2012 Special District Social Welfare Officer accorded approval to the appointment of the petitioner and she was kept on probation for a period of two years. Thereafter. on 21st June, 2015 proposal for making petitioner permanent was forwarded to Assistant Commissioner Social Welfare. This proposal was forwarded by Assistant Commissioner Social Welfare, Beed to Regional Deputy Commissioner Social Welfare, Aurangabad. On 28th December, 2017 proposal of petitioner was rejected citing the reason that the post was not sanctioned.
15. Vide communication dated 19th September, 2012, staffing pattern showed that two posts of Cook were sanctioned. Petitioner completed probation and in the year 2017 approval to the post of petitioner was refused on the ground that post was not sanctioned. Chronology of these events ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:14 ::: ( 11 ) wp 940.18 shows that neither the petitioner nor the management was at fault. State also admits this position. In para 7 of the affidavit in reply dated 3 rd June, 2019, it is stated as under:
"7. I say and submit that, as per vide G.R. dated 30.06.2006 there were already three posts approved and sanctioned in the said school (i.e. Cook, Helper to cook & Kamathi) irrespective of that, the former Assistant Commissioner sanctioned & approved another cook post which is not correct. It is further submitted that, disciplinary action has been taken against the former Assistant Commissioner, Social Welfare, Beed for wrongly sanctioning & approving the post & for interfering in the staffing pattern set by the State."
16. This clearly shows that neither petitioner nor the management was at fault. Therefore, post of petitioner needs to be approved. If respondent no.3 considers that the post was not admissible in that case petitioner can be declared surplus and can be adjusted in the post of Cook wherever vacancy is available.
17. The next contention raised by the learned AGP is that Appellate Forum has been created by Government resolution dated 03 rd October, 2017. The said resolution reads as under:
" jkT;krhy "kklu ekU;rkizkIr "kkldh; vFkok [kktxh vuqnkfur laLFksekQZr pkyfoY;k tk.kk&;k vkJe"kkGk] fuoklh"kkGk] fo|kfudsru ;ke/khy f"k{kd o f"k{kdsrj ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:14 ::: ( 12 ) wp 940.18 deZpkjh loZ izdkjP;k lsokfo'k;d vkf.k brj fo'k;kckchlanHkkZr dks.kR;kgh izdkjph rdzkj] fuosnu o brj ckch fuokj.k dj.;klkBh o R;kyk U;k;kdfjrk nkn ekxrk ;koh] ;kdfjrk l{ke izkf/kdj.kkdMs vihy @ iqufoZyksdu nk[ky dj.;kph rjrwn miyC/k d:u ns.;kr ;sr vkgs- R;keqGs ;k foHkkxakrxZr dk;Zjr vlysY;k "kkluekU; "kkldh; vFkok [kktxh vuqnkfur vkJe"kkGsrhy] fuoklh"kkGsrhy] fo|kfudsrukrhy f"k{kd o f"k{kdsrj deZpk&;akps lsokfo'k;d vkf.k brj dks.kR;kgh rdzkjhaoj nkn ekx.;klkBh R;akuk [kkyhy izkf/kdj.kkdMs vihy @ iqufoZyksdu dj.;kph rjrwn miyC/k d:u ns.;kr ;sr vkgs %& 1- fotkHkt vkJe"kkGk] fuoklh"kkGk vFkok fo|kfudsrukrhy f"k{kd o f"k{kdsrj deZpk&;akoj laLFkk fdaok lacaf/kr izkpk;Z vFkok eq[;k/;kid vFkok laLFksrQsZ fu;qDr izkf/ kdkjh ;akpsdMwu fu;eckg; dkjokbZ >kY;kl v"kk deZpk&;kus izFker% lacaf/kr ftYg;kps l{ke izkf/kdkjh ¼lgk¸;d vk;qDr @ lgk¸;d lapkyd fotkHkt @ ftYgk lektdY;k.k vf/kdkjh½ ;akpsdMs nkn ekxkoh- rlsp v"kkizdkjps fuosnu] rdzkjh fdaok vtZ izkIr >kY;kuarj R;koj lacaf/kr ftYg;kps l{ke v/fkdkjh ¼lgk¸;d vk;qDr @ lgk¸;d lapkyd fotkHkt @ ftYgk lektdY;k.k vf/kdkjh½ ;akuh 30 fnolkps vkr fu.kZ; ?ksowu vkiyk fu.kZ; loZ lacaf/krakuk dGokok- 2- 30 fnolkr fu.kZ; ukgh fnyk rj izknsf"kd milapkyd vFkok mi vk;qDr] fotkHkt] beko o foekiz dY;k.k ;akpsdMs ljy izFke vihy lknj djrk ;sbZy- rlsp tj fu.kZ; fnyk vlsy rj lacaf/kr ftYg;kps l{ke izkf/kdkjh ;akP;k vkns"kkus lacaf/kr f"k{kd&f"k{kdsrj deZpk&;akps @ laLFkkpkyd ;akps lek/kku u >kY;kl R;kl lacaf/kr foHkkxkps izknsf"kd milapkyd vFkok mi vk;qDr] fotkHkt] beko o foekiz dY;k.k ;akpsdMs iq<hy 15 fnolkr izFke vihy nk[ky djkos o izkIr vihykoj lacaf/kr izknsf"kd mi lapkyd vFkok mik;qDr ;akuh 30 fnolkr fu.kZ; |kok- 3- tj 30 fnolkr lacaf/kr izknsf"kd mik;qDr] lekt dY;k.k foHkkx @ milapkyd] fotkHkt] beko o foekiz dY;k.k] ;akuh fu.kZ; fnyk ukgh rj ljG lapkyd] fotkHkt] iq.ks ;akP;kdMs f}rh; vihy d: "kdrhy- rlsp tj osGsoj fu.kZ; fnyk rj izknsf"kd milapkyd @ mi vk;qDr ;akP;k fu.kZ;kP;k vuq'kaxkus ckf/kr >kysY;k f"k{kd&f"k{kdsRrj deZpkjh ;akps lek/kku u >kY;kl R;akuk R;k fu.kZ;kfo:/n lapkyd fotkHkt] beko o foekiz dY;k.k] lapkyuky;] iq.ks ;akpsdMs fu.kZ;kps rkj[ksiklwu 15 fnolakps vkr f}rh; vihy nk[ky dj.;kph rjrwn dj.;kr ;sr vkgs- lapkyd] fotkHkt] beko o foekiz dY;k.k] lapkyuky;] iq.ks ;akuh lnj vihykoj fu;ekuqlkj lquko.kh ?ksmu vihy izkIr >kY;kP;k rkj[ksiklwu 45 fnolkr ;ksX; rh dk;Zokgh d:u vihykoj fu.kZ; ns.ks ca/kudkjd jkghy-::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:14 :::
( 13 ) wp 940.18
4- tj lapkyd] fotkHkt] iq.ks ;akuh 45 fnolkr fu.kZ; fnyk ukgh rj
iqufoZyksdu (Revision) vtZ @ fuosnu foHkkxkps vij eq[; lfpo @ iz/kku lfpo @ lfpo ;akP;kdMs djrk ;sbZy- rlsp lapkyd] fotkHkt] beko o foekiz dY;k.k] lapkyuky;] iq.ks ;akuh f}rh; vfiykoj fnysY;k fu.kZ;kus ckf/kr >kysY;k f"k{kd&f"k{kdsRrj deZpkjh @ laLFkkpkyd ;akps lek/kku u >kY;kl R;akuk R;k fu.kZ;kfo:/n fu.kZ; fnY;kps rkj[ksiklwu 15 fnolakps vkr iqufoZyksdu (Revision) vtZ @ fuosnu "kklukps ;k foHkkxkps lfpo @ iz/kku lfpo @ vij eq[; lfpo ;akpsdMs nk[ky djrk ;sbZy- lnj iqufoZyksdu vfiykoj 3 efgU;kr fu.kZ; ns.;kps vf/kdkj lfpo @ iz/kku lfpo @ vij eq[; lfpo] fotkHkt] beko o foekiz dY;k.k foHkkx] ea=ky;] eqacbZ ;akuk jkgrhy- 5- lfpo @ iz/kku lfpo @ vij eq[; lfpo] fotkHkt] beko o foekiz dY;k.k foHkkx] ea=ky;] eqacbZ ;akuh fnysY;k fu.kZ;kus lacaf/krkps lek/kku u >kY;kl R;k fu.kZ;kfo:/n ;k foHkkxkps ek- ea=h egksn;akdMs iqufuZjh{k.k (Review) lkBh vtZ @ fuosnu djrk ;sbZy o R;akuh ?ksrysyk fu.kZ; varhe vlsy- lacaf/kr f"k{kd&f"k{kdsrj deZpk&;kus R;akuk loZizFke miyC/k d:u fnysY;k O;oLFkspk mi;ksx djkok- rlsp "kD;rks U;k;ky;kr ;kfpdk nk[ky dj.;kiwohZ ojhy uSlfxZd U;k;rRokizek.ks dsysY;k v/kZ U;kf;d Lo:ikP;k rjrqnhpk mi;ksx d:u ?;kok-"
18. This resolution states that if any Teaching or Non-Teaching Staff is aggrieved by the action of school management, such an employee shall prefer appeal to competent authority of the District (Assistant Commissioner / Assistant Director VJNT / District Social Welfare Officer) and these authorities shall decide the applications within thirty days. Clause-2 of the resolution states that if these authorities fail to decide the appeal of such an employee, appeal can be preferred to the Regional Deputy Director or Deputy Commissioner. Clause-3 states if these authorities (mentioned in clause-2) fail ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:14 ::: ( 14 ) wp 940.18 to decide the appeal of such an employee, the employee can prefer second appeal to Director, VJNT, Pune.
19. Clauses 4 and 5 state that if appeal is not decided within forty five days by authorities mentioned in clause-3 revision can be preferred to Chief Secretary or Additional Chief Secretary.
20. The question that arises is whether the appellate forum can be created by such a Government resolution i.e. by executive power.
21. It is well settled that appellate authorities can be created by statute and not by executive power. Tribunals with adjudicatory powers can be created only by statutes and not by executive power or by passing Government resolution. In the case of Secretary, A.P.D. Jain Pathshala cited (supra) almost similar issue had come up before the Hon'ble Apex Court. Facts in this case were that the appellant in this decision of the Hon'ble Apex Court was appointed as Shikshan Sevak on 29 th July, 2000. Services of the appellant were orally terminated on 11 th June, 2001. His termination was challenged by the respondent-Shikshan Sevak before the School Tribunal. This appeal was withdrawn and appeal was made to grievance committee in the year 2004. Grievance committee quashed the termination of the respondent- employee and directed the appellants to reinstate the first respondent- ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:14 :::
( 15 ) wp 940.18 Shikshan Sevak. Appeal was preferred to High Court. The High Court
recommended various modifications to the scheme of grievance committee and issued specific directions making significant changes in the constitution and functioning of the committee. Because of the directions the administrative grievance redressal mechanism was convered into a quasi judicial administrative tribunal. The Hon'ble Apex Court made following observations:
"23. Apart from constitutional provisions, tribunals with adjudicatory powers can be created only by Statutes. Such Tribunals are normally vested with the power to summon witnesses, administer oath, and compel attendance of witnesses and examine them on oath, and receive evidence. Their powers are derived from the statute that created them and they have to function within the limits imposed by such statute. It is possible to achieve the independence associated with a judicial authority only if it is created in terms of the Constitution or a law made by the legislature.
24. Creation, continuance or existence of a judicial authority in a democracy must not depend on the discretion of the executive but should be governed and regulated by appropriate law enacted by a legislature. In this context, it is worthwhile to refer to the following observations of the European Commission of Human Rights in Zand vs. Austria.::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:14 :::
( 16 ) wp 940.18 "The judicial organization in a democratic society must not depend on the discretion of the executive, but should be regulated by law emanating from the Parliament".
25. Article 162 of the Constitution, no doubt, provides that subject to the provisions of the constitution, the executive power of a State shall extend to the matters upon which the legislature of the State has competence to legislate and are not confined to matters over which legislation has been already passed. It is also well settled that so long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power under Article 162 cannot be circumscribed; and if there is no enactment covering a particular aspect, the Government could carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. (See Ram Jawaya Kapur Vs. State of Punjab and Bishamber Dayal Chandra Mohan vs. State of U.P.)
26. But the powers of the State to exercise executive powers on par with the legislative powers of the legislature, is "subject to the provisions of the Constitution". The provisions of the Constitution, namely Articles 233, 234 and 247 for constituting sub-ordinate courts, and Articles 323-A and 323-B for constituting tribunals by law made by the legislature, make it clear that judicial Tribunals shall be created only by statutes or rules framed under authority granted by the Constitution. ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:14 :::
( 17 ) wp 940.18
27. If the power to constitute and create judicial Tribunals by executive orders is recognized, there is every likelihood of Tribunals being created without appropriate provisions in regard to their constitution, functions, powers, appeals, revisions, and enforceability of their orders, leading to chaos and confusion. There is also very real danger of citizen's rights being adversely affected by ad hoc authorities exercising judicial functions, who are not independent or competent to adjudicate disputes and render binding decisions. Therefore, the executive power of the State cannot be extended to creating judicial Tribunals or authorities exercising judicial powers and rendering judicial decisions."
22. These observations make it abundantly clear that tribunals with adjudicatory powers can be created only by statutes and not by executive power. In para 30 the Hon'ble Apex Court recorded following observations:
30. Therefore, we hold that constitution of a Grievance Committee as a public adjudicatory forum, whose decisions are binding on the parties to the disputes, by an executive order of the Government is impermissible. Secondly, the High Court cannot in exercise of judicial power interfere with the jurisdiction of the civil courts vested under Code of Civil Procedure. Any such Grievance Committee created by an executive order, either on the direction of the High Court or otherwise, can only be fact finding bodies or recommending bodies which can look into the grievances and make appropriate ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:14 ::: ( 18 ) wp 940.18 recommendations to the government or its authorities, for taking necessary actions or appropriate reports to enable judicial Tribunals to render decisions.
23. These observations of the Hon'ble Supreme Court clearly spell out that adjudicatory authorities can be created only by statutes and not by an executive order of the Government. If such a course is permitted there is every likelihood of tribunals being created without appropriate provisions in regard to the constitution, functions, powers, appeals, revisions and enforceablity of their orders, leading to chaos and confusion. Rights of employees are likely to be adversely affected by such ad hoc authorities exercising judicial functions, who are not independent nor competent to adjudicate disputes and render binding decisions. Therefore, the executive power of the State cannot be extended to creating judicial tribunals or authorities exercising judicial powers and rendering judicial decisions.
24. For the aforequoted reasons, it cannot be said that remedy of appeal was available to the petitioner. The constitution of these appellate authorities is not by any statute but by executive power by passing resolution which is impermissible in view of judgment of the Hon'ble Apex Court in the case of Secretary, A.P.D. Jain Pathshala cited (supra). ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:14 :::
( 19 ) wp 940.18
25. In view of what is stated herein-above, petitioner was not at fault nor the management was at fault. Therefore, services of petitioner need to be protected. Respondent no.3 shall, therefore, accord approval to the services of the petitioner. If it is found that petitioner was appointed against the post which was not sanctioned she should be declared as surplus and can be adjusted wherever vacancy is available.
26. On these terms Rule is made absolute to the above extent.
[M.G. SEWLIKAR, J.] [UJJAL BHUYAN, J.]
mub
::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:14 :::