Bombay High Court
Akhil Bhartiya Gurudeo Sewa & Anor vs Addil. Commissioner Tribal Devlp. &3 ... on 16 August, 2018
Author: R.K. Deshpande
Bench: R.K. Deshpande
wp5767.07.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.5767/2007
PETITIONERS: 1. Akhil Bhartiya Shri Gurudeo Sewa
Mandal, through its Sarwadhikari,
Gurukunj Ashram, Mozri, Tal. Teosa,
Amravati, Dist. Amravati.
2. Janardan Bothe, Secretary Akhil
Bhartiya Shri Gurudeo Sewa Mandal,
Gurukunj Mozri, Tal. Teosa,
Amravati, Dist. Amravati.
...VERSUS...
RESPONDENTS: 1. Additional Commissioner Tribal Development,
Teosa, Amravati, Dist. Amravati.
2. Vasundhara Keshavrao Gulane
(Sau. Vasundhara w/o Arun Dehankar),
Aged about 44 Yrs., Occu. Service,
R/o Chandapur, Post - Talani, Tal. Ghatanji,
Dist. Yavatmal.
3. Arun s/o Namdeo Dehankar,
Aged about 51 Yrs., Occu. Service,
R/o Chandapur, Post - Talani,
Tahl. Ghatanji, Dist. Yavatmal.
4. Project Officer,
Ekatmik Adiwasi Vikas Prakalpa,
Pandharkawda, Tal. Kelapur,
Dist. Yavatmal.
-----------------------------------------------------------------------------------------------------
Shri R.S. Parsodkar, Counsel for petitioners
Shri H.R. Dhumale, AGP for respondent nos.1 and 4
Ms D.V. Sapkal, Counsel for respondent nos.2 and 3
-----------------------------------------------------------------------------------------------------
::: Uploaded on - 23/08/2018 ::: Downloaded on - 25/08/2018 00:30:28 :::
wp5767.07.odt
2
CORAM : R.K. DESHPANDE AND
ARUN D. UPADHYE, JJ.
DATE : 16/08/2018
ORAL JUDGMENT (PER : R.K. DESHPANDE, J.)
1. The respondent no.2 - Vasundhara Keshavrao Gulane was working as Headmistress in Shri Gurudeo Madhyamik Ashram Shala - a secondary school. The respondent no.3 - Arun Namdeo Dehankar was working as Headmaster in Shri Gurudeo Prathamik Ashram Shala - a primary school. They filed appeals challenging their termination from service before the Commissioner Tribal Development at Amravati. The Additional Commissioner has held by the impugned order dated 20/10/2007 that he has jurisdiction to entertain, try and decide both the appeals and the contention that it is the School Tribunal, which has jurisdiction, is rejected. The Management has, therefore, preferred this writ petition challenging the common order passed in separate appeals preferred by the respondent nos.2 and 3.
2. The question involved in this petition is, whether the Commissioner or the Additional Commissioner Tribal Development ::: Uploaded on - 23/08/2018 ::: Downloaded on - 25/08/2018 00:30:28 ::: wp5767.07.odt 3 has jurisdiction to entertain, try and decide the appeals preferred by the Headmistress/Headmaster in primary and secondary Ashram Schools challenging their termination from service.
3. In the two decisions of the learned Single Judge of this hri Janjagriti Shikshan Prasarak Mandal Court, one in case of S and another...Versus...The State of Maharashtra and others, reported in 2015 (6) ALL MR 708 and the another unreported judgment delivered on 19/10/2015 in Writ Petition No.7389/2014 (Mahadeo s/o Shriram Sarode...Versus...Regional Deputy Commissioner, Social Welfare Department, Amravati and Appellate Authority, Amravati Division, Amravati and others) it is held that the State Government cannot confer the quasi judicial power on the authority by way of executive instructions. It is the view taken that the Divisional Social Welfare Officer would not be competent to exercise such power. Reliance is placed upon the decision of the Apex Court in case of Secretary, A.P.D. Jain Pathshala and others...Versus...Shivaji Bhagwat More and others, reported in (2011) 13 Supreme Court Cases 99 for the proposition that the State Government cannot confer the power on the authority ::: Uploaded on - 23/08/2018 ::: Downloaded on - 25/08/2018 00:30:28 ::: wp5767.07.odt 4 to adjudicate the dispute by issuing executive orders or Resolutions. Be that as it may.
4. In the present case, the Additional Commissioner in the impugned order has relied upon Clause - 2.35 (A) of the Ashram School Code conferring upon him the appellate jurisdiction to decide the validity of the orders passed against the Class-IV employees in the Ashram Schools. Clause - 2.37 (A) under the said Code states that aided primary/secondary Ashram School teachers, non-teaching employees and the employees working in the hostel shall be governed by the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and all the provisions therein shall apply to them.
5. In the present case, the respondent nos.2 and 3 were working as Headmistress/Headmaster in the secondary and primary Ashram Schools. They were not the Class-IV employees. Hence, the jurisdiction in Clause - 2.35 of the Code to entertain the appeal challenging the termination was not available to the Additional Commissioner. It is on this short ground, the order impugned cannot ::: Uploaded on - 23/08/2018 ::: Downloaded on - 25/08/2018 00:30:28 ::: wp5767.07.odt 5 be sustained. It will have to be set aside.
6. We are not called upon in this petition to decide whether the School Tribunal, constituted under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation act, 1977, gets jurisdiction to entertain, try and decide the appeals filed by the Headmaster/Headmistress of the secondary or primary Ashram Schools, as no such appeals are preferred. We, therefore, refrain from commenting upon the provisions of Clause - 2.37 of the Ashram School Code.
7. In the result, this writ petition succeeds and it is allowed. The order dated 20/10/2007 passed by the Additional Commissioner Tribal Development assuming the jurisdiction to entertain, try and decide the appeals filed by the respondent nos.2 and 3 is hereby quashed and set aside. The appeals filed by the respondent nos.2 and 3 before the Commissioner are dismissed. The parties are at liberty to approach the appropriate forum, as may be available in law.
::: Uploaded on - 23/08/2018 ::: Downloaded on - 25/08/2018 00:30:28 :::
wp5767.07.odt 6 Rule is made absolute in the aforesaid terms. No order as to costs.
(Arun D. Upadhye, J.) (R.K. Deshpande, J.)
Wadkar, P.S.
::: Uploaded on - 23/08/2018 ::: Downloaded on - 25/08/2018 00:30:28 :::