Bombay High Court
Rachna Sanjay Singh vs Maudlin Mayur Tiwaskar And Others on 13 October, 2023
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2023:BHC-NAG:15259
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 1920 OF 2023
Mrs. Rachna Sanjay Singh,
Aged about 57 years, Occ. Service,
Secretary of the Maharashtra Regional
Board of Education of the Church of
North India,
R/o. Mecosabagh, Nagpur. PETITIONER
Versus
1. Mrs. Maudlin Mayur Tiwaskar,
Aged about 34 years, Occ. Service,
R/o. 16, Vitthal Rukhmini Nagar,
Near Radha Rani Lawn, Nagpur.
2. Rt. Rev. Paul Dupare,
Bishop of Nagpur Diocese,
R/o. Bishop House,
Cathedral Compound, Sadar, Nagpur.
3. The Education Officer (Secondary),
Zilla Parishad, Nagpur. RESPONDENTS
-----------------------------------------------
Mr. R.L. Khapre, Senior Advocate a/b Mr. Aadil Mirza, Advocate
for the Petitioner.
Mr. Rohan Gautam, Advocate for the Respondent No.1.
Mr. Bernard John, Advocate for the Respondent No.2.
Ms. S.N. Thakur, AGP for the Respondent No.3.
-----------------------------------------------
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CORAM : AVINASH G. GHAROTE, J.
DATED : 13th OCTOBER, 2023.
ORAL JUDGMENT :-
Heard.
2. Rule. Rule made returnable forthwith.
3. Heard finally by the consent of the learned counsels appearing for the rival parties.
4. The petition questions the order of the learned School Tribunal dated 15.03.2023, whereby the objection raised by the present petitioner regarding the jurisdiction of the learned School Tribunal to entertain an appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1977 (for short the 'MEPS Act', hereinafter), has been rejected holding that the learned School Tribunal has jurisdiction to entertain an appeal at the behest of respondent No. 1, against the petitioner.
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5. The facts giving rise to the present petition are as under:
6. The petitioner was appointed on 28.08.2016 as a Manager/Correspondent, on a temporary basis for the academic session 2016-17 (page 216). The appointment, as the order indicates, was on a contractual basis (page 218). It is contended, that the respondent No.1 has thereafter applied for the post of Principal and was appointed as a Principal of the Bishop Cotton School run by the Maharashtra Regional Board of Education, North India. The letter of appointment dated 30.06.2020 (page 75), however, indicates that the appointment was not as a Principal but as an in-charge Headmistress of Bishop Cotton School, CBSE Sadar, Nagpur with effect from 01.07.2020, as per the Resolution No.MRBE:2020:253(II) in its meeting dated 15.02.2020. It was also stated, that the services of the respondent No.1 would be governed by the Rules and Regulations and policies framed by the Maharashtra Regional Board of Education (for short "MRBE") from time to time and the services would be transferable to any school run under the banner of MRBE either State Board or CBSE.
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7. The respondent No.1 received a communication on 30.09.2022 (page 39) informing her that her term as In-charge Headmistress of Bishop Cotton High School, CBSE, Sadar, Nagpur would be over on 03.10.2022, however she would be continuing as an Assistant Teacher in Bishop Cotton High School CBSE, Sadar, Nagpur, and she was directed to handover the entire charge including the application filed by the school to the Secretary. However by a communication dated 01.10.2022, it was informed to the respondent No. 1, that the Management has decided in its meeting held on 13.08.2022 to promote her from Assistant Teacher, Bishop Cotton School CBSE, Sadar, Nagpur to Headmistress of Bishop Cotton School, Dharampeth, Nagpur, on probation of two years and onwards and transferred her services to Bishop Cotton School, Dharampeth Nagpur with effect from 04.10.2022 (page 40). By a communication dated 20.10.2022 (page 41), the respondent No.1 was informed that all the correspondences including financial matters of Bishop Cotton School CBSE (Secondary & Primary), Sadar, Nagpur, would be taken care of by the Manager of the School Dr.(Mrs.) Mala Singh. The petitioner being aggrieved by this communication, filed an appeal under Section 5 73.WP.1920-2023 JUDGMENT.odt 9 of the MEPS Act, before the learned School Tribunal in the year 2023. The learned School Tribunal by the order dated 30.01.2023 granted a stay to the communications impugned in Writ Petition No.890/2023 by an order dated 01.03.2023. Considering the grievance of the petitioner that the preliminary objection regarding jurisdiction was not decided the Writ Petition No. 890/2023 was disposed of by directing the learned School Tribunal to decide the preliminary objection regarding jurisdiction. Consequent to this, the impugned order has been passed on 15.03.2023 by the learned School Tribunal holding that it had jurisdiction to entertain and decide the appeal which is the subject matter of challenge in this petition (page 260).
8. Mr. Khapre, learned Senior Counsel for the petitioner, contends that since the school is affiliated to the Central Board of Secondary Education (CBSE) and was a private unaided institution, the provisions of the MEPS Act were not attracted to the petitioner.
9. By inviting my attention to the definition of "private school" as occurring in Section 2(20); "recognised" in Section 6 73.WP.1920-2023 JUDGMENT.odt 2(21) "State Board" in Section 2(25), "Director" in Section 2(6) and "Deputy Director" in Section 2(5) of the MEPS Act, it is contended, that it is only a school which is recognized under Section 2(21) by the authorities as mentioned therein, over which the learned School Tribunal would have jurisdiction under Section 9 of the MEPS Act. He makes a categorical statement upon instructions, that the petitioner school is not reorganized by any of the authorities as are provided in Section 2(21) of the MEPS Act, and therefore, the provisions of Section 9 of the MEPS Act, were clearly not available to be invoked by the respondent No.1.
10. Mr. Khapre, learned Senior Counsel for the petitioner, in support of his contention also places reliance upon the judgment in case of Dagdu Vs. President, Anandrao Naik Shikshan Prasarak Mandal and others, (2006) 9 SCC 782 ; Shobha w/o Kailash Bonekar Vs. Cantonment Executive Officer, Cantonment Board, Ahmednagar and others, 2007 (2) Mh.L.J. 889 (para 25); Komal Rugwani Vs. State of Maharashtra and others, 2011 (4) Mh.L.J. 301 (para 22) ; St. Mary's Education Society and another Vs. Rajendra Prasad Bhargava and others, 7 73.WP.1920-2023 JUDGMENT.odt 2022 SCC OnLine SC 1091 (para 16, 28 to 31, 51 and 52, 67,
68); Hashmiya Bahrul Faiz Social Welfare Association, Through Secretary Vs. Abdullah M. Shukur Qureshi and others, 2023 SCC OnLine Bom 688 (para 38, 40 and 42) ; in support of his contention. He therefore submits, that since the learned School Tribunal did not have jurisdiction, the appeal before it under Section 9 of the MEPS Act, is not maintainable and is required to be dismissed as such.
11. Mr. Gautam, learned Counsel for respondent No. 1, places reliance upon the order of appointment dated 28.08.2015 (page 216) and specifically clause (iv) to contend that the appointment of the petitioner was governed by the provisions of MEPS Rules 1981. He further relies upon the communication dated 04.02.2021 (page 361) issued by the Deputy Director which permits the petitioner to open a new school/classes. He also relies upon Sudhakar s/o Vinayak Karegaonkar Vs. The State of Maharashtra & others, 2000 (4) Bom.C.R. 113, in support of his contention.
12. The provisions relevant and material for deciding 8 73.WP.1920-2023 JUDGMENT.odt the present petition would be Section 2 (5)(6)(20)(21)(25) and Section 9 of the MEPS Act, which for the ready reference quoted as under :-
"2(5). "Deputy Director" means the Deputy Director of Education of the educational region or the Deputy Director of Vocational Education and Training of the educational region as the case may be, appointed as such a by the State Government;
2(6). "Director" means the Director of Education or the Director of Technical Education or the Director of Vocational Education and Training, as the case may be, appointed as such by the State Government;
2(20). "private school" means a recognised school established or administered by a Management, other than the Government or a local authority;
2(21). "recognised" means recognised by the Director, the Divisional Board or the State Board, or by any officer authorised by him or by any of such Boards;
2(25). "State Board" means,-
(a) the Maharashtra State Board of Secondary and Higher Secondary Education established under the Maharashtra Secondary and Higher Secondary Education Boards Act, 1965;
(b) the Board of Technical Examinations,
Maharashtra State;
(c) the Maharashtra State Board of Vocational Examinations; or
(d) the Art Examinations Committee;
9. Right of appeal to Tribunal to employees of private schools (1) Notwithstanding anything contained in any law or contract for the time being in force, any employee in a private school-
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(a) who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank, by the order passed by the management; or
(b) who is superseded by the Management while making an appointment to any post by promotion; and who is aggrieved, shall have a right of appeal and may appeal against any such order or supersession to the Tribunal constituted under section 8:
Provided that, no such appeal shall lie to the Tribunal in any case where the matter has already been decided by a Court of competent jurisdiction or is pending before such Court, on the appointed date or where the order of dismissal, removal, otherwise termination of service or reduction in rank was passed by the Management at any time before the 1st July 1976.
(2) Such appeal shall be made by the employee to the Tribunal, within thirty days from the date of receipt by him of the order of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be:
Provided that, where such order was made before the appointed date, such appeal may be made within sixty days from the said date.
(3) Notwithstanding anything contained in sub-
section (2), the Tribunal may, entertain an appeal made to it after the expiry of the said period of thirty or sixty days, as the case may be, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within that period.
(4) Every appeal shall be accompanied by a fee of five hundred rupees, which shall not be refunded and shall be credited to the Consolidated Fund of the State."
13. It is not in dispute, that the petitioner is an institution which is affiliated to CBSE. It is also not in dispute, that the petitioner does not receive any grant from the State 10 73.WP.1920-2023 JUDGMENT.odt Government. It is in light of this background, it will have to be decided whether the provisions of the MEPS Act would be applicable to the school being administered by the petitioner.
14. Section 2 (20) of the MEPS Act, defines a "private school" to mean a recognised school established or administered by a Management, other than the Government or a local authority. In view of the definition of "recognized" in Section 2 (21) of the MEPS Act, it would mean that for the purpose of applicability of the MEPS Act, such recognition has to be accorded by the Director, the Divisional Board or the State Board or by any officer authorised by him or by any of such Boards. Section 2 (6) of the MEPS Act defines the "Director" to mean the Director of Education or the Director of Technical Education or the Director of Vocational Education and Training, appointed as such by the State Government and Section 2 (25) of the MEPS Act defines "State Board" to mean the Maharashtra State Board of Secondary and Higher Secondary Education, the Board of Technical Examinations, Maharashtra State, the Maharashtra State Board of Vocational Examinations or the Art Examinations Committee. It is thus apparent, that unless a 11 73.WP.1920-2023 JUDGMENT.odt private school is recognised by the Director or the State Board as indicated above, it would not fall within the definition of a private school as defined in Section 2 (20) of the MEPS Act. In the instant case, no such recognition, has been placed on record by the respondents to indicate that the petitioner has been recognised in terms of Section 2 (21) of the MEPS Act by the authorities as defined in Section 2 (6) or 2 (25) of the MEPS Act. This was necessarily required to be done by the respondents, as Mr. Khapre, learned Senior Counsel for the petitioner, has made a categoric statement, that there is no such recognition. For something which is not existent, there cannot be any documentary proof, which would not be true for a position which is contrary. Thus, when the respondents had approached the Tribunal under Section 9 of the MEPS Act, and an objection was raised to its jurisdiction, it was necessary for the learned Tribunal to have examine the position as to whether there was any recognition as contemplated by Section 2 (21) of the MEPS Act by the authorities as defined under Section 2 (6) and 2(26) of the MEPS Act.
15. Mr. Gautam, learned Counsel for the respondent 12 73.WP.1920-2023 JUDGMENT.odt No.1, has not placed on record any such document to indicate that such recognition has been given. He, however, has relied upon a communication dated 04.02.2021 by the Deputy Director of Education, Nagpur Division addressed to the petitioner granting permission to open classes from 1 st to 12th. Grant of permission to open classes would not mean, that a recognition as contemplated by Section 2(21) of the MEPS Act has been granted. Though Sudhakar s/o Vinayak Karegaonkar (supra), has been relied upon, the observation made therein in para 9, were made in the contextual background where the petitioner had approached the High Court under Article 226 of the Constitution of India for the purpose of implementing the order passed by the School Tribunal under Section 11 of the MEPS Act in an appeal under Section 9 of the MEPS Act, which would indicate that the question of jurisdiction of the learned School Tribunal, already stood decided by the School Tribunal itself and was never challenged by the Management and it is only at the stage of the implementation the order of the School Tribunal under Section 11 of the MEPS Act, which was sought to be enforced before this Court that a plea of absence of jurisdiction was sought to be raised. It is thus apparent, that on 13 73.WP.1920-2023 JUDGMENT.odt facts the judgment in Sudhakar s/o Vinayak Karegaonkar (supra) would be of no assistance to the respondents.
16. That the recognition under Section 21 of the MEPS Act, is a sine qua non for the purpose of exercise of jurisdiction of the Tribunal under Section 9 of the MEPS Act, is clearly spelt out from what has been held by the Hon'ble Apex court in Dagdu Vs. President, Anandrao Naik Shikshan Prasarak Mandal and others (supra), wherein considering a plea on behalf of an Assistant Teacher in an Ashram School, the plea regarding the applicability of the MEPS Act and the availability of remedy under Section 9 of the MEPS Act, of an appeal thereunder was negatived on the ground that a "private school" as defined under Section 2 (20) of the MEPS Act, could only be one recognised by the authorities as mentioned in Section 2 (21) of the MEPS Act, who have been defined in Section 2 (6-A) of the MEPS Act and it was held that since an Ashram school was not recognized either by the Director or by the Board as defined under the MEPS Act, therefore it was not a "private school"
within the meaning of Section 2 (20) of the MEPS Act, and consequently the Tribunal would have no jurisdiction to 14 73.WP.1920-2023 JUDGMENT.odt entertain an appeal under Section 9 of the MEPS Act.
17. This was followed by the Full Bench of this Court in Shobha w/o Kailash Bonekar (supra), wherein considering the same reasoning regarding absence of recognition by the authorities as contemplated under the aforesaid provisions of the MEPS Act, it was held that employees working in the schools which were established and administered by the Cantonment Board were not covered by the MEPS Act, this position has also been reiterated in Komal Rugwani (supra), while considering whether an employee employed in a private primary school recognised by a body or officer refereed to in Section 39(2) of the Bombay Primary Education Act, 1947, was governed by the provisions of the MEPS Act, by answering it in the negative. St. Mary's Education Society and another (supra), relied upon by Mr. Khapre, learned Senior Counsel for the petitioner, contemplates a situation regarding exercise of jurisdiction under Article 226 of the Constitution of India, in respect of a school which was a private unaided minority educational institution, not receiving grant in aid from the Government or having any Governmental control over the 15 73.WP.1920-2023 JUDGMENT.odt functioning and administration, and affiliated to the CBSE, considering which it was held not to be a 'State' within the meaning of Article 12 of the Constitution. It was also held, that the CBSE was only a society registered under the Societies Registration Act, 1860, and the school affiliated to it was not a creature of the statute and hence not a statutory body. It was also held, that the affiliation of the school to the CBSE was for the sake of convenience, namely, for the purpose of recognition and syllabus or the courses of study and merely because the Board had granted recognition to the institutions on certain terms and conditions that by itself did not confer any enforceable right on any person as against the Committee of Management. It is also held, that merely because the State Government has the regulatory power, the same, by itself, would not confer any such status upon the institution (school) nor put any such obligations upon it which may be enforced through issue of a Writ under Article 226 of the Constitution. This however, merely indicates the nature and status of the petitioner with the CBSE and nothing else.
18. In Hashmiya Bahrul Faiz Social Welfare Association, 16 73.WP.1920-2023 JUDGMENT.odt Through Secretary (supra), which is by the learned Full Bench of this Court, the position that for an employee of a private school to file appeal under Section 9 of the MEPS Act, the school must be reconsidered as per Section 2 (21) of the MEPS Act, by its specified authorities alone is held to have been established in view of Dagdu Vs. President, Anandrao Naik Shikshan Prasarak Mandal and others and Shobha w/o Kailash Bonekar (supra).
19. It is thus apparent, that in absence of any recognition being pointed out to have been granted to the petitioner under Section 2 (21) of the MEPS Act, by the authorities as defined in Section 2 (6) and (25) of the MEPS Act, it cannot be held, that the petitioner is covered by the MEPS Act, so as to enable the respondents to invoke the right to file an appeal under Section 9 of the MEPS Act thereunder. Any mention of the MEPS Act, in the appointment orders, would be of no avail, as that by itself, in absence of recognition under Section 2(21) of the MEPS Act, cannot be said to fulfill the statutory requirement of a recognition.
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20. In that view of the matter, the impugned order dated 15.03.2023, passed by the learned School Tribunal, cannot be sustained and is hereby quashed and set aside. The objection raised by the petitioner regarding absence or jurisdiction in the School Tribunal vis-a-vis respondents, is sustained and it is held that the appeal filed by the respondents before the learned School Tribunal is not maintainable.
21. The Petition is accordingly allowed. No costs.
22. Rule is made absolute in the above terms.
23. Needles to mention, that it would be permissible for the respondent No. 1, to avail any other remedy, which may be available to the respondent No. 1 under law.
(AVINASH G. GHAROTE, J.) S.D.Bhimte Signed by: Mr.S.D.Bhimte Designation: PA To Honourable Judge Date: 18/10/2023 10:40:16