Bombay High Court
Pradnya Shikshan Sanstha, Devulgaon ... vs Shailesh S/O Pandurang Ramteke And ... on 28 April, 2016
Author: S.B. Shukre
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.5222 of 2014.
Pradnya Shikshan Sanstha, Yerandi,
Devulgaon, District Gondia,
through its Secretary. .... Petitioner.
Versus
1] Shailesh Pandurang Ramteke,
R/o.-Gudhari, Post Sangadi,
Tq. Arjuni/Morgaon, District Gondia.
2] Janjagruti Shikshan Sanstha Devulgaon,
Tq. Arjuni/Morgaon, District Gondia,
through its Secretary.
3] The Headmaster, late Nathhuji P. Pustode,
Adivasi Ashram Shala, Devulgaon,
Post-Navegaon, Tq. Arjuni/Morgaon,
District Gondia.
4] The Project Officer,
Integrated Tribal Development Project, Deori,
District Gondia.
5] Additional Commissioner, Tribal Development,
Nagpur Division, Giripeth, Nagpur. .... Respondents.
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Shri H.A. Deshpande, Adv for petitioner.
Shri N.M. Jibhkate, Adv for resp.no.1.
Shri M.V. Samarth, Adv for resp.nos. 2 and 3.
Ms T.H. Udeshi, AGP for resp.no.5.
Coram : S.B. Shukre, J.
th
Dated : 28
April, 2016.
ORAL JUDGMENT
1] Rule. Rule made returnable forthwith. Heard finally by consent.
2] By this petition, the petitioner has challenged the legality and correctness of the order dated 14-08-2014 passed by the Additional Commissioner, Tribal Development. By this order, the learned Additional Commissioner, Tribal Development while refusing to grant relief of reinstatement in service, has granted some other reliefs. These reliefs are of payment of compensation of Rs. 2 lakhs and 40% of the back wages to the respondent no.1.
3] The Writ Petition has been primarily grounded on the objection that the school of the petitioner is primary Ashram School and it is not covered by the definition of private school within the meaning of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 [for short, ::: Uploaded on - 02/05/2016 ::: Downloaded on - 30/07/2016 00:07:49 ::: 3 judg wp 5222.14.odt 'the MEPS Act'] and therefore, the Additional Commissioner, Tribal Development could not have any jurisdiction to entertain the grievance of the petitioner. In short, according to the petitioner, the case of respondent no.1 is not at all covered by the provisions of the MEPS Act.
4] The learned Counsel for respondent no.1 does not dispute the fact that the petitioner school is a primary Ashram School and in view of the law laid down in various judgments including the judgments of Shri Janjagriti Shikshan Prasarak Mandal, Shekapur and another v State of Maharashtra and others, reported at 2015(4) Mh.L.J. 756 and Suryakant Sheshrao Panchal v Vasantrao Naik Vimukta Jati, Bhatakya Jamati Aadarsh Prasarak Mandal and others, reported at 2002(3) Mh.L.J. 659 it is not a private school as would be covered by the provisions of the MEPS Act. He, however, submits that this Court is having enough power to mould reliefs in appropriate cases and according to him, one such relief could be in the nature of allowing the respondent no.1 to approach the Divisional Social Welfare Officer for redressal of his grievance as has been done in the case of DAGDU v President, Anandrao Naik Shikshan Prasarak Mandal and others, reported at (2006) 9 Supreme Court Cases 782 of the Hon'ble Apex Court. He ::: Uploaded on - 02/05/2016 ::: Downloaded on - 30/07/2016 00:07:49 ::: 4 judg wp 5222.14.odt further submits that if such relief is not granted to the respondent no.1, the respondent no.1 will be rendered remedyless.
5] The learned Assistant Government Pleader submits that the law laid down in the various judgments is a matter of record and therefore an appropriate order may be passed.
6] Shri Samarth, the learned Counsel for the respondent nos. 2 and 3 who are the petitioners in Writ Petition Nos. 5159 of 2014 and 5160 of 2014 submits that, the respondents do not have any role to play and for some period of time the petitioner school was closed and its pupils were transferred to respondent no.2 school for imparting their remaining eduction. He, however, submits that this Writ Petition is squarely covered by the cases which are relied upon by the petitioner. In addition, he also places his reliance upon the case of Secretary, A.P.D. Jain Pathshala and others v Shivaji Bhagwat More and others, reported at (2011) 13 Supreme Court Cases 99 wherein, the Hon'ble Apex Court has held that the right of filing of appeal is creation of statute and unless such right is granted expressly by a statute, the remedy in the nature of filing of an appeal is not available. He submits that since the petitioner school is not covered by the provisions of the MEPS Act and there is no other law providing remedy of appeal in a case like the ::: Uploaded on - 02/05/2016 ::: Downloaded on - 30/07/2016 00:07:49 ::: 5 judg wp 5222.14.odt present one, the order of the learned Additional Commissioner, Tribal Development would have to be termed as passed without jurisdiction. He has also referred to a decision rendered by the learned Single Judge of this Court in Writ Petition No.3668 of 2014 (Shivshakti Shikshan Sanstha, Deori and another v The Additional Commissioner, Tribal Development, Nagpur and others), and submits that the present Writ Petition is squarely covered by this judgment.
7] Once it is found that the petitioner school is not a private school, it being the primary Ashram School and not covered by the provisions of the MEPS Act as has been established here, this case would instantaneously fall within the category of the cases covered by the judgments relied upon by the learned Counsel for the petitioner and the learned Counsel for the respondent nos. 2 and 3. In the case of Shivshakti Shikshan Sanstha, Deori and another (supra) the learned Single Judge of this Court has taken a view that in a case like the present one, the Additional Commissioner, Tribal Development would have no jurisdiction to exercise adjudicatory powers merely on the basis of the Government Resolutions. In the instant case, the learned Additional Commissioner, Tribal Development has entertained the ::: Uploaded on - 02/05/2016 ::: Downloaded on - 30/07/2016 00:07:49 ::: 6 judg wp 5222.14.odt appeal only on the basis of a Government Resolution and as held by the Hon'ble Apex Court in the case of Secretary, A.P.D. Jain Pathshala and others (supra) a Government Resolution cannot be equated with a legislation and therefore cannot confer any adjudicatory powers on any authority. The adjudicatory bodies as observed by the Hon'ble Apex Court derive their powers from a statute which creates them and they have to function within the limits imposed by such a statute. The impugned order has been passed in this case by relying on a Government Resolution and not any statutory provision. Therefore, I find that the order impugned in this petition is without jurisdiction and cannot be sustained in law.
8] About the case of DAGDU v President, Anandrao Naik Shikshan Prasarak Mandal and others (supra), I must say, the Hon'ble Apex Court in the facts peculiar to that case granted liberty to the affected employee to file an appeal before the Divisional Social Welfare Officer and that was done in exercise of its special powers under Article 142 of the Constitution of India and also in pursuance of an affidavit making a special concession filed on behalf of the respondent no.1. In the instant case, no such affidavit has been filed. Therefore, the relief as sought for by the respondent no.1 in this petition cannot be granted. At the same time, it must be observed that the respondent no.1 would have to be ::: Uploaded on - 02/05/2016 ::: Downloaded on - 30/07/2016 00:07:49 ::: 7 judg wp 5222.14.odt given liberty to approach the competent forum for redressal of his grievance.
9] In the circumstances, the Writ Petition is allowed. The impugned order is quashed and set aside. However, liberty is granted to respondent no.1 to avail of such remedy as may be available in law and if any objection regarding delay is taken, the same be considered in accordance with law.
10] Rule is made absolute in above terms. No costs.
JUDGE Deshmukh ::: Uploaded on - 02/05/2016 ::: Downloaded on - 30/07/2016 00:07:49 :::