Bombay High Court
Shri Vasantrao Naik Education Society, ... vs The Presiding Officer & Another on 4 August, 2000
Equivalent citations: 2000(4)BOMCR773, 2000(4)MHLJ417
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
ORDER A.M. Khanwilkar, J.
1. Heard the learned Counsel for the parties.
2. This writ petition under Article 226 of the Constitution of India takes exception to the order passed by the Presiding Officer, School Tribunal, Amravati, Aurangabad Division, Aurangabad, dated 23rd April, 1990, in Appeal No. 35/1989.
3. The only question involved in this writ petition is whether the school run by petitioner/society for blind, deaf and dumb students, can be said to be amenable to the jurisdiction of the School Tribunal, under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as "the Act", for the sake of brevity).
4. The respondent No. 2, an employee, working with the petitioner's school, was terminated from service, for which, he filed an appeal under section 9 of the Act, being Appeal No. 35/1989 before the respondent No. I/Tribunal. In the said appeal, the petitioner/institution raised preliminary objection as regards the maintainability of the appeal before the School Tribunal, constituted under the said Act, against the petitioner's school on the ground that the petitioner's school was run for blind, deaf and dumb students and was governed by Code titled "Special Code for Schools of Disabled". The petitioner's case was that the petitioner's school was recognised by the Director of Social Welfare, Government of Maharashtra and was governed by a Special Code for disabled persons. The stand taken by the petitioner was that the said Special Code was a self-contained Code and apart from other provisions, it also provides for a remedy of an appeal before the Deputy Director of Social Welfare, to an aggrieved employee.
5. In support of this stand, the petitioner referred to section 9, which according to the petitioner, was available only to an employee in a private school. The petitioner has placed reliance on the definition of "employee" as well as "private school", as defined in section 2(7) and 2(20) of the Act. Placing reliance on the said definitions, it is contended that the petitioner's school has not been recognised by the authorities referred to in the said provisions under section 2(21) and, therefore, it is not a school which was amenable to the jurisdiction of the School Tribunal under Section 9 of the Act.
6. This contention is countered by the learned Counsel for the respondent No. 2 by placing reliance on section 2(7) which defines "employee" as well as section 2(20) which defines a 'private school" and 2(21) which defines a "recognised school". Section 2(24) which defines "school" includes primary school, while section 2(19) defines a "primary school". It is thus contended that the school referred to above in section 9 of the Act would include all the primary schools irrespective of the authority which has recognised the said school. It is contended that if this view is not accepted, it would create violence to the legislative intention, inasmuch as, large number of employees of such schools would be left without any proper remedy in spite of victimization by the management. It is further contended that the primary school, no doubt, has to be one recognised by a competent authority as per the Municipal Law. In other words, it is contended that restricting the scope of section 9 of the Act only to private schools recognised by the authorities mentioned in section 2(21) would leave out large number of schools including the primary school which are recognised by authorities other than the officers named in section 2(21) of the Act. It is pointed out that the officers named in section 2(21) of the Act, are mainly competent to accord recognition in respect of secondary school and not, any primary school. On the other hand, the primary school is recognised by authority designated under the Municipal Law, who is different than the authorities named in section 2(21) of the Act.
7. Before considering the rival submissions it would be appropriate to reproduce the relevant provisions of the Act.
"Section 2. In this Act, unless the context otherwise requires---
.....
.....
(6) "Director" means the Director of Education or the Director of Technical Education or the Director of Vocational Education and Training or the Director of Art as the case may be, appointed as such by the State Government;
.....
.....
(7) "employee" means any member of the teaching and non-teaching staff of a recognised school;
(8) "existing private school" means a recognised private school which is in existence on the appointed date;
.....
.....
(19) "primary school" means a recognised school or a part of such school in which primary education is imparted;
(20) "private school" means a recognised school established or administered by a management other than the Government or a local authority;
(21) "recognised" means a recognised by the Director, the Divisional Board or the State Board, or by any officer authorised by him or by any of such Boards.
.....
....."
(24) "school" means a primary school, secondary school, higher secondary school, junior college of education or any other institution by whatever name called including technical, vocational or art institution or part of any such school/college or institution, which imparts general, technical, vocational, art or, as the case may be, special education or training in any faculty or discipline or subject below the degree level.
(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.
.....
....."
"Section 9. (1) Notwithstanding anything contained in any law or contract for time being in force, any employee in a private school-
(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.
.....
....."
8. Having regard to the rival contentions and the aforesaid provisions, it appears that the expression "employee" and "private school" employed in section 9 will have to be understood in the context of the "school" defined in section 2(24) of the Act. Restricting the scope of the said provision only to private schools, as defined in section 2(20) of the Act, that too recognised only by the authorities specified in section 2(21) of the Act, would result in depriving remedy of an appeal before the school Tribunal to large number of employees in the primary schools throughout the State. It is not possible to accept such a pedantic approach, as suggested by the learned Counsel for the petitioner. On the other hand, it would appear that the employee, as referred to in section 9, shall necessarily be an employee being member of the teaching or non-teaching staff of a recognised school. The school, however, should be a school recognised by a competent authority under the Municipal Law and nothing more. In other words, in case of a primary school, the authority competent to recognise, would be an officer appointed by the State Government to exercise power under section 39 of the Bombay Primary Education Act, 1947.
9. The argument, advanced on behalf of petitioner that the employee should be from a recognised private school, which is recognised by the Director, Divisional Board or the State Board or by any officer authorised by him or by such person is wholly devoid of merits and would not fit into the legislative scheme. In my view, if this contention is accepted it would be limiting the application of the said Act only in respect of schools recognised by the aforesaid officers, named under section 2(21), notwithstanding the fact that other primary schools are also recognised schools within the meaning of Municipal Law. In the circumstances, I am of the view that any employee who is member of the teaching and non-teaching staff of any of the private schools recognised by competent authority under the Municipal Law, would be entitled to maintain an appeal under section 9 of the said Act against such a school.
10. In so far as the present case is concerned, there is no doubt that the petitioner has been recognised by the Director of Social Welfare Department, Government of Maharashtra, which according to the petitioner, was the competent authority to recognise the school, for blind, deaf and dumb students. Ho doubt, the Special Code would govern administration of such schools, however, in view of the non obstante clause in section 9, the provisions mentioned in the Special Code with regard to the remedy of appeal to an employee of such a school, cannot be given effect to. In other words, the provisions with regard to the remedy of appeal to an employee of the school meant for blind, deaf and dumb, administered under the Special Code have been eclipsed by virtue of the non obstante provision of section 9 of the said Act. In the circumstances, the employee belonging to teaching and non-teaching staff of such a school would also be entitled to maintain an appeal under section 9 of the Act of 1977.
11. The learned Counsel for the respondent rightly pointed out that the said Special Code is not a statutory document and cannot be looked into, particularly when there are specific provisions under the present Act of 1977. I am inclined to accept the said contention and, therefore, hold that the employee belonging to teaching and non-teaching staff of the petitioner's school and similarly placed schools are entitled to maintain an appeal under section 9 of the Act before the School Tribunal. The School Tribunal, therefore, was right in rejecting the preliminary objections raised by the petitioner by the impugned order.
12. It is relevant to point out that the State Government in its circular dated, 15-10-1990 has clearly spelt out that the employees of the recognised school run for blind, deaf and dumb, although governed by Special Code, would be entitled to pursue their remedy under the Act of 1977. So far, there is no challenge to the said circular issued by the State Government. Be that as it may. For the reasons which have been stated hereinabove, I find no substance in the stand taken by the petitioner that the appeal filed by the respondent No. 2 before the School Tribunal was not maintainable.
13. In the circumstances, writ petition is dismissed with costs. Rule stands discharged.
14. The School Tribunal is, however, directed to dispose of the appeal preferred by the respondent No. 2 herein, within a period of three months from the date of receipt of the writ of this Court. Needless to mention that the Tribunal shall give fair opportunity to both the sides to lead evidence in support of their respective claims on merits.
15. Writ petition dismissed.