Writ Petition No.869 of 2000

6th September, 2001

Petitioner Counsel: Shri. SHIVAJI T.SHELKE
Respondent Counsel: Shri. V.G.SAKOLKAR, Shri. UMAKANT PATIL

Cases Cited:
Gokul Prakalp Pratishtan through its President Vs. Smt.Mangal Ganpati Potdar, Writ Petition No.3583 of 1999 decided on 13th August, 1999 [Para 4]
Neminath s/o Nanaji Lonkar Vs. The State of Maharashtra, Writ Petition No.2919 of 1991 decided on 18th September, 1991 [Para 4]
Shri Vasantrao Naik Education Society Vs. Presiding Officer, School Tribunal, Aurangabad, 2001(1) ALL MR 189=2000(4) Mh.L.J.417 [Para 4,9]
M/s. Pannalal Binjraj Vs. Union of India, AIR 1957 SC 397 [Para 8]

JUDGMENT

JUDGMENT :- Heard the learned Advocates for the parties. Perused the records.

2. The petitioners challenge the judgment and order dated 26th November, 1999 passed by the School Tribunal, Aurangabad in Appeal No.55/1996 on the ground of lack of jurisdiction to the tribunal to entertain the appeal at the instance of the respondent no.1 in view of the fact that the institution in which the respondent no.1 was employed is not a school within the meaning of the said expression under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter called as "the said Act").

3. Few facts relevant for the decision are that the petitioner no.1 is an Educational Institution which runs an Ashram Shala by name Shri Gadge Maharaj Adivasi Post Basic Ashram Shala in the village Sitakhandi, taluka Bhokar, District Nanded. The respondent no.1 was in employment of the petitioners as teacher in the said school. By notice dated 14th March, 1996 the services of the respondent no.1 were sought to be terminated w.e.f. 30th April, 1996. The respondent no.1, therefore, filed an appeal against the said order of termination before the School Tribunal at Aurangabad which was registered as Appeal No.55/1996 and by judgment and order dated 26th November, 1999 the tribunal while allowing the appeal, set aside the order of termination of services of the respondent no.1 and directed the petitioners to reinstate the respondent no.1 in the employment of the petitioners along with the full backwages and with all consequential benefits. Hence, the present petition.

4. While assailing the impugned order and placing reliance upon the unreported decision of the learned Single Judge in the matter of Gokul Prakalp Pratishtan through its President Vs. Smt. Mangal Ganpati Potdar and others in Writ Petition No.3583 of 1999 decided on 13th August, 1999 as well as in the unreported decision of the Division Bench in the matter of Neminath s/o Nanaji Lonkar vs. The State of Maharashtra and others in Writ Petition No.2919 of 1991 decided on 18th September, 1991 and drawing attention to the Government Resolution bearing No.SSN 3872/10912/E dated 2nd June, 1973, the learned Advocate for the petitioners submitted that the school run by the petitioners does not fall within the meaning of the said expression under the said Act and, therefore, the employee of such institution is not entitled to file appeal under section 9 to the School Tribunal constituted under section 8 of the said Act. As against this, the learned Advocate for the respondent no.1 placing reliance upon the decision of the learned Single Judge in the matter of Shri. Vasantrao Naik Education Society Vs. Presiding Officer, School Tribunal, Aurangabad and another reported in 2000(4) Mh.L.J.417 : (2001(1) ALL MR 189) submitted that considering the scheme of the said Act, it is not permissible for the petitioners to seek exemption from the application of the said Act to the employees employed by the petitioners in its school.

5. There is no dispute on the point that the school run by the petitioner no.1 is an Ashram School constituted in terms of various Government Resolutions issued by the Government of Maharashtra in the interest of imparting education to the people living in Adivasi areas. This is also apparent from the resolution dated 2nd June, 1973, the first para of which reads thus :

"RESOLUTION :- In order to provide educational facilities of Secondary Education to the public in Adivasi areas, Government has sanctioned a scheme of upgrading existing full-fledged Ashram Schools into Post Basic Ashram Schools in Adivasi areas under Government Resolution Education and Social Welfare Deptt., No.SSN 1067/E, dated 3rd January, 1968. Accordingly upto the end of academic year 1972-73 permission was granted for the upgradation of 16 (sixteen only) Ashram Schools into Post Basic Ashram Schools, Government is now pleased to sanction the upgradation of 19 full-fledged Ashram Schools, as per statement appended to this Government Resolution, into Post Basic Ashram Schools with the permission to open Std VIIIth during the academic year 1973-74 (i.e.w.e.f.) June 1973."

6. The expression "school" as defined under Section 2(24) of the said Act means the primary school, secondary school, higher secondary school, junior college of the 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. Bare reading of the definition of the term "school" would undoubtedly include almost all types of institutions which impart education either of primary or secondary level or at higher secondary or junior college level. However, the point which arises for consideration in the matter is whether an employee in an Ashram School can claim benefit of the provisions of law contained in the said Act solely on the basis of the said definition under Section 2(24) of the said Act. The expression "existing private school" has been defined under section 2(8) to mean a recognised private school which is in existence on the appointed date. The expression "private school" is defined under section 2(20) to mean the recognized school established or administered by a Management, other than the Government or a local authority. The expression "recognised" has also been defined under section 2(21) of the said Act to mean recognised by the Director, the Divisional Board or the State Board, or by any officer authorised by him or by any of such Boards. Apparently, therefore, the recognised schools which are defined as private schools under section 2(20) are necessarily to be recognised by the Director, the Divisional Board or the State Board, or by any officer authorised by him or by any of such Boards. In the absence of recognition by the authorities referred to in section 2(21) of the said Act, it cannot be said that the school is a recognised school within the meaning of expression "private school" under section 2(20) of the said Act. The recognizing authorities mentioned in Section 2(21) are also sufficiently identified under the said Act. Accordingly, the expression "Director" is defined under section 2(6) to mean 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. The expression "Divisional Board" has been defined under section 2(6A) to mean the Divisional Board established under Maharashtra Secondary and Higher Secondary Education Board Act, 1965. The expression "State Board" under Section 2(25) means (a) The Maharashtra State Board of Secondary and Higher Secondary Education established under Maharashtra Secondary and Higher Secondary Education Board Act, 1965; (b) The Board of Technical Examinations, Maharashtra State; (c) The Maharashtra State Board of Vocational Examinations; or (d) The Art Examinations Committee. The term "employee" is defined under section 2(7) to mean any member of the teaching and non-teaching staff of a recognised school.

7. If one considers the scheme of the Act right from the preamble of the said Act, it is apparent that the Act has been introduced to regulate the recruitment and conditions of service of employees in certain private schools. The preamble provides that the statute has been enacted by the legislature having found it expedient to regulate the recruitment and conditions of service of employees in certain private schools in the State, with a view to providing such employees security and stability of service to enable them to discharge their duties towards the pupils and their guardians in particular, and the institution and the society in general, effectively and efficiently and that it is expedient in the public interest to lay down the duties and functions of such employees with a view to ensuring that they become accountable to the Management and contribute their mite for improving the standard of education. In other words, the preamble specifically refers to the expressions "employee in certain private schools" and "such employees". Further, section 3(1) of the said Act specifically provides that the provisions of the said Act shall apply to all private schools in the State of Maharashtra, whether receiving any grant-in-aid from the State Government or not. Section 4 provides for terms and conditions of service of employees of private schools. Section 5 provides for obligations of Management of private schools. Section 6 speaks of obligations of Head of a private school. Section 7 deals with the procedure for resignation by employees of private schools. Section 9 gives right of appeal to the employees but specifically restricts the same to those in the private schools. Being so, the entire scheme of the said Act, apart from the specific provisions under section 3, discloses that it deals with the service conditions of the employees of "private schools" within the meaning of the said expression under the said Act and not of any other school.

8. The view that I am taking is clearly fortified by two decisions of this Court, one by the Single Judge and another by the Division Bench. The learned Single Judge in Writ Petition No.3583 of 1999 decided on 13th August, 1999, after taking into consideration the various definitions of various expressions used in the Act, and considering the decision of the Apex Court in the matter of M/s. Pannalal Binjraj and others Vs. Union of India and others reported in AIR 1957 SC 397, held that the tribunal constituted under the said Act had no jurisdiction to entertain the appeal from an employee of Ashram School as such school does not constitute a private school within the meaning of the said expression under the said Act. Similarly, the Division Bench in Writ Petition No.2919/1991, after considering the fact that the institute was neither recognised by the Director or the Divisional Board or State Board or any other authorised officer by him or by any of such other Boards as is otherwise required in terms of section 2(21) of the said Act, nor the recognition of the school was by the officer who is covered by the definition "direction" in Section 2(6) of the said Act and that therefore, the institution in which the petitioner therein was employed, was not a private school within the meaning of the said expression under section 2(20) of the said Act and therefore, held that the appeal preferred by the petitioner therein under section 9 was not maintainable.

9. Undoubtedly, the learned Single Judge in Vasantrao Naik Education Society's case, has held that the employees belonging to teaching and non-teaching staff of schools run for blind, deaf and dumb students and such similarly placed schools are entitled to maintain an appeal under section 9 before the School Tribunal constituted under the said Act. While arriving at the said conclusion, the learned Single Judge has observed that 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, and that it is not possible to accept such a pedantic approach, as suggested by the learned counsel for the petitioner. Apparently, the decision was given, without the advantage of having been informed about the two earlier decisions on the point, one of the learned Single Judge and the other of the Division Bench of this Court referred to above. The decision in Vasantrao Naik Education Society's case, therefore, being contrary to the earlier decision of the Division Bench on the same issue, cannot be accepted to be laying down good and binding law on the point in issue.

10. Undisputedly, none of the authorities mentioned in the said Act as being the authorities to grant approval and recognition to a school had granted recognition to the Ashram School in question. On the contrary, the Government of Maharashtra has chosen to exclude the Ashram Schools from the ambit of the said Act and the rules pertaining to the management of such Ashram Schools as well as the service conditions therein are being governed by separate Government Resolutions in that regard. Besides, the provisions contained in the said Act when specifically restrict its applicability to the private schools as defined under Section 2(20) to be read along with other relevant provisions in the said Act, the applicability of the said Act cannot be extended to the private schools which are not covered by definition of the said expression under the said Act. The law laid down by the learned Single Judge in Vasantrao Naik Education Society's case cannot be held to be a binding law in view of the decision of the Division Bench in Writ Petition No. 2919/1991 delivered on 18th September, 1991.

11. Considering the fact that the respondent no.1 herein was the employee of Ashram School to which the provisions of the said Act are not applicable, the appeal filed under section 9 of the said Act before the School Tribunal, was not maintainable as the School Tribunal had no jurisdiction to entertain the same. The contentions raised on behalf of the petitioners in that regard are to be upheld and on that count alone, the impugned judgment is liable to be quashed and set aside. This however, may not preclude the respondent no.1, if so desires, to approach the competent authorities as undisputedly, in terms of various Government Resolutions issued in relation to Ashram Schools, the appellate remedy is provided thereunder to such employees. Needless to say, that if the respondent no.1 accordingly approaches the competent appellate authorities, the same will have to consider the fact that the respondent no.1 was pursuing the writ remedy under the said Act till this date and, therefore, benefit claimed, if any, for exemption of period spent in pursuing such writ remedy will have to be sympathetically considered.

12. With the above observations, the impugned order is hereby set aside and the appeal before the School Tribunal is dismissed. Rule is made absolute accordingly, with no order as to costs.

Order accordingly.