JUDGMENT Rebello F.I., J.
1. The matter was on board for final hearing for confirmation of interim relief. Considering the narrow controversy and as reply has been filed on behalf of the respondent Nos. 1 and 4, the main-petition was taken up for final hearing. Notices on respondent Nos. 2 and 3 were not served. However, considering the controversy, notice on them is dispensed with.
A few facts may be mentioned. The State has filed the present petition to challenge the order dated 12-11-2003 and 2-6-2004 passed by the Acting Chairman, Maharashtra State Human Rights Commission. The respondent No. 4 is the father of the respondent No. 1, a teacher working in the school run by respondent No. 3 society. From the record and the reply filed by Education Officer, Zilla Parishad, it appears that respondent No. 1 is the wife of Head Master of the school respondent No. 4 had filed complaint before the Maharashtra State Human Rights Commission which was numbered as SHRC-09/2002/CR-1581/Adm/803. By communication addressed to Education Officer, the petitioners were informed that the complaint had been received from respondent No. 4 and that the Acting Chairperson had passed the following order.
Perused complaint. The subject order of the complaint does not fall within the purview of the Commission. However, the complaint be transmitted to the Education Officer, Buldhana for disposal at his end under the intimation to the complainant. The Education Officer, shall however, submit the action taken report to the Commission within three weeks from the receipt of this direction.
The forwarding letter contains a request to consider the complaint in accordance with law and submit further report about the action taken to the Commission preferably within the period of four weeks from the receipt of this letter. The order is dated 24-1-2003.
2. Respondent No. 4 thereafter filed one more complaint which was numbered as SHRC-05/2003/CR/978/legal. An order came to be passed on 12-11-2003. Some facts which are set out in the order are required to be reproduced as that would have a bearing on the matter. The relevant portion of the order reads as under :
The proposal for approval has been confirmed only on 27-5-2002. Shri Bhise, Education Officer fairly admits that the same has not yet been considered. Shri Bhise therefore, agrees to give approval to the appointment of Sau. Shobha Kolte, Craft teacher with effect from June. 2002 in accordance with law.
The learned Acting Chairperson thereafter passed the impugned order, the relevant portion of which reads as under :
In view of the statement made by Education Officer. Shri Bhise. that necessary approval to the appointment of Sau. Shobha Kolte will be given, with consequential sanction for grants for the salary of the teacher, the Commission directs that the time of 4 weeks is granted to submit the compliance report by the Education Officer. With this direction the case is disposed of.
The petitioner thereafter submitted his compliance report. A prayer was made which reads as under :
On the strength of above ground, it is humbly prayed that, the complaint of petitioner and dependent Case No. 1581/2002 with Case No. 978/200 (alongwith directives of No, S.H.R.C./09/2002 CR-1581/Adm-with No. S.H.R.C./05/2003/CR-978/legal dated November, 2003 may kindly be set aside and oblige.
The Education Officer in the compliance report pointed out that respondent No. 1 had been appointed as Craft teacher with effect from 17-1-1996 pursuant to an advertisement issued on 10-1-1996. The post was reserved for Scheduled Tribe and as such the appointment was against the backlog of reservation of Scheduled Tribes. The appointment was continued from 17-1-1996 to the end of educational session 30-4-1997 and from 1-7-1997 to 30-11-1998. The services of the respondent No. 1 were terminated from 1-12-1998. Pursuant to the resolution of the Standing Committee, the services of respondent No. 1 were terminated with effect from 1st December, 1998 and the same was communicated to respondent No. 1. Respondent No. 1 was not on duty from 13-12-1998 to 8-3-2000. Respondent No. 1 however, applied for appointment to the society/college on 9-3-2000. It is set out by the Education Officer that Head Master Mr. V.V. Kolte with the help of Vice President (Shri Gopal Knishna Barbate) had submitted fraudulent proposal in favour of Sau. Shobha Kolte for approval on probation basis with effect from 17-1-1996. The office granted approval vide letter dated 28-2-2001 on probation basis. It is then pointed out that the President of the School Committee filed petition being Writ Petition No. 1352 of 2000 wherein the Head Master/respondent No. 4 were parties. Some of the facts in the petition are being set out though not referred to in the report for the purpose of deciding the controversy. The relief sought in the petition was for suitable direction. It was set out that there was no sanctioned post of Craft Teacher available on the date of appointment of respondent No. 1 and her services stood terminated from 1-12-1998 by order dated 3-12-1998. The Education Officer filed his reply in the form of submission on 1-7-2000. In paragraph 3 it was set out that there was approved post of Craft Teacher for the year 1995-96 onwards. As per the roster, the post was reserved for S.T. Backlog. The President of the society had given undertaking and had sought approval for appointment in the year 1995-96. Accordingly, approval has been granted for the period of 17-4-1996 till end of the Session. In paragraph 5 it was set out that the services stood terminated by the Management from 1-12-1998 and as such the claim for continuance cannot be considered after 1-12-1998. The Counsel for the petitioner in view of the statement made by the Education Officer in paragraph 5 of the written submission, made a statement that the grievance of the petitioner does not survive and as such the petition was dismissed as infructuous. This was recorded by the Court by the order dated 1-8-2001. It may be noted that the reply filed by the Education Officer is on 1-7-2000.
After the report was field before the Commission, the Acting Chairperson held that the explanation offered by the Education Officer for non-compliance of the directions is not satisfactory and there does not arise any case in law, for review of directions dated 12-11-2003. It was also set out that the school is receiving salary grant for staff including craft teacher and the direction was given for approval for the complainant's appointment with effect from June, 2002 and as there appears to be internal management dispute and as the complainant had been continuously working, there was no ground to review the directions. The Education Officer was therefore, asked to comply with the directions dated 12-11-2003 within four weeks. The order is dated 2-6-2004. The petition thereafter came to be filed which was admitted on 4-5-2005 and interim relief was granted in terms of Prayer Clause (1). 3. It is the case of the petitioner that the Commission itself in its order dated 21-4-2003 had held that the subject-matter of the complaint does not fall within the jurisdiction of the Commission and thus once it had so held that it had no jurisdiction it acted without jurisdiction in entertaining the complaint and directing the Education Officer to grant approval. It is also set out that the Commission does not have jurisdiction to deal with the matter in respect of grant of approval or appointment to secondary schools since there is a special Act namely Maharashtra Employees of Private Schools Act, 1976 under which remedy was available and consequently the orders of the Acting Chairperson are without jurisdiction.
On behalf of the respondent Nos. 1 and 4, a reply has been filed. It is set out that it is not open for the Education Officer after having stated before Human Rights Commission that necessary approval will be granted to the appointment of respondent No. 1 according to law to raise such a contention and the Education Officer is estopped from challenging the same. The contention of the respondent is also that the petitioner has not considered the peculiar facts of the case and that though the petitioner was called upon to grant approval, that has not been considered. It is also set out that the right to life includes right to livelihood i.e. employment and therefore, it was within the jurisdiction of the Commissioner to decide the said issue and the orders passed therefore, being within jurisdiction, the petitioner is bound to comply with the said orders. It is not necessary for this Court to go into various other aspects of the matter.
4. Suffice it to say, the only question that requires consideration is whether the order dated 12-11-2003 coupled with the order dated 2-6-2004 is within jurisdiction considering the earlier order dated 24-1-2003 and the powers conferred on the Commission by the provisions of the Protection for Human Rights Act, 1993.
We may at once consider the definition of Human rights as defined under section 2(d) of the Act and which reads as under:
"Human rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the international Covenants and enforceable by courts in India.
The very definition therefore, would suggest that the rights relating to life, liberty, equality, dignity of the individual as guaranteed by the Constitution or embodied in International Covenants and enforceable by courts in India if violated are within the jurisdiction of the Commission. Section 13 sets out the powers of the National Human Rights Commissioner. By virtue of section 29, powers conferred under section 13 have also been conferred on the State Commission. Section 36(2) is another section which is relevant and which reads as under :
The Commission or the State Commission shall not inquire into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed.
Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except accordingly to procedure established by law. Considering the definition of human rights in order for the Commission to assume jurisdiction the act complained of must be an act falling within the expression life under Article 21 of the Constitution of India.
The jurisdiction of the National Law Commission came up for consideration before the Apex Court in the case of (N.C. Dhoundial v. Union of India and Ors.) . One of the issues was the bar under section 36(2) of the Act to entertain complaints. The Apex Court held that it was a jurisdictional bar and there was no provision in the Act to extend the said period of limitation. As this issue is neither raised nor argued before us, it really need not be considered. It may however, be pointed out that considering its power, the Commission suo motu ought to have decided as to whether the complaint filed was within the period specified under section 36(2) of the Act. AS in W.P. No. 1852/2000 it was noted that the services of respondent No. 1 were terminated on 3-12-1988 and there is a statutory remedy of appeal provided to a teacher against the order of termination. Dealing with the aspect of jurisdiction, this is what the Apex Court observed that :
We cannot endorse the view of the Commission. The Commission which is a "unique expert body" is. no doubt, entrusted with a very important function of protecting human rights, but, it is needless to point out that the Commission has no unlimited jurisdiction nor does it exercise plenary powers in derogation of the statutory limitations. The Commission, which is the creature of statute, is bound by its provisions. Its duties and functions are defined and circumscribed by the Act. Of course, as any other statutory functionary, it undoubtedly has incidental or ancillary powers to effectively exercise its jurisdiction in respect of the powers confided to it but the Commission should necessary act within the parameters prescribed by the Act creating it and the confines of jurisdiction vested in it by the Act. The Commission is one of the forum which can redress the grievances arising out of the violations of human rights. Even if it is not in a position to take up the enquiry and to afford redressal on account of certain statutory fetters or handicaps, the aggrieved persons are not without other remedies. The assumption underlying the observation in the concluding passage extracted above, proceeds on an incorrect premise that the person wronged by violation of human rights would be left without remedy if the Commission does not take up the matter.
5. With the above, we may now consider the facts of the present case. Respondent No. 1 is a teacher, who is married to the Head Master of Vivekanand Vidyalaya, the respondent No. 2 herein as per the facts on record in this petition. The complaint was filed by the father of respondent No. 1 one Mr. N.C. Patil. In the matter of appointment of respondent No. 1, the Managing Committee of the school had filed petition being Writ Petition No. 1352 of 2000. The management has also averred in the petition that respondent No. 4 is wife of Head Master who was respondent No. 5 in that petition. Respondent No. 1 herein is having qualification of B.A. (Hindi) and at the time petition was filed did not have educational qualification of either D.Ed or B.Ed. However, on the representation made by the Head Master, husband of respondent No. 1 herein, resolution was passed to appoint, though according to management the post was reserved for D.T.N.T., as per roster. The resolution passed was to appoint respondent No. 1 as Assistant Teacher. However, it is contended that in the appointment letter the words "Craft Teacher" was inserted. The approval was granted for the appointment till the end of academic session. Resolution was then passed that the services of respondent No. 1 should be terminated with effect from 1-12-1998. Services came to be terminated. The management was however, surprised to receive orders dated 31-12-1999 on 6-3-2000 granting approval to the appointment of respondent No. 1. The other facts need not be set out suffice it to say that the said order was challenged. The respondent No. 3 therein filed reply in which it was pointed out that the post was reserved for S.T. The services were terminated from 1-12-1998 and the claim of respondent No. 1 herein cannot be considered for continuance in service, in view of that the petition was withdrawn as can be observed in the order of this Court dated 1-8-2001. Respondent No. 1 and the Head Master were parties to that petition. Respondent No. 1 did not controvert the conclusion or sought liberty to challenge the stand of the Education Officer. Suppressing the said fact, the father of respondent No. 4 filed complaint before the State Commission. The Acting Chairperson rightly held that the said matter does not fall within the jurisdiction of the Commission. Inspite of so holding however issued further directions for compliance. The complaint itself seems to have been registered as an administrative complaint. Once the Commission had held that it had no jurisdiction and being a creation of statute it could not have issued any further direction including direction for compliance as that would be totally beyond its jurisdiction.
It appears that thereafter, respondent No. 4 has filed second complaint in which order was passed on 12-11-2003. In the submission filed by the petitioner, and the statement recorded it was made clear that the approval to the appointment of respondent No. 1 would be in accordance with law. The petitioner has filed reply saying as to why the appointment cannot be made. The petitioner infact could not have made any appointment considering the affidavit filed before this Court in Writ Petition No. 1352 of 2000 as it would be directly contrary to what was set out before this Court. All these facts were before the learned Acting Chairperson. Inspite of that, explanation was rejected and order came to be passed directing petitioner to comply with order dated 12-11 -2003. The order dated 12-11-2003 as passed is without jurisdiction.
The jurisdiction of the Commission is in those cases where a case is made out of violation of human rights falling under the expression right to life and livelihood. There is no dispute that the right to life would include right to receive wages. Deprivation of the wage does effect the very right of life and livelihood itself. The question is whether the right to be appointed is a fundamental right. The Apex Court has held that the right to livelihood is a fundamental right, as right to life is protected under Article 21 of the Constitution of India. In (A.I.R. India Statutory Corporation and Ors. v. United Labour Union and Ors.) , it is noted that Article 41 provides that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in case of unemployment, old age, sickness and disablement, and in other case of undeserved want. In other words, the right to employment in the absence of suitable legislation cannot be placed on the same footing as right to livelihood. Though in para 21, it appears that the Apex Court has observed the right to work becomes as much fundamental as right to life that would be once a person is appointed. The Apex Court has observed as under :-
When its correctness was doubted and its reference to the Constitution Bench was made in Delhi Transport Corpn. case, while holding that Delhi Road Transport Authority was an instrumentality of the State, it was held that employment is not a bounty from the State nor can its survival be at their mercy. Income is the foundation of any fundamental rights. Work is the sole source of income. The right to work becomes as much fundamental as right to life. Law as a social machinery requires to remove the existing imbalances and to further the progress serving the needs of the socialist democratic republic under the rule of law. Prevailing social conditions and actualities of the life are to be taken into account to adjudge the dispute and to see whether the interpretation would subserve the purpose of the society.
This observation must be considered in tune what is set out in paragraph 15 of the judgment. So reading, it would mean that the right to work as a fundamental right can only be considered as fundamental right in those cases where there is a legislative guarantee in the form of legislation. In the absence of right to work being fundamental right, it would not fall within expression life under Article 21 and if so would not fall within the definition of human rights as set out under section 2(d) of the Act. On this count also, the act of the Commission would be without jurisdiction.
6. The other aspect of the matter is whether it was open to the Commission once it held the complaint does not fall within its jurisdiction to entertain another complaint and issue directions. As we have noted earlier, the powers of the Commission are as set out under section 13. There is no power conferred to review the earlier order passed. Though the issue was raised in N.C. Dhoundial (supra) the issue was not answered. By virtue of section 13 only, those power of the Civil Court have been conferred on the Commission pursuant to section 13. The Apex Court has held that the power to review must be expressly conferred on the Tribunal, Court or authority exercising jurisdiction. Though the power of procedural review is inherent in every Court or Tribunal, in so far as substantive review is concerned, it must be conferred. The Apex Court in the case of (Grindlays Bank v. Central Government, Industrial Tribunal) reported in A.I.R. 1981 S.C. 610, observed as under :
The expression 'review' is used in two distinct senses, namely, (1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record, it is in the latter sense that the Court in Narshi Thakershi's, case held that no review lies on merits unless a statute specifically provides for it, obviously when a review is sought due to a procedural defect, the inadvertant error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every Court or Tribunal.
The cause of action for Complaint No. 1581 of 2002 and Complaint No. 978 of 2003 is the same. Once the Tribunal has held that it had no jurisdiction, there was no question of entertaining the second complaint. Once there was no jurisdiction, merely because a direction was issued to submit action taken report, would not mean that the Commission continues to have jurisdiction. On the contrary, once the Commission came to conclusion that it had no jurisdiction all further directions issued itself were be without jurisdiction. We are therefore, clearly of the opinion that the order dated 12-11 -2003 though a second complaint is in fact in the nature of review which could not have been entertained. It is made clear that this does not mean that it will not be open to the Commission to entertain a second complaint if there be subsequent acts which would amount to violation of human rights and therefore, could have given right to a fresh cause of action in which event even if earlier complaint has been rejected, based on a fresh cause of action a complaint would be maintainable. In the instant case, it is not so.
7. Yet another aspect of the matter which has an important bearing would be that the issue regarding appointment was the issue before this Court in Writ Petition No. 1352 of 2000. The respondent Nos. 1 and 2 were parties to the said petition. The petitioner amongst other was respondent No. 3. The petitioner herein had filed affidavit before the School Tribunal setting out that respondent No. 1 was no longer in employment from 1-12-1998 and that the claim cannot be considered for continuation after that date. It is based on the affidavit filed before this Court that the petition was withdrawn. Respondent Nos. 1 and 2 did not challenge the affidavit filed by the petitioner or sought liberty to raise the issue of continuance of appointment of respondent No. 1. Once that be the case, the Commission could not have entertained the complaint at the instance of respondent No. 4. It may also to be pointed out that as it is a case of termination respondent No. 1 had remedy under the provisions of the Maharashtra Employees of Private Schools Act, 1977. Once a petitioner comes before a Commission complaining of violation of human rights based on a right created under a statute and the statute itself provides a mechanism for redressal by way of appeal, revision or otherwise, the Commission ordinarily should not entertain a complaint and direct the parties to pursue their remedy under the statute in our opinion therefore, the directions issued on 12-11-2003 and further order dated 2-6-2004 are without jurisdiction.
In the light of that, petition made absolute in terms of prayer Clause (i). There shall be no order as to costs.