WP 3667.08.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.3667 OF 2008
1] Navyuvak Shikshan Sanstha
Kunjilal Peth, Babulkheda,
Nagpur, Through its Secretary,
2] Manvatapurva Madhyamik Shala,
Ambedkar Ward, Bhandara,
District-Bhandara, Through its
Head Master. .. PETITIONERS
.. VERSUS ..
1] The Commissioner for Persons with
Disabilities, 3, Church Road,
Pune-411 001.
2] Mamta Milind Nagrade,
Aged.. Major,
Resident of Plot No.114,
Vidya Nagar, Bhandara.
3] Education Officer (Primary),
Zilla Parishad, Bhandara.
4] Hansaramji M. Bawane,
Aged.. Major,
R/o. C/o. Manvatapurva
Madhyamik Shala, Ambedkar
Ward, Bhandara, District-
Bhandara. .. RESPONDENTS
..........
Shri H.A. Deshpande, Advocate for Petitioners,
Shri A.M. Balpande, AGP for Respondent No.1.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : JUNE 06, 2017.
::: Uploaded on - 14/06/2017 ::: Downloaded on - 28/08/2017 05:08:42 ::: WP 3667.08.odt 2 ORAL JUDGMENT This petition takes an exception to the order dated 9.1.2008 passed by respondent no.1 thereby quashing and setting aside voluntary retirement of respondent no.2 and granting reliefs of reinstatement and back-wages to her. 2] The facts giving rise to the petition may be stated, in brief, as under :
(a) Petitioner no.2 is a private school. The service conditions of the employees working in the school are governed and regulated by the provisions of the Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1977 (for short 'MEPS Act') and rules framed thereunder.
(b) Respondent no.2 was initially appointed as Assistant Teacher in Police Prathmik Shala, Bhandara on 5.7.1983. Due to reduction in number of students, she was declared surplus and absorbed in Amit Purva Madhyamik Shala, Dhamaditola, Tahsil- Morgaon Arjuni, District-Gondia from ::: Uploaded on - 14/06/2017 ::: Downloaded on - 28/08/2017 05:08:42 ::: WP 3667.08.odt 3 6.10.1995. Thereafter, she was transferred to Mission Girls School, Ganeshpur, Bhandara as per order dated 16.12.1996.
(c) By order dated 20.7.2000, respondent no.2 was declared surplus from Mission Girls School, Ganeshpur, Bhandara and was absorbed in petitioner no.2 school. She was repatriated to her parent institution vide order dated 5.2.2002 passed by Education Officer. The order of repatriation was lateron cancelled on 20.1.2003 and respondent no.2 was absorbed by petitioner no.2 school.
(d) On 20.2.2003 respondent no.2 applied for voluntary retirement. In view of her application for voluntary retirement, she was to retire on 31.7.2003. She was informed accordingly. By treating the letter intimating her the date of retirement as an order of termination, respondent no.2 preferred an appeal before the School Tribunal, Chandrapur. In appeal settlement was arrived at between the petitioners and respondent no.2 and her services were ::: Uploaded on - 14/06/2017 ::: Downloaded on - 28/08/2017 05:08:42 ::: WP 3667.08.odt 4 continued with all other benefits. Appeal before the School Tribunal was then withdrawn.
(e) Again on 29.1.2005, respondent no.2 applied for voluntary retirement. She was to retire on 29.4.2005 and it was communicated to her by letter dated 19.4.2005. She approached the Education Officer (Primary), Zilla Parishad, Bhandara agitating her grievance that voluntary retirement was not as per her own free will. On inspection of record, Education Officer was satisfied that application was moved by respondent no.2 as per her own free will and by letter dated 14.9.2005 informed respondent no.2 that action taken by petitioner-society was in accordance with law.
(f) On 14.11.2005, respondent no.2 wrote a letter to Education Officer to release her pensionary benefits. She duly signed her pension papers which were submitted to the office of Education Officer. Respondent no.2 thereafter approached respondent no.1 and ::: Uploaded on - 14/06/2017 ::: Downloaded on - 28/08/2017 05:08:42 ::: WP 3667.08.odt 5 agitated that her retirement was not as per her own free will.
(g) Vide order dated 9.1.2008 respondent no.1
quashed and set aside the voluntary
retirement of respondent no.2 and granted reliefs of reinstatement and back-wages. This order is the subject matter of present writ petition.
3] Shri Deshpande, learned counsel for petitioners referred to the relevant provisions and particularly Sections 61, 62 and 47 of the Act and submitted that impugned order is without jurisdiction, as Section 9 of MEPS Act confers powers upon the School Tribunal to decide an appeal of an employee of private school, who is dismissed, removed or terminated from service. It is submitted that respondent no.2 ought to have approached the School Tribunal against the order of otherwise termination.
Another ground raised on behalf of the petitioners is that respondent no.2 cannot approbate and reprobate at the same time. She accepted her voluntary retirement, proceeded to sign all pension papers and approached the Education Officer to sanction her pension and then ::: Uploaded on - 14/06/2017 ::: Downloaded on - 28/08/2017 05:08:42 ::: WP 3667.08.odt 6 proceeded to challenge the order of retirement. The learned counsel submits that the order under challenge is passed without jurisdiction and as such interference is warranted in extra-ordinary jurisdiction.
4] Per contra, Shri Balpande, learned Assistant Government Pleader for respondent no.1 supports the impugned order and submits that no error whatsoever has occurred and prays to dismiss the petition. 5] It is needless to state that recruitment and conditions of service of employees in private schools is regulated by the provisions of the MEPS Act. Section 9 of the said Act deals with right of appeal to Tribunal to employees of a private schools. Sub-section (2) of Section 9 of the Act is relevant and reproduced here for the sake of convenience.
(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. ::: Uploaded on - 14/06/2017 ::: Downloaded on - 28/08/2017 05:08:42 ::: WP 3667.08.odt 7 6] Thus, sub-section (2) of Section 9 confers powers upon the School Tribunal to decide an appeal of an employee of a private school, who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank. Respondent no.2, instead of approaching the School Tribunal, filed proceedings before the Commissioner for Persons with Disabilities/respondent no.1. 7] The moot question in the present writ petition is whether Commissioner has jurisdiction to look into the grievances of respondent no.2. Section 62 of the Rights of Persons with Disabilities Act, 2016 confers powers on the Commissioner to look into the complaints with respect to matters relating to deprivation of rights of persons with disabilities. Though Commissioner is vested with the powers to look into the complaints, no powers are vested with the Commissioner to decide an appeal of an employee of private school.
8] In the present case, dispute relates to otherwise termination of an employee of private school and under Section 9 of the MEPS Act, School Tribunal had the jurisdiction and not the Commissioner under the Rights of ::: Uploaded on - 14/06/2017 ::: Downloaded on - 28/08/2017 05:08:42 ::: WP 3667.08.odt 8 Persons with Disabilities Act, 2016.
9] It is significant to note that on the first occasion, respondent no.2 had tendered her retirement. That time, she approached the School Tribunal to set right her grievances. On second occasion, instead of approaching school tribunal under Section 9, she filed complaint before respondent no.1. This court, upon considering the provisions of Section 9 of the MEPS Act and Section 62 of the Rights of Persons with Disabilities Act, 2016, finds that order dated 9.1.2008 passed by respondent no.1 is without jurisdiction. As jurisdictional error has occurred, interference is warranted in writ jurisdiction. Petition, therefore, deserves to be allowed. Hence, the following order :
(i) Writ Petition No.3667 of 2008 is allowed.
(ii) Impugned order dated 9.1.2008 passed by respondent no.1 is quashed and set aside.
(iii) No order to costs.
(Kum. Indira Jain, J.)
Gulande, PA
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