Sudha D/O Bhaskarrao Saikhede vs Yashodabai Shikshan Sanstha And ...
2003 Latest Caselaw 837 Bom

JUDGMENT

A.P. Deshpande, J.

1. Rule made returnable forthwith and heard by consent of the parties.

2. The petitioner is working as an Assistant Teacher in respondent No. 2 School which is administered and managed by the respondent No. 1 Society. It is an admitted position that the petitioner is a permanent assistant teacher and her service conditions are regulated by the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules made thereunder.

3. The respondent No. 1 after serving a statement of allegations, called for explanation of the petitioner to the same and as the explanation was not found to be satisfactory, proceeded to constitute an Inquiry Committee to enquire into the alleged acts of misconduct. The constitution of the Inquiry Committee is regulated by Rule 36 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. Sub-rule (2) of Rule 36 provides that the Inquiry Committee shall comprise of i) a nominee of the Management, ii) one member nominated by the employee from amongst the employees of the private school and iii) one member to be chosen by the Chief Executive Officer from the panel of teachers on whom State/National Award has been conferred. In the present case two fold objection is raised to the nomination of State Awardee Teacher who is chosen by the Chief Executive Officer. The objection raised by petitioner is to the effect that the State Awardee Teacher has crossed the age of 65 years and as such he is not eligible to be nominated on the Inquiry Committee. The second objection in regard to the State Awardee Teacher is that he is conducting two enquiries (more than one) at a time. Insofar as the Rule 36 is concerned, it does not disentitle the State Awardee/National Awardee Teacher who is above 65 years to be a member of an Inquiry Committee and so also the said Rule does not lay down any restriction on the State/National Awardee Teacher in regard to the number of enquiries he could associate himself with at a given point of time. Despite the fact that Rule 36 does not provide any such limitation, the State Government acting through its Under Secretary has issued a clarification dated 6-2-1986 addressed to the Director of Education, Maharashtra State, Pune, clarifying therein the points raised for its opinion. The relevant points raised by the Director of Education and the clarification issued by the Government reads thus :

(1).......................

(2) who should be taken on the panels?

In addition to serving teachers, retired persons below the age of 65 years on whom National/State Awards were conferred should be taken on the panels.

(3) what restrictions should be placed on such a person?

An Awardee Teacher should not work on more than one Committee at a time."

(4).........

4. The learned counsel for the petitioner submits that as the Awardee Teacher chosen in the instant case by the Chief Executive Officer is above the age of 65 years and as he is already conducting one more inquiry, he stands disqualified to be nominated on the inquiry Committee.

5. Shri Parsodkar, learned counsel appearing for the Management submits that Rule 36 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules which deals with the constitution of Inquiry Committee, its powers and procedure, is a complete Code and subject of inquiry is fully and completely regulated by the statutory rule and as such it is impermissible for the State to issue administrative instructions which runs counter to the mandate of the Rules. Shri Parsodkar submits that the power of the State Government to issue administrative instructions under Article 162 of the Constitution of India is subject to the legislation made by the State in that regard. He as such contends that the State Government's instructions cannot impinge upon the statutory rules but the same ought to yield to Rule 36 of M.E.P.S. Rules.

6. It is settled position of law that the executive power of the State is co- extensive with the legislative power of the State, subject to the provisions of the Constitution. Proviso to Article 162 limits the executive power of the State in regard to matters with respect to which the legislature of a State has power to make laws. Section 16 of the M.E.P.S. Act empowers the Government to frame rules which may provide for all or any of the matters enumerated in the said section. Section 16(2)(e) and (f) reads thus:

(e) the duties of such employees and Code of Conduct and disciplinary matters;

(f) the manner of conducting enquiries.

Sub-section (4) lays down that the rules so framed shall be laid before each House of State Legislature, in the manner prescribed. The rules are then to be notified in the Official Gazette and on such notification the rules come into force. In tune with the mandate of Section 16, the M.E.P.S. Rules, 1981 have been brought into force with effect from 15-7-1981. Rule 36 squarely deals with Composition and constitution of Inquiring Committees. Rule 36(2)(a)(iii) reads as under;

"36(2)(a)(iii) -- One member chosen by the Chief Executive Officer from the panel of teachers on whom State/National Award has been conferred."

Reading of Rule 36(2)(a)(iii) of the M.E.P.S. Rules, 1981, makes it clear that it does not disqualify an Awardee teacher if he is above 65 years of age nor does Rule 36 limits the association of an Awardee teacher to only one enquiry committee at a time. If this be the position in law, we have no doubt that the clarification issued by the Government cannot encroach upon Rule 36 of the M.E.P.S. Rules, and it must yield to the Rules. In the result, we hold that the clarification issued by the Government cannot either be read in Rule 36 nor can it invalidate an Inquiry Committee constituted in breach thereof. Having held that the breach of the Government instructions in no way affects the validity of the constitution of the Inquiry Committee, we proceed to consider the scope and applicability of the said instructions.

7. After careful consideration of the submissions made by the respective Advocates, we are of the clear opinion that the scope of instructions issued by the Under Secretary to the Government in his letter dated 6-2-1986 and the clarifications accompanying the same is very limited and has to be construed as directions issued to the Education Officer and/or the Awardee Teacher and has no bearing on the validity of the Inquiry Committee. If and in case, an Awardee Teacher chooses to be on more than one Committee at a time, the Government may decide to remove him from the panel. The said instructions could be read, at the most, as regulating the preparation of the panel and providing guidelines to the Awardee Teacher. We are at a loss to understand as to why an Awardee Teacher who is above the age of 65 years, if otherwise physically and mentally fit to be on an Inquiry Committee, be held disqualified for being a member thereof. The age bar which is sought to be canvassed by the learned counsel for the petitioner, in our opinion, not being there under the Rules, cannot be incorporated in Rule 36 of the Rules by placing reliance on the clarifications issued by the State Government, as the same is contrary to the Statutory Rules. In the result, we find no merit and substance in the submissions made by the learned counsel for the petitioner that the constitution of the Inquiry Committee which is the subject matter of challenge in the present case suffers from any illegality. We are of the view that the challenge to the nomination of the State Awardee Teacher on the above referred two counts is devoid of any substance and merits and in the result the same is rejected.

8. The next ground pressed in service by the petitioner is that the Management's nomination on the Inquiry Committee who is acting as its convener viz. Dilip Kalbande is hostile to him and that the petitioner has real apprehension of bias against him. Prior to the appointment of Dilip Kalbande as a convener of the Inquiry Committee the petitioner had made complaints against him with the Education Officer so also in the Police Station and as such Shri Dilip Kalbande, it is urged, has bias against the petitioner. Shri Parsodkar, learned counsel appearing for the Management though initially tried to submit that there is no substance in the allegations made by the petitioner in the instant petition against the Convener, as the complaints were themselves found to be unsustainable, proceeded to concede and filed a pursis in this Court submitting therein that as the petitioner is having apprehension of bias against said Mr. Dilip Kalbande, the Management is agreeable for the change of the said person and in his place would nominate one Shri Devendra Raghunath Nege as nominee of the Management and convener of the Inquiry Committee. Shri Mohagaonkar has no objection to the said name. In this view of the matter, hereafter the inquiry shall proceed with Shri Devendra Raghunath Nege as convener and Shri P. D. Deshmukh State Awardee Teacher and the nominee of the petitioner as its members. We further conclude that earlier proceedings conducted under the convenership of Shri Dilip Kalbande would hold good and inquiry would proceed from the stage at which it was stayed.

9. In the result, the Writ Petition is partly allowed. Rule is made absolute in the above terms. There shall be no order as to costs. Needless to say, interim stay granted stands vacated.