Janjagruti Shikshan Sanstha, ... vs Additional Commissioner, Tribal ...
2016 Latest Caselaw 1999 Bom

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                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                                        NAGPUR BENCH : NAGPUR.




                                                                               
                                                   Writ Petition No.5159 of 2014.




                                                                              
                       1]       Janjagruti Shikshan Sanstha, at Deolgaon,  
                                Post Navegaon, Tahsil Arjuni Mor, district Gondia, 
                                through its Secretary.




                                                             
                       2]
                                       
                                Nathuji Pustode Anudanit Adiwasi Ashram Shala, 
                                Deolgaon, post Navegaon, Tahsil Arjuni Mor, 
                                District Gondia, through its Head Master.        .... Petitioners.
                                      
                       Versus
         


                       1]       Additional Commissioner, Tribal Development, 
                                Nagpur Division, Adiwasi Vikas Bhavan, First Floor, 
      



                                Giripeth, Amravati Road, NAGPUR- 440 010.  

                       2]       The Project Officer, 





                                Integrated Tribal Development Project, Deori, 
                                Tahsil Deori, District Gondia.

                       3]       Pradnya Shikshan Sanstha at Yerandi, 





                                Deolgaon, Post Navegaon, Tahsil Arjuni Mor, 
                                district Gondia, through its Secretary. 

                       4]       Dudhram Maroti Sayam,
                                R/o.- Dabhe Tekadi, 
                                Tahsil and District Gondia.                          .... Respondents.




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                       Shri M.V. Samarth, Adv for petitioners.
                       Shri N.M. Jibhkate, Adv for resp.no.4.




                                                                               
                       Ms T.H. Udeshi, AGP for resp.nos. 1 and 2.

                                                        Coram :  S.B. Shukre, J.

th Dated : 28 April, 2016.

ORAL JUDGMENT

1] Rule. Rule made returnable forthwith. Heard finally by

consent.

2] By this petition, the petitioners have challenged the legality

and correctness of the order dated 14-08-2014 passed by the

Additional Commissioner, Tribal Development. By this order, the

learned Additional Commissioner, Tribal Development while

refusing to grant relief of reinstatement in service, has granted

some other reliefs. These reliefs are of payment of compensation

of Rs. 2 lakhs and 40% of the back wages to the respondent no.4.

3] The Writ Petition has been primarily grounded on the

objection that the school of the petitioners is primary Ashram

School and it is not covered by the definition of private school

within the meaning of the Maharashtra Employees of Private

Schools (Conditions of Service) Regulation Act, 1977 [for short,

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'the MEPS Act'] and therefore, the Additional Commissioner,

Tribal Development could not have any jurisdiction to entertain the

grievance of the petitioners. In short, according to the petitioners,

the case of respondent no.4 is not at all covered by the provisions

of the MEPS Act.

4] The learned Counsel for respondent no.4 does not dispute

the fact that the petitioners school is a primary Ashram School and

in view of the law laid down in various judgments including the

judgments of Shri Janjagriti Shikshan Prasarak Mandal, Shekapur

and another v State of Maharashtra and others, reported at

2015(4) Mh.L.J. 756 and Suryakant Sheshrao Panchal v

Vasantrao Naik Vimukta Jati, Bhatakya Jamati Aadarsh Prasarak

Mandal and others, reported at 2002(3) Mh.L.J. 659 it is not a

private school as would be covered by the provisions of the MEPS

Act. He, however, submits that this Court is having enough power

to mould reliefs in appropriate cases and according to him, one

such relief could be in the nature of allowing the respondent no.4

to approach the Divisional Social Welfare Officer for redressal of

his grievance as has been done in the case of DAGDU v President,

Anandrao Naik Shikshan Prasarak Mandal and others, reported at

(2006) 9 Supreme Court Cases 782 of the Hon'ble Apex Court. He

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further submits that if such relief is not granted to the respondent

no.4, the respondent no.4 will be rendered remedyless.

5] The learned Assistant Government Pleader submits that the

law laid down in the various judgments is a matter of record and

therefore an appropriate order may be passed.

6]

Shri Samarth, the learned Counsel for the petitioners who

are the petitioners in Writ Petition No. 5160 of 2014 submits that,

the respondents do not have any role to play and for some period of

time the petitioners school was closed and its pupils were

transferred to petitioner no.1 school for imparting their remaining

eduction. He, however, submits that this Writ Petition is squarely

covered by the cases which are relied upon by the petitioners. In

addition, he also places his reliance upon the case of Secretary,

A.P.D. Jain Pathshala and others v Shivaji Bhagwat More and

others, reported at (2011) 13 Supreme Court Cases 99 wherein, the

Hon'ble Apex Court has held that the right of filing of appeal is

creation of statute and unless such right is granted expressly by a

statute, the remedy in the nature of filing of an appeal is not

available. He submits that since the petitioners school is not

covered by the provisions of the MEPS Act and there is no other

law providing remedy of appeal in a case like the present one, the

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order of the learned Additional Commissioner, Tribal Development

would have to be termed as passed without jurisdiction. He has

also referred to a decision rendered by the learned Single Judge of

this Court in Writ Petition No.3668 of 2014 (Shivshakti Shikshan

Sanstha, Deori and another v The Additional Commissioner,

Tribal Development, Nagpur and others), and submits that the

present Writ Petition is squarely covered by this judgment.

7] Once it is found that the petitioners school is not a private

school, it being the primary Ashram School and not covered by

the provisions of the MEPS Act as has been established here, this

case would instantaneously fall within the category of the cases

covered by the judgments relied upon by the learned Counsel for

the petitioners. In the case of Shivshakti Shikshan Sanstha, Deori

and another (supra) the learned Single Judge of this Court has

taken a view that in a case like the present one, the Additional

Commissioner, Tribal Development would have no jurisdiction to

exercise adjudicatory powers merely on the basis of the

Government Resolutions. In the instant case, the learned

Additional Commissioner, Tribal Development has entertained the

appeal only on the basis of a Government Resolution and as held

by the Hon'ble Apex Court in the case of Secretary, A.P.D. Jain

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Pathshala and others (supra) a Government Resolution cannot be

equated with a legislation and therefore cannot confer any

adjudicatory powers on any authority. The adjudicatory bodies as

observed by the Hon'ble Apex Court derive their powers from a

statute which creates them and they have to function within the

limits imposed by such a statute. The impugned order has been

passed in this case by relying on a Government Resolution and not

any statutory provision. Therefore, I find that the order impugned

in this petition is without jurisdiction and cannot be sustained in

law.

8] About the case of DAGDU v President, Anandrao Naik

Shikshan Prasarak Mandal and others (supra), I must say, the

Hon'ble Apex Court in the facts peculiar to that case granted

liberty to the affected employee to file an appeal before the

Divisional Social Welfare Officer and that was done in exercise of

its special powers under Article 142 of the Constitution of India

and also in pursuance of an affidavit making a special concession

filed on behalf of the respondent no.4. In the instant case, no such

affidavit has been filed. Therefore, the relief as sought for by the

respondent no.4 in this petition cannot be granted. At the same

time, it must be observed that the respondent no.4 would have to be

given liberty to approach the competent forum for redressal of

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his grievance.

9] In the circumstances, the Writ Petition is allowed. The

impugned order is quashed and set aside. However, liberty is

granted to respondent no.4 to avail of such remedy as may be

available in law and if any objection regarding delay is taken, the

same be considered in accordance with law.

10] Rule is made absolute in above terms. No costs.

JUDGE

Deshmukh