Bombay High Court
Navyuvak Shikshan ... vs The Commissioner For Persons With ... on 6 June, 2017
Bench: I.K. Jain
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.
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
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
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
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
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.
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
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
