Vasantrao S/Oi Baburao Lende &5 ... vs State Of Man.Thr.Its Secretary &5 ...
2017 Latest Caselaw 1071 Bom

 Judgment                                          1                                wp3135.08.odt




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


                           WRIT PETITION NO. 3135 OF 2008


 1. Vasantrao S/o. Baburao Lende,
    Aged about 44 years, Occupation : 
    R/o. Ward No.3, Near Tahsil Office,
    Deulgaon Raja, Dist. : Buldana. 

 2. Shri Krishnarao S/o. Tejrao Cheke,
    Aged about 37 years, Occupation : 
    R/o. Sura, Post : Saramba,
    Deulgaon Raja, Dist. : Buldana. 

 3. Gajanan S/o. Bhanudas Parihar,
    Aged about 30 years,  
    R/o. Pimpri, Post : Aanchwadi,
    Deulgaon Raja, Dist. : Buldana. 

 4. Ravindra S/o. Vishnu Sarode,
    Aged about 32 years,  
    R/o. Nagangaon, Post : Saramba,
    Tahsil : Deulgaon Raja,Dist.: Buldana. 

 5. Bhanudas S/o. Sitaram Shingne,
    Aged about 38 years,  
    R/o. Deulgaon Mahi, Tahsil :
    Deulgaon Raja, District : Buldana. 

 6. Sheikh Khawaja S/o. Sk. Afsar,
    Aged about 36 years,  
    R/o. Deulgaon Mahi, Tahsil :
    Deulgaon Raja, District : Buldana.  



                                    //  VERSUS //

 1. State of Maharashtra, through
    its Secretary, Department of 
    Welfare and Culture, Mantralaya,
    Mumbai. 




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  Judgment                                           2                                wp3135.08.odt




 2. Director of Social Welfare
    Department, Maharashtra State, 
    pune-1.

 3. The Divisional Social Welfare Officer,
    Amravati Division, Amravati.

 4. Social Welfare Officer,
    Block A, Zilla Parishad, Buldana. 

 5. Anant Anand Swami Shikshan
    Sanstha, through its Secretary,
    Deulgaon Mahi, Tah. :Deulgaonraja,
    District : Buldana. 

 6. Sant Dhayaneshwar Niwasi Apang
    Vidyalaya, through its Head Master, 
    Deulgaon Mahi, Tah. : Deulgaonraja,
    District : Buldana. 
                                                                     .... RESPONDENTS
                                                                                   . 

  ___________________________________________________________________
 Shri A.D.Mohgaonkar, Advocate for Petitioners. 
 Ms Tajwar Khan, A.G.P. for Respondent Nos. 1 to 3. 
 Ms Smita Dashputre, Adv. h/f. Shri P.B.Patil, Adv. for Respondent No.5. 
 ___________________________________________________________________

                              CORAM : Z.A.HAQ, J.

DATED : MARCH 27, 2017.

ORAL JUDGMENT :

1. Heard.

2. The petitioners/employees have challenged the order passed by

the Divisional Social Welfare Officer dismissing the appeal filed by them.

3. The petitioners were working in respondent No.6 school. The

petitioners had filed Writ Petition No.1482 of 2004 before this Court praying

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that the Divisional Social Welfare Officer, Amravati and Social Welfare

Officer, Zilla Parishad, Buldana be restrained from granting approval to any

employee working in the respondent school and that the management be

directed to submit proposal seeking approval to any employee working in the

respondent school and that the management be directed to submit proposal

seeking approval to the appointments of the petitioners. The Division Bench

of this Court, disposed the petition by order passed on 5th March, 2007,

accepting the submission made on behalf of the management that the

petitioners were not in service. The management claimed that the petitioners

had abandoned the service, whereas the petitioners disputed the claim made

by the management. The Division Bench recorded that as the petitioners

were not in service, they could avail remedy under clause 86 of the Special

School Code for Handicapped School, 1997, if otherwise permissible in law.

After disposal of Writ Petition No. 1482 of 2004 the petitioners

filed appeal under Clause 86 of the Special School Code for Handicapped

Schools, 1997, which is dismissed by the impugned order.

4. In the judgment given by this Court in the case of Mahadeo

Shriram Sarode vs. Regional Deputy Commissioner & others in Writ Petition

No. 7389 of 2014 on 19th October, 2015, relying on the judgment given in

the case of A.P.D. Jain Pathshala Vs. Shivaji Bhagwat More, reported in

2011(13) SCC 99, it is held that the authorities under the Special School

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Code cannot exercise quasi-judicial powers as the Special Code is

compendium of the directions issued under Article 162 of the Constitution of

India and by these executive powers the State cannot confer powers on the

Tribunals or Authorities to adjudicate disputes and render binding decisions.

Paragraphs 25 and 27 of the judgment given in the case of A.P.D. Jain

Pathshala (supra) are relevant, which are reproduced as under :

"25. Article 162 of the Constitution, no doubt, provides that subject to the provisions of the Constitution, the executive power of a State shall extend to the matters upon which the legislature of the State has competence to legislate and are not confined to matters over which legislation has been already passed. It is also well settled that so long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power under Article 162 cannot be circumscribed; and if there is no enactment covering a particular aspect, the Government could carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. (See Ram Jawaya Kapur v. State of Punjab and Bishambhar Dayal Chandra Mohan v. State of U.P.)

26. ....

27. If the power to constitute and create judicial tribunals by executive orders is recognised, there is every likelihood of tribunals being created without appropriate provisions in regard to their constitution, functions, powers, appeals, revisions and enforceability of their orders, leading to chaos and confusion. There is also very real danger of citizen's rights being adversely affected by ad hoc authorities exercising judicial functions, who are not independent or competent to adjudicate disputes and render binding decisions. Therefore, the executive power of the State cannot be extended to creating judicial tribunals or authorities exercising judicial powers and rendering judicial decisions."

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Similarly, in the judgments given by this Court at Aurangabad

Bench in the case of Parivartan Vidya Prasarak Sanstha and another Vs. The

State of Maharashtra and others in Writ Petition No.483/2005 on

16/10/2009 and in the case of Balkrishna Raghunath Jadhav vs. The State of

Maharashtra and others in Writ Petition No.3044/2011 on 02/08/2013,

this Court has considered the issue as to whether the Divisional Social

Welfare Officer is competent to entertain and decide the appeals filed by the

employees of the Ashram Schools, seeking redressal of their grievance and it

is held that the Divisional Social Welfare Officer will not be competent to

exercise quasi-judicial authority.

5. In view of the above, the grievance of the petitioners as made in

this petition cannot be considered.

The petition is dismissed. In the circumstances, the parties to

bear their own costs.

It is clarified that the merits of the claim of the petitioners are

not considered and the petitioners will be at liberty to raise their claim in

appropriate proceedings before appropriate forum, if so advised.

JUDGE

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