Bombay High Court
Ku. Panchasheela D/O Vaijnath ... vs The President/Secty., Yavatmal ... on 17 March, 2021
Bench: S.B. Shukre, Avinash G. Gharote
LPA 143 of 2011.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
LETTERS PATENT APPEAL NO.143/2011
IN
WRIT PETITION NO.3253/2009(D)
APPELLANT : Ku. Panchasheela d/o Vaijnath Patil,
PETITIONER Aged about 30 years, Occupation - Nil,
R/o Dhanki, Tq. Umarkhed, Distt. Yavatmal.
...VERSUS....
RESPONDENTS : 1) The President/Secretary, Yavatmal
Akhil Bharatiya, Zilla Akhil
Kunbi Samaj, Head Office at Umarkhed,
Tq. Umarkhed, Distt. Yavatmal.
(Amended as per Court's order
dt. 06/2/12)
2) The Headmistress, Savitribai
Phule Junior College, Mahagaon,
Tq. Mahagaon, Distt. Yavatmal.
3) Deepak S. Chaphale,
Aged about 32 years, Occupation - Service,
C/o Savitribai Phule Jr. College,
Mahagaon, Tq. Mahagaon, Distt. Yavatmal.
4) The Deputy Director of Education,
Amravati Division, Amravati.
WITH
LETTERS PATENT APPEAL NO.79/2011
IN
WRIT PETITION NO.3253/2009(D)
LPA 143 of 2011.odt
2
APPELLANT : Deepak S/o Shriram Chaphale
Aged about 32 years, Occ. Service,
C/o. Savitribai Phule Jr. College,
Mahagaon, Tq. Mahagaon,
Distt. Yavatmal.
...VERSUS....
RESPONDENTS : 1) The President/Secretary, Yavatmal
Akhil Bharatiya, Zilla Akhil
Kunbi Samaj, Head Office at Umarkhed,
Tq. Umarkhed, Distt. Yavatmal.
(Amended as per Court's order
dt. 6/2/12)
2) The Headmistress, Savitribai
Phule Jr. College, Mahagaon,
Tq. Mahagaon, Distt. Yavatmal.
3) Ku. Panchasheela D/o. Baijnath Patil,
aged about 30 years, Occ. Nil,
R/o. Dhanki, Tq. Umarkhed,
Distt. Yavatmal.
4) Deputy Director of Education, Amravati
Division, Amravati.
-----------------------------------------------------------------------------------------------
Mr. Shekhar S. Dhengale, Advocate for appellant in LPA No.143/2011
Mr. Kailash S. Narwade, Advocate for respondent nos.1 and 2 in LPA
No.143/2011
Mr. Kapil V. Deshmukh, Advocate for respondent no.3 in LPA No.143/2011
Ms H.N. Jaipurkar, AGP for respondent no.4 in LPA No.143/2011
Mr. Kapil V. Deshmukh, Advocate for appellant in LPA No.79/2011.
Mr. Kailash S. Narwade, Advocate for respondent nos.1 & 2 in LPA No.79/2011
Mr. Shekhar S. Dhengale, Advocate for respondent no.3 in LPA No.79/2011
Ms H.N. Jaipurkar, AGP for respondent no.4 in LPA No.79/2011
-----------------------------------------------------------------------------------------------
LPA 143 of 2011.odt
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CORAM : SUNIL B. SHUKRE AND
AVINASH G. GHAROTE, JJ.
Judgment reserved on : 04/03/2021
Judgment pronounced on : 17/03/2021
J U D G M E N T : (PER : AVINASH G. GHAROTE, J.)
1. A preliminary objection has been raised by Mr. Kapil
Deshmukh, learned Counsel, who appears for respondent no.3 in
L.P.A. No.143/2011 and for appellant in L.P.A. No.79/2011,
contending that a writ petition before a learned Single Judge of this
Court, was not maintainable at all, in view of which, the present
letter patent appeals would also not be tenable.
2. Mr. Kapil Deshmukh, learned Counsel submits, that in
Writ Petition No.3253/2009, preferred by Ku. Panchasheela Patil, the
decision rendered on 26/6/2009, by the Grievance Committee, in
Appeal No.21/2007, was challenged along with the appointment
order dated 16/3/2007, whereunder the appellant Deepak
Chaphale, was appointed. It is submitted that both these orders,
were administrative orders and not judicial or quasi-judicial orders.
By placing reliance upon Rule 18 Chapter XVII of the Bombay High
LPA 143 of 2011.odt
Court Appellate Side Rules, 1960 (for short, "the Appellate Side
Rules" hereinafter), he contends that, that only judicial and quasi-
judicial orders and not administrative orders can be challenged
under Articles 226 and 227 of the Constitution before the learned
Single Judge, in view of which, the petition before the learned Single
Judge itself was not maintainable. Relying upon Secretary, A.P.D.
Jain Pathshala and others Vs. Shivaji Bhagwat More and others,
(2011) 13 SCC 99, he submits, that the very constitution of the
Grievance Committee was put in question and it was held that the
orders/decisions of the Grievance Committee, as constituted under
the Government Resolution dated 27/4/2000 by the State of
Maharashtra were not enforceable or executable, but only
recommendatory in nature, in view of which, the challenge to the
same, was clearly not amenable to the jurisdiction of the learned
Single Judge under Rule 18 of Chapter XVII of the Appellate Side
Rules. Learned Counsel Mr. Kapil Deshmukh also places reliance
upon Pandurang Vs. State of Maharashtra, AIR 1987 SC 535 , to
contend that when a matter is required to be decided by the Division
Bench of the High Court, but is decided by a Single Judge, the
judgment would be a nullity. He further submits, that a pure
LPA 143 of 2011.odt
question of law can be raised at any stage of the proceedings, for
which reliance is placed upon Bhagyashreeraje Shivajirao
Dhanwatey and another Vs. State of Maharashtra and another, 2007
(1) Bom. C.R. 219; State of Uttar Pradesh and others Vs. Dr.
Anupam Gupta etc., AIR 1992 SC 932; Union of India and others Vs.
Upper Ganges Sugar and Industries Ltd., (2005) 1 SCC 750. Learned
Counsel Mr. Kapil Deshmukh therefore submits, that since the writ
petition itself was not maintainable, the resultant letters patent
appeals on these grounds, would also not be maintainable.
3. Mr. Kailash Narwade, learned Counsel for the
respondent nos.1 and 2 in L.P.A. No.143/2011 also relies upon
Harshad Chiman Lal Modi Vs. DLF Universal Ltd. and another,
(2005) 7 SCC 791 and also supports the submissions canvassed by
Mr. Kapil Deshmukh, learned Counsel.
4. Mr. Shekhar Dhengale, learned Counsel for the
appellant Ku. Panchasheela Patil, the appellant in L.P.A.
No.143/2011 and respondent no.3 in L.P.A. No.79/2011, opposes
the submissions. He contends that Writ Petition No.3253/2009, was
LPA 143 of 2011.odt
decided on 14/1/2011, whereas the judgment in Secretary, A.P.D.
Jain Pathshala (supra), came on 4/11/2011 and therefore, would
not have any applicability upon the present matter. By relying upon
Mohammad Swalleh and others Vs. Third Additional District Judge,
Meerut and another, (1988) 1 SCC 40, he contends that even if it is
construed that the petition before the learned Single Judge was not
maintainable, since the matter was now before the Division Bench, it
was permissible to consider the merits of the matter and decide the
same.
5. In rebuttal, Mr. Kapil Deshmukh, learned Counsel,
places reliance upon State of Orissa and others Vs. Md. Illiyas,
(2006) 1 SCC 275 and Harshad Chiman Lal Modi Vs. DLF Universal
Ltd. and another, (2005) 7 SCC 791, to contend, that the judgment,
in Mohammad Swalleh (supra), has to be construed in the
background of the facts on the basis of which it was decided, and
not otherwise.
6. We have heard learned Counsels for the parties on
preliminary objection.
LPA 143 of 2011.odt
7. Though we are not concerned with the merits of the
matter here, certain facts are necessary to be noted. The appellant -
Ku. Panchasheela Patil had challenged the appointment of Mr.
Deepak Chaphale, as a Shikshan Sevak, before the Grievance
Committee, by way of the proceedings styled as Appeal No.21/2007,
which came to be rejected on 26/6/2009. Against this rejection, Writ
Petition No.3253/2009 (Ku. Panchasheela D/o Vaijnath Patil Vs. The
President/Secretary, Yavatmal Akhil Bharatiya Kunbi Samaj, Tq.
Umarkhed, Distt. Yavatmal and others) came to be filed, which came
to be partly allowed by judgment dated 14/1/2011, whereby the
order dated 26/6/2009 passed in Appeal No.21/2007 by the
Grievance Committee was quashed and set aside and so also the
appointment of the respondent no.3 therein (Deepak Chaphale) as
made on the post of Shikshan Sevak in Junior College on 16/3/2007
was set aside and it was held that it would be open for the
respondent -Management to readvertise the post in question and
make fresh selection pursuant to the advertisement in accordance
with law.
LPA 143 of 2011.odt
8. It is not in dispute that what was in challenge before the
learned Single Judge in Writ Petition No.3253 of 2009 was the
judgment dated 26/6/2009 in Appeal No.21/2007 (Ku.
Panchasheela D/o Vaijnath Patil Vs. The Dy. Director of Education,
Amravati Division, Amravati and others) passed by the one member
Grievance Committee for entertaining complaints of Shikshan
Sevaks at Nagpur, constituted under the Government Resolution
dated 27/4/2000, by the State of Maharashtra, to hear the
grievances of Shikshan Sevaks. The Hon'ble Apex Court in Secretary,
A.P.D. Jain Pathshala (supra) held that the Grievance Committee so
constituted was not a public quasi-judicial Forum nor could its
decisions be made final and binding on the parties, in dispute
relating to Shikshan Sevaks. It was further held that if a Grievance
Committee opines that the termination or cancellation of
appointment of a Shikshan Sevak was bad, the State Government
may consider such opinion/recommendation and if it decides to
accept it, take appropriate action by directing the school to take back
the Shikshan Sevak, and if the school failed to comply, take action as
was permissible including stoppage of the grant. It was also held
that an opinion by the Grievance Committee that the termination of
LPA 143 of 2011.odt
the services of a Shikshan Sevak was illegal, cannot however, have
the effect of either reinstating the employee in service nor deemed to
be a declaration that the Shikshan Sevak continued to be an
employee of the school. It was also held that the decision of the
Grievance Committee, therefore, was not an enforceable or
executable order, but only a recommendation that can be made the
basis by the Education Department to issue appropriate directions
and it is only such directions by the State Government, which would
give cause to an aggrieved person to challenge such directions either
before the Civil Court or in a writ proceeding. It is thus apparent,
that the decision of the Grievance Committee as rendered on
26/6/2009 in the instant matter, was not a decision by a judicial or
quasi-judicial authority, but was merely a recommendation, on the
basis of which, directions could have been issued by the State
Government in the concerned department.
9. Rule 18 of Chapter XVII of the Appellate Sides Rules,
lays down the learned Single Judges powers to finally dispose off
applications under Articles 226 and 227 of the Constitution. Clause 1
to 46 in Rule 18 above, delineates the various decrees and orders,
LPA 143 of 2011.odt
which can form the subject matter of a challenge in a petition before
the learned Single Judge. It is necessary to note, that the explanation
to Rule 18 above, defines the expression "order", as appearing in
Clauses 1 to 46 of Rule 18, to mean any order passed by any judicial
or quasi-judicial authority empowered to adjudicate under the
Statutes mentioned therein. Considering what has been held in
Secretary, A.P.D. Jain Pathshala (supra) that the order passed by the
Grievance Committee, was only recommendatory in nature, and that
the Grievance Committee was not a public quasi-judicial Forum, the
order/recommendation of the Grievance Committee cannot be said
to fall within the definition of "order" as defined in Explanation to
Rule 18 of Chapter XVII of the Appellate Side Rules, consequently, a
challenge to the same, was not maintainable before the learned
Single Judge of this Court, and any challenge to the same, if at all it
was so permissible, could only have been laid before the Division
Bench of this Court, in view of Rule 1 of Chapter I of the Appellate
Side Rules. This being so, the statement of law, as enunciated in
Pandurang (supra), which states that when a matter required to be
decided by Division Bench of the High Court is decided by a learned
Single Judge, the judgment would be a nullity, the matter having
LPA 143 of 2011.odt
been heard by Court, which had no competence to hear the matter, it
being a matter of total lack of jurisdiction, clearly becomes
applicable.
10. The plea of non-maintainability of the petition before
the learned Single Judge, is based purely upon undisputed factual
position on record, and though the same was not raised earlier, it
cannot be said that the same would not be available now. Reliance
upon Bhagyashreeraje Dhanwatey (supra); Dr. Anupam Gupta
(supra) and Upper Ganges Sugar and Industries Ltd. (supra) by
Mr. Kapil Deshmukh, learned Counsel for the appellant in LPA
No.79/2011 is well founded.
11. The contention of Mr. Shekhar Dhengale, learned
Counsel for appellant in LPA No.143/2011, that the Writ Petition
No.3253/2009 came to be decided on 14/1/2011, however, since
Secretary, A.P.D. Jain Pathshala (supra) was decided on 4/7/2011,
and therefore the petition as filed ought to be held as maintainable,
in our considered opinion, does not hold any water, for the reason,
that lack of jurisdiction, would go to the root of the matter, and any
LPA 143 of 2011.odt
decision rendered without jurisdiction, would be a nullity. The
Grievance Redressal Committee, as constituted under the
Government Resolution dated 27/4/2000, could never have been
constituted as a quasi-judicial forum, as it was created under a
Government Resolution, and always remained an administrative
grievance redressal mechanism. That being so, the decision in
Secretary, A.P.D. Jain Pathshala (supra), being rendered later in point
of time, than that in Writ Petition No.3253/2009, would be of no
avail.
12. The reliance upon Mohammad Swalleh (supra), by
learned Counsel Mr. Shekhar Dhengale, is misplaced, for the reason
that in Mohammad Swalleh (supra) the High Court exercising its
jurisdiction under Article 226 of the Constitution, in exercise of
which, it had come to the conclusion that the order of the prescribed
authority was invalid and improper and could itself have set it aside,
though technically the same having been done by the District Judge,
could be considered to be illegal and improper, as no appeal lay
before him. In the instant matter, however, we are not exercising our
jurisdiction under Article 226 of the Constitution, but appellate
LPA 143 of 2011.odt
jurisdiction under Clause 15 of the Letters Patent and therefore, the
decision in Mohammad Swalleh (supra), is of no assistance to the
point being canvassed by Mr. Shekhar Dhengale, learned Counsel for
the appellant in LPA No.143/2011. In light of the above, it is not
necessary to consider Md. Illiyas,(supra) and Harshad Chiman Lal
Modi (supra).
13. In view of what has been discussed above, we hold that
Writ Petition No.3253/2009, was not maintainable before the learned
Single Judge, as a result of which, the judgment dated 14/1/2011
would be rendered a nullity being without jurisdiction, resultant to
which, the present Letters Patent Appeals would also not be
maintainable, and accordingly are dismissed as such. In the
circumstances, there shall be no order as to costs.
(AVINASH G. GHAROTE, J.) (SUNIL B. SHUKRE, J.)
Wadkar
Digitally signed by
Shailendra Shailendra Wadkar
Wadkar Date: 2021.03.17
18:41:29 +0530
