Bombay High Court
Swati Shivaji Lawhare vs The State Of Maharashtra And ... on 7 May, 2021
Bench: Ujjal Bhuyan, M. G. Sewlikar
(1) wp 940.18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 940 OF 2018
Swati Shivaji Lawhare,
Age 30 years, Occu. Service as
Cook, R/o Sane Guruji Residential
Secondary School, Kaij, Taluka Kaij,
District Beed. ... Petitioner
Versus
1. State of Maharashtra
Through its Secretary,
Department of Social Justice &
Special Assistance
Mantralaya, Mumbai - 400 032.
2. Director, Vimukta Jatis,
O.B.C. & Special Backward Classes,
Welfare, 3, Church Road, Pune.
3. Regional Deputy Commissioner,
Social Welfare,
Aurangabad Division, Aurangabad.
4. Special District Social Welfare
Officer, Beed.
5. President,
Us-tod Kamgar Vikas Mandal,
Beed, District Beed.
6. Head Master,
Sane Guruji Residential
Secondary School, Kaij,
Tq. Kaij, District Beed. ... Respondents
::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:14 :::
(2) wp 940.18
...
Advocate for Applicant : Mr. Sachin S. Deshmukh
APP for Respondents/State : Mr. P.N. Kutti
...
CORAM : UJJAL BHUYAN &
M.G. SEWLIKAR, JJ.
RESERVED ON : 05.04.2021
PRONOUNCED ON : 07.05.2021
JUDGMENT : (Per: M.G. Sewlikar, J.)
Rule. Rule made returnable forthwith. With the consent of the
parties, taken up for final hearing at the admission stage.
2. By this petition under Article 226 of the Constitution of India,
petitioner has challenged the order dated 28 th December, 2017 by which the
proposal dated 20th June, 2014 submitted by responent nos.5 and 6 for
according approval to the post of the petitioner as a Cook has been rejected by
respondent no.3-Regional Deputy Commissioner Social Welfare, Aurangabad.
3. Factual matrix leading to this petition is as under:
Respondent no.6 runs Sane Guruji Secondary School, Taluka Kaij,
District Beed. Initially the school had classes from 1 st to 7th standard.
Permission for 8th standard was granted from the academic year 2012-2013
vide resolutions dated 2nd August, 2008 and 28th August, 2012. Accordingly,
(3) wp 940.18
by Government resolution dated 14th February, 2006 one post of Cook was
sanctioned. Vide corrigendum dated 24 th March, 2006 and resolution dated
14th February, 2006 it was modified and post of Cook was created for 9 th
standard as well. By the resolution dated 14th February, 2006 post of one
Cook was made admissible for every forty students. Thus, since 14 th February,
2006 and corrigendum dated 24th March, 2006, there were two sanctioned
posts of Cook.
For filling up second post of Cook, school management issued an
advertisement on 17th May, 2012 inviting applications for various posts
including the post of Cook. Petitioner made an application for the post of
Cook whereafter he was selected. Accordingly, order of appointment of
petitioner was issued on 20th June, 2012. Respondent authorities accorded
approval to the services of the petitioner in the pay scale of Rs.4400-7400
with grade pay of Rs.1600 for two academic years on probation.
Respondent no.6 submitted proposal dated 21.06.2015 to the office of
Assistant Commissioner Social Welfare. Additional Commissioner Social
Welfare forwarded the proposal of respondent no.6 dated 21 st June, 2015
recommending approval to the post of petitioner as Cook vide communication
dated 30th May, 2017. The said proposal was turned down by the respondent
(4) wp 940.18
no.3-Regional Deputy Commissioner Social Welfare, Aurangabad by order
dated 28th December, 2017, only on one ground that post of second Cook was
not sanctioned. On the basis of this order, respondent no.6 issued a show
cause notice to petitioner calling upon him to explain as to why his services
should not be terminated. This show cause notice dated 04 th January, 2018
was served upon the petitioner on 06 th January, 2018. These two orders i.e.
the order of respondent no.3 dated 28 th December, 2017 and 04th January,
2018 are impugned in this writ petition.
4. Respondent no.3 has filed affidavit in reply. Respondent no.3 has
contended that post of second Cook was not sanctioned. Therefore,
appointment of petitioner is not against a sanctioned post. Respondent no.3
has further contended that petitioner has an alternate efficacious remedy of
appeal created by Government resolution dated 03 rd August, 2017. On these
two counts, respondent no.3 has sought rejection of the writ petition.
5. Respondent nos.1 to 4 have filed their affidavit in reply
contending that by virtue of Government resolution dated 14 th February, 2006
one post of Cook was created for 8 th standard and by corrigendum dated 24 th
March, 2006, resolution dated 14 th February, 2006 was made applicable to
both 8th and 9th standards. Respondent nos.1 to 4 contended that by
(5) wp 940.18
Government resolution dated 30 th June, 2006 out of two sanctioned post, one
post was converted from Cook to Helper. Therefore, sanctioned post of Cook
was only one. Appointment of petitioner was, therefore, not against the
sanctioned post. Respondent nos.1 to 4 contended that Assistant
Commissioner Social Welfare and the school management by active
connivance got sanctioned incorrect staffing pattern which shows that two
posts of Cook were sanctioned. In fact only one post of Cook was sanctioned.
Therefore, appointment of petitioner is not against the sanctioned post.
Respondent no.4 also contended that petitioner has an alternate efficacious
remedy of appeal. For these reasons, writ petition is not maintainable.
6. Heard Shri Sachin S. Deshmukh learned counsel for the
petitioner, Shri P.N. Kutti, learned AGP for the respondent-State.
7. Shri Deshmukh submitted that by resolution dated 14 th February,
2006 one post of Cook was admissible for 8 th standard. According to the said
resolution one post of Cook is sanctioned for every forty students. He
submitted that by corrigendum dated 24 th March, 2006 resolution dated 14th
February, 2006 was made applicable to the 9th standard as well. Special
District Social Welfare Officer, Beed has communicated respondent no.5 that
sanctioned posts for Cook are two and therefore appointment of petitioner
(6) wp 940.18
was made by respondent no.6. He further submitted that resolution dated
30th June, 2006 is applicable only to 10 th standard. He submitted that on the
basis of the communication dated 19 th September, 2012, two posts were
sanctioned for respondent no.6-school and therefore second post was filled.
He submitted that appointment of petitioner was therefore against sanctioned
post. He further submitted that appeal is not a forum created by statute but it
is created by an executive order which is impermissible. For this purpose he
placed reliance on the cases of U.P. Bhoodan Yagna Samiti, U.P. V/s. Braj
Kishore and Others; (1988) 4 Supreme Court Cases 274, Secretary, A.P.D. Jain
Pathshala V/s. Shivaji Bhagwat More and Others; (2011) 13 Supreme Court
Cases 99 and Devi Multiplex and Another V/s. State of Gujarat and Others;
(2015) 9 Supreme Court Cases 132.
8. Shri Kutti submitted that Assistant Commissioner Social Welfare,
Beed made a mistake by sanctioning two posts of Cook vide communication
dated 19th September, 2012. He submitted that by Government resolution
dated 30th June, 2006, one post of Cook was converted into the post of Helper.
Without considering resolution dated 30 th June, 2006, Assistant Commissioner
Social Welfare issued order dated 19th September, 2012 mentioning therein
that sanctioned post of Cook were two. He submitted that an inquiry has also
been initiated against said Assistant Commissioner Social Welfare, Beed. He
(7) wp 940.18
submitted that when no second post was available, advertisement was issued
for second post of Cook which cannot be permitted. He further submitted that
efficacious remedy of appeal is provided by Government resolution dated 03 rd
October, 2017. Without exhausting remedy of appeal, writ petition is not
maintainable. He, therefore, prayed for dismissal of the writ petition.
9. We have carefully considered the submissions of both the parties.
10. It is not in dispute that on 02nd August, 2012 a Government
resolution was passed sanctioning 8th standard to respondent no.6-school and
vide communication dated 28th August, 2012 classes of Standard 9 th and 10th
were granted since 29th August, 2011 on account of natural growth.
11. Government resolution dated 14th February, 2006 has sanctioned
following staffing pattern for the academic year 2004-2005 for standard 8 th as
under:
Two Assistant Teachers in the pay scale of Rs. 5500. One Cook in the
pay scale of Rs. 2660 and one Peon in the pay scale of Rs.2550. This
resolution further states that for every forty students there would be one post
of Cook. This resolution further states that with natural growth of standards,
as per Secondary School Code, additional posts would be automatically
admissible. Corrigendum dated 24th March, 2006 makes Government
(8) wp 940.18
resolution dated 14th February, 2006 applicable to both 8 th and 9th standards
and sanctioned staffing pattern was as under:
Year Class Teacher Clerk Laboratory Servant Cook Helper Kamati
Attendant
2004-05 8th std 2 1 1 1 1 - -
2005-06 9th std 1 - - 1 1 - -
Total 3 1 1 2 2 - -
11.1. Thus Government resolution dated 14th February, 2006 and
corrigendum dated 24th March, 2006 clearly indicate that for 8th standard one
post of Cook was sanctioned and for 9 th standard also one post of Cook was
sanctioned. Thus, in the school of respondent no.6 two posts of Cook were
sanctioned. One post of Cook was earlier filled in. Second post of Cook was
filled in by appointing petitioner vide appointment order dated 20 th June,
2012. No dispute seems to have arisen till this date i.e. 20th June, 2012.
12. The communication dated 19th September, 2012 by Special
District Social Welfare Officer, Beed shows that post of two Cooks were
sanctioned. The strength of students according to this communication for the
year 2012-2013 was shown as under:
(9) wp 940.18
Sr.No. Class Year 2012-2013
Sanctioned divisions Students
strength
2. 9 std
th
This communication further shows that for the years 2011-12 and 2012-
13, two posts of Cook were shown to have been sanctioned.
13. On 30th June, 2006 Government passed another resolution
mentioning therein that staffing pattern was sanctioned for 8 th and 9th
standard since the academic year 2004-2005 for secondary schools and since
the academic year 2006-2007, because of natural growth 10 th standard was
sanctioned and staffing pattern was sanctioned. This resolution dated 30 th
June, 2006 further states that out of two sanctioned posts one post of Cook
was converted into Helper.
14. Thus, the position that emerges is that by resolution dated 14 th
February, 2006 and corrigendum dated 24 th March, 2006 one post of Cook was
sanctioned for 8th standard and one post of Cook was sanctioned for 9 th
standard. Thus, there were two sanctioned posts of Cook. By resolution
dated 30th June, 2006 one post of Cook was converted into Helper. However,
( 10 ) wp 940.18
by communication dated 19th September, 2012 staffing pattern was
communicated to respondent nos.5 and 6 in which two posts of Cook were
shown to have been sanctioned. This position seems to have been admitted
by the State also. The letter addressed to Assistant Government Pleader
(AGP) dated 24th April, 2019 by Deputy Director, Social Welfare, Aurangabad
is placed on record by the learned AGP. This letter shows that for the years
2011-12 and 2012-13 two posts of Cook were sanctioned. It is pertinent to
note that petitioner was appointed as a Cook by following the due procedure
by respondent nos.5 and 6. Vide communication dated 19 th September, 2012
Special District Social Welfare Officer accorded approval to the appointment
of the petitioner and she was kept on probation for a period of two years.
Thereafter. on 21st June, 2015 proposal for making petitioner permanent was
forwarded to Assistant Commissioner Social Welfare. This proposal was
forwarded by Assistant Commissioner Social Welfare, Beed to Regional Deputy
Commissioner Social Welfare, Aurangabad. On 28th December, 2017 proposal
of petitioner was rejected citing the reason that the post was not sanctioned.
15. Vide communication dated 19th September, 2012, staffing pattern
showed that two posts of Cook were sanctioned. Petitioner completed
probation and in the year 2017 approval to the post of petitioner was refused
on the ground that post was not sanctioned. Chronology of these events
( 11 ) wp 940.18
shows that neither the petitioner nor the management was at fault. State also
admits this position. In para 7 of the affidavit in reply dated 3 rd June, 2019, it
is stated as under:
"7. I say and submit that, as per vide G.R. dated 30.06.2006
there were already three posts approved and sanctioned in the
said school (i.e. Cook, Helper to cook & Kamathi) irrespective
of that, the former Assistant Commissioner sanctioned &
approved another cook post which is not correct. It is further
submitted that, disciplinary action has been taken against the
former Assistant Commissioner, Social Welfare, Beed for
wrongly sanctioning & approving the post & for interfering in
the staffing pattern set by the State."
16. This clearly shows that neither petitioner nor the management
was at fault. Therefore, post of petitioner needs to be approved. If
respondent no.3 considers that the post was not admissible in that case
petitioner can be declared surplus and can be adjusted in the post of Cook
wherever vacancy is available.
17. The next contention raised by the learned AGP is that Appellate
Forum has been created by Government resolution dated 03 rd October, 2017.
The said resolution reads as under:
" jkT;krhy "kklu ekU;rkizkIr "kkldh; vFkok [kktxh vuqnkfur laLFksekQZr
pkyfoY;k tk.kk&;k vkJe"kkGk] fuoklh"kkGk] fo|kfudsru ;ke/khy f"k{kd o f"k{kdsrj
( 12 ) wp 940.18
deZpkjh loZ izdkjP;k lsokfo'k;d vkf.k brj fo'k;kckchlanHkkZr dks.kR;kgh izdkjph
rdzkj] fuosnu o brj ckch fuokj.k dj.;klkBh o R;kyk U;k;kdfjrk nkn ekxrk ;koh]
;kdfjrk l{ke izkf/kdj.kkdMs vihy @ iqufoZyksdu nk[ky dj.;kph rjrwn miyC/k
d:u ns.;kr ;sr vkgs- R;keqGs ;k foHkkxakrxZr dk;Zjr vlysY;k "kkluekU; "kkldh;
vFkok [kktxh vuqnkfur vkJe"kkGsrhy] fuoklh"kkGsrhy] fo|kfudsrukrhy f"k{kd o
f"k{kdsrj deZpk&;akps lsokfo'k;d vkf.k brj dks.kR;kgh rdzkjhaoj nkn ekx.;klkBh
R;akuk [kkyhy izkf/kdj.kkdMs vihy @ iqufoZyksdu dj.;kph rjrwn miyC/k d:u
ns.;kr ;sr vkgs %&
1- fotkHkt vkJe"kkGk] fuoklh"kkGk vFkok fo|kfudsrukrhy f"k{kd o f"k{kdsrj
deZpk&;akoj laLFkk fdaok lacaf/kr izkpk;Z vFkok eq[;k/;kid vFkok laLFksrQsZ fu;qDr izkf/
kdkjh ;akpsdMwu fu;eckg; dkjokbZ >kY;kl v"kk deZpk&;kus izFker% lacaf/kr ftYg;kps
l{ke izkf/kdkjh ¼lgk¸;d vk;qDr @ lgk¸;d lapkyd fotkHkt @ ftYgk
lektdY;k.k vf/kdkjh½ ;akpsdMs nkn ekxkoh- rlsp v"kkizdkjps fuosnu] rdzkjh fdaok
vtZ izkIr >kY;kuarj R;koj lacaf/kr ftYg;kps l{ke v/fkdkjh ¼lgk¸;d vk;qDr @
lgk¸;d lapkyd fotkHkt @ ftYgk lektdY;k.k vf/kdkjh½ ;akuh 30 fnolkps vkr
fu.kZ; ?ksowu vkiyk fu.kZ; loZ lacaf/krakuk dGokok-
2- 30 fnolkr fu.kZ; ukgh fnyk rj izknsf"kd milapkyd vFkok mi vk;qDr]
fotkHkt] beko o foekiz dY;k.k ;akpsdMs ljy izFke vihy lknj djrk ;sbZy- rlsp
tj fu.kZ; fnyk vlsy rj lacaf/kr ftYg;kps l{ke izkf/kdkjh ;akP;k vkns"kkus lacaf/kr
f"k{kd&f"k{kdsrj deZpk&;akps @ laLFkkpkyd ;akps lek/kku u >kY;kl R;kl lacaf/kr
foHkkxkps izknsf"kd milapkyd vFkok mi vk;qDr] fotkHkt] beko o foekiz
dY;k.k ;akpsdMs iq<hy 15 fnolkr izFke vihy nk[ky djkos o izkIr vihykoj lacaf/kr
izknsf"kd mi lapkyd vFkok mik;qDr ;akuh 30 fnolkr fu.kZ; |kok-
3- tj 30 fnolkr lacaf/kr izknsf"kd mik;qDr] lekt dY;k.k foHkkx @
milapkyd] fotkHkt] beko o foekiz dY;k.k] ;akuh fu.kZ; fnyk ukgh rj ljG
lapkyd] fotkHkt] iq.ks ;akP;kdMs f}rh; vihy d: "kdrhy- rlsp tj osGsoj fu.kZ;
fnyk rj izknsf"kd milapkyd @ mi vk;qDr ;akP;k fu.kZ;kP;k vuq'kaxkus ckf/kr
>kysY;k f"k{kd&f"k{kdsRrj deZpkjh ;akps lek/kku u >kY;kl R;akuk R;k fu.kZ;kfo:/n
lapkyd fotkHkt] beko o foekiz dY;k.k] lapkyuky;] iq.ks ;akpsdMs fu.kZ;kps
rkj[ksiklwu 15 fnolakps vkr f}rh; vihy nk[ky dj.;kph rjrwn dj.;kr ;sr vkgs-
lapkyd] fotkHkt] beko o foekiz dY;k.k] lapkyuky;] iq.ks ;akuh lnj vihykoj
fu;ekuqlkj lquko.kh ?ksmu vihy izkIr >kY;kP;k rkj[ksiklwu 45 fnolkr ;ksX; rh
dk;Zokgh d:u vihykoj fu.kZ; ns.ks ca/kudkjd jkghy-
( 13 ) wp 940.18
4- tj lapkyd] fotkHkt] iq.ks ;akuh 45 fnolkr fu.kZ; fnyk ukgh rj
iqufoZyksdu (Revision) vtZ @ fuosnu foHkkxkps vij eq[; lfpo @ iz/kku
lfpo @ lfpo ;akP;kdMs djrk ;sbZy- rlsp lapkyd] fotkHkt] beko o foekiz
dY;k.k] lapkyuky;] iq.ks ;akuh f}rh; vfiykoj fnysY;k fu.kZ;kus ckf/kr >kysY;k
f"k{kd&f"k{kdsRrj deZpkjh @ laLFkkpkyd ;akps lek/kku u >kY;kl R;akuk R;k
fu.kZ;kfo:/n fu.kZ; fnY;kps rkj[ksiklwu 15 fnolakps vkr iqufoZyksdu
(Revision) vtZ @ fuosnu "kklukps ;k foHkkxkps lfpo @ iz/kku lfpo @
vij eq[; lfpo ;akpsdMs nk[ky djrk ;sbZy- lnj iqufoZyksdu vfiykoj 3 efgU;kr
fu.kZ; ns.;kps vf/kdkj lfpo @ iz/kku lfpo @ vij eq[; lfpo] fotkHkt] beko o
foekiz dY;k.k foHkkx] ea=ky;] eqacbZ ;akuk jkgrhy-
5- lfpo @ iz/kku lfpo @ vij eq[; lfpo] fotkHkt] beko o foekiz dY;k.k
foHkkx] ea=ky;] eqacbZ ;akuh fnysY;k fu.kZ;kus lacaf/krkps lek/kku u >kY;kl R;k
fu.kZ;kfo:/n ;k foHkkxkps ek- ea=h egksn;akdMs iqufuZjh{k.k (Review) lkBh vtZ
@ fuosnu djrk ;sbZy o R;akuh ?ksrysyk fu.kZ; varhe vlsy- lacaf/kr f"k{kd&f"k{kdsrj
deZpk&;kus R;akuk loZizFke miyC/k d:u fnysY;k O;oLFkspk mi;ksx djkok- rlsp
"kD;rks U;k;ky;kr ;kfpdk nk[ky dj.;kiwohZ ojhy uSlfxZd U;k;rRokizek.ks dsysY;k
v/kZ U;kf;d Lo:ikP;k rjrqnhpk mi;ksx d:u ?;kok-"
18. This resolution states that if any Teaching or Non-Teaching Staff is
aggrieved by the action of school management, such an employee shall prefer
appeal to competent authority of the District (Assistant Commissioner /
Assistant Director VJNT / District Social Welfare Officer) and these authorities
shall decide the applications within thirty days. Clause-2 of the resolution
states that if these authorities fail to decide the appeal of such an employee,
appeal can be preferred to the Regional Deputy Director or Deputy
Commissioner. Clause-3 states if these authorities (mentioned in clause-2) fail
( 14 ) wp 940.18
to decide the appeal of such an employee, the employee can prefer second
appeal to Director, VJNT, Pune.
19. Clauses 4 and 5 state that if appeal is not decided within forty
five days by authorities mentioned in clause-3 revision can be preferred to
Chief Secretary or Additional Chief Secretary.
20. The question that arises is whether the appellate forum can be
created by such a Government resolution i.e. by executive power.
21. It is well settled that appellate authorities can be created by
statute and not by executive power. Tribunals with adjudicatory powers can be
created only by statutes and not by executive power or by passing
Government resolution. In the case of Secretary, A.P.D. Jain Pathshala cited
(supra) almost similar issue had come up before the Hon'ble Apex Court.
Facts in this case were that the appellant in this decision of the Hon'ble Apex
Court was appointed as Shikshan Sevak on 29 th July, 2000. Services of the
appellant were orally terminated on 11 th June, 2001. His termination was
challenged by the respondent-Shikshan Sevak before the School Tribunal. This
appeal was withdrawn and appeal was made to grievance committee in the
year 2004. Grievance committee quashed the termination of the respondent-
employee and directed the appellants to reinstate the first respondent-
( 15 ) wp 940.18
Shikshan Sevak. Appeal was preferred to High Court. The High Court
recommended various modifications to the scheme of grievance committee
and issued specific directions making significant changes in the constitution
and functioning of the committee. Because of the directions the
administrative grievance redressal mechanism was convered into a quasi
judicial administrative tribunal. The Hon'ble Apex Court made following
observations:
"23. Apart from constitutional provisions, tribunals with
adjudicatory powers can be created only by Statutes. Such
Tribunals are normally vested with the power to summon
witnesses, administer oath, and compel attendance of witnesses
and examine them on oath, and receive evidence. Their powers
are derived from the statute that created them and they have to
function within the limits imposed by such statute. It is possible
to achieve the independence associated with a judicial authority
only if it is created in terms of the Constitution or a law made by
the legislature.
24. Creation, continuance or existence of a judicial authority
in a democracy must not depend on the discretion of the
executive but should be governed and regulated by appropriate
law enacted by a legislature. In this context, it is worthwhile to
refer to the following observations of the European Commission
of Human Rights in Zand vs. Austria.
( 16 ) wp 940.18
"The judicial organization in a democratic society must
not depend on the discretion of the executive, but should be
regulated by law emanating from the Parliament".
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 Vs. State of Punjab and Bishamber Dayal
Chandra Mohan vs. State of U.P.)
26. But the powers of the State to exercise executive powers
on par with the legislative powers of the legislature, is "subject
to the provisions of the Constitution". The provisions of the
Constitution, namely Articles 233, 234 and 247 for constituting
sub-ordinate courts, and Articles 323-A and 323-B for
constituting tribunals by law made by the legislature, make it
clear that judicial Tribunals shall be created only by statutes or
rules framed under authority granted by the Constitution.
( 17 ) wp 940.18
27. If the power to constitute and create judicial Tribunals by
executive orders is recognized, 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."
22. These observations make it abundantly clear that tribunals with
adjudicatory powers can be created only by statutes and not by executive
power. In para 30 the Hon'ble Apex Court recorded following observations:
30. Therefore, we hold that constitution of a Grievance
Committee as a public adjudicatory forum, whose decisions are
binding on the parties to the disputes, by an executive order of
the Government is impermissible. Secondly, the High Court
cannot in exercise of judicial power interfere with the
jurisdiction of the civil courts vested under Code of Civil
Procedure. Any such Grievance Committee created by an
executive order, either on the direction of the High Court or
otherwise, can only be fact finding bodies or recommending
bodies which can look into the grievances and make appropriate
( 18 ) wp 940.18
recommendations to the government or its authorities, for taking
necessary actions or appropriate reports to enable judicial
Tribunals to render decisions.
23. These observations of the Hon'ble Supreme Court clearly spell out
that adjudicatory authorities can be created only by statutes and not by an
executive order of the Government. If such a course is permitted there is
every likelihood of tribunals being created without appropriate provisions in
regard to the constitution, functions, powers, appeals, revisions and
enforceablity of their orders, leading to chaos and confusion. Rights of
employees are likely to be adversely affected by such ad hoc authorities
exercising judicial functions, who are not independent nor 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.
24. For the aforequoted reasons, it cannot be said that remedy of
appeal was available to the petitioner. The constitution of these appellate
authorities is not by any statute but by executive power by passing resolution
which is impermissible in view of judgment of the Hon'ble Apex Court in the
case of Secretary, A.P.D. Jain Pathshala cited (supra).
( 19 ) wp 940.18
25. In view of what is stated herein-above, petitioner was not at fault
nor the management was at fault. Therefore, services of petitioner need to be
protected. Respondent no.3 shall, therefore, accord approval to the services of
the petitioner. If it is found that petitioner was appointed against the post
which was not sanctioned she should be declared as surplus and can be
adjusted wherever vacancy is available.
26. On these terms Rule is made absolute to the above extent.
[M.G. SEWLIKAR, J.] [UJJAL BHUYAN, J.]
mub
