Bombay High Court
Suryakant Datta Wankhede And Others vs The State Of Maharashtra Through Its ... on 25 October, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:26567-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7355 OF 2024
1 Komal D/o Balaji Awatirak,
Age : 22 years, Occu. : Service as
Shikshan Sevak,
R/o Katkalamba, Tq. Kandhar,
Dist. Nanded.
2. Pooja D/o Balaji Wadje,
Age : 29 years, Occu. : Service as
Shikshan Sevak,
R/o At/Post Mukhed,
Tq. Mukhed, Dist. Nanded. .. Petitioners
Versus
1. The State of Maharashtra,
Through its Principal Secretary,
School Education Department,
Mantralaya, Mumbai - 32.
2. Deputy Director of Education,
Latur Division, Latur,
Gandhi Chowk, Latur.
3. The Education Officer (Primary),
Zilla Parishad, Nanded.
4. The Superintendent,
Pay Unit (Primary),
Zilla Parishad, Nanded.
5. Gurudev Shikshan Sanstha,
Mukhed, Tq. Mukhed, Dist. Nanded,
Through its Secretary.
6. Gurudev Vidya Mandir Primary
School, Mukhed, Tq. Mukhed,
Dist. Nanded,
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Through its Head Master. .. Respondents
Shri Sachin S. Deshmukh, Advocate i/by Shri V. S. Panpatte,
Advocate for the Petitioners.
Shri Amarjitsing B. Girase, Govt. Pleader a/w Shri R. S. Wani
and Ms. Saie S. Joshi, A.G.P. for the Respondents/State.
Shri S. B. Ghute, Advocate for the Respondent Nos. 3 and 4.
Shri I. D. Maniyar, Advocate for the Respondent Nos. 5 and 6.
WITH
WRIT PETITION NO. 6729 OF 2024
Mulla Khalil Usmansab,
Age : 43 years, Occu. : Service as
Assistant Teacher,
R/o Near Laxmi Temple, Banhelki,
Latur, Tq. Latur, Dist. Latur. .. Petitioner
Versus
1. The State of Maharashtra,
Through its Principal Secretary,
Education Department,
Mantralaya, Mumbai - 32.
2. The Deputy Director of Education,
Latur Division, Latur,
Tq. and Dist. Latur.
3. The Education Officer (Primary),
Zilla Parishad, Latur.
4. The Superintendent, Z. P. Latur
Pay and Provident Fund Unit
(Primary Section),
Zilla Parishad, Latur,
Tq. and Dist. Latur.
5. Rahemaniya Taleemi Society,
Nilanga, Tq. Nilanga, Dist. Latur,
Through its Secretary.
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6. Gulshan-A-Altaf Urdu Primary
School, Chincholi, Tq. Nilanga,
Dist. Latur, Through its Head Master. .. Respondents
Shri Sachin S. Deshmukh, Advocate i/by Shri V. S. Panpatte,
Advocate for the Petitioner.
Shri Amarjitsing B. Girase, Govt. Pleader a/w Shri R. S. Wani
and Ms. Saie S. Joshi, A.G.P. for the Respondents/State.
Shri U. B. Bondar, Advocate for the Respondent Nos. 3 and 4.
Shri A. P. Deshmukh, Advocate for the Respondent Nos. 5 and 6.
WITH
WRIT PETITION NO. 6737 OF 2024
Syed Javed Syed Chand,
Age : 43 years, Occu. : Service as
Shikshan Sevak,
R/o Chand Syed, Near Santoshi Mata
Mandir, Vikas Nagar, Degloor Road,
Udgir, Latur, Tq. & Dist. Latur. .. Petitioner
Versus
1. The State of Maharashtra,
Through its Principal Secretary,
Education Department,
Mantralaya, Mumbai - 32.
2. The Deputy Director of Education,
Latur Division, Latur,
Tq. and Dist. Latur.
3. The Education Officer (Primary),
Zilla Parishad, Latur.
4. The Superintendent, Z. P. Latur
Pay and Provident Fund Unit
(Primary Section),
Zilla Parishad, Latur,
Tq. and Dist. Latur.
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5. Rahemaniya Taleemi Society,
Nilanga, Tq. Nilanga, Dist. Latur,
Through its Secretary.
6. Gulshan-A-Altaf Urdu Primary
School, Chincholi, Tq. Nilanga,
Dist. Latur, Through its Head Master. .. Respondents
Shri Sachin S. Deshmukh, Advocate i/by Shri V. S. Panpatte,
Advocate for the Petitioner.
Shri Amarjitsing B. Girase, Govt. Pleader a/w Shri R. S. Wani
and Ms. Saie S. Joshi, A.G.P. for the Respondents/State.
Shri U. B. Bondar, Advocate for the Respondent Nos. 3 and 4.
Shri A. P. Deshmukh, Advocate for the Respondent Nos. 5 and 6.
WITH
WRIT PETITION NO. 6735 OF 2024
Hasmi Syed Wasiq Ahnad Syed Ahmad,
Age : 41 years, Occu. : Service as
Assistant Teacher,
R/o Hashmi Syed, 5585, Baba Nagar,
Shelhal Road, Nideban, Latur
Tq. & Dist. Latur. .. Petitioner
Versus
1. The State of Maharashtra,
Through its Principal Secretary,
Education Department,
Mantralaya, Mumbai - 32.
2. Deputy Director of Education,
Latur Division, Latur,
Tq. and Dist. Latur.
3. The Education Officer (Primary),
Zilla Parishad, Latur.
4. The Superintendent, Z. P. Latur
Pay and Provident Fund Unit
(Primary Section),
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Zilla Parishad, Latur,
Tq. and Dist. Latur.
5. Rahemaniya Taleemi Society,
Nilanga, Tq. Nilanga, Dist. Latur,
Through its Secretary.
6. Gulshan-A-Altaf Urdu Primary
School, Chincholi, Tq. Nilanga,
Dist. Latur, Through its Head Master. .. Respondents
Shri Sachin S. Deshmukh, Advocate i/by Shri V. S. Panpatte,
Advocate for the Petitioner.
Shri Amarjitsing B. Girase, Govt. Pleader a/w Shri R. S. Wani
and Ms. Saie S. Joshi, A.G.P. for the Respondents/State.
Shri U. B. Bondar, Advocate for the Respondent Nos. 3 and 4.
WITH
WRIT PETITION NO. 6738 OF 2024
Himayat Mehabub Patel,
Age : 40 years, Occu. : Service as
Assistant Teacher,
R/o Kalan Galli, Arba, Khadakpura,
Ausa, Latur Tq. Latur, Dist. Latur. .. Petitioner
Versus
1. The State of Maharashtra,
Through its Principal Secretary,
Education Department,
Mantralaya, Mumbai - 32.
2. Deputy Director of Education,
Latur Division, Latur,
Tq. and Dist. Latur.
3. The Education Officer (Primary),
Zilla Parishad, Latur.
4. The Superintendent, Z. P. Latur
Pay and Provident Fund Unit
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(Primary Section),
Zilla Parishad, Latur,
Tq. and Dist. Latur.
5. Rahemaniya Taleemi Society,
Nilanga, Tq. Nilanga, Dist. Latur,
Through its Secretary.
6. Gulshan-A-Altaf Urdu Primary
School, Chincholi, Tq. Nilanga,
Dist. Latur, Through its Head Master. .. Respondents
Shri Sachin S. Deshmukh, Advocate i/by Shri V. S. Panpatte,
Advocate for the Petitioner.
Shri Amarjitsing B. Girase, Govt. Pleader a/w Shri R. S. Wani
and Ms. Saie S. Joshi, A.G.P. for the Respondents/State.
Shri U. B. Bondar, Advocate for the Respondent Nos. 3 and 4.
Shri A. P. Deshmukh, Advocate for the Respondent Nos. 5 and 6.
WITH
WRIT PETITION NO. 7977 OF 2024
Shri Mahesh S/o Kalyanrao Patil,
Age : 39 years, Occu. : Service as
Assistant Teacher
R/o Wadmurambi, Tq. Deoni,
Dist. Latur. .. Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
Education Department,
Mantralaya, Mumbai - 32.
2. The Divisional Chairman / Secretary,
Maharashtra State Secondary &
Higher Secondary Education Board,
Divisional Board, Latur behind
Rajasthan High College, Suit Mill
Isa, Gajanan Nagar, Latur.
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3. The Deputy Director of Education,
Latur Division, Latur, .. Respondents
Shri Sachin S. Deshmukh, Advocate i/by Shri V. S. Panpatte,
Advocate for the Petitioner.
Shri Amarjitsing B. Girase, Govt. Pleader a/w Shri R. S. Wani
and Ms. Saie S. Joshi, A.G.P. for the Respondents 1 to 3.
WITH
WRIT PETITION NO. 10913 OF 2024
Shri Vilas S/o Diliprao Jadhav,
Age : 34 years, Occu. : Service as
Assistant Teacher
R/o Phule Nagar, Nanded
Tq. & Dist. Nanded. .. Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
Education Department,
Mantralaya, Mumbai - 32.
2. The Deputy Director of Education,
Latur Division, Latur,
Tq. and Dist. Latur.
3. Janta Shikshan Prasarak Mandal,
Umardari, Tq. Mukhed, Dist. Nanded,
Through its President/Secretary.
4. Shivaji Secondary and Higher Secondary
Vidyalaya, CIDCO, Nanded,
Tq. & Dist. Nanded,
Through Principal. .. Respondents
Shri Sachin S. Deshmukh, Advocate i/by Shri V. S. Panpatte,
Advocate for the Petitioner.
Shri Amarjitsing B. Girase, Govt. Pleader a/w Shri R. S. Wani
and Ms. Saie S. Joshi, A.G.P. for the Respondents 1 and 2.
Shri I. D. Maniyar, Advocate for the Respondent Nos. 3 and 4.
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WITH
WRIT PETITION NO. 10938 OF 2024
Krishnanand S/o Premrao Sirsewad
Age : 32 years, Occu. : Service as
Shikshan Sevak,
R/o At Post Bhisi,
Tq. Kinwat, Dist. Nanded. .. Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
Education Department,
Mantralaya, Mumbai - 32.
2. The Deputy Director of Education,
Latur Division, Latur,
3. Walmiki Sevabhavi Sanstha, Bhokar
Tq. Bhokar, Dist. Nanded,
Through its President/Secretary.
4. Kai. Laxmanrao Ghisewad (Swatantra)
Junior College, Bhokar,
Tq. Bhokar, Dist. Nanded,
Through Head Master. .. Respondents
Shri Sachin S. Deshmukh, Advocate i/by Shri V. S. Panpatte,
Advocate for the Petitioner.
Shri Amarjitsing B. Girase, Govt. Pleader a/w Shri R. S. Wani
and Ms. Saie S. Joshi, A.G.P. for the Respondents 1 and 2.
Shri I. D. Maniyar, Advocate for the Respondent Nos. 3 and 4.
WITH
WRIT PETITION NO. 10956 OF 2024
1. Suyakant S/o Datta Wankhede,
Age : 29 years, Occu. : Service as
Assistant Teacher,
R/o Betsangavi, Tq. Loha,
Dist. Nanded.
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2. Kishan S/o Balaji Kapase,
Age : 34 Years, Occu. : Service
as Assistant Teacher,
R/o Shirur Tajband, Tq. Ahmedpur,
Dist. Latur.
3. Kiran S/o Hiraman Shinde,
Age : 30 years, Occu. : Service
As Assistant Teacher,
R/o At Gopalchawadi Nanded,
Copalchawadi, Tq. & Dist. Nanded. .. Petitioners
Versus
1. The State of Maharashtra,
Through its Principal Secretary,
School Education Department,
Mantralaya, Mumbai - 32.
2. The Deputy Director of Education,
Latur Division, Latur,
3. Shri Shivaji Mofat Education Society,
Kandhar, Tq. Kandhar, Dist. Nanded,
Through its Secretary.
4. Shri Shivaji Secondary and Higher
Secondary High School, Halda,
Tq. Kandhar, Dist. Nanded,
Through its Head Master.
5. Shri Shivaji Secondary and Higher
Secondary High School, Kurula,
Tq. Kandhar, Dist. Nanded,
Through its Head Master. .. Respondents
Shri Sachin S. Deshmukh, Advocate i/by Shri V. S. Panpatte,
Advocate for the Petitioners.
Shri Amarjitsing B. Girase, Govt. Pleader a/w Shri R. S. Wani
and Ms. Saie S. Joshi, A.G.P. for the Respondents 1 and 2.
Shri I. D. Maniyar, Advocate for the Respondent Nos. 3 to 5.
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WITH
WRIT PETITION NO. 10291 OF 2024
1. Kalyani Vijay Patil,
Age : 33 years, Occu. : Service
R/o Manwel, Tq. Yawal,
District Jalgaon.
2. Sagar Kailas Magare,
Age : 31 Years, Occu. : Service
R/o Sawata Mali Chowk, Lasur,
Tq. Chopda, District Jalgaon.
3. Sohan Arun Halde,
Age : 30 years, Occu. : Service
R/o Adawat, Tq. Chopda,
District Jalgaon. .. Petitioners
Versus
1. The State of Maharashtra,
Through its Principal Secretary,
School Education Department,
Mantralaya, Mumbai.
2. The Education Officer (Secondary),
Zilla Parishad, Jalgaon. .. Respondents
Shri Sudhir R. Barlinge, Advocate for the Petitioners.
Shri Amarjitsing B. Girase, Govt. Pleader a/w Shri R. S. Wani
and Ms. Saie S. Joshi, A.G.P. for the Respondents 1 and 2.
WITH
WRIT PETITION NO. 10817 OF 2024
Smt. Sangita Gangadhar Dhande,
Age : 33 years, Occu. : Service
as Assistant Teacher,
R/o Gut No. 09, P. No. 71/B,
Juna Kautha Road, Nanded,
Tq. Nanded, Dist. Nanded. .. Petitioner
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Versus
1. The State of Maharashtra,
Through its Secretary,
Education Department,
Mantralaya. Mumbai - 32.
2. The Deputy Director of Education,
Latur Division, Latur.
3. The Education Officer (Primary),
Zilla Parishad, Nanded.
4. Aryan Shikshan Prasarak Mandal,
Nanded, Tq. & Dist. Nanded,
Through its President/Secretary.
5. Arya Hindi Vidya Mandir, Nanded,
Near Old Mondha, Tq. & Dist. Nanded,
Through its Head Master. .. Respondents
Shri Irfan D. Maniyar, Advocate for the Petitioner.
Shri Amarjitsing B. Girase, Govt. Pleader a/w Shri R. S. Wani
and Ms. Saie S. Joshi, A.G.P. for the Respondents 1 and 2.
CORAM : MANGESH S. PATIL AND
SHAILESH P. BRAHME, JJ.
CLOSED FOR JUDGMENT ON : 15.10.2024
JUDGMENT PRONOUNCED ON : 25.10.2024
JUDGMENT (Per Shailesh P. Brahme, J.) :
-
. Rule. Rule is made returnable forthwith. Heard both
the sides finally at the admission stage with their consent.
2. Predominant challenge in these petitions is to the
validity of the Government Resolution dated 27 March 2024
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issued by the School Education and Sports Department,
Government of Maharashtra, consequently the
communications/orders passed by the Education Officers/Deputy
Directors of Education are also questioned. We propose to decide
these petitions by this common judgment and order. We are
referring to the paper book of Writ Petition No. 7355 of 2024 and
Writ Petition No. 6737 of 2024.
3. The petitioners before us are the employees of the
respondent/private managements working in the schools run by
them. They are aspiring for service benefits under the
provisions of the Maharashtra Employees of Private Schools
(Condition of Service Regulation) Act, 1979 and Rules 1981
(hereinafter for the sake of brevity and convenience referred as
to the 'Act of 1979' and 'Rules of 1981') for which the approval of
the officers of the Education Department is imperative. Their
proposals seeking approvals have been turned down by the
officers of the Education Department, which is common cause for
each of them to approach the High Court.
4. After filing the petitions, petitioners are confronted
with Government Resolution dated 27.03.2024 which is an
impediment in entertaining the petitions for having alternate
remedy created under it. Hence they are challenging G. R.
Dated 27.03.2024 (for short 'impugned G.R.) along with
communications/orders of the officers of the Education
Department.
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5. The controversy involved in these petitions pertains to
the service conditions of employees of aided and unaided private
schools. In each petition the decision of the officers of the
education department has been questioned. Such recurring
causes and their repercussions have been considered elaborately
by the division bench at the Principal seat at Bombay in group of
petitions vide judgment dated 16.04.2024 in the matter of
Nitin Bhika Tadge and another Vs. The State of
Maharashtra and another in Writ Petition No. 204 of 2019.
Before passing final orders on 16 April 2024 in those matters
various interim orders/directions were issued.
6. To curtail unnecessary litigation which is causing
harassment to the employees and the management, the State
came out with a policy. Considering National Litigation Policy
of 2010 and to reduce burden on the state exchequer, the
Government Resolution dated 27.03.2024 was issued by
exercising powers under Article 162 of the Constitution of India.
The appellate forums are created for the employees and the
managements. The orders passed by the officers of the education
department are made amenable to challenge before the
appellate forums. It provides alternate efficacious remedy to the
petitioners before us. They are aggrieved by creation of
appellate forums by the impugned G. R. If the challenge is
sustained, then we have to examine validity of the
orders/communication issued by the officers of the education
department impugned in the individual petitions before us.
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7. The learned counsel Mr. Sachin S. Deshmukh
appearing for the petitioners has made following submissions :
(A) The forums created by Clause 1(a), (b) and (c) of the
impugned G. R. have trappings of quasi judicial
forum or a Tribunal, which is impermissible.
(B) Creation of quasi judicial forum is against the law
laid down by the Supreme Court in the matter of
Secretary, Sh. A. P. D. Jain Pathshala and others Vs.
Shivaji Bhagwat More and others reported in 2011 (13)
SCC 99 and judgment of the division bench in the
matter of Swati Shivaji Lawhare Vs. State of
Maharashtra and others judgment dated
07.05.2021 in Writ Petition No. 940 of 2018.
(C) The impugned G. R. laying down the nature of
grievances, forums, procedure and implementation is
against Sec. 16(4) of the Act of 1979.
(D) Creation of forums by such G. R. violates
principles of separation of powers.
(E) The State Government has taken inconsistent stand in
their affidavit in reply filed in Writ Petition No. 6737 of
2024 in respect of nature of the forum.
(F) The individual impugned orders passed by the officers
of the education department in each petition are
against the settled legal position and unsustainable.
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8. To oppose the petitions, the respondent Nos. 1 and 2
have filed affidavit in reply in Writ Petition No. 6737 of 2024,
which is requested to be referred to in all the petitions. Mr.
Amarjitsing Girase, the learned Government Pleader repels the
submissions of the petitioners in following manner :
(a) The impugned G. R. is valid, reasonable and it is issued
under peculiar facts and circumstances to deal with the matters
which are not covered by Act of 1979 and Rules of 1981.
(b) All the grievances/matters covered under the impugned
G. R. are beyond the purview of statutory remedies provided
under the Act of 1979 and Rules of 1981 or any other forums.
(c) The impugned G. R. is issued under Article 162 of the
Constitution of India. It does not create any quasi judicial
authority, or Tribunal as contemplated by Articles 223-A and
223-B of the Constitution of India.
(d) The forums created by the impugned G. R. are purely
administrative/executive filters.
(e) The matters which are covered by the forums are not
lis between the parties bearing adversarial overtures.
(f) The procedure to be followed by the forums is not akin
to the one followed by a Tribunal or a quasi judicial authority.
The members of the Committee are all executives of the State
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Government.
(g) The judgment cited by the petitioners in the matter of
Secretary, Sh. A. P. D. Jain Pathshala and others Vs. Shivaji Bhagwat
More and others (supra) and Swati Shivaji Lawhare Vs. State
of Maharashtra and others (supra) are not applicable because
the forums created by the government resolutions which were
impugned in those matters are not akin to the forums created by
the impugned G. R.
(h) Reliance is placed on the judgment of the division
bench of this Court at Principal Seat at Bombay in the matter of
judgment dated 16.04.2024 in the matter of Nitin Bhika
Tadge and another Vs. The State of Maharashtra and
another in Writ Petition No. 204 of 2019.
(i) In the alternative, it is submitted that the matters be
referred to the Hon'ble the Chief Justice for reference to a larger
bench.
9. Having heard both the sides, a question which falls for
our consideration is as to whether the Government Resolution
dated 27.03.2024 creates quasi judicial forums ?
10. Background of impugned G. R. :
(i) The terms and conditions of the service of employees of
private schools are governed by the Act of 1979 and Rules of
1981. The State Government is empowered to frame rules to
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provide minimum qualification for recruitment, recruitment
procedure, scales, categories of employees, qualification, etc. By
Section 8 of the Act of 1979, a Tribunal is constituted which is a
quasi judicial authority to decide the matters covered by Section
9 of the Act of 1979. By way of Sec. 10 procedure to be followed
by the Tribunal is provided. All the matters pertaining to the
service conditions are not covered by Section 9 of the Act of 1979.
Jurisdiction of the Tribunal is restricted to the extent of
dismissal or removal or reduction in rank or supersession. No
forum is provided either to the management or to the employees
rendering services in the private school for their grievances in
respect of approvals, transfers, registration in online portal for
disbursal of salaries, revision of scales, retiral benefits, work
load, abolition of the posts, absorption of surplus employees, etc.
(ii) The schools regulated by the Act of 1979 are aided as
well as unaided. To cater the need of education, private
managements are permitted to run schools. Government
provides them grant in aid. This obligation is within perview of
directive principles of State policy under the Constitution of
India. It is the obligation of the officers of the education
department to oversee that the service conditions are
meticulously followed, grants are properly utilized and the
schools are being run in accordance with National Education
Policy.
(iii) The officers of the education department are
empowered to grant approvals, sanctions for various purposes
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after considering the proposals received from the managements.
Though they are expected to discharge these duties punctually
and in accordance with law, frequently there are lapses and
derelictions. As no remedy is provided under the Act of 1979 or
the Rules of 1981, employees of the private managements
approach the High Court. Large number of cases are filed in the
High Court. A judicial cognizance has been taken by the
division bench of this Court at the principal seat in the matter of
Nitin Bhika Tadge and another Vs. The State of
Maharashtra and another (supra) in para Nos. 9, 10 and 11 of
the judgment giving the statistics regarding such matters
pending at the principal seat and the benches. To reduce this
litigation, the government has come up with the impugned G. R.
A need is felt to provide appellate forum for rectification of the
mistakes committed by the officers of the education department
so that every now and then the stake holders need not have to
approach the High Court.
(iv) It is relevant to notice the concern expressed by the
division bench in the matter of Nitin Bhika Tadge and
another Vs. The State of Maharashtra and another (supra).
In paragraphs Nos. 4 to 6, 10 to 12 of the judgment it has been
explained as to how the matters come to the High Court and pile
up. A judicial notice has also been taken of the steps taken by
the State Government by issuing various government
resolutions to cope up with the problem. A reference to the
National Litigation Policy of 2010 has been made in paragraph
No. 20. It is relevant to refer to paragraph Nos. 21 and 37 of the
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judgment which reads thus :
21. One factor that contributes to this litigation is that once the
Court lays down a precedent and the State does not contest it, the State
Government does not issue clarifying directives to the authorities of
the Education Department to ensure compliance with the law. The
Education Authorities persist with similar erroneous decisions, leading
to repetitive legal challenges and subsequent reversals, adding
unnecessarily to the judicial workload. The sheer volume of petitions
on identical matters surpassing almost five digits across the Principal
Seat and benches in Nagpur and Aurangabad underscores the
proliferation of needless litigation. This compels management to
divert resources and time from their core responsibilities, impacting
the quality of education.
37. The constant burden of litigation between teachers,
Management, and the State Government harms society in several
ways. Firstly, it puts unnecessary strain on school management and
teachers, diverting their time and resources from teaching and
learning. This affects the quality of education and creates uncertainty
within employees and management. Moreover, the financial costs
associated with litigation are significant. Litigation drains resources
that could otherwise be invested in improving educational facilities.
(v) To reciprocate the concern expressed by the division
bench, the State Government has come out with the strategy in
the form of impugned G. R. An endeavour of the State
Government is not that to introduce any alternate forum to the
existing statutory forums. We have also collected data from the
Registry of the bench at Aurangabad which also throws light on
the recurring litigation, post division bench judgment in the
matter of Nitin Bhika Tadge and another Vs. The State of
Maharashtra and another (supra). From June 2024 to mid
October 2024, 110 number of writ petitions are filed ventilating
grievance which fall outside of the purview of the statutory
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forum and which are questioning the actions of the officers of the
education department. We propose to examine validity of the
impugned G. R. in the backdrop of the aforementioned
circumstances.
11. Nature of the forums, grievances and the procedure
provided under the impugned G. R. :
(I) The preface to the impugned G. R. is self explanatory,
which is as follows :
Government of Maharashtra
Department of School Education and Sports
Government Resolution No. : Grievance 2019/P.No.75/TNT 4
Madam Kama Road, Hutatma Rajguru Chowk, Mumbai 400032,
Date :- 27 March, 2024
Read :- Government Resolution of Serial No dt. 7 March 2024.
Introduction :-
The Maharashtra Private Schools Employees (Conditions
of Service) Regulation Act, 1977 does indeed establish provisions for
a school tribunal under Section 8. There is currently no formal
mechanism in place to address grievances that do not fall within the
jurisdiction of the School Tribunal. It has been observed that the
number of court cases is increasing due to the lack of a system for
filing appeals/complaints against the order passed by the field
authorities on the application of teachers and non-teaching staff of
private aided/unaided/partially aided schools and educational
institutions. The Hon'ble High Court, Bombay while giving judgment
in the petitions No. 11613/2014 and 2527/2017 filed against the
Higher and Technical Education Department, the Hon'ble Court has
also directed the School Education Department to create a Grievance
Redressal Mechanism. According to the Government Resolution dated
18.12.2018 of the Department of Higher and Technical Education, a
Grievance Redressal Committee has been constituted to take action on
the complaints of teachers/non-teaching staff and officers. On the
same lines, Grievance Redressal Committees have been formed by
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this Department as per Government Resolution dated 20th July 2019,
29th August 2019, and as per Government Resolution dated 01st
October 2019 to take action on the complaints of private aided/partly
unaided/unaided (partially aided), teaching and non-teaching staff in
the School Education Department. However, the Hon'ble High Court
while deciding the Writ Petition No.1182/2024 filed in the Hon'ble
High Court, Bombay has directed to reform the Grievance Redressal
Mechanism. Accordingly, a reformed Grievance Redressal
Committee/Appellate Authority was constituted as per the
Government Resolution referred to deal with the grievances of private
aided/unaided/unaided (partially aided), teaching and non-teaching
staff and educational institutions in the school education department.
But in the Writ Petition No. 1182 /2024 the Hon'ble
Bombay High Court issued instructions from time to time, that it was
under the consideration of the Government to issue a Government
Resolution containing instructions in a more elaborate form
superseding the Government Resolution in the above reference Read.
(II) The learned counsel for the petitioners adverted our
attention to Clause Nos. 2 to 6 of the impugned G. R. to make
out a point that the forums created under clause 1(a), (b) and (c)
have trappings of quasi judicial forums. He would emphasize
use of the words matters, appeal, disputes, hearing, evidence,
arguments, opportunity of hearing and decision, which according
to him are indicative of proceedings before the quasi judicial
authority. The procedure for hearing the complaints/appeals
laid down by Clause 4 is the adjudicating mechanism.
Therefore, it is vehemently argued that quasi judicial forum or
tribunal has been created by the impugned G. R.
(III) The nature of the grievance is stated in clause No. 2.
These matters are not covered by Sec. 9 of the Act of 1979. No
forum is available to ventilate the grievance pertaining to
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enlisted matters in Clause No. 2. Frequently, writ petitions
under Article 226 and 227 of the Constitution of India are
resorted to, albeit, the remedy of civil suit is always available,
but it may not be efficacious. The members of the committees
constituted by Clause 1(a) (b) and (c) are the officers of the
education department. They are officers of higher in rank and
experts. The judicial officers, retired judicial officers or legal
experts are not included in the committees.
(IV) The matters which are covered by Clause 2 are
pertaining to administrative functions of the officers of the
education department. Those are not the quasi judicial
functions. The appellate forum is meant for rectifying the
mistakes of the subordinates and to oversee that service
conditions, statutory provisions and law laid down by various
courts are followed. The appellate forums are provided by way
of filtering mechanism, to weed out illegalities, infirmities and
to follow the binding precedent. Instead of approaching the High
Court and burdening its work, aggrieved individual or
management can resort to these forums for redressal.
(V) In our considered view use of words like appeal,
evidence, hearing, decision, etc. are not to be understood in legal
parlance and are decisive factors. They are used in colloquial
language. The purport is not to confer quasi judicial powers.
The words hearing, arguments and evidence are not necessarily
meant to suggest trappings of quasi judicial function. These are
23 wp 7355.24.odt
merely indicative of fair play, which ordinarily needs to be
followed while discharging any administrative function.
(VI) Clause 3 of the impugned G. R. provides for the
procedure for filing complaint/appeal. The employees as well as
management can approach the appellate forums. The impugned
G. R. does not prohibit the stake holder from approaching any
Court of law, neither is there any provision to treat the decision
as final and binding. This is a distinguishing feature of these
forums. Similarly, there is no provision for the officers of the
education department to challenge the decision. Hence what is
preferred to the appellate forum under impugned G. R. is not a
lis. There is no adjudication of rights and liabilities of the
parties in strict sense. Therefore, we are not convinced by the
submissions of the learned counsel for the petitioners that the
forum created and procedure laid down for deciding the matters
have the trappings of quasi judicial forum.
(VII) No power has been conferred on the committees
created by the impugned G. R. :
(i) to summon the witness,
(ii) administer an oath,
(iii) to compel attendance of witness,
(iv) to examine witnesses on oath,
(v) to receive evidence,
No remedy of appeal or revision or review is provided against
the decisions of committee. The jurisdiction of civil Court or
other forums has not been excluded expressly or impliedly. The
24 wp 7355.24.odt
committee does not enjoy powers U/Sec. 340 of the Code of
Criminal Procedure. Therefore, it is rightly submitted that
the committees are not creation of any forum under Article
223-A, and 223-B of the Constitution of India. The committees
are in the nature of executive forum and they are sought to
achieve the purpose narrated in the introductory para of the
impugned G. R.
12. Competence of the State Government to issue
impugned G. R. :
Impugned G. R. has been issued under the powers of
Article 162 of the Constitution of India. It is not a subordinate
legislation. It is not issued by resorting to provisions of Sec.
16(4) of the Act of 1979. As has been recorded earlier, no forum
was available for the employees and the managements to
challenge executive actions/decisions/order of the education
department in respect of matters covered by Clause 2 of the
impugned G. R. Only remedy was either to approach the High
Court or to file a suit. To fill up the void, the appellate forums
have been created by the impugned G. R. Apparently, impugned
G. R. is issued in consonance with the National Education Policy
of 2010, to curtail recurring litigation and to reduce the burden
on the exchequer.
13. The State Government has adequate powers under
Article 162 of the Constitution of India to promulgate the policy
for the matters which cannot be subjected to proceedings before
the statutory forums. With an avowed objective impugned G. R.
25 wp 7355.24.odt
has been issued. We do not see that there is violation of any
provision of Constitution or any law or public policy. The
executive powers of the state extends to the matters covered by
Clause 2 of the impugned G. R. in respect of which legislature of
the State has a power to make laws.
14. A gainful reference can be made to law laid down by
the Supreme Court in the matter of P. H. Paul Manoj Pandian Vs. P.
Veludurai reported in (2011) 2 SCC 105. Para No. 19 reads as
follows :
"19. Departmental circulars are a common form of administrative
document by which instructions are disseminated. Many such circulars
are identified by serial numbers and published, and many of them
contain general statement of policy. They are, therefore, of great
importance to the public, giving much guidance about governmental
organization and the exercise of discretionary powers. In themselves
they have no legal effect whatever, having no statutory authority. But
they may be used as a vehicle in conveying instructions to which some
statute gives legal force. It is now the practice to publish circulars
which are of any importance to the public and for a long time there has
been no judicial criticism of the use made of them. Under Article 162
of the Constitution, the executive power of the State extends to matters
with respect to which the State Legislature has power to make laws.
Yet the limitations of the exercise of such executive power by the
Government are two fold; first, if any Act or Law has been made by
the State Legislature conferring any function on any other
authority - in that case the Governor is not empowered to make
any order in regard to that matter in exercise of his executive
power nor can the Governor exercise such power in regard to that
matter through officers subordinate to him. Secondly, the vesting
in the Governor with the executive power of the State Government
does not create any embargo for the Legislature of the State from
making and/or enacting any law conferring functions on any
authority subordinate to the Governor. Once a law occupies the
field, it will not be open to the State Government in exercise of its
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executive power under Article 162 of the Constitution to prescribe
in the same field by an executive order. However, it is well
recognized that in matters relating to a particular subject in
absence of any parliamentary legislation on the said subject, the
State Government has the jurisdiction to act and to make
executive orders. The executive power of the State would, in the
absence of legislation, extend to making rules or orders regulating
the action of the Executive. But, such orders cannot offend the
provisions of the Constitution and should not be repugnant to any
enactment of the appropriate Legislature. Subject to these
limitations, such rules or orders may relate to matters of policy,
may make classification and may determine the conditions of
eligibility for receiving any advantage, privilege or aid from the
State. The powers of the executive are not limited merely to the
carrying out of the laws. In a welfare state the functions of
Executive are ever widening, which cover within their ambit
various aspects of social and economic activities. Therefore, the
executive exercises power to fill gaps by issuing various
departmental orders. The executive power of the State is co-
terminus with the legislative power of the State Legislature. In
other words, if the State Legislature has jurisdiction to make law
with respect to a subject, the State Executive can make regulations
and issue Government Orders with respect to it, subject, however,
to the constitutional limitations. Such administrative rules and/or
orders shall be inoperative if the Legislature has enacted a law
with respect to the subject. Thus, the High Court was not justified
in brushing aside the Government Order dated November 16, 1951
on the ground that it contained administrative instructions. The
respondent could not point out that the said order was repugnant to
any legislation enacted by the State Government or the Central
Government nor could he point out that the instructions contained
in the said Government Order dated November 16, 1951 were
repugnant to any statutory rules or the Constitution. In fact, there
was neither any enactment nor any statutory rule nor any
constitutional provision as to how the contractor, who has entered
into contracts with the Government, should be permitted to contest
election, more particularly, when a request is made by the
contractor to terminate his contracts so as to enable him to contest
the election. There is no manner of doubt that in this branch of
27 wp 7355.24.odt
jurisdiction there was absence of statutory enactment, regulations
and rules and, therefore, this Court is of the firm opinion that the
Government had all authority to issue Government Order dated
November 16, 1951 to fill up the gaps. Thus the case of the
respondent that his three contracts were terminated before he filed
nomination papers will have to be judged in the light of the
contents of Government Order dated November 16, 1951. Viewed
in the light of the contents of the Government Order dated
November 16, 1951, there is no manner of doubt that there was no
valid termination of the contracts by the Government and those
contracts were subsisting on the date when the respondent had
filed his nomination papers and also on the date when the
nomination papers of the respondent with other candidates were
scrutinized by the Returning Officer."
15. Reliance can also be placed on the judgment of the
division bench of this Court at the principal seat in the matter of
Rashtriya Shikshan Sangh and others Vs. State of Maharashtra and others
reported in 2022 (6) Mh. L. J. 266. Para Nos. 13 and 14 of the
judgment read thus :
"13. Article 162 deals with the executive powers of the State.
Reading of the said Article makes it clear that the executive power of a
State shall extend to the matters with respect to which the Legislature
of the State has power to make laws. The proviso clause to the said
Article also states that in any matter with respect to which the
Legislature of State and Parliament have power to make laws, the
executive power of the State shall be subject to, and limited to, the
executive power expressly conferred by any law made by the
Parliament.
14. The power of the State Government to issue executive
directions is confined to filling up the gaps or covering the area which
otherwise has not been covered by the existing statutory Rules, and
such instructions or orders must be subservient to the statutory Rules.
The executive power of the State under Article 162 of the Constitution
of India is co-extensive with the legislative power, and when the field
of law is occupied by a Legislative Act, the exercise of executive
28 wp 7355.24.odt
power is not available. The Government cannot supersede statutory
Rules by administrative instructions. Still, if the Rules are silent on any
particular point, the Government can fill the gaps by framing Rules
and issuing instructions not inconsistent with the already-framed
Rules. In R.N. Nagarajan v. State of Mysore, 2 the Supreme Court has
observed that it is necessary to mention that if there is a statutory rule
or an Act on the matter, the executive must abide by that Act or Rule
and it cannot in exercise of the executive power under Article 162 the
Constitution ignore or act contrary to that Rule. A Constitution Bench
of the Supreme Court in Ram Javya Kapoor v. State of Punjab, 3 held:
"The State in exercise of its executive powers is charged
with the responsibility and duty of carrying on the general
administration of the State 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 powers cannot
be circumscribed. If there is no enactment covering a
particular aspect certainly the Government can carry on the
administration by issuing administrative directions or
instructions until the Legislature makes a law in that behalf.
16. We can even rely on the latest judgment of the
Supreme Court in the matter of Anun Dhawan and others Vs. Union of
India and others reported in [2024] 2 SCR 812. Para No. 8 of the
judgment is as under :
"8. It is well settled that the scope of judicial review in
examining the policy matters is very limited. The Courts do not and
cannot examine the correctness, suitability or appropriateness of a
policy, nor are the courts advisors to the executive on the matters of
policy which the executive is entitled to formulate. The Courts cannot
direct the States to implement a particular policy or scheme on the
ground that a better, fairer or wiser alternative is available. Legality of
the policy, and not the wisdom or soundness of the policy, would be
the subject of judicial review."
17. We, are therefore, of the considered view that it is
within the competence of the State Government to issue
29 wp 7355.24.odt
impugned G. R. and no fault can be found. As the committees
under impugned G. R. are exercising administrative functions
only, there is no question of violation of principles of separation
of powers.
18. The scope of judicial review :
The petitioners have not made any endeavour to
demonstrate any arbitrariness or flagrant unreasonableness in
policy in question. We have already recorded backdrop which
led the State Government to come up with the policy. The dire
necessity of such policy has been eloquently explained in the
judgment rendered by the division bench in the matter of Nitin
Bhika Tadge and another Vs. The State of Maharashtra
and another (supra). There is no violation of any provision of
Constitution or State or Central law. The parameters of judicial
review in policy matters of the Government are settled.
19. In the matter of Secretary, Sh. A. P. D. Jain Pathshala and
others Vs. Shivaji Bhagwat More and others (supra), Government
Resolution dated 27.04.2000 was under consideration. The
grievance committee was constituted under the policy of the
State to decide the grievances of the Shikshan Sevaks. All the
complaints of Shikshan Sevaks were to be decided by the
grievance committee. Following questions arose for the
consideration of the Supreme Court :
(i) Whether the High Court can direct the State Government to create a
quasi judicial forum; and whether creation of such a forum by an
executive order, by the State Government, in pursuance of such a
30 wp 7355.24.odt
direction, is valid?
(ii) Whether the High Court could, by a judicial order, exclude the
jurisdiction of civil courts to entertain any suits or applications in
respect of disputes raised by Shikshan Sevaks?
(iii) Whether the High Court was justified in holding that when the
Grievance Committee holds that the order of termination is bad or
illegal, it does not amount to ordering reinstatement, but the Shikshan
Sevak would as a result continue to be in the employment of the
employer?
(iv) Whether the orders dated 2.5.2008 and 5.8.2008 of the High Court
call for interference?
It was held that the State Government had created a
quasi judicial forum by the government resolution which was
impermissible. The tribunals with adjudicatory powers could be
created by statutes only and not otherwise. In the case before
the Supreme Court grievance committee was empowered to
decide the matters of termination, reinstatement, appointment,
etc. which are within the jurisdiction of the Tribunal U/Sec. 9 of
the Act of 1979. A single member committee of retired judge
was constituted. The grievance committee for Shikshan Sevaks
constituted by G. R. dated 27.04.2000 was having all powers of
quasi judicial forum and, therefore, that G.R. was quashed. In
the present matters, issues which are not covered by Sec. 9 of
the Act of 1979 are referable to the forums. These are the
distinguishing features of government resolution in the matter
before the Supreme Court and impugned G. R. in the present
31 wp 7355.24.odt
matter. In that view of the matter, we find that the judgment
rendered by the Supreme Court is not applicable to the present
case.
20. In Swati Shivaji Lawhare Vs. State of
Maharashtra and others (supra), it was a matter in respect of
grant of approval to the appointment of a cook in an Ashram
school receiving grant in aid from the State Government. A
remedy of appeal was created by Government Resolution dated
03 August 2017. The creation of the forum by that government
resolution was challenged relying on the judgment in the matter
of Secretary, Sh. A. P. D. Jain Pathshala and others Vs. Shivaji
Bhagwat More and others (supra). The appellate forums were
created by G. R. dated 03.08.2017 for the employees of Ashram
schools run by VJNT, OBC or Special Backward Class
categories. The District Social Welfare Officer, Assistant
Commissioner, Joint Commissioner were entrusted with the
powers to decide the disputes. Thereafter, appeal was provided
to Deputy Director cum Deputy Commissioner and thereafter
second appellate forum was created of higher rank officers. The
creation of the forum in the case in hand is for matters which
are out of the purview of Sec. 9 of the Act of 1979. The
employees of Ashram schools to whom G. R. dated 03.10.2017
was applicable had statutory remedy available for their
grievances. Therefore, it was held that constitution of appellate
authorities was not by any statute, but by the executive powers
which was impermissible. We have elaborately discussed the
background for issuing impugned G. R. The judgment of the
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division bench is also not applicable to the present case.
21. We, therefore, hold that impugned G. R. has not
created any quasi judicial forum or tribunal. It is within the
legislative competence of the State to promulgate it. It is
therefore valid and enforceable.
22. The petitioners have alternate remedy available of
approaching the appellate committee/forum created under the
impugned G.R. We, therefore, do not propose to examine merits
of the matter individually. We relegate the parties to the
appellate forum.
23. We find no merit in the challenge to the impugned G.R.
We, therefore, pass following order :
ORDER
(i) All writ petitions are dismissed.
(ii) The petitioners shall be at liberty to approach the
appellate committee/forum available under the Government
Resolution dated 27.03.2024. If they prefer to approach the
Committee within a period of four (04) weeks from today, their
appeals shall be entertained on merits and shall not be
dismissed on the ground of limitation provided therein.
(iii) Rule is discharged.
[ SHAILESH P. BRAHME, J. ] [ MANGESH S. PATIL, J. ]
bsb/Oct. 24
