Writ Petition No. 7355 of 2024 · Bombaybench High Court
Case Details
2024:BHC-AUG:26561-DB 1 wp 7355.24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 7355 OF 20241Komal D/o Balaji Awatirak,Age : 22 years, Occu. : Service asShikshan Sevak,R/o Katkalamba, Tq. Kandhar,Dist. Nanded.2.Pooja D/o Balaji Wadje,Age : 29 years, Occu. : Service asShikshan Sevak,R/o At/Post Mukhed,Tq. Mukhed, Dist. Nanded... PetitionersVersus1.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 PrimarySchool, Mukhed, Tq. Mukhed,Dist. Nanded,
Legal Reasoning
28 wp 7355.24.odtpower is not available. The Government cannot supersede statutoryRules by administrative instructions. Still, if the Rules are silent on anyparticular point, the Government can fill the gaps by framing Rulesand issuing instructions not inconsistent with the already-framedRules. In R.N. Nagarajan v. State of Mysore, 2 the Supreme Court hasobserved that it is necessary to mention that if there is a statutory ruleor an Act on the matter, the executive must abide by that Act or Ruleand it cannot in exercise of the executive power under Article 162 theConstitution ignore or act contrary to that Rule. A Constitution Benchof the Supreme Court in Ram Javya Kapoor v. State of Punjab, 3 held:“The State in exercise of its executive powers is chargedwith the responsibility and duty of carrying on the generaladministration of the State so long as the State Governmentdoes not go against the provisions of the Constitution or anylaw the width and amplitude of its executive powers cannotbe circumscribed. If there is no enactment covering aparticular aspect certainly the Government can carry on theadministration by issuing administrative directions orinstructions until the Legislature makes a law in that behalf.16.We can even rely on the latest judgment of theSupreme Court in the matter of Anun Dhawan and others Vs. Union ofIndia and others reported in [2024] 2 SCR 812. Para No. 8 of thejudgment is as under :“8. It is well settled that the scope of judicial review inexamining the policy matters is very limited. The Courts do not andcannot examine the correctness, suitability or appropriateness of apolicy, nor are the courts advisors to the executive on the matters ofpolicy which the executive is entitled to formulate. The Courts cannotdirect the States to implement a particular policy or scheme on theground that a better, fairer or wiser alternative is available. Legality ofthe policy, and not the wisdom or soundness of the policy, would bethe subject of judicial review.”17.We, are therefore, of the considered view that it iswithin the competence of the State Government to issue 29 wp 7355.24.odtimpugned G. R. and no fault can be found. As the committeesunder impugned G. R. are exercising administrative functionsonly, there is no question of violation of principles of separationof powers.18.The scope of judicial review :The petitioners have not made any endeavour todemonstrate any arbitrariness or flagrant unreasonableness inpolicy in question. We have already recorded backdrop whichled the State Government to come up with the policy. The direnecessity of such policy has been eloquently explained in thejudgment rendered by the division bench in the matter of NitinBhika Tadge and another Vs. The State of Maharashtraand another (supra). There is no violation of any provision ofConstitution or State or Central law. The parameters of judicialreview in policy matters of the Government are settled. 19.In the matter of Secretary, Sh. A. P. D. Jain Pathshala andothers Vs. Shivaji Bhagwat More and others (supra), GovernmentResolution dated 27.04.2000 was under consideration. Thegrievance committee was constituted under the policy of theState to decide the grievances of the Shikshan Sevaks. All thecomplaints of Shikshan Sevaks were to be decided by thegrievance committee. Following questions arose for theconsideration of the Supreme Court :(i) Whether the High Court can direct the State Government to create aquasi judicial forum; and whether creation of such a forum by anexecutive order, by the State Government, in pursuance of such a 30 wp 7355.24.odtdirection, is valid?(ii) Whether the High Court could, by a judicial order, exclude thejurisdiction of civil courts to entertain any suits or applications inrespect of disputes raised by Shikshan Sevaks?(iii) Whether the High Court was justified in holding that when theGrievance Committee holds that the order of termination is bad orillegal, it does not amount to ordering reinstatement, but the ShikshanSevak would as a result continue to be in the employment of theemployer?(iv) Whether the orders dated 2.5.2008 and 5.8.2008 of the High Courtcall for interference?It was held that the State Government had created aquasi judicial forum by the government resolution which wasimpermissible. The tribunals with adjudicatory powers could becreated by statutes only and not otherwise. In the case beforethe Supreme Court grievance committee was empowered todecide the matters of termination, reinstatement, appointment,etc. which are within the jurisdiction of the Tribunal U/Sec. 9 ofthe Act of 1979. A single member committee of retired judgewas constituted. The grievance committee for Shikshan Sevaksconstituted by G. R. dated 27.04.2000 was having all powers ofquasi judicial forum and, therefore, that G.R. was quashed. Inthe present matters, issues which are not covered by Sec. 9 ofthe Act of 1979 are referable to the forums. These are thedistinguishing features of government resolution in the matterbefore the Supreme Court and impugned G. R. in the present 31 wp 7355.24.odtmatter. In that view of the matter, we find that the judgmentrendered by the Supreme Court is not applicable to the presentcase.20.In Swati Shivaji Lawhare Vs. State ofMaharashtra and others (supra), it was a matter in respect ofgrant of approval to the appointment of a cook in an Ashramschool receiving grant in aid from the State Government. Aremedy of appeal was created by Government Resolution dated03 August 2017. The creation of the forum by that governmentresolution was challenged relying on the judgment in the matterof Secretary, Sh. A. P. D. Jain Pathshala and others Vs. ShivajiBhagwat More and others (supra). The appellate forums werecreated by G. R. dated 03.08.2017 for the employees of Ashramschools run by VJNT, OBC or Special Backward Classcategories. The District Social Welfare Officer, AssistantCommissioner, Joint Commissioner were entrusted with thepowers to decide the disputes. Thereafter, appeal was providedto Deputy Director cum Deputy Commissioner and thereaftersecond appellate forum was created of higher rank officers. Thecreation of the forum in the case in hand is for matters whichare out of the purview of Sec. 9 of the Act of 1979. Theemployees of Ashram schools to whom G. R. dated 03.10.2017was applicable had statutory remedy available for theirgrievances. Therefore, it was held that constitution of appellateauthorities was not by any statute, but by the executive powerswhich was impermissible. We have elaborately discussed thebackground for issuing impugned G. R. The judgment of the 32 wp 7355.24.odtdivision bench is also not applicable to the present case.21.We, therefore, hold that impugned G. R. has notcreated any quasi judicial forum or tribunal. It is within thelegislative competence of the State to promulgate it. It istherefore valid and enforceable.22.The petitioners have alternate remedy available ofapproaching the appellate committee/forum created under theimpugned G.R. We, therefore, do not propose to examine meritsof the matter individually. We relegate the parties to theappellate forum.23.We find no merit in the challenge to the impugned G.R.We, therefore, pass following order :O R D E R(i) All writ petitions are dismissed.(ii)The petitioners shall be at liberty to approach theappellate committee/forum available under the GovernmentResolution dated 27.03.2024. If they prefer to approach theCommittee within a period of four (04) weeks from today, theirappeals shall be entertained on merits and shall not bedismissed on the ground of limitation provided therein.(iii)Rule is discharged.[ SHAILESH P. BRAHME, J. ] [ MANGESH S. PATIL, J. ]bsb/Oct. 24
Arguments
2 wp 7355.24.odtThrough its Head Master... RespondentsShri 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.WITHWRIT PETITION NO. 6729 OF 2024Mulla Khalil Usmansab,Age : 43 years, Occu. : Service asAssistant Teacher,R/o Near Laxmi Temple, Banhelki,Latur, Tq. Latur, Dist. Latur... PetitionerVersus1.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. LaturPay 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. 3 wp 7355.24.odt6.Gulshan-A-Altaf Urdu PrimarySchool, Chincholi, Tq. Nilanga,Dist. Latur, Through its Head Master... RespondentsShri 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.WITHWRIT PETITION NO. 6737 OF 2024Syed Javed Syed Chand,Age : 43 years, Occu. : Service asShikshan Sevak,R/o Chand Syed, Near Santoshi MataMandir, Vikas Nagar, Degloor Road,Udgir, Latur, Tq. & Dist. Latur... PetitionerVersus1.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. LaturPay and Provident Fund Unit (Primary Section), Zilla Parishad, Latur,Tq. and Dist. Latur. 4 wp 7355.24.odt5.Rahemaniya Taleemi Society,Nilanga, Tq. Nilanga, Dist. Latur,Through its Secretary.6.Gulshan-A-Altaf Urdu PrimarySchool, Chincholi, Tq. Nilanga,Dist. Latur, Through its Head Master... RespondentsShri 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.WITHWRIT PETITION NO. 6735 OF 2024Hasmi Syed Wasiq Ahnad Syed Ahmad,Age : 41 years, Occu. : Service asAssistant Teacher,R/o Hashmi Syed, 5585, Baba Nagar,Shelhal Road, Nideban, LaturTq. & Dist. Latur... PetitionerVersus1.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. LaturPay and Provident Fund Unit (Primary Section), 5 wp 7355.24.odtZilla Parishad, Latur,Tq. and Dist. Latur.5.Rahemaniya Taleemi Society,Nilanga, Tq. Nilanga, Dist. Latur,Through its Secretary.6.Gulshan-A-Altaf Urdu PrimarySchool, Chincholi, Tq. Nilanga,Dist. Latur, Through its Head Master... RespondentsShri 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.WITHWRIT PETITION NO. 6738 OF 2024Himayat Mehabub Patel,Age : 40 years, Occu. : Service asAssistant Teacher,R/o Kalan Galli, Arba, Khadakpura,Ausa, Latur Tq. Latur, Dist. Latur... PetitionerVersus1.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. LaturPay and Provident Fund Unit 6 wp 7355.24.odt(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 PrimarySchool, Chincholi, Tq. Nilanga,Dist. Latur, Through its Head Master... RespondentsShri 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.WITHWRIT PETITION NO. 7977 OF 2024Shri Mahesh S/o Kalyanrao Patil,Age : 39 years, Occu. : Service asAssistant TeacherR/o Wadmurambi, Tq. Deoni,Dist. Latur... PetitionerVersus1.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 behindRajasthan High College, Suit MillIsa, Gajanan Nagar, Latur. 7 wp 7355.24.odt3.The Deputy Director of Education,Latur Division, Latur,.. RespondentsShri 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.WITHWRIT PETITION NO. 10913 OF 2024Shri Vilas S/o Diliprao Jadhav,Age : 34 years, Occu. : Service asAssistant TeacherR/o Phule Nagar, NandedTq. & Dist. Nanded... PetitionerVersus1.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 SecondaryVidyalaya, CIDCO, Nanded,Tq. & Dist. Nanded,Through Principal... RespondentsShri 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. 8 wp 7355.24.odtWITHWRIT PETITION NO. 10938 OF 2024Krishnanand S/o Premrao SirsewadAge : 32 years, Occu. : Service asShikshan Sevak,R/o At Post Bhisi,Tq. Kinwat, Dist. Nanded... PetitionerVersus1.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, BhokarTq. Bhokar, Dist. Nanded,Through its President/Secretary.4.Kai. Laxmanrao Ghisewad (Swatantra)Junior College, Bhokar,Tq. Bhokar, Dist. Nanded, Through Head Master... RespondentsShri 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.WITHWRIT PETITION NO. 10956 OF 20241.Suyakant S/o Datta Wankhede,Age : 29 years, Occu. : Service asAssistant Teacher,R/o Betsangavi, Tq. Loha,Dist. Nanded. 9 wp 7355.24.odt2.Kishan S/o Balaji Kapase,Age : 34 Years, Occu. : Serviceas Assistant Teacher,R/o Shirur Tajband, Tq. Ahmedpur,Dist. Latur.3.Kiran S/o Hiraman Shinde,Age : 30 years, Occu. : ServiceAs Assistant Teacher,R/o At Gopalchawadi Nanded,Copalchawadi, Tq. & Dist. Nanded... PetitionersVersus1.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 HigherSecondary High School, Halda,Tq. Kandhar, Dist. Nanded,Through its Head Master.5.Shri Shivaji Secondary and HigherSecondary High School, Kurula,Tq. Kandhar, Dist. Nanded,Through its Head Master... RespondentsShri 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. 10 wp 7355.24.odtWITHWRIT PETITION NO. 10291 OF 20241.Kalyani Vijay Patil,Age : 33 years, Occu. : ServiceR/o Manwel, Tq. Yawal,District Jalgaon.2.Sagar Kailas Magare,Age : 31 Years, Occu. : ServiceR/o Sawata Mali Chowk, Lasur,Tq. Chopda, District Jalgaon.3.Sohan Arun Halde,Age : 30 years, Occu. : ServiceR/o Adawat, Tq. Chopda,District Jalgaon... PetitionersVersus1.The State of Maharashtra,Through its Principal Secretary,School Education Department,Mantralaya, Mumbai.2.The Education Officer (Secondary),Zilla Parishad, Jalgaon... RespondentsShri 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.WITHWRIT PETITION NO. 10817 OF 2024Smt. Sangita Gangadhar Dhande,Age : 33 years, Occu. : Serviceas Assistant Teacher,R/o Gut No. 09, P. No. 71/B,Juna Kautha Road, Nanded,Tq. Nanded, Dist. Nanded... Petitioner 11 wp 7355.24.odtVersus1.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... RespondentsShri 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 :15.10.2024JUDGMENT PRONOUNCED ON:25.10.2024JUDGMENT (Per Shailesh P. Brahme, J.) :-.Rule. Rule is made returnable forthwith. Heard boththe sides finally at the admission stage with their consent.2.Predominant challenge in these petitions is to thevalidity of the Government Resolution dated 27 March 2024 12 wp 7355.24.odtissued by the School Education and Sports Department,Government of Maharashtra, consequently thecommunications/orders passed by the Education Officers/DeputyDirectors of Education are also questioned. We propose to decidethese petitions by this common judgment and order. We arereferring to the paper book of Writ Petition No. 7355 of 2024 andWrit Petition No. 6737 of 2024.3.The petitioners before us are the employees of therespondent/private managements working in the schools run bythem. They are aspiring for service benefits under theprovisions 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 asto the ‘Act of 1979’ and ‘Rules of 1981’) for which the approval ofthe officers of the Education Department is imperative. Theirproposals seeking approvals have been turned down by theofficers of the Education Department, which is common cause foreach of them to approach the High Court.4.After filing the petitions, petitioners are confrontedwith Government Resolution dated 27.03.2024 which is animpediment in entertaining the petitions for having alternateremedy created under it. Hence they are challenging G. R.Dated 27.03.2024 (for short ‘impugned G.R.) along withcommunications/orders of the officers of the EducationDepartment. 13 wp 7355.24.odt5.The controversy involved in these petitions pertains tothe service conditions of employees of aided and unaided privateschools. In each petition the decision of the officers of theeducation department has been questioned. Such recurringcauses and their repercussions have been considered elaboratelyby the division bench at the Principal seat at Bombay in group ofpetitions vide judgment dated 16.04.2024 in the matter ofNitin Bhika Tadge and another Vs. The State ofMaharashtra and another in Writ Petition No. 204 of 2019.Before passing final orders on 16 April 2024 in those mattersvarious interim orders/directions were issued.6.To curtail unnecessary litigation which is causingharassment to the employees and the management, the Statecame out with a policy. Considering National Litigation Policyof 2010 and to reduce burden on the state exchequer, theGovernment Resolution dated 27.03.2024 was issued byexercising powers under Article 162 of the Constitution of India.The appellate forums are created for the employees and themanagements. The orders passed by the officers of the educationdepartment are made amenable to challenge before theappellate forums. It provides alternate efficacious remedy to thepetitioners before us. They are aggrieved by creation ofappellate forums by the impugned G. R. If the challenge issustained, then we have to examine validity of theorders/communication issued by the officers of the educationdepartment impugned in the individual petitions before us. 14 wp 7355.24.odt7.The learned counsel Mr. Sachin S. Deshmukhappearing 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 of2024 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. 15 wp 7355.24.odt8.To oppose the petitions, the respondent Nos. 1 and 2have 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 thesubmissions of the petitioners in following manner :(a)The impugned G. R. is valid, reasonable and it is issuedunder peculiar facts and circumstances to deal with the matterswhich are not covered by Act of 1979 and Rules of 1981.(b)All the grievances/matters covered under the impugnedG. R. are beyond the purview of statutory remedies providedunder the Act of 1979 and Rules of 1981 or any other forums.(c)The impugned G. R. is issued under Article 162 of theConstitution of India. It does not create any quasi judicialauthority, or Tribunal as contemplated by Articles 223-A and223-B of the Constitution of India.(d)The forums created by the impugned G. R. are purelyadministrative/executive filters.(e)The matters which are covered by the forums are notlis between the parties bearing adversarial overtures.(f)The procedure to be followed by the forums is not akinto the one followed by a Tribunal or a quasi judicial authority.The members of the Committee are all executives of the State 16 wp 7355.24.odtGovernment. (g)The judgment cited by the petitioners in the matter ofSecretary, Sh. A. P. D. Jain Pathshala and others Vs. Shivaji BhagwatMore and others (supra) and Swati Shivaji Lawhare Vs. Stateof Maharashtra and others (supra) are not applicable becausethe forums created by the government resolutions which wereimpugned in those matters are not akin to the forums created bythe impugned G. R.(h)Reliance is placed on the judgment of the divisionbench of this Court at Principal Seat at Bombay in the matter ofjudgment dated 16.04.2024 in the matter of Nitin BhikaTadge and another Vs. The State of Maharashtra andanother in Writ Petition No. 204 of 2019.(i)In the alternative, it is submitted that the matters bereferred to the Hon’ble the Chief Justice for reference to a largerbench.9.Having heard both the sides, a question which falls forour consideration is as to whether the Government Resolutiondated 27.03.2024 creates quasi judicial forums ?10.Background of impugned G. R. :(i)The terms and conditions of the service of employees ofprivate schools are governed by the Act of 1979 and Rules of1981. The State Government is empowered to frame rules to 17 wp 7355.24.odtprovide minimum qualification for recruitment, recruitmentprocedure, scales, categories of employees, qualification, etc. BySection 8 of the Act of 1979, a Tribunal is constituted which is aquasi judicial authority to decide the matters covered by Section9 of the Act of 1979. By way of Sec. 10 procedure to be followedby the Tribunal is provided. All the matters pertaining to theservice conditions are not covered by Section 9 of the Act of 1979.Jurisdiction of the Tribunal is restricted to the extent ofdismissal or removal or reduction in rank or supersession. Noforum is provided either to the management or to the employeesrendering services in the private school for their grievances inrespect of approvals, transfers, registration in online portal fordisbursal of salaries, revision of scales, retiral benefits, workload, abolition of the posts, absorption of surplus employees, etc.(ii)The schools regulated by the Act of 1979 are aided aswell as unaided. To cater the need of education, privatemanagements are permitted to run schools. Governmentprovides them grant in aid. This obligation is within perview ofdirective principles of State policy under the Constitution ofIndia. It is the obligation of the officers of the educationdepartment to oversee that the service conditions aremeticulously followed, grants are properly utilized and theschools are being run in accordance with National EducationPolicy.(iii)The officers of the education department areempowered to grant approvals, sanctions for various purposes 18 wp 7355.24.odtafter considering the proposals received from the managements.Though they are expected to discharge these duties punctuallyand in accordance with law, frequently there are lapses andderelictions. As no remedy is provided under the Act of 1979 orthe Rules of 1981, employees of the private managementsapproach the High Court. Large number of cases are filed in theHigh Court. A judicial cognizance has been taken by thedivision bench of this Court at the principal seat in the matter ofNitin Bhika Tadge and another Vs. The State ofMaharashtra and another (supra) in para Nos. 9, 10 and 11 ofthe judgment giving the statistics regarding such matterspending at the principal seat and the benches. To reduce thislitigation, the government has come up with the impugned G. R.A need is felt to provide appellate forum for rectification of themistakes committed by the officers of the education departmentso that every now and then the stake holders need not have toapproach the High Court.(iv)It is relevant to notice the concern expressed by thedivision bench in the matter of Nitin Bhika Tadge andanother Vs. The State of Maharashtra and another (supra).In paragraphs Nos. 4 to 6, 10 to 12 of the judgment it has beenexplained as to how the matters come to the High Court and pileup. A judicial notice has also been taken of the steps taken bythe State Government by issuing various governmentresolutions to cope up with the problem. A reference to theNational Litigation Policy of 2010 has been made in paragraphNo. 20. It is relevant to refer to paragraph Nos. 21 and 37 of the 19 wp 7355.24.odtjudgment which reads thus :21. One factor that contributes to this litigation is that once theCourt lays down a precedent and the State does not contest it, the StateGovernment does not issue clarifying directives to the authorities ofthe Education Department to ensure compliance with the law. TheEducation Authorities persist with similar erroneous decisions, leadingto repetitive legal challenges and subsequent reversals, addingunnecessarily to the judicial workload. The sheer volume of petitionson identical matters surpassing almost five digits across the PrincipalSeat and benches in Nagpur and Aurangabad underscores theproliferation of needless litigation. This compels management todivert resources and time from their core responsibilities, impactingthe quality of education.37. The constant burden of litigation between teachers,Management, and the State Government harms society in severalways. Firstly, it puts unnecessary strain on school management andteachers, diverting their time and resources from teaching andlearning. This affects the quality of education and creates uncertaintywithin employees and management. Moreover, the financial costsassociated with litigation are significant. Litigation drains resourcesthat could otherwise be invested in improving educational facilities.(v)To reciprocate the concern expressed by the divisionbench, the State Government has come out with the strategy inthe form of impugned G. R. An endeavour of the StateGovernment is not that to introduce any alternate forum to theexisting statutory forums. We have also collected data from theRegistry of the bench at Aurangabad which also throws light onthe recurring litigation, post division bench judgment in thematter of Nitin Bhika Tadge and another Vs. The State ofMaharashtra and another (supra). From June 2024 to midOctober 2024, 110 number of writ petitions are filed ventilatinggrievance which fall outside of the purview of the statutory 20 wp 7355.24.odtforum and which are questioning the actions of the officers of theeducation department. We propose to examine validity of theimpugned G. R. in the backdrop of the aforementionedcircumstances.11.Nature of the forums, grievances and the procedureprovided 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 (Conditionsof Service) Regulation Act, 1977 does indeed establish provisions fora school tribunal under Section 8. There is currently no formalmechanism in place to address grievances that do not fall within thejurisdiction of the School Tribunal. It has been observed that thenumber of court cases is increasing due to the lack of a system forfiling appeals/complaints against the order passed by the fieldauthorities on the application of teachers and non-teaching staff ofprivate aided/unaided/partially aided schools and educationalinstitutions. The Hon'ble High Court, Bombay while giving judgmentin the petitions No. 11613/2014 and 2527/2017 filed against theHigher and Technical Education Department, the Hon'ble Court hasalso directed the School Education Department to create a GrievanceRedressal Mechanism. According to the Government Resolution dated18.12.2018 of the Department of Higher and Technical Education, aGrievance Redressal Committee has been constituted to take action onthe complaints of teachers/non-teaching staff and officers. On thesame lines, Grievance Redressal Committees have been formed by 21 wp 7355.24.odtthis Department as per Government Resolution dated 20th July 2019,29th August 2019, and as per Government Resolution dated 01stOctober 2019 to take action on the complaints of private aided/partlyunaided/unaided (partially aided), teaching and non-teaching staff inthe School Education Department. However, the Hon’ble High Courtwhile deciding the Writ Petition No.1182/2024 filed in the Hon'bleHigh Court, Bombay has directed to reform the Grievance RedressalMechanism. Accordingly, a reformed Grievance RedressalCommittee/Appellate Authority was constituted as per theGovernment Resolution referred to deal with the grievances of privateaided/unaided/unaided (partially aided), teaching and non-teachingstaff and educational institutions in the school education department. But in the Writ Petition No. 1182 /2024 the Hon’bleBombay High Court issued instructions from time to time, that it wasunder the consideration of the Government to issue a GovernmentResolution containing instructions in a more elaborate formsuperseding the Government Resolution in the above reference Read. (II)The learned counsel for the petitioners adverted ourattention to Clause Nos. 2 to 6 of the impugned G. R. to makeout a point that the forums created under clause 1(a), (b) and (c)have trappings of quasi judicial forums. He would emphasizeuse of the words matters, appeal, disputes, hearing, evidence,arguments, opportunity of hearing and decision, which accordingto him are indicative of proceedings before the quasi judicialauthority. The procedure for hearing the complaints/appealslaid down by Clause 4 is the adjudicating mechanism.Therefore, it is vehemently argued that quasi judicial forum ortribunal 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. Noforum is available to ventilate the grievance pertaining to 22 wp 7355.24.odtenlisted matters in Clause No. 2. Frequently, writ petitionsunder Article 226 and 227 of the Constitution of India areresorted to, albeit, the remedy of civil suit is always available,but it may not be efficacious. The members of the committeesconstituted by Clause 1(a) (b) and (c) are the officers of theeducation department. They are officers of higher in rank andexperts. The judicial officers, retired judicial officers or legalexperts are not included in the committees.(IV)The matters which are covered by Clause 2 arepertaining to administrative functions of the officers of theeducation department. Those are not the quasi judicialfunctions. The appellate forum is meant for rectifying themistakes of the subordinates and to oversee that serviceconditions, statutory provisions and law laid down by variouscourts are followed. The appellate forums are provided by wayof filtering mechanism, to weed out illegalities, infirmities andto follow the binding precedent. Instead of approaching the HighCourt and burdening its work, aggrieved individual ormanagement 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 legalparlance and are decisive factors. They are used in colloquiallanguage. The purport is not to confer quasi judicial powers.The words hearing, arguments and evidence are not necessarilymeant to suggest trappings of quasi judicial function. These are 23 wp 7355.24.odtmerely indicative of fair play, which ordinarily needs to befollowed while discharging any administrative function.(VI)Clause 3 of the impugned G. R. provides for theprocedure for filing complaint/appeal. The employees as well asmanagement can approach the appellate forums. The impugnedG. R. does not prohibit the stake holder from approaching anyCourt of law, neither is there any provision to treat the decisionas final and binding. This is a distinguishing feature of theseforums. Similarly, there is no provision for the officers of theeducation department to challenge the decision. Hence what ispreferred to the appellate forum under impugned G. R. is not alis. There is no adjudication of rights and liabilities of theparties in strict sense. Therefore, we are not convinced by thesubmissions of the learned counsel for the petitioners that theforum created and procedure laid down for deciding the mattershave the trappings of quasi judicial forum.(VII)No power has been conferred on the committeescreated 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 againstthe decisions of committee. The jurisdiction of civil Court orother forums has not been excluded expressly or impliedly. The 24 wp 7355.24.odtcommittee does not enjoy powers U/Sec. 340 of the Code ofCriminal Procedure. Therefore, it is rightly submitted thatthe committees are not creation of any forum under Article223-A, and 223-B of the Constitution of India. The committeesare in the nature of executive forum and they are sought toachieve the purpose narrated in the introductory para of theimpugned G. R.12.Competence of the State Government to issueimpugned G. R. :Impugned G. R. has been issued under the powers ofArticle 162 of the Constitution of India. It is not a subordinatelegislation. It is not issued by resorting to provisions of Sec.16(4) of the Act of 1979. As has been recorded earlier, no forumwas available for the employees and the managements tochallenge executive actions/decisions/order of the educationdepartment in respect of matters covered by Clause 2 of theimpugned G. R. Only remedy was either to approach the HighCourt or to file a suit. To fill up the void, the appellate forumshave been created by the impugned G. R. Apparently, impugnedG. R. is issued in consonance with the National Education Policyof 2010, to curtail recurring litigation and to reduce the burdenon the exchequer. 13.The State Government has adequate powers underArticle 162 of the Constitution of India to promulgate the policyfor the matters which cannot be subjected to proceedings beforethe statutory forums. With an avowed objective impugned G. R. 25 wp 7355.24.odthas been issued. We do not see that there is violation of anyprovision of Constitution or any law or public policy. Theexecutive powers of the state extends to the matters covered byClause 2 of the impugned G. R. in respect of which legislature ofthe State has a power to make laws.14.A gainful reference can be made to law laid down bythe Supreme Court in the matter of P. H. Paul Manoj Pandian Vs. P.Veludurai reported in (2011) 2 SCC 105. Para No. 19 reads asfollows :“19. Departmental circulars are a common form of administrativedocument by which instructions are disseminated. Many such circularsare identified by serial numbers and published, and many of themcontain general statement of policy. They are, therefore, of greatimportance to the public, giving much guidance about governmentalorganization and the exercise of discretionary powers. In themselvesthey have no legal effect whatever, having no statutory authority. Butthey may be used as a vehicle in conveying instructions to which somestatute gives legal force. It is now the practice to publish circularswhich are of any importance to the public and for a long time there hasbeen no judicial criticism of the use made of them. Under Article 162of the Constitution, the executive power of the State extends to matterswith respect to which the State Legislature has power to make laws.Yet the limitations of the exercise of such executive power by theGovernment are two fold; first, if any Act or Law has been made bythe State Legislature conferring any function on any otherauthority - in that case the Governor is not empowered to makeany order in regard to that matter in exercise of his executivepower nor can the Governor exercise such power in regard to thatmatter through officers subordinate to him. Secondly, the vestingin the Governor with the executive power of the State Governmentdoes not create any embargo for the Legislature of the State frommaking and/or enacting any law conferring functions on anyauthority subordinate to the Governor. Once a law occupies thefield, it will not be open to the State Government in exercise of its 26 wp 7355.24.odtexecutive power under Article 162 of the Constitution to prescribein the same field by an executive order. However, it is wellrecognized that in matters relating to a particular subject inabsence of any parliamentary legislation on the said subject, theState Government has the jurisdiction to act and to makeexecutive orders. The executive power of the State would, in theabsence of legislation, extend to making rules or orders regulatingthe action of the Executive. But, such orders cannot offend theprovisions of the Constitution and should not be repugnant to anyenactment of the appropriate Legislature. Subject to theselimitations, such rules or orders may relate to matters of policy,may make classification and may determine the conditions ofeligibility for receiving any advantage, privilege or aid from theState. The powers of the executive are not limited merely to thecarrying out of the laws. In a welfare state the functions ofExecutive are ever widening, which cover within their ambitvarious aspects of social and economic activities. Therefore, theexecutive exercises power to fill gaps by issuing variousdepartmental orders. The executive power of the State is co-terminus with the legislative power of the State Legislature. Inother words, if the State Legislature has jurisdiction to make lawwith respect to a subject, the State Executive can make regulationsand issue Government Orders with respect to it, subject, however,to the constitutional limitations. Such administrative rules and/ororders shall be inoperative if the Legislature has enacted a lawwith respect to the subject. Thus, the High Court was not justifiedin brushing aside the Government Order dated November 16, 1951on the ground that it contained administrative instructions. Therespondent could not point out that the said order was repugnant toany legislation enacted by the State Government or the CentralGovernment nor could he point out that the instructions containedin the said Government Order dated November 16, 1951 wererepugnant to any statutory rules or the Constitution. In fact, therewas neither any enactment nor any statutory rule nor anyconstitutional provision as to how the contractor, who has enteredinto contracts with the Government, should be permitted to contestelection, more particularly, when a request is made by thecontractor to terminate his contracts so as to enable him to contestthe election. There is no manner of doubt that in this branch of 27 wp 7355.24.odtjurisdiction there was absence of statutory enactment, regulationsand rules and, therefore, this Court is of the firm opinion that theGovernment had all authority to issue Government Order datedNovember 16, 1951 to fill up the gaps. Thus the case of therespondent that his three contracts were terminated before he filednomination papers will have to be judged in the light of thecontents of Government Order dated November 16, 1951. Viewedin the light of the contents of the Government Order datedNovember 16, 1951, there is no manner of doubt that there was novalid termination of the contracts by the Government and thosecontracts were subsisting on the date when the respondent hadfiled his nomination papers and also on the date when thenomination papers of the respondent with other candidates werescrutinized by the Returning Officer.”15.Reliance can also be placed on the judgment of thedivision bench of this Court at the principal seat in the matter ofRashtriya Shikshan Sangh and others Vs. State of Maharashtra and othersreported in 2022 (6) Mh. L. J. 266. Para Nos. 13 and 14 of thejudgment 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 aState shall extend to the matters with respect to which the Legislatureof the State has power to make laws. The proviso clause to the saidArticle also states that in any matter with respect to which theLegislature of State and Parliament have power to make laws, theexecutive power of the State shall be subject to, and limited to, theexecutive power expressly conferred by any law made by theParliament. 14. The power of the State Government to issue executivedirections is confined to filling up the gaps or covering the area whichotherwise has not been covered by the existing statutory Rules, andsuch instructions or orders must be subservient to the statutory Rules.The executive power of the State under Article 162 of the Constitutionof India is co-extensive with the legislative power, and when the fieldof law is occupied by a Legislative Act, the exercise of executive