High Court · 2024
Legal Reasoning
(6) wp-10818-2022.odtjudgment of Full Bench, the petitioners have again raised sameissue and trying to derive disadvantage of situation. He wouldpoint out that respondent no.1 is litigating for his right since 2016,hence entertaining writ petition again on point of jurisdiction maycause serious prejudice to employee.12.Having considered submissions advanced, it is admitted factthat petitioner no.2 is D.Ed. College run and administered bypetitioner no.1-Institute. It is submitted before this Court thatD.Ed. College is not school within the meaning of MEPS Act,therefore, remedy of Appeal under Section 9 is not available to theemployees of D.Ed. College. The respondent no.1 invoked remedyunder Section 9 of the MEPS Act to assail termination order dated04.01.2016 before the Tribunal. The petitioner-Management hadraised objection as regards to the maintainability of Appeal. Thesaid objection was turned down by the Tribunal. Writ Petition filedagainst such order by the Management was dismissed and even,SLP was rejected at threshold. Pertinently, in earlier round oflitigation, on preliminary issue as regards to the jurisdiction of theTribunal, relying upon the stand of the State Government, thisCourt had arrived at conclusion that the Tribunal constitutedunder MEPS Act would have jurisdiction to entertain Appeal at thebehest of the employees of D.Ed. College. This Court observed thatas long as there is no separate Act or Rules, the staff in D.Ed.College cannot be left without formulation of any condition ofservice. It is also observed that NCTE Regulations, 2014contemplates broader area of terms and conditions of service andremedy of Appeal is only one aspect of it and these benefits are leftto the wisdom of State Government. As such, State Governmenthas exercised powers conferred on it by NCTE Regulations, 2014,particularly Clause No.5.4 and decided to govern the staff of D.Ed. (7) wp-10818-2022.odtcolleges by Maharashtra Employees of Private Schools (Conditionsof Services) Regulation Act, 1977 and Rules framed thereunder.Consequently, this Court held that remedy under Section 9 of theMEPS Act is available to the employees of D.Ed. Colleges. Thedecision of this Court dated 24.02.2022 was subjected to challengein SLP (Civil) Diary No.26392/2022. The Hon’ble Supreme Courtobserved that ‘We are in complete agreement with the view takenby High Court. No interference of this Court is called for inexercise of powers under Article 136 of the Constitution of India.The Special Leave Petition stands dismissed.’ 13.It appears that, after decision on preliminary issue theTribunal decided Appeal on merits of the matter and quashed andset aside otherwise termination dated 04.01.2016 and directedreinstatement of respondent no.1 with continuity of service and fullback-wages as well as consequential benefits.14.Pertinently, in case of Hashmiya Association (supra) fullbench of this Court in Reference made by learned Single Judge videorder dated 24.11.2021 was called upon to answer Reference as towhether the jurisdiction of School Tribunal under Section 9 of theMaharashtra Employees of Private Schools (Conditions of Services)Regulation Act, 1977 would be available to the employees of D.Ed.College, in light of observations of Division Bench in case ofGururaj Vasantrao Kulkarni and view taken by the learnedSingle Judge of this Court in case of Ravindra Motiram Firake.This Court after referring to the provisions of NCTE Act, 1993 andparticularly, Section 14 of the said Act observed that D.Ed.Colleges are recognized under NCTE Act. This Court furtherreferred to the observations of Single Judge in case of RavindraMotiram Firake and finally concurred with his decision holding (8) wp-10818-2022.odtthat employees of D.Ed. and B.Ed. Colleges do not have remedy offiling Appeal under Section 9 of the MEPS Act.15.In view of the aforesaid authorative pronouncement of FullBench of this Court, the legal position that stands as on today isthat the School Tribunal has no jurisdiction to entertain Appealunder Section 9 of the MEPS Act at the behest of employees ofD.Ed. and B.Ed. Colleges, which are not recognized under MEPSAct. Therefore, the order impugned in this Appeal cannot besustained in law. 16.Although Mr. Mohekar, learned Advocate appearing forrespondent no.1 strenuously submits that Full Bench judgment incase of Hashmiya Bahrul Faiz Social Welfare Association(supra) may not apply to the present case and it would haveperspective application, the submissions cannot be accepted. It istrite that, the decision of higher Court on particular issue is in thenature of declaration of legal position and once such declaration ismade, it would apply retrospectively from the inception of law inquestion. The only exception is when the Court for the reasonsrecorded, restricts application of legal position espoused forprospective application. However, from the judgment of Full Benchin case of Hashmiya Bahrul Faiz Social Welfare Association(supra) no such inference can be drawn. In fact, Full Bench hasconcurred the view taken by Honorable Single judge of this Courtin case of Ravindra Motiram Firake, i.e. judgment delivered byof this Court dated 15.06.2009 and further observed that DivisionBench in case of Gururaj Vasantrao Kulkarni has not overruledlegal position on the subject at hand as settled in case ofRavindra Motiram Firake. It is, therefore, clear that Full Benchof this Court has merely reaffirmed subsisting legal position thatemployees of D.Ed. and B.Ed. Colleges cannot invoke jurisdiction of (9) wp-10818-2022.odtSchool Tribunal under Section 9 of the MEPS Act. So far ascontention of petitioners that issue as to jurisdiction has beenalready settled qua parties at the stage of preliminary objection,this court cannot countenance such submissions, when the finaljudgment of Tribunal is assailed before this court, any findingparticularly as to jurisdiction of Tribunal would be open forconsideration. This court cannot shut eyes to declaration of law byFull Bench to approve judgment rendered by Tribunal, whichinherently lacks jurisdiction. It is true that view taken by Tribunalat preliminary stage was approved by Single Judge of this Court,SLP of management was also rejected by the Supreme Court, butrejection of SLP cannot be considered as judgment of SupremeCourt or approval to the view expressed by this Court. The lawdeclared by Full Bench of this Court would prevail in such cases. 17.So far as judgments relied by Mr. Mohekar, learned advocatefor petitioners is concerned, it can be observed that the prepositionof law espoused therein is that statutory provision would haveprospective effect, no quarrel can be raised to said preposition, butin present case, petitioner management relied on Full Benchjudgment of this Court, which declared/reaffirmed legal position onpoint of jurisdiction of Tribunal under Section 9 of MEPS Act andRules. It is not the case of amendment of statutory provision orreplacement of legislation governing field. Hence, none ofjudgment referred by Mr. Mohekar has application in facts ofpresent case. 18.The result of aforesaid discussion is that the impugned orderpassed by the School Tribunal is without jurisdiction and liable tobe quashed and set aside. The Full Bench of this Court hasspecifically expressed that employees of D.Ed. and B.Ed. Collegesdo not have access to the specialized Tribunal and Legislatures are (10) wp-10818-2022.odtrequired to address this issue. Although this Court may havesympathy towards employees, in view of crystallized legal position,the order of the School Tribunal cannot be sustained. Hence, thefollowing order:ORDER a.Writ Petition is allowed.b.The impugned judgment and order dated 27.04.2022 passedSchool Tribunal, Latur in Appeal No.17/2021, is hereby quashedand set aside, being without jurisdiction and Appeal standsdismissed.c.Writ Petition is disposed of. d.Rule is made absolute in above terms. (S. G. CHAPALGAONKAR) JUDGE Devendra/July-2024
Arguments
(1) wp-10818-2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.10818 OF 20221.Shri Baliraja Shikshan Sanstha,Someshwar, Tq. Palam, District-Parbhani, Through: its Secretary.2.Late Bhai Prabhakarrao PatilD.Ed. College, Palam, Tq. Palam, District-Parbhani, Through its I/c Principal...PetitionersVersus1.Mahesh s/o. Narayanrao Bilolikar,Age-51 years, Occu. Nil, R/o Sai Golden City, Loha, Tq. Loha, Dist. Nanded:2.The Deputy Director of Education,Aurangabad Division, Aurangabad...Respondents....Mr. C. K. Shinde, Advocate for Petitioners.Mr. G. V. Mohekar h/f Mr. A. S. Shivpuje, Advocate for RespondentNo.1.Mr. S. N. Kendre, AGP for Respondent No-State.… CORAM : S. G. CHAPALGAONKAR, J. DATED : 02nd AUGUST 2024.JUDGMENT:- 1.Rule. Rule made returnable forthwith. By the consent of theparties, matter is taken up for final hearing at the stage ofadmission.2.The petitioners impugn judgment and order dated27.04.2022 passed by School Tribunal, Latur in AppealNos.17/2021. 3.The respondent no.1 approached School Tribunal at Laturassailing termination order dated 04.01.2016 invoking jurisdictionunder Section 9 of MEPS Act, 1977. The respondent no.1 contendsthat he holds educational qualification as B.Sc., M.Ed. In (2) wp-10818-2022.odtpursuance to the advertisement of petitioners, he had respondedand was appointed on 22.08.2005 on temporary basis and on09.01.2010 he was appointed as permanent Lecturer. On08.12.2014, he was given charge of Principal. Thereafter, hisservices have been terminated w.e.f. 04.01.2016 giving falsereasons. The respondent no.1 made grievance with petitioner no.1,i.e. Secretary of Institution, however, he did not respond to thecomplaint. He had also raised grievance to the Director,Maharashtra State Educational Research and Training Council,Pune and finally approached School Tribunal assailingtermination.4.The petitioners filed reply below Exhibit-25 and deniedcontentions raised in Appeal. According to them, they have givenbreak in service or dis-continuation in service. They have alsotaken plea that the appointment of respondent no.1 was not inaccordance with Section 5 of the MEPS Act, 1977. Lastly theycontend that College has been closed since June 2016, therefore,there is no question of seeking reinstatement. 5.The School Tribunal framed points for consideration inAppeal and after hearing parties, concluded that termination orderdated 04.01.2016 is bad in law and respondent no.1 is entitled forrelief of reinstatement with continuity of service with full back-wages. The aforesaid order is subject matter of challenge inpresent writ petition. 6.Mr. C. K. Shinde, learned Advocate appearing for thepetitioners submits that petitioners had raised objection regardingmaintainability of Appeal before School Tribunal under Section 9 ofthe MEPS Act, 1977, since D.Ed. College can not be termed asschool within the meaning of MEPS Act, 1977. Such objection was (3) wp-10818-2022.odtturned down by the Tribunal. The petitioners had, therefore,approached this Court in Writ Petition No.13043/2021, assailingorder of Tribunal. This Court upheld the order of Tribunal whiledismissing writ petition. Then petitioners approached Hon’bleSupreme Court by filing Special Leave Petition, however, SLP wasdismissed. Thereafter, School Tribunal entertained the Appeal andallowed the same. 7.Mr C. K. Shinde further submits that meanwhile learnedSingle Judge of this Court doubting jurisdiction of School Tribunalto entertain appeal at behest of employees of B.Ed or D.Edinstitutions made a Reference to Full Bench in case of HashmiyaBahrul Faiz Social Welfare Association Vs. Abdullah M.Shukur Qureshi and Others vide order dated 24.11.2021 asunder:(i)Whether the decision of the Division Bench inGururaj Vasant Kulkarni (supra) can be considered to havesub silentio overruled the view taken by the learned SingleJudge in Ravindra s/o. Motiram Firake (supra) so as tohold that the employees of the D.Ed. and B.Ed. Colleges havea remedy of an appeal under Section 9 of the MEPS Act. (ii)Considering the provisions of the MEPS Act and,more particularly, the definitions under Sections 2(20), 2(21)and 2(24) of the MEPS Act, can it be held that the D.Ed. andB.Ed. Institutions would fall within the purview of theMEPS Act so as to recognise to the employees of suchinstitutions a right of appeal under Section 9 of the MEPSAct. The Full Bench after hearing, answered the issues infollowing manner:(i)The order passed by the Division Bench dated 28February 2019 in Gururaj Vasantrao Kulkarni has not subsilentio overruled the view taken by the learned Single Judgein Ravindra Motiram Firake that the employees of the D.Ed. (4) wp-10818-2022.odtand B.Ed. Colleges, not recognised under the MEPS Act,cannot file an appeal under Section 9 of the MEPS Act. (ii)The second issue already stands answered inRavindra Motiram Firake that the employees of the D.Ed.and B.Ed. Colleges, not recognised under the MEPS Act,cannot file an appeal under Section 9 of the MEPS Act.8.Mr. Shinde, learned Advocate appearing for the petitioners,therefore, submits that School Tribunal had no jurisdiction toentertain appeal filed by respondent employee. Consequently,same is liable to be dismissed and writ petition deserves to beallowed. 9.Per contra, Mr. Mohekar, learned Advocate appearing forrespondent no.1 vehemently submits that issue as regards to thejurisdiction of School Tribunal to entertain the Appeal has beenalready settled in earlier round of litigation qua the parties. Thepetitioners had raised objection as regards to the maintainability ofAppeal before the Tribunal. The said objection was turned down.This Court confirmed the order of Tribunal in Writ Petition filed bypetitioners. Even SLP against such order is dismissed. Havingsuffered rejection of objection upto Hon’ble Supreme Court, theAppeal was contested by the petitioners before Tribunal on merits.The learned Tribunal after considering the merits of the matter,directed reinstatement of respondent no.1 with full back-wages andcontinuity in service. Therefore, on the basis of subsequentjudgment of Full Bench in case of Hashmiya Bahrul Faiz SocialWelfare Association Vs. Abdullah M. Shukur Qureshi andOthers1, the petitioners cannot reiterate same objection in presentwrit petition. 10.Mr. Mohekar would further submit that since issue asregards to the jurisdiction has been raised and settled upto Hon’ble12023 (2) Mh.L.J. 763. (5) wp-10818-2022.odtSupreme Court qua the parties, judicial propriety would requirethat such issue shall not be reopened in present writ petition. Hewould submit that order passed by the Tribunal so far as theobjection regarding jurisdiction has attained finality in earlierround of litigation. After suffering rejection of objection as regardsto the jurisdiction, the petitioners have contested matter on meritsbefore the Tribunal. Even, points for consideration in Appeal wereonly in respect of validity of termination. Therefore, petitioners arenow estopped from raising issue of maintainability. He wouldfurther submit that judgment of Full Bench would applyprospectively and not proceeding already decided by Tribunal. Insupport of his contentions Mr. Mohekar relies upon followingjudgments:1.Bhagwant Subhanrao Jagtap Vs. The State ofMaharashtra, Writ Petition No.1483/2011 with connectedwrit petitions.2.Vishnu Deo Nagar Sahakari Griha Nirman SansthaMaryadit Vs. The State of Maharashtra & ors.2 3.Commissioner of Income Tax (Central)-I New DelhiVs. Watika Township Pvt. Ltd3. 4.Assistant Excise Commissioner, Kottayam & ors. Vs.Esthappan Cherian & Ors.45.Kalyan Dombivali Corporation Vs. Sanjya GajananGharat & Ors.56.St. Ulai High School & Ors. Vs. DevendraprasadJagannath Singh & Ors.611.Mr. Mohekar would further submit that infact presentmatter was referred to mediator for settlement. However, after21995 CTJ 74.32015 (1) SCC 1.42021 (10) SCC 210.52022 AIR (SC) 1618.62007 (1) Mh.L.J. 597.