Suryakant Sheshrao Panchal vs Vasantrao Naik Vimukta Jati Bhatakya Jamati Aadarsh Prasarak Mandal & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2002 Supreme(Bom) 374

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
C.K. Thakker, C.J., B.H. Marlapalle N.H. Patil, JJ.
Suryakant Sheshrao Panchal .... Petitioner.
Versus
Vasantrao Naik Vimukta Jati Bhatakya
Jamati Aadarsh Prasarak Mandal others.... Respondents.
Writ Petition No. 1573 of 1999, decided on 16-3/12-4-2002.
Advocates appeared :
S.R. Barlinge, for petitioner.
R.R. Suryawanshi, for respondents Nos. 1 2.
E.P. Sawant, G.P. with U.K. Patil, A.G.P., for respondent Nos. 3 4.

Headnote:Maharashtra Employees of Private Schools (Condition of Service) Regulations Act, 1977 - Sections 2(20) and 9 - Bombay High Court (Appellate Side) Rules, 1960, Rule 7 - School Tribunal - Reference - Ashram school - Run by private management recognised by Divisional Board under Section 2(6-A) of Act - Entitlement of private school and employees to more school Tribunal under the Act - Single Judge held such schools not private school - Held - State Government issued notification that Ashram schools upto 10th and 12th Standard recognised by Maharashtra Board of Secondary and Higher Secondary Education - Not placed before single Judge - Judgment of single Judge not sustainable - Decision in Letters Patent Appeal No. 293/1999 by Division Bench being justifiable applicable to all Ashram schools. - It is well known that in the early fifteen of the last century the State Government came out as a policy of encouraging Ashram schools to be started by the private management as fully aided primary schools and they were mostly supposed to be residential schools. The permission to start such schools is given by the Deputy Director of Social Welfare or the Deputy Director of Tribal Development as the may be. Subsequently, looking to the growing needs of education beyond primary level, the State Government revised its policy and allowed post basic Ashram schools to be started by the private managements as aided schools. A primary school is normally from Ist to VIIth standards. However, a primary school from Ist to IVth standards is called as Level I and the primary school from Vth to VIIth standards is called as Level II. An Ashram school from 8th standard and onwards is called a post basic Ashram school. If such a post basic Ashram school has classes upto 10th standard, then obviously it needs recognition from the State Board as defined under Section 2(25) of the MEPS Act. On the other hand, primary Ashram schools are recognised only by the Director of Social Welfare or the Director of Tribal Development, as the case may be and there is no question of their belong recognised within the meaning of Section 2(21) of the Act, though they are schools within the meaning of Section 2(24) of the MEPS Act.
In Letters Patent Appeal No. 293 of 1999 the appellant management was running Ashram school (secondary) and it had brought on record the fact the fact that the Maharashtra State Secondary and Higher Secondary Board which is a Divisional Board within the meaning of Section 2(6-A) of the Act had recognised the said Ashram school. Such an evidence was not placed before the learned single Judge when (Writ Petition No. 4561) of 1999 came to be decided on 13.8.1999. It is under these circumstances and in the facts as brought on record the Division Bench held that the appellant society was running a private school as defined in Section 2(20) of the Act. We are in respectful agreement with the view taken by the Division Bench in (Letters Patent Appeal No. 293 of 1999) and the said ratio is applicable to all Secondary Ashram schools or the Ashram schools which have classes upto 10th standard or 12th standard.

JUDGMENT - B.H. MARLAPALLE, J.:---While hearing Writ Petition No. 526 of 2002. The learned Single Judge (Coram: A.B. Naik, J.), by referring to the earlier two decisions rendered by two different Division Benches of this Court observed that both the decisions were at variance with each other on the same point and therefore, on 7-2-2002 he passed an order of reference under Rule 7 of Chapter I of the Bombay High Court Appellate Side Rules, 1960, for placing the matter before His Lordship The Chief Justice for his considerations to refer the issues to a Bench of two Judges.

2. At the first instance, Writ Petition No. 526 of 2002 came to be placed before the Division Bench consisting of C.K. Thakker, C.J., and B.H. Marlapalle, J. By order dated 15-3-2002, the said Division Bench directed the matter to be placed before a Full Bench.

3. Writ Petition No. 1573 of 1999 was also placed alongwith Writ Petition No. 526 of 2002 before the Full Bench as admittedly the same issues in controversy are also involved in the said writ petition.

4. Writ Petition No. 1573 of 1999 has been admitted on 21-9-1999 and it is ready for final hearing. We, therefore, proceed to decide the issues under reference in the said writ petition.

5. In (Taramati Bafna Blind Welfare and Research Institute, Aurangabad v. State of Maharashtra)1, Writ Petition No. 2919 of 1991 the Division Bench of this Court (Coram: H.W. Dhabe and N.P. Chapalgaonkar, JJ.) held that an "Ashram School" is not a "private school" within the meaning of section 2(20) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, 1977 (for short, "M.E.P.S. Act") and therefore, an employee of Ashram school cannot approach the School Tribunal by filing an appeal under section 9 of the said Act.

6. In the case of (Gokul Prakalp Pratishthan v. Smt. Mangal Ganpati Potdar and others)2, Writ Petition No. 3583 of 1999, the learned Single Judge of this Court (Coram: D.K. Deshmukh, J.) took the same view. This order dated 13-8-1999 came to be challenged in Letters Patent Appeal No. 293 of 1999 which came to be decided by another Division Bench (Coram: A.P. Shah and J.A. Patil, JJ.) on 10-2-2000. The Division Bench held that the Ashram school in the said case satisfied the definition of the term "private school" within the meaning of section 2(20) of the M.E.P.S. Act.

7. In the case of (Shri Gadge Maharaj Mission and others v. Wasudeo Ramji Patil)3, Writ Petition No. 869 of 2000 reported in 2002(4) Bom.C.R. (A.B.)371, another learned Single Judge of this Court held that an Ashram school is not a "private school" within the meaning of section 2(20) of the M.E.P.S. Act. The said view came to be confirmed in Letters Patent Appeal No. 111 of 2001.

8. The Government of Maharashtra through its Tribal Development Department came out with "Ashram School Code" in 2001 and provided for a remedy of an appeal under section 9 of the M.E.P.S. Act before the School Tribunal against the order of punishment imposed against an employee of an Ashram school.

9. The issues for our considerations pursuant to the reference order made by the learned Single Judge are as follows:

"(a) Whether an "Ashram school" is a "private school" within the meaning of section 2(20) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, 1977?

(b) If answer to the aforesaid first issue is in the negative, whether an employee of an Ashram school has a remedy of an appeal under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, 1977 against an order of punishment passed by the Management; in view of the Ashram School Code formulated by the State Government?"

10. The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, came into force with effect from 15th July, 1981. By exercising powers under section 16 of the said Act, the State Government has framed the Maharashtra Employees of Private Schools (Condition

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