The inefficacy of the adjudicatory authority under clause 86 of the Code of 1997, as observed by the Supreme Court, influenced the court's decision.

SUNIL P. DESHMUKH, J.

1. Rule. Rule made returnable forthwith. Heard finally, by consent of learned counsel for the parties.

2. The petitioners approach this Court against order dated 3-10-2011 passed by the Divisional Social Welfare Officer, Nashik Division, Nashik - respondent No. 3 herein, whereunder appeal filed by Sau. Jyoti Dulesing Ranawat-respondent No. 1 herein, against her termination under letter dated 20-12-2006 issued by the President of Deaf and Dumb Residential School, Nandurbar run under aegis of Sonai Apang Vikas and Shikshan Sanstha, Nandurbar-petitioner No. 1 herein, putting an end to her services as Cook in said school, has been allowed. Simultaneously, the petitioners also pose question about efficacy of clause 86 of the Handicapped School Code, 1997 (hereinafter “the Code of 1997”).

3. It would be pertinent to succinctly refer to the factual aspects as under:

The petitioners run aforesaid school with approval of the State Government pursuant to relevant enactment viz. the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter “1995 enactment”). Respondent No. 1 had been appointed in said school as a Cook under order dated 7-6-1995 for a period from 7-6-1995 to 1-5-1996. Thereafter, it appears that permanent appointment order w.e.f. 1-4-1998 had been issued to respondent No. 1 under the signature of President of petitioner No. 1. It further appears that her said appointment had been approved by District Social Welfare Officer along with other employees under order dated 30-7-2001. Subsequently, as referred to above, her services were brought to an end under order dated 20-12-2006 referring to that she has not been punctual in attendance and had been remaining absent without any prior notice and habitually proceeding on leave. There have been complaints against her and several notices and memos were given to her and further that Social Welfare Officer, Zilla Parishad, Nandurbar had instituted enquiry. In the circumstances, from 20-12-2006, she had been removed from service. Respondent No. 1 had challenged aforesaid termination order before the Divisional Social Welfare Officer, Nashik - respondent No. 3. Petitioners in the same had filed its response, contending that appeal was not maintainable before Divisional Social Welfare Officer and the appeal is not within limitation. Respondent No. 1 had not been appointed by following proper procedure, her appointment was a back-door entry, she happened to be daughter-in-law of Vice President, while her husband was Head Master and mother-in-law was Treasurer. However, a decision had been communicated to petitioners around 30-6-2011, directing to reinstate respondent No. 1 with full backwages.

4. Against aforesaid decision of respondent No. 3, petitioners had been before this Court in Writ Petition No. 5787 of 2011. Under order dated 23-8- 2011, the Hon’ble Single Judge had set aside the order and remitted the matter for consideration afresh, including the one about tenability of appeal and competence of respondent No. 3 to hear the appeal. Thereafter, under order dated 3-10-2011 referred to above, respondent No. 3 has allowed the appeal, and thus, the petitioners are before this Court.

5. While the matter was being heard, learned counsel for petitioners Mr. V.D. Sapkal has laid stress on that respondent No. 3 has no competence and jurisdiction to deal with the matter pursuant to sub-clause (5) of clause 86 of the Code of 1997 and to decide the appeal. Aforesaid arguments were based on the ground that creation of adjudicatory authority under clause 86 and sub-clause (5) thereof, is not relatable to any provision of rule or law or for that matter any Constitutional Article and such creation in exercise of powers under Article 162 of the Constitution of India by the executive is not valid, neither legal nor would have any efficacy. Such instructions are beyond the scope of powers under Article 162 of the