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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR
A.S. CHANDURKAR, G.A. SANAP, JJ.
Savitri Pushpashil Patel - Appellant
Versus
The President, Shri Ganesh Shikshan Sanstha, Bhandara, Tahsil and District Bhandara & Ors. - Respondents
Letters Patent Appeal No. 05 of 2013 In Writ Petition No. 3470 of 2006 (D)
Decided On : 28-10-2021
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Section 3, 9 , 11, 11(1),(2),(2)(a),(3),(4), 13 - Constitution of India 1950 - Article 226 - Code of Civil Procedure 1908 - Post of Assistant Teacher - Pay Scale - Age of superannuation - Appellant was appointed as an Assistant Teacher at secondary School run by respondent Nos.1 and 2 - Appellant attained age of superannuation and thus retired from service - Seeking enforcement of the order passed by the School Tribunal in his favour or are the said provisions merely recommendatory in nature and in aid of directions issued by the School Tribunal under Section 11(2) while deciding an appeal under Section 9 - Whether such recommendation could be made under Section 11(3) at any point of time for the reasons indicated by us in the foregoing paragraphs - Whether an Authority or Tribunal which has been granted the power to recommend a course of action can itself enforce its own recommendation in the absence of any power conferred in that regard ? To put it differently, can a recommendation inherently carry with it the power of enforceability.
Finding of the Court: An order passed by School Tribunal was an executable order and that it was open for successful employee to approach School Tribunal that passed order to get it executed in accordance with provisions of Code of Civil Procedure, 1908 - Under Section 11(3), recommendatory jurisdiction has been conferred on School Tribunal and such recommendation has to be made to State Government. There is no statutory provision indicating role of State Government after receiving recommendation made by School Tribunal under Section 11(3) of Act of 1977. Instead, what is required to be complied with is direction issued to Management under Section 11(2) by School Tribunal. School Tribunal has not and it could not have been clothed with power and authority to enforce its own recommendation for what is enforceable is only “any direction” issued by it under Section 11 to Management - argument that direction under Section 11(3) could be given only while deciding appeal finally and not thereafter or that School Tribunal lost its power to pass such order after deciding appeal finally was turned down. In said case order of reversion was challenged by Head Master and School Tribunal had dismissed appeal under Section 9 of Act of 1977. The Writ petition filed by employee was allowed on 08/03/1990 and after setting aside order of reversion, employee was restored to post of Head Master with continuity of service and all back-wages. Since this order was not complied with entirely a contempt petition was filed in this Court. However since there was a genuine dispute as regards effect of order passed by this Court it was held that it was not a case of deliberate non-compliance. Liberty was given to employee to raise dispute before an appropriate forum - Since Court is of view that recommendation under Section 11(3) of Act of 1977 can be made only while deciding an appeal under Section 9, Court have our doubt as to whether such recommendation could be made under Section 11(3) at any point of time for reasons indicated by Court.
Result : Order accordingly.
ORDER :
A.S. Chandurkar, J.
Do the provisions of Section 11(3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 provide an independent remedy to a successful employee to approach the School Tribunal for seeking enforcement of the order passed by the School Tribunal in his favour or are the said provisions merely recommendatory in nature and in aid of directions issued by the School Tribunal under Section 11(2) while deciding an appeal under Section 9 ?
2. The facts giving rise to the aforesaid questions are that the appellant was appointed as an Assistant Teacher on 01/08/1986 at the secondary School run by the respondent Nos.1 and 2. The services of the appellant were terminated on 07/05/1988 which led her to file an appeal under Section 9 the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, the Act of 1977). The learned Presiding Officer, School Tribunal Nagpur by his judgment dated 29/11/1988 allowed the appeal and directed reinstatement of the appellant from 07/05/1988 in the pay scale of Rs.355-760/-. The Tribunal also ordered the Management to permit the appellant to resume duties forthwith. The Management being aggrieved by the said judgment challenged the same in Writ Petition No.2873/1988. By an interim order dated 22/12/1988 the judgment of the School Tribunal came to be stayed. The said writ petition however was dismissed for want of prosecution on 19/02/1997. No steps were taken for having the said writ petition restored. The appellant attained the age of superannuation on 07/05/2002 and thus retired from service. On 01/03/2005 the appellant issued a registered notice to the Management stating therein that the order passed by the School Tribunal had not been implemented despite dismissal of Writ Petition No.2873/1988. The Management was therefore called upon to comply with the order passed by the School Tribunal within a period of eight days failing which it was stated that the appellant would take further steps against the Management under Section 11(3) of the Act of 1977. Since no steps as contemplated were taken by the Management the appellant on 31/03/2005 filed an application under Section 11(3) of the Act of 1977 praying therein that appropriate directions be issued to the Management to enable enforcement of the order dated 29/11/1988 passed in the appeal preferred by the appellant and emoluments be paid to the appellant by directing the same to be deducted from the grants admissible to the School.
Reply was filed to the aforesaid application on 25/04/2005 opposing the same. It was pointed out that the appellant had attained the age of superannuation and that in absence of any directions by the School Tribunal to pay any emoluments to the appellant till the date of superannuation, the application was liable to be rejected. The learned Presiding Officer considered the aforesaid application and by his order dated 24/04/2006 was pleased to direct the Management to pay back-wages to the appellant from 07/05/1988 till her superannuation. The Education Officer was directed to deduct the arrears of emoluments for the aforesaid period as per the Pay Scale applicable and pay the same to the appellant within period of ninety days from receipt of copy of the order.
3. The Management being aggrieved by the aforesaid order challenged the same in Writ Petition No.3470/2006 and learned Single Judge by his judgment dated 16/06/2011 was pleased to allow that writ petition by holding that the directions issued by the School Tribunal to the Education Officer to deduct the arrears of emoluments to which the appellant was held entitled were beyond jurisdiction. The order passed by the School Tribunal was thus set aside. The appellant being aggrieved by that judgment preferred Letters Patent Appeal No.20/2012. By the judgment dated 07/02/2012 the Division Bench observed that in view of directions that the appellant was to be reinstated forthwit
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