MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATION ACT, 1977

MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATION ACT, 1977

Preamble - THE MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATION ACT, 1977

THE MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATION ACT, 1977

[Act No. 03 of 1978[1]]

PREAMBLE

An Act to regulate recruitment and conditions of service of employees in certain private schools.

WHEREAS, it is expedient to regulate the recruitment and conditions of service of employees in certain private schools in the State, with a view to providing such employees security and stability of service to enable them to discharge their duties towards the pupils and their guardians in particular, and the institution and the society in general, effectively and efficiently;

AND WHEREAS, it is further expedient in the public interest to lay down the duties and functions of such employees with a view to ensuring that they become accountable to the Management and contribute their mite for improving the standard of education;

AND WHEREAS, it is also necessary to make certain supplemental, incidental and consequential provisions; it is hereby enacted in the Twenty-eighth year of the Republic of India as follows ;

NOTES

Object of the Act : The service conditions of employees working in private primary, secondary and higher secondary schools and in Junior Colleges of Education were determined by executive orders of the State Government. During the last few years on account of an abnormal growth in the number of such educational institutions and consequent increase in the number of employees working in them under various Managements the incidence of disputes between the Managements and their employees in respect of service conditions and the interpretation of the executive orders specifying them had also increased considerably. The decisions given according to the prevailing executive orders have been challenged in the Court of Law by the aggrieved parties. In some cases, the Courts have set aside the decision of the Education Department and the officers subordinate to it on the ground that these were given according to the executive orders, which have no force of law. It has, therefore, become necessary to give statutory basis to the executive orders regulating the service conditions of such employees by passing an Act and by taking powers to make the necessary rules for the purpose and to provide for a quasi-judicial machinery in the form of a Tribunal for making justice speedily available to these employees, thus ensuring the security and stability of their service.

Having provided for security and stability of services, it was also necessary to lay down the duties, code of conduct and disciplinary matters of such employees, so as to render them accountable and to ensure that they contribute their mite towards improving the standard of education. Statement of Objects & Reasons. M.G.G., Pt. V Ext. 1977 p. 319.

(1)    Preamble : 'Preamble' means that part of a Statute that sets out in the beginning of the Statute, its purpose and effects. It follows immediately after long title and date of assent of the President.

Preamble and the provisions of a Statute no doubt assist the Court in finding out its object and policy, but the object and policy need not always be strictly confined to its preamble and the provisions contained therein. Punjab Tin Supply Co. v. Central Govt. AIR 1984 SC 87 : (1984) 1 SCC 206. Also in another case, the Supreme Court held that the preamble is also an aid in construing the provisions of the Act. All Saints High School v Govt. of A. P., AIR 1980 SC 1042; A. Thangal Kunju Mudaliar v. M. Venkatachalam Potti; AIR 1956 SC 246.

Preamble of the Statute is to announce the purpose of the Act and does not form substantive part of the Act. Chotemiyan Rajesaheb v. Rambhau Venkatrao Nandedkar, 1993 (2) Mah. L. J. 1110.

Preamble and the Statement of Objects and Reasons is a key to open mind of the framers of the legislation. The same could be taken recourse to while interpreting the Act. Hindi Vidya Bhavan & Ors. v. Presiding Officer, School Tribunal, Mumbai & Ors., 2008 (1) Bom.C.R. 231 : 2007 (4) Bom.L.R. 2648 : 2008 (1) CLR 19 : 2007 (6) Mh.L.J. 563.

(2)    Expression "Regulate" : The word 'regulate' has different shades of meaning and must take its colour from the context in which it is used having regard to the purpose and object of the relevant provisions, and the Court while interpreting the expression must necessarily keep in view the object to be achieved and the mischief sought to be remedied. Jiyajeerao Cotton Mills Ltd. v. M.P. Electricity Board, 1989 Supp. (2) SCC 52 : AIR 1989 SC 788.

(3)    Language used in Act: It is not a sound principal of construction to brush aside the words in a Statute as being in opposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the Statute. Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC 369.

(4)    Interpretation of Statute : Judicial Function and not Administrative :- The provisions of the M.E.P.S. Act and the Rules will apply to Pharmacy Schools and other technical institutions. Applicability of an Act to a particular institution will depend upon the interpretation of the relevant provisions of law and is exclusively a judicial function. The Full Bench of High Court, Mumbai held that opinion expressed by petitioner, by respondent or by the State Government is immaterial and cannot bind the Court. Anil Dattatraya Ade v. Presiding Officer, School Tribunal, Amravati, 2003 (2) Mh. L.J. 316 (F.B.) : 2003 (2) C.L.R. 13 : 2003 (3) Bom. C.R. 465 : 2003 (2) All M.R. 818 : 2003 Vol. 105(3) Bom. L.R. 197.

(5)    Retrospective effect for declaratory Statute :- It is settled law that such "declaratory" or "clarificatory" Statutes are retrospective in operation as they merely declare and /or clarify what the law is as also what the law was when it was enacted. It neither creates nor extinguishes any right whatsoever. The provisions of the Act and the Rules would thus apply to the respondent-institute and the Tribunal was right in holding that it had jurisdiction. Anil Dattatraya Adev. Presiding Officer, School Tribunal, Amravati, 2003 (2) Mh. L.J. 316 (F.B.) : 2003 (2) C.L.R. 13 : 2003 (3) Bom. C.R. 465 : 2003 (2) All M.R. 818 : 2003 Vol. 105 (3) Bom. L.R. 197.

(6)    Purpose of Objects and Reasons : The Objects and Reasons of the Act should be taken into consideration in interpreting the provisions of the Statute in case of doubt. Doypack System Pvt. Ltd. v. Union of India, (1988) 2 SCC 299 : AIR 1988 SC 782.

Statement of Object and Reasons cannot be read for interpreting the unambiguous words of the section. Tata Engineering & Locomotive Co. Ltd. v. State of Mah., 1992 (2) Mah. L. J. 1030.

(7)    Amended section : Whenever a Court is called upon to interpret an amended provision it has to bear in mind history of the provision, the mischief which the Legislature attempted to remedy, the remedy provided by the amendment and the reason for providing such remedy. Rameshwar Prasad v. State of U.P., (1983) 2 SCC 95 : AIR 1983 SC 383.

Where the Legislature uses two words 'may' and 'shall' in two different places of the same provisions prima facie it would appear that the Legislature manifested its intention to make one part directory and another mandatory. But that by itself is not decisive. The real intention of the Legislature can be ascertained by the Court since it has powers to do so. It can do so by carefully examining the scope of the Statute to find out whether the provision is directory or mandatory remains unimpaired even where both the words are used in the same provisions. Ganesh Prasad Sah Kesari v. Lakshmi Narayan Gupta, AIR 1985 SC 964.

(8)    Means and includes : Expression 'means and includes' in definition clause indicated exhaustive nature of the definition. Mahalakshmi Oil Mills v. State of A.P., (1989) 1 SCC 164 : (1988) 71SectionT.C. 285.

'Including' is a term of extension. It imports addition. It adds to the subject matter already comprised in the definition. A.C. Patel v. Vishwanath Chada, AIR 1954 Bom. 204.

Normally such a legal fiction has to be carried to its logical conclusion but limited to the purpose for which it was created. Akola Electric Supply Co. Pvt. Ltd. v. C.I.T., (1978) 113 I.T.R. 265 (Bom.) : AIR 1975 SC 164 : 1975 Cr. L.J. 182; Motor Industries Co. Ltd. Nasik v. Popat Murlidhar Patil, 1997(2) Mah. L. J. 178.

When a Statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purpose and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. State of Bombay v. Chaphalkar P.V., AIR 1953 SC 244: 1953 Cr. L.J. 1094 : 1953SectionC.J. 330 : 1953SectionC.R. 773.

(9)    "Legal Fiction" : A legal fiction in terms enacted for the purposes of one Act is normally restricted to that Act and cannot be extended to cover another Act. State of Mah. v. Laljit Rajshri Shah, (2000) 2 SCC 699.

(10) Purpose of Explanation : An Explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision.

(11) Function of proviso is to except something out of the purview of the provisions or to qualify something enacted therein, which but for the proviso would be covered in the enactment. Pradip Gulabrao Pawar v. State of Mah., 1996 (2) Mah. L. J. 221.

(12) Second proviso : The proper function of the second proviso is to carve out an exception to the first proviso. It must however, be read along with the main enacting provision. Sukwinder Pal Bipan Kumar v. State of Punjab, (1982) 1 SCC 31 : AIR 1982 SC 65.

(13) When can 'or' be read as 'and': Depending upon the context, 'or' may be read as 'and' but the Court would not do it unless it is so obliged because 'or' does not generally mean 'and' and 'and' does not generally mean 'or' .R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183 : 1984 SCC (Cr.) 172 : AIR 1984 SC 684 : 1984 Cr. L.J. 613 : (1984) 1SectionL.R. 619: (1984) 86 Bom. L.R. 365.

(14) "Shall" used as directory : The word "shall" in its ordinary import is obligatory. Nevertheless, the word "shall" need not be given that connotation in each and every case and the provisions can be interpreted as directory instead of mandatory depending upon the purpose which the Legislature intended to achieve as disclosed by the object, design, purpose and scope of the Statute. While interpreting the concerned provisions, regard must be had to the context, subject matter and object of the Statute in question. Rubber Hose v. Excelsior Needle Industries, (1989) 2 SCC 413 : AIR 1989 SC 1160.

(15) Meaning of word "liable": The word 'liable' occurring in many Statutes, has been held as not conveying the sense of an absolute obligation or penalty but merely importing a possibility of attracting such obligation or penalty, even where this word is used along with the words 'shall be'. Supdated  and Remembrance of Legal Affairs v. Abani Alaity, (1979) 4 SCC 85 : (1979) SCC (Cr.) 902 : AIR 1979 SC 1029 : (1979) 2SectionC.J. 176 : 1979 M.L.J. (Cr.) 557.

(16) Use of negative words : Use of negative words shows mandatory nature of the provision. A. K. Roy v. State of Punjab, (1986) 4 SCC 326 : 1986 SCC (Cr.) 443 : AIR 1986 SC 2160.

Section 1 - Short title, extent and commencement

(1)     This Act may be called the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977.

(2)     It extends to the whole of the State of Maharashtra.

(3)     It shall come into force on such date[2] as the State Government may, by notification in the Official Gazette, appoint.

NOTES

(1)    Regulation : The power to regulate implies the power to check and may imply the power to prohibit under certain circumstances, as where the best or only efficacious regulation consists of suppression. K. Ramanathan v. State of T.N., (1985) 2 SCC 116 : AIR 1985 SC 660.

The word 'Regulation' has no fixed connotation. Its meaning differs according to the nature of the thing to which it is applied. G. K. Krishnan v. State of Tamil Nadu, AIR 1975 SC 583 : (1975) 2SectionC.R. 715.

(2)    Brief Scheme of the Act : "Management" in relation to a school means, in the case of a school administered by the Government, the Education Department and in the case of a school administered by a local authority, the local authority. In respect of the private schools run by the individuals or bodies of individuals, it means the person or body of persons administering the school.

(1)     The Act is applicable to all private schools which are recognised. aided or unaided by the State Government. Definition of the school is wider which includes private primary schools, secondary, higher secondary, junior college of education, technical institutions, vocational art or part of such school, institutions, or college which is imparting education below degree level, including any institution which imparts technical education or vocational education. The amending Act Mah. 32 of 1990 intends to include even polytechnic giving technical education upto diploma level.

(2)     All private schools, excluding schools managed by the Government or local authorities, are covered by this Act. Thus primary schools managed by the Municipal Corporation, Municipalities and Zilla Parishad are not covered. In Cantonment Board of Deolali v. Usha D. Dongre, 1993 Mh. L. J. 74 it was held that private schools run and managed by the Cantonment Board are covered bySection 2(20) and 2(11) of the Act, 1977 and Cantonment Board is not a Local Authority under the Act.

According to latest decision of Bench of Five Judges (Aurangabad), now the School Tribunal has no jurisdiction to entertain Appeal of employees of Schools managed by the Cantonment Boards since the Cantonment Board as a different Committee/Board, therefore, an aggrieved employee can approach such Appropriate Legal Forum first and thereafter, they can approach other Legal Forums - Decided and delivered by Larger Bench headed by Acting Chief Justice Hon'ble H. L. Gokhale comprising of Five Judges on 25/31.1.2007 at Aurangabad in Smt. Shobha w/o Kailash Bonekar v. The Cantonment Executive Officer, Cantonment Boards, Ahmednager & Ors., W. P. No. 721 and 3403 of 2006 : 2007 (3) Bom. C.R. 1 (A.B.) (Spl. B.).

Review decision of Full Bench : Review Petition (Special Bench) of Five Judge Full Bench decision in reference case in 2007 (3) Bom.C.R. 1 (AB) (SB) : Review of Full Bench decision not tenable before Special Bench though certain issues not decided by Full Bench : Secondary Schools (Cantonment Boards) covered under M.E.P.S. not Primary Schools : Section 39 of the Bombay Primary Education Act, 1947 : Section 114 of the C.P.C., 1908.- It was contended that inter alia that matter in fact pertained to seniority and promotion of teacher but Bench erroneously dealt with as a case of disciplinary action and this was error apparent on face of record. It was held by the Special Bench that the objection is not tenable because real issue decided by Board was as to whether Primary School could be covered under jurisdiction of School Tribunal under the M.E.P.S. Act, 1977. The Bench had ruled that such Schools being Primary Schools are not covered by Schools Tribunal under the M.E.P.S. Act, 1977. The submission that certain other provisions of other Acts, which ought to have been considered were not considered. It was held by the Special Bench that such a point cannot be raised in review petition because a Review is not tenable even if a Court has arrived at wrong conclusion. Suman Dattatraya Kadam v. Shobha Kailas Bonekar & Ors., 2007 (3) Bom.C.R. 518 (AB) (SB).

(3)     However, the private schools must be recognised by the Director of Education, the Divisional Board or the State Board. Therefore, such private schools if recognised by any other Competent Authority other than authori?ties mentioned in the Section 2(21), are not covered by the Act. For example, schools in Municipal Corporation of Mumbai are recognised by the Educa?tion Officer of that Corporation.

(4)     For Minority Schools, all provisions in the Act are applicable except appointment of the Head, Asstt. Head and the Superintendent. These persons will be appointed according to choice of the management.

Education structure in Maharashtra : The State Government decided to adopt 10+2+3 pattern around year 1970. Accordingly, ten years S.S.C. pattern was introduced in place of old eleven years pattern. From June, 1972, new syllabus was commenced in class VIII. With the introduction of the new structure, now there is uniform pattern in Western Maharashtra, Vidarbha and Marathwada divisions of Maharashtra.

The State Board of Secondary Education was reorganised into the Maharashtra State Board of Secondary and Higher Secondary Education and given the charge of+2 stage also. Initially, it was announced that the degree colleges in the State be allowed to run the higher secondary classes upto the year 1979 only, by which time all pre-university or pre-degree teachers were expected to be absorbed by the upper classes in the colleges. The higher secondary classes have continued to be with the degree colleges in most of the urban towns and junior colleges are attached to the high schools, mostly in rural areas of the State.

Grant-in-Aid : The Grant-in-Aid money is the money belonging to the Government which is sent to the school for the specified purpose of paying to the teachers on account of their salaries, D.A. etc. through the agency of the Managing Committee of the school. Such amount received by educational institutions cannot be treated as a part of the fund of the institution. The recipient institution has to spend the amount received through Grant-in-Aid system for the specific purpose mentioned in the memo attached to the grant. Such type of institutions are known as "aided institutions".

Grant-in-Aid system in Maharashtra : The Grant-in-Aid system was first introduced in 1859 and one of its basic object was to promote voluntary effort and reliance on local resources in the field of education apart from such contributions as may be available from the funds of the State. Important element in the system is that part of the expenses of an aided institution should be provided by the management from the resources of its own.

The Maharashtra Educational Institutions (Transfer of Management) Act, 1971 : Some instances of mismanagement of secondary schools and junior colleges of education resulting in deterious effect on public interest had come to the notice of Government. After considering how the affairs of such secondary schools and junior colleges of education could be set right, Government came to the conclusion that, by suitable legislation, power should be taken by the Government to transfer the Management and control of such mismanaged secondary schools and junior colleges of education to a society to be formed for the purpose under the Societies Registration Act, 1860.

For the purpose of deciding whether the Management and control of mismanaged educational institution should be transferred to the proposed society, it was felt that an investigation should first be made into the affairs of such educational institution and a report obtained from the Investigating Officer. The institution may then be given an opportunity to set right the defects in its working, by issuing suitable directions in the matter, and that failure to rectify the defects may then result in transfer of the Management and control of the institution to the proposed society.

Once the management was transferred to the proposed society, it was necessary to make a provision for requiring the old institution to deliver possession of all documents, immoveable and moveable property, etc. of that educational undertaking and to furnish full particulars to the society. Power too was necessary to the society to disclaim certain agreements. Provision was also necessary for penalty and for making rules for the purpose of carrying out the purposes of the Act.

Lastly, it was considered that there should be power to exempt the society from any of the provisions of the Societies Registration Act or to direct that the provisions of that Act would apply to the 'society with certain exceptions' modifications and adaptations.- Vide Statement of Objects and Reasons, Act XLIX of 1971, M.G.G., Pt. V Extra, p. 363.

The Maharashtra Educational Institutions (Management) Act, 1976 : The Government had decided to take over mismanaged institutions for a limited period not exceeding five years in all by appointing an Adminis?trator for the purpose. During this period, the Administrator will be assisted in the management of the institution by an Advisory Committee appointed by the Government, consisting of not more than three persons who are conversant with, or have experience of, the Management of educational institutions. After the temporary period of Management is over, provision is made of handing over the institution back to the Management, but before handing over the institution back to the Management, it is provided that, if feasible, the Charity Commissioner may settle a scheme of Management in the interest of proper administration of the institution, and thereupon, provision is made for application of section 50 A of the Bombay Public Trusts Act, 1950 for settling the scheme. The intention is that the Management should as far as possible comply with the scheme so that mismanagement will not recur ordinarily. - Vide Statement of Objects and Reasons Act 13 of 1976, M.G.G., Pt. V, p. 71.

Section 2 - Definitions

In this Act, unless the context otherwise requires, -

(1)     "appointed date" means the date on which this Act comes into force;

NOTES

Appointed date: The Act came into force on 15-7-1981 though it was enacted on 20th March, 1977.

(2)     "coaching class" means any institution, other than a recognized school conducted by any person or body of persons, by whatever name called and established and administered with the object of preparing its students for any certificate or diploma or degree or any college or schools course;

NOTES

Coaching class : The expression "coaching classes" is defined in rule 23(1 )(c) in the following manner : "When the number of pupils taking private tuition from a teacher for internal or external examination exceeds five, it shall be deemed to be coaching class". Parallel to recognized or approved educational institutions, there is phenomenal increase in the number of coaching classes or chain of coaching classes in the State. These coaching classes are product of our defective education system which emphasizes more on examination and on high percentage of marks. This unchecked growth and expansion and consolidation of private coaching classes is responsible for unhealthy tendencies in the education system, particularly among teaching section who are tempted to take up lucrative job work in such coaching classes ignoring their parent institution. For prevention of such unhealthy trend developing among the teachers, the definition has been widened so as to cover all kinds of coaching classes whatever name may be given i.e. coaching classes of Technical Institutions, Defence Studies, Physical Education, Electronics, Food technology, Fishery, Para?medical (laboratory technology, health workers etc. Object of such coaching classes is to prepare students appearing for any certificate, degree, diploma, college or school courses. Under Section 4(5) of the Act, employees of private school are prohibited to teach in coaching classes.

(3)     "college" means a college conducted by, or affiliated to, a University established by law in the State;

(4)     "Department", means the Education Department of the Government of Maharashtra;

[3] [(5) "Deputy Director" means the Deputy Director of Edu?cation, the Deputy Director of Technical Education, the Deputy Director of Vocational Education and Training or, as the case may be, the Deputy Director of Art, appointed as such by the Government for the respective region or area;]

NOTES

Dy. Director of Education : Powers and Duties : Though M.E.P.S. (Conditions of Service) Regulation Act, 1977 and Rules, 1981 have come into force, many powers are still vested in the Director of Education/Dy. Director of Education/E.I. or E.O. under the Act and Rules. Except issues pertaining to termination, reduction in rank, super session and otherwise termination, it is primary and statutory duty of these officers to investigate the complaints/requests/grievances of the employees and take appropriate decisions in the rest of the matters.

The Director, Dy. Director, Education Inspector E.O. are competent/ appropriate authorities in respect of matters provided for in the Act and Rules and matters provided for in S.S. Code and for other executive orders. For the purpose of the Act and Rules, these authorities are known as Field Officers who are empowered to exercise these powers to discharge their responsibilities. For details, see chart prepared in Appendix of this Edition and App. 24 of S.S. Code. The matters pertaining to secondary education are under supervision and control of Dy. Director (Secondary) and matters pertaining to higher secondary are under control of Dy. Director (Higher Secondary) and in respect of termination of Shikshan Sevak on the ground of alleged misconduct.

Appeal against minor penalties : An employee of a private school aggrieved with decision of imposing a minor penalty as specified in rule 31(1) of the M.E.P.S. Rules, 1981 can prefer appeal to Dy. Director of the region concerned within 45 days from the date of receipt of the order of minor punishment imposed by the management.

(6)? ?"Director" means the Director of Education or the Director of Technical Education [4] [or the Director of Vocational Education and Training] [5] [or the Director of Art] as the case may be, appointed as such by the State Government;

NOTES

Director and Dy. Director : These are the competent authorities in respect of majority of the matters pertaining to Education. Main matters are as follow :-

1.        Procedure for recognition and condition of recognition of a school, opening of a new school, grant, refusal and withdrawal of recognition of a School.

2.        Supervising and regulating School Management.

3.        Admissions of students and withdrawal of admissions, transfer of students, scrutiny of school leaving certificates, permission for rustication of students etc.

4.        Supervision and regulating school examinations, curriculum and Text-Books, Homework.

[6] [(6A) "Divisional Board" means the Divisional Board es?tablished under the Maharashtra Secondary and Higher Secondary Education Boards Act, 1965;]

NOTES

The Mah. Secondary and Higher Secondary Education Boards Act, 1965 was enacted for providing establishment of a State Board and Divisional Boards for the purpose of conduct of examinations at the conclusion of secondary stage or the Higher Secondary stage. The State Board has effective control over the different Divisional Boards. However, the Divi?sional Boards are having autonomous status to a great extent. The Mah. State Board of Secondary and Higher Secondary Education has been constituted under the Act.

There are eight Divisional Boards in the State. They are as follows :

The recognition by a Divisional Board is essential for the purpose of admission to the privileges of the Board.

(7)? ?"employee" means any member of the teaching and non- teaching staff of a recognized school [7] [and includes shikshan sevak];

NOTES

Categories of employees :-Shikshan Sevaks : This category has been included in categories of employees on honorarium basis for probation period of three years as base cadre to be appointed and confirmed as Assistant Teacher.

The Government has introduced the Scheme of appointment of Shikshan Sevak on honorarium basis on the post of teacher since the year 2000. Various Government Resolutions (G.Rs.) have been issued after introduc?tion of the Scheme vide G.R. dated 13.10.2000. The scheme was challenged before High Court, Bombay on the ground of validity and ultra vires of the provisions of M.E.P.S. Act, 1977. The Bill was introduced for the purpose of continuation of the said Scheme by amending the Act, 1977 so as to bring the posts of Shikshan Sevaks under the purview of the said Act.

Teaching and Non-Teaching employees : Sch. B : Recognized School where Hostel is Attached for Girl Students : Appointment of Nurse whether employee of School: It was held that though S.S. Code provides for establishment of hostel for students of the school, it is not necessary that every School must establish such hostel. However, on perusal of Rule 4(1) under Sch.B shows that some schools may be having hostel facilities and the H.M. is held as responsible for management of the hostel for the students also for school library and laboratory but rest of the posts are stated in the Rules except for the hostel. The Single Bench held that imparting education or training is necessary for the principle purpose of the school but not hostel. In order to hold the Management to be bound by the duty cast upon him by the provisions of the Rule, the Rule must prescribe qualifications and pay scales for every post in the school. In the absence of such prescribed pay scale for a specific category for the post, it cannot be held that the post is included in the provisions of Act and Rules. The post of nurse is not mentioned in the Sch. B.

Therefore, the intention of the Legislature to regulate by the Act, conditions of the entire staff employed by the Management in connection with the school which is absolutely necessary for the principle purpose of the School. Hence, nurse employed in the Girl's Hostel which is attached to the School was held as not employee of the School which was run and managed by the Bombay Education Society. A. M. Davidson v. Sister (Mrs.) Joan Clark, W.P.1136 of 1992, decided on 17th July, 2002 by D.K. Deshmukh, J. (Unreported).

(8) ???"existing private school" means a recognized private school which is in existence on the appointed date;

(9) ???"Head of a school" or "Head" means the person, by whatever name called, in charge of the academic and administrative duties and functions of a school conducted by any Management and recognized or deemed to be recognized under this Act, and includes a principal, vice-principal, head master, head mistress, assistant head master, assistant head mistress, or superintendent thereof;

NOTES

Such a person must be in charge of the academic and administrative duties and functions of a School conducted by the Management.

A minority institution appointed an assistant teacher as a Supervisor even though not senior to the person who was denied the appointment on the ground that it was open to the institution to appoint a person on the ground of seniority cum merit and as Supervisor was covered by the expression "Head" as defined in section 2(9) of the M.E.P.S. (Conditions of Service) Regulation Act. The Tribunal directed the Management to withdraw the order promoting the teacher who had been promoted though not senior and gave other consequential directions. The Management chal?lenged the order of the School Tribunal in a Writ Petition.

"Head of a School" : The duties and functions of the Head of a school are distinct and separate from the duties of Assistant Head, Supervisor, Superintendent etc. Apart from his duties as a teacher, a Head is also required to discharge administrative functions and he is required to look into financial matters. He is also required to supervise administrative and financial matters apart from his duties as a teacher.

(10) "Junior College of Education" means a school impart?ing teacher education to person for being appointed as teach?ers [8] [and shikshan sevaks] in pre-school centers or primary schools;

(11) ?"local authority" means a Zilla Parishad, a Municipal Corporation, or a Municipal Council, as the case may be;

NOTES

The School Tribunal has no jurisdiction to entertain Appeal of employees of Schools managed by the Cantonment Boards since the Cantonment Board has a different Committee/Board, therefore, an aggrieved employee can approach such Appropriate Legal Forum first and thereafter, they can approach other Legal Forums - Decided and delivered by Larger Bench headed by Acting Chief Justice Hon'ble H. L. Gokhale comprising of Five Judges on 25/31.1.2007 at Aurangabad in Smt. Shobha w/o Kailash Bonekar v. The Cantonment Executive Officer, Cantonment Boards, Ahmednager & Ors., W. P. No. 721 of 2006 : 2007 (3) Boom. C. R. 1 (A.B.) (Spl. B.).

(12)? ?"Management" in relation to a school, means, -

(a)      in the case of a school administered by the State Government, the Department;

(b)      in the case of a school administered by local authority that local authority; and

(c)      in any other case, the person or body of persons, whether incorporated or not and by whatever name called, administering such school;

NOTES

Management : (1) The Management means an Association, Body of persons having a general and financial control over a school. While seeking recognition of the Department, a school has to satisfy the authorities that the Management is competent to run the school, it is reliable and it is in the hands of a properly constituted authority or a managing committee.

If the school is run by the State Government, Education Department and for a local authority, having general or financial control over a school that particular local authority, is the management.

Each educational institution's school has a separate legal entity, either as a registered society under Societies Registration Act, 1860 or a Trust registered under the Bombay Public Trusts Act, 1950 or it can be a body corporate established or incorporated under a Central or State Act. If it is a trust, the trustees must be properly appointed and vested with legal powers and duties. Same conditions are applicable to a School run by the minority community whose name is registered under Minority Status Register with the Dy. Director. In case of most of the convent English medium (few Marathi medium) Schools, under Roman Law (Cannon Law), these schools are run and managed by the Roman Catholic Churches. These churches (followers of Christian religion) are under control and supervision of Parishes and the managers of the church. The main Priest of the Church registers the Church, property and the educational institution with the office of the Charity Commissioners of respective area under protest since Roman Cannon Law does not recognize any law except religious law. For details see case law, Rev. Fr. Farcisus Mascarenhas v. State of Bombay, (1960) 62 Boom. L.R. 790. The "Head of a School" underSection2(9) includes a person administering a school as well as its Headmaster. It will have to be determined in every case whether the same person is a Headmaster and is also administering the school and therefore it is the management. There cannot be a general rule that a Headmaster can never administer the school and therefore cannot fall within the definition of "management". In case of school not administered by the Government or local authority, a person can be administering a school as well as be a headmaster. Abdul Manan Azmi v. Sayed Mohamed Askari, 1989 (1) C.L.R. 428.

(13) "minority school" means a school established and administered by a minority having the right to do so under clause (1) of article 30 of the Constitution of India;

(14) "Municipal Corporation" means a Municipal Corporation established or constituted under the Bombay Municipal Corporation Act, or the Bombay Provincial Municipal Corporations, Act, 1949, or the City of Nagpur Corporation Act, 1948;

(15) "Municipal Council" means a Municipal Council established or constituted under the Maharashtra [9] [Councils] Act, 1965;

(16) "pre-school center" means an institution, by whatever name called, which provides education for children who have attained the age of three years but have not attained the age of six years;

NOTES

Pre-School centers excluded : The Mah. Pre-School Centers (Regulation of Admission) Act, 1996 has been recently enacted for the main purpose of regulation of admission and compulsory registration of Pre-school centers and also to ban the prescribed text books by such centers.

Section 2(g) of the Mah. Pre-school Center (Regulation of Admissions) Act, 1996 defines pre-school center as private Shishu Kendra, Balwarg, Balwadi or Kindergarten (KG) or any other Private Pre-school center, by whatever name called, which is run for imparting pre-school informal education to the children".

"Pre-school centers are required to be registered with the Appropriate Authority.

(17) "prescribed" means prescribed by rules;

(18) "primary education" means education imparted in such subjects and upto such standards as may be determined by the State Government, from time to time, located either in a primary or a secondary school;

NOTES

The Constitutional Amendment (93rd Amendment) provides for free and compulsory education under Art. 21-A of the Constitution for children between 6 to 14 of age. However, certain basic responsibilities towards providing education have been cast upon the parents. Thus, primary education in Maharashtra State means 1st Std. to 4th Std.

(19) "primary school" means a recognized school, or a part of such school, in which primary education is imparted;

[10] [[11] [(20)] "private school" means a recognized school estab?lished or administered by a Management, other than the Government or a local authority;]

NOTES

Objects and Reasons : [Amendment Act 23 of 1989] : The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Mah. III of 1978) which came into force on the 15th July, 1981 provided for regulating recruitment and conditions of service of employees in certain private schools Section 2(20) of that Act defines the expression "Private School" as recognized school established and administered by a Management, other than the Government or a local authority. By the M.E.P.S. (Conditions of Service) Regulation (Amendment) Act, 1987 (Mah. XXX of 1987) which came into force on the 7th August, 1987, the definition of the expression "Private School" had been suitably amended to cover the schools, other than primary schools, established or administered by a local authority. The local authority including the Bombay Municipal Corporation was empowered under the relevant law to regulate recruitment and conditions of service of their employees. It was likely that the rules regarding the recruitment and conditions of service regulated under Maharashtra Act No. III of 1978 in respect of private schools might differ in many particulars from the rules of recruitment and conditions of service of employees of the local authorities regulated under the relevant law. This would lead to avoidable conflict. It was therefore, proposed that the definition of the expression "Private School" in section 2(20) should be so amended as to exclude there from schools established and administered by a local authority. Under section 15, the appeals of employees of private schools relating to the matters of dismissal, removal, termination of service or reduction in rank which were filed in accordance with the provisions of the Secondary Schools Code and which were pending before the Depart?ment or the Director or an Officer subordinate to him as the case may be on the appointed date, that is to say on the 15th July 1981 were to be transferred to the Tribunal constituted under the Act. It had been noticed that even the Management against whom the decision was given had filed appeals in accordance with the provisions of the Secondary Schools Code and such appeals were also pending before the Department or the Director or an Officer subordinate to him. By the M.E.P.S. (Conditions of Service) Regulation (Amendment) Act, 1987, Section 9 which provided for right to appeal to Tribunal to employees of private schools in respect of dismissal, removal, termination of service or reduction in rank had been suitably amended to provide for appeal even in respect of super session by the Management while making appointment to any post by promotion. There might be instances where appeals in respect of such matters filed by the employees of the Management under the provisions of the Secondary Schools Code before the commencement of the M.E.P.S. (Conditions of Service) Regulation (Amendment) Act, 1987 and such appeals have been pending before the Department, or the Director or an Officers subordinate to him. (M.G.G., Pt. V, dated 19/4/1989 P. 195).

B.M.C. Schools whether covered by the Act : Primary Schools run by Municipal Corporation for Greater Mumbai are recognized by Municipal Commissioner, Education, hence M.E.P.S. Act, 1977 is not applicable to Primary School run by respondent-Corporation. Sushila Dixit v. Laxmibai Valanju Prathamik School & Ors., 1998 (II) C.L.R. 265.

[12] [(21) "recognized" means recognized by the Director, the Divisional Board or the State Board, or by any officer authorized by him or by any of such Boards;]

NOTES

Conditions of recognition : A school seeking recognition of the Department shall satisfy it as regards the following conditions :-

(1)     The school is actually needed in the locality and it does not involve any unhealthy competition with any existing institution of the same category in the neighbourhood,

(2)     The Management is competent and reliable and is in the hands of a properly constituted authority or managing committee;

(3)     The financial stability of the Management is assured;

(4)     The premises of the school are sufficiently healthy, well-lighted and well-ventilated, with due provision for the safety of the pupils and contain sufficient accommodation, furniture and appliances for the instruction and recreation of the pupils attending it. Separate and satisfactory arrange?ments are provided for girls, in the case of boys school in which girls are admitted;

(5)     The education imparted in the school is considered by the appro?priate authority to be satisfactory in all respects. All the members of the teaching staff are suitable and possess the prescribed qualifications and are sufficient in number and the school does not employ any member notified as unsuitable for employment by the Deputy Director or the Director, under rule 77.9 and rule 77.11;

(6)     The school follows the curriculum approved by and uses text-books sanctioned or recommended by the Appropriate Authority;

(7)     Admissions in various standards are according to the rules and instructions of the Department/State Board of Secondary and Higher Secondary Education, as the case may be;

(8)     Promotions made from standard to standard are in accordance with the principles laid down by the Department/State Board of Secondary and Higher Secondary Education, as the case may be;

(9)     The rates of fees, the pay scales, allowances and conditions of service of the staff and amenities provided are according to the instructions issued by the Department, from time to time or the Management undertakes to adopt the rates of fees and pay scales and allowances laid down and provide the necessary amenities within the time specified by the Department.

(10)   The school has adopted for its staff the conditions of service as prescribed by Rules in this Code or as may be laid down by Government, from time to time;

(11)   The school maintains the necessary registers and records in a proper manner (Please also see rule 83 and Annexure 15 of S.S. Code;

(12)   The records, statistical returns and certificates given by the school or the Management are trustworthy;

(13)   The school undertakes to make provisions, to the satisfaction of the Department, that the general rules of discipline as laid down by Government from time to time are duly observed by the school employees as well as by the pupils;

(14)   The school undertakes to abide by such orders relating to any of the above conditions or to the working of the school or its hostel, as may be, issued by the Department, either generally or in specific cases from time to time;

(15)   The Management undertakes not to conduct or allow unrecognized schools or classes to be conducted in the premises of the school or elsewhere;

(16)   The Management shall adopt within the time specified by the Department: (i) in the case of aided schools Government Provident Fund Scheme for the members of teaching and not-teaching staff who were appointed prior to 1st April 1966 and have opted for such a scheme; and (ii) in the case of unaided schools Provident Fund Scheme based on the Government Provident Fund Scheme for its teaching and non-teaching staff.

Refusal of recognition to a School : This has reference to the recognition first time refused by the Dy. Director. In such a case, appeal may be submitted to the Secretary of the Government of Maharashtra Education Dept. within thirty days from the date of receipt of refusal of recognition. (See rules 6.1 to 6.3 of S.S. Code).

Unauthorized school : Approval to secondary school' run by two different Shikshan Prasarak Sansthas : One of the schools found to be unauthorized and said school although granted approval had failed to provide adequate infrastructure like building, teaching facility and equip?ment etc. Facilities available in the said school were totally inadequate and it was not in the interest of students to allow it to continue. In the circumstances, authorities directed to examine afresh facilities available with both schools and grant permission only to one of the Sansthas which is having better facilities and infrastructure for running school. Sulbha Vijay Pathak v. State of Maharashtra, 1998 (1) Mh. L.J. 275.

[13] [(17) * * *]

(18) "Rules" means the rules made by the State Government under this Act;

[14] [(19) "School" means a primary school, secondary school, higher secondary school, junior college of education or any other institution by whatever name called including, technical, vocational or art institution or part of any such school, college or institution, which imparts general, technical, vocational, art or, as the case may be, special education or training in any faculty or discipline or subject below the degree level;]

NOTES

The M.E.P.S. (Conditions of Service) Regulation Act, 1977 is enacted to regulate recruitment and conditions of service of employees in certain private schools.

The expression "school" as defined in section 2(24) means a primary school, secondary school or higher secondary school or any part of any such school, a junior college of education or any other institution or part thereof which imparts education or training below the degree level including any institution which imparts technical or vocational education. In Writ Petition No. 2719 of 1984 (Shri P.D. Prabhudesai v. Principal, M.T.E. Society's Walchand College of Engineering, Vishrambaug at Sangli) it was contended that polytechnic, an institute which imparts technical education upto a diploma level is not covered within the definition of the expression "school" and therefore the School Tribunal constituted under the Act has no jurisdiction to adjudicate the dispute raised by a teacher of polytechnic. The Division Bench of the Bombay High Court had upheld this contention and observed that by mere interpretative process it is not possible for the Court to confer jurisdiction upon the School Tribunal, where it has none under the Act. Government therefore, considers it expedient to amend the definition of the expression "school" so as to cover all technical and non?technical schools, junior colleges and institutes which impart general, technical, vocational, art or, as the case may be, special education or training in any faculty or discipline or subject below the degree level. Statement of Object and Reasons, M.G.G. Pt. IV-B dated 27/12/1990 p. 37.

Primary School : The school where course of study is provided from First Standard to Fourth Standard is called a Primary School.

Middle School : See categories Prior to educational system, 1960, 4th Std. to 6th Std. Middle School Scholarship examination and 7th High School Scholarship examination.

Secondary School or a High School : It means a school which is providing course in general education leading to the Secondary School Certificate Examination (S.S.C. Exam.), or an equivalent examination recognized by the Government at the end of Standard X. Such a school may provide instruction from Std.V or above but not beyond Standard X, [See S.S.Code, Definition item No. (4).]

Higher Secondary School/ Junior College : It is an institution which provides instructions leading to H.S.C. Exam or Indian School Certificate Examination or other examinations recognized by the Government as equivalent thereto, at the end of Std. XII (Second year of Junior College). See S.S. Code Definitions item No.(s). Sometimes, a junior college is attached to secondary school or is attached to a Degree College.

Vocational High School: It provides instructions mainly in vocational courses leading to secondary School Certificate Examination or similar public examination at the end of Std. X.

Night Schools are also governed by the provisions of the Act: Night school is defined in M.E.P.S. Rules, 1981 as a secondary or higher secondary school which admits pupils who have completed eleven years of age and above, and which teaches the secondary or higher secondary schools course for half the daily working hours of a day school to pupils who are unable by their daily avocations to attend day school.

For definition of Night School See Rule 2(1)(1) for Pay-scale of teachers non-teaching staff in Nights School or Night Jr. College, See R. 7(i) permission for day-school Jr-College Teachers to be employed in Night School see R. 23(l)(b), for pay-scales part VII of Sch. "c" and R. 7(1).

Upgradation of Schools : Primary to Secondary level: Ignorance of Statutory Rules : Irregularly ignored in other School do not give right to another to claim of benefit of upgradation : Rule 2 and rule 2-A of the Kerala Education Rules, 1954.- In the absence of Gazette Notification, calling for applications for raising of the grade of an existing School, the question of consideration of respondent's applications/representations did not arise. The Supreme Court held that the Division Bench was not justified in directing the State Government to accord the same treatment, which had been given to two other Schools, which had been upgraded ignoring the Statutory Rules and upgraded the Respondents' School. State of Kerala & Ors. v. K. Prasad & Ann, [Judgment delivered by Arijit Pasayat and D. K. Jain, J J. in Civil Appeal No. 2913 of 2007, decided on 9.7.2007 (Unreported)].

Teachers working in Secondary Schools and managed by Zilla Parishad : Service Conditions : Whether governed by Code or MCSR (Sec. 37 of the Maharashtra Secondary and Higher Secondary Education Boards Act, 1965 : Chapter I, Clause 17 and Annexure 45 of Secondary Schools Code :- It was held that the services of teachers employed in Schools managed by Zilla Parishad would be governed by service conditions laid down by Secondary Schools Code. The respondent Nos. 4 and 5 acquired B.Ed. Degree subsequent to petitioners appointment though respondent Nos. 4 and 5 were appointed prior to petitioner. The respondent Nos. 4 and 5 shown senior to petitioner in Seniority List. The Seniority List be prepared on basis of dates on which teacher acquired, requisite qualification. It was held that the date of acquiring training qualification is relevant date of purpose of determining seniority. The petitioner entitled to higher placement in Seniority List. Narendra Ishulal Rahangdale v. State of Maharashtra, 2006 (1) Boom. C.R. 890.

Ashram School: Private School above Vllth Std.: In case of Taramati Bafna Blind Welfare and Research Institute, Aurangahad v. State of Maharashtra, W. P. No. 2919/1991 decided by H. W. Dhabe and N. P. Chapalgaonkar, J J. it was held that "Ashram School" is not a "Private School". In case of Gokul Prakalpa Pratishthan v. Smt. Mangal Ganpati Potdar, W.P. No. 3583/ 1999, decided by D. K. Deshmukh, J. holding the same view of Division Bench. But it was challenged before Justice A. P. Shah and Justice J. A. Patil decided on 10.2.2000 holding that Ashram School is covered by the definition of Private School under Section 2(20) of the Act, 1977. In case of Shree Gadge Maharaj Mission v. Vasudeo Ramji Patil, (2002) 4 Boom. C.R. 371 (A.B.) it was held by the Single Bench that an "Ashram School" is not a "Private School" and said view came to be confirmed in Letters Patent Appeal No. III of 2001.

It was held that the G. R. categorically stating that Ashram Schools upto 10th and 12th Stds. are recognized by Maharashtra Board of Secondary and Higher Secondary Board, was not placed before learned Single Judge who decided W.P. No. 4561/1999 on 13.8.1999. Hence the said judgment is not tenable. The decision of Division Bench in Letters Patent Appeal No. 293/ 1999 is correct therefore all Ashram Schools having classes upto 10th and 12th Stds. are covered by the definition of Private School. If Ashram School has classes from 1st to 7th or less standards, it will not require the recognition from Maharashtra Board of Education under Section 2(7) and the employees of the schools who are employed in Std. 1st to 7th Std. cannot avail of remedy under M.E.P.S. Act, 1977. Suryakant Sheshrao Panchal v. Vasantrao Naik Vimukta Jati Bhatakya Jamati Aadarsh Prasarak Mandal, 2002 (5) Boom. C.R. 95 : (2002) Vol. 104(2) Boom. L. R. 281 : 2002 (3) Mah. L. J. 659.

Aided Special Schools for disabled : Pensionary benefits : Discrimi?nation:- Employees of respondent-society claimed pensionary benefits as allowed to other grant-in-aid institutions. Employees have been granted contributory provident fund and gratuity benefits and received more benefits than the employees of other aided schools and institutions. Certain benefits extended to Children's Aid Society have not been extended to other grant-in-aid institutions. Employees of respondent-Society stand on a different footing than employees of other organisations. Therefore it was held that no illegality have been committed by the respondents by not extending the benefit of pension or there is violation of Articles 14, 19 or 21 of the Constitution of India.

Ashramshalas are not covered by contributory provident fund scheme as they were covered by pension scheme. The employees of the Childrens Aid Society thus stand on a different footing than employees of other organisations.

Employees of the Childrens Aid Society are entitled to contributory provident fund and gratuity towards the retiral benefits and they are not entitled to benefits under the pension scheme, and as the petitioner has been paid those benefits, no grievance can be made by her for non-payment of pension. Petitions were dismissed. Children's Aid Society Employees Union v. Childrens Aid Society, 2003 (1) All M.R. 936 : 2003 (2) Mh. L.J. 95 : 2003 (3) Boom. C.R. 387.

Polytechnique institution, a school : A polytechnic institution is covered by the definition under section 2(24) of the Act and the School Tribunal has jurisdiction to entertain appeal filed under section 9 under the Act. Shikshan Mandal, Wardha v. Presiding Officer, School Tribunal, Nagpur, 2001 (1) Mh.L.J 606 : 2001 (1) All. M.R. 490.

Unauthorized school and issue of approval: Approval to secondary school run by two different Shikshan Prasarak Sansthas : One of the schools found to be unauthorized and said school although granted approval had failed to provide adequate infrastructure like building, teach?ing faculty and equipment etc. Facilities available in the said school were totally inadequate and it was not in the interest of students to allow it to continue. In the circumstances, authorities directed to examine a fresh facilities available with both schools and grant permission only to one of the Sansthas which is having better facilities and infrastructure for run?ning school. Sulbha Vijay Pathak v. State of Maharashtra, 1998 (1) Mh. L. J. 275.

Equality in service conditions applicable for aided and unaided school staff: Conditions of service laid down for teachers in private schools under the Act and Rules framed there under are applicable to the aided as well as unaided schools. Vidya Vikas Khandekar v. Bal Mandir Sanstha, 1993 (2) Mh. L. J. 1467.

Whether Kindergarten (K.G.) is 'school' - The definition has an ambit of sufficiently long range, but still it is not omnibus. It refers principally to an institute of definite description like Primary, Secondary etc. and then of particular nature i.e. imparting educational instructions in any discipline below the degree level. The definition gives definite indication of its parameter. The institutions which impart education between primary and below degree courses are alone taken within the ambit of the term "school". The lowest limit is of primary and upper limit is below degree standard. The Kindergarten is undisputedly below primary. The School Tribunal, therefore, has no jurisdiction to deal with termination of a teacher of Kindergar?ten as the same not being a school within the definition. Governing Body, Nirmal Education Society, Gondia v. Presiding Officer, School Tribunal, Nagpur., 1996 (II) C.L.R. 872.

[15] [(19A)"shikshan sevak" means a member of base teaching cadre appointed on honorarium and subject to such terms and conditions as specified in the Government Resolution published in the Maharashtra Government Gazette, Extraor?dinary, No. 12, Part I -Central Sub-section, dated the 15th February, 2007, for eventual appointment as a teacher;]

[16] [(20) "State Board" means -

(a)      the Maharashtra State Board of Secondary and Higher Secondary Education established under the Maharashtra Secondary and Higher Secondary Edu?cation Boards Act, 1965;

(b)      the Board of Technical Examinations, Maharashtra State;

(c)      the Maharashtra State Board of Vocational Exami?nations; or

(d)      the Art Examinations Committee;]

(21) "teacher" means a member of the teaching staff, and includes the Head of a school;

NOTES

Teachers not workmen : Teachers are not covered by the definition of Section 2(s) (j) of the I.D. Act even though educations they serve, fall within the definition of 'industry'. A workman should essentially be engaged in skilled or unskilled, manual, supervisory, technical or clerical work. Otherwise he would not be workman even though employed in an industry. In order to do justice to teachers, it is necessary to provide for appropriate machinery. A. Sundarambal v. Govt. of Goa, Daman and Diu, AIR 1988 SC 1700 : (1988) 3 J.T. 121.

Teacher, in Deaf and Dumb School: Teacher is a teacher all the same. The nature of duties of teacher teaching normal students and a teacher teaching deaf and dumb students are essentially the same. Both impart education to the students. The only difference is in the manner of imparting education. In one way even teachers teaching normal students do some kind of manual work when for instance they write on the black board, take attendance or take part in the other extra curricular activities. But it cannot be said in their case that because of these works their nature of duties are manual and they are workmen. Likewise in the case of the petitioner, the main work is intellectual as distinct from manual and she is not a workman. She also imparts education to students as any other teacher. There is no physical exertion in the method of teaching by signs and lip reading etc. The predominant nature of petitioner's work involves mental or intellectual exertion and not manual exertion. Uma Chopra v. R. N. Jindal, 1988 (1) C.L.R. 462 (Delhi H. C).

Headmaster is a teacher : Objection is taken to nomination of one teacher, who is retired as Head Master, by the Enquiry Committee on the ground that he is not 'teacher' as contemplated by rule 36(2)(a)(iii) of the Rules of 1981. The objection is overruled in as much as under Section 2(26) of the Act, teacher includes head of a school. Thaper Education Society v. Shyam Maruti Bhasarkar, 1997 (3) Mh. L. J. 709 : 1998 (1) C.L.R. 251.

(22) "Zilla Parishad" means a Zilla Parishad established or constituted under the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961.

Section 3 - Application of Act

(1)     The provisions of this Act shall apply to all private schools in the State of Maharashtra, whether receiving any grant-in-aid from the State Government or not.

(2)     Notwithstanding anything contained in sub-section (1), the provisions of this Act shall not apply to the recruitment [17] [of the Head of a minority school and] any other persons (not exceeding three) who are employed in such school and whose names are notified by the Management to [18] [the Director or, as the case may be,] the Deputy Director for this purpose.

NOTES

Objects : The statutory protection is provided to the employees of all private schools recognised by the Government of Maharashtra in respect of conditions of service. However, sub-clause (2) of Section 3 states that the provisions of this Act will not apply to all private schools in the State since it excludes certain number of employees. It is provided in the sub-clause that provisions of the Act will not apply to the recruitment of the Head of a Minority School and any other persons not exceeding three employees in such private school and whose names are notified by the Management to the Deputy Director for this purpose.

A Minority School means a school established and administered by a minority having the right to do so under Art. 30 of the Constitution of India.

Polytechnic is a private school: Petitioners-employees of respondent polytechnic filing appeals before School Tribunal challenging termination of their services. Tribunal, relying on Division Bench judgment of the High Court in P.D. Prabhudesai v. Principal, M.T.E. Societies Walchand College of Engineering holding that polytechnics are not governed by the Act, dismissed the appeals. Petitioners-employees filed writ petitions challenging dismissal of the appeals. It was that the said Division Bench judgment is based on misconception of fact and cannot be said to be laying down correct position of law. Respondent polytechnic is a private school and it is also recognised by the Director of Technical Education and therefore it is governed by the Act. Appeals remanded to Tribunal for fresh decision. Abdullah Jameel Ahmed Ansari v. M. H.Sabbo Siddik Polytechnic, 1996 (1) C.L.R. 85.

Unaided Schools : Permissibility of Creation of Development Fund Account : Collection of Development Fee and Determination of Rate.-It was held by the Supreme Court that management of the unaided schools are permitted to charge development fee not exceeding 15% of the total tuition fee annually collected after considering various factors into account for the purpose of levy of fee on the student. This consideration is mainly because on account of increase cost due to inflation, the management may create such development fund account. A proper accounting practice require to be followed by non business organisations/not for profit organisations. If correct practice is introduced then such development fees can be used for supplementing the resources for purchase, upgradation and replacement of furnitures and fixtures and equipment is justified. Modern School v. Union of India & Ors., 2004 (5) SCC 583.

Fund Based System of Accounting : Unaided Schools : It was held by the Supreme Court that every unaided school covered by the Delhi School Education Act, 1973 is required to maintain accounts on the principals of accounting applicable to non-business organisation/non-profit organisation and standards and principals of accounting are referred to be followed by the schools. Vidya Vikas Khandekar v. Bal Mandir Sanstha, 1993 (2) Mah. L. J. 1467.

Parity in service conditions : Aided and unaided institutions :

Conditions of service laid down for teachers in private schools under the Act and Rules framed thereunder are applicable to aided as well as unaided schools. Vidya Vikas Khandekar v. Bal Mandir Sanstha, 1993 (2) Mah. L. J. 1467.

Minority :The Constitution of India has not defined the term 'minority'. However the Supreme Court has defined the said expression in various judgments. Article 30(1) of the Constitution protects the rights of minori?ties to establish and administer the educational institutions. Article 29 of the Constitution provides that any section of citizens residing in the territory of India or any part thereof, having a distinct language, script or culture of its own shall have right to conserve the same.

Test to determine linguistic "minority": Where a Bill passed by a State Legislature extends to the whole of the State, the minority for the purpose of Art 29 and Article 30 must be determined by reference to the entire population of the State. In re : The Kerala Education Bill, 1957, AIR 1958 SC 956 : 1959 S.C.J. 321. Article 30 gives certain rights not only to religious minorities but to linguistic minorities also to establish educa?tional institutions of their choice.

Article 29 and Article 30 create separate right for minority to impart education. Ahmedabad St. Xaviers College Society v. State of Gujarat, AIR 1974 SC 1389 : (1974) 1 SCC 717.

The right granted to minorities under Article 30(1) of the Constitution is subject to cl. 2 of Article 29 which provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste or language or any of them.

Religious or linguistic minorities : Religious or linguistic minorities are to be determined only in relation to the particular legislation which is sought to be impugned. The minorities have to be determined on the basis of the population of the State. D.A.V. College, Jullundur v. State of Punjab, AIR 1971 SC 1737 : (1971) 2 SCC 269.

Linguistic minority : Non-Marathi medium schools : Imposition of compulsory Marathi language study : Policy decision : Power of State imposing reasonable regulations :- Marathi language study has been made compulsory throughout the schools in Maharashtra. The validity of Resolution was challenged by the Gujarati linguistic minorities. It was held that Linguistic minority institutions not prevented from teaching Gujarati language in their schools. State is empowered to impose reasonable regulations on institutions covering Article 30 of the Constitution for protecting the larger interest of the State and the nation. The Regulation imposed upon linguistic minorities to teach its regional language is only a reasonable one and within the regulatory ambit of Article 30. The Maharashtra State Government Policy decision is not violative of linguistic minority rights guaranteed under Articles 29 and 30 or any other provisions of the Constitution.

The State can impose reasonable regulations on the institutions covering Article 30 for protecting the larger interest of the State and the nation. The 'choice' that could be exercised by the minority community or group is subject to such reasonable regulations imposed by the State. While impos?ing regulations, the State shall be cautious not to destroy the minority character of institutions. It is not the case of Petitioners herein that the respondents prevented them from teaching Gujarati language.

Basic principles for claiming minority status : For educational institutions:

(1)     The individual must be a citizen of India.S.K. Patrao v. State of Bihar, AIR 1970 SC 259.

(2)     Those individuals must form or must be a distinct group identifiable with religion or language. The linguistic group need not have a separate script but must have different language to be treated as a language of the minority. D.A.V. College, Jullundhar v. State of Punjab, AIR 1971 SC 1737.

(3)     Institution must be founded or established by a minority community. Azeez Basha v. Union of India, AIR 1968 SC 662.

(4)     It must be administered by a minority.

(5)     The proof of establishment of the institution is a condition precedent for claiming right to administer the institution.

(6)     It is enough for a minority institution to submit its Memorandum of Association, Rules and Regulations etc. for the purpose of claiming such a status. Social Literary Advancement Society v. State of Karnataka, AIR 1979 Kar. 217; Indulal H. Shah v.S.S. Salgaonkar, AIR 1983 Bom. 192.

Is there a fundamental right to set up educational institutions and if so, under which provision ? With regard to the establishment of educational institutions, three Articles of the Constitution come into play. Article 19(l)(g) gives the right to all the citizens to practice any profession or to carry on any occupation, trade or business; this right is subject to restrictions that may be placed under Article 19(6). Article 26 gives the right to every religious denomination to establish and maintain an Institution for religious purposes, which would include an educational institution. Article 19(l)(g) and Article 26, therefore, confer rights on all citizens and religious denominations to establish and maintain educational institutions. There was no serious dispute that the majority community as well as linguistic and religious minorities would have a right under Articles 19(l)(g) and 26 to establish educational institutions. In addition, Article 30(1), in no uncertain terms, gives the right to the religious and linguistic minorities to establish and administer educational institutions of their choice.

Article 19(l)(g) employs four expressions, viz., profession, occupation, trade and business. Their fields may overlap, but each of them does have a content of its own. Education is per se regarded as an activity that is charitable in nature. The State of Bombay v. R.M.D. Chamarbaugwala, (1957) SCR 874 : AIR 1957 SC 699. Education has so far not been regarded as a trade or business where profit is the motive. Even if there is any doubt about whether education is a profession or not, it does appear that education will fall within the meaning of the expression "occupation". Article 19(l)(g) uses the four expressions so as to cover all activities of a citizen in respect of which income or profit is generated, and which can consequently be regulated under Article 19(6).

Scheme framed under Unni Krishnan's case held as unreasonable : Supreme Court observed that the scheme framed by this Court and thereafter followed by the Government was one that cannot be called a reasonable restriction under Article 19(6) of the Constitution. Normally, the reason for establishing an educational institution is to impart education. The institution thus needs qualified and experienced teachers and proper facilities and equipment, all of which require capital investment. The teachers are required to be paid properly. As pointed out above, the restrictions imposed by the scheme, in Unni Krishnan's case, made it difficult, if not impossible, for the educational institutions to run efficiently. Thus, such restrictions cannot be said to be reasonable restrictions.

The private unaided educational institutions impart education, and that cannot be the reason to take away their choice in matters, inter alia, of selection of students and fixation of fees. Affiliation and recognition has to be available to every institution that fulfills the conditions for grant of such affiliation and recognition. The private institutions are right in submitting that it is not open to the Court to insist that statutory authorities should impose the terms of the scheme as a condition for grant of affiliation or recognition; this completely destroys the institutional autonomy and the very objective of establishment of the institution.

Right to select students : Any system of student selection would be unreasonable if it deprives the private unaided institution of the right of rational selection, which it devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the equivalence between different kinds of qualifications, like a Common Entrance Test. Such a system of selection can involve both written and oral tests for selection, based on principle of fairness.

Surrendering the total process of selection to the State is unreasonable, as was sought to be done in the Unni Krishna scheme. Apart from the decision in St. Stephen's College v. University of Delhi, (1992) 1 SCC 558, which recognised and upheld the right of minority aided institution to have a rational admission procedure of its own, earlier Constitution Bench decisions of this Court have, in effect, upheld such a right of an institution devising a rational manner of selecting and admitting students.

In case of private Institutions, can there be Government Regulations and, If so, to what extent ? Private educational institutions, both aided and unaided, are established and administered by religious and linguistic minorities, as well as by non-minorities. Such private educational institutions provide education at three levels, viz., school, college and professional level.

Distinction between private unaided and aided institutions : Scale of autonomy : An educational institution is established for the purpose of imparting education of the type made available by the institution. Different courses of study are usually taught by teachers who have to be recruited as per qualifications that may be prescribed. It is no secret that better working conditions will attract better teachers. More amenities will ensure that better students seek admission to that institution. One cannot lose sight of the fact that providing good amenities to the students in the form of competent teaching faculty and other infrastructure costs money. It has, therefore, to be left to the institution, if it chooses not to seek any aid from the Government, to determine the scale of fee that it can charge from the students. One also cannot lose sight of the fact that we live in a competitive world today, where professional education is in demand. We have been given to understand that a large number of professional and other institu?tions have been started by private parties who do not seek any governmental aid. In a sense, a prospective student has various options open to him/ her where, therefore, normally economic forces have a role to play. The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the Government.

Criteria for admission : Merit : For admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions.

Merit : Whether C.E.T. permissible : Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a Common Entrance Test conducted by the institution, or in the case of professional colleges, by Government agencies.

Education is taught at different levels from primary to professional. It is, therefore, obvious that Government regulations for all levels or types of educational institutions cannot be identical; so also, the extent of control or regulation could be greater vis-a-vis aided institutions.

Private enterprises recommended the running of non-professional college: There is a need for private enterprises in running non-professional college education as well. At present, insufficient number of undergraduate colleges are being and have been established, one of the inhibiting factors being that there is a lack of autonomy due to Government regulations. It will not be wrong to presume that the numbers of professional colleges are growing at a faster rate than the number of undergraduate and non?professional colleges. While it is desirable that there should be a sufficient number of professional colleges, it should also be possible for private unaided undergraduate colleges that are non-technical in nature to have maximum autonomy similar to a school.

No prior permission is required for disciplinary proceedings : Disputes between the Management and the staff of educational institutions must be decided speedily, and without the excessive incurring of costs. It would, therefore, be appropriate that an Educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an Educational Tribunal in a State, the object being that the teacher should not suffer through the substantial costs that arise because of the location of the Tribunal; if the Tribunals are limited in number, they can hold circuit/camp sittings in different Districts to achieve this objective. Till a specialised Tribunal is set up, the right of filing the appeal would lie before the District Judge or Additional District Judge as notified by the Government. It will not be necessary for the institution to get prior permission or ex post facto approval of a governmental authority while taking disciplinary action against a teacher or any other employee. The State Government shall determine, in consultation with the High Court, the Judicial Forum in which an aggrieved teacher can file an appeal against the decision of the Management concerning disciplinary action or termination of service.

Right to select students : Admission : Reasonable methodology : The private educational institutions have a personality of their own, and in order to maintain their atmosphere and traditions, it is but necessary that they must have the right to choose and select the students who can be admitted to their courses of studies. It is for this reason that in the St. Stephen's College case, this Court upheld the Scheme whereby a cut-off percentage was fixed for admission, after which the students were inter?viewed and thereafter selected.

While an educational institution cannot grant admission on its whims and fancies, and must follow some identifiable or reasonable methodology of admitting the students, any scheme, rule or regulation that does not give the institution the right to reject candidates who might otherwise be qualified according to, say, their performance in an Entrance Test, would be an unreasonable restriction under Article 19(6), though appropriate guidelines/modalities can be prescribed for holding the Entrance Test in a fair manner. Even when students are required to be selected on the basis of merit, the ultimate decision to grant admission to the students who have otherwise qualified for the grant of admission must be left with the educational institution concerned. However, when the institution rejects such students, such rejection must not be whimsical or for extraneous reasons.

Minority educational institutions and Industrial Disputes Act : It was held by the Supreme Court that Industrial Disputes Act, 1947 was equally applicable to minority institutions protected under Art. 30(1). Provisions of the Act are regulatory in nature and do not abridge the right under the said Art. Therefore, reference under Section  10 of the I.D. Act is valid.

Whether all Board members should belong to minority : Article 30 does not contemplate that an autonomous educational Board entrusted with the duty of regulating the aided and recognised minorities institution, should be constituted only by persons belonging to the minority community. All Bihar Christian Schools Association v. State of Bihar, (1988) 1 SCC 206.

Appointment on the post of Head : Managements of minority institutions are at liberty to appoint Head of the institution by interviewing qualified persons eligible for the said post. The exemption to the minority institution underSection 3 (2) of M.E.P.S. Act, 1977 is in confirmity with the provisions of Art. 30(1) of the Constitution. Mrs. Prabhavati V. Patole v. State of Mah., 1991 (1) Mah. L. R. 350.

So far as minority institutions is concerned, it is open for it to fill the post of principal by direct recruitment. Petitioner having applied for the post by direct recruitment and having accepted the appointment as direct recruit is barred from challenging the minority status of the respondent. As the recruitment is by direct recruitment, it is on probation as is made out by respondent. As the termination is on unsatisfactory performance during probationary period, the same cannot be interfered with. Indira Tiwari v. Nutan Hindi Sahitya Mandal, 1998 (I) C.L.R. 1088 (Bom. H.C.).

Minority school: Appointment of Head of school: Qualification and experience essential: In the present matter, the experience of respondent as Asst. Teacher was more than the petitioner. Tribunal has not committed any error of law. The respondent appointee did possess the requisite educational qualifications on the date of her appointment as she was duly qualified possessing the degree. Her total experience as an Asst. Teacher was from 1979. It is true that after she obtained the Bachelor's Degree in Education she lacked two years teaching experience. However, this condi?tion could be relaxed by the Dy. Director of Education after recording his reasons, which he has done. In comparison with the teaching experience of the petitioner, the respondent has two years more experience and she was even senior in service to the petitioner. The petitioner cannot make a grievance against the discretion exercised by the School Management in favour of the respondent permissible under section 3(2) of the Act, and such discretion has also been approved by the Appropriate Authority. It cannot be said that the decision of the Management was totally arbitrary or whimsical and that there was any grave miscarriage of justice. It is not that the Management had exercised its discretion while appointing the Head of the school, a person totally unqualified and ineligible candidate. What was done was to relax the condition of two years teaching experience after the B.Ed degree acquired by the respondent. Malik Khairunissa v. Anjuman Riaz-ul-Islam High School, 2001(3) All M.R. 489: (2001) Vol. 103(3) Bom. L. R. 175 : 2001 AIR S.C.W. 1025.

No reservation in minority institution : Minority educational institutions cannot be directed to appoint teachers or other staff on basis of reservation policy laid down by the State under rule 9(7) to 9(10) as the minority institution has protection under Article 30(1) of the Constitution of India. St. Francis Sales Education Society, Nagpur v. State of Mah., 2001 (3) Mh. L.J. 261 : 2001 (3) All. M.R. 384.

Minority status of educational institution : When question arises whether a particular institution is a minority educational institution or not, it is required to be determined in relation to a particular legislation which is sought to be impugned. If it is the State Government, the question is required to be determined in relation to the population of that State. Further a linguistic minority for the purpose of Article 30(1) is one which must at least have a separate spoken language. It is not necessary that language should also have a distinct script for those who speak it to be a linguistic minority. Mahatma Education Society v. State of Mah., 1997(2) Mh.L.J. 816.

Under the Act, a person occupying a permanent, clear vacancy would be treated as confirmed after two years of service. IIa Banerjee claimed that she was permanent. The Management claimed that she was only officiating. The Court held that the wording of the appointment letter was irrelevant and since IIa Banerjee was infact occupying a clear, permanent vacancy, she was a deemed confirmed Head Mistress. The Management then claimed that in any case since it was a minority institution, it could remove Mrs. Banerjee at any time and appoint a Head Mistress of its choice. The Court negatived this plea. The Court held that as per the Rules once IIa Banerjee was treated as confirmed, she was clothed with all the rights of any other employee including the right not to be removed or reverted except after an enquiry, etc. The minority institution did have the right to appoint a person of its choice as the Head Mistress, but having once exercised this choice, and the Head Mistress being confirmed, the Management could not remove her at its whims and fancies.

Head of the school : A minority institution appointed an assistant teacher as a Supervisor even though not senior to the person who was denied the appointment on the ground that it was open to the institution to appoint a person on the ground of seniority-cum-merit and as Supervisor was covered by the expression "Head" as defined in section 2(9) of the Maharashtra Employees of Private Schools (Conditions of Service) Regula?tion Act, 1977. The Tribunal directed the Management to withdraw the order promoting the teacher who had been promoted though not senior and gave other consequential directions.

Law Commission on minority institutions : Because of status of minority institutions, it is held in Maharashtra that the Maharashtra Secondary School Code, R. 57 A is violative of the right guaranteed to minorities under Art. 30(1). Therefore, provisions for reservations of S.T. and S.C. cannot be made in such institutions. Anthony Medonca v. State of Maharashtra, 1985 Mh. L.J. 148.

For minority schools, the requirement of a private school that it must be recognised by the Appropriate Authority is essential, it may be aided or unaided school. The Act is applicable to all recognised private schools. Exception to this rule is already mentioned.

In a Government Circular, the Education Department has emphasized on the applicability of all provisions of the Act to employees of minority school and directed the Field Officers to apply all provisions even to the four employees as excluded in Section 3(2). (Edu. and Empl. Dept. P&T/1086/325/ SE-3-Cell, dated 14.8.1987.

Summary : Rights of linguistic minority : Linguistic minority institution has right under the Constitution to conserve and promote its language, script and culture. This right cannot be taken away by any legislative enactment or rules made by executive authorities. Virendra Nath

Gupta v. Delhi Admn., (1990) 2 SCC 307 : 1990 SCC (L. &Section) 249 : AIR 1990 SC 1148 : 1990 Lab. I.C. 929 : (1990) I C.L.R. 651.

A minority institution which does not seek aid or recognition from the State or the education Board need not be subject to regulatory provisions. Bihar State Madarasa Education Board v. Madarasa Hanifa Arabic College, (1990) 1 SCC 428 : AIR 1990 SC 695 : (1990) 1 B.L.J.R. 504.

No power to take over minority institutions : The State has, however, no power to completely take over the Management of a minority institution. Under the guise of regulating the educational standards to secure efficiency in institution, the State is not entitled to frame rules or regulations compelling the management to surrender its right of administration. Though minority institutions cannot be allowed to fall below the standard of excellence on the pretext of their exclusive right of Management but at the same time their constitutional right to administer their institutions cannot be completely taken away by superseding or dissolving Managing Committee or by appointing ad hoc committees in place thereof. In the instant case Section 7(2)(n) of the Act is clearly violative of constitutional right of minorities under Art. 30(1) insofar as it provides for dissolution of Managing Committee of a Madarasa.- Bihar State Madarasa Education Board v. Madarasa Hanifa Arabic College, (1990) 1 SCC 428 : AIR 1990 SC 695 : (1990) 1 B.L.J.R. 504.

Restrictions on rights of Management of minority institutions : Shikshan Sevak terminated : They are restricted only to the post of appointment of H.M. and three other persons whose names are notified with the Director of Education. Swati Vasant Patil v. Kandivli Education Society, 2002 (3) Bom. C.R. 51.

Section 4 - Terms and conditions of service of employees of private schools

(1)     Subject to the provisions of this section, the State Government may make rules providing for the minimum qualifications for recruitment (including its proce?dure), duties, pay, allowances, post-retirement and other benefits, and other conditions of service of employees of private schools and for reservation of adequate number of posts for members of the backward classes :

Provided that, neither the pay nor the rights in respect of leave of absence, age of retirement and post-retirement ben?efits and other monetary benefits of an employee in the employment of an existing private school on the appointed date shall be varied to the disadvantage of such employee by any such rules.

(2)     Every employee of a private school shall be governed by such code of conduct as may be prescribed. On the violation of any provision of such code of conduct, the employee shall be liable to disciplinary action after conducting an enquiry in such manner as may be prescribed.

(3)     If the scales of pay and allowances, post-retirement and other benefits of the employees of any private school are less favourable than those provided by the rules made under sub-section (1). the Director shall direct in writing the Manage?ment of such school to bring the same upto the level provided by the said rules, within such period or extended period as may be specified by him.

(4)     Failure to comply with any direction given by the Director in pursuance of sub-section (3) may result in the recognition of the school concerned being withdrawn, provided that the recognition shall not be withdrawn unless the Management of the school concerned has been given a reasonable opportunity of being heard.

(5)     No employee working in a private school shall work in any coaching class. If any employee, in contravention of this provision, works in any coaching class, his services shall be liable to be terminated by the Management, provided that no such order of termination shall be issued unless the employee concerned has been given a reasonable opportunity of being heard.

(6)     No employee of a private school shall be suspended, dismissed or removed or his services shall not be otherwise terminated or he shall not be reduced in rank by the Management, except in accordance with the provisions of this Act and the rules made in that behalf.

NOTES

Object: Under this section, the rule making power is conferred on State Government. However, the scope of the rules is restricted to following subjects; minimum qualifications for recruitment, procedure of recruit?ment of Head and Assistant Head, Supervisor. Teachers both permanent and non-permanent which includes temporary or on probation appoint?ment, their respective duties, leave, provident fund, gratuity, promotion, seniority, superannuation, pension, transfer, deputation, pay-scale and allowances, benefits during service and post-recruitment benefits, work?load, right to make representation, stipulating higher qualifications, termi?nation, retrenchment, removal from service, penalties, inquiry and suspen?sion, its procedure, other conditions of service and for reservation of adequate number of posts for members of the backward classes.

Section 16 makes provisions for procedure to be adopted for making Rules. Along with the Rules, Sch. A to Sch. I are attached giving details pertaining to above subjects. Code of Conduct for teachers and other employees is included in Rule 22. Failure to comply with the provisions made in the Rules will be treated as an act of negligence or misconduct or both. After conducting due inquiry and filing inquiry report, the Manage?ment may take disciplinary action against the employee.

Where the pay-scales and allowances etc. of any private school are less favourable than those prescribed by the Rules, the Director of Education has power to direct the Management of such school in writing to bring existing Rules in conformity with the level given in the Rules, 1981. Failure to comply with the directives given by the Director will result in withdrawal of the recognition of defaulting school.

An employee of a private school is prohibited from working in any coaching classes as defined in Section  2(2). If this provision is contravened by the employee, his service will be terminated after giving him reasonable opportunity of being heard.

Appointment on compassionate grounds : Post of Peon.- It was held that firstly the appointment on compassionate grounds is not a right but only to tide over difficulties of the family. If eligible subordinate employee is available for promotion the advertisement is not necessary. Zilla Parashad could not interfere with ealier approvals. The action is erroneous and unjustified. Chairman/Secretary, Janseva Education Society & Ors. v. State of Maharashtra & Ors., 2005 (3) All M.R. 666 : 2005 (4) (Bom. C.R. 486 : 2005 (3) Mah. L.J. 989.

Shikshan Sevak Scheme (Primary Teachers) : When two Orders of Division Bench : Disagrees with each other : Aurangabad Bench differs with High Court at Bombay :-The Government of Maharashtra formulated a scheme namely the Shikshan Sevak Scheme for appointment of teachers on honorarium basis. These were challenged before the High Court of judicature at Bombay, and the Division Bench passed interim direction by Order dated 16.08.2000. Extract the said directions of the Division Bench is as under :-

The Supreme Court held that the Division Bench of the Bombay High Court at Aurangabad ought not to have disturbed the earlier Order passed by a coordinate bench of the same High Court at Bombay. In Order to maintain judicial discipline as the Division Bench at Aurangabad was in disagreement with the said Order, the matter should have been directed to be placed before the Chief Justice for passing appropriate Orders. The Supreme Court was of the opinion that the impugned Order passed by the Aurangabad Bench was not sustainable and accordingly it was quashed. The Supreme Court made it clear that the appointments of the Respondents as Primary Teachers would not be effected. The Appeal was allowed and Impugned Order was set aside. State of Maharashtra v. Abdul Javed Abdul Majid, 2002 (Supp.1) JT (SC) 151 : 2002 (6) Supreme 254.

Shikshan Sevak Scheme (Primary Teachers) :- The petitioners was employed as permanent Asst. Teachers in primary section of School. The Approval as Asst.Teachers was denied. The Order dated 13.12.2002 was issued for Grant of Approval to employment as Shikshan Sevaks. Though, the teachers were employed since 1979, it was held that the Shikshan Sevak Scheme and Government Resolution dated 13.10.2000 cannot be made applicable to Petitioners. Since they were appointed in the year 1979. Employment is governed by Circular dated 20.01.1987. Circular still holds field. Impugned Order set aside. Bharti Manu Mandhora & Anr. v. State of Maharashtra & Ors., 2006 (2) Bom.C.R. 768 : 2006 (3) Mh.L.J. 218.

Junior College : Petitioner appointed since 1997 : B.A. B.P.Ed equivalent to B.Ed : Shikshan Sevak: OBC: No issue of backlog remains : Termination illegal :- It was held that requisite workload was available. The Municipal Council/Respondent No. 4 was in need of a man who could teach English and Marathi subjects besides Physical Education periods as well. The Petitioner satisfies and eligible to teach said 3 subjects. Further, the Petitioner belongs to 'Kunbi' Caste (OBC), and there was backlog of

OBC. Hence, the Impugned Order not sustainable in law. Kishore Digambar Wankhede v. State of Maharashtra & Ors., 2004 (1) All M.R. 496 : 2004 (Supp.) Bom.C.R. 932.

Shikshan Sevak : No restrictions of being a resident of the same District:- The Division Bench held that the Education Officer wholly unjustified in refusing to Grant an appointment to the Petitioner No. 2 solely for the reason that the Petitioner is not resident of the same District. Sunil s/o Shriram Raut & Anr. v. State of Maharashtra & Ors., 2004 (1) All M.R. 524 : 2004 (4) Bom.C.R. 487.

Appointments of Reserve Category candidates belonging to different reserve category : Excess quota : More than 34% of reservation. Impermissible since contrary to Rule 9(7) of Rules, 1981. In the instant case, out of approved strength of 39 staff, 16 teachers belong to reserve category completing 34% reservation under Rule 9 of M.E.P.S. Rules, 1981. Prescribing more reservation contrary to Rules is an administrative in?struction. Rules are applicable since it is subordinate legislation the Division Bench directed to follow strictly Rule 9(7) of Rules. G.R. contrary to the Rules is inapplicable to appointments in schools and junior colleges. Nishad S. Pawar & others v. Dnyanasadhana College, Thane, W.P. No. 3680/ 2004 dated 25.2.2005 delivered by F. I. Rebello and S.P. Kukday J.J. (unreported).

O.B.C. appointed in place of reserve category : It was held that when a vacancy is reserved for a Backward Class candidate belonging to a particular category, and such a candidates of that Backward Class is not available then the employer school is obliged to appoint a B.C. candidate belonging to any other recognized B.C. category in the said post and by virtue of rule 9(9), that candidate shall be entitled to be regularly appointed on the said post, that as such second respondent who belongs to O.B.C. was entitled to be regularly appointed, that first respondent i.e. Education Dept. was bound to approve the said appointment right from academic year 1995-96 which they failed to do for no valid reason, that third respondent shall be paid admissible salary for the academic year 1997-98 and that second respondent shall be paid admissible salary for the academic year 1997-98 and that second respondent shall be allowed to resume work as teacher immediately in current academic year 1998-99.-D. G. Ruparel College v. State of Maharashtra, 1998 (II) C.L.R. 402 (D. B.) (Bom.).

The Principles of natural justice : The principle of natural justice mean the principles relating to the procedure required to be followed by authorities entrusted with the task of deciding disputes between the parties when no procedure is laid down by rules. The principles of natural justice are deemed to govern the procedure of departmental enquiries even though not provided for.

The principles of natural justice does not refer to any one principle. There are more than one principle which are recognized as basis to the procedure relating to fair determination of the dispute between the parties.

The principles of natural justice only lay down the procedure and they have nothing to do with the merits of the case. The principles of natural justice can as well be called the principles of procedural justice.

The principles to endure fair procedure are generally called "the principles of natural justice" on account of historic reason. Previously it was believed that such principle had got the divine origin and they were imbedded in the heart of man by nature itself. Thus the principles acquired the name of 'principles of natural justice'. The name is however, a misno?mer. The principles arose out of crystallization of the judicial thinking regarding necessity evolve minimum norms of fair procedure and they do not owe their origin to cither nature or any divine agency. As observed by Supreme Court in A.K. Kraipak v. Union of India. (1969) 2 SCC 262: AIR 1970 SC 150; K. P. Narayan Menon v. State of Kerala, 1975 Lab. I.C. 405 (Ker.HC);SectionS.S. Venkatrao v. State of Orissa, 1975SectionC.J. 266 (Ori. H.C.) the aim of the rules of natural justice is to secure justice or to put if negatively, to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it. The rules are procedural in nature and an order passed in violation of the principles of natural justice may be invalid and may not be sustainable but it cannot be said that the order is not in existence. M. A. Khan v. Divisional Personal Officer, 1972 Lab. I.C. 36 : 42 F.J.R. 227 (All. H.C).

OBC Certificate : Advertisement applications calling for recruitment of primary and nursery school teachers of Municipal Corporation of Delhi requiring OBC was issued in a State other than the Government of National Capital Territory of Delhi. The Respondent, it was contended that, who satisfied the general qualifications and eligibility ought to have been considered in the general category. High Court held that Government of India having prescribed Annexure AA to its notification dated 15.11.1993 as the format of Certificate for OBC in respect of appointments to the posts under the Government of National Capital Territory of Delhi, and the advertisement issued by the Municipal Corporation of Delhi which did not the Form of the Caste Certificate thereby making it impossible for candi?dates for fulfilling the conditions, in such case rejection of the applications of the Respondents was not correct. High Court accordingly directed to treat the applications of the Respondent Teachers to be valid. It was held by the Apex Court that in terms of the notification issued by the Government of India only the OBC Certificate issued by the specified authorities would be valid and certificates issued by any other authority could not be accepted. Therefore, Apex Court observed that High Court was not correct in treating the Applications of the Respondents to be in order. However, to the extent the Applicants satisfied the general qualifications and eligibility, their cases ought to have been considered in the general category. M.C.D. v. Veena and Ors., J.T. 2001 (6) SC 413.

Termination of services of appellant belonging to OBC.- In this case the management denied that the appellant had furnished any information as belonging to OBC. The Tribunal held that the termination notice was illegal and the appellant was required to be appointed against the permanent vacancy reserved for ST as he belonged to OBC. The High Court held that Tribunal did not apply its mind to some admitted facts. Management was aware while issuing appointment order that the appellant belonged to OBC and it was necessary for the management to consider her candidature more so in the absence of any other S.T. candidate. The High Court partly allowed the petition.- Rajashri Chhatrapati Shahu Vidya Prasarak Mandal & Ors. v. Surekha Kisan Dhake & Ors.. 2008 (3) Man. L.J. 433.

Reservation : Migration from one State to another : The issue in the present case was that whether a person belonging to a Scheduled Caste in relation to a particular State would be entitled to or not, for the benefits on migration to another State/Union Territory. It was contended that if those who migrate from whichever State it may be, are allowed the benefit of reservation of the original Scheduled Castes of the Union Territory / State it will severely affect the interest of the members of that State/U.T. was not raised and considered in Chandigarh Administration's case 2004 (1) S.C.T. 305 (SC). Matter recommended to be placed before three Judges Bench.S. Pushpa v. Sivachanmugavelu, J.T. 2004 (3) SC 595.

Reservation of appointment : In order to obviate the difficulty due to fractions etc., in the calculation of the number of reserved vacancies on the percentages, special rosters known as Reservation Roster' have been prescribed by the Government, which have been so designed to give the exact percentage of reservation. This is the starting point for giving effect to the reservation while making actual appointments/promotions.

The Reservation Rosters are intended to be an aid to determining the number of vacancies to be reserved for S.Cs and S.Ts and OBCs in any particular examination, recruitment etc. and are not meant for determining the order of actual appointment or for the purpose of determining seniority.

Deemed date of promotion : A person is not entitled to arrears of pay and salary on the basis of deemed date which has been granted to the party unless he has actually functioned or worked on the said higher post. Even if employee prayed for relief of reinstatement with continuity of service and consequential benefits, he is not entitled for benefit of arrears of salary and back wages on the basis of deemed date of promotion since he had admittedly not performed and worked on the higher post. Jaysing Rangarao Raut v. MSEB, 2004 (4) Mh. L.J. 1038.

Termination of services : Powers of Education Officer : Termination Order : Not empowered to decide the issue : Jurisdiction with Tribunal : Senior employee not filed appeal against his termination : But new appointee challenged Termination Order at instance of Education Officer.- The petitioner was employed as Senior Clerk in aided School. He pointed out mismanagement and fraud committed by the respondent-Management of Government Fund. The Education Officer in?stituted enquiry. Though, the petitioner was permanent, he was terminated and new person was appointed in his place. The Education Officer refused to approve Order of appointment of fresh/new person stating that the permanent employee was terminated and new person is appointed on his post, without following due procedure, hence to be continued in service. The petitioner did not file Appeal against the Termination Order as he was continued. New appointee was terminated and filed Appeal. The School Tribunal held that the Education Officer is not the Competent Authority in respect of Order of termination and directed reinstatement on the post.

The Single Judge held that the Termination Order issued to respondent No. 1 was solely at the instance of the direction given by the Education Officer. The Education Officer is empowered to take appropriate action for illegalities committed by the School Management but not empowered to issue directions regarding termination of services appointed by the Man?agement. The School Tribunal rightly held that in the absence of the Education Officer disclosing statutory provision to issue such direction, the Order of Termination was liable to be set aside. The petition of Senior Clerk employed in School run by the Vasantdada Patil Shikshan Sanstha (Bhandup, Mumbai) was dismissed. Santosh Baliram Dalvi v. Bharti Ganpati Jadhav & Ors., 2007 (3) Mh.L.J. 647.

Age of superannuation : Retirement : Compulsory Retirement : Change in service condition : Administrative powers : No legal provision.- The respondent No. 4 working as teacher was compulsorily retired couple of years before age of superannuation. No provision either in the Act or Rules, which enables the Management to order compulsory retirement and the same is impermissible in law. When the field is occupied by a Statute, then the State Government cannot have recourse to the powers under Art. 162 of the Constitution of India and change the service conditions by invoking administrative powers. Until, the M.E.P.S. Rules, 1981 are amended, the procedure of compulsory retirement for Teaching or Non-Teaching Staff of Private Aided School sought to be introduced by Resolu?tion dated 9.9.1988 cannot be made effective. The Single Judge held that the Order passed by the School Tribunal quashing and setting aside the Order of compulsory retirement is legal and proper. Sukanya Apte & Anr. v. State of Maharashtra & Ors., 2007 (1) C.L.R. 986.

Section 4A - Director's power to hold or order holding of inquiries

[19] [(1) Notwithstanding anything contained in sub-section (6) of section 4 or any other provisions of this Act or the rules made thereunder, where in any case of alleged misconduct or misbehaviour of a serious nature or moral turpitude of an employee, -

(a)      an inquiry is held by an Inquiry Committee into such allegations and the Director is of the opinion that the Inquiry Committee has unreasonably exonerated the employee, he may call for and examine the record and proceeding of such inquiry for the purpose of satisfying himself as to the correctness of the decision on the basis of its findings, and may either annul, revise, modify or confirm the said decision or may direct the Inquiry Committee to make further inquiry for taking such additional evidence as they may think necessary or he may himself take or authorise many other officer not below the rank of the Education Officer to take such additional evidence; and while making an order under this clause, if the Director is satisfied that the charges of serious misconduct, misbehaviour, or as the case may be, moral turpitude have been substantially proved, he shall direct the Management to impose on such employee any of the penalties as specified in sub-section (4) :

Provided that the Director shall not record any order under this sub-section without giving the party affected thereby and the Management an opportunity of being heard; (b) the Management has either neglected or refused to hold an inquiry against such employee in accordance with the provisions of this Act and the rules made in that behalf, the Director shall direct the Management to initiate action within thirty days from the receipt of such direction for holding inquiry into the allegation against such employee and to complete the same in accordance with such provisions and rules.

(2) ???Where there is a failure on the part of the Management to initiate action as directed under clause (b) of sub-section (1) to hold an inquiry and to complete the same within the period prescribed under the rules the Director may himself hold, or direct any officer not below the rank of Education Officer to hold, such inquiry.

(3) ??While holding an inquiry the Director or the officer authorised by him shall follow the same procedure as is followed by the Inquiry Committee under the rules made under this Act as if the Director or the officer so authorised were an Inquiry Committee for the purpose of holding such inquiry.

(4) ??On holding such inquiry by the Director himself or on receipt of the report of the Inquiry Officer, if the Director is satisfied that the charges of serious misconduct, misbehaviour or, as the case may be, moral turpitude have been substantially proved, he shall, by an order in writing, direct the Management that a penalty of dismissal, removal from service, termination of service, or as the case may be, reduc?tion in rank as he may, in the circumstances of the case deem fit, be imposed on the employee concerned:

Provided that no such order shall be passed by the Director unless the employee and the Management concerned are given a reasonable opportunity of showing cause against the proposed order.

(5) ??The order of the Director under clause (a) of sub-section (1) or sub-section (4) shall be binding on both the Management and the employee and the same shall be complied with by the Management within such period as may be specified by the Director.]

NOTES

Objects and Reasons : This new section was introduced by Amendment 30 of 1987. The necessity was felt because when inquiry was held against employee alleged to be guilty of either misconduct, moral turpitude, wilful negligence of duty, incompetence and where major penalties are to be inflicted upon him. The duly constituted inquiry committee after following proper procedure mentioned in the rule 37 submits its findings to the management. A copy of the decisions and the findings also to be endorsed to the Education Officer or to the Dy. Director. Similarly a copy of the order is sent to the above authorities. All the steps are stipulated in Rule 37(6) of Rules, 1981. But there was no provision in the Act or Rules as to what further action Dy. Director was to take after receipt of such findings, decision and order. By inserting this section, the Director is empowered to call for and examine records and proceedings of the Inquiry Committee and if necessary he may annul, reverse, modify or confirm the said decision or may direct the Inquiry Committee to make further inquiry by taking additional evidence.

In short, the purpose of empowering Director to hold or order holding of inquiries under the Section is that the management of private school should not take lenient view in respect of guilty employee whose charges are proved. There is every possibility of "unreasonably exonerating" such guilty employee by the management. The Rules are silent in such cases, therefore, the section was inserted empowering the Director to act on the report submitted by the management after holding inquiry when manage?ment does not recommend any action even though the guilt has been proved in case of serious charges.

Scope of powers : Although Rule 28 stipulates Removal or Termination of service of employee when he is charged on the following grounds and when alleged guilt is proved after holding inquiry : Misconduct, Moral turpitude, Wilful and Persistent negligence of duty, incompetence. Section 4A restricts the scope of such inquiry in any case of alleged misconduct or misbehaviour of a serious nature or moral turpitude of an employee.

The Inquiry Committee is to be constituted in case of major charges and Rule 36 states about constituting such Inquiry Committee, and its func?tions. Rule 37 states about procedure of Inquiry Committee, findings and decisions. Minor charges are explained in Rule 32 and major charges have been explained in rule 28(5). Minor punishments are imposed by the School Committee.

"Unreasonably exonerated" : These expressions are not defined in the Act or Rules but it means that after making inquiry, preparing the proceed?ings of such inquiry and writing down the findings if there is reasonable ground to expect any punishment to be given to the guilty employee against whom inquiry was conducted and when the management attempts to protect the guilty even though facts of the case clearly indicate that the employee would have been held guilty, the Director can exercise the powers under the Section 4(A). These powers are of revisional nature.

Section 5 - Certain obligations of Management of private schools

(1)     The Management shall, as soon as possible, fill in, in the manner prescribed, every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy :

[20] [Provided that unless such vacancy is to be filled in by promotion, the Management shall, before proceeding to fill such vacancy ascertain from the Educational Inspector, Greater Bombay, [21] [the Education Officer, Zilla Parishad or, as the case may be, the Director or the officer designated by the Director in respect of schools imparting technical, vocational, art or special education,] whether there is any suitable person available on the list of surplus persons maintained by him, for absorption in other schools; and in the event of such person being available, the Management shall appoint that person in such vacancy.]

(2)     Every person appointed to fill a permanent vacancy [22] [except shikshan sevak] shall be on probation for a period of two years. Subject to the provisions of sub-sections (3) and (4), he shall, on completion of this probation period of two years, be deemed to have been confirmed :

[23] [Provided that, every person appointed as shikshan sevak shall be on probation for a period of three years.]

[24] [(2A) Subject to the provisions of sub-sections (3) and (4), shikshan sevak shall, on completion of the probation period of three years, be deemed to have been appointed and confirmed as a teacher.]

(3)     If in the opinion of the Management, the work or behaviour of any probationer during the period of his probation, is not satisfactory, the Management may terminate his services at any time during the said period after giving him one month's notice [25] [or salary [26] [or honorarium] of one month in lieu of notice.]

(4)     If the services of any probationer are terminated under sub-section (3) and he is reappointed by the Management in the same school or any other school belonging to it within a period of one year from the date on which his services were terminated, then the period of probation undergone by him previously shall be taken into consideration in calculating the required period of probation for the purposes of sub-section (2).

[27] [(4A) Nothing in sub-section (2), (3) or (4) shall apply to a person appointed to fill a permanent vacancy by promotion or by absorption as provided under the proviso to sub-section (1).

(5)     The Management may fill in every temporary vacancy by appointing a person duly qualified to fill such vacancy. The order of appointment shall be drawn up in the form prescribed in that behalf, and shall state the period of appointment of such person.

NOTES

Object : It prescribes certain obligation on the Managements of the private schools regarding filling up of permanent vacancy in a private school, probationary period of newly appointed employees, period of ap?pointment notice period for termination of services of probationer employ?ees and temporary appointments of employees.

Categories of Employees : According to Rule 10 of Rules 1981, employees are categorised into permanent and non-permanent. Non-permanent employees are divided further as temporary or on probation. When an employee is appointed purely on temporary vacancy for a specified period he is called temporary employee. For example, employee appointed on leave vacancy or on deputation or appointed on reserved post for a particular reason and particular period.

The Section provides that it is the duty of the management to fill in the vacancy which is of permanent nature as soon as such vacancy arises. Prior to appointment to be made the management must ascertain from the Appropriate Authority whether there is any suitable person available on the list of surplus persons maintained by the Education Officer or Education Inspector. Such surplus teachers who are permanent and who have been declared surplus have to be absorbed or repatriated in the school under Rule 26 and Rule 27 of Rules 1981. These surplus teachers have priority and they have to be appointed on the vacant posts. Their names are forwarded by the Dy. Director of Education who maintains the Register of Surplus Teachers.

Appointment against reserved vacancy/post : Non-availability of specific reserved category candidate : Whether oral appointment is valid : Rule 9(9) of the MEPS Rules, 1981 - The Appellant was appointed as Lecturer in Junior College against reserved vacancy for academic year 1989-90. However, no such reserved category candidate (specific category) was available and therefore next academic year, the Appellant continued in service. He signed the muster but he did not have any Order of Appoint?ment. The Single Bench held that Section  5 does not contemplate issuing of oral Appointment Order. Therefore, the School Tribunal erroneously held that the Appellant was continuing in academic year 1990-91 on the basis of Oral Order. He cannot be said to have been appointed on temporary basis as the post was reserved. The Order of School Tribunal was quashed and set aside. Dheerajlal Talakchand Sankalchand Shah College of Commerce v. Ganpat Saraswat, 2008 (3) Mh.L.J. 455.

De-reservation of reserved post.- The teacher who continued to serve on reserved post when appointed in dereserved would be entitled to permanency without undergoing probation from the date on which the post is de-reserved and not from the date of the initial appointment against the reserved post.- Savita Pradeep Datar v. State of Mah, & Ors., 2008 (3) Mah. L.J. 923.

Asst.H.M. : Promotional post : Ad hoc arrangement : Whether Appeal maintainable : The Respondent No. 3 was given the additional charge of the post on ad hoc basis as a stop-gap arrangement. When a person is made to act as an in-charge in a higher cadre on account of administrative exigencies the said assignment cannot be termed as promo?tion and does not cloth him with any right qua the promotional post. He is not even paid in the scale of pay admissible to the promotional post. The Appeal u/s of MEPS Act, 1977 not maintainable against an Order of appointment as an in-charge. The Impugned Orders passed by the learned Single Judge and also the Order passed by the School Tribunal was quashed and set aside. Nagpur Shikshan Mandal & Anr. v. Haribhau Nathuji Mohod & Ors., 2008 (1) Bom.L.R. 300.

Temporary appointment : Right to the post of untrained Teacher : Statutory requirement of eligibility of training qualifications.- It is the statutory requirement that teacher need to possess training qualification and in the absence of which such a candidate cannot claim any right to the post. The respondent No. 1 failed to acquire training qualification inspite of in continuous service of five years. An untrained teacher does not have any right to the post number. His termination was held as valid by Single Judge. ShreeShiv Chhatrapati Education Society & Anr. v. Narendra Kashinath Chaudhari & Anr., [Judgment delivered by Hon'ble Mr. Justice A. P. Deshpande in Writ Petition No. 2917 of 1993, decided on 2.4.2007 (Unreported)].

Claim of permanency.- When a teacher who has not gone through a regular process of selection against a permanent vacant post cannot have a claim of permanency only on the ground that he had worked for more than two years in a particular school.- President, Late Shri Ramchandra Patil Shikshan Sanstha, Kunikonur & Ors. v. Haiderali Mahmadhanif Inamdar & Anr., 2008 (4) Mah. L.J. 159.

Legality and validity of appointment of Petitioner : Termination Order held valid without arriving at proper fact finding : Hence, the findings were reverse and set aside by the Single Judge and the matter remanded to the School Tribunal to decide Issue afresh.- Damyanti Ramji Khandait (now) Smt. Prabhakar Chandewar v. Navodaya Education Society, Mahagaon, 2008 (2) Mh.L.J. 826.

Termination at the end of the probation or during the period of probation is seen to be only prerogative left to the management.-Failure of the management to record in the order of termination when the performance is not satisfactory would not vitiate the termination.- Mushtaq Shah s/o Meheboob Shah v. Haidariya Urdu Education Society, Kapustalani & Ors., 2008 (4) Mah. L.J. 734.

1.        Rights of the employee :

(i)       Employees shall be permanent and non-permanent. Non-permanent employees may be either temporary or on probation.

(ii)      A temporary employee is one who is appointed to temporary vacancy for a fixed period.

2.        The appointment may be purely temporary in a leave or deputation vacancy (Schedule D).

3.        The service of an employee shall be terminated with a notice of termination.

4.        If services are terminated without notice (oral termination), or removal of his name from muster, it falls under "Otherwise terminated" and the employee has right to approach the Tribunal.

5.        The services of a temporary employee cannot be terminated by the Management without giving one calendar month's salary (pay and allow? ances, if any) in lieu of notice. Rule 28 (1) says, "The services of a temporary employee other than on probation may be terminated by the Management at any time without assigning any reason after giving one calendar month's notice or by paying one month's salary (pay and allowances, if any) in lieu of notice."

In the case of an employee entitled to vacation, the notice shall not be given during the vacation or within one month's period after the vacation.

6.        Every person appointed to fill a permanent vacancy shall be on probation for a period of two years, (Section 5(2) of the Act) though the letter of appointment describes the employee as temporary. National Education Society's High School and Junior College v. Mrs. Lolomool Monacherry, 1987 (2) Bom. C.R. 521.

7.        The services of a probationer cannot be terminated if his work or behaviour is satisfactory during the period of probation.

8.        If an employee is on probation for two years he shall be deemed to be made permanent after completion of two years. His services cannot be terminated without enquiry contemplated under Rules 31 and 36 of Rules, 1981.

9.        The general law is that the appointing authority terminates the services of the employee. But in the Act it is bit different. The School Committee appoints an employee other than Head or Asstt. Head, but the Management terminates the services of an employee.

Section 2(12) defines Management "Management" in relation to a school, means,

(a)      In the case of a school administered by the State Government, the Department;

(b)      In the case of a school administered by a local authoriy that local authority, and

(c)      In any other cases, the person or body of persons whether incorporated or not, and by whatever name called, administering, such school. Madanlal J. Dalmia v. R.R. Harijan, W.P. No. 2205 07/ of 1985 delivered by S.P. Bharucha, J. (Unreported). It means Secretary/Chairman/President of the trust or the society which is managing the school can terminate the service of the employee. The termination letter signed by the Principal/head master is an illegal order which can be challenged.

If the resignation was taken under duress, the employee can approach the Tribunal as his services are otherwise terminated. Yeotmal District Co-op. Bank Ltd. v. Ramchandra, 1977 Mah. L.J. 480.

Appointment of the concerned teacher must specify the requirements of section 5(1) of the Act.- National Educational Social Trust v. State of Maharashtra & Ors., 2008 (4) Mah. L.J. 778.

In this case appellant who was a temporary appointee for a specific period against a reserved post for Scheduled Tribe could not claim that he ought to have been treated to have been appointed on probation.- Prakash Shivraj Dalvi v. State of Mah. & Ors., 2008 (4) Mah. L.J. 565.

Accordingly, while Rules 14 and 15 of the MEPS Rules, 1981 cannot override the provisions of sub-Section (3) of Section 5 of the MEPS Act, 1977 it has to be said that the requirements of sub-Rule (6) of Rule 15 would be a factor which the School Management has to take into consideration while exercising the powers which it undoubtedly has and is recognised under sub-Section (3) of Section 5 of the MEPS Act, 1977. The sufficiency of the materials before the School Management while purporting to pass the Order of Termination on 1st August, 1994. Both by the School Tribunal and the High Court, the Confidential Report which has been produced on behalf of the School Management does not inspire confidence on account of the different dates which appear both on Part-I and Part-II of the said Report. The date in the said Part is shown as 4th July, 1994, whereas the date at the end of Part-II, which is the form of the Confidential Report giving details of the teacher's performance, is dated 24th June, 1994, which appears to be in line with the date given of the forwarding letter written by the Head Mistress to the Secretary of the Society. There is a third date which appears on Part-I of the Self-Assessment Form which shows that the documents were presumably forwarded to the Management of the School on 6th August, 1994, which is a date which is prior to the date of termination of the services of the Respondent No. 1, namely, 1st August, 1994. This merely goes to show that the said documents are not above suspicion and that the requirements of Rule 15(6) and Rule 14 had not been complied with prior to invocation by the School Management of the powers under sub-Section (3) of Section  5 of the MEPS Act, 1977. Progressive Education Society & Anr. v. Rajendra & Ors., 2008 (3) SCC 310.

Applicability of Section  5(4A) : The Respondent was appointed as a Head Master w.e.f. 30-11-1985 on probation for the period of two years. The Managing Board decided to extend his probationary period further by one week. Despite this extension by another letter, the Society terminated the services of the respondent at the end of the initial probationary period of two years. The Respondent filed an appeal in the School Tribunal which set aside the termination order and allowed him to continue as the Head Master. The petitioner challenged the order of the Tribunal.

It was held that the appointments which were made prior to the amendment came into effect and the terms of such appointments cannot be affected by the subsequent amendment of the Act, unless the amend?ment expressly so provide. The appointment of the Respondent is not affected by the amendment of 1987. Services of such Head Master were terminated after expiry of probation period on the ground that his services were found unsatisfactory, there will not be any question of applying the amendment retrospectively. Premier Education Society v. I. K. Kripalani, 1989 Mah. L.R. 109 : 1988 (3) Bom. C. R. 365.

Circumstances behind Termination : Mere form of the order terminating services simpliciter is not conclusive. If infact the order of termination is passed in attendance of circumstances which indicate that it is by way of punishment such circumstances can be looked into and the order of termination can be quashed if it was found that it was in fact by way of punishment. Jarnail Singh v. State of Punjab, AIR 1986 SC 1626.

Termination - When Court can go behind order : If the Court is satisfied that the termination of services is not so innocuous as claimed to be, and if the circumstances further disclose that it is only a camouflage with a view to avoid as warranted by Art. 311(2) of the Constitution, then such termination is liable to be quashed. Om Prakash Goel v. Himachal Pradesh Tourism Development Corporation, 1991 (II) C.L.R. 350 (SC).

Appointment of teacher on part-time basis.- The respondent acquired qualifications for being appointed as trained teachers and his appointment in the same year as well as in the next year was on part-time basis with 12 o'clock hours and it was approved by the respondent No. 2 as such. It was held by the High Court that there is no question of appointing the respondent on such probation on such post. In the case of Hindustan Education Society v. Sk. Kaleem Sk. Gulam Nabi & Ors.. AIR 1997 SC 2126 the Supreme Court held that as regards permanent appointments, they are regulated by sub-sections (1) and (2) of section 5 of the Act according to which management shall, as soon as possible fill up, in the manner prescribed, every permanent vacancy in a private school by appointment of a person duly qualified to fill in such vacancy. Every person so appointed shall be put on probation for a period of two years subject to the provisions of sub-sections (4) and (5). He shall, on completion of probation period of two years be confirmed. Under these circumstances the appointment of the respondent cannot be considered to be a permanent appointment.- Jaysingpur Shikshan Prasarak Mandal & Ors. v. Balasaheb Yashwant Sapkal, 2008 (4) Mah. L.J. 682 : 2008 (4) Bom. C.R. 410.

Section 6 - Obligations of Head of a private school

(1)     [28] [If ?

(a)      the Head of a private school or any person duly authorised by him in that behalf, -

(i)       makes unauthorised alterations in the date of birth of any student recorded in the General Register of the school or gives a school leaving certificate with the date of birth different from that recorded in the General Register; or

(ii)      admits any student from an unrecognised educa?tional institution without a written order of the Deputy Director; or

(iii)     gives accelerated promotion to, or detains any student, either of his own accord or at the instance of the Management, in contravention of the rules made in that behalf; or

(b)      the employee of a private school is dismissed or removed or his services are otherwise terminated on account of misconduct, gross negligence of duties, moral turpitude, misappropriation of school money or material, negligence or misconduct or both in connection with the examinations or creation of communal disharmony;] then the Director may, after making such enquiries as he thinks fit, by an order in writing debar the Head or such authorised person [29] [or such employee] from holding that post for a period of five years from the date of the order. If after the said period of five years, the Head or such authorised person [30][or such employee] is found to have committed any of the acts aforesaid again, then he may, after giving him a reasonable opportunity of being heard, be permanently debarred by the Director from holding such post in any private school.

(2)     After making any order under sub-section (1), the Director shall cause the name of such Head or authorised person [31] [or employee] to be entered in a Black List Register maintained for the purpose, and communicate the name of the Head or such person [32] [or employee] to all the Managements of private schools in the State.

NOTES

The section prescribes certain obligations on head of the private schools regarding unauthorised alteration in the date of birth of any student in the General Register, admission of students from unrecognised institutions, grant of accelerated promotion to any student in contravention of rules made in that behalf etc. and empowers the Director of Education to debar the Head of the School for five years from holding that post after making necessary enquiry in the matter, and to include the name of such debarred person in the Black List Register maintained for the purpose and communicate the same to all other Management of private schools in the State.

Section 7 - Procedure for resignation by employees of private schools

If any employee intends to resign his post in any private school, at any time after the appointed date, he shall draw up a letter of resignation in duplicate and sign both the copies of that letter and put the date thereon. He may then forward one copy to the Management by registered post and keep the other copy with him.

NOTES

Complaint about Forced Resignation : Section 7 of the Act read with Rule 40 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, deals with the procedure for tendering resignation but no provision is made creating a forum for adjudication upon such resignation tendered by the employees. It is, therefore, clear that the Education Officer, Zilla Parishad, Nagpur, erred and acted without jurisdiction in entertaining the complaint of the respondent No. 2 about the forced resignation. Shriram Swami Shikshan Sanstha v. Education Officer, Ziila Parishad, 1984 Mah. L.J. 31 : 1985 C.L.R. 6.

Undated Blank Resignation taken while appointing : Only the school Tribunal has jurisdiction to entertain the appeal on this issue.

The alleged resignation did not conform with the requirements of Section 7 of the Act and Rule 40 was also not complied with. The subsequent conduct of the management also proved that there could not have been any resignation in existence which could be accepted. The contention of the petitioner was that while appointing him on 2-3-83 as a Head Master, an undated blank resignation was taken by the management which was not legal nor could have been acted upon. To say the least, the petitioner had not tendered any resignation on 26-2-1983. The finding recorded by the school was based on misreading of evidence and perverse. Chandrakant Damodar Lone v. Chatrapati Shivaji Edu. Society, 1988 (1) C.L.R. 175 : 1988 Lab. L. N. 512 (Bom.) (D.B.).

Valid resignation : Original letter indicated that the Petitioner was desirous of securing long leave to undertake course of B.Ed. with last sentence that this may be treated as resignation. Therefore, there was no intention to resign. It did not give notice of duration of 3 months as required under Rule 40 and as such the letter was invalid which had to be ignored. J. B. Shaikh v. N.Z. Kulange, 1992(1) C.L.R. 414 (Bom. H.C.).

Voluntary Resignation or otherwise : There was complaint containing allegations of moral turpitude against the teacher. When management showed complaint letters to the Respondent teacher, he tendered resignation out of shameful behaviour of his own. His resignation was accepted by the management. But the teacher retracted his resignation after 15 days on the ground that it was not tendered voluntarily since he was confused when Committee confronted him with written complaints from students. It was contended that he resigned due to pressure. The teacher filed appeal in the Tribunal which held that he resigned due to pressure and it was not a case of voluntary resignation. In a Writ Petition before High Court it was held that he tendered resignation out of fear of the exposure and social scandal as result of his unnatural activities. The contention that the management was not entitled to accept the resignation before the expiry period of three months was held to be without merit. In order to find out substitute for post, such time is provided for the benefit of managment. The order of the Tribunal was set aside. Banda Navbharat Shikshan Prasarak v. Raghunath G. Manorikar, 1992 (II) C.L.R. 956 (Bom. H.C.).

Forced resignation - act of employer : It is an act of employer. Section 9(1) covers case of such resignation. Shriram Swami Shikshan Sanstha v. Education Officer, 1984 Mah. L.J. 31.

Mode of despatch : Notice period for Resignation :- Resignation was not sent by registered post. Expression used in section 7 is that the employee may forward one copy of the resignation to the management by registered post. It cannot be interpreted to mean that the resignation must be regarded as invalid in every case where it is not sent by registered post. It was held by Single Judge that the Tribunal erred in holding that resignation must be regarded as invalid on the ground that it was not sent by registered post.

Provisions introduced for the benefit of the Management in order to enable them to make necessary arrangements. It is open to management to accept the resignation by payment of salary in lieu of notice period. The Tribunal erred in setting aside the order of termination on the ground of acceptance of resignation within 20 days.

The Tribunal has also held that the Management has not denied the allegation that the resignation was forced. This finding also is incorrect in view of the fact that in paragraphs 7 and 8 of the written statement, there was a specific denial of the allegation that the resignation was forced. In these circumstances, the order passed by the School Tribunal is unsustainable on all the three grounds which weighed with the Tribunal. Barshi Education Society, Barshi v. Ashok Ganesh Kulkarni, 2004 (2) C.L.R. 592 : 2004 Vol. 106 (3) Bom. L.R. 538 : 2004 (3) Mh. L.J. 587.

Resignation by Teacher : Facts and Circumstances behind each case of forced resignation : Resignation not forwarded by registered post need not be treated as invalid in every case irrespective of surrounding circumstances. What must be emphasized is that where an employee seeks to contend that his resignation was not voluntary, the Tribunal must decide that question on the basis of the evidence before it. Neminath Jain Bhramacharya Ashram (Jain Gurukul) v. Rajendra Sitaram Nikam, 2004 (2) Mh. L.J. 909.

Conditions of service : Tendering of resignation.- The Hon'ble School Tribunal erred in holding that resignation was not voluntary. The order of reinstatement set aside. Withdrawal of a resignation distinct from asserting that the resignation made earlier was forced and involuntary. Contention that letter of resignation may be withdrawn any time before it is accepted is untenable. Karachi Education Society & Ors. v. Pruthviraj R. Merchant & Ors., 2006 (2) Bom.C.R. 926 : 2005 (1) C.L.R. 638 : 2005 (1) Mh.L.J. 1035.

Tender of resignation.- The letter of resignation dated 5.9.1990 tendered on 18.12.1990 with an intention that it takes effect from June, 1991. Merely because resignation was tendered in person and not sent by registered post it cannot be said to be illegal. Merely because the notice covers a part of the vacation it would not vitiate the resignation itself. Hon. Secretary, Talini Imadadiah Committee M........ High School, Ratnagiri & Anr. v. Wasif Pasha Tajoddin Jagirdar, 2006 (2) Bom.C.R. 924 : 2006 (1) C.L.R. 123 : 2005 (4) Mh.L.J. 1064; NJB Ashram v. Rajendra, 2004 (6) Bom.C.R. 472 : 2004(2) Mh.L.J. 909 referred to.

Resignation of employee : Absence of date.- The petitioner filed appeal u/s. 9 challenging his discontinuation from services. The management contended that there was no termination and petitioner had submitted resignation, which was duly accepted and same, was also communicated to the petitioner. The resignation in the handwriting of petitioner duly signed by him was sent by registered post to the management. Mere fact that said resignation was undated will not make any material difference and will not affect the validity of the resignation. Absence of date is not a factor, which will show that the resignation was involuntary. Awadbin Ahamad v. Presiding Officer, School Tribunal & Ors., 2006 (1) All M.R. 771 : AIR 2006 Bom. 214 : 2006 (2) Mh.L.J. 215.

Section 8 - Constitution of School Tribunals

(1)     The State Government shall, by notification in the Official Gazette, constitute one or more Tribunals to be called "School Tribunals" and define the jurisdiction of each Tribunal in such notification.

(2)     A Tribunal shall consist of one person only to be appointed by the State Government.

(3)     A person shall not be qualified for appointment as a Presiding Officer of a Tribunal, unless, -

(a)      he is holding or has held a judicial office not lower in rank than that of Civil Judge (Senior Division);

(b)      he has practised as an Advocate or Attorney for not less than seven years; or

(c)      he is holding or has held an office not lower in rank than that of Under Secretary to Government, Assistant Commissioner of Labour or Deputy Director of Education in the State.

(4)     The appointment of a person as a Presiding Officer of a Tribunal may be on a full time or part-time basis, and may be for such period or periods, but not exceeding five years in the aggregate, as the State Government may, from time to time, in each case decide.

(5)     The remuneration and other conditions of service of the Presiding Officer shall be determined by the State Government.

(6)     The State Government shall make available to the Tribunal such ministerial staff as may be necessary for the discharge of its functions under this Act.

(7)     All expenditure on account of the remuneration, pension or provident fund contribution, leave allowance and other allowances and facilities, which may be admissible to the Presiding Officer and the staff placed at his disposal, shall be met from the Consolidated Fund of the State.

(8)     If any vacancy, other than a temporary vacancy occurs, in the office of the Presiding Officer of a Tribunal, the State Government shall, as soon as possible, appoint another qualified person to fill the vacancy. Any proceedings pending before the former Presiding Officer may be continued and disposed of by his successor from the stage at which they were, when the vacancy occurred.

NOTES

New School Tribunals have been constituted at following places : Bombay, Pune, Nasik, Nagpur, Amravati and Aurangabad, Kolhapur. Fur-ther, Additional School Tribunal, Pune (Solapur) has been constituted for the districts of Solapur and Ahmednagar. Addnl. School Tribunal (Nagpur) (Chandrapur) for Bhandara, Chandrapur, Gadchiroli and Wardha Districts and Addnl. School Tribunal, Mumbai (Navi Mumbai) for Thane District.

If the Presiding Officer to man the Tribunal under Section 8 is not appointed on the Tribunal on appointment date of the order, then complaint filed by employee under Section 28(1) of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practice Act, 1971 filed before the appointment of Presiding Officer is maintainable, but complaint under Section 28(1) of M.R.T.U. and P.U.L.P. Act is impliedly barred. Panchsheel High School Nagpur v. Shamrao Ramji Shende, W. P. No. 2442/1981, decided on 11/14/16.12.1981, by Jamdar, J. (unreported).

Objection to jurisdiction: The competence of a Court to try a case goes to the very route of the jurisdiction and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection to the local jurisdiction of a Court can be waived. Section 10(1) of the M.E.P.S. Act, 1977, provides that for the purpose of admission, hearing and disposal of appeal, the Tribunal shall have the powers as vested in an Appellate Court under the Code of Civil Procedure and shall also have the power to stay the operation of any order against which the appeal is made on such terms and conditions as it deems fit.

Where no objections were raised before the Tribunal that School Tribunal at Nagpur had no jurisdiction to hear appeal of the respondent, the objection about territorial jurisdiction raised petition could not be entertained since it was not shown that because of lack of the territorial jurisdiction there was failure of justice. Kankubai S. Trust v. Kamal D. Khajurkar, 1992 Mh. L. J. 216.

Appointment of Presiding Officer in consultation with High Court: Presiding Officer of the Tribunal must be appointed in consultation with High Court from categories mentioned in Section 8(3)(a) and (b) alone. Krishna Chandra v. Sindh Hyderabad N. C, 1987 Mh. L. J. 783.

SCHEDULE

No. PST. 1083/181/SE-3-Cell. -

Whereas under Government Notification, Education and Employment Department, No STR. 1981/2/SE-3/Cell, dated the 13th July. 1981 (hereinafter referred to as "the said notification") issued under sub-section (1) of Section 8 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Mah. III of 1978 (hereinafter referred to as "the said Act"). the Government of Maharashtra constituted, inter alia, the School Tribunal, Nagpur and the School Tribunal, Aurangabad (hereinafter referred to as "the said Tribunals"); and defined their respective jurisdictions.

And whereas, by Government Notification, Revenue and Forests De?partment, No. REN. 4381/458/4567-(987) M 1-0, dated the 13th August, 1982, issued under sub-section (1) of Section 4 of the Maharashtra Land Revenue Code, 1966 (Mah. XLI of 1966) (hereinafter referred to as "the said Code"), the areas of the revenue districts of Osmanabad, Solapur and Beed were divided and altered to form four revenue districts of Osmanabad, Latur, Beed and Solapur.

And whereas, by Government Notification, Revenue and Forests Department, No. REN. 5181/4412-(94())/M-10, (dated the 23rd August, 1982 issued under sub-section (1) of Section 4 of the said Code, the area of the revenue district of Chandrapur was also divided to form TWO revenue districts of Chandrapur and Gadchiroli; And whereas, it has become necessary to extend the jurisdiction of the said Tribunals to the district of Gadchiroli and Latur, respectively;

Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 8 of the said Act, Government of Maharashtra hereby extends the jurisdiction of the School Tribunal, Nagpur to the district of Gadchiroli and the School Tribunal, Aurangabad to the district of Latur and for the purpose amends the said notification as follows, namely :

(a)      At Serial Number 3, in column 3, after entry (8), the following entry shall be added, namely:

"(9) Gadchiroli";

(b)      At Serial Number 4, in column 3, after entry (6), the following entry shall be added, namely:

"(7) Latur".

M. G. G., Pt. IV-B, dated 9th Feb., 1983. P. 313.

No. PST. 1083/181/SE, 4-Cell. -

Whereas, under Government Noti?fication. Education and Employment Department, No. STR. 1081/2/SE-3-Cell, dated the 13th July, 1981 (hereinafter referred to as "the said notification") issued under sub-section (1) of Section 8 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Mah. III of 1978) (hereinafter referred to as "the said Act"), the Government of Maharashtra constituted inter alia, the School Tribunal, Nagpur and the School Tribunal, Aurangabad (hereinafter referred to as "the said Tribu?nals"), and defined their respective jurisdictions;

And whereas, by Government Notification, Education and Employment Department, No. PST, 1083/181 /SE-3-Cell, dated the 9th February, 1983, the said notification was amended and the jurisdiction of the School Tribunal, Nagpur and the School Tribunal, Aurangabad was extended respectively, to the districts of Gadchiroli and Latur;

And whereas, the Government of Maharashtra has decided to reconsti?tute the said Tribunals as specified in column 2 of the Schedule hereto, redefine the jurisdiction of both the Tribunals as mentioned against each of them in column 3 of the said Schedule, and directs that the appeals pending before the School Tribunal, Nagpur pertaining to the districts of Amravati, Buldhana, Akola and Yavatmal shall be transferred to the School Tribunal Amravati and Aurangabad;

Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 8 of the Act and of all other powers enabling it in that behalf, the Government of Maharashtra hereby reconstitutes the said Tribunals as specified in column 2 of the Schedule hereto, defines the jurisdiction of both the Tribunals as *mentioned against each of them in column 3 of the said Schedule, and directs that the appeals pertaining to the districts of Amravati, Buldhana, Akola and Yavatmal pending before the School Tribu?nal, Nagpur, shall be transferred to the School Tribunal Amravati and Aurangabad; and for that purpose amends the said notification, as follows namely: In the Schedule to the said notification, for serial numbers 3 and 4 and the entries relating thereto, the following serial numbers and the entries shall be substituted, namely:

SCHEDULE

M.G.G., PL IV-B, dated 13.4.1983, p. 415).

Raigad District attached to School Tribunal, Pune :

No. PST. 1085/288/SE-3-Cell. Whereas, under Government Notification, Education and Employment Department, No. STR. 1081/2/SE-3-Cell, dated the 14th July, 1981 (hereinafter referred to as "the said notification") issued under sub-section (1) of Section 8 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Mah. III of 1978) (hereinafter referred to as "the said Act"), the Government of Maharashtra constituted inter alia, the School Tribunal, Bombay and the School Tribunal, Pune (hereinafter referred to as "the said Tribunals"), and defined their respective jurisdiction;

And whereas, the Government of Maharashtra has decided to reconsti?tute the said Tribunals as specified in column 2 of the Schedule hereto, to redefine the jurisdiction of the said Tribunals as mentioned against each of them in column 3 of the Schedule and to transfer the appeals pending before the School Tribunal, Bombay, pertaining to the district of Raigad to the School Tribunal, Pune;

Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 8 of the said Act and of all other powers enabling it in that behalf, the Government of Maharashtra hereby reconstitutes the said Tribunals as specified in column 2 of the Schedule hereto, redefines the jurisdiction of the said Tribunals as mentioned against each of them in column 3 of the said Schedule and directs that the appeals pertaining to the district of Raigad pending before the School Tribunal, Bombay, shall be transferred to the School Tribunal, Pune and for that purpose amends the said notification, as follows namely :

In the Schedule to the said notification, for serial numbers 1 and 2 and the entries relating thereto, the following serial numbers and the entries shall be substituted namely :

SCHEDULE

(M.G.G., Pt. IV-B, dated 26th March, 1987, p. 361.)

No. PST. 1191(3/91)/SE-3. Cell. - Whereas, by Government Notification, Education and Employment Department No. ST 1981/2/SE-3, Cell, dated 13th July, 1981 (hereinafter referred to as "the said notification") issued under the sub-section (1) of section 8 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Mah. III of 1978) (hereinafter referred to as "the said Act") the Government of Maharashtra constituted, inter alia, the School Tribunal, Bombay and defined its jurisidiction.

And whereas, the Government of Maharashtra has decided to constitute the School Tribunal, Nasik, for the district of Thane, Nasik, Dhule and Jalgaon and to redefine the jurisidiction of the School Tribunal, Bombay;

Now, therefore, in exercise of the powers, conferred by sub-section (1) of the section 8 of the said Act, the Government of Maharashtra hereby, constitutes, with effect from 15th September, 1992, the School Tribunal at Nasik as mentioned in column 2 of the Schedule hereto and defines the jurisdiction of the School Tribunal, Nasik and redefines the jurisidiction of the School Tribunal, Bombay as mentioned in column 3 of the said schedule and directs that the appeals pertaining to the districts of Thane, Nasik, Dhule and Jalgaon shall be transferred to the School Tribunal, Nasik and for the purpose amends the said notification, as follows namely-

In the Schedule to the said notification -

(a)      at serial number 1, in column 3, for the existing entries, the following shall be substituted namely :

The districts of

1.        Bombay and Bombay Suburban,

2.        Raigad

3.        Ratnagiri,

4.        Sindhudurg".

(b)      after serial number 4, the following serial number and entries shall be added, namely:

5.        School Tribunal, Nasik The districts of ?

1.        Thane

2.        Nasik,

3.        Dhule,

4.        Jalgaon".

SCHEDULE

Noti. No. PST 1191(3/91) SE 3-Cell dated 5.9.1992/M.G.G., Pt. IV-B dated 24.9.1992 p. 1563.

No. PST. 1191/(3)/(91)/SE-3-Cell. ?

Whereas by Government Noti?fication, Education and Employment Department, No. STR, 1081/2/SE-3-Cell, dated 13th July, 1981 (hereinafter referred to as "the said notification") issued under sub-section (1) of section 8 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Mah. III of 1978) (hereinafter referred to as "the said Act,") the Government of Maharashtra constituted, inter alia, the School Tribunal, Bombay and the School Tribunal, Pune (hereinafter referred to as "the said Tribunals") and defined their respective jurisdiction ;

And whereas, by Government Notification No. PST. 1085/288/SE-3-Cell, dated the 26th March, 1987, the Raigad District is transferred from the jurisdiction of the School Tribunal, Bombay to the School Tribunal, Pune;

And whereas, by Government Notification No. PST. 1191/3/91)/SE-3-Cell, dated the 5th September, 1992, while constituting the School Tribu?nal, Nashik, the jurisdiction in respect of the Raigad District was inadvert?ently shown with the School Tribunal, Bombay;

And whereas, the jurisdiction in respect of the appeals from the Raigad District is with the School Tribunal, Pune only; it is necessary to redefine the jurisdiction of the School Tribunal, Bombay.

Now, therefore, in exercise of the powers conferred by sub-section (1) of section 8 of the said Act and of all the powers enabling it in that behalf, the Government of Maharashtra hereby redefines the jurisdiction of the School Tribunal, Bombay, with effect from the 5th September, 1992 and amends the said notification as follows, namely:-

In Schedule to the said notification, at serial number 1 in Column 3, for the existing entries, the following shall be substituted, namely :-

"The district of ?

(1)     Bombay and Bombay Suburban.

(2)     Ratnagiri.

(3)     Sindhudurga".

(1993 Mh. G. G., Part IV-Ba, p. 173).

Constitution of an additional School Tribunal at Kolhapur w.e.f. 1.11.1994 and its jurisdiction

Whereas by Government Notification, Education and Employment Department No. STR. 1081/2/SE-3-Cell, dated the 13th July, 1981 (here?inafter referred to as "the said Notification issued under sub-section (1) of section 8 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Mah. III of 1978) hereinafter referred to as "the said Act"), the Government of Maharashtra constituted inter alia, the School Tribunals Bombay and the School Tribunal, Pune and redefined the jurisdiction of these Tribunal from time to time ;

And whereas, the Government of Maharashtra has decided to consti?tute a School Tribunal at Kolhapur for the districts of Kolhapur, Sangli, Satara, Ratnagiri and Sindhudurg and for that purpose to redefine the jurisdiction of the School Tribunal, Bombay and the School Tribunal, Pune;

Now, therefore, in exercise of the powers conferred by sub-section (1) of section 8 of the said Act the Government of Maharashtra hereby -

(i)       constitutes with effect from the 1st November, 1994 the School Tribunal at Kolhapur as mentioned in column 2 of the Schedule hereto and defines the jurisdiction of the School Tribunal, Kolhapur as mentioned in column 3 thereof; and

(ii)      Redefines the jurisdiction of the School Tribunals at Bombay and Pune respectively mentioned in column 2, as specified in column 3 against each of them of the said schedule, and directs that the appeals pertaining to the districts of Kolhapur, Sangli, Satara, Ratnagiri and Sindhudurg shall be transferred to the School Tribunal, Kolhapur and for that purpose amend the said notification as follows, namely :-

In the Schedule to the said notification -

(a)      at Serial No. 1, in column 3, for the existing entries, the following entries shall be substituted, namely :-

The districts of -

(1)     Bombay and Bombay Suburban,

(b)      at Serial No. 2 in column 3, for the existing entries, the following entries shall be substituted namely :-

The districts of - (1) Pune, (2) Ahmednagar, (3) Solapur, (4) Raigad, (c) after Serial No. 6, the following Serial No. and entries shall be added, namely:-

7. School Tribunal, Kolhapur.

The Districts of- (1) Kolhapur, (2) Sangli, (3) Satara, (4) Ratnagiri, (5) Sindhudurg."

SCHEDULE

M.G.G. Part IV B, dated 17.11.1994, pp. 943-945.)

Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act (3 of 1978),Section 8(1) - Constitution of Additional School Tribunals at Pune and Nagpur w.e.f. 1.11.1996 and redefining of jurisdiction.

Whereas, by Government Notification, Education and Employment Department No. STR. 1081/2/SE-3-Cell, dated the 13th July, 1981 (here?inafter referred to as "the said notification") issued under sub-section (1) of section 8 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Mah. III of 1978) (hereinafter referred to as "the said Act") the Government of Maharashtra constituted inter alia, the School Tribunal, Mumbai, the School Tribunal, Pune, the School Tribunal, Nagpur and the School Tribunal, Nashik and redefined the jurisdiction of these Tribunals from time to time;

And whereas, the Government of Maharashtra has decided to constitute Additional School Tribunal at Pune and Nagpur for the District of Solapur and Ahmednagar, (2) the district of Bhandara, Chandrapur, Gadchiroli and Wardha and for that purpose is necessary to redefine the jurisdiction of the School Tribunals at Pune and Nagpur.

Now, therefore, in exercise of the powers conferred by sub-section (1) of section 8 of the said Act, the Government of Maharashtra, hereby constitutes with effect from 1st day of November, 1996 the Additional School Tribunals at Pune and Nagpur as mentioned in column (2) of the Schedule hereto and defines the jurisdiction of the Additional School Tribunals, Pune and Nagpur as mentioned in column (3) of the said Schedule and redefines the jurisdiction of the School Tribunals at Pune and Nagpur respectively as specified in column (3) of the said schedule and directs that to the appeals pertaining to the District of Solapur and Ahmednagar shall be transferred to the Additional School Tribunal, Pune and the appeals pertaining to the Districts of Bhandara, Chandrapur, Gadchiroli and Wardha shall be transferred to Additional School Tribunal, Nagpur and for that purpose amend the said notification as follows, namely -

In the Schedule to the said Notification -

(a)      in the entry at serial No. 2, in column 3, for the existing entries, the following entries shall be substituted, namely -

"The districts of (1) Pune (2) Raigad."

(b)      in the entry at serial No. 3 in column 3, for the existing entries the following entries shall be substituted, namely -

"The district of (1) Nagpur."

(c)      in the entry after serial No. 7, the following serial No. and entries shall be added, namely -

SCHEDULE

(M.G.G. dated  21.11.1996, Pt. IV-B, pp. 1301-1302).

No. SSN. 1095/(463)/SE-2 :

Whereas, by Government Notification, Education and Employment Department No. STR. 1081 /2/SE-3-Cell, dated the 13th July, 1981 (hereinafter referred to as "the said notification") issued under sub-section (1) of section 8 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Mah. II of 1978) (hereinafter referred to as "the said Act") the Government of Maharashtra constituted inter alia, the School Tribunal, Mumbai, the School Tribunal, Pune, the School Tribunal, Nagpur and the School Tribunal, Nashik and redefined the jurisdiction of the Tribunals from time to time;

And whereas, the Government of Maharashtra has decided to constitute Additional School Tribunal of Mumbai, School Tribunal for the districts of educational South Zone of Greater Mumbai and Thane Revenue District, and for that purpose is necessary to redefine the jurisdiction of the School Tribunals at Mumbai.

Now, therefore, in exercise of the powers conferred by sub-section (1) of section 8 of the said Act, the Government of Maharashtra, hereby constitutes with effect from 19th February, 1997 the Additional School Tribunal for Mumbai Tribunal as mentioned in column (2) of the Schedule hereto and defines the jurisdiction of the Additional School Tribunal, for Mumbai Tribunal at as mentioned in column (3) of the said schedules and redefines the jurisdiction of the School Tribunal at Mumbai and Nashik respectively as specified in column (3) of the said Schedule and directs that the appeals pertaining to Educational South Zone of Greater Mumbai and Thane Revenue District shall be transferred to the Additional School Tribunal, for Mumbai Tribunal at and for that purpose amends the said notification as follows, namely;-

In the Schedule to the said notification-

(a)      in the entry at Serial No. 1 in column 3, for the existing entries, the following entries shall be substituted, namely

"The district of Educational North Zone and West Zone of Greater Mumbai".

(b)      in the entry after Serial No. 9 the following Serial No. and entries shall be added, namely -

SCHEDULE

Mah. G. G., PL IV-Ba, pp. 295-296 dated  19.2.1997.

No. SSN. 1097/840/97/SE-2. ?

Whereas by Government Notification, Education and Employment Department, No. STR. 1081/2/SE-3 Cell, dated the 13th July 1 (hereinafter referred to as "the said notification) issued under sub-section (1) of section 8 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Mah. III of 1978) (hereinafter referred to as "the said Act"), the Government of Maharashtra constituted inter alia, the School Tribunal Mumbai, I redefined its jurisdiction from time to time;

And whereas, by Government Notification, School Education Department No. SSN. 10951 (463)/SE-2, dated the 19th February 1997, the Government of Maharashtra constituted the Additional School Tribunal at Navi Mumbai for the Educational South Zone of Greater Mumbai and Thane revenue district and redefined jurisdiction of the School Tribunal at Mumbai;

And whereas, by order dated the 19th June 1997, in Writ Petition No. 574 of 1997, the Hon'ble High Court has quashed and set aside the said Government Notification, dated the 19th February, 1997 in so far as it attaches the schools located in South Mumbai to the School Tribunal in Navi Mumbai, and clarified that the school located in South Mumbai with continue to be attached to the School Tribunal in Mumbai;

And whereas, the Government of Maharashtra has decided to redefine the jurisdiction of the School Tribunal at Mumbai and the Additional School Tribunal at Navi Mumbai, as specified column 3 of the Schedule hereto;

Now, therefore, in exercise of the powers conferred by sub-section (1) of section 8 of the said Act of all other powers enabling it in that behalf, the Government of Maharashtra hereby redefines the jurisdiction of the School Tribunal at Mumbai and the Additional School Tribunal at Navi Mumbai, as specified against each of them in column 3 of the said schedule, and directs that the appeals pertaining to Educational South Zone of Greater Mumbai shall be transferred to the School Tribunal, Mumbai, and for that purpose amends the said notification as follows, namely: -

In the Schedule to the said notification,?

(a)      in the entry at Serial Number 1, in column (3), for the existing entries, the following entries shall be submitted, namely -

"The districts of Educational South Zone, North and West Zone of Mumbai.";

(b)      in entry at Serial Number 10, column (3), for the existing entries the following entry shall be substituted, namely -

SCHEDULE

M. G. G., Pt. I - Ba, pp. 911-912. dated  4.3.1998.

No. SSC. 2005/(197/05)/HSE-2, dated 31st August, 2005.-

Whereas by Government Notification, Education and Employment Department No. STR. 1081/2/SE-3-Cell, dated 13th July, 1981 (hereinafter referred to as "the said Notification") issued under sub-section (1) of section 8 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Mah. III of 1978) (hereinafter referred to as "the said Act") the Government of Maharashtra constituted inter alia the School Tribunal, Aurangabad, the School Tribunal, Pune (Solapur), the School Tribunal, Navi Mumbai and redefined the jurisdiction of these Tribunals from time to time.

And whereas, the Government of Maharashtra has decided to constitute School Tribunal at Latur for the districts of Latur, Parbhani, Nanded and Hingoli and for that purpose it is necessary to redefine the jurisdiction of the School-Tribunal, Aurangabad and Additional School Tribunal, Pune (Solapur).

Now, therefore, in exercise of the powers conferred by sub-section (1) of section 8 of the said Act, the Government of Maharashtra constitutes with effect from 5th September, 2005 the School Tribunal at Latur as mentioned in column (2) of the schedule hereto and defines the jurisdiction of the School Tribunals, Latur as mentioned in column (3) of the said schedule and redefines the jurisdiction of the School Tribunals at Aurangabad and additional School Tribunal, Pune (Solapur) respectively as mentioned in column (3) of the schedule and directs that the appeals pertaining to the districts of Latur, Parbhani, Nanded and Hingoli shall be transferred to the Latur School Tribunal, Latur and for these purpose amends the said notification as follows namely :-

In the schedule to the said notification,-

(a)      in the entry at Serial No. 4, the following entry shall be substituted, namely :-

(b)      in the entry at Serial No. 8, the following entry shall be substituted namely :-

(c)      in the entry after Serial No. 10, and the following Serial No. and the Entry shall be added,-

SCHEDULE

M. G. G., Pt. IB, P. 749, dated 3st August, 2005.

Section 9 - Right of appeal to Tribunal to employees of private schools

(1)     Notwithstanding anything contained in any law or contract for the time being in force, [33] [any employee in a private school, -

(a)      who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank, by the order passed by the Management; or

(b)      who is superseded by the Management while making an appointment to any post by promotion, and who is aggrieved, shall have a right of appeal and may appeal against any such order or super session to the Tribunal constituted under section 8.]:

Provided that, no such appeal shall lie to the Tribunal in any case where the matter has already been decided by a Court of competent jurisdiction or is pending before such Court, on the appointed date or where the order of dismissal, removal, otherwise termination of service or reduction in rank was passed by the Management at any time before the 1st July, 1976.

(2)     Such appeal shall be made by the employee to the Tribunal, within thirty days from the date of receipt by him of the order of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be :

Provided that, where such order was made before the appointed date, such appeal may be made within sixty days from the said date.

(3)     Notwithstanding anything contained in sub-section (2), the Tribunal may entertain an appeal made to it after the expiry of the said period of thirty or sixty days, as the case may be, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within that period.

(4)     Every appeal shall be accompanied by a fee of [34] [five hundred] rupees which shall not be refunded and shall be credited to the Consolidated Fund of the State.

NOTES

Appeal : Under Rule 39 of Rules 1981, procedure for filing appeal is stated

1.        (A) Presentation, Registration and Admission of Appeals :

(a)      (i) Every memorandum of appeal under sub-section (1) of Section 9 of the Act shall be duly signed by the Appellant and shall be presented to the office of the Presiding Officer of the School Tribunal, in triplicate, personally or by registered post. Where appeals are sent by post they shall not be accepted unless due postage has been prepaid.

(ii) In case there are more than two Respondents the additional copies of the Memorandum of appeal, with enclosures, must be submitted.

(b)      Every memorandum of appeal shall :

(i)       be separate and no joint appeal shall be entertained; Provided that, the Tribunal may entertain a joint appeal by two or more employees if the appeal arises out of the same enquiry and the grounds raised in the appeal are the same;

(c)      contain all material statements and arguments relied upon by the appellant and shall be accompanied by a copy of the order appealed against together with a list of the copies of the documents, if any,

(i)       be either typewritten or written in ink is legible and in Marathi or in English.

(ii)      specify the full name/s and address/addresses of the Appellants and Respondents.

(iii)     specify the provisions of the law (under Section 9 and other relevant sections) under which it is filed;

(iv)    clearly state the facts and the grounds of appeal;

(v)      state the relief or relief's which the Appellant seeks;

(vi)    if appeal filed after the expiry of the period of limitation, i.e. within one month from the date of receiving the order or otherwise termination, reduction in rank or super session state the ground for not preferring the appeal within the prescribed time with a prayer to condone delay; Application for interim relief's : Such application with appeal-memo may be filed getting ad-interim relief's i.e. reinstatement of the Appellant till final disposal of the appeal, the application is presented pending the hearing and final disposal of the main appeal.

(vii)   contain a statement that no appeal in respect of the same matter has been previously filed in any Court or before any competent authority or Tribunal;

(viii)  clearly state the mode of payment of prescribed fee of Rs. 500/ - e.g. Indian Postal Order/Demand Draft, Money Order or cash.

(ix)    on the cover page specify INDEX.

(x)      accompany a list of documents/Annexures attached to the appeal.

(d)      The appeal shall be accompanied by a crossed Indian Postal Order or Demand Draft of Rupees five hundred, payable to the Presiding Officer of the School Tribunal (Place). The fees also may be remitted in cash in the office of the Tribunal or by postal money order. The fees so paid will not be liable to be refunded.

(e)      The appeals transferred under Section 15 of the Act if found defective in above respect the Appellant shall be called upon to get the same rectified within one month from the date of the notice.

(f)       Appeal shall not be entertained unless it complies with the require?ments laid down in sub-clauses of Procedure (c)(i) to (x) above, provided that an appeal may with the prior sanction of the Presiding Officer be accepted. If the Presiding Officer is of the opinion that compliance with any of those requirements in any particular case is not necessary, or can be complied with at the time of hearing the appeal may be filed accordingly.

(B) Who may be joined as Respondents :

(i)       Only the person or body of the persons, whether incorporated or not and by whatever name called, administering such school, who issued the order of dismissal, removal, or otherwise termination or reduction in rank of the Appellant shall be joined as Respondent i.e. Society/Trust managing the school.

(ii)      If the person other than those mentioned in clause (i) above is joined as a party in the appeal, the Tribunal may at any stage of the proceedings either upon or without the application of the either party and on such terms as may appear to the Tribunal to be just order that the name of any party improperly joined, whether as Appellant or Respondent be struck out and that the name of any person who ought to have been joined whether as Appellant or Respondent or whose presence before the Tribunal may be necessary for the final and effective decision of the Appeal shall be joined.

Interpretation of Statute : Distinction between terms 'lodging', 'filing', 'presentation of plaint' & 'acceptance / admission of plaint' : The later is receiving the plaint and former is not. It is only upon numbering of suit it can be said to have been received by the Court. Air India Limited v. Caribjet Inc., 2004 (4) Boom. C.R. 53; Manubhai V. Shah v. Hiralal K.Bhakta, 2000 (2) Bom.C.R. 445.

Appearance of Advocate : The Presiding Officer, may grant special permission for Advocate to appear on behalf of any party under Rule 43. For this purpose, Vakalatnama has to be filed affixing court-fee stamp.

"All Documents": All relevant documents have to be attached with the appeal, these are as follows : Order of termination, suspension or other penalties imposed upon the aggrieved party, letter of appointment, copy of advertisement of the post, service-book etc.

Appeal against four types of issue : It provides for the right of appeal of every aggrieved employee of private school, who is removed, dismissed etc. after 1st July, 1976, and whose case is not pending in any Court on the appointed date, to the Tribunal on payment of fee of fifty rupees, and also provides for procedure to be followed for preferring such appeals.

The Section provides an appeal to the School Tribunal against only four types issues, dismissal, removal or otherwise termination and reduction in rank.

Rule 29 has to be read with Sees. 4 and 16 of the Act. Under Rule 29 nature of penalties are specified where first five are minor and rest of seven i.e. last two are major penalties.

Appeal against major penalties can be filed before the School Tribunal and against minor penalties can be filed before Dy. Director under Proviso of Rule 29.

"Otherwise terminated" will include forced resignation, resignation taken on blank paper while making appointment, during period of probation, termination on account of retrenchment, on account of abolition of post, termination for working in coaching classes, oral termination etc.

Condo nation of delay.- Formal application for condonation of delay is also not necessary. From the order itself, it can be seen that though Tribunal had on earlier occasion entertained appeal on merits, in its final order has come to finding that appeal of petitioner was filed beyond prescribed period of limitation. Before dismissing appeal, the Hon'ble Tribunal ought to have given an opportunity to appellant to make application for condonation of delay. It was held that until delay is condoned Court cannot take cognizance of merits or otherwise of substantive matter. The learned Tribunal has erred in entering into merits of matter while rejecting appeal of petitioner on ground that it was filed beyond period of limitation. Madhao Somaji Sarode v. Jotiba Dhyan Upasak Shikshan Sanstha Dudhala & Ors., 2004 (3) Mh.L.J. 1078 : 2004 (6) Bom.C.R. 684.

Sec. 9 of the Civil Procedure Code and Appeal under M.E.P.S. Act: There is nothing in the scheme of the M.E.P.S. Act to justify and infer implied exclusion of the jurisdiction of the Civil Court and it is open to the suitor to select one of the two forum viz. Appeal under M.E.P.S. Act or a civil suit before the Civil Court, and if a teacher opts for a civil suit, the remedy available under the M.E.P.S. Act, by way of an Appeal, will not operate as a bar. This ratio implies that the remedy provided under Section  9 of M.E.P.S. Act of filing appeal against termination etc. will not operate as a bar against filing of a suit under Section  9 of the C.P.C. 1908, challenging such orders. What is barred under Section  12 of the M.E.P.S. Act is suit, appeal or regular proceedings in any Court or Tribunal in respect of the matters decided by the Tribunal and Section  12 of the M.E.P.S. Act does not prohibit suit or other proceedings in any Civil Court in any matter for which Appeal has been provided under M.E.P.S. Act. Rasta Peth Education Society, Pune v. Pethkar Udhav Bhimashanker, 1994 Mh. L.J. 725 : 1994 (1) C.L.R. 713.

Bar of jurisdiction of Civil Court : The question is whether jurisdiction of Civil Court is barred in respect of matters covered by Section 9 of M.E.P.S. Act . It was held that the remedy of filing a Civil Suit under Section  9 of the Code of Civil Procedure in respect of matters set out in Section  9 of the M.E.P.S. Act, 1977 and Rule 12 of the M.E.P.S. Rules, 1981 is impliedly barred and hence civil suit challenging the order of reversion of teacher is not maintainable. Satyawadi s/o. Ganpatrao&Anr. v.Aruna w/o. Ganpatrao Narwade &Anr., 2000 (II) C.L.R. 128.

When implied bar can be inferred : In a special statute, if there is no specific bar to the jurisdiction of a Civil Court, it is necessary to examine whether such a jurisdiction is impliedly barred and if the special statute provides for measures to deal with the rights/grievances effectively and gives finality to such orders, the jurisdiction of the Civil Court is impliedly barred. Shri Panch Nagar Parakh Mandasur v. Purshottam Das, J.T. 1999 (6) SC 155.

Appeal against order of Jt. Director : The management was duty bound to implement the order passed in appeal. The School Tribunal had no authority or jurisdiction to sit in appeal over the order passed by the Joint Director in appeal which became final and binding on both the parties. The Appeal before the Jt. Director was filed prior to constitution of the Tribunal under the Act and then the Appeal was decided by the Dy. Director. The appeal, therefore, filed before the School Tribunal was not maintain?able. Yeshwant Prasad Popular Education Society v. Shashikala D. Vaidya, 1983 Mah.L.J. 961.

Appeal by employer : Sections 9 and 15 deal with appeals of the employees of Private Schools and they do not touch appeal by employer. Right of employer to file appeal against order passed under Secondary Schools Code still survives. Kranti Smruti Adhyapak Vidyalaya.Satara v. Ashok Bundopant, 1984 Mah. L.J. 598.

Forced resignation covered by section : Otherwise termination : A forced resignation, which means a resignation not voluntarily given by the employee but is brought about by force, under duress or in any other manner by the employer, is an the act of the employer. In substance the contract of service comes to an end in such case by the action on the part of the employer. Therefore, it is covered by Section 9(1).

Jurisdiction of Z.P. Officer regarding Resignation : Section 7 of the Act r/w. rule 40 of the Rules deal with the procedure for tendering resignation but provision is made creating a forum for adjudication upon such resignation tendered by the employees. Edn. Officer, Z.P. has no jurisdiction to deal with such matter. Shriram Swami Shikshan Sanstha v. Edn. Officer, Z.P. Nagpur, 1984 Mh. L.J. 31.

Probationer when period was extended after five years of appointment : Simultaneously issuing termination order : Whether casts stigma : When the Petitioner was on probation, letter was issued extending his probationary period five years after appointment. Simultaneously, Petitioner was informed that his services were terminated. Petitioner contended that he submitted all relevant certificates to the Competent Authority which were verified and accepted by the Competent Authority. He completed probationary period within 6 months and it is his contentions that period was never extended or communicated to him to this effect. Therefore, he claim that he has completed five years of service and he is confirmed employee. He received his due annual increments and received all the benefits of pay commission. It was held that the terms and conditions of his appointment letter states that probation may be extended if deemed necessary. It was held that Petitioner accepted the appointment letter therefore, terms are binding and mere reference to extension of probationary period does not support contention of Petitioner. Thus, the service were terminated during probationary period. The reply given to various letters issued by the Management / Appointing Authority does not mean that his termination was based on misconduct hence, punitive. Petitioner did not dispute power to extend probationary period nor disputed receipt of letter extending probationary period therefore, he cannot be heard to complaint that his termination is on account of misconduct. The allegations of malafides against Respondents are vague and no proceedings were initiated against him for alleged misconduct. Thus, its was held by the Division Bench that foundation for termination is not misconduct. Krushna Ganpat Duhijod (Dr.) v. State of Maharashtra Through the Secretary, Ministry of Animal Husbandry, Dairy & Fisheries, 2004 (1) C.L.R. 594 : 2004 (2) All M.R. 780 : 2004 (2) Mh. L.J. 844.

Abandonment of service : (1) Rule 16(3) provides that if a permanent employee, without sufficient cause, fails to apply for leave within 7 days from the date of absence, it will be treated as breach of discipline. An enquiry may be initiated by following proper procedure.

(2) If permanent employee remains absent without leave continuously, for 3 years or more, it will be treated as if he has voluntarily abondoned the service.

(3) Procedure : Proof of abandonment : In case of plea of abandonment the employee has to be asked for an explanation and formalities will have to be gone into before terminating the service of the employee. Thakur Prasad v. Phoenix Mills, 1976(1) L.L.J. 93.

The Supreme Court has dealt with the issue of plea of abandonment and circumstances leading to it and striking of name of the employee from the muster-roll amounting to retrenchment. The employer must show contemporaneous material regarding concerned employee that the said employee was treated as absconder and the employer had dealt with him accordingly. The employer must make attempt to inform the concerned employee to join duty by a specific date failing which action be taken to terminate his service. Delhi Cloth Mills Co. Ltd. v. Shambhu Nath Mukharji, (1978)1 L.L.J. 1.

The Mah. Employees of Pvt. Schools Regulation Act, 1977 323

The Supreme Court has held that the abandonment must be total and under such circumstances is clearly to indicate an absolute relinquish?ment. The intention may be inferred from the acts and conduct of the party and is a question of facts. Temporary absence is not ordinarily sufficient to constitute an abandonment of office.

Normally intention of abandonment cannot be attributed to an em?ployee without adequate evidence in that behalf. G. T. Lad v. Chemicals and Fibres of India Ltd., (1979) II L.L.N. 331.

Jurisdiction : The Tribunal had jurisdiction to entertain the appeal of the teacher as the controversy was covered by Section  9 and the jurisdiction of the Educational Officer was ousted by necessary implication after the Tribunal was brought into existence. Since the Educational Officer decided the appeal after the Act came into force and after the Tribunal was established, it was without jurisdiction. The Dy. Director of Education transfered the dispute to the School Tribunal within the parameters permissible under Section  15.

The High Court also held that where the petitioner had appeared in person even in the Lower Court, the Lower Court could have added prayer for condonation of delay subsequently stating reasons, the petitioner was reinstated with full backwages. B.R. Misal v. BhandariEdu. Society, W.P. No. 5272/1987 delivered on 15.12.1987, Desai and Kolse Patil, JJ. (Unre?ported).

Jurisdiction of Tribunal : Inter se Seniority : School Tribunal has no jurisdiction to go into question of inter se seniority between the teachers which is specifically and especially conferred upon the Education Officer under Rule 12 of the Rules.

A conjoint reading of Rule 12 of the M.E.P.S. Rules, 1981 and section 9 of the M.E.P.S. Act, 1977 gives different powers to the different authorities, which clearly goes to show that the School Tribunal cannot go into the question of inter se seniority between the teachers, which is specifically and especially conferred upon the Education Officer under Rule 12 of the Rules. It is incumbent upon the Education Officer, if a dispute is referred to him, then he must enter a finding. He cannot keep it pending for a long, as it affects the service of the teacher in the School. Burondi Karajgaon Lodghar Panchkroshi Shikshan Sanstha and Ors. v. Vilasrao Maruti Desai and Ors., 1999 (2) Mh. L. J. 779 : 1999 (I) C.L.R. 1243 (Boom. H.C.) : (1999) Vol. 101 (2) Boom. L. R. 250.

Condonation of delay required to be considered while deciding the appeal:- Unless delay in entertaining the appeal is condoned, adjudication on merits is not permissible. Madhao Somaji Sarode v. Jotiba Dhyan Upasak Shikshan Sanstha, Dudhala, 2004 (3) Mh. L.J. 1078 : 2004 Vol. 106 (4) Boom. L.R. 407.

Maintainability of Appeal: Non renewal of appointment: The words "otherwise terminated" are wide enough to include the case of a person like respondent who was not given a renewal for the next academic session. National Education Society's H.S. &Jr. College v. Lallumal Monachary, 1987 (2) Boom. C.R. 521 : 1987 Mah. L.R. 1401.

Failure to file application for condonation of delay : Further opportunity possible : If subsequent to the filing of appeal under section 9(1) of the Act of 1977 it is revealed that the same was not presented within the limitation, memorandum of appeal cannot be rejected on the ground that it was not accompanied by an application for condonation of delay. Opportunity has to be given to the Appellant to seek condonation of delay. Madhao Somaji Sarode v. Jotiba Dhyan Upasak Shikshan Sanstha, Dudhala, 2004 (3) Mh. L.J. 1078 : 2004 Vol. 106 (4) Boom. L.R. 407.

Second Appeal : Transfer of pending appeals : Jurisdiction of School Tribunal :- The husband of respondent No. 1 employed as a clerk in school. He was terminated from service on 10.5.1980. He filed appeal before Deputy Director of Education was allowed on 17.5.1980. The Management filed Second Appeal on 27.1.1981. M.E.P.S. Act came into force on 15.7.1981. There is no final decision in the Second Appeal and proviso to section 9 would not be applicable. Second Appeal was rightly transferred to the School Tribunal as per the mandate of section 15. Order of School Tribunal dismissing the Second Appeal for want of jurisdiction was held by the Single Judge neither legal nor proper and deserves to be quashed.

It was held that the clauses (a) and (b) to the Explanation to Section 15 has to be construed in proper perspective. It would mean that all kinds of pending appeals whether preferred by the Management or employee would be liable to be transferred to the School Tribunal for decision in accordance with law on fulfillment of two conditions (i) the appeals must be related to the matters specified under section 9, and (ii) this must be in accordance with the provisions of Secondary Schools Code. Both these conditions are fulfilled in the present case and, therefore, the matter has to be transferred to the School Tribunal as per the mandate of section 15 and thus it is obvious that the order passed by the School Tribunal is neither legal nor proper and it deserves to be quashed. Maharana Pratap Education Society, Dehani, Yavatmal v. Rekha Vijay Latkar, 2004 (3) All M.R. 116.

Delay : Expiry of limitation : Opposite party accrues right: Appeal was filed by Respondent No.1 before School Tribunal challenged the appointment of Petitioner No. 3. Appeal was barred by limitation. School Tribunal however, condoned the delay. The order of condoning delay has been challenged. Cause for delay shown by Respondent No. 1 was that he was pursuing remedy before the management and educational authorities from the date of his super session i.e. 1.2.1990. Infact Respondent No.1 for the first time took objection to the appointment of Respondent No. 3 by his letter dated 12.4.1993. Period from 1.2.1990 to 12.4.1993 was not explained by Respondent No. 1. It was held that though while considering the question of sufficiency of the cause for condonation of delay, the Courts or Tribunals must be liberal and have justice oriented approach, it cannot be overlooked that upon expiry of limitation, the valuable right accrues in favour of opposite party which cannot be taken away on flimsy ground. Respondent No. 1 had filed appeal almost after period of 3 years without explaining any sufficient cause. Therefore, Order of School Tribunal condoning delay was quashed and set aside. Executive President, Pune Vidyarthi Griha, Pune v. Bhaskar Bhagwant Yadav, 2001 (2) Mh. L.J. 226 : 2000 L.I.C. 3666.

Termination of service : Framing of issues : Preliminary points to be framed suo motu by Tribunal:- It is Necessary for the School Tribunal to frame and decide three preliminary issues, viz. whether the school was a recognized school as defined under the M.E.P.S. Act; whether the appointment of the concerned teacher was made as per section 5 of M.E.P.S. Act and the Rules there under; and whether such an appointment has been approved by the Education Officer in pursuance of the provisions of the Act as well as the Rules framed there under including the Government Resolutions issued from time to time regarding reservations etc. Even if such points are not raised by any of the parties to the appeal it would be proper on the part of the Tribunal to frame such issue suo motu before examining the merits of the case. The School Tribunal erred in disposing of the appeal wherein it has framed only one issue. The matter remanded to School Tribunal with a direction to decide the matter afresh on merits. Rajiv Shikshan Sanstha through its President, Chandrapur v. State of Maharashtra, 2004 (2) All M.R. 910.

Termination order without holding any formal inquiry.- In the present case the petitioner was appointed as a Junior Clerk by the first respondent on probation. The first respondent is the President of the Panchaganga Shikshan Prasarak Mandal which conducts a High School at Prayag Chikhali. The order of appointment was issued to petitioner under rule 9(5) of Rules, 1981. It was alleged that the petitioner altered the roster by showing the post as an open post and got it approved through the President of the Institution. A period of seven days was furnished to the petitioner to show cause. Immediately thereafter without waiting for the period to expire, an order was issued by the first respondent terminating services of the petitioner. The petitioner challenged the order of termination before the School Tribunal in an appeal before section 9 of the Act. It was held by the High Court that in the present case while notice to show cause was issued to the employee, no formal inquiry was initiated. The employer was justified in calling for an explanation of the employee because the purpose of the notice to enable the employer to assess the confidence of the employee for confirmation in service. After the termination an order of discharge simpliciter simplify the employee's mood before the School Tribu?nal. It was further held by the High Court that where the management has categorically contended and accepted for the services of the probationer were terminated for a serious act of misbehaviour. Once the management accepted this position before the School Tribunal, there could be no question about the position in law whether the order of termination was punitive in nature. Whether or not the misconduct was established, had to be a matter of determination in a regular disciplinary enquiry which was not held. The High Court allowed the petition and, the petitioner was re?instated to the post of a probatitioner clerk. The High Court quashed and set aside the order of the School Tribunal.- Jotiram Narayan Chechar v. President, Panchganga Shikshan Prasarak Mandal & Ors., 2008 (4) Boom. C.R. 645.

Dismissal by way of punishment for distribution of leaflet in school premises and also for undertaking relay-fast.- In the instant case all teachers were confirmed teachers and school was unaided earlier and afterwards it was fully aided. It was contended that the salaries of petition?ers were not paid for months together and that removals were made without following due process of law and that they have participated in relay-fast as a mark of protest against mismanagement of management. The School Tribunal held that inquiry was in violation of rule 6(37) of the Rules but it further held that because distribution of leaflets and holding of relay-fasts were admitted misconduct was proved that there was no need of holding an inquiry. It was held by the High Court that School Tribunal was over?whelmed by totally misguided belief that teachers had gone on strike and cast unfounded aspersions on school management. But the teachers had given two months prior notice as regards mismanagement of notification and their demands and further stated that their protest against that. It was therefore not a strike as such because there was no cessation of work because it was only a protest against injustice suffered by them. It was further held by the High Court that management had crossed the tolerable limit which had forced teachers to approach Education Officer. As per rule 28(5) punishment can be on grounds of (1) misconduct; (2) moral turpitude; (3) willful negligence of duty; and (4) incompetence. The High Court observed that in the instant case inquiry has not been properly made or signed and is not in inconformity with the rule 37(6) and Tribunal has accepted it. This acceptance has not been challenged by the management. The High Court allow the petition and impugned orders of the School Tribunal dismissing the respective appeals filed by the petitioners were quashed and set aside. -Nandkumar Mahadeo Dengane & Ors. v. Bhavika Vidya Prasarak Mandal & Ors., 2008 (4) Boom. C.R. 319.

In the case of Madhav Bhalchandra Joshi v. Vidya Vikas Mandal, Thane & Ors., 2008 (3) Mah. L.J. 858 : 2008 (4) Boom. C.R. 429 the appeal before School Tribunal challenging dismissal of the petitioner-teacher from serv?ice was dismissed by the Tribunal mechanically even adverting to the appeal memo. It was held by the High Court that the impugned order of School Tribunal is nothing short of miscarriage of justice. The order of the Tribunal was set aside by the High Court with directions to expedite its hearing before particular date.

Court-fee stamp for appeal before School Tribunal: Whether to be used within a period of six months from the date of purchase : Non?judicial stamp : Refund and non-use : Distinction : Rule 52 of the Bombay Stamps Supply and Sale Rules, 1934 : Section 48 of the Bombay Court Fees Act, 1959.- Whether must be used within period of 6 months of purchase. Purchased more than 6 months before not accepted by the Registrar as proper court-fee and directed Advocate to replace same with fresh purchased stamps in view of Section  52-B of the Bombay Stamp Act, 1958. It was argued that the court-fees are governed by the Bombay Court Fees Act, 1959 and this Act does not have a provision like Section  52-B of the Bombay Stamp Act, 1958, which may need purchase of fresh stamps if not used within 6 months of purchase. The Single Judge held that it is admitted position that there is no provision in Bombay Court Fees Act, 1959, which states that the stamps once purchased must be used within 6 months. The Government Order No. 55, issued under the Bombay Court Fees Act, 1959, which deals with refund of court-fees stamps by a person who has no immediate use for same or in cases of spoiled stamps or otherwise rendered invalid. Section 48 of Boom. Court Fees Act, 1959 expressly provides that payment of court-fees does not any way effect stamp duty chargeable under the Bombay Stamp Act, 1958. Section 51 of Bombay Court Fees Act, 1959 permits adjustments of stamp duty payable on final Order. Section 73 of the Bombay Stamp Act, 1958 also provides that no provisions of this Act affects dues payable under Bombay Court Fees Act, 1959. Hence, merely because court-fees are to be paid through stamps by itself does not mean that both Acts have to read as complimentary to each other. Further, the stamp duty has been classified between judicial and non-judicial stamps. Latter are governed by Bombay Stamp Act and former by Bombay Court Fees Act. Two Acts have been held by Courts to be complete Codes in themselves and operate in different independent fields. There is thus no bar for use of court-fee stamps after 6 months of purchase under the Bombay Court Fees Act, 1959. Vilas Rambhau Nakade v. Civil Judge, Senior Division, Nagpur & Ors., AIR 2006 Boom. 806 (NB) : 2006 (2) All M.R. 500 (NB) : 2006 (3) Bom.C.R. 504 (NB) : 2006 (3) Mh.L.J. 146 (NB) : 2006 (2) Mh.L.R. 490 (NB).

"Mana" community whether belongs to S.T. : Constitution Scheduled Tribes Order, 1950 (as amended by Act 108 of 1976), Entry 18 Second Schedule, Part IX Maharashtra - person belonging to "Mana community" cannot be treated to be belonging to Scheduled Tribe unless he shows that the Mana community to which he belongs has affinity with "Gond". Kunda Vishwanath Ghodmare v. Committee for Scrutiny and Verification of Tribes Claims, Nagpur, 2001 (1) Mh. L.J. 557.

De-reservation of Post : The petitioner is working as a Lecturer in English in the respondent No. 1 College w.e.f. 3.9.1991. The petitioner is M.A. in English and she has done D.H.E: in 1983 and M. Phil in 1988. She was appointed in reserved post of lecturer in English in September, 1991. Her appointment was duly approved by the University. Thereafter petitioner was appointed every year since candidate from reserved category was not available. In the advertisements which were issued from 1992, it is shown that the post of lecturer in English in reserved and thereafter every year the said post has been shown as reserved till the last advertisement which was issued on 29.6.2000. The petitioner has completed 9 years in April, 2000. In the circumstances the case, of the petitioner is clearly covered by the circular of the University dated 17.7.1996. Under the said circular the reserved post is liable to be confirmed. In the instant case the Petitioner has been working for last 9 years, respondent Nos. 1 and 2 directed by Division Bench to forthwith forward their proposal to the University for de-reserva?tion of the post and absorption of the Petitioner in accordance with the Circular dated 17.7.1996. The University shall communicate its decision to Government within two weeks from the date of receipt of the proposal from respondent Nos. 1 and 2. The State Government is directed to issue necessary orders for de-reservation of the post held by the petitioner and for regularization of her service in the 1st respondent College as per the Circular dated 17.7.1996 within a period of 8 weeks from the date of receipt of the proposal from the University. Mrs. Madhusri Shrivastava v. The Principal Sathye College & Ors., unreported judgment dated  1.2.2001 delivered by Justice A. P. Shah and Justice S. J. Vazifdar.

De-reservation : It was held that is an administrative discretion -General category candidate has no right to seek de-reservation but direc?tion or mandamus to Government for de-reservation, was not issued. State of Punjab v. G.S. Gill, (1997) 6 SCC 129 : 1997 SCC (L. &Section) 1475 : AIR 1997 SC 2324 : (1997) 4SectionL.R. 18 : 1997 Lab. I.C. 2292.

De-reservation not permissible when reserved category candidate available. Denial of appointment to a duly selected S.C. candidate on the plea that the point in the roster was dereserved, held, illegal. Flag Officer Commanding-in-Chief v. M. A. Rajani, (1997) 4 SCC 276 : 1997 (L. &Section) 938 : AIR 1997 SC 2099 : (1997) 1 C.L.R. 854 : 1997 Lab. I.C. 2085.

Reservation for women : Railway administration's decision to reserve the posts of Enquiry-cum-Reservation Clerks in Reservation Offices in the specified metropolitan cities (Madras, Bombay, Calcutta and Delhi in this case) exclusively for women and the further decision that the said offices should constitute a seniority unit separate from the rest of the cadre of Enquiry-cum-Reservation cadre.

Articles 15 deals with every kind of State action in relation to the citizens of India and every sphere of activity of the State is controlled by Art. 15(1) and, therefore, there is no reason to exclude from the ambit of Art. 15(1) employment under the State. Since Article 15(1) and 15(3) go together, the protection of Art. 15(3) would be applicable to employment under the State falling under Art. 16(1) and (2) of the Constitution. Therefore, the impugned judgment of the High Court holding that Article 15(3) has no application in matters relating to employment under the State falling under Art. 16(1) and (2) cannot be upheld. Union of India v. K. P. Prabhakaran, (1997) 11 SCC 638.

The object of writing the confidential report is two-fold, i.e. to give an opportunity to the officer to remove deficiencies and to inculcate discipline. Secondly, it seeks to serve improvement of quality and excellence and efficiency of public service. The officer should show objectively, impartiality and fair assessment without any prejudices whatsoever with the highest sense of responsibility alone to inculcate devotion to duty, honesty and integrity to improve excellence of the individual officer. Lest the officers get demoralised which would be deterrious to the efficacy and efficiency of public service, they should be written by a superior or officer of high rank. State Bank of India v. Kashinath Kher, (1996) 8 SCC 762 : 1996 SCC (L. &Section) 1117 : AIR 1996 SC 1328.

The controlling officer before writing adverse remarks would give prior sufficient opportunity in writing by informing him of the deficiency he noticed for improvement. Inspite of the opportunity given if the officer/ employee does not improve then it would be an obvious fact and form material basis in support of the adverse remarks. It should also be mentioned that he had been given prior opportunity in writing for improve?ment and it was not availed of so that it would form part of the record. The power exercised by the controlling officer is per se illegal. Sukhdeo v. Commr. Amravati Division, (1996) 5 SCC 103 : 1996 SCC (L. &Section) 1141.

Section 10 - General powers and procedure of Tribunal

(1)     For the purposes of admission, hearing and disposal of appeals, the Tribunal shall have the same powers as are vested in an Appellate Court under the Code of Civil Procedure, 1908, and shall also have the power to stay the operation of any order against which an appeal is made, on such conditions as it may think fit to impose and such other powers as are conferred on it by or under this Act.

(2)     The Presiding Officer of the Tribunal shall decide the procedure to be followed by the Tribunal for the disposal of its business including the place or places at which and the hours during which it shall hold its sittings.

(3)     Every appeal shall be decided as expeditiously as possible. In every case, endeavour shall be made by the Tribunal to decide an appeal within three months from the date on which it is received by the Tribunal. If the Tribunal is unable to dispose of any appeal within this period, it shall put on its record the reasons therefor.

NOTES

Tribunal: It is not the nomenclature of the authority which is relevant to determine whether such authority is a Court or the Tribunal but it is the power exercised by that authority under the Statute which makes it judicial one. Co-operative Courts Bar Association v. State of Mah., 1990 Mh. L.J. 1064.

The Full Bench while examining the ambit of powers conferred on all Courts constituted under the hierarchy of Courts also extends to Tribunals, bodies or authority whatever be their label. Such Tribunal, body or authority should basically be a Court i.e. it performs judicial functions of rendering definite judgments having finality and authoritativeness to bind the parties, litigating their rights before it in exercise of sovereign judicial power transferred to it by the State. Shripatrao Dajisaheb Ghatge v. The State of Mah., 1977 Mh. L.J.406 : AIR 1977 Bom. 384.

All Tribunals are not Courts, though all Courts are Tribunals. The word Courts is used to designate those Tribunals which are set up in an organised state for the administration of justice. By administration of justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish wrongs. Harinagar Sugar Mills v.S. S. Jhunjhunwalla, AIR 1961 SC 1669.

Importance of subordinate judiciary : It is the subordinate judiciary who are brought most closely into contact with the people and its independ?ence should be placed beyond question. Chandra Mohan v. State of U.P., AIR 1966 SC 1987.

Tribunal whether Department of State Government: It was observed in the case of Motor Accidents Claims Tribunal that the Executive file returns claiming that the Tribunals are not Courts but the departments of the State administration and the members of the Tribunals are departmental Heads is regrettable. It brings into disrepute not only the State Govern?ment but the Quasi Judicial Tribunals which are manned by the eminent members. W.P. 1587/1984 (Unreported), decided by Pendse, J.

Section 11 - Powers of Tribunal to give appropriate reliefs and directions

(1)     On receipt of an appeal, where the Tribunal, after giving reasonable opportunity to both parties of being heard, is satisfied that the appeal does not pertain to any of the matters specified in section 9 or is not maintainable by it, or there is no sufficient ground for interfering with the order of the Management it may dismiss the appeal.

(2)     Where the Tribunal, after giving reasonable opportunity to both parties of being heard, decides in any appeal that the order of dismissal, removal, otherwise termination of service or reduction in rank was in contravention of any law (including any rules made under this Act), contract or conditions of service for the time being in force or was otherwise illegal or improper, the Tribunal may set aside the order of the Management, partially or wholly, and direct the Management,-

(a)      to reinstate the employee on the same post or on a lower post as it may specify;

(b)      to restore the employee to the rank which he held before reduction or to any lower rank as it may specify;

(c)      to give arrears of emoluments to the employee for such period as it may specify;

(d)      to award such lesser punishment as it may specify in lieu of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be;

(e)      where it is decided not to reinstate the employee or in any other appropriate case, [35] [to give to the employee twelve months' salary (pay and allowances, if any) if he has been in the service of the school for ten years or more and six months' salary (pay and allowances, if any) if he has been in service of the school for less than ten years], by way of compensation, regard being had to loss of employment and possibility of getting or not getting suitable employment thereafter, as it may specify; or

(f)       to give such other relief to the employee and to observe such other conditions as it may specify, having regard to the circumstances of the case.

(3)     It shall be lawful for the Tribunal to recommend to the State Government that any dues directed by it to be paid to the employee, or in case of an order to reinstate the employees any emoluments to be paid to the employee till he is reinstated, may be deducted from the grant due and payable or that may become due and payable in future, to the Management and be paid to the employee direct.

(4)     Any direction issued by the Tribunal under sub-section (2) shall be communicated to both parties in writing and shall be complied by the Management within the period specified in the direction, which shall not be less than thirty days from the date of its receipt by the Management.

NOTES

Jurisdiction of Tribunal : Exercise of Power to go into question of fact and recording evidence : Challenging order of Management on ground of legality, correctness, propriety or proper : The issue of Tribunals powers under section 42nD(l) of Bombay University Act 1974 (nowU/s. 60&61 of the Maharashtra University Act, 1994) was considered in W. P. filed before Bombay High Court decided by S.P. Kurdukar, J. It was held that the powers of the Tribunal are specifically stated in the above referred section. The Tribunal has jurisdiction to record evidence as also to go into question of legality and correctness of the order which was challenged in the Appeal including to decide whether the order is illegal and improper. The words 'illegal or improper' used in Section 42-D(2) of Bom. Univ. Act, 1974 were indicative of the fact that the College Tribunal can also find out as to whether the order challenged is illegal or improper. The expression 'impropriety' covers a large area which includes non-observance of the principles of natural justice. The Tribunal is empowered to direct the Management to reinstate the employee in the same and / or lower post as it may specify. It may also direct the management to restore the employee to the rank which he had before the reduction or to any lower rank as it may specify. It can direct the management to give arrears of emoluments as also if it is decided not to reinstate the employee or in any other case to give such sum to the employee by way of compensation not exceeding the emoluments for 6 months. The College Tribunal in a case where the enquiry fails because of non-observance of the principles of natural justice has jurisdiction to hold a further enquiry. Right to appeal to the College Tribunal being a statutory one it must necessarily follow that it has got all powers to reappraise the material on records and come to its own findings. The Tribunal exercise all powers of an Appellate Court under Order 41 of the Code of Civil Procedure including framing of additional issues and record?ing of additional evidence. The Tribunal has to re-appreciate the entire material on record and come to its own conclusion independently and if necessary in the interest of justice to record evidence.

While interpreting the scope of the powers of the Tribunal, the High Court observed that after giving reasonable opportunity both the parties of being heard to decide in any Appeal that the order of dismissal, removal, otherwise termination of service of reduction in rank was in contravention in a law, contract of conditions of Service for the time being in force and was otherwise illegal and improper, the Tribunal may set aside the order of the Management, partially or wholly, and direct the management as per the provisions of the Section 42-D(2) of Bombay University Act. Thus, Tribunal has take into account various situations and in view of the vide powers conferred upon the Tribunal it was held that the Appeal filed against an order passed by the Management is nothing but a plaint challenging the order on various grounds. The object of the enactment as stated earlier is to adjudicate and resolve the dispute between the Management and the employee and to dispose of such Appeals within period of three months from the date of its receipt by the Tribunal. The Tribunal also has jurisdiction to hold further inquiry if its comes to the conclusion that the Inquiry held by the inquiry officer is vitiated on the ground of non-observance of principle of natural justice. Prahladrai Dalmia Lions College of Commerce and Economics, Bombay and v. A. M. Rangaparia. 1988 Mh. L.J. 530.

Section 12 - Decision of Tribunal to be final and binding

Notwithstanding anything contained in any law or contract for the time being in force, the decision of the Tribunal on an appeal entertained and disposed of by it shall be final and binding on the employee and the Management; and no suit, appeal or other legal proceeding shall lie in any Court, or before any other Tribunal or authority, in respect of the matters decided by the Tribunal.

NOTES

Dy. Director refusing to comply with Tribunal's order :

Decisions of Tribunal must be complied with. The respondent's services were earlier terminated by an oral order from 20th August, 1987, which was challenged by the respondent before the School Tribunal by way of an appeal. The Tribunal set aside the impugned termination order, directed reinstatement with payment of backwages, all other incidental benefits and held that the respondent was a permanent employee. The respondent was reinstated. His services were however again terminated because of want of work load and refusal of the Deputy Director of Education to approve the re-appoint?ment reinstatement. This termination was challenged by the respondent by an appeal to the School Tribunal and the Tribunal by its order dated 27th February, 1989 allowed the said appeal, set aside the termination order dated 21st July, 1988 and directed the petitioner management to reinstate the respondent to the original post and pay his back wages together with all other incidental benefits with effect from 22nd July, 1988 till reinstatement.

Section 13 - Penalty to Management for failure to comply with Tribunal's directions

(1)     If the Management fails, without any reasonable excuse, to comply with any direction issued by the Tribunal [36] [under section 11 or any order issued by the Director under clause (a) of sub-section (1) or sub-section (4) of section 4A within the period specified in such direction, or as the case may be, under sub-section (5) of section 4A or within such further period as may be allowed by the Tribunal or Director, as the case may be,] the Management shall, on conviction, be punished, -

(a)      for the first offence, [37] [with imprisonment for a term which may extend to fifteen days or with fine which may extend to fifty thousand rupees or with both] :

Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, the fine shall not be less than [38] [ten thousand rupees,] and

(b)      for the second and subsequent offences, [39] [with impris? onment for a term which may extend to fifteen days or with fine which may extend to seventy five thousand rupees, or with both] :

Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, the fine shall not be less than [40] [twenty thousand rupees].

(2)     (a) Where the Management committing an offence under this section is a society, every person, who, at the time the offence was committed, was in charge of and was responsible to the society, for the conduct of the affairs of the society, as well as the society, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that, nothing contained in this sub-section shall render any person liable to the punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of the offence.

(b) Notwithstanding anything contained in clause (a), where the offence has been committed by a society and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any president, chairman, secretary, member, Head or manager or other officer or servant of the society, such president, chairman, secretary, member, Head or manager or other officer or servant concerned shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Explanation : For the purposes of this section, "society" means a society registered under the Societies Registration Act, 1860, or a public trust registered under the Bombay Public Trusts Act, 1950 or any other body corporate, and includes an association or body of persons, by whatever name called, under whose management one or more private schools are conducted.

NOTES

The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Mah. III of 1978), which has come into force on the 15th July, 1981, provides for regulating recruitment and conditions of service of employees in certain private schools. Section 9 of the Act provides for right of appeal to the School Tribunal constituted under section 8, to the employees of private schools in case of dismissal, removal or termina?tion of service, or reduction in rank or supersession while making an appointment by promotion of the employees of the private schools, by their management. Under section 11, the School Tribunal is empowered to give appropriate reliefs and directions. Section 13 of the Act provides for penalty for the management of a private school which fails to comply with the directions issued by the School Tribunal within the period specified therein. The penalty provided in the section 13 is of fine which may extend to fifty rupees for the first offence and seventy-five thousand rupees for the second and subsequent offences. However, Government has received many com?plaints from the teachers and employees of the private school and their unions, regarding non-compliance by the managements of the schools of the directions issued by the School Tribunal under the said section 11. Delay in the implementation of the decisions of the Tribunal amounts to denying justice to the aggrieved teachers. Therefore, in order to ensure strict and prompt compliance with the directions of the School Tribunal by the managements of the private schools, Government considers it expedient to amend the said section 13 of the Act to provide for stringent punishment of imprisonment alongwith higher amount of fine aimed at serving as deterrent against such non-compliance. Statement of Objects and Rea?sons M.G.G., Pt. V. dated 29-71995, p. 204.

"Contempt of Court" - "Whether the Tribunal is a Court" : The School Tribunal constituted under the Maharashtra Employees of Private schools (Conditions of Service) Regulation Act, 1977 is Court within the meaning of the Contempt of Courts Act and hence a defiance of the orders passed by the School Tribunal can be punished under the Act. Chandrakant Ganpat Shelar v. Sophy Kelly, 1987 Mah. L.J. 1012.

Contempt of Courts Act and Limitation Act : Jurisdiction in con?tempt proceedings has to be exercised only when a clear case is made out. Mere technical contempt is not enough.

It is only when the Court forms an opinion that a prima facie case for initiating contempt is made out and when the Respondents or the Petition?ers or alleged contemners should be called upon to show cause as to why Respondents should not be punished for the contempt, the Court can be said to have initiated proceedings for contempt. The initiation of the proceedings is based on application of mind by the Court to the facts of the case and the material before it must take place within a period of one year from the date of alleged contempt, failing which the jurisdiction to initiate any proceedings is lost. Section 5 of the Limitation Act is not applicable. Section 20 of the Contempt of Courts Act strikes at the jurisdiction of the Court to initiate any proceedings for contempt.

The jurisdiction to initiate proceedings and to punish for contempt both are discretionary. Contempt generally and criminal contempt certainly, is a matter between the Court and the alleged contemner. No one can compel or demand as of right initiation of proceedings for contempt. A private party or a litigant may also invite the attention of the Court as may persuade the Court in initiating proceedings for contempt. But such a person cannot be called "aggrieved" party. He does not become a complainant or petitioner in the proceedings. Om Prakash Jaiswal v. D. K. Mittal, 2001 (1) Mh. L.J. 333 (SC).

Suo motu contempt proceedings by Apex Court : The Courts are entrusted with the powers of dispensation and adjudication of justice of the rival claims of the parties besides determining the criminal liability of the offenders for offences committed against the society. The Courts are further expected to do justice quickly and impartially not being biased by any extraneous considerations. Justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the Court by filing and relying upon the statement of facts. If the result of the proceedings are to be respected, these issues before the Courts must be resolved to the extent possible in accordance with the truth. The purity of proceedings of the Court cannot be permitted to be sullied by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy.

At common law Courts took action against a person who was shown to have made a statement, material in the proceedings, which he knew to be false or did not believe to be true. The offence committed by him is known as perjury. In India, law relating to the offence of perjury is given a statutory definition under Section 191 and Chapter XI of the I.P.C., incorporated to deal with the offences relating to giving false evidence against public justice. Re : Suo Motu Proceedings against R. Karuppan, Advocate, (2001) 2 L.R.I. 1257.

Section 14 - Legal practitioners excluded from appearance

Notwithstanding anything contained in any law for the time being in force, a legal practitioner shall not be entitled to appear on behalf of any party in any proceedings before the [41] [Director or the Tribunal], except with the special permission of the [42] [Director or the Tribunal]:

[43] [Provided that, the appellant shall, if he so desires, be allowed to represent himself before the Director or the Tribunal through any other person of his choice who shall be an employee in the same or any other private school. Such representative shall obtain permission to do so from the Management of his school.]

NOTES

Section 14 excludes the legal practitioner from appearance in any proceedings taken before the School Tribunal, except with the special permission of the Tribunal.

Representation by co-employee : No employee can engage himself without the permission of the employer in any activity or undertake any assignment gratis or otherwise, which might conceivably detract from or affect the performance of his duty or require him to obstain from duty.

The right of representation through a chosen representative is conferred by the Statute which, for good and valid reasons, simultaneously introduced further that the chosen representative should seek permission of the management of his school before accepting the assignment. The challenge to the constitutional validity of the proviso to section 14 must therefore fail.

If the school management is of the view that a suspended employee should not be granted permission to be the representative of another of its employees in the appellate proceeding before the School Tribunal and refuses permission on that ground, it cannot be said that any irrelevant factor has entered into consideration or that rejection of permission is arbitrary and irrational. Abdul Haleem Siddiqui v. State of Mah. and others, 1992 (3) Bom. C.R. 251.

Section 15 - Transfer of pending appeals to Tribunal

All appeals of the employees  [or, as the case may be, of the Managements] of private schools relating to the matters specified in section 9, which may be pending  [* * *] before the Department or the Director or an Officer subordinate to him, as the case may be, in accordance with the provisions of the Secondary Schools Code, shall be transferred to the Tribunal  [* * *]. The Tribunal shall hear and dispose of every such appeal, as if it were made under section 9, provided that the prescribed fee of Rs. 50 is paid by the employee  [or the Management, as the case may be], within one month of the receipt of a notice given to him by the Tribunal for that purpose :

?[Provided that any such appeal decided by the Department, or the Director, or an officer subordinate to him, during the period commencing on the date of coming into force of this Act and ending on the date of commencement of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation (Amendment) Act, 1987, in accordance with the directions of the High Court of Bombay, shall be deemed to have been validly decided, as if the Department or the Director or the officer subordinate to him had, notwithstanding anything contained in this Act, the jurisdiction to decide the same.]

?[Explanation : For the purpose of the section,-

(a)      appeals of the employees or, as the case may be, of the Management relating to the matters specified in clause (a) of sub-section (1) of section 9; and

(b)      appeals of employees or, as the case may be, of the Management relating to the matters specified in clause (b) of sub-section (1) of section 9,means, respectively, the appeals pending on the appointed date and on the date of commencement of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation (Amendment) Act, 1987, before the Department or the Director or an officer subordinate to him, as the case may be.]

NOTES

It provides for transfer of all the pending appeals made to the Director of Education or any other officers subordinate to him, in accordance with the provisions of the Secondary Schools Code to the Tribunal, on the appointed date.

Appeal before Tribunal when not maintainable :

The management was duly bound to implement the order passed in appeal. The School Tribunal had no authority or jurisdiction to sit in appeal over the order passed by the Joint Director in appeal which became final and binding on both the parties. The appeal, therefore, filed before the School Tribunal was not maintainable. Yeshwant Prasant, Popular Education Society v. Shashikala D. Vaidya, 1983 Mah. L.J. 961.

Appeal by employees : Sections 9 and 15 deal with appeals of employees of Private Schools and they do not touch appeal by the employer. Right of employer to file appeal against order passed under Secondary Schools Code still survives. Kranti Smruti Adhyapak Vidyalaya, Satara v. Ashok Bandopant, 1984 Mah. L.J. 598.

Second Appeal : Transfer of pending appeals : Jurisdiction of School Tribunal :- The husband of respondent No. 1 employed as a clerk in school. He was terminated from service on 10.5.1980. He filed appeal before Deputy Director of Education was allowed on 17.5.1980. The Management filed Second Appeal on 27.1.1981. M.E.P.S. Act came into force on 15.7.1981. There is no final decision in the Second Appeal and proviso to section 9 would not be applicable. Second Appeal was rightly transferred to the School Tribunal as per the mandate of section 15. Order of School Tribunal dismissing the Second Appeal for want of jurisdiction was held by the Single Judge neither legal nor proper and deserves to be quashed.

It was held that the clauses (a) and (b) to the Explanation to Section 15 has to be construed in proper perspective. It would mean that all kinds of pending appeals whether preferred by the Management or employee would be liable to be transferred to the School Tribunal for decision in accordance with law on fulfillment of two conditions (i) the appeals must be related to the matters specified under section 9, and (ii) this must be in accordance with the provisions of Secondary Schools Code. Both these conditions are fulfilled in the present case and, therefore, the matter has to be transferred to the School Tribunal as per the mandate of section 15 and thus it is obvious that the order passed by the Schools Tribunal is neither legal nor proper and it deserves to be quashed. Maharana Pratap Education Society, Dehani, Yavatmal v. Rekha Vijay Latkar, 2004 (3) All M.R. 116.

Section 16 - Rules

(1)     The State Government may, by notification in the Official Gazette, make rules for carrying out the pur?poses of this Act.

(2)     In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :

(a)      the minimum qualifications for recruitment of employees of private schools (including its procedure);

(b)      their scales of pay and allowances;

(c)      their post-retirement and other benefits;

(d)      the other conditions of service of such employees including leave, superannuation, re-employment and promotion;

(e)      the duties of such employees and Code of Conduct and disciplinary matters;

(f)       the manner of conducting enquiries;

(g)      any other matter which is required to be or may be prescribed.

[44] [(2A) The power to make rules under clauses (a) to (d) conferred by sub-section (2) shall include the power to give retrospective effect to the rules or any of them but no retro?spective effect shall be given to any rule so as to prejudicially affect the interests of any person to whom such rule may be applicable.]

(3)     All rules made under this Act shall be subject to the condition of previous publication.

(4)     Every rule made under this Act shall be laid, as soon as may be, after it is made before each House of the State Legislature, while it is in session for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree the rule should not be made, and notify such decision in the Official Gazette, the rule shall from the date of publication of such notification have effect, only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previ?ously done or omitted to be done under that rule.

NOTES

Contesting election-disciplinary matter : Discipline is a wide con?cept which embraces the authority of management to enforce the continued performance of the duty as a teacher while allowing the teacher to serve the public by occupying public offices through elections. The need of permission of the Management is a disciplinary matter within the meaning of Section 16(2)(e). It is not ultra vires to the rule making power of the Government. Bombay University College Teachers Union v. State of Mah., 1990 Mah. L.J. 1191.

Whether Circular overrides, provisions of Act and Rules : Services of a permanent peon who was appointed on probation and subsequently approved by the Competent Authority was orally terminated on the ground that Government Circular dated 22.2.1997 directs the Management of the School to do so. On perusal of the said circular, it was found that it is not a circular but mere letter addressed to the authorities. Hence it cannot be acted upon as the circular or letter cannot override the provisions of the Act or the Rules. MalanbaiT. Satpute v. Dy. Director of Education, 2002 (2) Bom. C.R. 677 (A.B.).

Appointments/promotion of Head Master : Seniority.-

The petitioner was the senior-most teacher having satisfactory service record. No departmental enquiry was initiated for any misconduct not there were any adverse remarks at any point of time. The petitioner inspite of being eligible was denied the post by the respondent management without any justification. The Division Bench directed as the petitioner had retired he is notionally appointed as Head Master and the respondent management directed to given all consequential benefits. Pundlik Mahadeorao Belsare v. Dy. Director of Education, Nagpur Region, Nagpur & Ors., AIR 2006 (2) Bom. R. 340 : 2006 (5) Bom. C.R. 791.