{"id":34390,"date":"2011-07-04T00:00:00","date_gmt":"2011-07-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/secr-a-p-d-jain-pathshala-ors-vs-shivaji-bhagwat-more-ors-on-4-july-2011"},"modified":"2017-10-02T08:07:26","modified_gmt":"2017-10-02T02:37:26","slug":"secr-a-p-d-jain-pathshala-ors-vs-shivaji-bhagwat-more-ors-on-4-july-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/secr-a-p-d-jain-pathshala-ors-vs-shivaji-bhagwat-more-ors-on-4-july-2011","title":{"rendered":"Secr.,A.P.D.Jain Pathshala & Ors vs Shivaji Bhagwat More & Ors on 4 July, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Secr.,A.P.D.Jain Pathshala & Ors vs Shivaji Bhagwat More & Ors on 4 July, 2011<\/div>\n
Author: R.V.Raveendran<\/div>\n
Bench: R.V. Raveendran, A.K. Patnaik<\/div>\n
                                                                                      Reportable\n\n                    IN THE SUPREME COURT OF INDIA\n\n\n                     CIVIL APPELLATE JURISDICTION\n\n\n                       CIVIL APPEAL NO. 4988 OF 2011\n\n                    [Arising out of SLP (C) No.22040\/2008]\n\n                                          and\n\n                       CIVIL APPEAL NO. 4989 OF 2011\n\n                    [Arising out of SLP (C) No.23566\/2008]\n\n\n\n\nThe Secretary, Sh. A. P. D.Jain\n\nPathshala & Ors.                                                  ... Appellants\n\n\nVs.\n\n\nShivaji Bhagwat More & Ors.                                       ... Respondents\n\n\n\n\n                                 J U D G M E N T\n<\/pre>\n
R.V.RAVEENDRAN, J.\n<\/p>\n
       Leave granted in both the petitions.\n<\/p>\n
2.     The   Government   of   Maharashtra   by   Government   Resolution   dated <\/p>\n
27.4.2000   accorded   sanction   for   implementation   of   the  Shikshan   Sevak  <\/p>\n
scheme  in all recognized private secondary\/higher secondary schools\/Junior <\/p>\n
colleges\/B.Ed.   colleges,   in  the  state.  The  said   scheme   in  essence  provided <\/p>\n
for (i) appointment of Shikshan Sevaks for a term of one year on payment of <\/p>\n
a fixed honorarium, (ii) renewal of such appointment annually, if the work <\/p>\n
was found to be satisfactory, (iii) absorption of such Shikshan Sevaks into <\/p>\n
                                                 2<\/span><\/p>\n
service   as   teachers   on   completion   of   the   specified   years   of   service.   It <\/p>\n
provided for constitution of a three member Grievance Redressal Committee <\/p>\n
(consisting   of  the   concerned   Divisional   Deputy   Director  of  Education,  the <\/p>\n
Assistant   Director   and   the   Education   Officer)   to   consider   and   decide   the <\/p>\n
grievances   relating   to   selection,   appointment,   re-appointment   or   mid-year <\/p>\n
cancellation of appointment. The scheme provided as follows:\n<\/p>\n
       “All the complaints received under the Shikshan Sevak scheme are to be <\/p>\n
       referred to the aforesaid Three Member Committee. This committee will <\/p>\n
       hold   monthly   meetings   and  render   its   decision   on   the   complaints   and  <\/p>\n
       would inform the same to the concerned. An opportunity to put up the case  <\/p>\n
       would be given to the complainant.”<\/p>\n
                                                                      (Emphasis supplied]<\/p>\n<\/blockquote>\n
3.     The   Bombay   High   Court   disposed   of   several   writ   petitions <\/p>\n
challenging   the   said   scheme,   by   order   dated   16.8.2000,   recording   the <\/p>\n
submission made on behalf of the state government that it would amend the <\/p>\n
scheme   by  incorporating  the  several  modifications  suggested   by  the  court. <\/p>\n<\/blockquote>\n
While   doing   so,   the   High   Court   also   directed   the   state   government   to <\/p>\n
reconstitute the Grievance Redressal Committee with a retired District Judge <\/p>\n
as Chairman and the Deputy Director and Education Officer (Secondary) of <\/p>\n
the   concerned   region   as   members.   The   High   Court   further   directed   as <\/p>\n
follows :\n<\/p>\n
                                                     3<\/span><\/p>\n
       “All complaints relating to unsatisfactory work or misconduct etc. will be <\/p>\n
       forwarded to the Committee who shall take decision within 30 days from <\/p>\n
       the date of receipt of record after giving an  opportunity to the concerned  <\/p>\n
       parties   to   file   their   replies   so   as   to   avoid   prolonged   procedure   of   oral  <\/p>\n
       hearing.\n<\/p><\/blockquote>\n
\n       All  complaints  in respect  of appointment,  termination  etc.  shall  be dealt <\/p>\n
       with only by the Committee constituted above and by no other authority. <\/p>\n
       As   the   scheme   is   being   implemented   on   interim   basis   we   direct   that   no  <\/p>\n
       Civil Court shall entertain any suit or application in respect of disputes  <\/p>\n
       which are required to be dealt with by the Committee.”<\/p>\n<\/blockquote>\n
                                                                             (emphasis supplied)<\/p>\n<\/blockquote>\n
4.     In   compliance   with   the   said   decision   dated   16.8.2000,   the   State <\/p>\n
Government   by   Government   Resolution   dated   13.10.2000   modified   the <\/p>\n
scheme.  Clause  (17) of the modified  scheme  implemented  the direction of <\/p>\n
the   High   Court   regarding   the   re-constitution   of   the   Three   Member <\/p>\n
Committee   and   provided   that   the   Committee   would   function   at   Mumbai, <\/p>\n
Aurangabad   and   Nagpur,   the   area   of   jurisdiction   of   the   committees <\/p>\n
corresponding to the jurisdiction of the benches of High Court at Mumbai, <\/p>\n
Aurangabad and Nagpur.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
5.     By order dated 21.6.2001 in subsequent writ petitions, the High Court  <\/p>\n
recorded the following submissions of the State Government :\n<\/p>\n
       “The   learned   Advocate   General   stated   that   the   State   Government   will <\/p>\n
       appoint a nine member Grievance Committee and the pending grievances <\/p>\n
       of the Shikshan Sevaks will be referred to the said Grievance Committee. <\/p>\n
       The Committee will be headed by a retired Civil Judge, Sr. Division, who <\/p>\n
       will   be   appointed   in   consultation   with   the   Registrar   of   this   Court.   The <\/p>\n
                                                  4<\/span><\/p>\n
       learned  Advocate General assured the Court that the appointment  of the <\/p>\n
       Committee   member   will   be   notified   within   a   period   of   six   weeks   from <\/p>\n
       today. He also stated that the Member of the Grievance Committee will be <\/p>\n
       given   salary   and   emoluments   as   paid   to   the   member   of   the   School <\/p>\n
       Tribunal and necessary infrastructure will also be provided. He stated that <\/p>\n
       the   Committee   will   hold   the   proceedings   in   Mumbai,   Aurangabad   and <\/p>\n
       Nagpur   to   consider   the   grievances   of   the   Shikshan   Sevaks   of   the <\/p>\n
       respective regions.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
Thereafter,   Government   Resolution   dated   27.7.2001   was   issued   directing <\/p>\n
that   the   grievances   will   be   considered   by   a   Single   Member   committee  <\/p>\n
consisting   of   retired   Judge   (higher   level)   at   Mumbai,   Aurangabad   and <\/p>\n
Nagpur   by   way   of   circuit   bench   and  resolve   the   complaints   of   Shikshan  <\/p>\n
Sevaks.\n<\/p>\n
Facts of this case<\/p>\n
6.     The appellants appointed the first respondent as a  Shikshan Sevak  on <\/p>\n
29.7.2000 for the period 1.8.2000 to 31.7.2003. The first respondent alleges <\/p>\n
that his services were orally terminated on 11.6.2001. On the other hand, the  <\/p>\n
appellants allege that services of first respondent came to an end in March-\n<\/p>\n
April, 2001 (as his appointment was not approved due to lack of prescribed <\/p>\n
qualifications); and the first respondent joined another school as an assistant <\/p>\n
teacher   in   July,   2001.   The   first   respondent   challenged   his   termination   by <\/p>\n
filing   an   appeal   before   the   School   Tribunal.   Later   he   withdrew   the   said <\/p>\n
appeal on 18.10.2003 and filed an appeal before the Grievance Committee in <\/p>\n
                                             5<\/span><\/p>\n
the year 2004. The appellants raised various preliminary objections about the <\/p>\n
maintainability   of   the   complaint.   As   the   Grievance   Committee   did   not <\/p>\n
consider them, the appellants filed W.P. No.7597\/2005 seeking a direction to <\/p>\n
the Grievance Committee to decide the preliminary issues. The High Court <\/p>\n
admitted the said writ petition was admitted, but did not stay the proceedings <\/p>\n
before   the   Grievance   Committee.   Therefore,   the   Committee   proceeded   to <\/p>\n
hear the matter and allowed the appeal by order dated 28.7.2006. It quashed  <\/p>\n
the termination dated 11.6.2001 and directed the appellants to reinstate the <\/p>\n
first respondent forthwith in any of their high schools without back wages <\/p>\n
but   with   continuity   of   service   with   a   further   direction   to   the   Education <\/p>\n
Officer   to   approve   the   appointment   of   the   first   respondent   as   a   regular <\/p>\n
teacher\/assistant   teacher.   The   appellants   filed   W.P.No.6196\/2006 <\/p>\n
challenging the order dated 28.7.2006. A learned Single Judge admitted the <\/p>\n
said writ petition on 2.5.2008 but refused to stay the order of the Grievance <\/p>\n
Committee.   The   said   order   dated   2.5.2008   refusing   the   interim   relief   is <\/p>\n
challenged in the second of these two appeals.\n<\/p>\n
7.     The   first   respondent   filed   a   writ   petition   (W.P.No.7362\/2007)   in <\/p>\n
September, 2007 seeking a direction to the appellants to implement the order <\/p>\n
dated   28.7.2006   passed   by   the   Grievance   Committee.   In   the   said   writ <\/p>\n
                                                6<\/span><\/p>\n
petition,   the   High   Court   while   issuing   notice   on   31.3.2008,   directed   the <\/p>\n
Education officer   to ensure  the  compliance   by  the  appellants,  of the  order <\/p>\n
dated   28.7.2006   passed   by   the   Grievance   Committee   forthwith,   unless   the <\/p>\n
said   order   was   challenged   and   a   stay   obtained.   The   appellants   filed   an <\/p>\n
application seeking vacation of the said interim order dated 31.3.2008 which <\/p>\n
was   dismissed   by   the   High   Court   by   order   dated   5.8.2008,   holding   as <\/p>\n
follows :\n<\/p>\n
(i)      The Grievance Committee had the power to decide the legality of the <\/p>\n
termination.\n<\/p>\n
(ii)     When the Grievance Committee comes to a conclusion that the order <\/p>\n
of   termination   is   bad   or   illegal,   the  Shikshan   Sevak  whose   services   are <\/p>\n
terminated, would continue to be on the rolls of the school.\n<\/p>\n
(iii)    As the management receives grant-in-aid in regard to Shikshan Sevak, <\/p>\n
the   appellants   were   bound   to   comply   with   the   direction   issued   by   the <\/p>\n
Grievance Committee.\n<\/p>\n
The   said   order   is   challenged   in   the   first   of   these   two   appeals.   This   Court <\/p>\n
on   15.9.2008   while   issuing   notice   granted   interim   stay   of   the   orders <\/p>\n
dated 31.3.2008 and 5.8.2008.\n<\/p>\n
                                            7<\/span><\/p>\n
The Issue<\/p>\n
8.     Under   the  Shikshan   Sevak  Scheme,   as   originally   formulated   by   the <\/p>\n
State   Government   by   Government   Resolution   dated   27.4.2000,   the <\/p>\n
Grievance Redressal Committee was merely a mechanism to hear grievances <\/p>\n
of  Shikshan   Sevaks  and   give   its   recommendation   to   the   Education <\/p>\n
Department,   so   that   the   department   could   take   appropriate   action.   The <\/p>\n
Grievance Committee was not intended to be a quasi-judicial forum as was <\/p>\n
evident   from   the   following:   (a)   The   committee   was   constituted   only   to <\/p>\n
consider   the   grievances   of   the  Shikshan   Sevaks  by   giving   them   an <\/p>\n
opportunity   of   putting   forth   their   grievances.   (b)   The   scheme   did   not <\/p>\n
contemplate   issue   of  notice  to   the  employer,   nor   hearing  both   parties,   nor <\/p>\n
rendering any adjudicatory decision. (c) The committee was a departmental <\/p>\n
committee with only the concerned officers as members.\n<\/p>\n
9.     The   High   Court   while   recommending   various   modifications   to   the <\/p>\n
said scheme, in its order dated 16.8.2000, issued specific directions making <\/p>\n
significant   changes   in   the   constitution   and   functioning   of   the   committee.\n<\/p>\n
Firstly it directed a change in the constitution of the committee by requiring <\/p>\n
a retired District Judge to head the Committee. Secondly, it directed that an <\/p>\n
opportunity   should   be   given   to   the   `parties’,   that   is,   the   complainant <\/p>\n
                                               8<\/span><\/p>\n
(Shikshan Sevak) and the person against whom the complaint was made (the <\/p>\n
employer)   to   file   their   statements\/replies,   before   adjudicating   upon   the <\/p>\n
dispute.   Thirdly,   it   directed   that   the   committee   should   be   the   only <\/p>\n
adjudicatory authority and excluded the jurisdiction of the Civil Courts (and <\/p>\n
any   other   authority)   to   entertain   any   suit   or   application   in   regard   to   the <\/p>\n
disputes relating to selection, appointment, re-appointment or cancellation of <\/p>\n
appointment  of  Shikshan Sevaks. The aforesaid  three changes by  the High <\/p>\n
Court converted what was originally conceived by the State Government to <\/p>\n
be   an   administrative   grievance   redressal   mechanism,   into   a   quasi   judicial <\/p>\n
adjudicatory Tribunal.  This was reiterated by a subsequent order of the High <\/p>\n
Court   converting   the   committee   into   a   one-man   Tribunal   consisting   of   a <\/p>\n
retired Judge (of the rank of Civil Judge, Senior Division).\n<\/p>\n
10.     The appellants  contend that  the  constitution of such   a quasi  judicial <\/p>\n
tribunal, by a judicial fiat to the state government, was without the authority  <\/p>\n
of law and invalid, and consequently, the decisions by such a forum are void  <\/p>\n
and unenforceable.  On the contentions raised, the following questions arise <\/p>\n
for our consideration :\n<\/p>\n
(i)     Whether the High Court can direct the State Government to create a <\/p>\n
        quasi   judicial   forum;   and   whether   creation   of   such   a   forum   by   an <\/p>\n
                                                9<\/span><\/p>\n
         executive   order,   by   the   State   Government,   in   pursuance   of   such   a <\/p>\n
         direction, is valid?\n<\/p>\n
(ii)     Whether   the   High   Court   could,   by   a   judicial   order,   exclude   the <\/p>\n
         jurisdiction   of   civil   courts   to   entertain   any   suits   or   applications   in <\/p>\n
         respect of disputes raised by Shikshan Sevaks?\n<\/p>\n
(iii)    Whether   the   High   Court   was   justified   in   holding   that   when   the <\/p>\n
         Grievance   Committee   holds   that   the   order   of   termination   is   bad   or <\/p>\n
         illegal, it does not amount to ordering reinstatement, but the Shikshan  <\/p>\n
         Sevak  would   as   a   result   continue   to   be   in   the   employment   of   the  <\/p>\n
         employer?\n<\/p>\n
(iv)     Whether   the   orders   dated   2.5.2008   and   5.8.2008   of   the   High   Court <\/p>\n
         call for interference?\n<\/p>\n
11.      In the State of Maharashtra, the conditions of service of employees of <\/p>\n
private   schools   are   governed   by   the   Maharashtra   Employees   of   Private <\/p>\n
Schools (Conditions of Service) Regulation Act, 1977 (`Act’ for short). The <\/p>\n
said Act applies to employees of primary schools, secondary schools, higher <\/p>\n
secondary schools, junior colleges of education or any other institutions by <\/p>\n
whatever name called including technical, vocational or art institutions. The <\/p>\n
term   `employee’   was   initially   defined   as   any   member   of   the   teaching   and <\/p>\n
non-teaching   staff   of   a   recognized   school.   Section   8   provided   for <\/p>\n
constitution   of   School   Tribunals   consisting   of   single   member   who   is   an <\/p>\n
officer of the rank of Civil Judge (Senior Division). Section 9 gave a right of <\/p>\n
appeal to the employees of private schools to the Tribunal. The Tribunal was <\/p>\n
given the power to give appropriate reliefs and directions to the management <\/p>\n
                                            10<\/span><\/p>\n
including reinstatement, awarding of lesser punishment, restoration of rank, <\/p>\n
payment of arrears of emoluments etc., and also the power to levy penalty.\n<\/p>\n
When the  Shikshan Sevak Scheme  was introduced in the year 2000, it was <\/p>\n
assumed that the  Shikshan Sevaks  were not “employees” of private schools <\/p>\n
and therefore will not be entitled to approach the School Tribunals for relief.\n<\/p>\n
Therefore, the scheme provided a grievance redressal mechanism. When the <\/p>\n
validity of the scheme was challenged, the High Court was also of the view <\/p>\n
that   the   Act   would   not   apply   to  Shikshan   Sevaks  as   they   were   not <\/p>\n
`employees’ as defined under the Act. The High Court however was of the <\/p>\n
view that  Shikshan Sevaks    should have recourse to remedies similar to the <\/p>\n
regular employees of private schools and therefore directed reconstitution of <\/p>\n
the grievance committees on the lines of the School Tribunal. The Act was <\/p>\n
amended   by   Amendment   Act   14   of   2007   whereby   the   definition   of <\/p>\n
`employee’   was   expanded   to   include  Shikshan   Sevaks.  Ever   since   the <\/p>\n
amendments   to   the   Act,   by   Act   14   of   2007,   came   into   force,   Shikshan  <\/p>\n
Sevaks  have   the   remedy   of   approaching   the   statutory   School   Tribunals <\/p>\n
constituted under the Act for redressal of their grievances and the Grievance <\/p>\n
Committees became redundant. Thus what falls for consideration in this case <\/p>\n
is the position that existed prior to the 2007 Amendment to the Act.\n<\/p>\n
                                                11<\/span><\/p>\n
Re: Question (i)<\/p>\n
12.     Chapter   VI   of   the   Constitution   of   India   deals   with   Sub-ordinate <\/p>\n
Courts.   Article   233   of   the   Constitution   of   India   relates   to   appointment   of <\/p>\n
District   Judges.   Article   234   relates   to   recruitment   of   persons   other   than <\/p>\n
District   Judges   to   the   judicial   service   and   provides   that   appointment   of <\/p>\n
persons to the judicial service of a State (other than District Judges) shall be  <\/p>\n
made  by the Governor of the State in accordance with the Rules made  by  <\/p>\n
him   in   that   behalf   after   consultation   with   the   State   Public   Service <\/p>\n
Commission  and  with the  High Court exercising  jurisdiction  in relation to <\/p>\n
such State. Article 247 provides that notwithstanding anything contained in <\/p>\n
Chapter I of Part XI of the Constitution, Parliament may by law provide for  <\/p>\n
the   establishment   of   any   additional   courts   for   the   better   administration   of <\/p>\n
laws made by the Parliament or of any existing laws with respect to a matter <\/p>\n
enumerated in the union list.\n<\/p>\n
13.     Part   XIV-A   of   the   Constitution   of   India   deals   with   Tribunals.\n<\/p>\n
Article   323A   provides   for   the   creation   of   Administrative   Tribunals.\n<\/p>\n
Article 323B provides that the appropriate Legislature may by law provide <\/p>\n
for   the   adjudication   or   trial   by   Tribunals   of   any   disputes,   complaints   or <\/p>\n
offences   with   respect   to   all   or   any   of   the   matters   specified   in   clause   (2) <\/p>\n
                                                    12<\/span><\/p>\n
thereof with respect to which such Legislature has power to make laws. The <\/p>\n
matters   enumerated   in   clause   (2)   of   Article   323B   do   not   include   disputes <\/p>\n
relating   to   employees   of   educational   institutions.   This   Court   in  State   of  <\/p>\n
Karnataka   vs.  Vishwabharathi   House   Building   Co-op.,   Society<\/a>  –   2003   (2) <\/p>\n
SCC 412  has clarified that Articles 323A and 323B enabling the setting up <\/p>\n
of   Tribunals,   are   not   to   be   interpreted   as   prohibiting   the   legislature   from <\/p>\n
establishing   Tribunals  not  covered   by   the   said   Articles  as  long  as   there   is <\/p>\n
legislative competence under an appropriate entry in the Seventh Schedule.\n<\/p>\n
14.     Courts   and   Tribunals   are   constituted   by   the   State,   to   invest   judicial <\/p>\n
functions,   as   distinguished   from   purely   administrative   or   executive <\/p>\n
functions, (vide Durga Shankar Mehta v. Thakur Raghuraj Singh<\/a> – 1955 (1) <\/p>\n
SCR   267).    `Courts’   refer   to   hierarchy   of   courts   invested   with   state’s <\/p>\n
inherent   judicial   power   established   to   administer   justice   in   pursuance   of <\/p>\n
constitutional   mandate.   Tribunals   are   established   under   special   Statutes   to <\/p>\n
decide   the   controversies   arising   under   those   special   laws.  In  Associated  <\/p>\n
Cement   Companies   Ltd.   vs.   P.N.Sharma<\/a>  [1965   (2)   SCR   366]   this   Court <\/p>\n
observed :\n<\/p>\n
        “…Judicial functions and judicial powers are one of the essential attributes <\/p>\n
        of a sovereign State, and on considerations of policy, the State transfers its <\/p>\n
        judicial   functions   and   powers   mainly   to   the   courts   established   by   the <\/p>\n
        Constitution;   but   that   does   not   affect   the   competence   of   the   State,  by  <\/p>\n
                                                     13<\/span><\/p>\n
       appropriate   measures,  to   transfer   a   part   of   its   judicial   powers   and <\/p>\n
       functions to tribunals by entrusting to them the task of adjudicating upon <\/p>\n
       special matters and disputes between parties.”\n<\/p><\/blockquote>\n
                                                                              [emphasis supplied]<\/p>\n
In Kihoto Hollohan v. Zachillhu<\/a> [1992  Supp(2) SCC 651], this Court held: <\/p>\n<\/blockquote>\n
       “Where there is a lis – an affirmation by one party and denial by another –  <\/p>\n
       and   the   dispute   necessarily   involves   a   decision   on   the   rights   and <\/p>\n
       obligations of the parties to it and the authority is called upon to decide it, <\/p>\n
       there is an exercise of judicial power. That authority is called a Tribunal, if <\/p>\n
       it does not have all the trappings of a court.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
In  Union   of   India   v.   Madras   Bar   Association<\/a>  [2010   (11)   SCC   1],   a <\/p>\n
Constitution Bench of this Court held:\n<\/p><\/blockquote>\n
<\/blockquote>\n
       “The term `Courts’ refers to places where justice is administered or refers <\/p>\n
       to   Judges   who  exercise   judicial   functions.   Courts   are   established   by  the <\/p>\n
       state for administration of justice that is for exercise of the judicial power <\/p>\n
       of   the   state   to   maintain   and   uphold   the   rights,   to   punish   wrongs   and   to <\/p>\n
       adjudicate   upon   disputes.   Tribunals   on   the   other   hand   are   special <\/p>\n
       alternative institutional mechanisms,  usually brought into existence by or  <\/p>\n
       under a statute to decide disputes arising with reference to that particular  <\/p>\n
       statute,  or   to   determine   controversies   arising   out   of   any   administrative <\/p>\n
       law.   Courts   refer   to   Civil   Courts,   Criminal   Courts   and   High   Courts. <\/p>\n
       Tribunals can be either private Tribunals (Arbitral Tribunals), or Tribunals <\/p>\n
       constituted under the Constitution (Speaker or the Chairman acting under <\/p>\n
       Para   6(1)   of   the   Tenth   Schedule)   or   Tribunals   authorized   by   the <\/p>\n
       Constitution (Administrative Tribunals under Article 323A and Tribunals <\/p>\n
       for   other   matters   under   Article   323B)   or   Statutory   Tribunals   which   are <\/p>\n
       created under a statute (Motor Accident Claims Tribunal, Debt Recovery <\/p>\n
       Tribunals and consumer fora).”\n<\/p><\/blockquote>\n
                                                                              (emphasis supplied)<\/p>\n<\/blockquote>\n<\/blockquote>\n
15.    Apart   from   constitutional   provisions,   Tribunals   with   adjudicatory <\/p>\n
powers can be created only by Statutes. Such Tribunals are normally vested <\/p>\n
with   the   power   to   summon   witnesses,   administer   oath,   and   compel <\/p>\n
                                              14<\/span><\/p>\n
attendance   of   witnesses   and   examine   them  on   oath,   and   receive   evidence. <\/p>\n<\/blockquote>\n
Their powers are derived from the statute that created them and they have to <\/p>\n
function within the limits imposed by such statute. It is possible to achieve <\/p>\n
the independence associated with a judicial authority only if it is created in <\/p>\n
terms   of   the   Constitution   or   a   law   made   by   the   Legislature.     Creation, <\/p>\n
continuance   or   existence   of   a   judicial   authority   in   a   democracy   must   not <\/p>\n
depend   on   the   discretion   of   the   executive   but   should   be   governed   and <\/p>\n
regulated by appropriate law enacted by a Legislature. In this context, it is <\/p>\n
worthwhile   to   refer   to   the   following   observations   of   the   European <\/p>\n
Commission of Human Rights in Zand vs. Austria (Appeal No.7360 of 1976 <\/p>\n
decided on 12.10.1978): “The judicial organization in a democratic society <\/p>\n
must not depend on the discretion of the executive, but should be regulated <\/p>\n
by law emanating from the Parliament”.\n<\/p>\n
16.    Article 162 of the Constitution, no doubt, provides that subject to the <\/p>\n
provisions of the constitution, the executive power of a State shall extend to  <\/p>\n
the   matters   upon   which   the   Legislature   of   the   State   has   competence   to <\/p>\n
legislate   and   are   not   confined   to   matters   over   which   legislation   has   been <\/p>\n
already passed. It is also well settled that so long as the State Government <\/p>\n
does not go against the provisions of the Constitution or any law, the width <\/p>\n
                                                15<\/span><\/p>\n
and   amplitude   of   its   executive   power   under   Article   162   cannot   be <\/p>\n
circumscribed; and if there is no enactment covering a particular aspect, the <\/p>\n
Government   could   carry   on   the   administration   by   issuing   administrative <\/p>\n
directions   or   instructions,   until   the   legislature   makes   a   law   in   that   behalf.\n<\/p>\n
(See  Ram   Jawaya   Kapur   Vs.   State   of   Punjab  –   1955   (2)   SCR   225   and <\/p>\n
Bishamber Dayal Chandra Mohan vs. State of U.P. – 1982 (1) SCC 39.  But <\/p>\n
the   powers   of   the   State   to   exercise   executive   powers   on   par   with   the <\/p>\n
legislative   powers   of   the   legislature,   is   “subject   to   the   provisions   of   the <\/p>\n
Constitution”. The provisions of the Constitution, namely Articles 233, 234 <\/p>\n
and   247  for   constituting   sub-ordinate   courts,   and   Articles  323A   and   323B <\/p>\n
for constituting tribunals by law made by the legislature, make it clear that <\/p>\n
judicial   Tribunals   shall   be   created   only   by   statutes   or   rules   framed   under <\/p>\n
authority granted by the Constitution. If the power to constitute and create <\/p>\n
judicial   Tribunals   by   executive   orders   is   recognized,   there   is   every <\/p>\n
likelihood   of   Tribunals   being   created   without   appropriate   provisions   in <\/p>\n
regard   to   their   constitution,   functions,   powers,   appeals,   revisions,   and <\/p>\n
enforceability of their orders, leading to chaos and confusion. There is also <\/p>\n
very   real   danger   of   citizen’s   rights   being   adversely   affected   by  ad   hoc <\/p>\n
authorities   exercising   judicial   functions,   who   are   not   independent   or <\/p>\n
competent   to   adjudicate   disputes   and   render   binding   decisions.   Therefore, <\/p>\n
                                               16<\/span><\/p>\n
the   executive   power   of   the   State   cannot   be   extended   to   creating   judicial <\/p>\n
Tribunals   or   authorities   exercising   judicial   powers   and   rendering   judicial <\/p>\n
decisions.\n<\/p>\n
17.     Neither   the   Constitution   nor   any   statute   empowers   a   High   Court   to <\/p>\n
create or constitute quasi judicial Tribunals for adjudicating disputes. It has <\/p>\n
no   legislative   powers.   Nor   can   it   direct   the   executive   branch   of   the   State <\/p>\n
Government to create or constitute quasi judicial Tribunals, otherwise than <\/p>\n
by legislative Statutes. Therefore, it is not permissible for the High Court to <\/p>\n
direct the State Government to constitute judicial authorities or Tribunals by <\/p>\n
executive   orders,   nor   permissible   for   the   State   by   executive   order   or <\/p>\n
resolution create them for adjudication of rights of parties.\n<\/p>\n
Re: Question (ii)<\/p>\n
18.     Section   9   of   the   Code   of   Civil   Procedure   provides   that   the   courts <\/p>\n
shall, subject to the provisions of the Code, have jurisdiction to try all suits <\/p>\n
of a civil nature excepting suits of which their cognizance is either expressly  <\/p>\n
or impliedly barred. The express or implied bar necessarily refers to a bar  <\/p>\n
created   by   the   Code   itself   or   by   any   statute   made   by   a   Legislature.\n<\/p>\n
Therefore,   the   High   Court   in   exercise   of     the   power   of   judicial   review, <\/p>\n
                                              17<\/span><\/p>\n
cannot issue a direction that the civil courts shall not entertain any  suit or <\/p>\n
application in regard to a particular type of disputes (in this case, disputes <\/p>\n
relating   to  Shikshan   Sevaks)   nor   create   exclusive   jurisdiction   in   a   quasi-\n<\/p>\n
judicial   forum   like   the   Grievance   Committee   will   be   entitled   to   deal   with <\/p>\n
them.   The   High   Court,   cannot,   by   a   judicial   order,   nullify,   supersede   or <\/p>\n
render ineffectual the express provisions of an enactment.\n<\/p>\n
19.     Therefore,  we hold  that constitution  of a  Grievance  Committee  as a <\/p>\n
public adjudicatory forum, whose decisions are binding on the parties to the <\/p>\n
disputes,   by   an   executive   order   of   the   Government   is   impermissible.\n<\/p>\n
Secondly, the High Court cannot in exercise of judicial power interfere with <\/p>\n
the   jurisdiction   of   the   civil   courts   vested   under   Code   of   Civil   Procedure.\n<\/p>\n
Any such Grievance Committee created by an executive order, either on the <\/p>\n
direction of the High Court or otherwise, can only be fact finding bodies or <\/p>\n
recommending   bodies   which   can   look   into   the   grievances   and   make <\/p>\n
appropriate recommendations to the government or its authorities, for taking <\/p>\n
necessary   actions   or   appropriate   reports   to   enable   judicial   Tribunals   to <\/p>\n
render decisions. The Grievance Committee cannot be public quasi-judicial <\/p>\n
forum nor can its decisions be made final and binding on parties, in disputes  <\/p>\n
relating  to  Shikshan  Sevaks.  Therefore,  it  has  to  be   held  that  any   order  or <\/p>\n
                                                18<\/span><\/p>\n
opinion of the Grievance Committee on a complaint or grievance submitted <\/p>\n
by a  Shikshan Sevak  were only recommendations to the State Government <\/p>\n
(Education Department) for taking further action and nothing more.\n<\/p>\n
Re : Questions (iii) & (iv)<\/p>\n
20.     Even   assuming   that   the   committees   constituted   under   the  Shikshan  <\/p>\n
Sevaks scheme were quasi judicial tribunals, they cannot direct reinstatement <\/p>\n
nor direct that the employees are deemed to continue in service by declaring <\/p>\n
the   termination   to   be   bad.   It   is   well   settled   that   courts   would   not   direct <\/p>\n
reinstatement of service nor grant a declaration that a contract of personnel <\/p>\n
service subsists and that the employee even after removal is deemed to be in <\/p>\n
service. [See :   S.B. Dutt vs. University of Delhi<\/a> – AIR 1958 SC 1050]. The <\/p>\n
three recognized exceptions to the said rule are : (i) where a public servant  <\/p>\n
having the protection of Article 311 of the Constitution  is dismissed  from <\/p>\n
service is in contravention of the provision; (ii) where a dismissed workman <\/p>\n
seeks   reinstatement   before   Industrial   Tribunals\/Labour   Courts   under   the <\/p>\n
industrial law; and (iii) where a statutory body acts in breach or violation of <\/p>\n
the mandatory obligation imposed by Statute. [See : Executive Committee of  <\/p>\n
Vaish Degree College, Shamli vs. Lakshmi Narain<\/a>  – 1976 (2) SCR 1006].\n<\/p>\n
The  direction   of the  High  Court  in  its order  dated  5.8.2008  that  when  the <\/p>\n
                                                19<\/span><\/p>\n
grievance committee holds that the termination is bad, the Shikshan Sevak  is <\/p>\n
deemed  to continue on the rolls of the management  is therefore erroneous <\/p>\n
and liable to be set aside.\n<\/p>\n
21.     If a Grievance Committee opines that the termination or cancellation <\/p>\n
of   appointment   of   a  Shikshan   Sevak  was   bad,   the   State   Government   may <\/p>\n
consider   such   opinion\/recommendation   and   if   it   decides   to   accept   it,   take <\/p>\n
appropriate action by directing the school to take back the  Shikshan Sevak,  <\/p>\n
and if the school fails to comply, take such action as is permissible including <\/p>\n
stoppage   of   the   grant.   An   opinion   by   the   Grievance   Committee   that   the <\/p>\n
termination  of the services of a  Shikshan Sevak  is illegal can not however <\/p>\n
have the effect of either reinstating the employee into service, nor deemed to <\/p>\n
be   a   declaration   that   the  Shikshan   Sevak  continues   to   be   an   employee   of <\/p>\n
school. Even if a Shikshan Sevak is wrongly removed, the department could <\/p>\n
only   direct   the   school   to   take   him   back   into   service   and   if   it   does   not <\/p>\n
comply, take action permissible in law for disobedience of its directions.\n<\/p>\n
22.     Therefore   the   decision   of   the   committee   dated   28.7.2006   is   not   an <\/p>\n
enforceable or executable order but only a recommendation that can be made <\/p>\n
the basis by the Education Department to issue appropriate directions. It is <\/p>\n
needless   to   add   that   persons   aggrieved   by   such   directions   of   the   state <\/p>\n
                                               20<\/span><\/p>\n
government   will   be   entitled   to   challenge   such   directions   either   before   the <\/p>\n
civil court or in a writ proceedings.\n<\/p>\n
23.     In   view   of   the   above,   the   appeals   are   allowed   and   the   orders   dated <\/p>\n
2.5.2008 and 5.8.2008, are set aside. The order of the Grievance Committee  <\/p>\n
is   treated   as   a   recommendation   rendered   for   the   benefit   of   the   Education <\/p>\n
Department   which   can   on   the   basis   of   the   said   opinion   take   appropriate <\/p>\n
action in accordance with law. It is also open to the Shikshan Sevak to seek <\/p>\n
appropriate remedy if he is aggrieved by his termination, in accordance with <\/p>\n
law.\n<\/p>\n
                                                                    ………………………J<\/p>\n
                                                                          [R. V. Raveedran]<\/p>\n
                                                                    ………………………J<\/p>\n
                                                                              [A. K. Patnaik]<\/p>\n
New Delhi;\n<\/p>\n
July 4, 2011.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Secr.,A.P.D.Jain Pathshala & Ors vs Shivaji Bhagwat More & Ors on 4 July, 2011 Author: R.V.Raveendran Bench: R.V. Raveendran, A.K. Patnaik Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4988 OF 2011 [Arising out of SLP (C) No.22040\/2008] and CIVIL APPEAL NO. 4989 OF 2011 [Arising […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-34390","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSecr.,A.P.D.Jain Pathshala & Ors vs Shivaji Bhagwat More & Ors on 4 July, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/secr-a-p-d-jain-pathshala-ors-vs-shivaji-bhagwat-more-ors-on-4-july-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Secr.,A.P.D.Jain Pathshala & Ors vs Shivaji Bhagwat More & Ors on 4 July, 2011 - 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