bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 5190 OF 2008 PETITION NO. 5190 OF 2008 PETITION NO. 5190 OF 2008 Mr.Brian Oscar Dennis Pasgon ... Petitioner v/s Bombay Education Society & ors. ... Respondents Mr.Mihir Desai for the petitioner for the petitioner. Mr.S.C.Naidu i/by M/s.C.R.Naidu & Co. for Resp.No.1. Ms.S.S.Bhende, A.G.P. for respondent Nos.2 and 3. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 18TH SEPTEMBER, 2008 18TH SEPTEMBER, 2008 18TH SEPTEMBER, 2008 P.C. P.C. P.C.: . Rule. Rule made returnable forthwith by consent. 1. The controversy in this petition revolves around the issue as to whether a school which is recognised and affiliated to the ICSE Board is a private school falling within the purview of the Maharashtra Employees of Private Schools Act, 1977 (in short M.E.P.S. Act) and Rules 1981. 2. The relevant facts giving rise to the present petition are as follows:- 2 . The petitioner joined the Christ Church School which is run by the 1st respondent Society in 1971. This school is affiliated to and recognised by the I.C.S.E. Board. He was appointed as the Principal from 1.4.1998, initially on probation for a period of one year. Thereafter the petitioner’s appointment as the Principal was confirmed by letter dated 17.7.2000. The petitioner’s services were sought to be terminated on the basis of allegations pertaining to administrative and financial irregularities. The petitioner approached the School Tribunal constituted under the M.E.P.S. Act. An interim order was passed on 23.2.2001 by the School Tribunal directing the respondents to pay the petitioner half his salary each month during the pendency of the appeal. Respondent No.1 i.e. the management of the school, preferred Writ Petition No.3328 of 2001 before this Court being aggrieved by the interim order of the School Tribunal. Respondent No.1 withdrew the order of termination and agreed to pay the petitioner his full salary from 17.7.2000 alongwith arrears. 3. An enquiry was thereafter conducted into the allegations against the petitioner and by an order dated 5.8.2002 petitioner’s services were terminated. The petitioner once again approached the School Tribunal by 3 filing Appeal No. 74 of 2002 challenging the order of termination. The management of the School contested the appeal. One of the grounds raised was that the School Tribunal had no jurisdiction to decide the appeal since the school was affiliated to the ICSE Board, New Delhi and was, therefore, not a recognised one as contemplated under Section 2 sub-section (21) of the M.E.P.S. Act. The School Tribunal upheld the contentions of the management of the school and dismissed the appeal by concluding that it had no jurisdiction to decide the same. 4. For considering whether a school affiliated to the ICSE Board is a school which falls within the purview of the M.E.P.S. Act, it would be advantageous to set out a few relevant provisions of law. Section Section Section 2(24) defines "school" thus - 2(24) defines "school" thus - 2(24) defines "school" thus - "school" "school" "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." "Private "Private "Private School" is defined in Section 2(20) School" is defined in Section 2(20) School" is defined in Section 2(20) thus thus thus - - - "private "private "private school" school" school" means a recognised school established or administered by a Management, 4 other than the Government or a local authority. "a "a "a recognised school" is one which is defined recognised school" is one which is defined recognised school" is one which is defined under under under Section 2(21) as follows - Section 2(21) as follows - Section 2(21) as follows - "recognised" "recognised" "recognised" means recognised by the Director, the divisional Board or the State Board, or by any officer authorised by him or by any of such Board." "State "State "State Board" has been defined in Section Board" has been defined in Section Board" has been defined in Section 2(25) 2(25) 2(25) thus - thus - thus - "State "State "State Board" means - Board" means - Board" means - (a) the Maharashtra State Board of Secondary and Higher Secondary Education established under the Maharashtra Secondary and Higher Secondary Education Boards Act, 1965; (b) the Board of Technical Examinations, Maharashtra State; (c) the Maharashtra State Board of Vocational Examination; or (d) the Art Examinations Committee. Thus, unless a private school is recognised by the State Board it is not a school within the purview of the M.E.P.S. Act. There is no dispute that the Christ Church School is a private school. But it is not a private school which falls within the scope of the M.E.P.S. Act. This is because the ICSE Board is not one of the Boards included in the M.E.P.S. Act. Therefore, a school which is recognised and affiliated to the ICSE Board is not one which is governed by the M.E.P.S. Act. 5 5. In the case of Suryakant Sheshrao Panchal v/s Suryakant Sheshrao Panchal v/s Suryakant Sheshrao Panchal v/s Vasantrao Vasantrao Vasantrao Naik Vimukta Jati, reported in 2002 (3) Naik Vimukta Jati, reported in 2002 (3) Naik Vimukta Jati, reported in 2002 (3) Mh.L.J. Mh.L.J. Mh.L.J. 659, 659, 659, a full bench of this Court, while considered whether an Ashram school is recognised by the Divisional Board and falls within the purview of the M.E.P.S. Act. The Court has held that, an Ashram school running classes from 1st to 7th standard, which does not require recognition from the Board, is not a private school. The full bench has, while considering the issue, held that unless a school is covered by the definition of private school within the meaning of Section 2(20) of the M.E.P.S. Act, an employee of such a school would not have the remedy of an appeal under Section 9 of the Act. 6. Similarly, while considering whether employees of a blind school are governed by the provisions of the M.E.P.S. Act, a learned Single Judge of this Court in the case of Dr.Narendra Bhiwapurkar Andha Vidyalaya, Dr.Narendra Bhiwapurkar Andha Vidyalaya, Dr.Narendra Bhiwapurkar Andha Vidyalaya, Amravati Amravati Amravati v/s Shobha Laxman Pachkawade & ors., reported v/s Shobha Laxman Pachkawade & ors., reported v/s Shobha Laxman Pachkawade & ors., reported in in in 2004 (1) Mh.L.J. 10, 2004 (1) Mh.L.J. 10, 2004 (1) Mh.L.J. 10, held that such a school is not a private school and, therefore, the School Tribunal has no jurisdiction to entertain an appeal filed by an employee of such a school. 7. In the case of Kusumben Gulabchand Meghani v/s The Kusumben Gulabchand Meghani v/s The Kusumben Gulabchand Meghani v/s The 6 Commissioner Commissioner Commissioner of Municipal Corporation of Greater of Municipal Corporation of Greater of Municipal Corporation of Greater Bombay, Bombay, Bombay, a Division Bench of this Court in Writ Petition Writ Petition Writ Petition No.4476 No.4476 No.4476 of 1983 by order dated 17.4.1984 of 1983 by order dated 17.4.1984 of 1983 by order dated 17.4.1984, held that the school run by the Municipal Corporation of Greater Bombay is not a private school and, therefore, an employee who is aggrieved by any decision taken by the management of that school cannot challenge it by approaching the School Tribunal. The Division Bench held that the school must be a private school and unless it is established that the recognition is granted by the Director of the Education or the Director of Technical Education, the school would not be a private school recognised by the authorities meant in the Act. The Division Bench was of the opinion that the recognition granted by the Education Committee of the Corporation was not sufficient to indicate that such a school would only fall within the ambit of the M.E.P.S. Act. 8. Another Division Bench of this Court in the case of Sheila Sheila Sheila Dixit v/s Laxmibai Valunju Prathamik Shala, Dixit v/s Laxmibai Valunju Prathamik Shala, Dixit v/s Laxmibai Valunju Prathamik Shala, reported reported reported in 1998 2 C.L.R. 265, in 1998 2 C.L.R. 265, in 1998 2 C.L.R. 265, has held that the M.E.P.S. Act is not applicable to the schools which are recognised by the Municipal Corporation of Greater Bombay as the definition of private school in Section 2(20) of the M.E.P.S. Act does not take into its fold 7 a primary school run by the Corporation. 9. A similar view was taken by another Division Bench of this Court in the case of Rita T. Verghese v/s The Rita T. Verghese v/s The Rita T. Verghese v/s The Headmistress, Headmistress, Headmistress, Vidya Mandir English Primary School, Vidya Mandir English Primary School, Vidya Mandir English Primary School, Bombay Bombay Bombay & ors., reported in 2002 (3) Mh.L.J. 57. & ors., reported in 2002 (3) Mh.L.J. 57. & ors., reported in 2002 (3) Mh.L.J. 57. The Division Bench held that a school recognised by local authorities, such as, the Municipal Corporation is not covered by the provisions of the M.E.P.S. Act. 10. It must be noted here that a learned Single Judge of this Court, in the case of Vasantrao Naik Education Vasantrao Naik Education Vasantrao Naik Education Society Society Society v/s The Presiding Officer & anr., reported in v/s The Presiding Officer & anr., reported in v/s The Presiding Officer & anr., reported in 2000 2000 2000 (4) Bom.C.R. 773, (4) Bom.C.R. 773, (4) Bom.C.R. 773, had taken the view that employees of the schools run for the blind, deaf and dumb would be entitled to pursue their remedies under the M.E.P.S. Act even though the schools are governed by the State Board. However, this judgment is no longer good law in view of the decision of the Full Bench in the case of Suryakant Sheshrao Panchal v/s Suryakant Sheshrao Panchal v/s Suryakant Sheshrao Panchal v/s Vasantrao Vasantrao Vasantrao Naik Vimukta Jati, (supra). Naik Vimukta Jati, (supra). Naik Vimukta Jati, (supra). 11. As regards ICSE school, the Division Bench of this Court in Writ Petition No.4126 of 2004 has, on 9th December, 2004, held that since the school is not recognised by the Director or any of the Boards as 8 mentioned in Section 2(21) of the M.E.P.S. Act, the Act is not applicable to such schools. The Court has observed that the State Authorities merely issue a No Objection Certificate for starting such schools but the schools are not recognised by the State Authorities. 12. Thus, the question as to whether schools which are affiliated to the ICSE Board are governed by the M.E.P.S. Act is no longer res integra in view of the aforesaid judgments. It is only when a private school is recognised by the Director of the Education, the Divisional Board or the State Board which does not include the ICSE Board, that a school would be governed by the M.E.P.S. Act. It does lead to an incongruity inasmuch as the remedies available to employees of ICSE schools are extremely limited. No judicial or quasi judicial forum appears to have been provided for these employees to approach for redressal of their grievances. Had the ICSE schools been covered by the Act, they would have had the benefit of a remedy to approach the School Tribunal. However, this is an aspect which the Government must consider and it is not for this Court to either legislate or to advise the Government. 13. This being the position in law, the School 9 Tribunal cannot be faulted for dismissing the appeal by concluding that it has no jurisdiction as the appeal is not maintainable. 14. Rule discharged. Writ petition dismissed. No order as to costs.