1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 5226/2008 Shikshan Sewa Mandal vs. State of Mah. and others. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : S.R.DONGAONKAR, J. DATE : 26 th MARCH, 2009 Heard Shri Samarth, Advocate, for the petitioner and Smt. Wasnik, A.G.P. for respndent Nos. 1, 2, 3 & 4. None present for Respondent Nos. 5 & 6. The matter was heard earlier. By relying on the judgment of this Court in Writ Petition NO. 8313/2008, dated 19th December, 2008 (Principal – Our Lady of Salvation High School vs. Ms. Rashmi Upadhyay and ors, the learned counsel for the petitioner has submitted that once Shikshan Sewak are brought within the purview of M.E.P.S. Act, existence of the Grievance Committee constituted for the redressal of the grievance of the Shikshan Sewak does not survive and therefore, respondent nos. 5 & 6 would be required to approach to the School Tribunal if they have any grievance. The following order was passed on 20.3.2009 by this court. 2 Heard Shri Samarth, Advocate, for petitioner, Mrs. Wasnik, A.G.P. for respondent nos. 1 to 4. Learned counsel for the petitioner relying on the judgment of this Court in W.P.8313/08 (Bombay) contended that once Shikshan Sewak are brought within the purview of M.E.P.S. Act, existence of Grievance Committee constituted for redressal of the grievance of the Shikshan Sevak, does not survive. Since respondents no. 5 & 8 will have to apporach the School Tribunal and since respondents no. 5 & 6 are absent today, last chance granted. S.O. 26.3.2009. Interim stay to the impugned order till then to continue.” By the amendment to the Bombay Primary Education and Maharashtra Employees of Private Schools (Conditions of Service) Regulation (Amendment) Act, 2007, Shikshan Sevaks have been brought within the purview of the M.E.P.S. Act for granting them reliefs regarding their grievances, through School Tribunal. The observations of this Court (Dr.D.Y. Chandrachud, J) in W.P. NO. 8313/2008 (Principal – Our Lady of Salvation High School vs. Ms. Rashmi Upadhyay and ors.), which are thus - 3 6. Section 12 of the Amending Act is a savings provision and provides as follows: “12. (1) Notwithstanding anything contained in the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, all Shikshan Sevaks appointed in accordance with the provisions of the Government Resolution published in the Maharashtra Government Gazette, Extraordinary, No. 12, Part I – Central Sub Section, dated the 15th February, 2007, shall be deemed to have been appointed as base cadre shikshan sevak under the said Act, for appointment as teachers on completion of three years service as such shikshan sevak rendered heretobefroe or heretoafter, as the case may be. (2) The terms and conditions prescribed by Government for appointment of Shikshan sevak by issuing Government Resolutions, from time to time, before the date of commencement of the Bombay Primary Education and the Maharashtra Employees of Private Schools (Conditions of Service) Regulation (Amendment) Act, 2007, shall continue to be in force unless modified or revoked. While defending the expression “Shikshan 4 Sevak” in clause 24A of Section 2, the legislature has made a reference to the terms of the Government Resolution dated 15th February, 2007. ............. 10. ...................... The appointment and conditions of service of Shikshan Sevak cease to be merely a matter of contract and have been statutorily embodied into the provisions of the Act of 1977. Their position is not purely of contractual appointees any longer but is governed by legislation, with effect from 13th October, 2000. The Government Resolution of 13th October, 2000 provided for the redressal of grievances before a Grievance Committee. However, after the enactment of the Amending Act which was brought into force with effect from 30th April 2007, the remedy of an appeal before the School Tribunal, which is a duly constituted judicial body, is available to Shikshan Sevaks inter alia against a termination of service. Besides the language which has been used in the Amendment Act, the object of the amendment must be borne in mind in determining whether the remedy of an appeal under Section 9 is available. Brining the Shikshan Sevaks within the purview of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, was an important aspect of legislative policy, the object of which is to bring an element of security to the services of Shikshan Sevaks instead of relegating them purely to the realm of a contractual position. The remedy of an appeal before the School Tribunal is part of the 5 statutory scheme conceived of by the legislation as a measure of protection to teachers and to the non-teaching staff of private schools. Hence, in respect of those matter where a remedy of an appeal is provided by Section 9, recourse to the Grievance committee would stand superseded to that extent. It is true that the mechanism of the Grievance Committee is embodied in the G.R. dated 13th October, 2000. However, once Shikshan Sevaks have been brought within the purview of the statutory protection of the MEPS Act, 1977, the remedy of an appeal under Section 9 of the Act would be available in respect of those matters where an appeal lies. At the cost of repetition, it has to be emphasised that an appeal under Section 9 is available to an employee of a private school and the expression “employee” is defined specifically to include a Shikshan Sevak. What sub-section (2) of Section 12 saves are the terms and conditions prescribed by the Government Resolution for appointment. These would include conditions such as qualification, eligibility and pay scales. Once a comprehensive statutory remedy has been provided for resolving disputes in matters of termination, dismissal, removal, reduction in rank and supersession, that will enure to the benefit of Shikshan Sevaks. An appeal to the Tribunal shall be maintainable under Section 9 and the jurisdiction of the Grievance Committee shall to that extent stand denuded. 11. The view which I have taken is also in consonance with the judgment of a learned Single Judge of this Court in 6 President/Secretary Shivant Education Trust vs. Ramlocan Rajbali Patel. Mr. Justice S.C.Dharmadhikari held as follows;- “It is apparent that the Legislature desired to bring in all Shikshan Sevaks whether appointed under the Govt. Resolution/Gazette Notification dated 15th February, 2007 or earlier within the purview of the MEPS Act. The question of retrospectivity is answered automatically. I am in respectful agreement with the view. may be noted. I am in respectful agreement with this view. Here, cause of action seems to be dated 28.1.2008 (Termination). There is nothing on record to show that the existence of Grievance Committee for redressal of the grievance of the Shikshan Sevak can be or is still continued. In these circumstances, I do not see any reason to take a different view. Therefore, this petition needs to be allowed. The impugned judgment & order dated 20.06.2008 is hereby quashed and set aside. However, with liberty to the parties to move appropriate forum for appropriate relief, if necessary. Petition disposed of. No order as to costs. JUDGE Rvjalit