1 wp10514-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 10514 OF 2010 1] Shri Vaidyanath Shikshan Sanstha Parli Vaijnath and others .. PETITIONERS Vs 1] Mithun Dhondiram Rode and another ...RESPONDENTS ... Shri Vivek Dhage, Adv.for petitioners. Shri R.J.Godbole,Adv.for Respondent no.1 Shri S.K.Kadam,AGP for Respondent no.2 ... CORAM : NARESH H. PATIL & T.V.NALAWADE,J. DATE : 13/09/2011 ORAL ORDER: 1] Heard. 2] The petitioners challenge order passed by Grievance Committee in Appeal No. 32-B of 2008 dated 30/4/2010. The respondent Shri Mithun Rode the appellant before Committee prayed 2 wp10514-10 for following reliefs in Appeal : “B] By an appropriate order, direct respondents No.1 to 3 to forward the proposal of the appellant to the Education Officer for approval as Shikshan Sevak for three years from 5.7.2005 to 5.7.2008 and Education Officer be directed to accord an approval in favour of the appellant as “Shikshan Sevak” from 5.7.2005 to 5.7.2008 and Education Officer may kindly be directed to pay to the appellant’s salary and arrears of salary from the date of appointment order till the decision of this Appeal. C] By an appropriate order, direct the Respondents to pay to the appellant regular salary and unpaid salary jointly or severally from the date i.e. 5.7.2005 till the decision of this Appeal. D] Pending hearing and final disposal of this Appeal respondents be directed not to terminate the services of the appellant as “Shikshan Sevak” in the school of Respondent/Management namely Shri Vaidhyanath Vidyalaya, Parli-Vaijnath, Dist.Beed.” 3] By an order dated 30/4/2010, the committee passed following order : " The appeal is partly allowed. The management is hereby directed to release the honorarium of 3 wp10514-10 the appellant from the date of his joining i.e. 7/7/2005 for the period of three years as Shikshan Sevak from their own fund within a period of three months from the date of receipt of copy of this judgment. The management shall send the proposal of the appellant for the approval to the appointment of the appellant forthwith or within a period of two months to the E.O. from receipt of the copy of this judgment. The Education Officer shall decide the said proposal received from the management within a period of two months from the date of receipt of said proposal on its own merit. In the circumstances of the case there shall be no order as to costs.” 4] The learned counsel for the petitioners referred to the judgment in the case of The Secretary, Sh. A.P.D.Jain Pathshala and others V/s Shivaji Bhagwat More and others in [Civil Appeal No.4988/11 arising out of SLP [C] No.22040/08 and Civil Appeal No.4989/11 arising out of SLP [C] No.23566/08, wherein the Apex Court observed in respect of the constitution of Grievance Committee in paras 19,21 and 22 as under : " 19] Therefore, we hold that constitution of a Grievance committee as a public adjudicatory forum, whose decisions are binding on the parties to the disputes, by an executive order of the Government is impermissible. Secondly, the High Court cannot in 4 wp10514-10 exercise of judicial power interfere with the jurisdiction of the civil courts vested under Code of Civil Procedure. Any such Grievance Committee created by an executive order, either on the direction of the High Court or otherwise, can only be fact finding bodies or recommending bodies which can look into the grievances and make appropriate recommendations to the government or its authorities, for taking necessary actions or appropriate reports to enable judicial Tribunals to render decisions. The Grievance Committee cannot be public quasi- judicial forum nor can its decisions be made final and binding on parties, in disputes relating to Shikshan Sevaks. Therefore, it has to be held that any order or opinion of the Grievance Committee on a complaint or grievance submitted by a Shikshan Sevak were only recommendations to the State Government [Education department] for taking further action and nothing more. [21] If a Grievance Committee opines that the termination or cancellation of appointment of a Shikshan Sevak was bad, the State Government may consider such opinion/recommendation and if it decides to accept it,take appropriate action by directing the school to take back the Shikshan Sevak and if the school fails to comply, take such action as is permissible including stoppage of the grant. An opinion by the Grievance committee that the termination of the services of a shikshan Sevak is illegal can not however have the effect of either reinstating the employee into service, nor deemed to be a declaration that the Shikshan Sevak continues to be an employee of school. Even if a Shikshan Sevak is wrongly removed, the 5 wp10514-10 department could only direct the school to take him back into service and if it does not comply, take action permissible in law for disobedience of its directions. [22] Therefore, the decision of the committee dated 28.7.2006 is not an enforceable or executable order but only a recommendation that can be made the basis by the Education Department to issue appropriate directions. It is needless to add that persons aggrieved by such directions of the State Government will be entitled to challenge such directions either before the civil Court or in a writ proceedings." 5] By the Maharashtra Amendment Act 14 of 2007, “Shikshan Sevak” is included in the definition of employee under Section 2[7] of this Act. Under Section 2[24-A] of the said Act, "Shikshan Sevak" has been defined as under : "Shikshan Sevak” means a member of base teaching cadre appointed on honorarium and subject to such terms and conditions as specified in the Government Gazette, Extraordinary, No.12, Part I-Central sub-section, dated the 15th February 2007, for eventual appointment as a teacher”. 6] In the reply filed before the Committee, the management made a statement to the effect that " Inspite of having conscious of all these facts the appeal has been filed suppressing the fact that, 6 wp10514-10 the appellant is no more in service after the expiry of period of stipulated in the approval accorded by the Education Officer and thereafter, the appellant was not even allowed to sign muster roll i.e. after March, 2006". 7] The learned counsel for the petitioner specifically submitted on instructions that the Education Officer had approved services of the respondent for the period from 1/2/2006 to 28/4/2006 and that respondent was not in service after 28/4/2006. 8] From the material placed on record it reveals that though the respondents approached the Committee for grant of approval, after considering pleas raised by contesting parties, the issues in respect of service of respondent with the management, alleged termination of services / otherwise termination, have emerged. In the light of the judgment of the Apex court cited supra and the amended provisions of the M.E.P.S. Act, the appropriate remedy for the respondent Mithun Rode could be to approach the school Tribunal. 9] We therefore, observe without entering into merits of claim of the contesting parties that in case respondent approaches school tribunal under the provisions of MEPS Act and the Rules framed thereunder within 30 days from today, the Tribunal would address the issues raised by contesting parties in the appeal preferred by the 7 wp10514-10 respondent Mithun Rode, if any, and deal with the same in accordance with law. With these observations, Petition is disposed of. 10] It is clarified that in case respondent approaches the Tribunal within 30 days from today, the appeal shall not be dismissed on the ground of delay. 11] It is further clarified that we have not expressed any opinion on merits of the issues raised by the parties to the Petition. 12] The learned A.G.P. to forward copy of this order to the concerned authorities of the State. [T.V.NALAWADE,J.] [NARESH H. PATIL,J.] umg/wp10514-10