1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8313 OF 2008 Principal – Our Lady Of Salvation High School. ...Petitioner. Vs. Ms.Rashmi Upadhyay & Ors. ...Respondents. .... Mr. A.G. Kothari for the Petitioner. Ms.Anupama B. Shah for Respondent No.1. Mr. A.I. Patel, AGP for Respondent No.2 ..... CORAM : DR. D.Y.CHANDRACHUD, J. December 19, 2008. ORAL JUDGMENT : The First Respondent was appointed as a Shikshan Sevak by the Petitioner on 14th June 2004. The School in question – Our Lady of Salvation High School is own and managed by a Church of the same description. On 30th March 2007, a letter of termination was addressed to the First Respondent by which her services were to stand dispensed with from 30th April 2007. The First Respondent filed an appeal before the Grievance Committee. The Grievance 2 Committee passed an order on 5th August 2008 setting aside the termination and directing the Petitioner to convert the services of the First Respondent from a Shikshan Sevak to an Assistant Teacher with consequential benefits. 2. On behalf of the Petitioner, it has been urged that initially by a Government Resolution dated 13th October 2000, the Shikshan Sevak Scheme was adopted by the State Government. The State Legislature enacted the Maharashtra Employees of Private Schools (Conditions of Service) Regulation (Amendment) Act, 2007 by which statutory force and effect was given to the Shikshan Sevak Scheme. In the circumstances, it was submitted that if the First Respondent is aggrieved by the termination of her services as a Shikshan Sevak, with effect from 30th April 2007, a remedy would be available in the form of an appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 before the School Tribunal. The Grievance Committee, it is urged, would have no jurisdiction. 3 3. By a Government Resolution dated 13th October 2000, the State Government implemented the Shikshan Sevak Scheme under which a provision was made for appointment of Shikshan Sevaks on a contractual basis for a period of three years. The Shikshan Sevaks were to be initially appointed against the payment of an honorarium. Upon satisfactory completion of service over a period of three years, the services of a Shikshan Sevak were to be absorbed as a regularly appointed teacher. 4. The State Legislature amended the provisions inter alia of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, by Maharashtra Act 14 of 2007, so as to give statutory force and effect to the Shikshan Sevak Scheme. Several amendments were made to the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 to effectuate that purpose. The definition of the expression “employee” in Section 2(7) of the Act was amended to include a Shikshan Sevak. The expression “ Shikshan Sevak” is defined by clause 24A of Section 2 as follows: 4 “”(24A) “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, Extraordinary No.12, Part I – Central Sub-section, dated the 15th February 2007, for eventual appointment as a teacher.” 5. In the case of an Assistant Teacher, Section 5 of the Act lays down that the management shall fill in every permanent vacancy in a private school by the appointment of a duly qualified person. Under sub-section (2) of Section 5 a person appointed to fill up a permanent vacancy is to be on probation of two years. Subject to the satisfactory completion of the period of probation such a person shall be deemed to have been confirmed. Sub-section (2) of Section 5 was also amended by the State Legislature so as to exclude Shikshan Sevaks from the substantive part of the provision. The Legislature, however, introduced a proviso to the effect that a person appointed as Shikshan Sevak shall be on probation for a period of three years. Sub-section 2A was inserted into Section 5 to provide that a Shikshan Sevak shall, on the completion of the period of probation of three years, be deemed to have been appointed and confirmed as a 5 teacher. 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 heretobefore 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 defining the expression “Shikshan Sevak” in clause 24A of Section 2, the Legislature has made a reference to the terms of the Government Resolution dated 15th February 2007. 6 7. The Statement of Objects and Reasons accompanying the Bill which was introduced in the State Legislature notes that the Shikshan Sevak Scheme was being implemented by the issuance of Government Resolutions which were challenged on the ground that they were ultra vires the provisions inter alia of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. The Statement of objects recorded that Government had decided to continue the scheme by issuing suitable amendments to the law so as to bring the posts of Shikshan Sevaks under the purview of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 on the one hand and the Bombay Primary Education Act, 1947 on the other. 8. The consequence of the amendment is that Shikshan Sevaks who have been appointed since 13th October 2000 are now brought within the purview of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. That is evident from the definition of the expression “Shikshan Sevak” in clause 24A of Section 2. In a judgment of the Full Bench of this Court dated 31st 7 August 2007 in Ram Lochan Raj Bali Patel vs. Shivdutta Educational Trust,1 it was noted that the gazette notification dated 15th February 2007 which is referred to in the definition of the expression “Shikshan Sevak” in clause 24A of Section 2 incorporates the Government Resolution dated 13th October 2000. The legislative intent is placed beyond doubt by the savings provision contained in Section 12 of the Amending Act. The savings provision begins with a non-obstante clause and enunciates that all Shikshan Sevaks appointed in accordance with the Government Resolution dated 15th February 2007 shall be deemed to have been appointed as base cadre Shikshan Sevaks under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. Sub-section (2) of Section 12 lays down that the terms and conditions prescribed by the Government for the appointment of Shikshan Sevaks by the issuance of GRs before the date of commencement of the Amending Act shall continue to be in force until modified or revoked. 9. The expression “employee” in Section 2(7) of the Maharashtra Employees of Private Schools (Conditions of Service) 1 2007(6) ALL MR 716 (FB) 8 Regulation Act, 1977 has been amended so as to include a Shikshan Sevak. Section 9 of the Act provides for the remedy of an appeal to the School Tribunal to employees of private schools. The remedy is comprehensive in nature and includes within its purview an appeal against dismissal, removal, termination, reduction in rank and supersession. The Tribunal before whom the appeal lies under Section 9 is statutorily constituted under Section 8 of the Act. The powers of the Tribunal are those of an Appellate Court under the Code of Civil Procedure, 1908, by virtue of the provisions of Section 10. Under Section 11, the Tribunal is conferred with the power to grant appropriate reliefs and to issue directions. The decision of the Tribunal is made final and binding by Section 12. 10. The Legislature intended to bring Shikshan Sevaks within the purview of the statutory protection which is extended to teachers under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 though with certain modifications such as in relation to the period of probation. In other words, the services of Shikshan Sevaks would no longer remain in the realm of contract, 9 to be governed by mere executive instructions, but would be governed by the statutory provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. What was earlier a matter of contract is converted statutorily into status, to use the descriptive context of service jurisprudence. The appointment and conditions of service of Shikshan Sevaks cease to be merely a matter of contract and have been statutorily embodied into the provisions of the Act of 197. 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 Amending Act, the object of the amendment must be borne in mind in determining whether the remedy of an appeal under Section 9 is available. 10 Bringing 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 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 matters 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 11 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 President/Secretary Shivnath Education Trust vs. Ramlochan Rajbali Patel.2 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 restrospectivity is answered automatically.” I am in respectful agreement with the view. 2 2008(4) ALL MR 889 12 12. In the circumstances, the impugned order passed by the Grievance Committee will have to be quashed and set aside. Rule is made absolute in terms of prayer clause (a). However, the First Respondent shall be at liberty to lodge an appeal before the School Tribunal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and in the event that such an appeal is filed, all the rights and contentions of the parties are kept open to be decided by the Tribunal. The Court has been informed that as a result of an order of stay passed by the Grievance Committee, the First Respondent has been continued in service. Counsel appearing on behalf of the Petitioner states that she has been permitted to sign muster roll. In order to enable the First Respondent to move the School Tribunal and to apply for an extension of interim relief, there shall be a direction to that effect that in the event that the First Respondent files an appeal before the School Tribunal within a period of three weeks from today, the interim protection which held the field until date, shall continue to remain in force for a period of four weeks from the date of the lodging of the 13 appeal. The First Respondent will be at liberty to move the School Tribunal for appropriate interlocutory relief. The School Tribunal shall evaluate any such application on its own merits in accordance with law. Parties will be at liberty to move the Tribunal for expeditious disposal of the appeal. Counsel appearing on behalf of the Petitioner states that for the period for which the First Respondent has been retained in service pursuant to the ad-interim directions, the salary bills in respect of the salary payable to the First Respondent shall be submitted to the Education Department and the salary shall be disbursed. The petition shall stand disposed of in these terms. There shall be no order as to costs. ......