1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4829 OF 2009 Shri. Anil Ramchandra Phadatare .. Petitioner Vs New Era Development Institute and Others .. Respondents S.P. Kadam for the petitioner Mr. Nikhil Sakhardande, Mr. Rohan Rajadhyaksha & Mr. Darshan Jariwala i/b Dhruve Liladhar and Company for respondent no. 1 Shri. A.P. Vanarase, AGP for the State CORAM : Smt. V.K. TAHILRAMANI, J. DATE : 10th September, 2009 P.C.: 1. Heard the learned counsel for the petitioner - original appellant, the learned counsel for respondent no. 1 - educational institution and the learned AGP for respondent nos. 3 and 4. 2. This petition is directed against the order dated 30th January, 2009 passed by the School Tribunal, Kolhapur in Appeal No. 185 of 1998 whereby the Appeal under Section 9 of the Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 RMA wp4829-09.sxw 2 came to be dismissed. 3. The petitioner was appointed as a technical instructor on 1st August, 1994 in an institution run by respondent no. 1. It is his case that by letter dated 9th October, 1998, he came to be retrenched. The said letter along with its annexures show that the petitioner came to be retrenched on the ground that the number of students in the institution had decreased, therefore the number of courses in the institution decreased due to which staff was rendered surplus and hence, the petitioner came to be retrenched. Being aggrieved thereby, the petitioner preferred appeal before the School Tribunal. After hearing the parties, the Tribunal come to the conclusion that the petitioner is not an employee of a recognized private school, therefore, the provisions of MEPS Act are not applicable to him hence in such case, the appeal preferred by the petitioner is not maintainable. Observing thus, the Tribunal dismissed the said appeal for want of jurisdiction 4. The case of respondent no.1 - institution is that it is not an educational institution as envisaged in the MEPS Act, 1977 and the institution is not governed by any of the provisions of MEPS Act, RMA wp4829-09.sxw 3 1977. It is further their case that the school is not a recognized school as envisaged under section 2(21) of the MEPS Act and that respondent no. 1 is not a recognized private school as defined under section 2(20) of the MEPS Act and the petitioner cannot be said to be an employee of the recognized school as per section 2(7) of the MEPS Act. 5. The learned counsel for the petitioner submitted that though the school is not a recognized school, some of the vocational courses run in the said school were recognized and as such, the petitioner would be covered by the MEPS Act. Thus, according to the learned counsel for the petitioner, respondent no.1 is a school within the meaning of section 2(24) of the MEPS Act. In order to appreciate this contention, it would be necessary to reproduce the relevant portion of section 2(24) which reads thus: "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 RMA wp4829-09.sxw 4 be, special education or training in any faculty or discipline or sublet below the degree level. According to the petitioner, the respondent institution squarely falls within the ambit and purview of the definition of the school and therefore, the provisions of the MEPS Act are applicable to respondent no. 1 and consequently to its employees. It is further submitted that the petitioner has rendered continuous service for more than 4 years and therefore, he has acquired the status of permanency under section 5(2) of MEPS Act, 1977. As the petitioner had become a permanent employee, his services could not been terminated without following the due procedure of law. 6. Respondent no. 1 is running the educational institution under the National Spiritual Assembly of Banaras of India which is registered under the Society Registration Act, 1860. The respondent management gets funds from out of India to run the institution. The learned counsel for respondent no. 2 submitted that the NEDI is a funded project of the National Spiritual Assembly of the Bahai's of India and is registered under the Societies Registration Act, 1860. It is a social welfare and rural development research project RMA wp4829-09.sxw 5 established with the primary focus of generating a sustainable locally initiated community development process. It is a mission to accomplish and learn about the development of rural community and train resources. Accordingly, it offers, integrated development courses to train individuals capable of stimulating the development of their community and making a living in their area at the same time. It has neither any independent source of funding nor does it generate its own revenue. Various development agencies provide funds to it for the purpose of social welfare and development research activities and not as a educational institution as understood by the MEPS Act 1977. It does not have any independent source of revenue nor has a management of his own choice. At present, it is not conducting any vocational courses because of non receipt of grants. At the time when the petitioner came to be terminated, the institution was not receiving any grant from any government source. 7. It may be noted that the petitioner has nowhere stated that respondent no.1 is a recognized educational institution and he is its employee. The petitioner was appointed directly without RMA wp4829-09.sxw 6 publishing any advertisement. Thus, the petitioner was appointed without inviting applications from eligible candidates nor was he interviewed and after healthy competition amongst eligible candidates he was selected by the board conducting interview. The appointment order of the petitioner is not produced on record by him to show the said appointment order was issued in consonance with Schedule 'D' of Rule 9(5) of the MEPS Rules 1981. 8. For the petitioner to be covered by the MEPS Act, the petitioner would have to show that respondent no. 1 is a recognized school within the meaning of section 2(21) of the MEPS Act and that he is an employee under Section 2(7) of the MEPS Act. Only when, these two criteria satisfied, the School Tribunal would have jurisdiction to entertain the appeal. 9. For the petitioner to be covered by the MEPS Act, it would be necessary that respondent no.1 institution is a recognized school as visualized by Section 2(20) of the Act. The petitioner or the learned AGP was unable to show that the school is recognized . The respondent also does not fall under Section 2(20) of the MEPS Act as the school is not a recognized school. The petitioner cannot RMA wp4829-09.sxw 7 claim benefit or claim to be covered by the Act just because a few courses were recognized in the said school. Recognition of the courses is not the criteria but the criteria is that the school should be recognized. Moreover, it is seen that even as far as few courses which were recognized in the school run by respondent no. 1, temporary recognition was granted to these courses for a period of one year and thereafter, the said recognition was not continued. The only purpose for seeking such temporary recognition was that, by virtue of the said temporary recognition in respect of certain courses, the students taking the said courses were given certificates of passing from the Maharashtra State Vocational Education and Training Board, which provided them with better job prospects. The correspondence between NEDI and the District Vocational Education and Training Officer, Satara was mainly for the purpose of securing temporary recognition in respect of certain courses only with the main objective as stated above. Thereafter, there is no material to show that the said recognition was extended after a period of one year. 10. For a school to be a recognized school, it would be useful to refer RMA wp4829-09.sxw 8 to Section 2(21). "Recognized" school as per Section 2(21) of the MEPS Act means recognized by the director, the divisional board or the state board or by any officer authorized by him or by any of such boards. Section 2(7) of the MEPS Act defines "employee" which means any member of the teaching and non teaching staff of a "recognized" school. Therefore, it follows that only when a person is an employee of a "recognized school", he can be deemed to be an employee who can be covered under the MEPS Act. 11.The petitioner has not been able to point out any material on record to show that respondent no. 1 is recognized. Moreover, it is pertinent to note that the petitioner has nowhere stated that respondent no. 1 is a recognized school. The plain meaning of the above definitions is that the Institution must be an educational institution duly recognized by concerned authorities and the appellant must be the employee of such a educational institution, then and only then the employee can invoke the jurisdiction of the School Tribunal under Section 9 of the MEPS Act, 1977. 12.It is also to be noted that the appointment of the petitioner was not made after following usual procedure of advertisement, interview RMA wp4829-09.sxw 9 and selection etc. Thus, his appointment order is not in consonance with schedule D of Rule 9 of MEPS Rules. It is also seen that the petitioner is well aware that he is an employee / workman within the meaning of the Industrial Disputes Act, 1947 and therefore, he has raised an industrial dispute before the Assistant Labour Commissioner, Satara by his letter dated 31st October, 1998 (exh. 9/9). However, the petitioner had deliberately suppressed this material fact from the School Tribunal. The petitioner has not come with clean hands before the Tribunal to seek the relief claimed. The fact that he has not approached the Court with clean hands would also disentitle him to relief. 13.The affidavit filed by the respondent - educational institution shows that retrenchment compensation has been paid to the petitioner. Respondent no. 1 was never registered with the Maharashtra Vocational Education and Training Board, as an educational institution contemplated under the MEPS Act. Only certain courses conducted by NEDI were temporarily recognized by the Maharashtra Vocational Education and Training Board, Satara that too for a period of one year only. Therefore, it is clear that NEDI is RMA wp4829-09.sxw 10 not a recognized school as contemplated under the MEPS Act. It is also seen that NEDI had no independent registration number given by any authority, this shows that the respondent school isnot a recognized school. Respondent no. 1 has paid retrenchment compensation in accordance with law and the petitioner has also encashed the same. Looking to the above facts, the conclusion arrived at by the School Tribunal that as the petitioner was not able to prove that he was an employee of the recognized private school, therefore the provisions of MEPS Act will not be applicable to him and as such the appeal was not maintainable cannot be faulted. The writ petition is dismissed. (SMT. V.K. TAHILRAMANI, J) RMA wp4829-09.sxw 11 RMA wp4829-09.sxw