Secr.,A.P.D.Jain Pathshala & Ors vs Shivaji Bhagwat More & Ors

While doing so, the High Court also directed the state government to reconstitute the Grievance Redressal Committee with a retired District Judge as Chairman and the Deputy Director and Education Officer (Secondary) of the concerned region as members. The High Court further directed as follows :

April, 2001 (as his appointment was not approved due to lack of prescribed qualifications); and the first respondent joined another school as an assistant teacher in July, 2001. The first respondent challenged his termination by filing an appeal before the School Tribunal. Later he withdrew the said appeal on 18.10.2003 and filed an appeal before the Grievance Committee in 5 the year 2004. The appellants raised various preliminary objections about the maintainability of the complaint. As the Grievance Committee did not consider them, the appellants filed W.P. No.7597/2005 seeking a direction to the Grievance Committee to decide the preliminary issues. The High Court admitted the said writ petition was admitted, but did not stay the proceedings before the Grievance Committee. Therefore, the Committee proceeded to hear the matter and allowed the appeal by order dated 28.7.2006. It quashed the termination dated 11.6.2001 and directed the appellants to reinstate the first respondent forthwith in any of their high schools without back wages but with continuity of service with a further direction to the Education Officer to approve the appointment of the first respondent as a regular teacher/assistant teacher. The appellants filed W.P.No.6196/2006 challenging the order dated 28.7.2006. A learned Single Judge admitted the said writ petition on 2.5.2008 but refused to stay the order of the Grievance Committee. The said order dated 2.5.2008 refusing the interim relief is challenged in the second of these two appeals.

7. The first respondent filed a writ petition (W.P.No.7362/2007) in September, 2007 seeking a direction to the appellants to implement the order dated 28.7.2006 passed by the Grievance Committee. In the said writ 6 petition, the High Court while issuing notice on 31.3.2008, directed the Education officer to ensure the compliance by the appellants, of the order dated 28.7.2006 passed by the Grievance Committee forthwith, unless the said order was challenged and a stay obtained. The appellants filed an application seeking vacation of the said interim order dated 31.3.2008 which was dismissed by the High Court by order dated 5.8.2008, holding as follows :

Firstly it directed a change in the constitution of the committee by requiring a retired District Judge to head the Committee. Secondly, it directed that an opportunity should be given to the `parties', that is, the complainant 8 (Shikshan Sevak) and the person against whom the complaint was made (the employer) to file their statements/replies, before adjudicating upon the dispute. Thirdly, it directed that the committee should be the only adjudicatory authority and excluded the jurisdiction of the Civil Courts (and any other authority) to entertain any suit or application in regard to the disputes relating to selection, appointment, re-appointment or cancellation of appointment of Shikshan Sevaks. The aforesaid three changes by the High Court converted what was originally conceived by the State Government to be an administrative grievance redressal mechanism, into a quasi judicial adjudicatory Tribunal. This was reiterated by a subsequent order of the High Court converting the committee into a one-man Tribunal consisting of a retired Judge (of the rank of Civil Judge, Senior Division).

15. Apart from constitutional provisions, Tribunals with adjudicatory powers can be created only by Statutes. Such Tribunals are normally vested with the power to summon witnesses, administer oath, and compel 14 attendance of witnesses and examine them on oath, and receive evidence.

Re: Question (ii)

Secondly, the High Court cannot in exercise of judicial power interfere with the jurisdiction of the civil courts vested under Code of Civil Procedure.

Re : Questions (iii) & (iv)

20. Even assuming that the committees constituted under the Shikshan Sevaks scheme were quasi judicial tribunals, they cannot direct reinstatement nor direct that the employees are deemed to continue in service by declaring the termination to be bad. It is well settled that courts would not direct reinstatement of service nor grant a declaration that a contract of personnel service subsists and that the employee even after removal is deemed to be in service. [See : S.B. Dutt vs. University of Delhi - AIR 1958 SC 1050]. The three recognized exceptions to the said rule are : (i) where a public servant having the protection of Article 311 of the Constitution is dismissed from service is in contravention of the provision; (ii) where a dismissed workman seeks reinstatement before Industrial Tribunals/Labour Courts under the industrial law; and (iii) where a statutory body acts in breach or violation of the mandatory obligation imposed by Statute. [See : Executive Committee of Vaish Degree College, Shamli vs. Lakshmi Narain - 1976 (2) SCR 1006].

The direction of the High Court in its order dated 5.8.2008 that when the 19 grievance committee holds that the termination is bad, the Shikshan Sevak is deemed to continue on the rolls of the management is therefore erroneous and liable to be set aside.

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 20 government will be entitled to challenge such directions either before the civil court or in a writ proceedings.

23. In view of the above, the appeals are allowed and the orders dated 2.5.2008 and 5.8.2008, are set aside. The order of the Grievance Committee is treated as a recommendation rendered for the benefit of the Education Department which can on the basis of the said opinion take appropriate action in accordance with law. It is also open to the Shikshan Sevak to seek appropriate remedy if he is aggrieved by his termination, in accordance with law.

...........................J [R. V. Raveedran] ...........................J [A. K. Patnaik] New Delhi;

July 4, 2011.