1. Rule. Rule made returnable forthwith, and, with the consent of learned Counsel for the parties, heard finally.
2. This petition under Article 227 of the Constitution of India, calls in question the legality, propriety and correctness of a judgment and order dated 02nd April, 2026, passed by the Presiding Officer, School Tribunal, Mumbai in Appeal No.23/2025 whereby the appeal preferred by the Respondent No.1 under the provisions of Section 9 of the Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 (“the MEPS Act, 1977”) and the Rules of 1981, framed thereunder (“the MEPS Rules, 1981”), came to be allowed by setting aside the order of termination of her services, dated 25th April, 2025, with a direction to reinstate the Respondent No.1 with all consequential benefits including continuity of service, seniority and back wages.
3. Shorn of superfluities, the background facts leading to this petition can be summarized as under :-
3.1 Pratik Seva Mandal, Palghar (“the Trust”) is a Public Charitable Trust registered under the Maharashtra Public Trust Act, 1950. The Trust runs late Smt. Jamanaben Vithalbhai Shapariya Karnabadhir Vidyalaya va Vastigruha at Lokmanya Nagar, Palghar. The Petitioner No.1 is the Chairman of the Trust. Petitioner No.2 is the Headmaster of the School run by the Petitioner No.1.
3.2 The School caters to the educational and special needs of the deaf and dumb students. It receives grant-in-aid from the State Government.
3.3 The Respondent No.1 has acquired the qualification of B.A., B.Ed. (Hearing Impaired). The Respondent No.1 also holds a certificate as ‘Special Educator’ (Hearing Impairment) issued by the Rehabilitation Council of India. The Respondent No.1 is a Member of a Scheduled Caste.
3.4 After following proper selection process, the Respondent No.1 claims, she was appointed as a Special Teacher with effect from 28th July, 2008. The Respondent No.1 claimed to have rendered continuous and unblemished service as a Special Teacher without any break. Despite repeated assurances, the Petitioner Nos.1 and 2 allegedly did not forward the proposal for approval to the concerned Authorities. Though vacancies arose and it was possible for the petitioners to appoint the Respondent No.1, the Petitioner Nos.1 and 2 did not take the requisite steps. Instead of appointing the Respondent No.1 on a permanent basis, the petitioners illegally filled two excess posts.
3.5 The petitioners allegedly did not pay the full salary and made the Respondent No.1 work for a meagre amount of Rs.2,000/- per month from June, 2008; which was incrementally increased to Rs.9,500/- per month from July, 2024.
3.6 The Respondent No.1 further claimed, she had completed the probationary period successfully and become permanent, in view of the provisions contained in Section 5 (2A) of the MEPS Act, 1977. Yet, vide communication dated 25th April, 2025, the petitioners illegally terminated the services of the Respondent No.1 with effect from 26th April, 2025 without ascribing any valid reason and following the due process of law.
3.7 The Respondent No.1, thus, preferred an appeal before the Presiding Officer, School Tribunal, Mumbai being Appeal No. 23/2025 assailing the legality and validity of the said termination order.
3.8 The petitioners contested the appeal. It was contended that, the appointment of Respondent No.1 was on a temporary/consolidated honorarium basis. The petitioners refuted that, the Respondent No. 1 was appointed by following due selection process. Neither the post was ever sanctioned by the Competent Authority nor was approval obtained from the Social Welfare Department. The petitioners had made an earnest endeavor to obtain approval for the appointment of the Respondent No.1. Yet the Competent Authority did not grant the approval. Thus, the respondent No.1 was not entitled in law to claim reinstatement in service.
3.9 After appraisal of the rival contentions and the material on record, the learned Presiding Officer, School Tribunal, Mumbai was persuaded to allow the appeal. The learned Presiding Officer was of the view that, there was no grievance regarding the work, conduct, and behavior of the Respondent No.1. She had rendered more than 16 years of service and, thus, she was deemed to have become permanent under Section 5 (2A) of the MEPS Act, 1977 and, consequently, her services could not have been terminated without following the procedure prescribed under Rules 36 and 37 of the MEPS Rules, 1981. The Presiding Officer was not persuaded to accede to the submissions on behalf of the petitioners that, since the Competent Authority did not grant approval, the services of the Respondent No.1 were required to be terminated.
3.10 Being aggrieved, the petitioners – Management has preferred this Writ Petition.
4. I have heard Dr. Uday Warunjikar, the learned Counsel for the petitioners, and Mr. Aditya Gaikwad, the learned Counsel for the Respondent No.1. With the assistance of the learned Counsel for the parties, I have also perused the material on record.
5. Dr. Warunjikar, the learned Counsel for the petitioners, canvassed a two-fold submission. First, Dr. Warunjikar questioned the jurisdictional competence of the School Tribunal to entertain an appeal against the order of termination issued by the petitioners. It was submitted that, the Petitioner No.2 – school is a special school established specifically for children with disabilities. Thus, the conditions of service of the employees in the special school are governed by the Rights of Persons with Disabilities Act, 2016 (“the Act, 2016”) and the School Code, 1997 (“the Code, 1997”) framed by the State Government in the Social Welfare, Cultural Affairs and Sports Department in relation to the schools imparting education/training to persons with disabilities.
6. It was submitted that, the entire regulatory regime of appointment, approval, staffing pattern, qualifications of teachers, recognition of institutions and supersession of special schools is regulated by the Authorities functioning under the Social Welfare Department and not by the Authorities of Education Department provided under the MEPS Act, 1977. Since a special statutory mechanism is provided for the regulation of special schools and the employees working in those schools, the School Tribunal constituted under the MEPS Act, 1977 cannot have jurisdictional competence. Emphasis was laid on clause 86 of the Code, 1997 which provides for an appeal against an order of termination and reduction in rank, etc.
7. In substance, the thrust of the submission of Dr. Warunjikar was that the Act, 2016 being a special law will prevail over MEPS Act, 1977 being a general law applicable to all the employees of the private schools.
8. Secondly, Dr. Warunjikar would urge, the petitioners had made diligent efforts to obtain approval for appointment of the Respondent No.1. As the Competent Authorities of the Social Welfare Department did not grant approval, the petitioners had no option but to terminate the services of the Respondent No.1. Dr. Warunjikar fairly submitted that, though the said ground is not specifically spelled out in the termination order, yet, the Respondent No.1 was fully cognizant of the said impediment of want of approval to her appointment.
9. In opposition to this, Mr. Gaikwad, the learned Counsel for the Respondent No.1 submitted that, none of the grounds sought to be urged on behalf of the petitioners merit consideration. Dealing with the second ground of challenge first, Mr. Gaikwad would urge that, it is well recognized that the aspect of approval is a matter between the Management and the Competent Authorities, and the want of approval cannot invalidate an appointment lawfully made, especially of an employee who has rendered 16 years unblemished service.
10. Mr. Gaikwad further submitted that, the challenge to the impugned order premised on want of jurisdiction is equally untenable. The petitioners reliance on the Code, 1997, especially clause 86 thereof, is misplaced as the same cannot confer adjudicatory powers on an authority sans legislative mandate. To this end, Mr. Gaikwad placed reliance on a judgment of a learned Single Judge of this Court in the case of Bhaskar Sonerao Deshmukh Vs. Ahilyabai Holkar Shikshan Prasarak Mandal, Karepur & anr.((2023) 6 Mh.L.J. 727)
11. The aforesaid rival submissions, canvassed across the bar, now fall for consideration.
12. To begin with, the challenge to the jurisdiction of the School Tribunal to entertain an appeal against the order of termination. Incontrovertibly, the Petitioner No.1 runs a special school. The respondent No.1 was appointed as a special teacher vide appointment order dated 24th July 2008 with effect from 28th July 2008. The services of the Respondent No.1 were terminated by the petitioners by an order dated 25th April, 2025. The reasons for the termination of the Respondent No.1 discernible from the order of termination, would be delved into while considering the second ground of want of approval to the appointment of the Respondent No.1, at a later stage. At this juncture, the Court would proceed on the premise that, the Petitioner No.1 runs a special school which imparts education and training to children with disabilities.
13. Indeed the State Government has framed the Code, 1997 to make provisions in relation to the schools/workshops imparting education/training to persons with disabilities. Part III of the Code, 1997 deals with penalties. Part IV provides for constitution of the Inquiry Committee and the conduct of inquiry. Clause 86 makes provisions for an appeal before the Divisional Social Welfare Officer and prescribes the manner of presenting the appeal, hearing of the appeal and the time frame for the determination of the appeal.
14. The controversy sought to be raised by Dr. Warunjikar was considered by the Courts, albeit in a different context. Section 9 of the MEPS Act, 1977 provides Right of appeal to the Tribunal to employees of a private school. Sub-section (1) of Section 9 which begins with a non obstante clause provides that any employee in a private school who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank, by the order passed by the Management; or who is superseded by the Management while making an appointment to any post by promotion; and who is aggrieved, shall have a right to appeal and may appeal against any such order or supersession to the Tribunal.
15. The Right to prefer an appeal has thus been given to an employee of a private school who is aggrieved by an order of management in respect of the matters specified in clauses (a) & (b) of Section 9(1). Under Section 2(20) of the MEPS Act, 1977, “Private School”, means a recognized school established or administered by a Management, other than Government or local authority. Clause (21) of Section 2 also defines, “Recognized” 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. “Director” under Section 2(6) means the Director of Education or the Director of Technical Education or the Director of Vocational Education and Training or the Director of Art, as the case may be, appointed as such by the State Government. Under clause 6(A), “Divisional Board”, means the Divisional Board established under the Maharashtra Secondary and Higher Secondary Education Boards Act, 1965.
16. Construing the aforesaid provisions in conjunction, the Supreme Court as well as this Court have held that, the right to prefer an appeal under Section 9 is available only to the employees of those private schools which are recognized by the Director, Divisional Board or the State Board or by any officer authorized by him or any of such Boards.
17. Suffice to make a reference to a Full Bench Judgment of this Court in the case of Suryakant Sheshrao Panchal Vs. Vasantrao Naik Vimukta Jati Bhatakya Jamati Aadarsh Prasarak Mandal & ors.(2002 (5) Bom.C.R. 95), and a judgment of the Supreme Court in the case of Dagdu Vs. President, Anandrao Naik Shikshan Prasarak Mandal & ors.(2006 (9) SCC 782)
18. In the case of Suryakant Sheshrao Panchal (supra), the full Bench enunciated that the Ashram School Code providing for remedy of an appeal to the employees working in the basic/primary Ashram Schools is contrary to the provisions of Section 9 of the MEPS Act, 1977 and to that extent the same was invalid. The Full Bench declared that, an employee working in a primary Ashram School or any other school which does not fall within the ambit of the term “private school” cannot approach the School Tribunal under Section 9 of the MEPS Act, 1977. The observations in Paragraph Nos. 17 and 18 read as under:-
“17. We now come to the Ashram Schools Code as formulated by the State Government in the year 2001. It is well established in law that the provisions of a statute cannot be amended by administrative orders, circulars or Codes. The provisions of Section 9 of the M.E.P.S. Act state that notwithstanding anything contained in any other law or contract for the time being in force any employee in a private school who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank by the order passed by the management or who is superseded by the management while making an appointment to any post by promotion shall have a right of an appeal and may appeal against any such order or supersession to the Tribunal constituted under Section 8 of the said Act, When a statute has provided a remedy to an employee in a private school, such a remedy cannot be extended to an employee in any school and the meaning of the terms 'employee' and 'private school' cannot be altered or amended by formulating a Code.
18. We have already held above that a secondary or higher secondary Ashram School satisfies the definition of the term "private school" within the meaning of Section 2(20) of the M.E.P.S. Act and therefore, any employee of such a school has a remedy of an appeal under Section 9 of the said Act. However, when such a remedy is not available to an employee working in a basic Ashram school or an Ashram school upto primary level under the provisions of Section 9 of the M.E.P.S. Act, the State Government cannot provide for such a remedy by formulating a Code. The provisions of a statute cannot be amended or deemed to be amended by an administrative order or circular or a code and therefore, if the State Government was convinced that the employees working in basic Ashram schools or primary Ashram schools ought to be provided that remedy of an appeal under Section 9 of the M.E.P.S. Act it could do so only by amending the relevant provisions of the said Act so as to make it applicable to an employee in any school. This has not yet been done by the Legislature. What is required to be done by the Legislature cannot be done by the State Government by issuing administrative orders or circulars or by formulating a Code. In this regard we may usefully refer to a decision of the Supreme Court in Commissioner of Income Tax Vs. Sirpur Paper Mills. We, therefore, hold that the remedy of an appeal provided under the Code is not available to the employees working in the basic/ primary Ashram schools.”
(emphasis supplied)
19. In the case of Dagdu (supra), the Supreme Court approved the aforesaid enunciation of law in the following terms:-
“8. The ashram school in question imparts only primary education from Standard I to Standard VII. It has not been recognized either by the Director or by the Boards as defined under the Act. Since it is not recognized, therefore, it is not a “private school” within the meaning of Section 2(20). Consequently, the Tribunal would not have the jurisdiction to entertain an appeal of the appellant since he was not an employee of a private school. The decision in Surya Kant v. Vasantrao Naik Vimukta Jati Bhatakya Jamati Aadarsh Prasarak Mandal, (WPNo. 1573 of 1999 dated 12-4-2002 (FB) is, in our opinion, correct, and the High Court rightly applied the principle thereof in the impugned decision.”
(emphasis supplied)
20. The aforesaid legal position held the field till the enactment of the Right of Children to Free and Compulsory Education Act, 2009 (“the Right to Education Act, 2009”). A paradigm change was introduced by the Right to Education Act, 2009. Section 23 of the Right to Education Act, 2009 makes provisions for qualifications for appointment and terms and conditions of service of teachers. Section 24 enumerates the duties of teachers and also makes provision for the redressal of their grievances. Sub-section (3) of Section 24 provides that the grievances, if any, of the teacher shall be redressed in such a manner as may be prescribed. The Government of Maharashtra, in exercise of the powers conferred by sub-sections (1) and (2) of Section 38 of the Right to Education Act, 2009 has framed, “the Maharashtra Right of Children to Free and Compulsory Education Rules, 2011” (“the Rules, 2011”).
21. Rule 20 of the Rules, 2011 bears upon the determination of the controversy at hand. It reads as under :-
“20. Grievance Redressal mechanism for teachers for purposes of section 24(3).
(1) A teacher or employee of a school other than a school run by Government or Local Authority, who is aggrieved by any of the decisions of the management regarding his or her service conditions or a teacher or an employee,-
(a) Who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank, by the order passed by the management; or
(b) Who is, superseded by the management, while making an appointment to any post by promotion and shall have a right of appeal and may appeal against such order or supersession to the tribunal constituted under section 8 of the Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 (Mah.III of 1978).
(2) The appeals so preferred shall be governed by the provisions of sections 8, 9, 10, 11, 12, 13, and 14 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Mah. III of 1978) and the Rules 39 and 43 of the Maharashtra Employees of Private School (Conditions of Service) Rules, 1981.”
22. From the text of Rule 20(1), it becomes abundantly clear that, a teacher or an employee of a school other than a school run by the Government or a Local Authority, in regard to any of the decisions of the management, including dismissal, removal, termination of service or reduction in rank or supersession, has a right of appeal against such order or supersession to the Tribunal constituted under Section 8 of the MEPS Act, 1977. Sub Rule (2) of Rule 20 provides that, the appeal so preferred shall be governed by the provisions contained in Sections 8, 9, 10, 11, 12, 13 and 14 of the MEPS Act, 1977 and the Rules 39 and 43 of the MEPS Rules, 1981.
23. It would be contextually relevant to note that, the definition of “School”, ‘under Section 2(n) of the Right to Education Act, 2009 has a wider amplitude. It reads as under :-
“(n) “School” means any recognized school imparting elementary education and includes -
(i) a school established, owned or controlled by the appropriate Government or a local authority;
(ii) an aided school school receiving aid or grant to meet whole or part of its expenses from the appropriate Government or the local authority;
(iii) a school belonging to specified category; and
(iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority;”
24. The contrast between the provisions contained in Section 9 of the MEPS Act, 1977 and Rule 20 of the MEPS Rules, 2011, r/w definition of School under Section 2(n) of Right to Education Act, 2009, is evidently clear. The right to file an appeal under Section 9 was confined to an employee in a private school. In contradistinction to this, under Rule 20 a teacher or an employee of a school other than a school run by the Government or a Local Authority is entitled to prefer an appeal before the School Tribunal. The element of recognition by the authorities specified under Section 2(21) of the MEPS Act, 1977, no longer shackles the right of the employee to prefer an appeal before the School Tribunal. The only condition is that the teacher or employee shall not be employed in a school run by the Government or a local authority.
25. If the aforesaid distinguishing features of Rule 20 of the Rules, 2011 are considered in juxtaposition with the expansive definition of school under Section 2(n) of the Right to Education Act, 2009, it becomes evident that, the jurisdiction now vested in the School Tribunal is not circumscribed by the condition of the appellant being an employee in a private school recognized under the MEPS Act, 1977.
26. The aforesaid change in the legal regime was considered by a Division Bench of this Court in the case of Latika Rajaram Mane Vs. State of Maharashtra & ors.((2013) 4 Mh.L.J. 244), which enunciated the foundational change brought about by the Right to Education Act, 2009 and Rules, 2011 especially Rule 20 (extracted above). The Division Bench observed :-
“10. The field of elementary education comprising of education from the first to eighth standards has now been comprehensively regulated by the Central Act. The Right to Education Act specifically contemplates that the grievances of teachers shall be redressed in such manner as may be prescribed by the rules. The rules which have been framed by the State of Maharashtra provide for a right to appeal to the Tribunal constituted under Section 8 of the MEPS Act in respect of the matters enunciated therein. Rule 20 is framed in broad terms. A right of appeal is conferred against the following orders: (i) An order of dismissal; (ii) An order of removal; (iii) An order otherwise terminating the services; (iv) An order of reduction in rank; and (v) An order of supersession by the management while making any appointment to a post by promotion. These categories correspond broadly to clauses (a) and (b) of Sub-section (1) of Section 9 of the MEPS Act. But significantly, the ambit of the remedy which is made available to primary school teachers by Rule 20 is not only confined to these orders, but has been widened to include any decision of the management regarding the service conditions of a teacher or employee by which any teacher or employee is aggrieved. As a result of the framing of Rule 20, in accordance with, and under the power conferred by the Central Act, a comprehensive remedy in the form of an appeal before the School Tribunal is provided to any teacher or employee who is aggrieved by any decision of the management regarding his or her service conditions, including those decisions which result in one of the consequences spelt out in clauses (a) and (b).
11. The object and purpose of making a comprehensive remedy available to primary school teachers across the State of Maharashtra against any decision of the management with regard to their conditions of service, as well as decisions of the nature contemplated by clauses (a) and (b) of Rule 20 is to ensure that such teachers are protected against exploitation and unfair practices. The ability of a teacher to dedicate himself or herself to the cause of education of young children is contingent on a secure working environment and on conditions of work which provide certainty, transparency and objectivity in decision making by management. Leaving primary teachers to the whim and caprice of a private management was evidently a consequence which both the Central legislation and the rule making authority sought to obviate by providing a judicial remedy before the School Tribunal manned by a Judicial Officer. Access to judicial remedies is an integral part of any regime which provides just and stable conditions of work. This is also the ethos of the constitutional values in the Directive Principles of State Policy. Those values the Court has a duty to protect. It is necessary to emphasize this aspect because in determining as to whether the rules which have been framed under the Right to Education Act, would apply to a situation where a termination of services has taken place even prior to the enforcement of the rules, the object and purpose of the remedy is an important circumstance which must be taken into account. The essential object and purpose is to provide access to justice to primary school teachers. The constitutional guarantee of free and compulsory primary education is given practical content by the Act and the Rules. As judges give substance to them in deciding cases, the importance of the constitutional guarantee must be borne in mind. …….
12. What the rules have essentially done is to provide a forum to primary school teachers who are aggrieved by the action of the management in matters falling within the purview of Rule 20. The forum is in the nature of access to a judicial tribunal.
14. The judgment of the Full Bench of this Court in Komal Rugwani's case considered the position in law as it obtained prior to the enforcement of the Right to Education Act which was enacted by Parliament and the Rules which were framed by the State Government. Under the MEPS Act, 1977 a right of appeal under Section 9(1) is provided to employees of private schools. In order to be a private school, a school has to be recognized by one of the authorities specified in Section 2(21). Since primary schools governed by the Bombay Primary Education Act, 1947 were not recognized by the Director, the Divisional Board or the State Board, primary schools were not recognized schools within the meaning of the MEPS Act, 1977. As we have noted, the expression "private school" is defined in Section 2(20) to mean a recognized school established or administered by a management other than by the Government or local authority. Unless a school is recognized by one of the authorities prescribed by Section 2(21), it did not meet the definition of the expression "private school" with the result that employees of primary schools were deprived of a remedy of an appeal under Section 9. This position held the field as noted in the judgment of the Full Bench in Komal Rugwani's case. The framing of the Rules under the Right to Education Act by the State Government has fundamentally altered the situation. The forum of the School Tribunals is now provided to employees of primary schools in the State of Maharashtra who are aggrieved by any of the decision of the management regarding their conditions of service and in regard to the matters referred to in Rule 20. As a consequence of the notification of the Rules framed by the State Government in exercise of the power conferred under the Right to Education Act, there as been a fundamental change in the position in law as it obtained prior thereto. The position in law which held the field prior to the framing of the Rules under the Right to Education Act, has now been materially altered as a result of which a right of appeal is provided to teachers of primary schools in respect of decisions falling within the purview of Rule 20.”
(emphasis supplied)
27. The aforesaid decision was followed in the cases of Parwa Education Society & anr. Vs. Suresh s/o Govindrao Bhure & ors.(2022 (5) Mh.L.J. 235), and Bhaskar Sonerao Deshmukh (supra), on which reliance was placed by Mr. Gaikwad.
28. Another fundamental perspective which bears upon the determination of the controversy at hand, was exposited by the Supreme Court in the case of Secretary, A.P.D. Jain Pathshala & ors. Vs. Shivaji Bhagwat More & ors.((2011) 13 SCC 99).
29. In the said case, in the context of the implementation of the Shikshan Sevak Scheme by the Government of Maharashtra by Government Resolution dated 27th April, 2000, inter alia, providing for constitution of a three-member Grievance Redressal Committee to consider and decide the grievances relating to selection, appointment, reappointment or mid-year cancellation of appointment, and the orders passed by the High Court directing the State Government to re-constitute Grievance Redressal Committee with the induction of a retired District Judge, the Supreme Court considered the following question:
i) Whether the High Court can direct the State Government to create a quasi-judicial forum; and whether creation of such a forum by an executive order, by the State Government, in pursuance of such a direction, is valid?
30. After an elaborate analysis, the Supreme Court enunciated that, the Tribunal with adjudicative powers can only be created by the statute. Neither it was permissible for the High Court to direct the State Government to constitute judicial authorities or tribunals by executive orders, nor was it permissible for the State by executive order or resolution to create them for adjudication of the rights of parties. The observations in Paragraph Nos. 23 to 28 are instructive and, hence, extracted below :-
“23. 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 attendance of witnesses and examine them on oath, and receive evidence. Their powers are derived from the statute that created them and they have to function within the limits imposed by such statute. It is possible to achieve the independence associated with a judicial authority only if it is created in terms of the Constitution or a law made by the Legislature.
24. Creation, continuance or existence of a judicial authority in a democracy must not depend on the discretion of the executive but should be governed and regulated by appropriate law enacted by a Legislature. In this context, it is worthwhile to refer to the following observations of the European Commission of Human Rights in Zand vs. Austria (Appeal No.7360 of 1976 decided on 12.10.1978):
"The judicial organization in a democratic society must not depend on the discretion of the executive, but should be regulated by law emanating from the Parliament".
25. Article 162 of the Constitution, no doubt, provides that subject to the provisions of the constitution, the executive power of a State shall extend to the matters upon which the Legislature of the State has competence to legislate and are not confined to matters over which legislation has been already passed. It is also well settled that so long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power under Article 162 cannot be circumscribed; and if there is no enactment covering a particular aspect, the Government could carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf.
(See Ram Jawaya Kapur v. State of Punjab AIR 1955 SC 549 and Bishambhar Dayal Chandra Mohan v. State of U.P. - 1982 (1) SCC 39.
26. But the powers of the State to exercise executive powers on par with the legislative powers of the legislature, is "subject to the provisions of the Constitution". The provisions of the Constitution, namely Articles 233, 234 and 247 for constituting sub-ordinate courts, and Articles 323A and 323-B for constituting tribunals by law made by the legislature, make it clear that judicial Tribunals shall be created only by statutes or rules framed under authority granted by the Constitution.
27. If the power to constitute and create judicial Tribunals by executive orders is recognized, there is every likelihood of Tribunals being created without appropriate provisions in regard to their constitution, functions, powers, appeals, revisions, and enforceability of their orders, leading to chaos and confusion. There is also very real danger of citizen's rights being adversely affected by ad hoc authorities exercising judicial functions, who are not independent or competent to adjudicate disputes and render binding decisions. Therefore, the executive power of the State cannot be extended to creating judicial Tribunals or authorities exercising judicial powers and rendering judicial decisions.
28. Neither the Constitution nor any statute empowers a High Court to create or constitute quasi judicial Tribunals for adjudicating disputes. It has no legislative powers. Nor can it direct the executive branch of the State Government to create or constitute quasi judicial Tribunals, otherwise than by legislative Statutes. Therefore, it is not permissible for the High Court to direct the State Government to constitute judicial authorities or Tribunals by executive orders, nor permissible for the State by executive order or resolution create them for adjudication of rights of parties.”
(emphasis supplied)
31. Following the aforesaid pronouncement, a Division Bench of this Court in the case of Sonai Apang Vikas and Shikshan Sanstha, Nandurbar & anr. Vs. Jyoti Dulesing Ranawat & ors.(2018 (4) Mh.L.J. 474), specifically dealt with the exercise of the appellate power by the Divisional Social Welfare Officer under clause 86 of the School Code, 1997 and ruled that the Divisional Social Welfare officer cannot exercise adjudicatory authority by invoking clause 86. The observations in Paragraph No.18 read as under :-
“18. Having regard to aforesaid submissions, it appears that genesis of the Code of 1997 indisputably is referrable to the executive instructions and the powers pursuant to Article 162 of the Constitution of India, yet, the Supreme Court has observed that, executive powers of the State in issuing instructions, would not be extended to creation of judicial Tribunal for the reasons as have been observed in paragraph no. 16, which decision has been taken into account in decision in Writ Petition 7389 of 2014. It does not appear that impugned decision rendered by respondent no. 3 - Divisional Social Welfare Officer, Nashik pursuant to purported exercise of powers under clause 86 of the Code of 1997 can be said to be valid and tenable in law. There is a clear exposition by the Supreme Court on the situation and, as such, it will have to be considered that the adjudicatory authority exercised under clause 86 by respondent no. 3 is unsustainable and the decision impugned in this Petition dated 03-10-2011 - Exhibit "H" of the Petition would be inefficacious and thus, deserves to be set aside.”
32. Dr. Warunjikar submitted that, the aforesaid enunciation of law may govern the right of the employees of the Ashram Schools to seek redressal before the School Tribunal. But the employees of the special school would be continued to be governed by the Code, 1997. I am afraid to accede to this submission. The Rights of Persons with Disabilities Act, 2016 makes provisions in conformity with the Convention on the Rights of Persons with Disabilities, adopted by the United Nations, that lays down the principles to be followed by the State, Parties for empowerment of persons with disabilities. The Act, 2016 does not regulate the conditions of service of the persons who are employed in the institutions imparting education and training to persons with disabilities. Thus, the support sought to be drawn from the provisions of the Act, 2016 to confer adjudicatory authority upon the Authorities under the Code, 1997 is inapposite.
33. The very vesting of adjudicatory authority in the officers of the Social Welfare Department under the School Code, 1997 to determine issues of dismissal, termination, reduction in rank and supersession of an employee, does not seem to have any statutory mandate. The aforesaid decision in the case of Sonai Apang Vikas and Shikshan Sanstha (supra), which examined the very vesting of adjudicating power in the officers of the Social Welfare Department under executive instructions is on all four with the facts of the case at hand.
34. The upshot of aforesaid consideration is that, in view of the provisions contained in Rule 20 of the Rules, 2011, the employees of any school (other than a school run by the Government or Local Authority) including a special school have the right of appeal before the School Tribunal not only against the specified orders, but also against the decisions of the management as specified in sub-rule (1) thereof. Conversely, the Divisional Social Welfare Officer cannot exercise adjudicatory authority on the strength of clause 86 of the Code, 1997. Thus, the challenge to the jurisdiction of the School Tribunal is devoid of substance.
35. This takes me to the merits of the order of termination. The letter dated 25th April, 2025, whereby the services of the Respondent No.1 were professed to be terminated singularly lacks reason reflecting upon the work or conduct of Respondent No.1 which necessitated her termination. The following contents of the said letter deserve to be noted :-
“This letter seves to inform you that, after careful consideration, Pratik Seva Mandal has decided to terminate your honorary appointment with the school effect from 26th April 2025.
Your services have been valued and appreciated during your time here, and we acknowledge the efforts you have made toward the school and the students.
However, despite our sincere efforts to accommodate your expectations, we have been unable to align with the demands you have raised. The school as a charitable institution, operates with certain limitations and relies heavily on trust and voluntary service. Unfortunately, we have come to a point where we are unable to meet your expectations within the scope of our current resources.
Please note that as you were appointed on a temporary, non-government approved basis, there are no dues pending as of this date.”
36. The termination order, if at all it can be so termed, proceeds as if it was a case of personal contract of service. Nothing is spelled out. Nor the defence sought to be raised before the School Tribunal that for want of approval from the Competent Authority, the petitioners were constrained to terminate the services of the Respondent No.1 finds place in the termination order. There is no whisper about any proposal that had been submitted to the Competent Authority and the rejection thereof. The petitioners professed to terminate the services of Respondent No.1 as if her services were at their pleasure.
37. In this backdrop, the learned Presiding Officer, School Tribunal was fully justified in observing that, the aspect of approval was a matter between the petitioners and the Competent Authority and the Respondent No.1 had no role in the said matter. The Full Bench judgment of this Court in the case of St. Ulai High School & anr. Vs. Devendraprasad Jagannath Singh & anr.(2007 (1) Mh.L.J. 597), sets the controversy at rest. The Full Bench enunciated in clear terms that, neither the MEPS Act, 1977, nor the Rules framed thereunder mandate the grant of approval by the Education Officer as a condition precedent to a valid order of appointment. The requirement of approval which relates to the disbursal of grant-in-aid is a matter between the Management and the State and want of approval will not invalidate an order of appointment.
38. In the case of Hiraji Natthurao Bangare Vs. Dnyan Prasarak Shikshan Mandal, Nimgaon & ors.(2019 (4) Mh.L.J. 132), the management had terminated the services of petitioner therein on the sole ground of rejection of approval. Following the aforesaid Full Bench judgment in the case of St. Ulai High School (supra), this Court set aside the termination order holding that, the condition contractually imposed that the validity of appointment shall be subject to approval was not enforceable, as it is not statutorily envisaged.
39. The aforesaid being the position in law, the justification sought to be offered by Dr. Warunjikar for the termination of Respondent No.1 does not merit acceptance. On the aspect of consequential reliefs granted by the learned Presiding Officer, School Tribunal, having regard to the fact that, the Respondent No.1 had put in 16 years of service before her services were terminated by order dated 25th April, 2025 for no reason and the relatively short time that has elapsed between the order of termination and the impugned order of reinstatement in service, in the considered view of this Court, no interference is warranted, with the consequential benefits granted by the School Tribunal.
40. For the foregoing reasons, the challenge to the impugned order fails. Thus, the Writ Petition deserves to be dismissed.
41. Hence, the following order.
ORDER:
The Writ Petition stands dismissed.
Rule discharged.
No costs.
At this stage, the learned counsel for the Petitioner seeks stay to the execution and operation of the order passed by the School Tribunal.
Having regard to the facts of the case, especially, the service rendered by Respondent No.1 as a special teacher for 16 years and the termination order being bereft of reason, the oral application for stay to the execution and operation of the order passed by the School Tribunal stands rejected.
