Pratik Seva Mandal Thro. Its Chairman/ Secretary vs Shruti Santosh Shelar

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7452 OF 2026

1. Pratik Seva Mandal, Palghar
Through its Chairman/Secretary,
Having address a Survey No.50,
Plot No.42, Near Railway Subpower
Station, Lokmanya Nagar, Palghar.
2. Late Sau Jamanaben Vithalbhai Shapariya
Karnabadhir Vidyalaya va Vastigruha,
Through its Headmaster,
Having address a Survey No.50,
Plot No. 42, Near Railway Subpower
Station, Lokmanya Nagar, Palghar. ...Petitioners
Versus
1. Shruti Santosh Shelar,
Age : 53 years, Occ. : Service,
Residing at Vardhaman Pride, B 104,
Near Swami Samartha Mandir,
Mahim Road, Palghar – 401 404.
2. The Commissioner,
Person with Disabilities
Welfare Department, Pune, 3,
Church Road, Pune – 411 001.
3. The Regional Deputy Commissioner,
Social Welfare, Mumbai Division,
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Mumbai having office at 6 Floor,
Room No.619, Konkan Bhavan,
CBD Belapur, Navi Mumbai – 400 604.

4. District Social Welfare Officer,
Zilla Parishad Palghar,
Having office at Room no.003,
Ground Floor, New Zilla Parishad
Building, Boisar Road, Kolgaon,
Tq. & Dist. Palghar. ..Respondents
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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Dr. Uday P Warunjikar a/w Mr. Sumit Kate, for Petitioners.
Mr. Aditya Gaikwad, for the Respondent No.1.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
CORAM : N. J. JAMADAR, J.
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RESERVED ON : 17 June 2026
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PRONOUNCED ON : 30 June 2026
JUDGMENT:
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
nd
dated 02 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
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th
termination of her services, dated 25 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
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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
th
Special Teacher with effect from 28 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.
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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
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communication dated 25 April, 2025, the petitioners
illegally terminated the services of the Respondent
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No.1 with effect from 26 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
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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.
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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
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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.
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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,
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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
1
Holkar Shikshan Prasarak Mandal, Karepur & anr.

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
th th
dated 24 July 2008 with effect from 28 July 2008.
1
(2023) 6 Mh.L.J. 727
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The services of the Respondent No.1 were terminated
th
by the petitioners by an order dated 25 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.
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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
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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
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2
Bhatakya Jamati Aadarsh Prasarak Mandal & ors. ,
and a judgment of the Supreme Court in the case of
Dagdu Vs. President, Anandrao Naik Shikshan
3
Prasarak Mandal & ors.
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
2
2002 (5) Bom.C.R. 95
3
2006 (9) SCC 782
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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
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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
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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
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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.”
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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 -
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(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
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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
4
& ors. , which enunciated the foundational change
brought about by the Right to Education Act, 2009
4
(2013) 4 Mh.L.J. 244
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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; a nd (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
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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
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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.
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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
SAINATH, PA 25/39

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
5
Govindrao Bhure & ors. , 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,
5
2022 (5) Mh.L.J. 235
SAINATH, PA 26/39

was exposited by the Supreme Court in the case of
Secretary, A.P.D. Jain Pathshala & ors. Vs. Shivaji
6.
Bhagwat More & ors.
29. In the said case, in the context of the
implementation of the Shikshan Sevak Scheme by the
Government of Maharashtra by Government
th
Resolution dated 27 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?
6
(2011) 13 SCC 99
SAINATH, PA 27/39

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
SAINATH, PA 28/39

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
SAINATH, PA 29/39

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
SAINATH, PA 30/39

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
7
Dulesing Ranawat & ors. , 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
7
2018 (4) Mh.L.J. 474
SAINATH, PA 31/39

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
SAINATH, PA 32/39

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)
SAINATH, PA 33/39

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
th
termination. The letter dated 25 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
th
appointment with the school effect from 26
April 2025.
Your services have been valued and appreciated
during your time here, and we acknowledge the
SAINATH, PA 34/39

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
SAINATH, PA 35/39

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
8
Jagannath Singh & anr. , 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.
9
Dnyan Prasarak Shikshan Mandal, Nimgaon & ors. ,
8
2007 (1) Mh.L.J. 597
9
2019 (4) Mh.L.J. 132
SAINATH, PA 36/39

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
th
her services were terminated by order dated 25 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.
SAINATH, PA 37/39

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.
: : O R D E R : :
The Writ Petition stands dismissed.
Rule discharged.
No costs.
[N. J. JAMADAR, J.]
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
SAINATH, PA 38/39

bereft of reason, the oral application for stay to the
execution and operation of the order passed by the
School Tribunal stands rejected.
[N. J. JAMADAR, J.]
SAINATH, PA 39/39