07 May 2121

Adjudicatory authority may only be established by legislation, not by a government executive decree - Bombay High Court

Case : Swati Shivaji Lawhare v. The State of Maharashtra and Ors. Writ Petition No. 940 of 2018

Court : Bombay High Court

Bench : Justice Ujjal Bhuyan and Justice M.G. Sewlikar

Decided on : 07 May 2121

The Relevant Statutes

Article 226, 162, 323A, 323B, 233, 234, 247 of the Constitution of India

Brief Facts & Procedural History

1. Sane Guruji Secondary School, Taluka Kaij, District Beed, is managed by respondent no.6. From the school year 2012-2013, permission for 8th grade was given. One Cook position was sanctioned by a government resolution. It was changed by the corrigendum and resolution, and a Cook post was established for 9th grade as well. The job of one Cook was declared acceptable for every forty pupils by a decision. Since the resolution and the corrigendum, there have been two sanctioned Cook postings.

2. The school administration posted an advertising requesting applications for different positions, including the position of Cook, to fill the second job of Cook. Petitioner applied for the position of Cook and was eventually hired. As a result, a petitioner's appointment order was issued.

3. The office of the Assistant Commissioner of Social Welfare received a proposal from respondent no. 6. By correspondence, Additional Commissioner Social Welfare delivered respondent no.6's proposal proposing acceptance of petitioner's position as Cook. Respondent no. 3, rejected down the proposal by order, citing only one reason: the job of second Cook was not sanctioned. Respondent no.6 filed a show-cause notice to the petitioner based on this ruling, asking him to explain why his services should not be terminated. The ruling of respondent no. 3 and the order of the school are both challenged in this writ suit.

The Issue of the Case

Whether Respondent no.3-Regional Deputy Commissioner Social Welfare, Aurangabad issued an order on December 28, 2017, rejecting respondent nos.5 and 6's request dated June 20, 2014, for granting permission to the petitioner's position as a Cook valid?

The Observations of the Court

1. The High Court of Judicature at Bombay Bench at Aurangabad observes that the petitioner and management were not at fault, according to the timeline of events. As a result, the petitioner's position must be approved. If respondent no. 3 believes the position is not acceptable, the petitioner can be deemed excess and reassigned to the position of Cook whenever a vacancy arises.

2. Referring to the case Secretary, A. P. D. Jain Pathshala V/s. Shivaji Bhagwat More and Others; (2011) 13 Supreme Court Cases 99, The Supreme Court expressly states that adjudicatory authority may only be established by legislation, not by government executive orders. If such a route is allowed, there is a good chance that tribunals will be established without adequate provisions for the constitution's functions, powers, appeals, modifications, and the enforcement of their rulings, resulting in chaos and uncertainty. Employees' rights are likely to be harmed by such ad hoc judicial authorities, which are not independent nor competent to adjudicate disputes or make enforceable rulings. As a result, the State's executive power cannot be used to establish judicial tribunals or bodies that exercise judicial functions and deliver judicial judgements. 

3. It cannot be stated that the petitioner had access to an appeals process. The Honourable Apex Court in the case of Secretary, A.P.D. Jain Pathshala V/s. Shivaji Bhagwat More and Others; (2011) 13 Supreme Court Cases 99, established these appellate authorities not by statute but by executive power through resolution, which is unconstitutional in light of the judgement of the Honourable Apex Court in the case of Secretary, A.P.D. Jain Pathshala V/s. Shivaji Bhagwat More and Others; (2011) 13 Supreme Court Cases 99.

The Decision Held by the Court

1. The High Court of Judicature at Bombay Bench at Aurangabad held the petitioner was not at fault nor the management was at fault. Therefore, the services of the petitioner need to be protected. Respondent no.3 shall, therefore, accord approval to the services of the petitioner. If it is found that the petitioner was appointed against the post which was not sanctioned, she should be declared as surplus and can be adjusted wherever vacancy is available.

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