THE SECRETARY, SH. A. P. D.JAIN PATHSHALA & ORS.versusSHIVAJI BHAGWAT MORE & ORS.

                    [2011} 6 S.C.R. 1173


THE SECRETARY, SH. A. P. D.JAIN PATHSHALA & ORS.                  A
                               v.
             SHIVAJI BHAGWAT MORE & ORS.
              (Civil Appeal No. 4988 of 2011)

                         JULY 4, 2011
                                                                  B
      [R. V. RAVEEDRAN AND A. K. PATNAIK, JJ.]

     Shikshan Sevak Scheme 2000 (in State of Maharashtra):

     Shikshan Sevak - Termination of services of - c
Jurisdiction of Grievance Redressa/ Committee - HELD:
Grievance Committee cannot be a qliasi-judicial forum nor
can its decisions be made final ·and binding on parties in
disputes relating to Shikshan Sevaks - Any order or opinion
of the Grievance Committee on a complaint or grievance 0
submitted by a Shikshan Sevak would be only
recommendation to the Stat13 Government (Education
Department) for taking further action - The direction of the
High Court that when the grievance committee holds that the
termination is bad, the Shikshan Sevak is deemed to continue E
on the rolls of the management is, therefore, erroneous and·
is set aside - It is open to Shikshan Sevak to seek
appropriate remedy in accordance with law.

       Grievance Redressal Committee - Constitution of - High
 Court in writ petitions directing that the Committee should be F
 headed by a retired District Judge, the Committee would give
 opportunity to the parties to fife their replies and that the
 Committee would be the only adjudicatory authority and no
 civil court would entertain any suit or application in respect of
 disputes which were required to be dealt with by the Committee G
- HELD: These changes by the High Court converted what
 was originally conceived by the State Government to be an
 administrative grievance redressa/ mechanism, into a quasi
judicial adjudicatory Tribunal - Neither the Constitution nor
                                1173                               H
    1174    SUPREME COURT REPORTS                 [2011] 6 S.C.R.


A 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,
B it is not permissible for the High Court to direct the State
  Government to constitute judicial authorities or Tribunals by
  executive orders, nor is it permissible for the State by
  executive order or resolution to create them for adjudication
  of rights of parties - The High Court in exercise of the power
C of judicial review, cannot issue a direction that the civil courts
  shall not entertain any suit or application in regard to a
  particular type of disputes (in the instant case, disputes
  relating to Shikshan Sevaks) nor can it create exclusive
  jurisdiction in a quasi-judicial forum like the Grievance
   Committee - The High Court, cannot, by a judicial order,
0
  nullify, supersede or render ineffectual the express provisions
  of an enactment - Constitution of India, 1950 - Articles 162;
   226, 233, 234 and 247; 323-A and 323-B - The Maharashtra
   Employees of Private Schools (C mditions of Service)
   Regulation Act, 1977- Code of Civil Procedure, 1908-s.9 -
E Jurisdiction of Civil Court - Judicial Review.
       The Government of Maharashtra by Resolution dated
  27.4.2000 sanctioned Shikshan Sevak Scheme for
  recognized private secondary/higher secondary schools/
F junior Colleges/B.Ed. Colleges in the State. The Scheme
  provided for constitution of a three member Grievance
  Redressal Committee consisting of the officers of the
  Education Department for considering the grievances of
  Shikshan Sevaks. In the writ petitions challenging the said
G scheme, the High Court, by its order dated 16.8.2000,
  directed the State Government to reconstitute the
  Grievance Redressal Committee with a retired District
  Judge as its Chairman. It further directed that the
  Committee would give opportunity to the parties to file
H their replies and that no civil court would entertain any
  SECRETARY, SH. A. P. D.JAIN PATHSHALA & ORS.1175
           v. SHIVAJI BHAGWAT MORE
suit or application in respect of disputes which were         A
required to be dealt with by the Committee. By
subsequent Government Resolution dated 27.7.2001, it
was provided that the grievances would be considered
by a Single Member Committee consisting of retired
Judge, of the rank of Civil Judge, Senior Division.           B

     Respondent no. 1 was appointed by appellant No.1
as Shikshan Sevak for the period 1.8.200 to 31.7.2003.
According to him, his services were terminated on
11.6.2001. He filed an appeal before the Grievance
Committee. As the Committee did not consider the issues       C
raised by the respondent, he filed a writ petition seeking
a direction to the Grievance Committee to decide the
preliminary issues. The Committee allowed the appeal by
order dated 28.7 .2006, quashed the termination of
respondent no. 1 and directed the employers to reinstate      D
him in any of their schools with continuity of service, but
without back wages. It also directed the Education
Officer to approve the appointment of respondent no. 1
as a regular teacher. The employers filed a writ petition
which was admitted by the Single Judge of the High            E
Court. Since stay of order of the Grievance Committee
was refused, the employers filed CA No. 4989 of 2011.

     Respondent no. 1 filed another writ petition seeking
a direction to the appellants to implement the order dated    F
28.7.2006 passed by the Grievance Committee. The High
Court while issuing notice on 31.2.2008 directed the
Education Officer to ensure compliance by the appellants
of the order dated 28.7.2006 passed by the Grievance
Committee. The application of the appellants seeking to       G
vacate the interim order dated 31.2.2008, was dismissed
by the High Court, inter alia, holding that "when the
Grievance Committee comes to a conclusion that the
order of termination is bad or illegal, the Shikshan Sevak
whose services are terminated, would continue to be on
                                                              H
    1176   SUPREME COURT REPORTS               [2011) 6 S.C.R.


A the rolls of the schoo.I." Aggrieved, the employers filed CA
  No. 4988 of 2011.

       The questions for consideration before the Court
  were: (i) "Whether the High Court can direct the State
  Government to create a quasi judicial forum; and whether
8
  creation of such a forum by an executive order, by the
  State Government, in pursuance of such a direction, is
  valid?" (ii) "Whether the High Court could, by a judicial
  order, exclude the jurisdiction of civil courts to entertain
  any suits or applications in respect of disputes raised by
C Shikshan Sevaks?" (iii) "Whether the High Court was
  justified in holding that when the Grievance Committee
  holds that the order of termination is bad or illegal, it does
  not amount to ordering reinstatement', but the Shikshan
  Sevak would as a result continue to be in the employment
D of the employer?" and (iv) "Whether the orders dated
  2.5.2008 and 5.8.2008 of the High Court call for
  interference?"

        Allowing the appeals, the Court
E
       HELD: 1.1. Creation, continuance or existence of a
  judicial authority in a democracy must not depend on the
  discretion of the eJ:(ecutite but should be governed and
  regulated by appropriate law enacted by a Legislature.
  The provisions of the Constitution, namely, Articles 233,
F 234 and 247 for constituting sub-ordinate courts, and
  Articles 323A and 3238 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. Therefore,
G the executive power of the State cannot be extended to
  creating judicial Tribunals or authorities exercising
  judicial powers and rendering judicial decisions. [para 15-
  16] [119~-F-H; 1191-D-H]

H       Ram Jawaya Kapur Vs. State of Punjab - 1955 (2) SCR
SECRETARY, SH. A. P D.JAIN PATHSHALA & ORS. 1177
         v. SHIVAJI BHAGWAT MORE
225 and Bishamber Dayal Chandra Mohan vs. State of U.P.        A
- 1982 (1) SCC 39; State of Karnataka vs. Vishwabharathi
House Building Co-op., Society 2003 (2) SCC 412; Durga
Shankar Mehta v. Thakur Raghuraj Singh 1955 (1) SCR 267;
Associated Cement Companies Ltd. vs. P. N. Sharma 1965
(2) SCR 366; and Kihoto Hollohan v. Zachi/lhu 1992 Supp(2)     B
SCC 651; Union of India v. Madras Bar Association 2010 (11)
sec 1 - referred to.
     1.2. Under the Shikshan Sevak Scheme, as originally
formulated by the Government Resolution dated
27.4.2000,, the Grievance Redressal Committee was              C
merely a mechanism to hear grievances of Shikshan
Sevaks and give its recommendation to the Education
Department, so that the department could take
appropriate action. The Grievance Committee was not
intended to be a quasi-judicial forum. But, the High Court     D
while recommending various modifications to the said
scheme, in its order dated 16.8.2000, issued specific
directions making significant changes in the constitution
and functioning of the Committee. Firstly, it directed a
change in the constitution of the Committee by requiring       E
a retired District Judge to head the Committee. Secondly,
it directed that an opportunity should be given to the
'parties', that is, the complainant (Shikshan Sevak) and
the person against whom the complaint was made (the
employer) to    file   their statements/replies, before        F
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 selectio11, appointment, re-          G
appointment or cancellation of appointment of Shikshan
Sevaks. The 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      H
    1178   SUPREME COURT REPORTS               [2011] 6 S.C.R.


A 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). [para
  8-9) [1185-C-H; 1186-A-B]

       1.3. Neither the Constitution nor any statute
8
  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.
C Therefore, it is not permissible for the High Court to direct
  the State Government to constitute judicial authorities or
  Tribunals by executive orders, nor is it permissible for the
  State by executive order or resolution to create them for
  adjudication of rights of parties. [para 17] [1192-A-B]
D
       2.1. Section 9 of the Code of Civil Procedure, 1908
  provides that the courts shall, subject to the provisions
  of the Code, have jurisdiction to try all suits of a civil
  nature excepting suits of which their cognizance is either
E expressly or impliedly barred. The express or implied bar
  necessarily refers to a bar created by the Code itself or
  by any statute made by a Legislature. Therefore, the High
  Court in exercise of the power of judicial review, cannot
  issue a direction that the civil courts shall not entertain
F any suit or application in regard to a particular type of
  disputes (in the instant case, disputes relating to
  Shikshan Sevaks) nor can it create exclusive jurisdiction
  in a quasi-judicial forum like the Grievance Committee.
  The High Court, cannot, by a judicial order, nullify,
G supersede or render ineffectual the express provisions
  of an enactment. [para 18) [1192-D-F]

        2.2. Constitution of a Grievance Committee as a
    public adjudicatory forum, whose decisions are binding
    on the parties to the disputes, by an executive order of
H
. SECRETARY, SH. A. P. D.JAIN PATHSHALA & ORS.1179
           v. SHIVAJI BHAGWAT MORE
  the Government is impermissible. Any such Grievance           A
  Committee created by an executive order, either on the
  direction of the High Court or otherwise, can only be fact
  finding bodies or recommending bodies which can look
  into the grievances; and any order or opinion of the
  Grievance Committee on a complaint or grievance               B
. submitted by a Shikshan Sevak would be only
  recommendations to the State Government (Education
  Department) for taking further action or making
  appropriate reports to enable judicial Tribunals to render
  decisions. [para 19) [1192-G-H; 1193-A-B]                     c
       3.1. An opinion by the Grievance Committee that the
  termination of the services of a Shikshan Sevak is illegal
  can not have the effect of either reinstating the employee
  into service, nor can it be deemed to be a declaration that
  the Shikshan Sevak continues to be an employee of             D
  school. Even if a Shikshan Sevak is wrongly removed,
  the department could only direct the school to take him
  back into service and if it does not comply, take action
  permissible in law for disobedience of its directions.
  Therefore, the decision of the Grievance Committee dated      E
  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.
  Persons aggrieved by such directions of the State
· government will be entitled to challenge such directions      F
  either before the civil court or in writ proceedings. It is
  also open to the Shikshan Sevak to seek appropriate
  remedy if he is aggrieved by his termination, in
  accordance with law. [para 21-23) [1193-H; 1194-A-F]
      3.2. The directibn of the High Court in its order dated   G
 5.8.2008 that when the grievance committee holds that the
 termination is bad, the Shikshan Sevak is deemed to
 continue on the rolls of the management is erroneous
 and is liable to be set aside. The impugned orders dated
                                                                H
    1180   SUPREME COURT REPORTS                 (2011] 6 S.C.R.


A   2.5.2008 and 5.8.2008 are set aside. [para 20 and 23)
    (1193-F-G]

        S.B. Dutt vs. University of Delhi - AIR 1958 SC 1050;
    Executive Committee of Vaish Degree College, Shamli vs.
    Lakshmi Narain - 1976 (2) SCR 1006 - relied on
B
                        Case Law Reference:

        2003 (2) sec 412           referred to          para 13

        1955 (1) SCR 267           referred to          para 14
c
        1965 (2) SCR 366           referred to          para 14

        1992 supp(2) sec 651       referred to          para 14
        2010 (11) sec 1            referred to          para 14
D       1955 (2) SCR 225           referred to          para 16
        1982 (1) sec 39            referred to          para 16
        AIR 1958 SC 1050           relied on            para 20

E       1976 (2) SCR 1006          relied on            para 20

        CIVIL APPELALTE JURISDICTION : Civil Appeal No.
    4988 of 2011.

        From the Judgment & Order dated 5.5.2008 of the High
F   Court of Aurangabad Bench in Writ Petition No. 7362 of 2007.

                               WITH

    C.A. No. 4989 of 2011.

G         Uday S. Matte, N.R. Katneshwarkar, Sunil Kumar Verma
    for the Appellants.

        Dilip Annasaheb Taur, Anil Kumar, Shankar Chillarge,
    Asha Gopalan Nair for the Respondent.
H
 SECRETARY, SH. A. P. D.JAIN PATHSHALA & ORS.1181
          v. SHIVAJI BHAGWAT MORE

    The Judgment of the Court was delivered by                    A
      R.V.RAVEENDRAN, J. 1. Leave granted in both the
petitions.

     2. The Government of Maharashtra by Government
Resolution dated 27.4.2000 accorded sanction for                  B
implementation of the Shikshan Sevak scheme in all
recognized private secondary/higher secondary schools/Junior
colleges/B.Ed. colleges, in the state. The said scheme in
essence provided for (i) appointment of Shikshan Sevaks for
a term of one year on payment of a fixed honorarium, (ii)         C
renewal of such appointment annually, if the work was found to
be satisfactory, (iii) absorption of such Shikshan Sevaks into
service as teachers on completion of the specified years of
service. It provided for constitution of a three member
Grievance Redressal Committee (consisting of the concerned        D
Divisional Deputy Director of Education, the Assistant Director
and the Education Officer) to consider and decide the
grievances relating to selection, appointment, re-appointment
or mid-year cancellation of appointment. The scheme provided
as follows:                                                       E

    "All the complaints received under the Shikshan Sevak
    scheme are to be referred to the aforesaid Three Member
    Committee. This committee will hold monthly meetings and
    render its decision on the complaints and would inform        F
    the same to the concerned. An opportunity to put up the
    case would be given to the complainan_t."

                                          [Emphasis supplied]

     3. The Bombay High Court disposed of several writ            G
petitions challenging the said scheme, by order dated
16.8.2000, recording the submission made on behalf of the
state government that it would amend the scheme by
incorporating the several modifications suggested by the court.
While doing so, the High Court also directed the state            H
    1182    SUPREME COURT REPORTS                 [2011) 6 S.C.R.


A   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

B
        "All complaints relating to unsatisfactory work or
        misconduct etc. will be forwarded to the Committee who
        shall take decision within 30 days from the date of receipt
        of record after giving an opportunity to the concerned
        parties to file their replies so as to avoid prolonged
c       procedure of oral hearing.

        All complaints in respect of appointment, termination etc.
        shall be dealt with only by the Committee constituted above
        and by no other authority. As the scheme is being
D       implemented on interim basis we direct that no Civil Court
        shall entertain any suit or application in respect of
        disputes which are required to be dealt with by the
        Committee."

                                             (emphasis supplied)
E
        4. In compliance with the said decision dated 16.8.2000,
    the State Government by Government Resolution dated
    13.10.2000 modified the scheme. Clause (17) of the modified
    scheme implemented the direction of the High Court regarding
F   the re-constitution of the Three Member Committee and
    provided that the Committee would function at Mumbai,
    Aurangabad and Nagpur, the area of jurisdiction of the
    committees corresponding to the jurisdiction of the benches of
    High Court at Mumbai, Aurangabad and Nagpur.
G
         5. By order dated 21.6.2001 in subsequent writ petitions,
    the High Court recorded the following submissions of the State
    Government :

        "The learned Advocate General stated that the State
H       Government will appoint a nine member Grievance
 SECRETARY, SH. A. P. D.JAIN PATHSHALA & ORS.1183
v. SHIVAJI BHAGWAT MORE [R.V. RAVEENDRAN, J.]
    Committee and the pending grievances of the Shikshan           A
    Sevaks will be referred to the said Grievance Committee.
    The Committee will be headed by a retired Civil Judge,
    Sr. Division, who will be appointed in consultation with the
    Registrar of this Court. The learned Advocate General
    assured the Court that the appointment of the Committee        B
    member will be notified within a period of six weeks from
    today. He also stated that the Member of the Grievance
    Committee will be given salary and emoluments as paid
    to the member of the School Tribunal and necessary
    infrastructure will also be provided. He stated that the       C
    Committee will hold the proceedings in Mumbai,
    Aurangabad and Nagpur to consider the grievances of the
    Shikshan Sevaks of the respective regions."

Thereafter, Government Resolution dated 27.7.2001 was
issued directing that the grievances will be considered by a       D
Single Member committee consisting of retired Judge (higher
level) at Mumbai, Aurangabad and Nagpur by way of circuit
bench and resolve the complaints of Shikshan Sevaks.

Facts of this case                                                 E
       ' The appellants appointed the first respondent as a
Shikshan Sevak on 29.7.2000 for the period 1.8.2000 to
31.7.2003. The first respondent alleges that his services were
orally terminated on 11.6.2001. On the other hand, the
appellants allege that services of first respondent came to an     F
end in March-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     G
the said appeal on 18.10.2003 and filed an appeal before the
Grievance Committee in 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      H
        1184    SUPREME COURT REPORTS                  (2011) 6 S.C.R.


    A the Grievance Committee to decide the preliminary issues. The
      High C'ourt 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
    B 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/
    C 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.
    0
           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 petition, the High Court
    E 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
    F interim order dated 31.3.2008 which was dismissed by the
      High Court by order dated 5.8.2008, holding as follows :

            (i) The Grievance Committee had the power to decide the
            legality of the termination.

    G       (ii) When the Grievance Committee comes to a conclusion
            that the order of termination is bad or illegal, the Shikshan
            Sevak whose services are terminated, would continue to
            be on the rolls of the school.

    H       (iii) As the management receives grant-in-aid in regard to
 SECRETARY, SH. A. P. D.JAIN PATHSHALA & ORS. 1185
v. SH1VAJI BHAGWAT MORE [R.V. RAVEENDRAN, J.]

     Shikshan Sevak, the appellants were bound to comply              A
   . with the direction issued by the Grievance Committee.

The said order is challenged in the first of these two appeals.
This Court on 15.9.2008 while issuing notice granted interim
stay of the orders dated 31.3.2008 and 5.8.2008.
                                                                      B
The Issue

     8. Under the Shikshan Sevak Scheme, as originally
formulated by the State Government by Government Resolution
dated 27.4.2000, the Grievance Redressal Committee was                c
merely a mechanism to hear grievances of Shikshan Sevaks
and give its recommendation to the Education Department, so
that the department could take appropriate action. The
Grievance Committee was not intended to be a quasi-judicial
forum aswas evident from the following: (a) The committee was         0
constituted only to consider the grievances of the Shikshan
Sevaks by giving them an opportunity of putting forth their
grievances. (b) The scheme did not contemplate issue of.notice
to the employer, nor hearing both parties, nor rendering any
adjudicatory decision. (c) The committee was a departmental           E
committee with only the concerned officers as members.

      9. The High Court while recommending various
modifications to the said scheme, in its order dated 16.8.2000,
issued specific directions making significant changes in the
constitution and functioning of the committee. Firstly it directed    F
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 (Shikshan Sevak) and the person against
whom the complaint was made (the employer) to file their              G
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,          H
    1186         SUPREME COURT REPORTS                   [2011] 6 S.C.R.


A 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
8 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).

       10. The appellants contend that the constitution of such a
  quasi judicial tribunal, by a judicial fiat to the state government,
C was without the authority of law and invalid, and consequently,
  the decisions by such a forum are void and unenforceable. On
  the contentions raised, the following questions arise for our
  consideration :                              ·

0          (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?
E
           (ii)    Whether the High Court could, by a judicial order,
                   exclude the jurisdiction of civil courts to entertain any
                   suits or applications in respect of disputes raised
                   by Shikshan Sevaks?
F          (iii)   Whether the High Court was justified in holding that
                   when the Grievance Committee holds that the order
                   of termination is bad or illegal, it does not amount
                   to ordering reinstatement, but the Shikshan Sevak
                   would as a result continue to be in the employment
G                  of the employer?
           (iv)    Whether the orders dated 2.5.2008 and 5.8.2008
                   of the High Court call for interference?

      11. In the State of Maharashtra, the conditions of service
H of employees of private schools are governed by the
 SECRETARY, SH. A. P. D.JAIN PATHSHALA & ORS. 1187
v. SHIVAJI BHAGWAT MORE [RV. RAVEENDRAN, J.]
Maharashtra Employees of Private Schools (Conditions of             A
Service) Regulation Act, 1977 ('Act' for.short). The said Act
applies to employees of primary schools, secondary schools,
higher secondary schools, junior colleges of education or any
other institutions bywhatevername called including technical,
vocational or art institutions. The term 'employee' was initially   B
defined as any member of the teaching and non-teaching staff
of a recognized school. Section 8 provided for constitution of
School Tribunals consisting of single member who is an officer
of the rank of Civil Judge (Senior Division). Section 9 gave a
right of appeal to the employees of private schools to the          c
Tribunal. The Tribunal was given the power to give appropriate
reliefs and directions to the management including
reinstatement, awarding of lesser punishment, restoration of
rank, payment of arrears of emoluments etc., and also the power
to levy penalty. When the Shikshan Sevak Scheme was
                                                                    0
introduced in the year2000, it was assumed that the Shikshan
Sevaks were not "employees" of private schools and therefore
will not be entitled to approach the School Tribunals for relief.
Therefore, the scheme provided a grievance redressal
mechanism. When the validity of the scheme was challenged,
the High Court was also of the view that the Act would not apply    E
to Shikshan Sevaks as they were not 'employees' as defined
under the Act. The High Court however was of the view that
Shikshan Sevaks should have recourse to remedies similar to
the regular employees of private schools and therefore directed
reconstitution of the grievance committees on the lines of the      F
School Tribunal. The Act was amended by Amendment Act 14
of 2007 whereby the definition of 'employee' was expanded to
include Shikshan Sevaks. Ever since the amendments to the
Act, by Act 14 of 2007, came into force, Shikshan Sevaks have
the remedy of approaching the statutory School Tribunals            G
constituted under the Act for redressal of their grievances and
the Grievance Committees became redundant. Thus what falls
for consideration in this case is the position that existed prior
to the 2007 Amendment to the Act.
                                                                    H
    1188    SUPREME COURT REPORTS                 [2011] 6 S.C.R.


A Re: Question (i)

        12. Chapter VI of the Constitution of India deals with Sub-
  ordinate Courts. Article 233 of the Constitution of India relates
  to appointment of District Judges. Article 234 relates to
  recruitment of persons other than District Judges to the judicial
8
  service and provides that appointment of persons to the judicial
  service of a State (other than District Judges) shall be made
  by the Governor of the State in accordance with the Rules
  made by him in that behalf after consultation with the St'lte
  Public Service Commission and with the High Court exercising
C jurisdiction in relation to such State. Article 247 provides that
  notwithstanding anything contained in Chapter I of Part XI of the
  Constitution, Parliament may by law provide for the
  establishment of any additional courts for the better
  administration of laws made by the Parliament or of any
D existing laws with respect to a matter enumerated in the union
  list.

        13. Part XIV-A of the Constitution of India deals with
  Tribunals. Article 323A provides for the creation of
E Administrative Tribunals. Article 3238 provides that the
  appropriate Legislature may by law provide for the adjudication
  or trial by Tribunals of any disputes, complaints or offences with
  respect to all or any of the matters specified in clause (2)
  thereof with respect to which such Legislature has power to
F make laws. The matters enumerated in clause (2) of Article
  3238 do not include disputes relating to employees of
  educational institutions. This Court in State of Kamataka vs.
  Vishwabharathi House Building Co-op., Society - 2003 (2)
  sec 412 has clarified that Articles 323A and 3238 enabling
G the setting up of Tribunals, are not to be interpreted as
  prohibiting the legislature from establishing Tribunals not
  covered by the said Articles as long as there is legislative
  competence under an appropriate entry in the Seventh
  Schedule.

H       14. Courts and Tribunals are constituted by the State, to
 SECRETARY, SH. A. P. D.JAIN PATHSHALA & ORS.1189 ·
v. SHIVAJI BHAGWAT MORE [R.V. RAVEENDRAN, J.]

invest judicial functions, as distinguished from purely A
administrative or executive functions, (vide Ourga Shankar
Mehta v. Thakur Raghuraj Singh - 1955 (1) SCR 267).
'Courts' refer to hierarchy of courts invested with state's inherent
judicial power established to administer justice in pursuance of
constitutional mandate. Tribunals are established under special B
Statutes to decide the controversies arising under those special
laws. In Associated Cement Companies Ltd. vs. P.N.Sharma
[1965 (2) SCR 366] this Court observed :

    " ... Judicial functions and judicial powers are one of the C
    essential attributes of a sovereign State, and on
    considerations of policy, the State transfers its judicial
    functions and powers mainly to the courts established by
    the Constitution; but that does not affect the competence
    of the State, by appropriate measures, to transfer a part
    of its judicial powers and functions to tribunals by entrusting D
    to them the task of adjudicating upon special matters and
    disputes between parties."

                                               [emphasis supplied]
                                                                          E
     In Kihoto Hollohan v. Zachillhu [1992 Supp(2) SCC 651],
this Court held:

     "Where there is a lis - an affirmation by one party and denial
     by another - and the dispute necessarily involves a decision
     on the rights and obligations of the parties to it and the           F
     authority is called upon to decide it, there is an exercise
     of judicial power. That authority is called a Tribunal, if it does
     not have all the trappings of a court."

   In Union oflndia v. Madras Bar Association [2010 (11) G
SCC 1], a Constitution Bench of this Court held:

     "The term 'Courts' refers to places where justice is
     administered or refers to Judges who exercise judicial
     functions. Courts are established by the state for H
    1190     SUPREME COURT REPORTS                    [2011] 6 S.C.R.

A        administration of justice that is for exercise of the judicial
         power of the state to maintain and uphold the rights, to
         punish wrongs and to adjudicate upon disputes. Tribunals
         on the other hand are special alternative institutional
         mechanisms, usually brought into existence by or under
B        a statute to decide disputes arising with reference to that
         particular statute, or to determine controversies arising out
         of any administrative law. Courts refer to Civil Courts,
         Criminal Courts and High Courts. Tribunals can be either
         private Tribunals (Arbitral Tribunals), or Tribunals
c        constituted under the Constitution (Speaker or the
         Chairman acting under Para 6(1) of the Tenth Schedule)
         or Tribunals authorized by the Constitution (Administrative
         Tribunals under Article 323A and Tribunals for other
         matters under Article 3238) or Statutory Tribunals which
         are created under a statute (Motor Accident Claims
D
         Tribunal, Debt Recovery Tribunals and consumer fora)."
                                                 (emphasis supplied)
        15. Apart from constitutional provisions, Tribunals with
E 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
F 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. Creation, continuance or
  existence of a judicial authority in a democracy must not depend
G 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
H organization in a democratic society must not depend on the
 SECRETARY, SH. A. P. D.JAIN PATHSHALA & ORS.1191
v. SHIVAJI BHAGWAT MORE [R.V. RAVEENDRAN, J.]

discretion of the executive, but should be regulated by law             A
emanating from the Parliament".

      16. 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       8
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            C
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 Vs. State of Punjab - 1955 (2) SCR 225
and Bishamber Dayal Chandra Mohan vs. State of U.P. -                   0
1982 (1) SCC 39. 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 Con_stitution". The
provisions of the Constitution, namely Articles 233, 234 and
247 for constituting sub-ordinate courts, and Articles 323A and         E
3238 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. If the power to constitute and create judicial
Tribunals by executive orders is recognized, there is every             F
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         G
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.            H
    1192     SUPREME COURT REPORTS                  [2011] 6 S.C.R.


A      17. 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
B 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.

C Re: Question (ii)

        18. Section 9 of the Code of Civil Procedure provides that
  the courts shall, subject to the provisions of the Code, have
  jurisdiction to try all suits of a civil nature excepting suits of
D which their cognizance is either expressly or impliedly barred.
  The express or implied bar necessarily refers to a bar created
  by the Code itself or by any statute made by a Legislature.
  Therefore, the High Court in exercise of the power of judicial
  review, cannot issue a direction that the civil courts shall not
E entertain any suit or application in regard to a particular type
  of disputes (in this case, disputes relating to Shikshan Sevaks)
  nor create exclusive jurisdiction in a quasi-judicial forum like the
  Grievance Committee will be entitled to deal with them. The
   High Court, cannot, by a judicial order, nullify, supersede or
F render ineffectual the express provisions of an enactment.

       19. Therefore, we hold that constitution of a Grievance
  Committee as a public adjudicatory forum, whose decisions
  are binding on the parties to the disputes, by an executive order
  of the Government is impermissible. Secondly, the High Court
G cannot in exercise of judicial power interfere with the jurisdiction
  of the civil courts vested under Code of Civil Procedure. Any
  such Grievance Committee created by an executive order,
  either on the direction of the High Court or otherwise, can only
  be fact finding bodies or recommending bodies which can look
H into the grievances and make appropriate recommendations
I SECRETARY, SH. A. P. D.JAIN PATHSHALA & ORS. 1193
' v. SHIVAJI BHAGWAT MORE [R.V. RAVEENDRAN, J.]

to the government or its authorities, for taking necessary actions   A
or appropriate reports to enable judicial Tribunals to render
decisions. The Grievance Committee cannot be public quasi-
judicial forum nor can its decisions be made final and binding
on parties, in disputes relating to Shikshan Sevaks. Therefore,
it has to be held that any order or opinion of the Grievance         B
Committee on a complaint or grievance submitted by a
Shikshan Sevak were only recommendations to the State
Government (Education Department) for taking further action
and nothing more.

 Re : Questions (iii) & (iv)                                         c
      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        D
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         E
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     F
(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 grievance committee        G
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.

      21. If a Grievance Committee opines that the termination
 or cancellation of appointment of a Shikshan Sevak was bad,         H
    1194    SUPREME COURT REPORTS                [2011) 6 S.C.R.


A the State Government may consider such opinion/
  recommendation and if it decides to accept it, take appropriate
  action by directing the school to take back the Shikshan Sevak,
  and if the school fails to comply, take such action as is
  permissible including stoppage of the grant. An opinion by the
B Grievance Committee that the termination of the services of a
  Shikshan Sevak is illegal can not however have the effect of
  either reinstating the employee into service, nor deemed to be
  a declaration that the Shikshan Sevak continues to be an
  employee of school. Even if a Shikshan Sevak is wrongly
c removed, the department could only direct the school to take
  him back into service and if it does not comply, take action
  permissible in law for disobedience of its directions.

       22. Therefore the decision of the committee dated
  28.7.2006 is not an enforceable or executable order but only a
D 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
  government will be entitled to challenge such directions either
  before the civil court or in a writ proceedings.
E
         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
F   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.

    R.P.                                        Appeals allowed.