Judgment:
M.L. Pendse, J.
1. By this petition filed under Article 226 of the Constitution Cantonment Board of Deolali, District Nasik is challenging legality of order dated 21st January 1987 passed by the Presiding Officer, School Tribunal, Bombay Region. By the impugned order the Tribunal held that discontinuance of respondent No. 1 from service was without authority of law and, therefore, directed reinstatement of respondent No. 1 to the post of a teacher and payment of 50% of back wages. The petition was admitted on 27th March 1987 but interim relief was not granted with the result that respondent No. 1 had rejoined the school.
2. Respondent No. 1 was appointed as primary school teacher in Hindi Primary School on December 5, 1983. It is the claim of the Cantonment Board that the appointment was in a leave vacancy and the appointment was for a short duration but was continued from time to time and ultimately the appointment lapsed on 30th April 1985. Respondent No. 1 claiming that she was appointed in a permanent vacancy and had become permanent after completion of two years period from the date of initial appointment challenged the discontinuation of her service by filing an appeal before the School Tribunal constituted under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as the Act). Section 8 of the Act confers power upon the State Government to constitute School Tribunal and section 9 confers right on employee in a private school to prefer an appeal to the tribunal against the order of dismissal, removal or superannuation by the management. The appeal was resisted by the Cantonment Board by claiming that in respect of schools run by the Cantonment Board the tribunal had no jurisdiction to entertain the appeal. The Board also contended that the appeal was barred by period of limitation prescribed under section 9(2) of the Act. On merits the Board claimed that the termination of the services was legal and proper. The tribunal by the impugned order held that the tribunal had jurisdiction to entertain the appeal under section 9(1) of the Act. The tribunal held that the delay in filing the appeal deserves to be condoned on the facts and circumstances of the case. The tribunal further held that the removal or discontinuation of respondent No. 1 was contrary to the provisions of law and respondent No. 1 had acquired status of permanent teacher. The order of the tribunal is under challenge.
3. Mrs. Keluskar, learned Counsel appearing on behalf of the petitioners, submitted that the tribunal committed an error in assuming jurisdiction to entertain the appeal. It was contended that the provisions of the Act are not attracted in respect of schools established or administered by the local authorities and Cantonment Board is a local authority. To appreciate the submission of the learned Counsel it is necessary to refer to some of the provisions of the Act. Before adverting to those provisions it is required to be stated that the subject of education which was initially in the State List was included in the Concurrent List by Forty-second Amendment with effect from 3rd January 1977. Prior to 3rd January 1977 Entry No. 11 of List of Seventh Schedule of the Constitution read as under: 'Education including universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III'. Entry 25 of List i.e. Concurrent List read as under: 'Vocational and technical training of labour'. By Forty-Second Constitutional Amendment with effect from 3rd January 1977 Entry 25 in List-III i.e. Concurrent List in the Seventh Schedule of the Constitution was substituted and now reads as under: 'Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour'. In view of this amendment the subject of education is now in Concurrent List.
4. The Maharashtra Legislature passed Maharashtra Act No. III of 1978 to regulate recruitment and conditions of service of employees in certain private schools in the State with a view to provide to such employees security and stability of service to enable them to discharge their duties towards the pupils and their guardians in particular and the institution and the society in general, effectively and efficiently. The Act came into force after the President of India gave assent on March 20, 1978. The expression 'private school' is defined under section 2(20) as stood prior to Amending Act 30 of 1987 and means a recognised school established or administered by a Management other than the Government or a local authority. The expression Local authority is defined under section 2(11) and means a Zilla Parishad, a Municipal Corporation or a Municipal Council, as the case may be. Section 9(1) inter alia provides that notwithstanding anything contained in any 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 by the management shall have a right of appeal to the tribunal constituted under section 8. Respondent No. 1 had filed appeal against discontinuation from service in accordance with the provisions contained in section 9(1) of the Act.
5. Mrs. Keluskar submitted that the schools run by the Cantonment Board do not fall within the definition of private schools under section 2(20) of the Act. It was urged that section 2(20) excludes schools established or administered by local authority and Cantonment Board is a local authority. The cantonments are constituted by the Central Government in accordance with the powers conferred under section 3(1) of the Cantonments Act, 1924. The Central Government is authorised to declare any place or places in which any part of the defence force is quartered or which, being in the vicinity of any such place or places, is or are required for the service of such forces, to be a cantonment. Section 10 of the Cantonments Act prescribes that for every cantonment there shall be a Cantonment Board. Section 116 of the Cantonments Act sets out duties of the board and one of the duties is establishing and maintaining primary schools. In exercise of powers conferred under the Act the Board had established and maintained the school in which respondent No. 1 was appointed as a teacher. The Board claims that appointment of teaching and non-teaching staff is made under the provisions of the Cantonment Fund Servants Rules, 1937 and their service conditions are controlled by the Central Service (Conduct) Rules, 1964. The Board further claims that appointments are made by Chief Executive Officer of the Board and appellate jurisdiction in respect of service disputes vests in General Officer, Commander-in-chief in accordance with Rule 12 of Cantonment Fund Servants Rules.
6. Mrs. Keluskar submitted that a cantonment board is a local authority in accordance with the definition of expression under section 3(31) of the General Clauses Act. The expression 'Local authority' means a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund. It was submitted that the Central Government had entrusted the Cantonment Board with the management and control of local fund and consequently the Cantonment Boards squarely fall within the definition of 'local authority' under section 3(31) of the General Clauses Act and, therefore, the tribunal could not exercise jurisdiction under the Act in respect of schools run by Cantonment Board. It is not possible to accede to the submission of the learned Counsel. It is not appropriate to refer to the definition of local authority under section 3(31) of the General Clauses Act when the expression local authority is specifically defined under section 2(11) of the Act. While defining the expression local authority the State legislature has specifically excluded Cantonment Boards, with the result that the schools established or administered by the Cantonment Boards are not excluded from the definition of section 2(20) of the Act.
7. Mrs. Keluskar then submitted that the provisions of the Act encroach upon the provisions of the Cantonments Act which is a Central Act and as there is repugnancy between the provisions of the Central Act and the State Act the provisions of the Central Act must prevail and the tribunal could not entertain appeals preferred by the employees of schools administered by Cantonment Board. The repugnancy according to learned Counsel arises because Cantonments Act provides for appeals to General Officer, Commander-in-Chief while State Act requires filing of appeal to tribunal. It is not possible to accept the contention urged by the learned Counsel in view of provisions of Article 254 of the Constitution. Article 254 reads as under :
254. 'Inconsistency between laws made by Parliament and laws made by the Legislatures of States---(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State : Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of State.'
The plain reading of Article 254(2) makes it clear that where a law made by the State Legislature with respect to matters enumerated in the Concurrent List is repugnant to the provisions of law made by Parliament then the law made by the State Legislature shall prevail, provided it has been reserved for the consideration of the President and has received the assent. It is not in dispute that the President of India gave assent to the Act in exercise of powers under Article 254(2) of the Constitution on 20th March 1978. In view of the assent granted by the President, even assuming that there is repugnancy between the State Act and the Central Act the provisions of the State Act must prevail. In our judgment the challenge to the jurisdiction of the tribunal to entertain the appeal is without any merit and is required to be repelled.
8. Mrs. Keluskar then submitted that the Tribunal was in error in condoning the delay in filing appeal. Section 9(2) inter alia prescribes that appeal to the tribunal shall be filed within 30 days from the date of receipt of the order of dismissal or otherwise from the date of termination of the service. It is not in dispute that the tribunal has power to entertain the appeal after the expiry of period prescribed under sub-section (2) on satisfaction that the employee had sufficient cause for not preferring appeal within stipulated period. The tribunal in the present case relying on the powers conferred under section 9(3) of the Act has condoned the delay which was only of a period of seven days. We are unable to find any reason to disturb the discretion exercised by the tribunal. The tribunal was wholly justified in condoning the delay when the appeal is preferred by an employee of a school. It is necessary for the tribunal while exercising power to condone the delay to bear in mind the conditions is which the employees of a school are required to function and their economic inability to carry on litigation. On the facts and circumstances of the present case we have no hesitation in concluding that the tribunal was justified in condoning the delay in filing the appeal.
9. Mrs. Keluskar then submitted that the discontinuation of respondent No. 1 was neither illegal nor improper. We are unable to find any merit in the submission for more than one reason. In the first instance the tribunal has recorded finding against the management on appreciation of evidence and it is not permissible to disturb that finding of fact in exercise of jurisdiction under Article 226 of Constitution. Secondly even on merits we are unable to find any infirmity in the reasons and conclusions recorded by the tribunal. Respondent No. 1 had passed M.Sc D.Ed. (Kovid) and belongs to O.B.C. community. The husband of respondent No. 1 was retrenched from service in railways and the family is dependent on the income of respondent No. 1 only. It is not in dispute that services of respondent No. 1 were terminated without holding any enquiry or without framing any charge against respondent No. 1. Indeed it is not in dispute that the work of respondent No. 1 as a primary teacher was satisfactory. Respondent No. 1 having satisfactorily completed the period of probation had become automatically permanent employee and the services of a permanent employee cannot be terminated without holding a proper enquiry. Even in respect of temporary employee termination is permissible provided the notice of requisite period is served or payment in lieu of notice is made. The Cantonment Board did not follow any procedure before discontinuing respondent No. 1 from service. In these circumstances the conclusion of the tribunal that respondent No. 1 is entitled to reinstatement cannot be faulted. In our judgment the decision of the tribunal is in accordance with law and is not required to be disturbed.
10. Accordingly, petition fails and rule is discharged with costs.