Kishun Singh Vs. Gobind Ram and ors. - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - ordinarily a half-brother does not inherit, and a custom to the contrary ought to be clearly established by convincing evidence. the lower appellate court gives three strong reasons for discarding in fact this case of custom set up by the plaintiff, and the learned judge says that he sees no reason to differ from the munsif. but he made it quite plain that the plaintiff only produced some oral evidence, and that he, the munsif, was not satisfied with it in view of the standard required by law.walsh, j.1. the only question of law which can be said fairly to be raised by this appeal is academic, namely, whether the privy council in the case of h.h. mir abdul hussein khan v. mt. bibi sona dero air 1917 pc 181 really said that a custom should be immemorial. i do not think they said that. it was recognized that the rules regulating custom in india are very different from those in england. at any rate there was no richard i in india, and these family customs in india are somewhat special. but the case in question does decide that they must be ancient and exact. lord buckmaster says: it is necessary to define what the custom is and then examine the evidence to see if it satisfies the conditions so laid down.' both the courts have done that in this case, and both of them are dissatisfied with the evidence, and hold that it does not prove the custom. ordinarily a half-brother does not inherit, and a custom to the contrary ought to be clearly established by convincing evidence. i agree with the appellant that it is a mixed question of fact and law, and where the evidence is practically all one way, the court of appeal, even in second appeal, may overrule the finding. but the lower courts in this case are agreed that the custom is not satisfactorily alleged, and that the evidence in support of it was quite insufficient. the lower appellate court gives three strong reasons for discarding in fact this case of custom set up by the plaintiff, and the learned judge says that he sees no reason to differ from the munsif. it is quite true that the munsif dealt with this issue rather summarily, because he was deciding the case on other points. but he made it quite plain that the plaintiff only produced some oral evidence, and that he, the munsif, was not satisfied with it in view of the standard required by law. he considered the arguments and thought it proper to express his opinion, and he found that the custom was not established. the subordinate judge could find no reason to differ from this conclusion, and as he was overruling the munsif on another point, it was necessary for him to decide it, and it must be assumed that he gave it full consideration. i therefore on the ground that it is a concurrent finding by both the courts, arrived at according to law, and with due regard to the legal standard in cases of family custom, hold that the appellant has no grievance, and that the appeal must be dismissed.