In Re: Harshankar Parshad - Court Judgment

Excerpt:
act viii of 1859, section 338 - act xxiii of 1861, section 38--execution of decree-- appeal--miscellaneous proceedings. - 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]. 1. proceedings in execution of decree would not, in our opinion, ordinarily fall within the term 'miscellaneous proceedings.' they should he regarded rather as stages in the suit or proceeding in which the decree or order under execution was passed; whereas by miscellaneous proceedings we should understand ordinarily those applications commenced by petition, and not by plaint, of a less formal character than suits, and generally if not universally calling on the court to exercise special powers conferred on it by the legislature, such as applications for certificates to collect debts, applications for probate or letters of administration, applications for appointment of guardians, etc.; and possibly also the term miscellaneous proceedings may also be applied with propriety to those proceedings which the court is empowered to institute of its own motion, such as proceedings for the institution of prosecutions in certain cases.2. but unless we hold that the term miscellaneous proceedings in section 38 has a wider significance, and applies to all proceedings for which no special provision is made, the court appears to be left without powers which are necessary to enable it to deal with such proceedings. it would have no power to deal with them in default of appearance; it would have no power to enforce the attendance of witnesses; and there are no directions as to the form of the order nor as to the form of appeal from an order passed in such proceedings in cases in which an appeal lies.* we would, therefore, read the term in this section as embracing all proceedings, not being regular suits or appeals, for which no procedure is expressly provided, and in that sense it embraces proceedings in execution of decree.+ in support of this contention, it maybe mentioned that, in mofussil courts, proceedings in execution have been treated as falling within the class of 'mutafarrikat,' or miscellaneous proceedings or cases, as opposed to 'nambari,' or regular suits, and appeals from orders passed in proceedings in execution have up to the present time been filed as miscellaneous appeals. we are, therefore, of opinion that the court had power to stay execution under the circumstances stated in the reference.------------------------------------foot note---------------------------------* the section gives no right of appeal in such proceedings--see hureenath konndoo v. modhoo soondan saha 19 w.r. 122.+ the following, in addition to proceedings in execution of decree, have been held to be 'miscellaneous proceedings' within the meaning of section 38, act xxiii of 1861:proceedings under section 246, act viii of 1859--bapu v. lakshuman baji 10 bom. h.c.r. 19.enquiries by civil courts under section 171, act xxv of 1861, corresponding to section 471, act x of 1872--the case of the collector of tirhoot 14 w.r. 390.applications to the bombay high court for the exercise of its extraordinary jurisdiction under bombay regulation ii of 1827, section 5, clause 2-the petition of nagappa 5 bom. h.c.r. a.c. 215.