Constitutional Law; M.S. Kazi Vs. Muslim Education Society [Supreme Court of India, 22-08-2016]

Constitution of India – Art. 226 & 227 – Gujarat Higher Secondary Education Tribunal – the lis is between the management and a member of its teaching or non-teaching staff – Whether a tribunal or court whose order is challenged in proceedings under Articles 226 and 227 of the Constitution is a necessary party to the proceedings – Held, It is for the person aggrieved to pursue his or her remedies before the tribunal. An order of the tribunal is capable of being tested in exercise of the power of judicial review under Articles 226 and 227. When the remedy is invoked, the tribunal is not required to step into arena of conflict for defending its order. Hence, the tribunal is not a necessary party to the proceedings in a Special Civil Application.




AUGUST 22, 2016

CIVIL APPEAL Nos. 11976-11977 OF 2014






A Division Bench of the High Court of Gujarat dismissed a Letters Patent Appeal filed by the Appellant. The LPA arose out of the dismissal of a Special Civil Application under Articles 226 and 227 of the Constitution by a learned Single Judge on the ground that it was not maintainable. In arriving at this conclusion the Division Bench relied upon a judgment rendered by a five-Judge Bench of the High Court in

Gujarat State Road Transport Corporation Vs. Firoze M. Mogal and Anr., 2014 GLH 1

in which it was held that a Special Civil Application under Articles 226 and 227 of the Constitution is not maintainable where the court or tribunal whose order is sought to be quashed is not impleaded as a party to the proceedings. The Appellant assails the judgment of the Division Bench.

2. The Appellant was employed as an Assistant Teacher on 30 June 1978 in a school conducted by the first Respondent, which is a minority institution. On 25 June 2002 a chargesheet was issued to the Appellant alleging that between 29 November 2001 and 15 December 2001, he had proceeded on a pilgrimage without prior permission and was absent without sanctioned leave. Apart from this allegation, which constituted the first article of charge, the second was that whereas in his application for withdrawal from the provident fund, the reason of the pilgrimage was shown to be Haj, the application for leave indicated a pilgrimage to Umrah. The Appellant denied the charges. Upon a departmental inquiry, the charges were found to be established and the Appellant was dismissed from service on 13 January 2004. The Appellant moved the Gujarat Higher Secondary Education Tribunal for challenging the order of dismissal. On 13 June 2006, the Tribunal dismissed the application.

3. Aggrieved by the order of the Tribunal, the Appellant instituted a Special Civil Application under Articles 226 and 227 of the Constitution before the High Court. Besides seeking to challenge the order of the Tribunal and the punishment of dismissal, the Appellant sought consequential reliefs for treating him in service until October 2005 when he attained the age of superannuation and the grant of pensionary benefits.

4. The learned Single Judge of the High Court dismissed the writ petition on 24 December 2012 on merits holding that the charge of misconduct stood established and there was no illegality in the view taken by the Tribunal or in the decision of the disciplinary authority. An LPA under Clause 15 of the Letters Patent was thereupon filed.

5. The Division Bench by its judgment dated 28 March 2014 held that the appeal was not maintainable. From the record, it appears that though the Tribunal was not impleaded as a party to the Special Civil Application, it was impleaded to the LPA. Be that as it may, the High Court relied upon a judgment of a Bench of five-Judges of that court in Gujarat State Road Transport Corporation (supra). The judgment, inter alia, holds that where a Special Civil Application is described as one under Articles 226 and 227 of the Constitution and the court or tribunal whose order is impugned is not made a party, the application would not be maintainable. In such an event, the objection to maintainability would – it was held – not be cured merely by impleading the tribunal or court to the LPA against a judgment of the Single Judge.

6. The issue whether a tribunal or court whose order is challenged in proceedings under Articles 226 and 227 of the Constitution is a necessary party to the proceedings has been considered in a judgment of this Court in

Sh Jogendrasinhji Vijaysinghji Vs. State of Gujarat and Ors., (2015) 9 SCC 1

The judgment of this Court has also adverted to the view that was taken in the judgment rendered by a Bench of five Judges of the Gujarat High Court, noted above. After considering the position in law emanating from the earlier decisions of this Court, the judgment holds thus:-

“43…………..Therefore, the proposition that can safely be culled out is that the authorities or the tribunals, who in law are entitled to defend the orders passed by them, are necessary parties and if they are not arrayed as parties, the writ petition can be treated to be not maintainable or the court may grant liberty to implead them as parties in exercise of its discretion. There are tribunals which are not at all required to defend their own order, and in that case such tribunals need not be arrayed as parties. To give another example:- in certain enactments, the District Judges function as Election Tribunals from whose orders a revision or a writ may lie depending upon the provisions in the Act. In such a situation, the superior court, that is the High Court, even if required to call for the records, the District Judge need not be a party. Thus, in essence, when a tribunal or authority is required to defend its own order, it is to be made a party failing which the proceeding before the High Court would be regarded as not maintainable.”

7. The Gujarat Secondary Education Act 1972 was enacted by the State legislature for the regulation of secondary education in the State. Section 2(o) defines the expression private secondary school to mean a secondary school which is not owned, managed or sponsored by the Central or the State Governments. In order to be a registered school under Section 2 (s), the school has to be registered by the Gujarat Secondary and Higher Secondary Education Board under Section 31. Section 39 provides for the constitution of a tribunal. Section 38 confers upon the tribunal the jurisdiction to decide certain disputes. Section 38 provides as follows: