Shubham Bahuuddeshiya Shikshan ... vs Presiding Officer, School ...
2006 Latest Caselaw 187 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. In Writ Petition No. 591 of 2004 the management has challenged judgment delivered on 9th January, 2003 by School Tribunal Nagpur, in Appeal No. 19 of 2002 ordering the management to continue Shri Tumane, appellant before it as Peon. In Writ Petition 355 of 2004, the very same management is challenging the judgment dated 28-4-2003 of same Tribunal asking it to reinstate Shri Pathan as Peon with continuity and full backwages. These judgments of School Tribunal are delivered in Appeals under Section 9 of The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, (hereinafter referred to as MEPS Act). The basic defence of management appears to be that both these employees are to be reinstated against only one i.e. same post. It appears that on 4-10-2005, this Court directed the petitions to be heard in January, 2006.

2. It appears that on 22-5-1989 Shri Pathan came to be appointed as Peon and he was terminated on 10-8-1993. After his termination, Shri Tumane came to be appointed as Peon from 1-9-1993. It is stated that Education Officer granted approval to Shri Tumane and he was permanent. Shri Pathan had challenged his termination before School Tribunal and said Tribunal allowed his appeal on 20-2-2001. Management challenged this judgment of School Tribunal in Writ Petition No. 2559 of 2001 and it was dismissed on 20-2-2002. Hence, Shri Pathan was reinstated and Shri Tumane was terminated on 15-4-2002. It is stated that Education Officer did not grant approval to appointment of Shri Pathan. Shri Tumane also filed appeal challenging his termination and said appeal was allowed on 9-1-2003. Hence petitioner-management again terminated Shri Pathan and reinstated Shri Kumar. Shri Pathan again filed appeal before School Tribunal which came to be allowed on 28-4-2003. The Education Officer on 19-10-1995 had sanctioned three posts of Peons in the meanwhile. The petitioners contended that against first post of Peon it is being asked to accommodate Shri Pathan as also Shri Kumar. It states that Shri Tumane is already reinstated and working with it and as Education Officer never granted approval to appointment of Shri Pathan, he cannot be reinstated. Writ Petition No. 591/2004 is filed by way of abundant precaution in the interest of management. It is stated that as against second post of Peon Shri Wankhede was appointed on 30-6-1992 with effect from 1-7-1992 till 30-4-1993. Shri A.L. Kubde came to be appointed on that post on 28-6-1993 and Education Officer has also granted approval on permanent basis to him. Against the last and third post, one Shri R.D. Parachi came to be appointed on 1-8-1996 and he has also received permanent approval. In view of various interlocutory orders passed by this Court in Writ Petition No. 355/2004, the petitioners have joined Shri Kubde and Shri Parachi as party respondents therein. Shri Pathan and Shri Tumane are party respondents in both the writ petitions.

3. I have heard Advocate Shri A.S. Chandurkar for petitioners, Advocate Shri Shende for Shri Pathan, Advocate Jibhkate for Shri Tumane, Advocate Shri Agnihotri for Shri Kubde and Advocate Shri Tambulkar for Shri Parachi in these writ petitions. Learned AGP has appeared for School Tribunal and for Education Officer (Secondary) in both matters.

4. Learned Counsel for petitioner-management after inviting attention to the sequence mentioned above, points out that Shri Kubde came to be appointed on second post of peon during initial period of appointment of Shri Pathan on first post and thereafter Shri Parachi came to be appointed against third post. Neither Shri Pathan nor Shri Tumane are concerned with second post or third post and their grievance is required to be concerned only with reference to first post. He further states that appointment of Shri Pathan even initially was not approved by Education Officer and hence he did not get any right to the post of peon. As against this, Shri Tumane was given approval and therefore, ultimately, management has rightly reinstated/continued him. He points out that in appeal filed by Shri Pathan before School Tribunal, objection about non-joinder of Shri Tumane was very much raised but School Tribunal lost its sight. He argues that School Tribunal erroneously observed that question regarding appointment and approval of Shri Pathan is already decided by it in Appeal No. STN/322/1994. He invites attention to Division Bench judgment of this Court in case between Anna Manikrao Pethe v. Presiding Officer, School Tribunal reported at 7997 (3) Mh.L.J. 697 to point out how it is one of the jurisdictional facts and issues. He invites attention to said earlier judgment of School Tribunal to demonstrate that said issue has not been decided by Tribunal at all and when proposal was forwarded by management on 31-5-2002, Education Officer did not grant any approval because of interim orders operating in favour of Shri Tumane in Appeal No. 19/2002. He points out that School Tribunal found that school itself was not receiving any grant-in-aid and hence there was no question of approval at that time. According to

ed Counsel there is failure on the part of School Tribunal to exercise jurisdiction in the matter. In this respect he also invites attention to affidavit of Education Officer filed in earlier Writ Petition No. 3926/2002 filed by Shri Pathan in which Education Officer specifically stated that he did not grant approval to the appointment of Shri Pathan vide communication dated 16-3-1996 and 16-12-1997. He further states that during first period of appointment of Shri Pathan the post itself was not sanctioned and hence, question of approval was not considered by School Tribunal in his earlier appeal. He also invites attention to various documents on record to show that Shri Tumane and other two Peons were given approval while Shri Pathan was never given any approval. He places reliance upon judgment of Hon'ble Apex Court reported at between Swami Vivekananda Society v. Sau. Prerana Vasant Joshi to contend that Shri Pathan cannot be reinstated. About Writ Petition No. 591 of 2004 he points out that to avoid any complication, petitioner obtained undertaking from Shri Tumane on 13-3-1996 that he would be bound by decision of School Tribunal in matter of Shri Pathan, He further states that judgment of School Tribunal in favour of Shri Tumane is already implemented and he is working as peon. Education Officer has already approved services of Shri Tumane and hence, order of School Tribunal in favour of Shri Pathan cannot be upheld.

5. Adv. Shende for respondent-employee Shri Pathan contended that Shri Pathan was appointed against clear and vacant post and his first appointment itself was on probation as is apparent from the appointment orders. He was illegally terminated by order dated 10-8-1993 which he challenged by filing Appeal No. 322 of 1994 and School Tribunal framed preliminary issues as required by Division Bench judgment of this Court in case of Manikrao Pethe (supra) and answered all those issues in favour of Shri Pathan on 24-3-1999. The issues were framed and decided as per application dated 11-12-1998 moved by management petitioner. Ultimately, Appeal No. 322/1994 was itself allowed and it was challenged by petitioner-management by filing Writ Petition 2559/2001 in this Court and this Court rejected said writ petition on 20-2-2002. All issues being raised in current petition were raised in that petition and have been answered against petitioners. Adv. Shende contends that the said decision operates as res judicata against petitioners in present petition also. In view of this High Court decision, Shri Pathan was reinstated and was terminated again by order dated 1-2-2002 by giving false reason though Education Department never rejected approval to his appointment. Learned Advocate invites attention to provisions of Section 4(2) of Act read with Section 4(6) to state that Shri Pathan could not have been terminated except after holding departmental inquiry. He further points out that Shri Pathan was terminated on 10-8-1993 while Shri Tumane was appointed vide order dated 30-8-1993 and this appointment was with reference to application dated 27-6-1993 submitted by Shri Tumane. According to him, therefore, decision to terminate Shri Pathan to accommodate Shri Tumane was already taken and Shri Pathan has been victimised. He invites attention to impugned judgment of School Tribunal dated 28-4-2003, particularly paragraphs 5, 6 and 8 thereof to show how School Tribunal is justified in reaching said findings. He also invites attention to various interim orders passed by this Court and states that Shri Pathan is still out of employment and has not been paid any amount even towards backwages.

6. Adv. Jibhkate on behalf of respondent-employee Shri Tumane contends that the management has in fact supported appointment and continuation of Shri Tumane, Education Officer has also approved his appointment and Writ Petition No. 591/2004 is filed by management only by way of abundant precaution. He contends that said writ petition has been filed after judgmen of School Tribunal in favour of Shri Pathan and challenge is to the order dated 9-1-2003 and petition suffers from latches and negligence. He also invites attention to various interim orders passed in Writ Petition No. 355/2004 and states that Shri Tumane has undertaken to co-operate for amicable settlement of the matter to avoid complications and in the interest of all but without prejudice to his legal rights. He states that Shri Tumane has not been appointed against vacancy caused by removal of Shri Pathan and alleged undertaking of Shri Tumane is not either in prescribed form or in presence of Education Officer as per GR dated 22-12-1995. He relies upon findings of School Tribunal in paragraph 7 of impugned judgment. He also invites attention to the said judgment dated 9-1-2003, particularly paragraphs 5 and 6 thereof to demonstrate that management has not acted honestly. He c intends that management was aware of the controversy and also of the number of post of peons with it and still deliberately accommodated other persons instead of putting an end to it by accommodating Shri Pathan against the other available vacancy. He further states that Shri Kubde is relative of managing committee member and hence he has been appointed and protected. He points out Division Bench judgment of Orissa High Court reported at 1997 (1) E-SC 588, Qaruda Adabar v. State of Orissa and between State of Himachal Pradesh v. Kailash Chand Mahajan to argue that subsequent appointees in such circumstances are not necessary party to the appeal before School Tribunal.

7. Advocate Agnihotri for Shri Kubde states that he has been joined as party because of interim orders in Writ Petition No. 355/2004 for limited purpose and no order to his prejudice can be passed in the matter. He states that Shri Kubde applied on 27-6-1993 in response to public advertisement dated 26-6-2003 and was selected and appointed. He further points out that Education Officer has granted approval to his appointment on 16-3-1996 and neither Shri Pathan nor Shri Tumane questioned said advertisement or his selection at any time. He was already in employment when Pathan was initially terminated and Tumane was appointed. He invites attention to paragraph 4 of appeal memo filed by Shri Tumane vide Appeal No. 19 of 2002 before School Tribunal and states that Shri Tumane ought to have joined Shri Kubde as party respondent in his appeal. He further states that neither Shri Pathan nor Shri Tumane made any allegation of nepotism in appeal before School Tribunal. He further states that Kubde is belonging to Other Backward Class category and is therefore entitled to protection and cannot be removed. Advocate Tambulkar for employee Shri Parachi points out that he also was appointed after proper selection process on 1-8-1996 and Education Officer has given approval in his favour. He further states that said employee belongs to Scheduled Tribe category and is therefore entitled to protection from termination and he cannot be found to be surplus. He also adopts the arguments of Advocate Agnihotri in support.

8. The Education Officer on 19-10-1995 had sanctioned three posts of Peons. Question is whether this fact has got any bearing insofar as present controversy is concerned. In the appeal of Shri Pathan, matter has reached this Court and order of School Tribunal in his favour passed on 20-2-2001 in Appeal No. STN/322/1994 has attained finality. This Court dismissed Writ Petition No. 2559 of 2001 filed by management challenging said order of School Tribunal on 20-2-2002. The challenge in present petition filed by management against subsequent order in favour of Shri Pathan necessarily stands eclipsed by this earlier adjudication and the same cannot be allowed to be reopened indirectly. This subsequent order of School Tribunal is dated 28-4-2003 in Appeal No. STN-11-2003. By earlier order dated 20-2-2001 of School Tribunal, earlier termination order dated 10-8-1993 stood quashed and set aside and Shri Pathan has been reinstated with backwages. Management actually reinstated him on 15-4-2002. Thus, his services are deemed to be continuous from his initial date of entry into service i.e. 22-5-1989 till his second termination on 1-2-2003. The School Tribunal as also this Court is therefore concerned only with validity of the second termination with effect from 1-2-2003 in Writ Petition No. 355 of 2004. Appointment of Shri Tumane on 30-8-1993, his termination to accommodate Shri Pathan or judgment of School Tribunal dated 9-1-2003 in favour of Shri Tumane are all not relevant for deciding said challenge. Appointment of Shri Tumane was at the most a relevant factor in earlier proceedings i.e. Appeal No. STN/322/1994 of Shri Pathan or Writ Petition No. 2559 of 2001. After High Court order dated 20-2-2002, said factor loses its relevance and cannot be pressed into service again to defeat the judgment of School Tribunal dated 20-2-2001 either directly or indirectly. The subsequent termination of Shri Pathan is nothing but an attempt to restore Shri Tumane back in service and to get over earlier adjudication in favour of Shri Pathan.

9. Arguments of Advocate Chandurkar needs to be viewed in this background. Anna Manikrao Pethe v. Presiding Officer, School Tribunal reported at 1997 (3) Mh. L.J. 697 is pressed into service by him to demonstrate that services of Shri Pathan were never approved by Education Officer. In said judgment the Division Bench has laid down that examination of 3 basic questions is essential by School Tribunal before it embarks upon further inquiry into the grievance made by employee in appeal under Section 9 of MEPS Act before it. Whether services of such employee were approved by Education Officer is one of these 3 questions. Here, it is not in dispute that Shri Pathan joined on 22-5-1989 and was terminated on 10-8-1993. At that time, there was no sanctioned post of Peon and said sanction has been granted for the first time by Education Officer on 19-10-1995, after his termination, Shri Tumane came to be appointed as Peon from 1-9-1993 but even at that time there was no sanctioned post. Above termination with effect from 10-8-1993 has lost its existence legally in view of the judgment of School Tribunal in favour of Shri Pathan dated 20-2-2001 which has been maintained by this Court on 20-2-2002. The petitioner accordingly reinstated him on 15-4-2002. The legal position is that therefore on 19-10-1995 Shri Pathan only was in employment and Shri Tumane could not have been given approval by Education Officer at all. The School Tribunal has rightly considered this issue in its earlier judgment dated 20-2-2001 in appeal filed by Shri Pathan and in paragraph 33 finds that at the time of his termination the School itself was not receiving any grant-in-aid and hence, it does not mean that appointment of Shri Pathan was contrary to Section 5 of MEPS Act. The stand of present petitioners in written statement/reply filed before School Tribunal in subsequent appeal filed by Shri Pathan vide Appeal No. STN-11/2003 challenging his subsequent termination order dated 1-2-2003 is itself revealing in this respect. The management has pointed out the position after reinstatement of Shri Pathan in this respect and pleaded:--"After reinstatement of the appellant, the respondent-management had sent a proposal of approval of appellant to the Education Officer on 31-5-2002, however, the Education Officer did not grant approval to the appointment of appellant, because there was interim stay in favour of Shri Tumane in Appeal No. 19/2002. The appellant did not try to get the stay vacated, granted in favour of Shri Tumane at any point of time." The correctness or otherwise of the stand is being examined little later.

10. From the arguments of petitioner-management above, the defence of management in the matter seems to be that of helplessness. Petitioner is pointing out availability of only one post and claims of two persons against it. Those two persons are Shri Pathan and Shri Tumane who both have obtained favourable orders in their favour from School Tribunal. The petitioner-management states that it has been implementing the orders as passed to the best of its ability and it has reinstated Shri Tumane ultimately in view of last order in his favour by School Tribunal because appointment of Shri Tumane is approved by Education Officer and there is no such approval in favour of Shri Pathan. It is the contention of petitioner that both Shri Pathan and Shri Tumane have to be blamed for the situation because they did not implead each other as necessary party before the School Tribunal in their respective appeals though they were aware of their conflicting claims against the solitary post. The arguments of respondents in this respect are that the peculiar situation is the creation of management/petitioner itself and the other person who has joined service subsequently, is not necessary or proper party before School Tribunal. Question which therefore arises is whether validity or otherwise of termination of an employee will depend upon the subsequent events like appointment of another employee against vacancy caused by his removal. Whether petitioner-management can be permitted to recede in background by asking Shri Pathan and Shri Tumane to settle the score between themselves. If School Tribunal is satisfied that termination of Shri Pathan by petitioner-management was invalid, could it have refused to grant relief of reinstatement only because interest of Shri Tumane are created and are not taken care of before it. Whether it is open to Shri Tumane to contend that his interests are not properly represented by petitioner-management before School Tribunal because it wanted to favour Shri Pathan. Fortunately in this case, Shri Tumane is being favoured by petitioner-management and it is not his contention that there is any collusion between Shri Pathan and petitioner. The learned Counsel appearing for Shri Tumane has cited certain cases to demonstrate that it was not necessary for Shri Tumane to implead Shri Pathan as party respondent in this case before School Tribunal. The same analogy will also apply to case of Shri Pathan and conversely, if arguments advanced on behalf of Shri Tumane are accepted, it will have to be held that it was not necessary even for Shri Pathan to join Shri Tumane as party respondent.

11. A. Adv. Jibhkate for Shri Tumane has invited attention to judgment of Hon'ble Apex Court reported at between State of Himachal Pradesh v. Kailash Chand Mahajan (supra). Respondent Kailash Chand was appointed as Chairman of State Electricity Board for period of two years which was later on extended to total 5 years. After general elections, notifications were issued appointing another person as Chairman and Kailash Chand challenged said action in writ petition which came to be withdrawn because the government withdrew both notifications. He was then given show cause notice which again was challenged in writ petition. However, an ordinance came to be issued on 13-7-1990 declaring that any appointment after attending age of 65 years shall not be valid and such person shall be deemed to have ceased to hold office. A notification again appointing another person in place of Shri Kailash Chand was issued on 16-7-1990 as Shri Kailash Chand had already crossed age of 65 years. This was again challenged in writ petition which was allowed observing that the relevant provision then did not apply retrospectively. High Court further held that subsequent appointee was not necessary party and it quashed the notification dated 16-7-1990. The State then approached Hon'ble Apex Court which considered the issue of necessary party in paragraphs 98 to 100 as under:

98. The contention of Mr. Shanti Bhusan that the failure to implead Chauhan will be fatal to the writ petition does not seem to be correct. He relies on AIR 1978 Ker 176 (FB). That case related to admission to medical college whereby invalidating the selection vitally affected those who had been selected already. Equally, the case Padmraj Samrendra v. State of Bihar (FB) has no application. This was a case where the plea was founded in Article 14 and arbitrary selection. The selectees were vitally - affected. The plea that the decision of the Court in the absence of Chauhan would be violative of principle of natural justice as any adverse decision would affect him is not correct.

99. On the contrary, we think we should approach the matter from this point of view viz., to render an effective decision whether the presence of Chauhan is necessary? We will in this connection refer to A. Janardhana v. Union of India it is held as under:

...Approaching the matter from this angle, it may be noticed that 'relief is sought only against the Union of India and the concerned Ministry is claimed by anyone individual against another particular individual and therefore, even if technically the direct recruits were not before the Court, the petition is not likely to fail on that ground.

100. What was the first respondent seeking in the writ petition? He was questioning the validity of the Ordinance and the Act whereby he had been deprived of his further continuance. What is the relief could he have asked for against Chauhan? None. The first point is Chauhan came to be appointed consequent to the suspension of the first respondent which suspension had come to be stayed by the High Court on 12-6-1990. Then, again, as pointed out by the High Court it was "till further orders". Therefore, we hold the failure to implead Chauhan does not affect the maintainability of the writ petition.

B. Orissa High Court judgment at 1997 (1) ESC 588, Qaruda Adabar v. State of Orissa (supra) has also considered this position. One Rabindranath Das went in appeal before Director of Secondary Education challenging his termination and said authority ordered his reinstatement. Petitioner before Orissa High Court Qaruda Adabar complained of breach of principles of natural justice on the ground that he was not made party in that appeal. The Division Bench in paragraph 2 found that question to be decided in appeal was about the correctness of order of termination and petitioner who came to be appointed subsequently in that vacancy had no role to play in the dispute. In paragraph 3, two tests in this respect are laid down. Firstly, there must be right to some relief against such party in relation to the matter involved and secondly, effective adjudication should be rendered impossible because of absence of such party. Last sentences in paragraphs 2 and 4 can be quoted here:

Para 2--"Merely because he has been required to vacate on the order of termination being set aside, that cannot confer any right on him for participation in the appeal filed by Rabindranath Das questioning correctness of his order of termination.

Para 4--"As indicated above, petitioner had no lirect interest in or nexus with the subject-matter of adjudication. So this case is not covered by second essential.

C. In the facts of present case, it is apparent that School Tribunal earlier examined validity of termination of Shri Pathan on 10-8-1993. Relief claimed by Shri Pathan was only by pointing out illegality in said termination. The subsequent events of appointment of Shri Tumane could not have cured the illegal termination of Shri Pathan from that date. In any case, the said termination is held to be illegal on 20-2-2001 by School Tribunal and on 20-2-2002 by this Court. The relief of reinstatement with continuity and full backwages granted in favour of Shri Pathan therefore attained finality on 20-2-2002. This finality cannot be allowed to be reopened by contending that Shri Tumane was not joined as party. Such plea is barred in view of principles of res judicata and in any case, constructive res judicata. After all this, Shri Pathan was reinstated with effect from 15-4-2002. It has also come on record that while entering the service Shri Tumane gave in writing to management that his appointment from 1-9-1993 (26-8-1993) and claim to the post would be subject to decision of School Tribunal in appeal filed by Shri Pathan. Thus he was aware of pendency of appeal filed by Shri Pathan and nobody prohibited him from intervening in that appeal. He has given his undertaking on 13-3-1996 after the Education Officer granted approval to his appointment. He did not challenge that undertaking till his termination to accommodate Shri Pathan after High Court dismissed writ petition filed by management. Hence, subsequent appointment of Shri Tumane or his continuation could not in any way come in the way of Shri Pathan. In these circumstances, argument of management about non-joinder of Shri Tumane by Shri Pathan in his appeal proceedings does not hold any water. The validity of this undertaking between Shri Tumane and petitioner-management is entirely different issue which can have no bearing on grievance of Shri Pathan. It is obvious that Shri Pathan did not, need not and could not claim any relief against Shri Tumane.

D. I had an occasion to consider similar controversy in Writ Petition No. 919 of 2004 between Maharashtra Regional Board of Education and Junior Colleges of Education of the Church of North India v. The Presiding Officer and Ors. decided on 22-7-2004. The following paragraphs will reveal the necessary facts and also application of law to it:

21. Shri Khapre, learned Counsel for respondent No. 2 has contended that his rights in the matter crystallised on 26-6-1992 when respondent No. 2 came to be reverted from the post of Head Master to the post of Assistant Teacher. He contends that he has challenged this reversion. The subsequent acts of management in bringing Shri Waghmare on transfer from Nagpur to Bhandara to occupy his post or selection of petitioner No. 2 after retirement of Waghmare as Head Master on such post, are not relevant insofar as these subsequent events have got no bearing upon adjudication of the legality of order of its reversion. He contends that subsequent acts of Management undertaken with full knowledge of appeal is pending and order of status quo is operating in said appeal, are all subject to the decision of appeal. He argues that these acts of management cannot override the powers of appellate forum and cannot defeat the decision of the School Tribunal in his favour. For this proposition, he has relied upon the judgment of this Court in case of Baburao v. State of Maharashtra reported in 7996 (1) Mh.L.J. 366. The relevant observations in this respect are contained at page 400 of the judgment in para 93. The said observations are reproduced below: "It is pointed out to us by the learned Counsel for respondent No. 4 and the learned Assistant Government Pleader that the petitioner has not claimed any relief against respondent No. 4,who is at present working as President of the Municipal Council, Parbhani. It is pointed out by the learned Counsel for the petitioner that after the impugned order the petitioner filed the above writ petition on 12-8-1994 while respondent No. 4 came to be elected as President of the Municipal Council on 2-11-1994. Mr. Talekar, learned Counsel for the petitioner, submits that it is not necessary to amend the petition by seeking the prayer for the removal of the respondent No. 4 as President of the Municipal Council when the principle of lis pendens in this applies. Moreover, he points out that this Court has already passed an order on 1-11-1994 when the application for interim relief of stay to the meeting to elect new President was to be held on 2nd November, 1994 at 12 noon this Court has passed an order in extenso and refused to grant interim relief. However, it is observed that the election of the President of the Municipal Council which is to take place on 2-11-1994 shall be subject to result of the present writ petition. Similarly, Mr. Talekar has placed reliance on the ruling reported in 1995 (1) All India High Court Cases 3644, Parvinder Singh v. State of Punjab. On identical issue it is observed in para 11:

In view of the above we are satisfied that the impugned order dated 19th April, 1994 (annexure B-5) by which the petitioner was removed from the office of presidentship as well as membership of the committee cannot be sustained. It is quashed. The petitioner is restored to his original position. Mr. Bagchi has pointed out that during the pendency of the petition a fresh election had taken place. In our view, the election is governed by principles of lis pendens. In any case fresh election had taken place on account of the impugned order. Once the impugned order is quashed election cannot survive. As a necessary consequence status quo ante as existed prior to April 19, 1994 has to be restored.

The present writ petition filed by the petitioner rests more on strong ground and we have already come to conclusion that in view of the reasons stated above, the impugned order cannot be sustained and deserves to be quashed. Similarly even though the petitioner has not made any prayer against respondent No. 4--maybe for his removal from the office of the President--and that he should be restored to his original office as President of the Municipal Council, Parbhani, in view of the observations made above together with this Court's interim order passed on 1-11-1994, the petitioner will have to be restored to his original office of the President of the Parbhani Municipal Council as existed before passing the impugned order.

22. The perusal of para above shows that the issue relating to post of President of Municipal Council was very much pending before the High Court and during pendency of that petition, respondent No. 4 was elected as President. The petitioner did not make any amendment to seek prayer for removal of respondent No. 4 as president of the Municipal Council. The Division Bench found that principles of lis pendens applies and respondent No. 4 did not get any right to the post of President so as to defeat the orders of the Court. It is apparent that upon the appeal of respondent No. 2 being allowed by the School Tribunal, respondent No. 2 is restored to his original position and the subsequent selection of petitioner No. 2 to the post of Head Mistress is, therefore, of no consequence. Petitioner No. 1--Management cannot be permitted to defeat the process of law by taking advantage of its own subsequent acts.

Paragraph 23, above referred judgment Parvinder Singh v. State of Punjab (supra) is considered by me and in paragraph 24 it is observed:

24. In this view of matter, I find that petitioner No. 2 was not a necessary party to proceedings before the School Tribunal and it was not necessary for respondent No. 2 "appellant" before the School Tribunal to run after each subsequent person appointed as Head Master by petitioner No. 1--Management. The order of School Tribunal cannot be faulted on this ground.

It is therefore clear that appeal filed earlier by Shri Pathan did not suffer from defect of non-joinder at all.

12. However, the same cannot be said in relation to Appeal No. STN/19 of 2002 filed by Shri Tumane on 19-4-2002 challenging his termination with effect from 15-4-2002. He was aware of his undertaking submitted to management on 13-3-1996. Therefore he was aware that the decision of School Tribunal in case of Shri Pathan is bound to adversely affect his service. He therefore wanted to demonstrate before School Tribunal in his appeal that he was not appointed in vacancy caused by removal of Shri Pathan. It cannot be forgotten that Shri Pathan was reinstated on 15-4-2002 itself. Hence, if he wanted to claim that reinstatement of Shri Pathan in view of judgment of School Tribunal dated 20-2-2001 or order of High Court dated 20-2-2002, it was necessary for him to implead Shri Pathan as party respondent in his appeal. His order of termination expressly states that he was appointed on post fallen vacant because of removal of Shri Pathan. The entire history above narrates this sequence and also points out how consequentially his removal was essential according to petitioners. When appeal memo filed by Shri Tumane is looked into, he points out that Education Officer granted approval in favour of Shri Kubde as Peon with effect from 28-6-1993 to 28-6-1995 and his (Tumane's) appointment was shown on additional section on 75% grant and he was given approval from 1-7-1995 to 1-7-1997. He also stated the details of approval given to Shri Parachi and alleged that approval in his favour was not conditional at all. He also stated that being needy, he could not protest against the signatures obtained from him on blank papers and he made a grievance that he was made to work without any salary till receipt of approval. He further attempted to demonstrate how he is sole candidate belonging to Scheduled Caste category. Thereafter he has made effort to demonstrate how his appointment is not against the post earlier occupied by Shri Pathan. He further contended that it was responsibility of Management to shoulder liability of orders in favour of Shri Pathan and no Peon can be removed. Hence it is clear that Shri Tumane did not make any adverse allegation against Shri Pathan and did not seek any relief to the detriment of Shri Pathan. Hence, following above law, it can be said that order of School Tribunal in favour of Shri Tumane cannot be and could not have been used by petitioner to again remove Shri Pathan.

13. The School Tribunal has decided Appeal No. STN/19 of 2002 filed by Shri Tumane on 9-1-2003. Perusal of this judgment reveals that the School Tribunal found his appointment to be legal and valid and also that he was not appointed in place of Shri Pathan. It also found that undertaking dated 13-3-1996 obtained from Shri Tumane is not legal and valid. It found that undertaking was obtained without informing Education Department and though management could have kept post of the Peon vacant, it proceeded to fill in the same. It also found that undertaking obtained can be co-related and read with appointment or termination of any other Peon also. It is apparent that said undertaking is contrary to Government Resolution dated 20-12-1995 and cannot bind Shri Tumane. School Tribunal has drawn inference that management was exploiting the situation by making appointment from time to time so as to enable it to terminate their services on the ground that School Tribunal has allowed appeal of such terminated employee. It found that petitioner Management appointed Shri Tumane at its own risk and without taking proper and legal undertaking from him. It also found that management suppressed pendency of appeal of Shri Pathan from Education Officer while seeking approval to the appointment of Shri Tumane. Hence it allowed the appeal on 9-1-2003. On 1-2-2003 management terminated Shri Pathan and obliged Shri Tumane by taking him back. It did not challenge order dated 9-1-2003 for more than one year and filed Writ Petition No. 591/2004 on 6-2-2004. Reason for quick implementation of judgment of School Tribunal in favour of Shri Tumane is stated to be the fact that his services were approved and services of Shri Pathan were never approved. School Tribunal allowed Appeal of Shri Pathan on 28-4-2003 and said order has been challenged on 20-12-2003 in writ petition registered as Writ Petition No. 355 of 2004. Writ petition against Shri Tumane has been filed thereafter and no secret has been made of the fact that petitioner-management is favouring Shri Tumane. It is stated that petition against Shri Tumane has been filed by way of abundant precaution. No error or perversity has been demonstrated in the application of mind by School Tribunal in judgment dated 9-1-2003.

14. The judgment in favour of Shri Pathan dated 28-4-2003 is basically challenged on the ground that there was no approval given to his appointment by Education Officer. The ruling of this Court in Anna Manikrao Pethe (supra) is already considered above in paragraph 9 of this judgment. It is also pointed out that it was not necessary for Shri Pathan to assert his right by intervening in appeal filed by Shri Tumane. The stand of management that Education Officer did not grant approval to appointment of Shri Pathan is without any merit and also irrelevant in view of the history stated above. Statement of Education Officer in reply affidavit dated 6-3-2003 filed in Writ Petition No. 3926/2002 filed by Shri Pathan that services of Shri Pathan were not approved vide the communication dated 16-3-1996 or 16-12-1997 is also wholly irrelevant. Date of undertaking obtained by petitioner from Shri Tumane is 13-3-1996. These communications of Education Officer are not produced before this Court and affidavit also does not mean that approval to Shri Pathan was rejected by Education Officer. In report of Education officer dated 9-17-11-2004 filed by AGP vide pursis stamp No. 666/2005 dated 27-1-2005, it is mentioned that School got permission on 29-9-1989 and it came on grant in 1995 for the first time. It received 25% grant in June 1993, 50% grant in June 1994 and 75% in June 1995. The petitioner submitted proposal for approval for the first time on 14-3-1996 and thereafter on 6-11-1997. Moreover, at that juncture rights of Shri Pathan were not crystallised because his prayer for condonation of delay in filing appeal before School Tribunal was under consideration. The appeal has been decided after 16-3-1996 or 16-12-1997 i.e. on 20-2-2001. It has not been pointed out that Education Officer refused approval to Shri Pathan after 20-2-2001. In order of termination of Shri Pathan dated 1-2-2003, it is mentioned that proposal for his approval was submitted to Education Officer on 31-5-2002 and Education officer had not cleared it till date i.e. till 1-2-2003. It is not mentioned that Education Officer refused to grant approval. On 12-4-2004, Shri Dupare, Deputy Education Officer has filed affidavit on behalf of Education Officer mentioning therein that proposal of Shri Pathan was not sent by petitioner at the time when approval was granted to Shri Turaane in 1995-96. This Court passed various interim orders to find out some solution to the problem and also to find out whether anybody from amongst Shri Pathan, Shri Tumane, Shri Kubde or Shri Parachi can be declared surplus and last two employees were added as party respondents only for that purpose. However, Education Officer has not considered the effect of reinstatement order of School Tribunal dated 20-2-2001 or the subsequent order of this Court dated 20-2-2002. It is apparent that Shri Pathan worked from 1-6-1989 and when he was terminated again on 1-2-2003, he had put in continuous service of about 14 years. It is therefore apparent that the Education Officer along with petitioner are trying to defeat the earlier adjudication in favour of Shri Pathan and that cannot be permitted. The approval in favour of Shri Tumane is of no significance and it cannot operate to the prejudice of Shri Pathan. Reason for termination assigned by petitioner in order dated 1-2-2003 are patently false and unsustainable. On 14-3-1996 or 6-11-1997, when Education Officer granted approval to the Peons in employment of petitioners, in the eye of law, it is Shri Pathan whose name is included in the list and as his appointment is held valid by School Tribunal on 24-3-1999 while deciding preliminary point as contemplated by reported judgment in case of Anna Pethe (supra) he is deemed to have been granted approval. The order of High Court dated 20-2-2002 also puts seal on this issue. The refusal of Education Officer to accept this position is wrongful act which cannot be tolerated. The petitioner-management has also taken somersaults to avoid process of law and victimise Shri Pathan despite Court orders in his favour.

15. Adv. Chandurkar has argued that in impugned judgment dated 28-4-2003, School Tribunal has avoided to consider issue of approval of services of Shri Pathan. In paragraph 6, School Tribunal found that said issue is finally concluded in earlier Appeal No. STN-322/1994 and hence it did not permit petitioner to reagitate it. Perusal of judgment dated 20-2-2001 reveals that in paragraph 33, School Tribunal found that the school was not receiving any grant and hence there was no question of getting any approval from Education Officer on 10-8-2003, the date of first termination of Shri Pathan. Adv. Shende on behalf of Shri Pathan has pointed out that issue stands concluded in view of ordei on preliminary point as mentioned above. Order dated 20-2-2002 of this Court in Writ Petition 2559 of 2001 reveals that this Court accepted the finding of School Tribunal that Shri Pathan was appointed as per Section 5 of MEPS Act and his appointment was on probation for 2 years. It also found that he is deemed to have been confirmed in service. Perusal of memo of said writ petition reveals that all these issues, including issue of non-joinder of necessary party, were raised in Writ Petition No. 2559 of 2001. As already observed above, doctrine of res judicata forecloses any such examination. In fact this order and position is acquiesced by management/petitioner by implementing it by reinstating Shri Pathan. It is apparent that in view of discussion in this respect in present judgment, these arguments cannot be accepted and are wholly unsustainable. Hon'ble Apex Court reported at V (2001) SLT 27 between Swami Vivekananda Society v. Sau. Prerana Vasant Joshi (supra) has held that if under relevant provisions appointment to the post of teacher is required to be approved by competent Educational Authority, then any appointment without such approval is null and void and would not confer any right on the appointee. It is to be noted that as per regularisation circular considered by Hon'ble Apex Court, services of untrained teachers could be continued provided they had been appointed in a recognized School and their appointment was duly approved by Education Officer and admittedly there was no approval to the services of respondent teachers. In the facts and circumstances of present case, this ruling has no application and reliance upon it by petitioner is misconceived.

16. Shri Kubde and Shri Parachi came to be added as parties for the first time in this Court for limited purposes. It is not necessary to consider their arguments for deciding the lis between petitioner on one hand and Shri Pathan or Shri Tumane on other hand. The facts above disclose that petitioner management has made scapegoat of both Shri Pathan and Shri Tumane. In spite of clear order of School Tribunal dated 20-2-2001 and of this Court dated 20-2-2002, the petitioner-management as also the Education Officer avoided its implementation in letter and spirit. The petitioners in fact are trying to defeat it by taking refuge of subsequent verdict in favour of Shri Tumane. Both the petitions are dismissed with costs. The petitioner is to pay cost of Rs. 5000/- each to Shri Pathan and Shri Tumane within four weeks from today. The Education Officer to deposit all arrears of salary and allowances of Shri Pathan with 8 percent interest within eight weeks. Liberty to State Government to recover the loss to public revenue from management of petitioners. Writ petitions are dismissed with costs as mentioned above.

At this stage Shri Chandurkar, learned Counsel for the petitioners states that interim orders which were operating in favour of petitioners should be continued for a period of four weeks more.

Learned Counsel for the respondents have opposed this request. However, in the interest of justice, the said orders are continued for a further period of four weeks and shall cease to operate automatically thereafter.