Bombay High Court
Miss Durga Mandeorao Utkhede vs School Tribunal, Nagpur Thr. P.O. ... on 28 July, 2016
Bench: A.S. Chandurkar
W.P. No.2852/2009 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.2852 OF 2009
Petitioner : Miss Durga Mandeorao Utkhende,
Aged about major,
R/o c/o Bhojraj Damodhar Yewale, Said Colony,
Tumsar, District Bhandara.
ig -- Versus --
Respondents : 1] School Tribunal, Nagpur,
through its Presiding Officer.
2] The Maharashtra Shivaji Education Society,
Sihora through its President,
Taluka Tumsar, District Bhandara.
3] Shri Shivaji Education Society,
through its Secretary, Amravati,
District Amravati.
4] Education Officer (Secondary),
Zilla Parishad Bhandara,
District Bhandara.
with
WRIT PETITION NO.2988 OF 2009
Petitioner : Shri Rameshwar s/o Narayanrao Bhende,
Aged about 52 years, Occ. Service,
R/o c/o Mohan Gautam, Patwari,
Ward No.1, Sihora, District Bhandara.
-- Versus --
Respondents : 1] School Tribunal, Nagpur,
through its Presiding Officer.
::: Uploaded on - 02/08/2016 ::: Downloaded on - 03/08/2016 00:08:08 :::
W.P. No.2852/2009 2 Judgment
2] The Maharashtra Shivaji Education Society,
Sihora through its President,
Taluka Tumsar, District Bhandara.
3] Shri Shivaji Education Society,
through its Secretary, Amravati,
District Amravati.
4] Education Officer (Secondary),
Zilla Parishad Bhandara,
ig District Bhandara.
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Mrs. P.A. Mahashabde, Advocate for the Petitioner.
Shri Abhay Sambre, Advocate for the Respondent No.3.
Ms. T.H. Khan, Assistant Government Pleader for the Respondent Nos.1 & 4.
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C ORAM : A.S. CHANDURKAR, J.
DATE : 28
JULY, 2016.
th
ORAL JUDGMENT :-
01] Since identical orders are challenged in these writ petitions, they
are being decided by this common judgment.
02] The petitioner in Writ Petition No.2852/2009 claims to have
been appointed as a Assistant Teacher by the respondent no.3 herein
pursuant to order of appointment dated 12/02/1991. It is her case that
subsequently the services were transferred from Dr. Punjabrao Deshmukh
High School, Papal, District Amravati to Maharashtra High School, Sihora in
W.P. No.2852/2009 3 Judgment
July, 1991. Her services were approved by the Education Officer. However,
on 26/04/1994, her services came to be terminated by an order issued by the
respondent no.2-Management. The petitioner, therefore, filed an appeal
under Section 9 of the Maharashtra Employees of Private Schools (Conditions
of Service) Regulation Act, 1977. In the said appeal, the respondent no.2
herein took the stand that the appointment of the petitioner was not in
accordance with law and that the appointment order issued to her was not as
per Schedule-D of the Maharashtra Employees of Private Schools (Conditions
of Service) Rules, 1981. By the judgment dated 05/03/2009, the appeal
came to be dismissed by holding the same to be non-maintainable on the
ground that the appointment order was not as per Schedule-D of the Rules of
1981. The said judgment is challenged in the aforesaid writ petition.
03] In Writ Petition No.2988/2009, the order of appointment is
dated 13/04/1992 which was issued by the respondent no.3. The services of
the petitioner were approved by the Education Officer and thereafter on
26/04/1994, the respondent no.2 terminated the services of the petitioner.
The appeal filed by the petitioner herein was dismissed on the same ground
that the appointment order issued to him was not as per Schedule-D of the
Rules of 1981. The judgment dated 05/03/2009 passed in said appeal is
challenged in this writ petition.
W.P. No.2852/2009 4 Judgment
04] Mrs. P.A. Mahashabde, learned Counsel for both the petitioners
submitted that the School Tribunal was not justified in dismissing the appeal
only on the ground that the appointment order was not as per Schedule-D of
the Rules of 1981. She submitted that the Management of the respondent
no.3 had duly appointed the petitioners after which approval was sought from
the Education Officer and the same came to be granted. She submitted that
even continuation orders came to be issued by the respondent no.3 and,
therefore, merely on the stand taken by the respondent no.2, the appeals
could not have been dismissed. She submitted that the judgment in the case
of Ashok Asramji Gabhane vs. Presiding Officer, Schol Tribunal, Nagpur
and others - 2002 (4) Mh.L.J. 225, referred to in the impugned judgment
was not applicable.
05] Shri Abhay Sambre, learned Counsel for the respondent no.3
supported the impugned judgment. According to him, the observations made
in paragraph 15 of the impugned judgment were correct. He submitted that
in Writ Petition No.2122/1992 filed by the respondent no.3, this Court had
held that Maharashtra High School, Sihora was under the Management of the
respondent no.2 herein to which the services of the petitioners had been
transferred. He further states that this judgment has been challenged before
the Hon'ble Supreme Court and the matter is still pending.
W.P. No.2852/2009 5 Judgment
Ms. Tajwar Khan, learned Assistant Government Pleader
appeared for the respondent nos.1 and 4.
06] Perusal of the material on record indicates that in the appeals
filed by the petitioners, only the respondent no.2 herein had filed its written
statement. In the written statement with reference to the decision in Writ
Petition No.2122/1992, it was pleaded that the petitioners were not its
employees. A further stand was taken that the appointment orders issued by
respondent no.3 were not in accordance with law. No written statement was
filed by the respondent no.3 herein. Considering the fact that the initial
appointment was stated to have been made by the respondent no.3 followed
by the approval to the services as well as subsequent continuation orders, the
stand as to whether the appointment order was in accordance with
Schedule-D of the Rules of 1981 and whether the appeals were liable to be
dismissed only on said count is required to be reconsidered after permitting
the respondent no.3 to file its written statement before the School Tribunal.
This exercise is necessary as it is the specific case of the petitioners that the
appointment order was issued by the respondent no.3. Merely, on the basis
of the stand taken by the respondent no.2 which had admittedly not
appointed the petitioner, the appeals could not have been held to be not
maintainable.
W.P. No.2852/2009 6 Judgment
07] In this view of the matter, the following order would meet the
ends of justice.
i. The impugned judgment passed by the School Tribunal in
Appeal Nos.193/1994 and 194/1994 is quashed and set aside.
ii. The appeals are restored for being decided afresh with liberty to
the respondent no.3 to file its written statement in both the
appeals.
iii. As the appeals pertain to the year 1994, the same shall be
decided expeditiously.
iv. The adjudication in the appeals would be subject to the result of
S.L.P. No.16644/2006, which is stated to be still pending.
v. Rule is made absolute in aforesaid terms with no order as to
costs.
JUDGE
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W.P. No.2852/2009 7 Judgment
C E R T I F I C A T E
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