Bombay High Court
Bishop Cotton School,Thr Its Hm vs Mercia Victor Shipley & 2 Ors on 13 July, 2017
Bench: I.K. Jain
WP 4943.08.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.4943 OF 2008
Bishop Cotton School, Dharampeth,
Nagpur, through its Head Mistress. .. PETITIONER
.. VERSUS ..
1] Mercia Victor, Shipley,
R/o. Plot No.26, Ratan Nagar,
Koradi Road, Mankapur,
Nagpur.
2] Maharashtra Regional Board of
Education of Church of North India,
through its Secretary,
C/o. Hislop College, Civil Lines,
Nagpur.
3] The Education Officer,
Zilla Parishad (Primary),
Nagpur. .. RESPONDENTS
..........
Shri A.D. Mohgaonkar, Advocate for Petitioner,
Shri Pavan Raulkar, Advocate h/f Smt. Indira L. Bodade,
Advocate for respondent no.3.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : JULY 13, 2017.
ORAL JUDGMENT
This petition takes an exception to the judgment
and order dated 21.1.2008 passed by the School Tribunal,
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Nagpur in Appeal No.STN/08/2007. By the said judgment
and order, appeal preferred by respondent no.1 was allowed
and oral otherwise termination of respondent no.1 was
quashed and set aside. Management was directed to
reinstate respondent no.1 on her original post along with
continuity in service and back wages.
2] The facts giving rise to the petition may be stated
in nutshell as under :
It was the case of respondent no.1 that she was
appointed in Middle School as per appointment order dated
17.6.1989. She applied for medical leave and remained
absent further. According to respondent no.1, she moved
application for leave. Still she was restrained from joining
her duties. She preferred appeal before the School Tribunal
with a grievance that her otherwise oral termination was not
in accordance with the law. The said appeal, as indicated
above, was allowed. Hence, this petition by the school
authority.
3] Heard Shri A.D. Mohgaonkar, learned counsel for
petitioner.
4] Submission is that respondent no.1 was not duly
qualified. She was working in Kindergarten and definition of
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school under section 2 (24) of the Maharashtra Employees
of Private Schools (Conditions of Service) Regulation Act,
1977 (hereinafter referred to as MEPS Act), "Kindergarten"
is not included in the definition. The learned counsel placed
reliance on the decision of the Division Bench of this court in
Governing Body, Nirmal Education Society, Gondia
and another .vs. Presiding Officer, School Tribunal,
Nagpur and another [1996 (2) Mh.L.J. 592. The third
submission is that even otherwise her appointment was not
in accordance with Section 5 of the MEPS Act and her
services were not to be protected. The last submission is
that petitioner school never restrained respondent no.1 from
joining her duties or from signing the muster roll on
completion of her medical leave.
5] With the assistance of the learned counsel, this
court has gone through the impugned judgment and order.
It appears that objection to maintainability of appeal was
raised at the initial stage and vide order dated 21.1.2008
passed below Exh.24 preliminary issue regarding
maintainability of appeal was answered in the affirmative.
6] It can be seen from copy of muster roll that
respondent no.1 was serving in pre-primary school. Copy of
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pay roll also indicates that she was serving in pre-primary
school. There is sufficient evidence pointing out that
respondent no.1 was working in Kindergarten. In the case of
Governing Body, Nirmal Education Society, Gondia
(supra), it is held that 'Kindergarten' is not a 'School'
within the definition of School under the MEPS Act. As such,
School Tribunal had no jurisdiction to entertain the appeal of
terminated teacher of Kindergarten. The impugned order
passed by the School Tribunal therefore suffers from
jurisdictional error and on this ground alone. Writ Petition
deserves to be allowed. Hence, the following order :
ORDER
(i) Writ Petition No.4943/2008 is allowed
(ii) Rule is made absolute in terms of prayer clause
(1).
(iii) Appeal No.STN/08/2007 filed by respondent no.1
before School Tribunal stands dismissed.
(iv) No order to costs.
(Kum. Indira Jain, J.)
Gulande, PA
