Bombay High Court
Girdhar Anandrao Thaori, Wardha vs Dr. B.R.Ambedkar Shikshan Sastha ... on 12 September, 2017
Bench: B.P. Dharmadhikari
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
LETTERS PATENT APPEAL NO.471/2009
IN
WRIT PETITION NO.4192/2008 (D)
APPELLANT: Girdhar Anandrao Thaori
Aged about 40 years, Occ. Nil,
R/o Haladgaon, Tahsil Samudrapur
District : Wardha.
...VERSUS...
RESPONDENTS: 1. Dr. B.R. Ambedkar Shikshan Sanstha
Hinganghat through its President
Hinghanghat, Tahsil Hinganghat,
District : Wardha.
2. Dr. B.R. Ambedkar Shikshan Sanstha
Hinganghat through its Secretary
Hinghanghat, Tahsil : Hinganghat,
District : Wardha.
3. Dr. B.R. Ambedkar Vidyaklaya
Hinganghat through its Head Master
Hinghanghat, Tahsil : Hinganghat,
District : Wardha.
4. The Education Officer (Secondary)
Zilla Parishad, Wardha.
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Shri R.V. Shiralkar, Advocate for appellant
Shri K.L. Dharmadhikari, AGP for respondent no.4
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CORAM : B.P. DHARMADHIKARI AND
ARUN D. UPADHYE, JJ.
DATE : 12.09.2017
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ORAL JUDGMENT (PER : B.P. DHARMADHIKARI, J.)
1. Arguments of Advocate Shri Shiralkar for appellant -
employee and learned Assistant Government Pleader for respondent no.4
were heard on 7/9/2017. As there was nobody for other respondents, we
adjourned the matter to 8/9/2017 as part-heard. Accordingly, the matter
is being shown as part-heart on daily Board.
2. Today, again there is no appearance for other respondents.
3. We find that the School Tribunal has dismissed the appeal
under Section 9 of the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977 (for short, hereinafter
referred to as "the M.E.P.S. Act") vide Appeal No.STC-17/1999 on
4/7/2008, while passing orders on preliminary issues framed on
18/9/2006.
4. We reproduce the preliminary issues and the findings
thereon as under : -
"PRELIMINARY ISSUES FINDINGS
1. Whether the school was a recognized
school as defined under the MEPS Act ? Yes.
2. Whether the appointment of the appellant
was made as per Section - 5 of the MEPS Act
and Rules thereunder ? No.
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3. Whether such an appointment has been
approved by the Education officer in
pursuance of the provisions of the Act - does
not survive as well as Rules framed thereunder
including Govt. resolutions issued from
time to time regarding reservation etc. ? Does not
survive.
4. What order ? As per this order."
5. The School Tribunal did not delve into merits of controversy
because of its findings on preliminary issues. The preliminary issues have
been dealt with as per directions of the Division Bench of this Court in the
judgment, reported at 1997 (3) Mh.L.J. 697 (Anna Manikrao
Pethe...Versus...Presiding Officer, School Tribunal, Amravati and
Aurangabad Division, Amravati and others) and the full Bench
judgment of this Court, reported at 2007 (1) Mh.L.J. 597 (St. Ulai High
School and another...Versus...Devendraprasad Jagannath Singh and
another). The Division Bench directed the School Tribunal to find out
whether the School in which employee worked is recognized under the
M.E.P.S. Act or not, whether the appointment of employee was legal and
valid as per Section 5 of the M.E.P.S. Act and lastly, whether the
appointment was approved by Education Officer.
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6. It has been found that though the Division Bench expected
answer on all three issues after the full Bench judgment, answer on issue
regarding approval was not decisive. It has therefore not given that
answer.
7. The appellant, in turn, then approached the learned Single
Judge of this Court in Writ Petition No.4192/2008 and on 30/7/2009 the
learned Single Judge has maintained the said order.
8. Advocate Shri Shiralkar submits that in present matter, fact
that appointment order has not been signed by Headmaster or Secretary
of School Committee is not material because after proper advertisement
and selection process the Management has passed Resolution and
accepted the entire process and resolved to appoint the appellant. He is
relying upon the Division Bench judgment of this Court, reported at 2009
(5) Mh.L.J., 300 (Gajanan Uddhaorao Garole...Versus...State of
Maharashtra and others) to buttress his submission. He further states
that in fact respondent no.4 - Education Officer has granted approval to
the appointment of petitioner on 8/5/1996 as Assistant Teacher from
17/8/1991 till end of 1995-96 session. He submits that appellant
therefore had become permanent employee.
9. Learned Assistant Government Pleader appearing for
respondent no.4 does not dispute the facts. However, he submits that as
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appeal has been dismissed without going into merits of the controversy,
the matter needs to be sent back to the School Tribunal and question
whether the appellant was appointed on probation and has become
permanent or not needs to be looked into by the School Tribunal.
10. With the assistance of respective Counsel, we have perused
the records. The Education Officer has granted approval on 8/5/1996 and
if for a moment modification by full Bench of this Court in the judgment
in the case of St. Ulai High School and another...Vrs....Devendraprasad
Jagannath Singh and another (supra) is ignored, in the light of Division
Bench judgment in the case of Anna Manikrao Pethe...Vrs....Presiding
Officer, School Tribunal, Amravati and Aurangabad Division,
Amravati and others (supra), it implies legal and valid selection and
appointment. The School Tribunal has found that it had no jurisdiction
because appointment order is signed by President of the Public Trust, i.e.,
Institution managing the school. The Division Bench of this Court in
judgment in the case of Gajanan Uddhaorao Garole...Vrs...State of
Maharashtra and others (supra) has looked into identical controversy.
There, it found that when the order of appointment is supported by
Resolution of Management, fact that it is signed by President or that it is
not signed by Headmaster is not decisive. It is always apparent that once
the selection process is looked into by Management and the Management
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resolves to appoint present appellant, it is implementation of decision of
Management that actual results it issuance of appointment order.
Normally, such Resolution is to be executed by Secretary and therefore it
should have been signed by Headmaster of the School. But when it is
signed by President and the appellant was permitted to join and he
functioned for almost four years, such fault in his appointment order
cannot be said to be fatal. The Division Bench judgment in the case of
Gajanan Uddhaorao Garole...Versus...State of Maharashtra and others
(supra) clearly clinches this controversy. Perusal of judgment delivered by
the School Tribunal shows that the Management has passed Resolution on
1/3/1992 and accepted the selection and decided to appoint present
appellant as Assistant Teacher.
11. This Resolution or its impact has not been looked into either
by the School Tribunal or by the learned Single Judge.
12. Thus, the Resolution of Management and approval by
Education Officer show that approach of School Tribunal in deciding the
preliminary issue against appellant is too technical and unsustainable.
Merely because the appointment order is not signed by Headmaster or
then it is signed by President in present facts, appeal could not have been
dismissed by answering preliminary issue against him.
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13. We, therefore, quash and set aside the order of Tribunal on
preliminary issue, dated 4/7/2008 and restore Appeal No.STC - 17/1999
back to file of School Tribunal at Chandrapur.
14. We direct parties to appear before the Tribunal on
29/9/2017.
15. The Tribunal shall, after giving parties necessary opportunity
including leave to add their pleadings or to file additional
pleadings/documents, proceed further to decide the appeal on merits at
the earliest and in any case within next six months.
Accordingly, we allow this letters patent appeal. No costs.
JUDGE JUDGE
Wadkar
