Ku. Vimal Ramaji Agare vs Presiding Officer, School ...
2018 Latest Caselaw 1139 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        : NAGPUR BENCH : NAGPUR.

                             WRIT PETITION No. 1012 of 2012


 PETITIONER                     :-                    Ku. Vimal Ramaji Agare,
                                                      Aged about 58 years,
                                                      Resident of Snehal Nagar,
                                                      Wardha, Tahsil and District- Wardha.

                                                 -VERSUS-

 RESPONDENTS                    :-         1.         Presiding Officer, School Tribunal,
                                                      Chandrapur.

                                           2.         Principal,
                                                      Yeshwant Mahavidyalaya, Wardha.

                                           3.         Principal,
                                                      Mahatma Gandhi Junior College,
                                                      Armori, District-Gadchiroli.

                                           4.         The Deputy Director, 
                                                      Vocational and Training Education, 
                                                      Regional Office, Link Road, Nagpur. 

                                           5.         Principal,
                                                      Kamla Nehru Junior College,
                                                      Sakkardara, Nagpur. 

 -------------------------------------------------------------------------------------------
 Shri N.R. Saboo, Advocate for the respondent No.2.
 Shri B.G. Kulkarni, Advocate for the respondent No.5
 Shri P.D. Meghe, Advocate for the Respondent No.3
 Smt. Tanjawar Khan, A.G.P. for Respondent Nos. 1 and 4.
 -----------------------------------------------------------------------------------------------------------------
  


                                CORAM :  B.P. DHARMADHIKARI, J.

                                DATE    :   30/01/2018.


 ORAL JUDGMENT:-





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                  Nobody for the petitioner. 

2. I have heard learned A.G.P. for Respondent Nos.1

and 4, Shri B.G. Kulkarni, learned Advocate for Respondent No. 5,

Shri N.R. Saboo, learned Advocate for the Respondent No.2 and

Shri P.D. Meghe, learned Advocate for Respondent No.3.

3. School Tribunal has on 04-01-2012 dismissed Appeal

No. S.T.C-58/2005 filed by present petitioner while deciding the

preliminary issues.

4. After considering the reliance placed upon judgment

of Hon'ble Apex Court in

2011 (AIR) SCW 1332 in State of Orissa

V/s Mamata Mohanti, to urge that the teacher must enter in

employment through a open competitive selection process, in this

backdrop in para-8, the school tribunal noted absence of plea

about any such recruitment process including advertisement or

then forwarding the name through employment exchanges, in

appeal memo. In absence of these assertions, it held that

appellant did not join employment as required by the provisions of

Section-5 of M. E. P. S. Act and hence her appeal is held to be not

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maintainable.

5. It is not in dispute that School Tribunal has been

placed under obligation to frame preliminary issue and to decide

the same before considering merits of the controversy. The

judgment of Division Bench of this Court in the case of Anna

Manikrao Pethe V/s Presiding Officer, School Tribunal, Amravati and

Aurangabad Division, Amravati and others in 1997 (3) Mh. L. J

697 as modified by Full Bench judgment in the case of St. Ulai

High School and another V/s Devendraprasad Jagannath Singh and

another 2007 (1) Mh. L. J. 597 lay down the law in this respect.

6. The School Tribunal has mentioned in impugned

order that petitioner was appointed as helper initially on

20-11-1979, and then worked continuously up to 31-7-2002.

During the said period she was in employment of respondent

No.2. After closure of that faculty, she was absorbed in some other

institute I need not go into those details. The petitioner has in her

appeal made following prayers:-

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              "i)      Allow this appeal.
              ii)      Issue   directions   to   the   respondent   to   allow   the  
                       appellant   to   resume   duty   in   Yeshwant  
                       Mahavidyalaya,   Wardha   where   the   MCVC  

course is still being conducted or at any suitable institution.

iii) In the alternative to allow appellant to voluntarily retire from service as she had put in more than 20 years of service and she is a permanent employees.

iv) Appellant further prays that respondent Deputy Director be directed to arrange for payment of salary for the period of forced un-employment due to closure of course in the Yeshwant Mahavidyalaya, Wardha by giving appropriate direction under Section 11 of Maharashtra Employees of Private Schools (conditions of Service) Regulation Act, 1977, read with rule 26 of Maharashtra Employees of Private School (conditions of Service) Service Rules 1981.

v) And to allow cost of proceedings."

7. The material, prima-facie, shows that from 1979

till she approached school tribunal she may have received

salary through public revenue. The reply-affidavit filed by

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respondent no.4 Deputy Director before this Court shows

approval to her services for some period by State Government.

8. When the facts pleaded in appeal memo itself

demonstrated that her services were approved and she was

absorbed after closure of one institute in some other institute,

prima-facie mere absence of mention of advertisement in

appeal memo could not have been a ground for rejection of

appeal. Had any of the respondents come up with a case that

her recruitment is back door recruitment, the answer would

have been otherwise. However, impugned order of school

tribunal does not mention even in such defence raised by any

of the employees.

9. The learned Advocate Shri Saboo and learned

A.G.P. however, relied upon prayer clause mentioned supra to

urge that in absence of challenge to termination order appeal

under Section-9 itself was not maintainable. Again that is not

the reason given by the School Tribunal for dismissing her

appeal. Said contention could have been very well raised

before the School Tribunal and after getting its knowledge, the

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petitioner/appellant could have appropriately replied to it. This

opportunity would have also enabled her to make necessary

amendment in her appeal memo.

10. The impugned order only looks into appeal memo,

takes note of absence of assertions therein and then answers

preliminary issue against the petitioner. In present facts when

all other attending circumstances pleaded in appeal memo are

looked into, the approach does not appear to be correct. The

arguments in defence or contentions raised by other

respondents could have been looked into and thereafter the

issue could have been answered by School Tribunal.

11. In this situation, only because of wrong approach

adopted by Presiding Officer of School Tribunal and without

recording any finding on any disputed aspects, impugned order

dated 4-1-2012 is quashed and set aside. Appeal S.T.C. No.

58/2005 is restored back to School Tribunal for taking fresh

decision on it as per law.

12. The parties are directed to appear before School

Tribunal, Chandrapur in said proceedings on 12-03-2018. The

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School Tribunal, Chandrapur shall attempt to decide the

controversy as per law in the next eight months.

13. With these directions, Writ Petition is partly

allowed and disposed of. However, in the facts and

circumstances of the case, there shall be no order as to costs.

JUDGE

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