Hemchandra S/O Ramdas Jadhav vs The State Of Maharashtra And Ors
2021 Latest Caselaw 10183 Bom

210-J-LPA-353-10                                                                     1/5


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


                    LETTERS PATENT APPEAL NO.353 OF 2010
                                     IN
                        WRIT PETITION NO.3569 OF 2005


Hemchandra Ramdas Jadhav
Aged about 45 years,
Occupation Service as Clerk
R/o Bhooli, Tq. Manora,
Dist. Washim                                                  ... Appellant

-vs-

1. The State of Maharashtra,
   Through its Secretary,
   Department of Education,
   Mantralaya, Mumbai 32

2. The Education Officer (Secondary)
   Zilla Parishad, Washim,
   Tq. And Dist. Amravati
   (Earlier Dist. Akola)

3. Gajanan Maharaj Bahu Uddeshiya
   Shikshan Sanstha, Wilegaon
   which is running the School
   Namely Jai Bajrang Vidyalaya,
   Thr. its Director Sitaram Vasram Rothod,
   R/o Pimpri (Modak) Tq. Karanja (Lad)
   Dist. Washim

4. The Headmaster,
   Jai Bajrang Vidyalaya, Bhooli,
   Tq. Manora, Dist. Washim
   (Earlier Dist. Akola)                                 ... Respondents


Shri V. A. Kothale, Advocate for appellant.
Shri D. P. Thakare, Additional Government Pleader for respondent Nos.1 and 2.
Shri A. P. Tathod, Advocate for respondent Nos.3 and 4.




        ::: Uploaded on - 04/08/2021                  ::: Downloaded on - 05/08/2021 02:53:06 :::
 210-J-LPA-353-10                                                                         2/5


                CORAM : A. S. CHANDURKAR AND G. A. SANAP, JJ.

DATE : August 03, 2021

Oral Judgment : (Per : A. S. Chandurkar, J.)

In this appeal the judgment of the learned Single Judge dated

07/06/2010 in Writ Petition No.3569/2009 is under challenge. The

appellant claims that he was appointed on the post of Junior Clerk at the

school run by respondent No.3. It is his grievance that after the school came

on grant-in-aid basis the Management started harassing him and demanded

amount of Rs.12,000/- for continuing him in service. By making a grievance

that his services were orally terminated on 15/03/1994 he approached the

School Tribunal by filing appeal under Section 9 of the Maharashtra

Employees of Private Schools (Conditions of Service) Regulation Act, 1977

(for short, the said Act). In the written statement filed by the Management it

was denied that the services of the appellant were ever terminated. In

paragraph 6 of the written statement it was pleaded as under :

' It is submitted that the appellant is still in service of these Respondents and there was no termination of the appellant as alleged by him.

It would be further pertinent to submit that the appellant has filed his appeal as it appears there from on 21/03/1994 and therefore, to bring it within limitation, an imaginary date of 15/03/1994 has been shown in the name of oral termination. In fact it is not the case of termination but it is a case of the appellant himself of remaining absent from his school duties, and in support whereof the Respondents have sent various communications to him time and again, copies of

210-J-LPA-353-10 3/5

some letters are annexed herewith.'

2. The learned Presiding Officer of the School Tribunal by his

judgment dated 01/04/2005 was pleased to dismiss the said appeal by

holding that the appointment of the appellant was not in accordance with

Section 5 of the said Act. It must be noted that during pendency of that

appeal there was an ad-interim stay granted by virtue of which the appellant

continued in service till decision of the appeal. The appellant challenged the

aforesaid judgment by filing Writ Petition No.3569/2005. While admitting

the writ petition the interim relief which was already operating was

continued. The learned Single Judge found that since the appointment of

the appellant was not in accordance with the provisions of Section 5 of the

said Act, the conclusion arrived at by the learned Presiding Officer was

correct. On that ground the writ petition came to be dismissed. When this

Letters Patent Appeal was admitted, interim relief was granted by virtue of

which the appellant continues to be in service.

3. We have heard Shri V. A. Kothale, learned counsel for the

appellant and Shri A. P. Tathod, learned counsel for respondent Nos.3 and 4

as well as Shri D.P Thakare, learned Additional Government Pleader for

respondent Nos.1 and 2.

We find from the record that in the appeal filed by the appellant

210-J-LPA-353-10 4/5

under Section 9 of the said Act it was prayed that the oral termination dated

15/03/1994 be set aside. In the written statement it was the specific stand

of the Management in paragraph 6 that the services of the appellant were

never terminated and he was still in service. Once this position is clear it

becomes obvious that in absence of there being any order of termination of

service of the appellant, there was no reason to further continue with the

adjudication of the appeal under Section 9(1)(a) of the said Act. An appeal

under Section 9(1) of the said Act is maintainable only in case the services of

an employee are terminated. When the Management came up with the

stand that the services of the appellant were never terminated the appeal

ought to have been disposed of on that premise that the Management had

never terminated his services. There was no reason to go into the question

as to whether the appellant was initially appointed by following the due

procedure. In other words, since the services of the appellant were never

terminated, there was no cause of action to further prosecute the appeal

under Section 9 of the said Act.

4. Be that as it may, we find that since filing of the appeal before the

School Tribunal there has been interim order operating by virtue of which

the appellant continued in service for more than twenty five years. It is

informed that the appellant is to superannuate within a year. In that view of

the matter we are satisfied that since the services of the appellant were never

210-J-LPA-353-10 5/5

terminated as contended by the Management, the appellant is entitled to

continue in service as before. In the light of the statements made in the

written statement reproduced herein above it was not necessary for the

learned Single Judge to have gone into the question as to whether the

appellant was appointed after following due process of law especially when

the appeal under Section 9(1) of the Act was not maintainable.

Accordingly the judgment dated 07/06/2010 in Writ Petition No.3569/2005

is set aside. In the light of the averments made in the written statement

reproduced herein above it is deemed that the appellant continued in service

even after 15/03/1994.

The Letters Patent Appeal is allowed in aforesaid terms. Parties

to bear their own costs.

                             JUDGE                JUDGE




Asmita