Suresh S/O Shamraoji Gajare vs Shri. Dnyaneshwar Vidya Prasarak ...
2021 Latest Caselaw 11860 Bom

210-LPA-377-11                                                                       1/7


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

                     LETTERS PATENT APPEAL NO.377 OF 2011
                                      IN
                     WRIT PETITION NO.2153 OF 2010(Decided)


Suresh s/o Shamraoji Gajare
Aged about 51 years,
Occ. Presently Nil,
R/o Dhadi, Post : Sahur, Taq. Ashti
Dist. Wardha                                             ... Appellant

-vs-

1. Dnyaneshwar Vidya Prasarak Mandal
   through its President, office at Sahur
   Taq. Ashti, Dist. Wardha

2. Sant Akre Maharaj Vidyalaya,
   Through its Head Master, Office at
   Manikwada, Taq. Ashti, Dist. Wardha

3. The Education Officer (Secondary),
   Zilla Parishad, Wardha                                ... Respondents

Shri B. G. Kulkarni, Advocate for appellant.

Shri Anand Parchure, Advocate with Shri K. Shiwarkar, Advocate for respondent Nos.1 and 2.

Shri D. P. Thakare, Additional Government Pleader for respondent No.3.

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

DATE : August 26, 2021

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

The appellant being aggrieved by the judgment of learned Single

Judge dated 21/09/2010 in Writ Petition No.2153/2010 has impugned the

same in this appeal filed under Clause 15 of the Charter of Letters Patent.

210-LPA-377-11 2/7

2. The facts in issue are undisputed and may be stated as under :

The appellant claims to hold the qualifications of BA B.Ed and was

appointed on probation for a period of two years on 30/06/1991. Thereafter

on 30/06/1993 he was issued with another order of appointment from

01/07/1993 which was to operate until further orders. His appointment was

duly approved by the Education Officer from 01/07/1995 onwards by order

dated 15/10/1996. The management proceeded to conduct an enquiry

against the appellant by framing charges. On conclusion of the same by an

order dated 22/03/1999 the services of the appellant came to be terminated.

The appellant thus filed an appeal under Section 9 of the Maharashtra

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

(for short, the said Act). In the said appeal it was the case of the appellant

that the enquiry proceedings held against him were illegal and not in

accordance with the procedure prescribed. In the written statement filed on

behalf of the Management it was denied that the enquiry was held in an

illegal manner. The learned Presiding Officer of the School Tribunal framed

preliminary issues amongst which Issue No.2 was with regard to the validity

of the appointment of the appellant as per provisions of Section 5 of the said

Act. On finding that the appellant was not appointed by following the

prescribed procedure the appeal came to be dismissed. The appellant

challenged that adjudication in Writ Petition No.2153/2010 and as stated

above that writ petition came to be dismissed holding that the appellant was

210-LPA-377-11 3/7

not duly qualified when he was initially appointed in the year 1986.

3. Shri B. G. Kulkarni, learned counsel for the appellant submitted

that in the light of the fact that the appellant was initially appointed on

probation and thereafter by issuing fresh order of appointment his services

were confirmed, it was not open for the School Tribunal to dismiss the

appeal by holding that the appellant's appointment was not in accordance

with Section 5 of the said Act. He submitted that in the written statement

there were no pleadings raised by the Management to challenge the validity

of the appellant's appointment. Having held an enquiry against the

appellant the conduct of the Management indicated that the appellant was a

permanent teacher and hence could have been removed only by holding an

enquiry. Placing reliance on the decision in Sadhana Janardhan Jadhav vs.

Pratibha Patil Mahila Mahamandal 2013(2) Mh.L.J. 484 it was submitted that in

view of the fact that the appellant was sought to be removed after holding an

enquiry, the question of validity of his appointment did not arise. The

learned Single Judge erred in going into that question in absence of any

pleadings to that effect. He thus submitted that the appeal ought to be

decided on merits by the School Tribunal by setting aside the judgment of

learned Single Judge.

4. On the other hand Shri K. Chiwarkar, learned counsel for the

respondent No.1 supported the impugned order. It was submitted that in

210-LPA-377-11 4/7

view of the decision in Anna Manikrao Pethe vs. Presiding Officer, School

Tribunal Amravati and Aurangabad Division, Amravati and ors. 1997 (3 )Mh.L.J.

697 the School Tribunal was bound to frame the preliminary issue regarding

appointment of the appellant being made after complying with the provisions

of Section 5 of the said Act. No fault could be found with the order of School

Tribunal in that regard. Since the appellant was not qualified when he was

initially appointed in the year 1986 the learned Single Judge rightly

dismissed the writ petition. He had no reason to go into the merits of such

adjudication. The learned counsel sought to place reliance on the decision in

Priyadarshini Education Trust and ors. vs. Ratis (Rafia) Bano d/o Abdul Rasheed

and ors. 2007 (6) Mh.L.J. 667 and Sanjay Lalbahadur Divedi vs. Shrikrishna

Vyayam Shala, Amravati and ors. 2020 (3) Mh.L.J. 666. Hence no interference

in the impugned order was required.

Shri D. P. Thakare, learned Additional Government Pleader

appeared for respondent No.3.

5. We have heard the learned counsel for the parties and we have

given due consideration to their respective submissions. At the outset it

would be necessary to examine the pleadings of the parties in the appeal as

filed by the appellant under Section 9 of the said Act. It was pleaded by the

appellant that after being appointed on probation his services came to be

confirmed and thereafter the Management proceeded to hold an enquiry

against him. In the reply filed on behalf of the Management it was

210-LPA-377-11 5/7

contended that the enquiry was held after following due process of law.

There were no averments in the written statement to indicate that the

Management was disputing the validity of the appellant's appointment. In

other words, in absence of any pleadings the validity of the appointment of

the appellant was not in issue. Be that as it may, the learned Presiding

Officer framed preliminary issues in view of the judgment of the Division

Bench in Anna Manikrao Pethe (supra). The practice of framing preliminary

issues even in absence of pleadings in that regard has been noticed by the

Division Bench in Sadhana Janardhan Jadhav (supra). In paragraph 16 it has

been observed as under :

"16. In cases where employees of private school have been terminated after holding departmental enquiry or otherwise, when such employees have become permanent in service or have completed requisite number of years of service, the said issue regarding appointment is being casually raised by the management and framed by the Tribunal. It has been found that large number of appeals have been dismissed by the Tribunals on the said preliminary issue when the same was not at all justified and this Court was required to send back the appeals for decision on merits. Thus, the school Tribunals have been adopting a shortcut method of dismissing the appeals on the ground that the appointment was not made as per Section 5 of the MEPS Act and the Rules, to earn disposal of cases at their credit, which not only causes serious injustice to the litigating parties but give rise to multiplicity of litigations between the parties....."

It was then held that in the light of the law laid down by the

Honourable Supreme Court the preliminary issue with regard to validity of

210-LPA-377-11 6/7

the appointment of the appellant being made in accordance with Section 5 of

the said Act should not be framed mechanically and the said issue ought to

be framed only if the same arises in the light of pleadings of the parties.

Further the School Tribunal ought to decide all issues at the same time

without trying any or some of them as the case may be.

The framing of issues in absence of necessary pleadings has been

noticed by the learned Single Judge in Manohar Mahadeo Bhajikhaye vs.

Presiding Officer, School Tribunal Chandrapur and ors. 2011 (4) Mh.L.J. 312 .

6. As stated above the Management in its written statement neither

disputed the validity of appointment of the appellant. Rather it proceeded

to conduct an enquiry before seeking to terminate his services. The School

Tribunal had decided the appeal only by framing preliminary issues that too

in absence of pleadings in that regard. We find that in the light of the

observations of the Division Bench in Sadhana Janardhan Jadhav (supra) the

same was impermissible. This aspect was lost sight of by the learned Single

Judge while affirming the order of the School Tribunal. We find that it

would be necessary for the School Tribunal to decide the appeal afresh in the

light of the observations of the Division Bench referred herein above. The

appeal was not liable to be dismissed in a summary manner as was done by

the learned Presiding Officer. Since we have not entered into the merits of

the rival claims, it is not necessary to refer to the decisions cited by the

210-LPA-377-11 7/7

learned counsel for the Management.

7. In the light of aforesaid discussion the following order is passed :

(i) The judgment of learned Single Judge dated 21/09/2010 in Writ Petition No.2154/2010 as well as judgment of the learned Presiding Officer, School Tribunal, Chandrapur dated 19/03/2010 are set aside.

(ii) Appeal No. STN-32/1999 is restored for its adjudication on meris in the light of observations made hereinabove. As held by the Division Bench in Sadhana Janardhan Jadhav (supra) the preliminary issues as well as other issues arising between the parties shall be decided together.

(iii) The appeal be decided expeditiously on its own merits without being influenced by any observations made in this judgment. To enable the adjudication of the appeal, the parties shall appear before the School Tribunal, Chandrapur on 13/09/2021.

(iv)          All contentions of the parties are kept open.
(v)           The Letters Patent Appeal is allowed in aforesaid terms.



                                JUDGE                            JUDGE




Asmita