Vijay Vitthalrao Markandewar vs Sanmitra Mandal, Chandrapur Thr. ...
2021 Latest Caselaw 9793 Bom

 Judgment                                 1                                 lpa560.10.odt



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

                        LETTERS PATENT APPEAL NO. 560/2010
                                        IN
                          WRIT PETITION NO. 4013/2001 (D)

          Vijay Vithalrao Markandewar,
          Aged about 63 years,
          R/o. At and Post Ganeshnagar,
          Chandrapur, Tah. & Dist. Chandrapur
                                                                    .... APPELLANT

                                   // VERSUS //

 1]       Sanmitra Mandal,
          Chandrapur, Through its President
          Dr. G.W. Andankar, Katyayani Rugnalaya,
          At and Post : Balaji Ward,
          Chandrapur, Tah. & Dist. Chandrapur

 2]       Sanmitra Sainiki Vidyalaya,
          Chandrapur, At and Post : Visapur,
          Tah. & Dist. Chandrapur
          Through its Headmaster

 3]       Manoj Aloni,
          Head Master,
          Sanmitra Sainiki Vidyalaya, Chandrapur,
          At and Post : Visapur,
          Tah. & Dist. Chandrapur

 4]       The Education Officer (Secondary),
          Zilla Parishad, Chandrapur

 5]       The Deputy Director of Education,
          Nagpur Region, Nagpur

 6]       Presiding Officer,
          School Tribunal, Chandrapur
                                                              .... RESPONDENT(S)


  *******************************************************************
                  Shri R.S. Kurekar, Advocate for the appellant
       Shri A.C. Dharmadhikari, Advocate for the respondent nos. 1 to 3
                 Ms. S.S. Jachak, AGP for the respondent/State
  *******************************************************************

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  Judgment                                 2                                lpa560.10.odt




                        CORAM : A.S. CHANDURKAR & AMIT B. BORKAR, JJ.

JULY 27, 2021

ORAL JUDGMENT : (PER:- AMIT B. BORKAR, J.)

1] Heard.

2] By this appeal under Clause 15 of the Letters Patent, the

appellant is challenging the order dated 13/11/2009 passed by the learned

Single Judge of this Court in W.P. No. 4013/2001 thereby dismissing the

claim of reinstatement of the appellant.

3] It is the case of the appellant that he was working as an

Assistant Teacher with Lokmanya Tilak Vidyalaya, Chandrapur from July,

1972 to 31/07/1996; the appellant was promoted to the post of Headmaster

in the respondent no. 1 - Management after following the due process and

therefore he is entitled for permanency on the post of Headmaster; the

appellant was terminated from his post of Headmaster on the ground of

unsatisfactory work during the probation period; termination of the appellant

is illegal as the appointment of the appellant was as and by way of

promotion.

4] The appellant therefore challenged his termination by way of

Appeal No. STC/114/1997 before the School Tribunal. The School Tribunal

by the order dated 09/11/2001 allowed the appeal filed by the appellant

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Judgment 3 lpa560.10.odt

holding that the appellant was appointed by way of promotion and therefore

he was entitled for continuity in service as Headmaster. The management

therefore filed W.P. No. 4013/2001 before this Court and the learned Single

Judge by the impugned order dated 13/11/2009 allowed the writ petition

holding that the appointment of the appellant was on probation and

therefore he had no right to continue after the period of probation is over.

The appellant has therefore filed the present appeal challenging the order

dated 13/11/2009.

5] Learned advocate for the appellant submitted that the appellant

was not granted opportunity of hearing before the Single Judge of this Court.

He submitted that the appellant was appointed by way of promotion and

therefore he was entitled for continuity in service from 1972 onwards.

6] Learned advocate for the respondent no. 2 submitted that the

appellant had resigned from his earlier post as Assistant Teacher. He

submitted that the respondent no. 1 - Management is no way concerned with

the earlier management i.e. the management of Lokmanya Tilak Vidyalaya,

Chandrapur. He submitted that in view of the resignation of the appellant,

the employer - employee relationship between Lokmanya Tilak Vidyalaya,

Chandrapur and the appellant came to an end. He submitted that fresh

advertisement was issued. The appellant applied for the post of Headmaster

with the respondent no. 1 - Institution as a fresh candidate. He therefore

submitted that the appointment of the appellant was fresh appointment on

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Judgment 4 lpa560.10.odt

probation, and therefore unless he had worked to the satisfaction of the

management, he had no right to continue in service after his probation

period was over. He submitted that the respondent no. 1 - Management has

rightly terminated the services of the appellant since the performance of the

appellant was unsatisfactory.

7] We have carefully scrutinized the appointment order dated

27/07/1996 and copy of approval letter issued the Education Officer dated

03/12/1996. On perusal of the appointment order and the approval letter

issued by the Education Officer, we are satisfied that the appointment of the

appellant was on probation period of 2 years.

8] Insofar as the contention of the appellant that the appellant was

appointed by way of promotion is concerned, it is undisputed fact that the

respondent no. 1 - Management is entirely different and is no way connected

with the earlier management of Lokmanya Tilak Vidyalaya, Chandrapur. It is

undisputed that the appellant had resigned from his earlier post as Assistant

Teacher. The appellant was appointed on the post of Headmaster in the

respondent no. 1 - Management on the basis of fresh advertisement. The

appellant applied for appointment on the said post of Headmaster as a fresh

candidate. Therefore, we cannot hold that the appointment of the appellant

was in continuation of his earlier appointment in Lokmanya Tilak Vidyalaya,

Chandrapur. The manner in which the appellant was appointed as

Headmaster with the respondent no. 1 - Management is not recognized as

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Judgment 5 lpa560.10.odt

mode of appointment by way of promotion under the provisions of the

Maharashtra Employees of Private Schools (Conditions of Service) Regulation

Act.

9] Insofar as the contention of the appellant that he was not heard

before the learned Single Judge is concerned, it is not in dispute that notice

of W.P. No. 4013/2001 was duly served on the appellant but he chose not to

appear before the learned Single Judge. We have granted full opportunity of

hearing to the appellant. Unless the appellant makes out the case of legal

prejudice caused to him due to lack of opportunity of hearing, we cannot

interfere with the order of learned Single Judge on this ground.

10] Since we are satisfied that the appointment of the appellant on

the post of Headmaster with the respondent no. 1 was fresh appointment

after he had resigned from his earlier post of Assistant Teacher, we do not

find any illegality in the order passed by the learned Single Judge calling for

interference under Clause 15 of the Letters Patent.

11] There is no merit in the appeal and the same is dismissed with

no order as to costs. Pending application(s), if any, stand(s) disposed of.

                   (JUDGE)                                  (JUDGE)




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