Nusrat Yasmeen W/O Ashfaq Ahmad vs Central Tanzeem Committee, ...
2021 Latest Caselaw 4834 Bom

                                                                   Civil WP 373 of 2018.odt

                                              1

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

                      CIVIL WRIT PETITION NO.373/2018

PETITIONER :              Nusrat Yasmeen W/o Ashfaq Ahmad,
(Ori. Appellant)          Aged about 34 years, Occu : Service,
                          Resident of 34/B, Rathor Layout,
                          Anant Nagar, Nagpur.
                          Mob. No.8329503419.

                                           ...VERSUS....

RESPONDENTS :                 1. Central Tanzeem Committee, A
(Ori. Respondents)               registered Public Trust, having
                                 its office at Mohammad Ali Sarai,
                                 Mominpura, Nagpur represented
                                 through its Secretary Haji Mohd.
                                 Abdul Kalam.

                              2. Urdu Upper Primary School,
                                 Mohd. Ali Sarai, Mominpura,
                                 Nagpur through its Headmistress.

                               3. The Education Officer (Primary),
                                   Zilla Parishad, Nagpur.
-----------------------------------------------------------------------------------------------
        Mr. A.R. Abhyankar, Advocate for petitioner
        Mr. A.D. Mohgaonkar, Advocate for respondent no.1
        Mr. A.M. Quazi, Advocate for respondent no.2
        Mr. Gopal G. Mishra, Advocate for respondent no.3
-----------------------------------------------------------------------------------------------
                                  CORAM : AVINASH G. GHAROTE, J.
Judgment reserved on                          : 08/03/2021
Judgment pronounced on                        : 17/03/2021

JUDGMENT

1. Rule. Rule made returnable forthwith.

Civil WP 373 of 2018.odt

2. The petition challenges the judgment of the learned

School Tribunal, dated 27/11/2017, dismissing the appeal as filed

by the petitioner, against her termination dated 25/6/2015 from the

post of Assistant Teacher with the respondent no.2 - School, run by

the respondent no.1.

3. Mr. Abhyankar, learned Counsel for the petitioner, in so

far as the finding that the petitioner had failed to produce

advertisement on record, whereby the filling up of the vacant seats

in the permanent non-grant section of the respondent no.2 - School

were advertised, he submits that the same is contradictory to what

has been found in para 16 of the impugned judgment. Even

otherwise, learned Counsel submits that the entire record relating to

the advertisement as well as Resolution was in custody of the

respondent no.1 and when it is prima facie proved that such a record

existed, then it was the bounden duty of the respondent no.1, who

had its custody, to place the same on record, failure to do which,

invites an adverse inference to the effect that the record was not

being produced as it would go against the respondent no.1. Learned

Counsel therefore submits that the impugned judgment cannot be Civil WP 373 of 2018.odt

sustained in law, as the lack of advertisement is the only ground,

upon which, the appeal has been dismissed.

4. Mr. Mohgaonkar, learned Counsel for the respondent

no.1 contends, that the Principal of the respondent no.2 at the

relevant point of time, was the mother of the petitioner, who

managed to create the record regarding the appointment of the

petitioner. Inviting my attention to the communication dated

7/9/2008 (pg.155), he submits, that the communication has been

issued by the mother of the petitioner, who was then the

Headmistress of the respondent no.2 - School, due to which no

reliance can be placed. He further submits, inviting my attention to

the judgment of this Court in the earlier litigation between the

parties, namely, Writ Petition No.2086/2014, that even therein, the

appointment of the petitioner was seriously disputed. He further

submits that though there was a compromise between the parties,

the approval to the same was refused by the Education Officer, due

to which the same was non est. He submits that the appointment of

the petitioner, was on a post, which was on permanent no grant

basis, which has been withdrawn and as such as of date, no post is in Civil WP 373 of 2018.odt

existence. He therefore submits that the petition needs to be

dismissed and the judgment of the School Tribunal requires to be

maintained.

5. Mr. Quazi, learned Counsel for the respondent no.2

adopts the arguments of Mr. Mohgaonkar, learned Counsel for the

respondent no.1.

6. Mr. Gopal Mishra, learned Counsel for the respondent

no.3, submits, that the approval granted to the petitioner was in

respect of her appointment on a post which was sanctioned on a

permanent no grant basis, and the dispute would be purely between

the petitioner and the Management.

7. Mr. Abhyankar, learned Counsel for the petitioner, in

rebuttal, submits, that even if the post on which the petitioner was

appointed, has since been withdrawn, still the petitioner being a

deemed permanent employee, would be entitled to the benefit of

Rule 24/26 of the Maharashtra Employees of Private Schools Civil WP 373 of 2018.odt

(Conditions of Service) Regulation Rules, 1981, of being declared

surplus and thereby being absorbed in some other School.

8. The impugned judgment, which comprises of 24 paras

in my considered opinion, cannot be sustained for the simple reason

that paras 11 to 22 of the same, are an ad verbatim reproduction, of

paras 3 to 13 of the written notes of arguments, as filed, by the

present petitioner, before the learned School Tribunal, on

14/08/2017, whereas in para 23, the learned Tribunal merely

records the argument of Mr. Mohgaonkar, learned Counsel for the

respondent no.1 and renders a finding that the appellant failed to

prove that her appointment was made by following due procedure of

law, for which there does not appear to be any assessment of the

rival contentions and the documents on record. The entire judgment,

therefore, is a clear case of non-application of mind, as the learned

Tribunal, neither discusses the facts on record, nor records any

reasons for not believing them. Though in para 23, the learned

Tribunal, states, that the respondent no.1 being a Minority

Institution, it can appoint the staff as per their choice and there is no

need to obtain prior permission of the Education Officer, but other Civil WP 373 of 2018.odt

provisions of the Act and Rules are required to be followed by the

Management, it does not make any discussion in this regard at all,

neither does it record any finding as to what was required to be

proved and how there was failure, or what procedure was to be

followed and has not been followed. Considering the nature of the

grievance raised in the appeal, it was, in my considered opinion,

necessary for the learned Tribunal, to consider and discuss the

factual position in light of the law applicable, which it has utterly

failed to do, resulting in vitiating the entire judgment. The impugned

judgment, therefore, on this count alone cannot be sustained and

accordingly quashed and set aside. The matter is remanded back to

the School Tribunal, Nagpur, to render a judgment by recording

appropriate reasons, after hearing the learned Counsel for the

respective parties. Such an exercise, be done within a period of three

months from the date of this order. The parties shall appear before

the School Tribunal on 25/03/2021.

Rule is made absolute in the aforesaid terms. No order

as to costs.

                                                         (AVINASH G. GHAROTE, J.)
Wadkar
          Shailendra         Digitally signed by
                             Shailendra Wadkar

          Wadkar             Date: 2021.03.17 14:49:32
                             +0530