The Suwarta Alliance Ministries ... vs Shweta Shirish Dalage And Others
2022 Latest Caselaw 2734 Bom

                                       1                  CA / 4013 / 2022



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                    910 CIVIL APPLICATION NO.4013 OF 2022
                         IN RA/87/2022 IN WP/3427/2019

                THE SUWARTA ALLIANCE MINISTRIES TRUST
                  THROUGH ITS CHAIRMAN AND ANOTHER
                               VERSUS
                  SHWETA SHIRISH DALAGE AND OTHERS

                                        ...
                   Advocate for Applicants : Mr. Natu Sharad V.
                                        ...

                                CORAM      : MANGESH S. PATIL, J.

                                DATE       : 22 MARCH 2022

ORAL ORDER :

Heard the learned advocate Mr. Natu for the review

applicants who are the petitioners in the writ petition. Though there is

an application for condonation of delay, I requested him to satisfy the

court regarding existence of sufficient grounds for undertaking the

review.

2. The petitioners are the management and the school. The

respondent nos. 1 and 3 were in its employment as teachers.

As number of students decreased, the Education Officer (Primary)

reduced the divisions from 4 to 3. The respondent no. 1 who was yet

to complete her probation was terminated on the ground that she was

junior to the respondent no. 3. In an appeal under section 9 of the

Maharashtra Employees of Private Schools (Conditions of Service)

Regulation Act, 1977, the School Tribunal allowed her appeal and

2 CA / 4013 / 2022

quashed and set aside her termination. Aggrieved by the judgment

and order passed by the School Tribunal they preferred writ petition

which was dismissed by the judgment under review on 07-09-2021.

3. Learned advocate Mr. Natu would vehemently submit that

the dispute was mainly regarding inter se seniority between the

respondent no. 1 and respondent no. 3. The dispute ought to have

been decided on the basis of the approval granted by the respondent

no. 2 - Education Officer in view of Rule 12 of the Maharashtra

Employees of Private Schools (Conditions of Service) Rules, 1981.

Approval to the appointment of respondent no. 3 as Assistant Teacher

with effect from 15-06-2005 was granted by the respondent no. 2 which

was never challenged. When the letters of approval issued by the

Education Officer were available on the record and he had not chosen

to dispute this, it was an error apparent on the face of the record to

undertake scrutiny to ascertain their genuineness. Though the name of

respondent no. 3 was not appearing in the seniority list produced by

the respondent no. 1 for the period 2009-2010 to 2011-2012, since she

was appointed in an unaided school run by the petitioners, her name

was bound not to appear in the list and no inference was deducible

therefrom. He would, therefore, submit that the afore-mentioned facts

and circumstances demonstrate that there are good and sufficient

grounds to undertake the review.

3 CA / 4013 / 2022

4. I have carefully considered the submissions and perused

the judgment under review as also the papers.

5. It is trite that the review cannot be an appeal in disguise.

Merely demonstrating some error or illegality would not suffice. There

has to be formal defect or error apparent on the face of the record to

exercise that power.

6. As is observed in the order under review, several

circumstances had weighed against the petitioners and the respondent

no. 3 and in favour of the respondent no. 1. As regards the approval

granted by the respondent no. 2 to the appointment of respondent

no. 3, there was inconsistent record. In the seniority list for previous

years, her name never appeared which appeared in it for the first time

in the year 2012-2013. Even in that seniority list, her date of

appointment was shown as 25-04-2012, whereas, admittedly the

respondent no. 1 has been in the employment since 18-11-2011. It

was also noticed that in a letter issued by the respondent no. 2 granting

approval to the appointment of the respondent no. 3, her date of

appointment was shown as 23-02-2012, though the Headmaster of the

petitioners school had forwarded the letter for approval mentioning her

date of appointment as 15-06-2005. It was also noticed that the

respondent no. 2 - Education Officer had issued two orders in one of

which her date of appointment was shown as 25-06-2005 and in the

other, as 27-04-2012. Unlike the first of such letters, second letter did

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not refer to the correspondence having been made pursuant to some

proposal received from the school for granting approval. All these

factors were found to be sufficient to justify the inference that was

drawn by the School Tribunal raising a doubt about the genuineness of

this correspondence granting approval to the respondent no. 3.

7. Apart from the above state-of-affairs, it was specifically

pointed out by the School Tribunal that even the stand of the

respondent no. 3 regarding her initial appointment was not consistent

throughout. There was also a doubt expressed as to what had made

her to appear for interview on 23-04-2012, if she was already in the

employment. Referring to all such circumstances, the School Tribunal

had allowed the appeal of the respondent no.1 and quashed and set

aside termination of the respondent no. 1. The observations were

clearly based on a plausible appreciation of the material on the record.

It was not found to be perverse or arbitrary so as to call for any

interference in exercise of writ jurisdiction and on that premise, the writ

petition was dismissed. It cannot be said that it suffers from any formal

defect or error apparent on the face of the record.

8. Mr. Natu, the learned advocate for the petitioners would

then submit that since the respondent no. 1 was still a probationer,

Rules 26 to 28 of the Maharashtra Employees of Private Schools

(Conditions of Service) Rules, 1981 were not applicable to the

respondent no. 1. He would, therefore, submit that the observations in

5 CA / 4013 / 2022

this regard in paragraph no. 13 of the judgment under review are not

legally tenable.

9. It is to be noted that the observations in paragraph no. 13

are in-fact redundant. It is only in the alternative to the earlier part of

the reasoning that it was observed that even if the respondent no. 1

was to be terminated, the procedure under those rules ought to have

been followed which were not. It is not that it was the sole ground for

dismissing the writ petition. If that be so, this cannot be a ground to

undertake a review.

10. In the circumstances, I am of the firm view that there are

not sufficient grounds which would enable this court to undertake

review within the four corners of law. Consequently, there is no point in

even entertaining the application for condonation of delay.

11. The Applications are disposed of.

[ MANGESH S. PATIL ] JUDGE arp/