1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 2412/2009. Shri Yeshwantbaba Shikshan Sanstha and another. -: VERSUS :- Ku. Sanju Kisanlal Rai and another. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JULY 27, 2010. Heard Shri P.N. Shende, learned Counsel for petitioners, Shri A.D. Mohgaonkar, learned Counsel for respondent no.1 and learned A.G.P. for respondent no.2. Petitioners contend that School Tribunal has recorded a finding that the appointment of respondent no.1 is legal and valid only because of its conclusion that the burden in that respect was upon petitioner Management. The judgment of learned Single Judge of this Court reported at 2009 [6] Mh.L.J. 476 (Rayat Shikshan Sanstha and another .vrs. Yeshwant Dattatraya Shinde), is being pressed into service to urge that the burden in this respect is always upon the employee who 2 is appellant before the School Tribunal. Attention is also invited to stand taken in written statement by the management that the said appointment was legal. Shri Mohgaonkar with Shri Roopnarayan, learned Counsel for respondent no.1 support the impugned judgment. He states that the school at the relevant time was unaided and respondent no.1 is the first employee who was selected after proper procedure and she was holding all necessary qualifications. She worked for about 4 years and thereafter her services have been illegally terminated. According to him, in these circumstances the above judgment of learned Single Judge has no application. The learned Counsel for petitioners is also relying upon the Division Bench judgment reported at 2007 (6) Mh.L.J. 667 (Priyadarshini Education Trust .vrs. Ratis (Rafia) Bano Abdul Rasheed) and Shri Mohgaonkar, is contending that said judgment also has no application because the school was unaided even at the time of termination of services of respondent no.1. I find that the School Tribunal has not recorded any specific finding holding that there was an advertisement and in response to that advertisement, 3 after following proper procedure respondent no.1 came to be appointed. It has also not recorded any finding that there was no such advertisement and no selection process was followed. It has only gone by default on the part of petitioner management to place relevant documents on record. The challenge to Division Bench judgment of this Court in the case of Priyadarshini Education Trust (supra), is pending before the Hon'ble Apex Court. In this situation, I find it proper to refer the matter back to the School Tribunal to find out whether the procedure as contemplated by the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act and Rules, was followed or not followed. The question raised by Shri Mohgaonkar, learned counsel that such procedure is not necessary, is kept open and the School Tribunal also can go into it. It is made clear that this course is found necessary to only save the time and waiting period of respondent no.1 who is already out of employment. In case the judgment in case of Priyadarshini Education Trust (supra), is upheld by the Hon'ble Apex Court, the basic facts must be available for adjudication and hence, the remand is being made. The remand and participation in it will not 4 prejudice any of the contentions and rights of present res ondent no.1. Only for that purpose and with this clarification the impugned judgment dated 10.07.2008 and consequently the order dated 07.01.2009 passed in review application by the School Tribunal is also quashed and set aside. The parties to appear before the School Tribunal, Nagpur on 18.08.2010 and the School Tribunal shall attempt to decide the controversy as early as possible and in any case by 30.11.2010. In the meanwhile the petitioners shall not take any steps to prejudice the rights of respondent no.1 in the matter. The matter is thus restored back to the file of the School Tribunal to record finding as mentioned above. Writ Petition is thus partly allowed. Rule accordingly. No costs. Records and proceedings be sent back immediately. JUDGE Rgd.