1 W.P.No.834.01 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 834 OF 2001 1. The South Indian Association & anr. ... Petitioners v/s 1. The State of Maharashtra 2. Miss T. Baby 3. The Education Officer, Primary Section Pune Zilla Parishad, Pune. ... Respondents Mr.Oven Menezes i/by R. Walvekar for the petitioners. Mr.S.N.Bhosale, A.G.P. For respondent No.1. Ms.Ashvini A. Takalkar for Mr.Nitin Deshpande for respondent No.3. CORAM: SMT.NISHITA MHATRE, J. DATED: 28TH JANUARY, 2011 ORAL JUDGMENT: 1. The petition has been preferred against the judgment and order of the School Tribunal, Pune, dated 17.11.2000. By this order, the School Tribunal has allowed the appeal filed by the respondent No.2 teacher. The order of termination issued against her on 31.3.1998 has been set aside and the petitioners have been directed to reinstate her with continuity of service and full back wages. 2 W.P.No.834.01 2. Petitioner No.1 is a registered Trust and claims that it is a linguistic minority Trust. Petitioner No.1 runs a school known as the S.V.S. School which consists of both the primary and the secondary sections. Petitioner No.2 is the President of Petitioner No.1. 3. Respondent No.2 was appointed as an Assistant Teacher in the primary Tamil Medium School. She had completed her H.S.C. and S.J.C. from Tamil Nadu State and was qualified only to teach the Tamil language as a subject. She was appointed as an Assistant Teacher, subject to the approval of the Zilla Parishad. A proposal was sent to the Education Officer for approval of the appointment of respondent No.2. On 14.8.1995, approval was granted by the Education Officer for the appointment of respondent No.2 only for a period from 1.8.1994 to 30.4.1996. It appears that the petitioners sought approval for appointing respondent No.2 time and again from the education officer. However, no reply was forthcoming from the Education Officer. Thereafter, on 20.2.1998, the Education Officer informed the petitioners that the approval for the appointment of respondent No.2 was accorded only upto 30.4.1996. This was because there were surplus teachers, the number of students having reduced. The letter further directed the 3 W.P.No.834.01 petitioners to absorb respondent No.2 as a teacher in their English Medium, Secondary School. However, since respondent No.2 was not qualified to teach in the English Medium School, her services were terminated from 31.3.1998. 4. Being aggrieved by the decision of the management, the respondent teacher approached the School Tribunal under Section 9 of the Maharashtra Employees of Private Schools Act. By the impugned order dated 17.11.2000, the School Tribunal allowed the appeal. Being aggrieved by the decision of the School Tribunal, the petitioners preferred the present writ petition. 5. On 4.3.2003, the L.P.A. preferred by the respondent teacher was dismissed. 6. The main contention of Mr.Menezes for the petitioner is that once the Education Officer had declared respondent No.2 as a surplus teacher, the petitioners had no option but to terminate her services. He draws my attention to the order dated 20.2.1998 passed by the Education Officer by which respondent No.2 has been declared surplus in the Tamil Medium Primary School. The petitioners were directed to absorb her in their high school which was an English Medium 4 W.P.No.834.01 School. The strength of the students was reduced and, therefore, she was declared surplus. Mr.Menezes, therefore, submits that the Tribunal ought not to have granted reinstatement with continuity of service and full back wages to a teacher who had been declared surplus. 7. Nobody appears for the respondent teacher, probably because she has been employed elsewhere. 8. An affidavit has been filed by the Education Officer (Primary) of the Pune Zilla Parishad in a civil application filed by the respondent teacher being Civil Application No.904 of 2010. He has averred that respondent No.2 was found to be surplus because the strength of the students in the school had depleted. He has also averred that there was only one Tamil Medium School in the entire Pune District and, therefore, she could not have been absorbed in any other school. 9. From the impugned order, it appears that the Tribunal has set aside the termination order because provisions of Rule 26 of the MEPS Rules had not been followed. The Respondent No.2 was declared surplus in 1998. The Education Officer has stated in his affidavit that Rule 26 could not have been implemented in view of the fact that 5 W.P.No.834.01 there was only one Tamil Medium School in the Pune District. 10. In these circumstances, the impugned order is set aside. 11. Rule made absolute accordingly. .....