1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5643 OF 2009 1) Balaji Shaikshanik and Bahu- Uddeshiya Sanstha, Parola, Tq. Parola, Dist.Jalgaon, Through its Chairman. 2) The Head Master, A.T.Patil Madhyamik Vidyalaya, Mundave (kh.), Tq.Parola, District Jalgaon. - PETITIONERS VERSUS 1) Manohar s/o Ramrao Salunke, Age: 33 Yrs., occ. nil. r/o Bhosle Galli, Near Hatti Mandir Parola, Tq. Parola, District Jalgaon. 2) The Education Officer (Secondary), Zilla Parishad, Jalgaon. - RESPONDENTS ***** Mr.SR Barline,Advocate for Petitioners; Mr.Jiwan Patil, Adv. h/for Mr.VD Sapkal,Advocate 2 for Respondent No.1. Mr.DR Kale, AGP for Respondent no.2. ----- CORAM : R.K.DESHPANDE, J. DATE : 14th July, 2010. ORAL JUDGMENT : 1) This writ petition is preferred by the management, challenging the judgment and order dated 21st March, 2009, passed by the Presiding Officer, School Tribunal, Nasik, in Appeal No.JAL/25/2005. By this order, the appeal filed by Respondent No.1/employee has been allowed and the petitioner/management is directed to reinstate the respondent no.1 in service with continuity, but without back wages. 2) Notice in this matter was issued on 26th August, 2010. In response to the same, Shri Jivan Patil, learned Counsel holding for Mr. VD Sapkal, appears. Learned AGP waives notice for Respondent No.2. Learned Counsel for the parties submit that the present matter can be decided at 3 the stage of admission. Hence, Rule made returnable forthwith. The matter is heard finally by consent of the parties. 3) Respondent no.1/employee claims that he was appointed as Clerk in the school run by the petitioner/management by order dated 15.6.2001. According to him, he was appointed on probation for a period of two years in clear and permanent vacancy, however, his services were terminated from the month of June-2006 without issuing any order of termination in writing. He was not permitted to sign the Muster-roll. According to Respondent no.1, he has completed continuous two years’ service and had acquired the status of a `deemed confirmed employee’ in terms of Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter to be referred as MEPS Act). The respondent no.1 further submitted that his termination was without holding an inquiry and hence the same was liable to be set aside. 4 4) The stand of the management, in response to the appeal, was that, Respondent no.1 was never appointed in the school. The order of appointment dated 15.6.2001 has not been disputed. However, it is stated that the said order was issued by the then President of the society in his personal capacity for some ulterior purpose. It was the further stand of the management that there is no order of appointment in Form -D, appended to the MEPS Rules; the appointment of Respondent no. 1/employee was not made by following due procedure of law. It was the further stand taken by the management that if the appointment was without any authority of law and without following procedure, prescribed under the provisions of Section 5 read with Rule 9 of MEPS Rules, then such appointment of Respondent no.1 cannot be treated to be on probation and, therefore, the appointment of respondent no. 1/employee was not legal. 5 5) The Presiding Officer of the School Tribunal framed two points for consideration, viz. 1) Whether the appellant/employee has established that he was appointed as a clerk in the school of respondent-institution by the management on 15.6.2001 ?; and 2) Whether the appellant has established that the management of the institution has illegally terminated his service ? There was no issue framed as to whether the appointment of Respondent No.1 was made in accordance with the provisions of Section 5 r/w Rule 9 of MEPS Rules. Merely because the factum of appointment and working on the post is established, that is not enough to hold that an employee has attained the status of a deemed cofirmed employee. 6) What is required to be established is that the appointment of the respondent no.1 was made by a competent authority after following due procedure, as prescribed under Section 5 read with Rule 9 of the MEPS Rules. The validity of 6 appointment, of course, does not depend upon the approval granted by the Education Officer. The School Tribunal was, therefore, required to frame an issue as to whether the Respondent No. 1/employee has established that his appointment was made in accordance with law by the competent authority. However, this very issue has not been framed by the Tribunal. Therefore, the findings recorded by the Tribunal are of no consequence for granting the relief of reinstatement in service in favour of respondent no.1. The order passed by the School Tribunal cannot be, therefore, sustained. 7) In the result, the instant writ petition is allowed. The Judgment and Order dated 21st March, 2009 passed by the School Tribunal in Appeal No. Jal/25/2005, is hereby quashed and set aside. The matter is remanded back to the School Tribunal for deciding the case on its own merits in accordance with law. The tribunal shall allow the parties to place on record such additional 7 material, as would be available with them, to substantiate their claims. The Tribunal shall decide the appeal within a period of six months from the date of receipt of writ from this Court. Rule made absolute in the aforesaid terms with no order as to costs. sd/- (R.K.DESHPANDE) JUDGE bdv/wp5643.09 Authenticated copy (BD VADNERE,PS)