:1: pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 647 OF 2009 Maratha Yuvak Mandal .. Petitiner Vs. The Education Officer and ors. .. Respondents Mr. Vineet B. Naik i/by Mr. I.M. Khairdi for petitioner. Mrs. J.S. Pawar, AGP for respondent nos.1 to 3. Mr. S.S. Shah for respondent no.4. CORAM: CORAM: CORAM: B.H. MARLAPALLE & D.G. KARNIK,JJ. B.H. MARLAPALLE & D.G. KARNIK,JJ. B.H. MARLAPALLE & D.G. KARNIK,JJ. Date Date Date : January 22, 2009. : January 22, 2009. : January 22, 2009. ORDER: ORDER: ORDER: 1. Heard Mr. Vineet Naik with Mr. Khairdi the learned counsel for the petitioner-societ. 2. Rule. 3. Mrs. Pawar, the learned AGP, waives service for respondent nos.1 to 3. Mr. Shah waives service :2: for respondent no.4. Respondent No.4 has filed affidavit-in-reply. 4. By consent of the parties, petition is taken up for final hearing forthwith. 5. This petition arises from the order dated 5/1/2009 passed by the Education Officer (Secondary), Zilla Parishad, Solapur, thereby setting aside the order of dismissal passed on 25/8/2008 by the petitioner-society against the respondent no.4, who was holding the post of Head Master. 6. The petitioner-society is a Trust registered under the Bombay Public Trust Act, 1950 and runs various educational institutions, including Shri Annasaheb Patil High School and Junior College at Solapur. The Management had issued the order of dismissal dated 25/8/2008. It appears that the respondent no.4 submitted a representation to the Deputy Director of Education, which representation was, in turn, forwarded to the Education Officer for considerations and the Education Officer, in turn, obtained the opinion of the District Government :3: Pleader and passed the impugned order dated 5/1/2009. By the said order, the Education Officer held that the dismissal of respondent no.4 was illegal as the order was passed by a person who was not competent to do so. 7. Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, which reads as under, very clearly provides for a remedy of an appeal against the order of dismissal and the appeal has to be filed before the School Tribunal:- "9.Right of appeal to Tribunal to employees of private school: (1) Notwithstanding anything contained in any law or contract for the time being in force, any employee in a private school,- (a) who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank, by the order passed by the Management; or :4: (b) who is superseded by the Management while making an appointment to any post by promotion. and who is aggrieved, shall have a right of appeal and may appeal against any such order or supersession to the Tribunal constituted under section 8. . Provided that, no such appeal shall lie to the Tribunal in any case where the matter has already been decided by a Court of competent jurisdiction or is pending before such Court, on the appointed date or where the order of dismissal, removal, otherwise termination of service or reduction in rank was passed by the Management in any time before the 1st July, 1976. (2) Such appeal shall be made by the employee to the Tribunal, within thirty days from the date of receipt by him of the order of dismissal, removal, otherwise termination :5: of service or reduction in rank, as the case may be: . Provided that, where such order was made before the appointed date, such appeal may be made within sixty days from the said date. (3) Notwithstanding anything contained in sub-section (2), the Tribunal may entertain an appeal made to it after the expiry of the said period of thirty or sixty days, as the case may be, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within that period. (4) Every appeal shall be accompanied by a fee of Five hundred rupees which shall not be refunded and shall be credited to the Consolidated Fund of the State." 8. When such a statutory remedy was available to the respondent no.4, he preferred to submit a representation and the same was allowed by the :6: Education Officer by setting aside the order of dismissal. The Education Officer thus took up on himself the powers of the School Tribunal under Section 9 of the M.E.P.S. Act, 1977. The adjudication which was required to be done by the School Tribunal was taken over by the Education Officer and thus he acted without jurisdiction. For this sole reason the order impugned in this petition is unsustainable and the only remedy available to the respondent no.4 was to approach the School Tribunal by filing an appeal. The same remedy is available as of now and the respondent no.4 is entitled to reagitate all the issues in support of his contentions that the order of dismissal passed on 25/8/2008 is illegal. 9. Hence, the petition succeeds and the same is hereby allowed. The impugned order dated 5/1/2009 is quashed and set aside with liberty to respondent no.4 to approach the School Tribunal with an appeal under Section 9 of the M.E.P.S. Act and if such an appeal is filed within a period of four weeks from today, we direct the School Tribunal to decide the same on its own merits. On the issue of condonation of delay for filing the appeal, the period of pendency of :7: proceedings before the Education Officer as well as before this court shall be taken into consideration. 10. Rule is made absolute accordingly, with no order as to costs. (D.G. (D.G. (D.G. Karnik,J.) Karnik,J.) Karnik,J.) (B.H. (B.H. (B.H. Marlapalle,J.) Marlapalle,J.) Marlapalle,J.)