1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. LETTERS PATENT APPEAL NO.177 OF 2007 IN WRIT PETITION NO.5870 OF 2005. (KRANTI-JYOTI SAVITRRIBAI FULEY MANDAL. Vs STATE OF MAHARASHTRA & OTH..) _____________________________________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders __________________________________________________________________________________________ ____ Shri Rajeev Madkholkar & S.P.Bhandarkar , Advs. for Appellants. Shri T.R. Kankale, A.G.P. for Respondent No.1 to 3. Shri H.A.Deshpande, Advocate for Respondent No.4. CORAM : K.J.ROHEE AND R.C.CHAVAN, JJ. DATED : FEBRUARY 28, 2008. 1. Heard learned counsel for the parties. 2. In response to the advertisement by the appellant/ management respondent No.4 applied for the post of Primary Assistant Teacher. He was interviewed and was appointed as Primary Assistant Teacher in Ashram School by order dated 07.09.2003. The appointment order shows that his appointment was temporary, but no period was mentioned in the 2 appointment order. The appointment order further shows that the appointment would be governed by the Maharashtra Employees of Private Schools (Conditions of Service) Act and Rules thereunder. The appointment of Respondent No.4 was approved by the concerned authority for the academic session ending April, 2004. 3. The grievance of Respondent No.4 is that he was continued in service even after expiry of academic session ending April, 2004. However, on 24.09.2004 there was oral termination as he was not allowed to sign the muster roll. He, therefore, filed an appeal before the Divisional Social Welfare Officer (Respondent No.2) on 30.11.2004. The Divisional Social Welfare Officer allowed the appeal granting reinstatement of Respondent No.4 without back wages. The said order was challenged by the appellant /management by filing writ petition. The learned Single Judge dismissed the said writ petition. The order of the learned single Judge is under challenge before us. 3 4. It is vehemently contended by the learned counsel for the appellant that the Divisional Social Welfare Officer, not being a Court, cannot invoke powers for condonation of delay under Section 5 of the Limitation Act, as held by a Division Bench of this Court in Pushpa Vs. State of Maharashtra, reported at 2007(5) Mh.L.J. 755. It was further contended by the learned counsel for the appellant that no reasons were given by the Divisional Social Welfare Officer for quashing the alleged oral termination of Respondent No.4. It was further contended by the learned counsel for the appellant that, in fact, no rules govern the services of primary Assistant Teachers serving in Primary Ashram School and statutory rules are yet to be framed. As such, there cannot be any service contract contrary to law. The learned counsel for the appellant, therefore, submits that term No.2 in the appointment order to the effect that the services of respondent No.4 would be governed by MEPS Act and Rules thereunder, 4 cannot bind the appellant. We are unable to find force in these submissions. It may be seen that in paragraph 50 of the judgment reported at (2003) 2 SCC 721 (Bank of India Vs. O.P. Swarnakar) it has been observed by the Apex Court as under : “50. It is difficult to accept the contention raised in the Bar that a contract of employment would not be governed by the Indian Contract Act. A contract of employment is also a subject-matter of contract. Unless governed by a statute or statutory rules the provisions of the Indian Contract Act would be only applicable at the formulation of the contract as also the determination thereof. Subject to certain just exceptions even specific performance of contract by way of a direction for reinstatement of a dismissed employee is also permissible in law.” In view of this position of law the appellant and respondent No.4 were entitled to enter into a 5 service contract in the absence of statutory rules. It is not a case of a contract contrary to any rules or law, but a contract of service in the absence of any legal provision. As such, no fault can be found with the terms of the appointment order. 5. The Divisional Social Welfare Officer has observed in his order that the appointment of Respondent No. 4 was for a specific period, though, in fact, it was not so as no period was mentioned in the appointment order, as pointed out earlier. At the most, it can be said that proper reasons are not given by the Divisional Social Welfare Officer, but ultimately he has come to the proper conclusion. As held by a learned Single Judge of this Court in 2003(3) Mh.L.J. 602 (S.A.R.D.S.P. Mandal Vs. Bhujgonda), whatever might be the reasoning given by the College Tribunal to arrive at the findings about the illegality of the order passed by the management, the conclusion arrived at in the impugned order cannot be found fault with. 6 6. Thus, we find that the impugned order of the learned single Judge is not illegal or perverse. Hence, we are not inclined to entertain the appeal. The Letters Patent Appeal is, therefore, dismissed. JUDGE JUDGE RR.