WP/3288/2001 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3288 OF 2001 Limbaji Sahadev Bhosale, Decd., Thru’ Sunita Jitendra Padole & Ors. ... Petitioners V/s. The President, Solapur Education Society, Solapur and Ors. ... Respondents Mr. I.M. Khairdi for the Petitioners. None for the Respondents. CORAM : SMT. NISHITA MHATRE, J. DATE : 24 TH SEPTEMBER, 2010. ORAL JUDGMENT : 1. The Writ Petition has been filed by a dismissed Assistant Teacher, i.e. the original petitioner, against an order dated 3rd November, 2000 passed by the School Tribunal, Solapur in Appeal No.5 of 1993. The original petitioner, who is hereinafter referred to as the “teacher”, was employed as an “Assistant Teacher” on 20th June, 1986 with the respondent No.2. His date of birth was 14th September, 1936 and in the normal course he would have retired on 13th September, 1994. However, the respondent No.1-Institution retired the teacher prematurely by way of compulsory retirement on 28th August, 1991. This letter, compulsorily retiring him, was sent by the Chief Officer of the respondent No.1-Institution informing the teacher that in the interest of the School it was WP/3288/2001 necessary to retire him compulsorily at the age of 55 years. Being aggrieved by this order, the teacher approached the School Tribunal by preferring an Appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act (3 of 1978) and Rules, 1981, (for short “the MEPS Act and Rules framed thereunder”), being Appeal No.5 of 1993. The School Tribunal accepted the contention of the respondent No.1-Institution that it had the power to compulsorily retire an employee in view of the Government Resolution dated 9th September, 1988. The School Tribunal found that when the Appeal was being heard and the teacher was brought to the Court, the teacher was suffering from paralysis. The School Tribunal also found that the teacher was mentally and physically unfit and therefore the respondent No.1-Institution had rightly adopted the procedure laid down in the G.R. of 1988 by compulsorily retiring him. The School Tribunal has upheld this order of compulsory retirement. 2. Taking exception to the judgment of the School Tribunal, the present Petition has been filed. During the pendency of the Petition, the teacher has expired and his heirs have been brought on record. WP/3288/2001 3. Mr. Khairdi, the learned Advocate appearing for the petitioners, submitted that the respondent No.1-Institution had no power to compulsorily retire an employee as all actions of the respondent No.1-Institution are governed by the provisions of the MEPS Act and the Rules framed thereunder. He submitted that a Government Resolution could not substitute the provisions of the MEPS Act and the Rules framed thereunder. According to him, even assuming such a resolution had been passed, the concept of compulsory retirement could not be imported to service in a School. Assuming the G.R. was applicable, urged Mr. Khairdi, the procedure laid down in the G.R. has not been followed by the School in as much as the letter compulsorily retiring the teacher was issued by the Chief Officer of the Institution, whereas the G.R. requires it to be signed by the Head Master of the School. He pointed out that notice of three months was not given to the teacher and the opinion of the Institution is not reflected in the order, both conditions being required to be complied under the G.R. 4. Mr. Khairdi relied on the judgment of two learned Single Judges of this Court in the cases of Ramchandra Keshavrao Deo vs. Presiding Officer, School Tribunal, Nagpur & Ors., WP/3288/2001 reported in 2006 (2) Mh.L.J. 862 , and Sukanya Apte & Anr. vs. State of Maharashtra & Ors., reported in 2007 (4) Mh.L.J. 318, in support of his contentions. 5. Nobody appears for the respondents. 6. There can be no doubt that the concept of compulsory retirement finds no place in the provisions of the MEPS Act and the Rules framed thereunder. The concept is alien to the provisions of the MEPS Act and the Rules framed thereunder. The Act and the Rules stipulate the manner in which a person who is permanently employed can be terminated from service. Admittedly, the termination of service of the original petitioner has not been effected in the manner provided under the MEPS Act and Rules framed thereunder. In my opinion, the submission of Mr. Khairdi that the order of the School Tribunal is incorrect must be accepted. It is impermissible to import into the Act the provisions which are available under the Maharashtra Civil Services Rules. A teacher in a private school is not covered by the provisions of the Maharashtra Civil Services Rules. Therefore, the question of retiring a teacher by way of compulsory retirement does not arise. WP/3288/2001 7. In the case of Ramchandra Keshavrao Deo (supra), B.P. Dharmadhikari, J., has held that the Government Resolution dated 9th September, 1988, on which basis the services of the petitioner herein were terminated, cannot override the provisions of Section 4(1) and 6 of the MEPS Act & Rules. A similar view has been taken by A.P. Deshpande, J., in the case of Sukanya Apte & Anr. (supra) . 8. In my opinion, therefore, the School Tribunal has erred in dismissing the Appeal No.5 of 1993 filed by the teacher. Moreover, the observation of the School Tribunal that the teacher was mentally and physically unfit when he was brought into the Court in the year 2000 and therefore had been properly retired compulsorily, is without any basis. The order of compulsory retirement had been issued in the year 1991. The services of the teacher would have automatically come to an end by way of superannuation on 13th September, 1994. Therefore, the condition of the teacher, whether mental or physical in the year 2000 when the School Tribunal observed him is of no relevance. Apart from this, the order does not reflect whether the Tribunal had the expertise to judge the mental and physical ability of a person, while WP/3288/2001 sitting on the dias. In these circumstances, the Writ Petition is allowed. 9. Rule made absolute. 10. No order as to costs. 11. Consequently the Appeal No.5 of 1993 is allowed. The teacher, had he been alive, would have been entitled to reinstatement with continuity of service and full back-wages. Accordingly, the respondent Nos.1 & 2 shall pay the petitioners, i.e. the heirs of the teacher, the back-wages and all other consequential benefits, which the teacher would have been entitled to, till his date of superannuation, i.e. 13th September, 1994, within a period of twelve weeks from today.