( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 10972 OF 2010 WITH WRIT PETITION NO. 10983 OF 2010 WITH WRIT PETITION NO. 10984 OF 2010 WITH WRIT PETITION NO. 10985 OF 2010 WRIT PETITION NO. 10972 OF 2010 Arun s/o. Rajdhar Patil, Age : 57 years, Occupation : Service, .. Petitioner Head Master, (Original S.M.P.R. Patil Vidyalaya and respondent no.2) Junior College, Borvihir, Taluka and District : Dhule. versus 1. The Education Officer (Secondary), Zilla Parishad, Dhule, District : Dhule. 2. Nitin s/o. Kisan Borse, Age : 34 years, Occupation : Agriculture, R/o. Borvihir, Taluka and District : Dhule. ( 2 ) 3. Borvihir Vidya Prasarak Sanstha, .. Respondents Borvihir, (No.1 - Original Taluka and District : Dhule, respondent no.3, Through its President. No.2 - Original appellant & No.3 - Original respondent no.1) ....................... WRIT PETITION NO. 10983 OF 2010 Arun s/o. Rajdhar Patil, Age : 57 years, Occupation : Service, Head Master, S.M.P.R. Patil Vidyalaya and .. Petitioner Junior College, Borvihir, (Original respondent Taluka and District : Dhule. no.2) versus 1. The Education Officer (Secondary), Zilla Parishad, Dhule, District : Dhule. 2. Sandip s/o. Pralhad Khairnar, Age : 33 years, Occupation : Agriculture, R/o. Borvihir, Taluka and District : Dhule. ( 3 ) 3. Borvihir Vidya Prasarak Sanstha, .. Respondents Borvihir, (No.1 - Original Taluka and District : Dhule, respondent no.3, Through its President. No.2 - Original appellant & No.3 - Original respondent no.1) ........................ WRIT PETITION NO. 10984 OF 2010 Arun s/o. Rajdhar Patil, Age : 57 years, Occupation : Service, Head Master, S.M.P.R. Patil Vidyalaya and .. Petitioner Junior College, Borvihir, (Original respondent Taluka and District : Dhule. no.2) versus 1. The Education Officer (Secondary), Zilla Parishad, Dhule, District : Dhule. 2. Chandrashekhar s/o. Gorakh Kadam, Age : 29 years, Occupation : Agriculture, R/o. Borvihir, Taluka and District : Dhule. ( 4 ) 3. Borvihir Vidya Prasarak Sanstha, .. Respondents Borvihir, (No.1 - Original Taluka and District : Dhule, respondent no.3, Through its President. No.2 - Original appellant & No.3 - Original respondent no.1) ........................ WRIT PETITION NO. 10985 OF 2010 Arun s/o. Rajdhar Patil, Age : 57 years, Occupation : Service, Head Master, S.M.P.R. Patil Vidyalaya and .. Petitioner Junior College, Borvihir, (Original respondent Taluka and District : Dhule. no.2) versus 1. The Deputy Director of Education, Nasik Region, Nasik, District : Nasik. 2. Pankaj s/o. Shivaji Sonwane, Age : 29 years, Occupation : Agriculture, R/o. Borvihir, Taluka and District : Dhule. ( 5 ) 3. Borvihir Vidya Prasarak Sanstha, .. Respondents Borvihir, (No.1 - Original Taluka and District : Dhule, respondent no.3, Through its President. No.2 - Original appellant & No.3 - Original respondent no.1) ........................ Mr. V.D. Hon, Advocate, for petitioner in all four petitions. Mr. S.K. Tambe, Assistant Government Pleader, for respondent no.1 in all four petitions. Mr. S.P. Brahme, Advocate, for respective respondent no.2 / caveators in all four petitions. Mr. M.S. Deshmukh, Advocate, for respondent no.3 in all four petitions. ************** CORAM : B.P. DHARMADHIKARI, J. DATE : 17TH FEBRUARY 2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. ( 6 ) 2. In all these four petitions, the Head Master of a school run by respondent no.3 / Institution is seeking quashing of the identical judgments delivered on 28-10-2010, by the Presiding Officer of School Tribunal, Nashik, in four appeals registered as Appeal Nos. 25/2010, 24/2010, 26/2010 and 27/2010. The appeals have been disposed of after recording a compromise between respective employees and the management. The contention of the petitioner is, though he was party before School Tribunal and had not accepted the compromise, the appeals are disposed of. 3. I have heard Adv. Mr. Hon, for the petitioner / Head Master; AGP Mr. Tambe, for respondent no.1; Adv. Mr. Brahme, for respective employees (respondent no.2 in W.Ps.), and Adv. Mr. M.S. Deshmukh, for respondent / management. Adv. Mr. Shrikant Patil has filed intervention in favour of the petitioner. He is also heard. 4. Adv. Mr. Hon contends that the recruitment of respective respondent no.2 is not in accordance with law and without framing preliminary issues as required by Division Bench judgment of this Court reported at 1997(3) Mh.L.J. 697, in the case of Anna Manikrao Pethe Vs. Presiding Officer, School Tribunal, Amravati and Aurangabad Division, Amravati, ( 7 ) and others, the School Tribunal has proceeded further with adjudication. He further contends that there is dispute between management and the succeeding management has filed compromise Pursis which has resulted in back door recruitment and its regularization. He is relying upon Constitution Bench judgment of Hon. Apex Court reported at AIR 2006 SC 1806, in the case of Secretary, State of Karnataka and others Vs. Uma Devi and others. 5. While meeting preliminary objection about the absence of locus of the petitioner to approach this Court, he seeks to rely upon judgment of Hon. Apex Court reported at AIR 1994 SC 1673, in the case of Ramchandra Ganpat Shinde and another Vs. State of Maharashtra and others, with contention that whenever there is fraud or malpractice, the same can be assailed in any proceedings and by any party. Adv. Mr. Hon states that as the School Tribunal has refused to exercise jurisdiction in accordance with law, the matter needs to be sent back to the School Tribunal for giving due opportunity of hearing to the petitioner. 6. Learned AGP Mr. Tambe, for respondent no.1 / Education Officer, has invited attention to reply affidavit, particularly paragraphs 4 and 5, to urge that recruitment ( 8 ) undertaken was not proper and hence approval to appointment of respective respondent no.2 has been rejected. 7. Adv. Shrikant Patil, who has filed intervention applications, has adopted arguments of Adv. Hon. 8. Adv. Mr. Brahme, for respective respondent no.2, has urged that the School Tribunal was very much alive to Division Bench judgment of this Court in the case of Anna Manikrao Pethe Vs. Presiding Officer, School Tribunal, Amravati and Aurangabad Division, Amravati, and others (supra) and, therefore, applied its mind to that aspect. He points out that the School Tribunal has found that the recruitment of respective respondent no.2 is after advertisement and after proper interview and selection. 9. He further states that the petitions, as filed, are by one Arun s/o. Rajdhar Patil and this person was not party before the School Tribunal. He contends that the respondent before the School Tribunal was not a particular person but an office and the person holding that office cannot approach this Court in the absence of proper authorization from management. According to him, the petitions, as filed, are not in capacity as a Head Master but in his individual capacity by the said Arun s/o. ( 9 ) Rajdhar Patil. He is relying upon judgment of Hon. Apex Court reported at AIR 1976 SC 578, in the case of Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and others, and particularly paragraphs 36 and 48, to urge that as the petitioner lacks locus, his petitions should not be entertained. 10. Adv. Mr. M.S. Deshmukh, for respondent no.3, has adopted the same line of arguments. In addition, he points out that respondent no.3 / management has accepted the compromise, has permitted respective respondent no.2 to join and has not authorized its Head Master to file any petition before this Court. He, therefore, states that the petitions are liable to be dismissed. 11. After hearing respective Counsel, I find that the compromise Pursis, as recorded by the School Tribunal, does not show any consent of respondent no.2 before the School Tribunal, namely, Head Master. The respondent no.2 before the School Tribunal is Head Master of the school of respondent no.3 at Borvihir (Taluka & District : Dhule) and Mr. Arun s/o. Rajdhar Patil was holding that post at the relevant time. He was holding that post till the present management of respondent no.3 transferred him to its other school in the vicinity. The facts, therefore, show that compromise was between respective ( 10 ) respondent no.2 / employee and management and the respondent no.2 before the School Tribunal has not accepted it. 12. The judgment of Division Bench of this Court, in the case of Anna Manikrao Pethe Vs. Presiding Officer, School Tribunal, Amravati and Aurangabad Division, Amravati, and others (supra) requires School Tribunal to record a finding that appellant before it had entered the service in accordance with law. The School Tribunal has only found that there was advertisement and in response to that advertisement, appellants before it came to be selected. The respondent no.1 / Education Officer has filed reply in Writ Petition Nos. 10972/2010, 10983/2010 and 10984/2010. The respondent no.2 / employee in Writ Petition No. 10985/2010, whose appeal before the School Tribunal was registered as Appeal No. 27/2010, is reported to be working in Junior College and hence subject to approval from the office of Deputy Director of Education. The Education Officer has stated in his reply, that approval to appointment of concerned employee has been rejected by his office on the ground that papers were incomplete and the same was communicated to the respondent no.3 / management vide order dated 3-11-2010. The respondents have urged that proposal was forwarded on 3-11-2009 and after the impugned judgment of School Tribunal dated 28th October 2010, the ( 11 ) Education Officer is shown to have rejected it. The affidavit of Education Officer in paragraph 4 also discloses that according to his office, while appointing respective respondent no.2, procedure for recruitment was not followed. 13. The salary for the post against which respective respondent no.2 are reinstated by respondent no.3, is paid out of public funds. The Division Bench of this Court, in the case of Anna Manikrao Pethe Vs. Presiding Officer, School Tribunal, Amravati and Aurangabad Division, Amravati, and others (supra), therefore, mandates School Tribunal to frame preliminary issues and to record findings against it. Here, the School Tribunal has not expressly framed any such issue. 14. The question, therefore, is whether the entry into service of respective respondent no.2 is in accordance with the provisions of Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1978, or not. In view of the objection raised by the Education Officer and rejection of approval by him, it is apparent that the said issue ought to have been gone into by the School Tribunal. In the absence of any specific challenge before it, the School Tribunal has not recorded any specific finding in this respect. It felt satisfied only because of issuance of advertisement and ( 12 ) interviews conducted in response thereto. 15. In view of this material apparent on record, I do not find it necessary to consider the objection of respondent nos.2 and 3 to the locus of the present petitioner. During the course of arguments, Adv. Mr. M.S. Deshmukh, for respondent no.3, fairly agreed that the respondent no.3 / management had no objection if the validity or otherwise of recruitment of respective respondent no.2 is looked into by the School Tribunal. 16. In view of this position, it is in the public interest that the validity of said recruitment is properly looked into by the School Tribunal. However, it also cannot be ignored that the rejection to the approval of respective respondent no.2 has come after adjudication of appeals by the School Tribunal and at the relevant time, School Tribunal was not required to go into these details. The respondent no.3 / management has permitted respective respondent no.2 to join duties and accordingly presently they are discharging the same. I, therefore, do not find it necessary to disturb their working as such, though the matter is being sent back to the School Tribunal. 17. In the result, the petitions are partly allowed. ( 13 ) (i) The impugned judgment and orders dated 28-10-2010, passed by the Presiding Officer of School Tribunal, Nashik, in Appeal Nos. 25/2010, 24/2010, 26/2010 and 27/2010, are quashed and set aside only to enable the School Tribunal to find out whether recruitment of respective respondent no.2 / employees is in accordance with law or not and the matters are sent back to the School Tribunal. (ii) The School Tribunal shall re-hear the parties on the question of validity or otherwise of recruitment and thereafter shall decide the appeals afresh in accordance with law, as early as possible and in any case, by 30th June 2011. (iii) Needless to mention, that parties are at liberty to produce documents, if any, if they are so advised, before the School Tribunal. It is also made clear that respondent no.3 shall continue respective respondent no.2 / employees on duty during the pendency of appeals. (iv) The final adjudication of appeals by the School Tribunal shall decide the fate of further continuation of respective respondent no.2 in service of respondent no.3. ( 14 ) 18. Rule made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp10972etc