1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3264 OF 2002 Shaikh Ismail S/o Shaikh Haidarsab } Age : 29 Years, Occ. : Nil, } R/o : Malihipperga, Tq. Jalkot, } Dist. Latur. } .... PETITIONER V E R S U S 1. The President } Chhatrapati Shivaji Shikshan } Prasarak Mandal, Bhaswadi, } Biharipur, Tq. : Mukhed, } District Nanded. } 2. The Head Master } The late Manikrao Patil Primary } School, Bhaswadi, Biharipur, } Tq. Mukhed, Dist. Nanded. } 3. The Education Officer (Primary) } Zilla Parishad, Nanded. } .... RESPONDENTS Mr. R.J.Godbole, Advocate for Petitioner. Mr. S.N.Kendre, A.G.P. for State. Mr. A.S.Golegaonkar, Advocate for Respondent nos. 1 & 2. Mr. V.S.Panpatte, Advocate for Respondent no. 3. [ CORAM : S.S.SHINDE, J. ] DATE : 14/10/2009. 2 JUDGMENT : 1. This Writ Petition is directed against the final Judgment and Order of the School Tribunal, Aurangabad dated 14/2/2001 in Appeal No. 17 of 2000. 2. The back-ground facts of the case are as under : The petitioner herein filed Appeal against the termination order before the School Tribunal, Aurangabad. It is the case of the appellant that he was appointed as Assistant Teacher in respondent – school, which was getting grant in aid. He is S.S.C. D.Ed. and was appointed on 1/7/1996 by the Order dated 1/7/1996 and since then he is in continuous service. Respondent no. 3, the Education Officer, Zilla Parishad, Nanded has approved the services of the appellant. However, when as usual he went to attend the duty on 30/11/1999, respondent nos. 1 and 2 told him that he should not come to the school any more. He may treat his service as terminated. The appellant challenged the said Order of termination by way of filing Appeal before the School Tribunal. The School Tribunal, Aurangabad dismissed the Appeal filed by the petitioner. Hence, this Writ Petition. 3. The learned counsel appearing for the petitioner submitted that, there is no proper application of mind by the Presiding Officer, 3 School Tribunal and without appreciating the documents placed on record and contentions raised by the petitioner, the School Tribunal has rejected the Appeal filed by the petitioner. It is further submitted that the petitioner is trend teacher and appointed against clear and permanent vacancy. The petitioner was working as Assistant Teacher for more than 2 years, as such he is deemed to be confirmed employee as per Section 5 (2) of M.E.P.S. Regulations Act, 1977. Therefore, the management has no right to terminate the services of the petitioner without any enquiry as contemplated as per Rules 32 to 37 as per M.E.P.S. Rules, 1981. It is further submitted that the certificate of experience issued by the Head Master, in which Head Master has admitted that the petitioner has worked for more than 2 years satisfactorily, has not been considered by the School Tribunal. The learned counsel further submitted that the School Tribunal has not properly appreciated the documents i.e. appointment order, order granting approval by the Education Officer and experience certificate issued by the Head Master. The learned counsel further submitted that it is the statutory duty of the management to fill up permanent vacancy on probation for the period of 2 years. The learned counsel further submitted that when no Written Statement was filed on behalf of the respondent management before the School Tribunal, the School Tribunal should not have dismissed the Appeal in absence of any counter to the pleadings in the Appeal. Therefore, learned counsel would submit that the impugned order passed by the School Tribunal, 4 can not be sustained. 4. The learned counsel appearing for the respondent nos. 1,2 and 4 submitted that the petitioner herein failed to prove his case before the School Tribunal and, therefore, the School Tribunal has rightly rejected the Appeal filed by the petitioner. According to the learned counsel, the appointment order which was produced on record by the petitioner before the School Tribunal, was not complete document. In fact, condition no. 3 of the said appointment letter mentions that the conditions of the services are annexed with the appointment letter. However, the annexure to the said appointment letter mentioning therein the conditions of the services has not been produced on record by the petitioner before the School Tribunal and the petitioner failed to prove the said document. The learned counsel invited my attention to the approval granted by the Education Officer to the Services of the petitioner and submitted that the Education Officer granted approval for the services of the petitioner from 1/7/1996 to 30/11/1996. The learned counsel submitted that the petitioner was appointed only for that period and thereafter some other candidate is appointed in his place. The learned counsel invited my attention to EXH. ‘ C ’, page no. 21 of the compilation of the petition and submitted that last date of working was 30/11/1996 and thereafter immediately on 1/12/1996 another candidate is appointed, whose name appears in said appointment letter itself. The learned counsel invited my attention 5 to Rule 10 of M.E.P.S. Rules 1981 and contended that there are categories of the employees, some are appointed on permanent basis and some are appointed on non permanent basis. It is further submitted that the appointment order of the petitioner does not mention that he is on probation. The learned counsel further submitted that as per staffing pattern, there are only 4 sanctioned posts including Head Master. There are already 4 teachers, who are appointed and working in the school. The learned counsel further invited my attention to the findings recorded by the School Tribunal and submitted that the School Tribunal after appreciating the documents placed on record as well as submissions made by the parties, has come to the correct conclusion and dismissed Appeal of the petitioner. The learned counsel appearing for the Education Officer (Primary), Zilla Parishad, Nanded has invited my attention to the Order passed by the Education Officer. 5. After hearing the learned counsel for the petitioner and learned counsel for the respondents, I am of the considered view that the matter is required to be remanded back to the School Tribunal, Aurangabad for fresh consideration for following reasons. Firstly, the Presiding officer has not framed any specific points for its determination and without formulating points has disposed of the Appeal. Secondly, the School Tribunal while narrating the facts, has taken note of the experience certificate issued by the Head Master. However, the School Tribunal has not examined the said document and has not given any 6 specific findings about the said document. Therefore, without entering into the merits of the matter and leaving it open to the Presiding Officer, School Tribunal to hear Appeal afresh and decide the same on merits, the impugned Judgment and Order of the School Tribunal is set aside. The School Tribunal to hear the Appeal afresh by formulating the points and decide the controversy involved in said Appeal by giving proper and full opportunity to the respective parties to the Appeal. It will be open for the parties to the Appeal to file documents in support of their case and also to advance arguments before the School Tribunal. It is made clear that this Court has not decided the Appeal on merits and it will be open for the School Tribunal to hear the Appeal afresh on merits and take the decision as expeditiously as possible. The impugned Judgment and Order is set aside. The Writ Petition is partly allowed. The matter is remanded back to the School Tribunal for fresh consideration. Rule is made absolute to the above extent. The Civil Application, if any stands disposed of in view of disposal of main Writ Petition. [ S.S.SHINDE ] JUDGE knp/WP3264.02