1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 5657 OF 2008 Smt Anita wd/o Hiraman Dhirwade Age 26 years, Occ. Service R/o. Hiwara Korda, Tq. Parner District Ahmednagar ...Petitioner Versus 1. Mahatma Phule Jan Jagruti Yuvak Krida Sanskar Mandal, Jamgaon Tq. Parner, District Ahmednagar Through its Administrator Deputy Education Officer (Secondary) Zilla Parishad, Ahmednagar 2. Agriculture Multipurpose High School A. and P. Jamgaon, Tq. Parner District Ahmednagar Through its Head Mistress 3. The Education Officer (Secondary) Zilla Parishad, Ahmednagar 4. Shri Ananda Popat Bhujbal, Age major, Occ. Agriculture, R/o. Jamgaon, Tq. Parner, District Ahmednagar ...Respondents ..... Mr. S.T. Shelke, advocate for the petitioner Mr. A.S. Barlota, advocate for respondent No. 4 Mr. M.L. Dharashive, AGP for respondent Nos. 1 and 3 ..... CORAM: S. S. SHINDE, J. DATED: 17TH AUGUST, 2009 2 JUDGMENT:- 1 Rule. Rule returnable forthwith. With the consent of the learned counsel for the parties, this petition is heard finally at the stage of admission. 2 This petition takes exception to the judgment and order dated 13.1.2006 passed by the Presiding officer, School Tribunal, Solapur in appeal No. 124 of 2005. The background facts, as disclosed in the petition, are as under:- Respondent No.1 is an institution run by respondent No.2 Agriculture Multipurpose High School A. and P. Jamgaon. On 1.3.1996 the husband of the petitioner was appointed by respondent No.1 as a peon. He died on 8.7.2004. On 29.9.2004, the petitioner who belongs to S.T. category came to be appointed by respondent No.2 on compassionate ground on the post of Peon. On 3.11.2004, respondent No.1 forwarded proposal of the petitioner for approval to respondent In3 in prescribed form-III, duly signed by Head Mistress of respondent No.2. It is further case of the petitioner that one Popat Bhujbal who is member of the Trustee of management of respondent No.1 wanted to appoint his son viz. Ananda, respondent No.4 herein, after demise of 3 husband of the petitioner. However, the management was not inclined to appoint the respondent No.4. It is further case of the petitioner that on 19.7.2004, respondent No.4 prepared a fake appointment order in his favour and seal of respondent No.1 under the signature of one Tukaram Aananda Thorat, who claimed to be the General Secretary of respondent No.1. However, the said Mr. Thorat is not a member, much less General Secretary. Respondent No.4 was got his proposal sent to the respondent No.3 for approval. On 22.2.2005, respondent No.3 by his communication informed respondent No.1 that proposal of respondent No.4 cannot be considered. On 6.7.2005 by further communication the office of respondent No.3 also informed the respondent No.4 that the approval cannot be granted to his proposal and responsibility of respondent No. 4 in case of any claim regarding wages. On 16.7.2005, respondent No. 4 filed appeal before the School Tribunal alleging that his services have been orally terminated on 11.7.2005. 3 On 13.1.2006, the petitioner herein has got information that notice issued by the School Tribunal were not served on respondent Nos. 1 to 3 but the report of service was made. The School Tribunal proceeded exparte and allowed the appeal by judgment and order 4 dated 13.1.2006. Respondent No.4 also made statement before the School Tribunal that he has been reinstated in the service on 16.7.2005 pursuant to the interim order. It is further case of the petitioner that respondent No.4 herein after the judgment of the School Tribunal was pronounced pressurized the respondent No.3 to grant approval to his proposal. Respondent No.3 in confused state of mind filed Misc. appeal No. 58 of 2006 for review of the exparte judgment and order dated 13.1.2006 and for restoration of the original appeal No. 124 of 2005. Respondent No.1 herein categorically stated in written statement that respondent No.4 was never appointed. It is further stated that said Shri. Thorat was not member of executive Committee nor was concern with the Trust and stated that appointment order of respondent No.4 is false and fabricated one. Respondent No.4 objected the Misc. appeal for review filed by respondent No.3 on the ground of maintainability and further stated that he belongs to O.B.C. Category and came to be appointed under the special drive of the Government by the respondent No.1 and prayed for dismissal of the Misc. appeal for review filed by respondent No.3. 5 It is specific pleading of the petitioner that respondent No.4 played fraud for procurement of the employment. Respondent No.4 was not eligible for the post as he belongs to O.B.C. whereas the post was reserved for S.T. category. It is further case of the petitioner that petitioner was not party to the judgment at Exh. “G” to this petition and therefore, the said judgment was not binding on the petitioner. Therefore, the petitioner has filed this petition, challenging the judgment and order dated 13.1.2006. In reply to the petition, the State has filed affidavit in reply. 4 Learned counsel appearing for the petitioner submitted that the Tribunal was not justified in passing the exparte judgment and order and without adding the present petitioner as party respondent the impugned judgment and order is passed. It is further submitted that the respondent No.4 by playing fraud has obtained employment. It is further submitted that with the help of his father, respondent No.4 has prepared certain forged documents for appointment and thereby projected himself to be appointed. On the basis of such documents he tried to prevail upon respondent No.3 for grant of approval. It is further argued that the base on which appeal was filed before the Tribunal that there is oral termination of respondent No.4 was untenable. Respondent No.4 has also managed the service report on the respondents and in such way that respondents were not actually 6 served, however, report of completion of service is filed. According to the learned counsel exparte judgment and order of the Tribunal is not sustainable. Learned counsel further submitted that the petitioner belongs to S.T. category and has secured job on compassionate ground. It is further submitted that the post was reserved for S.T. and the petitioner belongs to S.T. category. The petitioner had claimed on the said post on compassionate employment scheme. It is further submitted that even after appointment of the petitioner, the Education Officer has approved the services of the petitioner. Learned counsel further invited my attention to the pleading in the petition in support of his contention and submitted that the School Tribunal was absolutely unjustifiable in exercising the appellate power on the basis of the fake and fabricated documents, which were submitted by respondent No.4. It is further submitted that not only that the Tribunal adjudicated the matter on the basis of the forged and fabricated documents and proceeded to decide the appeal exparte. It is further submitted that respondent institution and Education Officer as well, have supported the case of the petitioner and respondent No.4 has not filed any affidavit in reply in this writ petition and that itself shows that respondent No.4 has no case to put forth before this Court. Learned counsel submitted that the pleading in the petition went un- controverted since no reply is field by respondent No.4, therefore, case of the petitioner requires to be accepted. 7 5 Though, respondent Nos. 1 and 2 are served, none represents them. However, with the assistance of learned counsel for the petitioner, I have perused the Exhibit I at page 34, which was the say filed on behalf of respondent No.1 before the School Tribunal. The narration in the said written statement is in substance supports the case of the petitioner. There is also written statement filed by respondent No.2 at Exh.J. The said written statement in substance, prays for dismissal of the appeal before the Tribunal. Therefore, the stand of respondent Nos.1 and 2 is reflected in their written statement which were filed before the School Tribunal, which unequivocally can be termed prayer for dismissal of the appeal filed by respondent No.4 herein before the Tribunal. The learned counsel for the respondent No. 4 has supported the impugned judgment and order. 6 Learned AGP appearing for the State authorities submitted that claim of the present petitioner on the appointment of compassionate ground was to be considered as per the scheme and therefore, application for review is filed narrating the facts and circumstances of the case which is pending. It is further submitted that respondent No.3 himself filed application for review of the order of the School Tribunal. Learned AGP further submitted that present petitioner is in service in the school and respondent No.4 is not present in the school since then. 8 7 I have heard learned counsel appearing for the petitioner, learned counsel appearing for respondent No.4 and learned AGP for respondent State authority and I have also perused the contents of the written statement filed by respondent Nos. 1 and 2 before the School Tribunal and I am of the considered view that this writ petition deserves to be allowed. 8 On perusal of the judgment of the Tribunal it is apparent that the judgment was exparte without hearing the present petitioner. It is also relevant to mention that respondent No.4 claimed the post on which th petitioner is already working and therefore, it was incumbent upon respondent No.4 to add present petitioner as party respondent before the School Tribunal. Though respondent No.4 did not take steps to add petitioner herein as party respondent, the Tribunal should have directed respondent No.4 to add the petitioner as party respondent. The case of the petitioner that he belongs to S.T. category and the post is reserved for S.T. is required to be accepted. The petitioner was already appointed on compassionate ground and even approval was granted by the Education Officer to her appointment. 9 The Tribunal has framed as many as four points for its determination and the Tribunal recorded the findings that the appointment of respondent No.4 was in accordance with the provisions 9 of Section 5, contrary to the stand taken by respondent Nos. 1 and 2 before the School Tribunal. It is observed in the judgment of the School Tribunal, that respondent No.2 Head Master did not allow respondent No.4 to sign the muster roll and the services of respondent No.4 were orally terminated. The Tribunal did not bother to verify the record and documents on which basis the respondent No.4 is staking his claim for the post which is already occupied by the petitioner herein. It seems that the Tribunal has not referred or adverted the documents carefully in support of its reasoning. It is also pertinent to note that the Tribunal has jumped to the conclusion that there was oral termination of respondent No.4 by respondent Nos. 1 and 2. The findings recorded by the tribunal are not only cryptic but based upon no evidence whatsoever. There is no reference to any documents by the Tribunal while recording its reasonings in support of the judgment. The judgment and order of the Tribunal is not only without referring the documents but cryptic and ignoring the stand taken by the respondent Nos. 1 and 2 in their written statement. The Tribunal should have referred to the record of the institute concern and then only it was permissible to the Tribunal to exercise its jurisdiction. It is not only gross case but with constraint it is to be observed that the Tribunal passed the impugned judgment and order without application of mind and recorded the finding without having been any basis for the said findings. There is no discussion whatsoever as to how respondent No.4 came to be appointed in the light of the stand taken 10 by respondent Nos. 1 and 2 that respondent No.4 is never appointed by them and appointment letter on which respondent No.4 is placing reliance is fake and fabricated document. Mere perusal of the judgment and order of the School Tribunal would show that the order passed by the Tribunal is without any documentary evidence, contrary to the stand taken by respondent Nos.1 and 2. The order is exparte and without adding the petitioner as party to the appeal. The findings recorded by the School Tribunal are contrary to record. Allowing such judgment and order to sustain,would be mockery of the judicial process and therefore, the said judgment and order passed by the School Tribunal is quashed and set aside. One more strong reason to interfere with the impugned judgment and order that respondent No.4 though granted sufficient time by this Court has not filed reply in the petition and that itself indicates that respondent No.4 has no case to oppose the prayer in the petition. 11 In the above circumstances, writ petition is allowed in terms of prayer clause “B” and disposed of. Rule made absolute in the above terms. There shall be no order as to costs. ***** 11