1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 3622 OF 2010 Nalu Asaram Meshram -: VERSUS :- Anand Shikshan Sanstha and others. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : AUGUST 26, 2010. Heard Shri P.N. Shende, learned Counsel for petitioner/employee, Shri M.P. Khajanchi, learned Counsel for respondent no.1/ Institution and learned A.G.P. for respondent no.3. After hearing the parties and in view of the nature of controversy, service of notice upon respondent no.2 is dispensed with. Shri Shende, learned counsel contends that on 10.02.2010, School Tribunal passed order on preliminary issues as per judgment of this Court in case of Anna Pethe vs. Presiding Officer, School Tribunal, Amravati, reported at 1997 (3) Mh. L.J. 697 and held that the appointment of petitioner was legal and valid. The matter was then heard on merits and in 2 the impugned judgment dated 26.03.2010 the appeal came to be dismissed after observing that the appointment was not legal. His contention is, though judgment of Hon'ble Apex Court reported at V (2001) SLT 27 (Swami Vivekanant Society and others .vrs. Sau. Prerana Vasant Joshi and others), was not applicable, the School Tribunal used it behind the back of the petitioner. The arguments about validity of the appointment were not advanced by any of the parties. Shri Khajanchi, learned counsel states that the question of approval or its rejection by the Education Department is already pending before the Division Bench of this Court at the instance of the petitioner. Without prejudice to it, he invites attention to the impugned judgment to show that the question of correctness or otherwise of the approval or its rejection very much arose at that stage and parties have advanced arguments. He therefore, states that after noticing the binding judgment of the Hon'ble Apex Court, the School Tribunal has found it necessary to reconsider its earlier order. Learned A.G.P. has supported the judgment of the School Tribunal. Perusal of the preliminary order dated 10.02.2010 shows that the judgment of Full Bench of this Court in case of St. Ulai High School and others .vrs. Devendraprasad Jagannathsingh reported at 2007 (1) 3 Mh.L.J. 597 was relied upon and it was concluded that the approval was not sine qua non to decide the issue of validity of the appointment. Accordingly, the appointment of petitioner was held to be legal and valid. It is apparent that the matter proceeded thereafter on merits and hence at the stage of said consideration, the question about legality and validity of the termination only needed to be looked into. The termination could have been upheld after noticing that the entry into service was itself bad or then as there was no approval, continuation in employment was bad. Perusal of the impugned judgment does not show that the employer sought review of the order dated 10.02.2010 in the light of the judgment of Hon'ble Apex Court. The judgment also does not reveal that the School Tribunal was reconsidering its earlier findings. Hence, I find substance in the contention of Shri Shende, learned Counsel that the judgment of Hon'ble Apex Court is used without giving due opportunity to the petitioner in the matter. The judgment as considered by the School Tribunal prima facie show that the School Tribunal [same Presiding Officer] found that the judgment of Hon'ble Full Bench (supra) was not laying the correct law. According to Shri Shende, leaned Counsel the judgment of Hon'ble Apex Court is under Rule 6 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and therefore has got nothing to 4 do with the approval as required in the present matter or it does not touch the aspects looked into by the Hon'ble Full Bench of this Court. I do not find it necessary to record any finding in this respect. As the judgment of Hon'ble Supreme Court has been looked into and relied upon against the petitioner and without any opportunity to him, the petitioner needs to be given an opportunity to address the School Tribunal in this respect. For that purpose, the judgment dated 26.03.2010 in Appeal No, STC-24/2005 by the Presiding Officer, School Tribunal, (Nagpur) Chandrapur is quashed and set aside. The proceedings in the said Appeal are restored back to the file of School Tribunal for taking fresh decision in the matter after giving due opportunity to the parties. The parties to appear before the School Tribunal on 20.09.2010 and the School Tribunal shall hear the parties and attempt to decide the appeal as early as possible and in any case within a further period of four months. Rule is made absolute in the aforesaid terms, with no order as to costs. JUDGE Rgd.