1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR LPA NO. 206/2011 IN WRIT PETITION NO. 1698 OF 2001 (Rahul Vikramrao Kamble vs. Ku. Arti Uddharao Ghude & Ors.) AND LPA NO. 207/2011 IN WRIT PETITION NO. 2483 OF 2001 (Rahul Vikramrao Kamble vs. Ravindranath Tagore Shikshan Prasarak Mandal & Ors.) 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 & P.D. KODE, JJ. NOVEMBER 29, 2011. The challenge in both these Letter Patent Appeals is to common order passed by the learned Single Judge on 25.03.2011 in Writ Petition Nos. 1698/2001 and 2483 of 2001. One of the contentions of Shri Parchure, learned counsel for the appellant is that the appropriate finding on preliminary issues as required by the Division Bench of this Court in Anna Pethe vs. Presiding Officer, School Tribunal, Amravati , 1997 (3) Mh. L.J. 697, have not been recorded. He contends that though there was a clear and permanent vacancy and though the appellant has put in continuous service as Laboratory Attendant for more than 3½ years, instead of extending him benefit of deemed permanency, the services came to be terminated. It is urged that Respondent No. 1 - Arti has been appointed against the vacancy caused by removal of the appellant. 2 Shri Dangore, learned counsel for respondent No. 1, Shri Patil, learned counsel for respondents No. 4 & 5 and Shri Ahirkar, learned AGP for respondents No. 2 & 6 are opposing the appeals. Shri Patil, learned counsel is heavily relying upon the findings recorded by the learned Single Judge, which show that the appellant was appointed for limited period on various posts. His contention is, thus the appellant never occupied only one post and did not work on only one job continuously as alleged. He is relying upon the judgment of the Hon'ble Apex Court in the case of Hindustan Education Society vs. Sk. Kaleem Sk. Gulam Nabi, reported at AIR 1997 SC 2126, to urge that such temporary appointment does not confer any right to claim benefit of Section 5 of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977, (hereinafter referred to as the MEPS Act) upon the appellant. He has further invited attention to later judgment of the Hon'ble Apex Court in the case of Bharatiya Gramin Punarrachana Sanstha vs. Vijay Kumar, reported at 2003(1) Mh.L.J. 563, particularly para 8 for the very same purpose. In the alternative and without prejudice, he has contended that it was obligatory for the appellant to raise appropriate pleadings before the School Tribunal demonstrating his right to post and, therefore, right to invoke provision of deemed permanency. He contends that as that has not been done, the judgment passed by 3 the School Tribunal cannot be said to be vitiated and the order passed by the School Tribunal does not call for any interference. He has also stated that as at the relevant time there was no staff sanction and strength fixed, the appellant was required to be appointed on different works on different posts for fixed duration. The judgment of Division Bench of this Court in Anna Pethe vs. Presiding Officer, School Tribunal, Amravati, (supra) particularly para 15 casts obligation upon the School Tribunal to frame three preliminary issues when employee approaches it with a grievance about termination. The first issue is whether the school was a recognized school as defined under the MEPS Act; Second one is, whether the appointment of the concerned teacher was made as per Section 5 of the MEPS Act and the last issue is whether such an appointment has been approved by the Education Officer. This last issued is found not necessary in the case of St. Ulai High School vs. Devendraprasad, reported at 2007 (1) Mh. L.J. 597, (FB). The judgment in the case of Anna Pethe vs. Presiding Officer, School Tribunal, Amravati, (supra) is again approved by the Division Bench of this Court in the case of Priyadarshini Education Trust vs. Ratis Bano, reported at 2007 (6) Mh. L.J. 667. These developments, therefore, clearly show an obligation cast upon the School Tribunal before proceeding to grant relief. The School Tribunal accordingly are passing two orders in the same matter, 4 the first order is always on preliminary point and thereafter on merits. Here, that procedure has not been followed. We do not find any specific conclusion by the School Tribunal about the nature of post on which the appellant was appointed or then about the nature of work then available. The learned Single Judge has noticed this and remarked that the School Tribunal has failed to consider whether there was a clear and permanent vacancy in the post of Laboratory Attendant at the relevant time in 1987. It has also been noted that from memo of appeal, as filed by the appellant before the School Tribunal, it was apparent that after 01.11.1987 till his termination on 08.05.1991, he worked on different posts and he was working as Clerk from 10.05.1990. If the School Tribunal did not record finding on these jurisdictional facts, matter needed to be sent back to it. As we find that the School Tribunal has not recoded appropriate findings before embarking upon the enquiry, the cognizance taken by it stands vitiated. It has to frame preliminary issues to find out whether the employee was appointed in a School which was duly recognized and whether his appointment is in accordance with the provisions of Section 5 of the MEPS Act, or not. Without framing such issues and determining the same, the School Tribunal could not have proceeded further to adjudicate the validity or 5 otherwise of termination. In that view of the matter, we find the order of learned Single Judge accepting the grievance as made in respective writ petitions by present Respondents No. 4 & 5 and present Respondent 1, correct. However, the matter is being sent back to School Tribunal for framing appropriate preliminary issues and for extending parties appropriate opportunity. Accordingly, we direct the remand of the matter to the School Tribunal. The appeal filed by present appellant vide Appeal No. 89 of 1991 is restored to the file of Respondent No. 6 – Tribunal for taking fresh decision in the matter in accordance with law. Respondent No. 6 shall attempt to take fresh decision in accordance with law laid down above in Anna Pethe vs. Presiding Officer, School Tribunal, Amravati, (supra), within a period of four months after the parties appear before it. Needless to mention that all contentions raised by the parties are left open and the School Tribunal has to evaluate the same independently in accordance with law. Impugned judgment of learned Single Judge is modified only to that extent. Letter Patent Appeals are thus partly allowed. However, in the facts and circumstances of the case, there shall be no order as to costs. JUDGE JUDGE *GS.