(1) WP 7179.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7179 OF 2009 Sharad S/o Shridharrao Deshmukh Age : 38 years, Occu.: Service (At present Nil), R/o. Shilwani, Tq. : Degloor, Dist. Nanded Petitioner VERSUS Kailaswashi Vyankatrao Deshmukh Shilwanikar Shaikshanik and Samajik Sanstha, Shilwani and others Respondents ..... Mr. A.V. Patil, Advocate h/f. Mr. V.D. Gunale, Advocate for the Petitioner. Mr. S.K. Tambe, A.G.P. for the Respondent-State. Mrs. V.A. Deshmukh, Advocate h/f. Mr. V.D. Salunke, Advocate for the respondent no.1 Mrs. Asha S. Rasal, Advocate for the respondent no.5 ..... CORAM : V.R. KINGAONKAR, J. DATED : 12TH JANUARY, 2011 ORAL ORDER:- 1. By this Petition, the petitioner challenges the order rendered by the School Tribunal, whereby it has been held that the appeal preferred by the petitioner was incompetent and that the School Tribunal has no jurisdiction to entertain the appeal. 2. The Petition is taken up for final hearing at the stage of admission by consent of the learned (2) WP 7179.2009 Advocate for the parties and in view of the earlier orders of this Court. 3. The petitioner alleged that he was dismissed from service on 9.4.2009. He was appointed as a school Teacher for primary section to the school run by the respondent no.1. The objection was raised regarding maintainability of the appeal by filing application (Exh.13) by the respondent no.1- management of the school. The learned Presiding Officer of the School Tribunal heard the preliminary objection regarding the maintainability of the appeal. The learned Presiding Officer held that since the school of the respondent no.1 was basic Ashram School and the appointment of the petitioner was to the primary section, the appeal would not lie before the School Tribunal. The objection raised by the respondent no.1 was thus accepted and the appeal was held as incompetent. 4. Heard learned counsel for the parties and learned A.G.P. 5. It is not in dispute that the respondent no.1 was running classes upto 10th standard prior to (3) WP 7179.2009 2009. It is also an admitted fact that for the educational year 2009-2010 the respondent no.1 school was recognized as the secondary school when permission was granted for the students to appear for the examination of 10th standard who had reached that level in the academic year 2008-2009. Thus, the students who had completed their 10th standard course for the educational year 2008-2009 were made eligible due to such declaration made by the respondent no.5 to appear for the annual examination of 10th standard in the month of March-2009. 6. It is not necessary to go into the other questions inasmuch as the only question involved in the Petition is whether the respondent no.1-School is the basic primary section or is a secondary school? The right to prefer an appeal would have accrued to the petitioner only on date of his dismissal i.e. 9.4.2009. What was the juxtaposition regarding the status of the respondent no.1-School as on 9.4.2009, is therefore the relevant criterion to be applied while considering the maintainability of the appeal before the School Tribunal. As stated before, on 9.4.2009, the school was allowed to run classes from (4) WP 7179.2009 1st to 10th standard and the student of 10th standard were allowed to appear for the annual examination of the S.S.C. Board. 7. In "Suryakant Sheshrao Panchal Vs. Vasantrao Naik Vimukta Jati, Bhatakya Jamati Aadarsh Prasarak Mandal and ors. (2002(3) Mh.L.J. 659)" the legal position is duly crystallized. The Full Bench of this Court held that where a ashram school is running classes from 1st to 10th standard then in view of section 2(20) of the M.E.P.S. Act it has to be treated as "Private School". It is observed : "However, an employee working in an Ashram school which is a secondary and higher secondary Ashram school has a right to approach the School Tribunal by filing an appeal under section 9 of the Act against an order of punishment/termination of service or for redressal of grievances enlisted in the said section as they come within the ambit of the term employee as defined under section 2(7) of the said Act." 8. The learned Presiding Officer of the School Tribunal appears to have misconstrued the purport of the Full Bench judgment. The learned Presiding (5) WP 7179.2009 Officer of the School Tribunal appears to have been much influenced by the argument that the appointment of the petitioner was in the primary school and having regard to his initial appointment, the jurisdiction of the School Tribunal could not have been invoked. It is not proper approach in the eye of law. The subsequent developments are required to be taken into account. The school became the secondary school in view of further development that the classes from 7th standard to 10th standard were allowed to be operated and lastly in 2009 the recognition was granted for the secondary school. The petitioner could not have any right to approach the School Tribunal prior to the date of his termination. His right to ventilate the grievances is referable to the order of termination and on that date the jurisdiction of the School Tribunal could be availed by him. Considering these aspects, the impugned order is patently erroneous and unsustainable. 9. In the result, the Petition is allowed. The impugned order is set aside. The appeal is restored to its original position and the parties are directed (6) WP 7179.2009 to appear before the School Tribunal on 7.2.2011. The School Tribunal to expeditiously decide the appeal on merits thereof. No costs. Sd/- [V. R. KINGAONKAR, J.] arp