1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 3379 OF 2009 (Shailendra P. Darda vs. Principal, Abhyankar Girl School and Jr. College & 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, J. NOVEMBER 03, 2009. Heard Shri Mishra, learned counsel for the petitioner, Shri Deshpande, learned counsel for respondents No. 1 to 3 and Shri Fulzele, learned AGP for respondents No. 4 & 5. The contention of Shri Mishra, learned counsel is, at the stage of deciding the application for condonation of delay, merits of the matter could not have been gone into. It is apparent that the employer specifically raised an objection to the maintainability of ULP on the ground of res judicata. The Industrial Court has accepted that ground. The papers show that Division Bench of this Court has considered the controversy on merits and found that selection of the petitioner in service itself was improper. The Division Bench also recorded a finding that the appointment of the petitioner cannot be sustained in the eye of law. It has also been found that name of the petitioner did not appear in the list of project affected persons, which was forwarded for consideration to the employer. In view of these 2 observations, the objection was raised. The learned counsel contends that before the Labour Court, the challenge is to termination and question before the Division Bench was of grant of approval. It is apparent that while considering the question of grant of approval, the Division Bench of this Court has also found that the petitioner did not enter the service validly and, therefore, had no right to post. The reliance has been placed before me on the judgment of the learned Single Judge of this Court in the case of Maharashtra Kamgar Sangharsh Samiti vs. Horizon, the Beach Hotel, reported at 2006 (2) Mh. L.J. 87, particularly placitum A and para 6 only. The reliance is only to show that when the issue of termination was before the Division Bench, the order of Division Bench cannot operate as res judicata. When the entry in service is itself found to be improper, the argument is misconceived. Writ Petition is, therefore, misconceived. It is accordingly dismissed. No costs. JUDGE *GS.