1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CIVIL APPLICCATION NO. 1838/2009 IN WRIT PETITION NO. 761/2008 Shri Vijay @ Vinod Bodakhe ..vs. Raje Dharamrao Shikshan Mandal and others AND CIVIL APPLICCATION NO. 1839/2009 IN WRIT PETITION NO. 960/2008 Smt. Sunand Vijay @ Vinod Bodakhe ..vs. Raje Dharamrao Shikshan Mandal and others - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri P.B.Patil, Advoate, for the applicants Shri R.B.Dhore, Advocate for R-1 & 2 Shri Khubalkar, AGP, for R-3 Shri Fulzele, AGP, for R-4 CORAM : B.P.DHARMADHIKARI, J. DATE : NOVEMBER 30 , 2009 . The civil applications are for final disposal of writ petition by placing reliance upon the judgment dated 9th July, 2009 of the Division Bench of this Court in L.P.A. No. 64 of 2009 in W.P. 2132/07. It appears that the applications were listed before this Court on 7th October, 2009, and Advocate Dhore, appearing for Respondent No.1 then made a 2 statement that he would be issuing the notice to respondents for withdrawal of his Vakalatnama and accordingly two weeks time was given to him. Therafter the matter was listed on 6th November, 2009 and on that day nobody appears for management but then a chance was given to the management and matter was accordingly adjourned to 23.11.2009. On 23.11.2009, after hearing for some time, the matter was adjourned to today. On 23.11.2009 and 30.11.2009 Advocate Shri Dhoe has appeared before this Court as his Vakalatnama was not withdrawn. I have heard Advocate Shri P.B.Patil, learned counsel for both the applicants/employees, learned AGPs for Respondent Nos. 3 & 4 in both the matters. The short question is whether merely because appointment order is not signed by Headmaster of the school, the appointment can be said to be vitiated and relief of reinstatement can be declined. Advocate Patil states that it was never the case of the management that petitioners/applicants (who are husband and wife) were not working in the school at all. He points out that in the first round of litigation challenging the termination w.e.f. 1.5.1993, the School Tribunal allowed the appeal on 23.08.2003 and grated the petitioners’ relief of reinstatement with continuity and back-wages. The matter was remanded back 3 because of orders of this Court in writ petitions and after that remand, preliminary issues were decided on 22nd August, 2007 holding that school was recognized and appointment of respective employee was in accordance with Section 5 of M.E.P.S. Act and Rules framed thereunder. However, while deciding the appeals on merits, in final judgment delivered in both the matters on 31st August, 2001, the School Tribunal has found that appointment orders of the appellants before it were not signed by the Headmaster. The School Tribunal, therefore, relied upon the judgment of this Court reported in 2002 (4) Mh.L.J. 225; Ashok Gabhne vs. P.O. School Tribunal, Nagpur, and dismissed the appeal. Advocate Patil contends that the said judgment of learned Single Judge is no longer good law in view of the judgment of the Division Bench dated 9th July, 2009 in L.P.A. 64/2009. He, therefore, states that application should be allowed. Respective learned AGPs opposed the request and they states that the Division Bench has not laid down any law as such. According to them, when appointment order is not signed by the competent authority, the appointment of the petitioners cannot be 4 premised to be legal and valid. The perusal of judgment dated 9th July, 2009, reveals that there also the appointment order was not signed by the Head Master and it was signed by Secretary of the Management. The Division Bench has noticed that not signing of appointment order by Head Master or its signing by a Secretary of the Management is not a grave error to vitiate the appointment itself. It was noticed that there is a resolution of Management for appointment of said appellant and accordingly that appointment order was signed by the Secretary. It is also noticed that it was acted upon. In facts before me, the School Tribunal has found that the management did not appointment the present petitioners. The appointment orders issued to this petitioners is signed by nobody else but the President of the Society. That appointment order has been acted upon and the teachers have continued to work from 15.7.1989 and 1.4.1993 respectively. The management also did not come up with the case that some body else was appointment and petitioners were unauthorized persons not selected by it. I, therefore, find that the issue is squarely 5 covered by the judgment dated 9th July, 2009 delivered in L.P.A. 64/2009. I heard Advocate Patil on back-wages. In appeal filed before the School Tribunal there was no plea about absence of gainful employment. In spite of that in first order dated 28.8.2003, the School Tribunal granted relief of arrears of emoluments from 1.5.1993 till reinstatement. Thereafter the matter was remanded back. Again after remand, there was no amendment to appeal memo and no affidavit was filed about absence of gainful employment. However, in the present petition, for the first time, in paragraph 10, it has been alleged that the petitioners are not having any source of income or livelihood except to do the labour work and therefore, they ae entitled to full backwages. This averment has come on record on 16.1.2008 for the first time and has not been traversed by the management i.e. respondent Nos. 1 and 2. In these circumstances, as the averment has come belatedly on record, the petitioners are reinstated with continuity and 40% backwages. The order of termination dated 1.5.1993 issued to both the petitioners is accordingly quashed and set 6 aside. They are reinstated back in service with continuity and 40% back wages as mentioned above. Order accordingly. The petitioners ae entitled to cost of Rs.2,000/-each from the respondent Nos. 1 & 2 in the matter. Applications as well as writ petitions disposed of accordingly. JUDGE Rvjalit