( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 4205 OF 1994 Nirmala d/o. Keshav Salunke, Age : 35 years, Occupation : Service, Assistant Teacher, Madhyamik Vidhyalaya, Undirkhede, Taluka : Parola, District : Jalgaon. .. Petitioner. versus 1. Shri Nageshwar Shikshan Prasarak Mandal, Undirkhede, Taluka : Parola, District : Jalgaon, through its Secretary. 2. The Head Master, Madhyamik Vidyalaya, Undirkhede, Taluka : Parola, District : Jalgaon. 3. The Education Officer (Secondary), Zilla Parishad, Jalgaon. 4. The State of Maharashtra. 5. S.W. Patil, Assistant Teacher (Primary, Madhyamik Vidyalaya), Undirkhede, Taluka : Parola, District : Jalgaon. .. Respondents. ( 2 ) ....................... Mr. S.R. Barlinge, Advocate, for the petitioner. Mr. H.K. Munde, Advocate, for respondent no.1. Mr. K.M. Nagarkar, Advocate, for respondent no.2. Mr. V.D. Rakh, Assistant Government Pleader, for respondent nos.3 and 4. Mr. V.G. Sakolkar, Advocate, for respondent no.5. ........................ W I T H WRIT PETITION NO. 5410 OF 1996 Nirmala w/o. Keshav Salunke, Age : 37 years, Occupation : Service, Assistant Teacher, Madhyamic Vidyalaya, Undirkhede, Taluka : Parola, District : Jalgaon. .. Petitioner. versus 1. Shri Nageshwar Shikshan Prasarak Mandal, Undirkhede, Taluka : Parola, District : Jalgaon, through its President. ( 3 ) 2. The Head Master, Madhyamic Vidyalaya, Undirkhede, Taluka : Parola, District : Jalgaon. 3. The Education Officer (Secondary), Zilla Parishad, Jalgaon. 4. The State of Maharashtra. 5. Sambhaji s/o. Waman Patil, Age : Major, Occupation : Service, Assistant Teacher, Madhyamic Vidyalaya, Undirkhede, Taluka : Parola, District : Jalgaon. 6. The Presiding Officer, School Tribunal, Nashik Region, Nashik. .. Respondents. ............................ Mr. S.R. Barlinge, Advocate, for the petitioner. Mr. H.K. Munde, Advocate, for respondent no.1. Mr. K.M. Nagarkar, Advocate, for respondent no.2. Mr. V.D. Rakh, Assistant Government Pleader, for respondent nos.3 and 4. Mr. S.B. Talekar, Advocate, for respondent no.5. Respondent no.6 served (formal party). ............................ ( 4 ) W I T H WRIT PETITION NO. 907 OF 1997 Shri Nageshwar Shikshan Prasarak Mandal, Undirkhede, Taluka : Parola, District : Jalgaon, Through its Secretary. .. Petitioner. versus 1. The State of Maharashtra. 2. Sambhaji s/o. Waman Patil, at Post : Undirkhede, Taluka : Parola, District : Jalgaon. 3. The Head Master, Madhyamik Vidhayalaya, Undirkhede, Taluka : Parola, District : Jalgaon. 4. The Education Officer (Secondary), Zilla Parishad, Jalgaon, District : Jalgaon. .. Respondents. .............................. Mr. H.K. Munde, Advocate, for the petitioner. Mr. S.B. Talekar, Advocate, for respondent no.2. Mr. K.M. Nagarkar, Advocate, for respondent no.3. Mr. V.D. Rakh, Assistant Government Pleader, for respondent no.4. ****************** ( 5 ) CORAM : B.R. GAVAI & S.V. GANGAPURWALA, JJ. DATE : 26TH JULY 2010 ORAL JUDGMENT (Per B.R. Gavai, J.) : 1. These three petitions arise out of peculiar facts and circumstances. Writ Petition No. 4205/1994 has been filed by the petitioner, claiming for a writ of mandamus or any other writ, directing the respondent no.3, Education Officer, to grant approval to the appointment of the petitioner with effect from the academic year 1991-92 and for arrears of salary. Writ Petition No. 5410/1996 and Writ Petition No. 907/1997 have been filed by the petitioner in Writ Petition No.4205/1994 and the respondent no.1 / management in the said petition, respectively, challenging the judgment and order passed by the learned Member of the School Tribunal, Nasik, dated 26th August 1994, in Appeal No. 17/1993, thereby allowing the appeal filed by the respondent no.5 in Writ Petition No. 4205/1994. 2. Since the issues involved in these three petitions are interlinked with each other, we have heard these three petitions together and dispose of the same by this common judgment and order. 3. For the sake of convenience, parties would be ( 6 ) referred as they are mentioned in Writ Petition No. 4205/1994. The petitioner claims that the petitioner was appointed as an Assistant Teacher, by the respondent no.1, in the respondent no.2 / School, for the academic year 1991-92. According to the petitioner, the petitioner was not possessing B.Ed. qualification at that time, and accordingly, her name was recommended for undergoing B.Ed. training as in service candidate. 4. Mr. S.R. Barlinge, learned Counsel appearing for the petitioner, submits that the Education Officer vide order dated 18th May 1991, had granted approval to the appointment of the petitioner, for the academic session 1991-92, as untrained Teacher, however, with a condition that she would be given appointment in the next year. He submits that not only this, but the Education Officer has also countersigned the application of the petitioner for undergoing B.Ed. training as in service candidate. He submits that accordingly, the petitioner successfully completed her B.Ed. course in the year 1992 and resumed her duties from the academic session 1992. It is, however, submitted that for subsequent years, approval was not granted to the petitioner and according to Mr. Barlinge, in an illegal manner, approval was granted to the appointment of respondent no.5, though he was not at all entitled. According to Mr. Barlinge, the respondent no.5 was only teaching for Standard 5th to 7th, for which there was no recognition. ( 7 ) 5. On the contrary, Mr. S.B. Talekar, learned Counsel appearing for respondent no.5, submits that at the relevant time, during the academic year 1991, the respondent no.5 was the only candidate who possessed B.Ed. qualification and, as such, he ought to have been granted approval. He, however, submits that only in order to accommodate the petitioner, who happens to be wife of the Secretary of the respondent no.1 / management, the respondent no.5 was restrained from attending the classes, which required the respondent no.5 to approach the learned School Tribunal and the learned School Tribunal rightly granted interim relief in favour of respondent no.5 and thereafter, rightly allowed the appeal. He submits that since the petitioner was not qualified on the date of her alleged appointment, there is no merit in Writ Petition No. 5410/1996. 6. Mr. H.K. Munde, learned Counsel appearing for respondent no.1 / management, submits that the petitioner was rightly appointed and was sent for B.Ed. training, as in service candidate, in accordance with law, and that the Education Officer had no authority to grant approval in favour of respondent no.5. 7. As against this, Mr. K.M. Nagarkar, learned Counsel appearing for respondent no.2 / Head Master, submits that the management had illegally continued the petitioner, whereas the ( 8 ) respondent no.5 was the only eligible candidate to have been appointed in the year 1991. He submits that only in order to favour the petitioner, who is wife of Secretary of respondent no. 1 / management, the management had directed him to allot classes of 5th to 7th Standard to respondent no.5, which were unrecognized, and to allot classes of 8th to 10th Standard to the petitioner. He submits that, as a matter of fact, the petitioner was not present for the interview conducted in the year 1991 and it is only respondent no.5 who was eligible to be appointed. 8. In so far as Writ Petition Nos. 5410/1996 and 907/1997, challenging the order passed by the learned School Tribunal, are concerned, Mr. Barlinge and Mr. Munde, learned Counsel appearing for the petitioners, have submitted that the learned School Tribunal had no jurisdiction to entertain the appeal, inasmuch as, the classes to which the appellant was attached, were not recognized and, as such, provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, were not applicable. 9. As against this, Mr. S.B. Talekar, learned Counsel appearing for respondent no.5, submits that the learned School Tribunal has rightly, upon appreciation of material placed before it, allowed the appeal which warrants no interference. ( 9 ) 10. Mr. V.D. Rakh, learned Assistant Government Pleader appearing for the respondent / State, submits that in so far as the Education Officer is concerned, he has acted on the basis of the interim and final orders passed by the learned School Tribunal and, therefore, no error could be found on the part of his action. 11. From the material placed on record, the present case is nothing but an entire mess created as a result of rival claims by the persons seeking patronage either from the management or the Head Master. From the record, it does appear to us, that neither the petitioner nor the respondent no.5 were eligible to be appointed in the year 1991, as both of them have acquired B.Ed. qualification subsequent to their alleged appointments. 12. In so far as the judgment and order passed by the learned School Tribunal is concerned, we find, that the same is not at all sustainable in law. We find that the appellant therein had no cause of action to file an appeal. The appellant had failed to produce any material on record to establish that he was appointed in accordance with provisions of law. In the absence of any appointment letter, on the basis of certain documents, which the appellant filed to claim otherwise termination, we find, that such an appeal was not tenable. The learned School Tribunal, only on the basis of conjunctures and surmises, has allowed the appeal. ( 10 ) 13. It now appears, that an anomalous situation has been created wherein both the petitioner and the respondent no.5 claim to be teaching in respondent no.2 / School. We find, no error, in so far as action taken by the Education Officer, in granting approval to the appointment of respondent no.5, is concerned, inasmuch as, the Education Officer was bound to follow the directions issued by the learned School Tribunal. Both the petitioner and the respondent no.5 are continuously working as Teacher since 1991 i.e. almost 19 years. Not only that, both had acquired necessary qualification immediately in the year 1992 and 1991, respectively. 14. In that view of the matter, in order to work out equities, we had requested the Education Officer to find, as to whether there are vacancies in the schools in Jalgaon District, wherein either the petitioner or the respondent no.5 could be accommodated in the peculiar facts and circumstances of the case. 15. The Education Officer, who is personally present in the Court, informs that in the respondent no.2 / School itself, there is a vacancy of Science Teacher. However, since the petitioner and the respondent no.5 are both from the Arts faculty, they cannot be accommodated in the said post. The Education ( 11 ) Officer further informs that there are vacancies in other schools in Jalgaon District, wherein if the petitioner or the respondent no.5 are declared surplus, could be absorbed in view of Rule 26 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. 16. The respondent no.5 has filed an undertaking, stating therein that he has no objection for being declared surplus and accommodated in any of the schools in Jalgaon District. The undertaking is taken on record and marked as "X" for identification. 17. In the result, the petitions are partly allowed. (i) Though we find, that the judgment and order of the learned School Tribunal, challenged in Writ Petition No. 5410/1996 and Writ Petition No. 907/1997, does not stand to scrutiny of law, we do not interfere with the same due to passage of time. (ii) The petitioner shall be treated to be in an uninterrupted service in respondent no.2 / School, with effect from 1st June 1990, and shall be granted approval with continuity in service. We, however, make it clear that the petitioner shall not be entitled to salary, till date, and she shall be entitled to salary from the month commencing from 1st August 2010. However, while ( 12 ) computing her salary, her date of appointment shall be treated to 1st June 1990. It is further made clear that for all other purposes, the date of appointment of the petitioner shall be treated as 1st June 1990. (iii) The respondent no.5 is directed to be declared as surplus from the establishment of the respondent no.2 and shall be absorbed by the respondent, Education Officer, in any other school, within a period of three months from today. (iv) It is made clear that the vacancy of the Science Teacher in the respondent no.2 / School shall not be permitted to be filled in by the management and the same shall be filled in by the Education Officer by absorbing a suitable candidate from some other school where such a candidate has been declared as surplus. 18. Rule is made absolute in the aforesaid terms. However, parties shall bear their own costs. ( S.V. GANGAPURWALA ) ( B.R. GAVAI ) JUDGE JUDGE ......................... bgp/wp4205etc