1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1423 OF 2002 1. Bhartiya Shikshan Sanstha, N-12, Hudco, Aurangabad, Through it's President Smt. Jyoti Manoharrao Gode, Age 38 years, Occ. Service, r/o Tulshi Arcade, Canought Place, Cidco, Aurangabad. 2.The Headmistress, Rashtramata Indira Gandhi Kanya Vidyalaya, Sillod, District Aurangabad. ..Petitioners Versus 1. Chandrakant Bhikanrao Chautmahal Age 31 years, Occupation Nil, r/o Sillod, District Aurangabad. 2.The Education Officer (Secondary), Zilla Parishad, Aurangabad. ..Respondents ... Advocates appearing for : Petitioners : Shri V.D.Hon, Respondent 1 : Shri S.R.Barlinge - Absent, Respondent 2 : Shri S.N .Kendre, AGP. ... CORAM : S.B.DESHMUKH, J. Dated : 5.1.2010 ORAL JUDGMENT :- 1. Heard respective counsel. 2. This petition was before this Court on 8.4.2002. This Court has 2 issued Rule and recorded appearances of learned Assistant Government and Shri Barlinge, learned Advocate for respondent No.1, who waived the service. This court has also granted interim relief in terms of prayer clause (C). 3. Today, I have heard Shri Hon, learned counsel for the petitioners and Shri Kendre, learned Assistant Government Pleader for respondent No.2. With their assistance, I have gone through the order passed by the Tribunal. Learned Presiding Officer, School Tribunal, in paragraph No. 7 of the judgment, has accepted the contention of the respondent No.1 - Teacher that he was appointed on 1.7.1990. Copy of the appointment order has also been referred to by the School Tribunal. Other documents i.e. copies of the order from Education Officer to Head Mistress dt.26.10.1993 and relieving letter dt.1.11.1993 have also been referred to. It is further observed by the Tribunal that completion of Bachelor of Arts degree by the Teacher is not in dispute. In paragraph No.8 of the order, the Tribunal has referred to the arguments on behalf of the petitioners The Tribunal, ultimately, reached a conclusion that the appellant (teacher) was appointed in view of Section 5(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and his termination is not in consonance with Rules 33 to 37 of the Rules of 1981, framed under the said Act. The contention of the teacher that he was in employment and examined the papers till November 4, 1996 seems to have been accepted by the Tribunal. The Tribunal, thereafter, proceeded to allow the appeal. 3 4. Shri Hon, learned Advocate submitted that the judgment of the Tribunal, apart from other grounds, is not in consonance with law laid down by the Division Bench of this Court in the matter of Anna Manikrao Pethe Vs. Presiding Officer [1997 (3) Mh.L.J. 697]. The learned Division Bench of this Court in the said matter has held that the School Tribunal is duty bound to frame and decide three preliminary issues, namely; (i) whether the school was a recognised school as defined under the M.E.P.S.Act, (ii) whether the appointment of the concerned teacher was made as per section 5 of the a M.E.P.S.Act and the Rules thereunder and (iii) whether such an appointment has been approved by the Education Officer in pursuance of the provisions of the Act as well as the Rules framed thereunder including the Government Resolutions issued from time to time regarding reservations etc. Shri Hon, learned Advocate fairly pointed out the Full Bench judgment of this Court in the matter of St. Ulai High School Vs. Devendraprasad [2007 (1) Mh.L.J. 597]. The learned Full Bench in paragraph No.10.9 has made reference to the judgment in the case of Anna Manikrao (supra). I have seen the observations of the learned Full Bench. The conclusions arrived at by the learned Full Bench have been enlisted in paragraph No.13 of the judgment. The learned Full Bench has clarified that the judgment of the learned Division Bench of this Court in Anna Manikrao's case cannot be approved and/or reflect the correct position in law to the extent that an appeal is not maintainable before the Tribunal at the behest of an employee whose appointment has not been approved. (Emphasis supplied). 4 5. In this view of the matter, I am inclined to quash and set aside the order of School Tribunal and remit the case back to the School Tribunal for disposal in accordance with the provisions of law and in the light of the judgments of this Court and the Supreme Court, if pointed out by the parties. 6. Writ Petition is partly allowed. The order impugned is quashed and set aside. The matter is remitted back to the School Tribunal, Aurangabad to be decided in accordance with the provisions of law and after giving an opportunity of being heard to the parties. 7. In the result, Rule made partly absolute. No order as to costs. (S.B.DESHMUKH,J.) ... akl