1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1966 OF 2010. Shri Mukhaliram Mahadeo Borkar -: VERSUS :- Pragatic Shikshan Sanstha and others. 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. DATED : NOVEMBER 25, 2010. Heard Shri P.N. Shende, learned Counsel for petitioner, Shri A. Parchure, with Shri R.M. Sharma, learned Counsel for respondent nos. 1 to 3 and learned Assistant Government Pleader for respondent no.4. This Court has issued notice for final disposal, and accordingly I have heard the parties. Rule is made returnable and petition is heard finally by consent of parties. Learned Counsel for petitioner-employee submits that petitioner has worked as Assistant Teacher from 1989 till 2003 and that he was dismissed after 2 holding a departmental inquiry. The petitioner did not plead anything about the advertisement issued at the time of his recruitment and management also did not point out that his entry into service was illegal. According to the learned Counsel, the mode and manner of recruitment of petitioner was not in dispute at all before the School Tribunal. He further states that after dismissal of the appeal by the School Tribunal on the ground that his entry is not in accordance with provisions of Section 5 of the Maharashtra Employees of Private Schools (conditions of Services) Regulation Act, the petitioner has obtained certain information under Right to Information Act and the information gathered shows that the management had obtained prior approval from respondent no.4 Education Officer. A copy of the advertisement then published is not available with the education officer. According to the learned Counsel, after having obtained approval for effecting recruitment and considering the fact that the petitioner had put in about 14 years of continuous service, inference of his entry not being in accordance with law automatically falls. In the alternative the learned Counsel states that the liberty should be given to the petitioner to plead 3 and prove the appropriate facts in this respect. Learned Counsel for respondent nos. 1 to 3 invites attention to the judgment of Hon'ble Apex Court reported at 1997 [3] Mh.L.J. 697 (Anna Manikrao Pethe .vrs. Presiding Officer, School Tribunal and others) to urge that the obligation is upon the Tribunal to frame preliminary issue and to adjudicate about the validity or otherwise of the entry into service of the appellant before it. The raising or not raising of any objection by the employer in this respect is not decisive. The petitioners cannot be permitted to cure the lacunae. Learned A.G.P. is also supporting the impugned order. During arguments, it has transpired that the respondent nos. 1 to 3 no where pleaded before the School Tribunal that the petitioner was recruited without following procedure prescribed under Section 5 of the Act. Even when the School Tribunal took the preliminary issue for adjudication, the management did not raise any such grievance. The School Tribunal has found that there is no pleading and no advertisement on record, and hence while answering the preliminary issue on 06.11.2009 recorded a finding against the petitioner/appellant and dismissed his appeal. In view of this position and in the light of the material gathered by the petitioner as also looking to the 4 long service put in by him, I find it appropriate to give petitioner an opportunity to place relevant material before the School Tribunal for its consideration. The management also in that even gets opportunity to rebut that material. Only for that purpose, and without answering the disputed questions either way, the impugned order dated 06.11.2009 passed by the School Tribunal in Appeal No. STC 3/2004 is quashed and set aside. The petitioner as also the respondent nos. 1 to 3 are given opportunity to amend the pleadings, if they are so advised. The School Tribunal at Chandrapur shall thereafter hear the parties on preliminary issue afresh and pass appropriate orders in this respect. The orders shall be passed as early as possible and in any case within a period of 6 months from the date the parties appear before it. The parties are directed to appear before the School Tribunal on 15.12.2010 and abide by its further instructions in the matter. Writ Petition is allowed. Rule is made absolute in the aforesaid terms, with no order as to costs. JUDGE Rgd.