IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4573 OF 2009 WRIT PETITION NO. 4573 OF 2009 WRIT PETITION NO. 4573 OF 2009 Sainath Education Trust & Ors. ...Petitioners vs. Sunita Yadav & Ors. ...Respondents Mr.S.S. Sawant for the Petitioners. Ms.Deepali Patil for Respondent No.1. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : MAY 5, 2009 DATED : MAY 5, 2009 DATED : MAY 5, 2009 P.C. :- P.C. :- P.C. :- 1. Heard Counsel for the petitioners and Counsel for respondent no.1. 2. The petitioner management is challenging the interim order passed by the School Tribunal dated 29th April, 2009 whereby the Presiding Officer, School Tribunal, was pleased to grant stay to the order of termination which was passed by the management dated 31st March, 2009 which was going to take effect from 30th April, 2009. Brief facts in nutshell are as under :- 3. The petitioner no.1 appointed respondent no.1 as - 2 - a Shikshan Sevek for a period of three years and letter of appointment was issued. Thereafter, the petitioner management issued letter of termination and terminated the services of the respondent no.1 with effect from 30th April, 2009. Being aggrieved by the said order of termination, the respondent no.1 filed an appeal under Section 9 of the MEPS Act before the School Tribunal and in the said appeal, an application has been filed seeking stay to the order of termination. The School Tribunal after taking into consideration the submission made by respondent no.1 and the management was pleased to grant stay to the order of termination. Being aggrieved by the said order, the petitioner has preferred this petition under Articles 226 and 227 of the Constitution of India. 4. The learned Counsel for the petitioners, firstly, submitted that the appeal itself was not maintainable under Section 9 of the MEPS Act since the appeal was filed before the order of termination would take effect and as such it was submitted that the remedy of the respondent no.1 was to file a civil suit. In - 3 - support of the said submission, reliance has been placed by the learned Counsel for the petitioner on number of judgments of this court including the judgment of the Full Bench of this Court in the case of St.Ulai High St.Ulai High St.Ulai High School and School and School and Another vs. Devendraprasad Jagannath Singh vs. Devendraprasad Jagannath Singh vs. Devendraprasad Jagannath Singh and Another, reported in 2007 (2) All MR Page 1. and Another, reported in 2007 (2) All MR Page 1. and Another, reported in 2007 (2) All MR Page 1. The learned Counsel also relied on judgment of the Single Judge of this Court in the case of People’s Welfare People’s Welfare People’s Welfare Society, Nagpur vs. Second Labour Court, Nagpur and Society, Nagpur vs. Second Labour Court, Nagpur and Society, Nagpur vs. Second Labour Court, Nagpur and others, reported in 1998(1) Mh.L.J. Page 707. others, reported in 1998(1) Mh.L.J. Page 707. others, reported in 1998(1) Mh.L.J. Page 707. It was then submitted that the respondent no.1 was appointed as a Shikshan Sevak in unaided division and as such her appointment itself was illegal. He invited my attention to the notification issued by the Government which clearly stated that Shikshan Sevak could be appointed only in the aided division of an institution. He submitted that since the appointment itself was illegal, the management was entitled to terminate her services before the expiry of three years and the said termination, therefore, was a termination simplicitor and under these circumstances, the Tribunal was not justified in granting stay to the order of termination. - 4 - Thirdly, it was submitted that the Tribunal erred in granting stay to the order of termination. It was urged that the said order of stay could not have been passed since by virtue of the said order, final relief which was claimed by the respondent no.1 was granted at the interim stage by the School Tribunal. In support of the said submission, he relied on the Division Bench judgment of this court in the case of Maharashtra Maharashtra Maharashtra Shikshan Sanstha, Nagpur vs. Education Officer, Zilla Shikshan Sanstha, Nagpur vs. Education Officer, Zilla Shikshan Sanstha, Nagpur vs. Education Officer, Zilla Parishad, reported in 1995(1) Mh.L.J. Page 875. Parishad, reported in 1995(1) Mh.L.J. Page 875. Parishad, reported in 1995(1) Mh.L.J. Page 875. It was submitted that in a case where an appointment itself was void ab-initio, the management always had a right to terminate the services of the said employee. In support of the said submission, he relied on the judgment of this court in the case of Ashok Asramji Gabhane vs. Ashok Asramji Gabhane vs. Ashok Asramji Gabhane vs. Presiding Officer, School Tribunal, reported in 2002(4) Presiding Officer, School Tribunal, reported in 2002(4) Presiding Officer, School Tribunal, reported in 2002(4) Mh.L.J. Page 225. Mh.L.J. Page 225. Mh.L.J. Page 225. 5. It is not possible to accept the submission made by the Counsel appearing on behalf of the petitioner. In the present case, it is undisputed fact the order of termination has been passed by the management which was - 5 - to take effect from 30th April, 2009. Therefore, in my view, the appeal filed by the respondent no.1 was maintainable before the School Tribunal. The fact that the said letter dated 31st March, 2009 is a letter of termination has not been disputed by the management. Reliance placed, therefore, by the learned Counsel for the petitioner on the judgment of the Full Bench of this Court in the case of St.Ulai High School (supra) St.Ulai High School (supra) St.Ulai High School (supra) and the judgment of the learned Single Judge of this Court in the case of People’s Welfare Society, Nagpur (supra), People’s Welfare Society, Nagpur (supra), People’s Welfare Society, Nagpur (supra), will not be of any assistance. So far as the grant of stay is concerned, the Tribunal has taken into consideration the facts and circumstances of the case and has observed that prima facie case is made out by the respondent no.1 after taking into consideration the material which was brought on record by respondent no.1. The Tribunal has observed that since the order of termination has not taken effect and since the order prima facie appears to be illegal, it has granted stay to the said order. The ratio of the judgment in the case of Maharashtra Shikshan Sanstha, Nagpur (supra), Maharashtra Shikshan Sanstha, Nagpur (supra), Maharashtra Shikshan Sanstha, Nagpur (supra), on which reliance is placed by the petitioner will not - 6 - apply to the facts of the present case. In the said case, the question before the Division Bench was whether mandatory injunction could be granted by the Tribunal at the interlocutory stage and in the said case, the Division Bench observed that such power must be exercised in exceptional cases of extreme hardship and compelling circumstances. In the said case, however, the order of termination already had taken effect and the services of the teacher had been terminated. In the present case, though the order of termination was passed on 31st March, 2009, it was to take effect from 30th April, 2009 and therefore, there was no question of issuing a mandatory order of injunction and the Tribunal, therefore, merely granted stay to the order of termination. So far as other contentions raised by the petitioner regarding the illegality of the order of appointment and other submissions on merits of the case are concerned, all these questions will have to be decided by the Tribunal at the hearing of the appeal. Even the question of jurisdiction of the Court in entertaining the appeal filed by the respondent no.1 herein will also have to be discussed and decided by the - 7 - Tribunal at the hearing of the appeal. Under these circumstances, in my view, no case has been made out for interfering with the order passed by the Tribunal while exercising writ jurisdiction of this Court. 6. Writ Petition, accordingly, is dismissed. The hearing of the appeal is expedited. All contentions raised by both the parties are kept open. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)