1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4347 OF 2001 with CIVIL APPLICATION NO.2467/2010 Kusheb s/o Purbhaji Jadhav Age: 34 Yrs., occu. Head Master, Yeshwant Madhyamik Vidyalaya, Nanded, r/o Maganpura, Nanded. - PETITIONER VERSUS 1) The State of Maharashtra. 2) President, Yeshwant Madhyamik Vidyalaya, Yeshwant Education Society, Air Port Road, Nanded. 3) The Education Officer (Secondary), Zilla Parishad, Nanded. - RESPONDENTS ***** Mr.RJ Godbole,Advocate for Petitioner; Mr.DR Kale,AGP for Respondent Nos.1 & 3; Mr.VD Gunale and Mr.YS Choudhari, Advocates for Respondent no.2. 2 ----- CORAM : R.K.DESHPANDE, J. DATE : 14th July, 2010. ORAL JUDGMENT : 1) This writ petition challenges the judgment and order dated 15th February, 2010 passed by the Presiding Officer, School Tribunal, Aurangabad, dismissing the Appeal No.247/1997 filed by the present petitioner, challenging his termination from service as an Assistant Teacher. 2) The petitioner claims that he was appointed as an Assistant Teacher on 12.6.1989. He was sent for completion of B.Ed. course at the instant of school management, as he was untrained teacher. According to him, the petitioner was also appointed as In-charge Headmaster on 11.6.1990. The petitioner submits that he was continuously working on the post of Assistant teacher till issuance of notice of retrenchment dated 22.4.1996 by the management which was 3 published in the newspaper. The petitioner challenged his so-called termination effected from 10.12.1997 by filing an appeal being Appeal No.247/1997 before the School Tribunal, Aurangabad. 3) The respondent/management appeared before the School Tribunal in response to the notice. They have denied that the petitioner was appointed by following prescribed procedure. They have denied that the petitioner was appointed in clear and permanent vacancy and that he was terminated from service on 10.12.1997. The respondent/management urged that the appeal filed by the petitioner be dismissed. 4) The School Tribunal by its judgment and order dated 15th February, 2001 dismissed the appeal filed by the petitioner, holding that the petitioner has failed to prove that he was working for more than two years. The petitioner failed to produce an order of appointment and 4 that there was no order of approval to his appointment. On these findings, the Tribunal dismissed the appeal filed by the petitioner. The said judgment and order of the school Tribunal is the subject matter of challenge in the instant writ petition. 5) The learned Counsel appearing for the parties have pointed out that the Education Officer (Secondary) Zilla Parishad, Nanded had issued communication dated 14.5.1996, stating therein that by order dated 22.3.1996, the recognition of the school in which the petitioner was appointed, was withdrawn at the end of the academic year 1995-1996. They have further pointed out that by order dated 23rd February, 2010, the same school is now recognized. In view of this factual position, the School Tribunal could not have entertained and decided the appeal filed by the petitioner as on the date of filing of the appeal, or decision of the appeal, the school in question was derecognized. Once it is 5 held that the school was not recognized on the date of filing of the appeal or on the date of decision of the appeal, then the question of entertaining and deciding the appeal would not arise. Therefore, the impugned order passed by the School Tribunal is liable to be quashed and set aside on that count. 6) The learned Counsel for the petitioner Shri Godbole has urged that the petitioner is the retrenched employee, and therefore, all the rights, as contemplated under Rule 25-A and Rule 26 of MEPS Rules, either to get absorption in some other school or to get absorption in the same school, are available to the petitioner. As against this, Shri Gunale, learned Counsel for the management submitted that the petitioner cannot be said to be the retrenched employee and, therefore, he is not entitled to claim right of absorption in service. 7) In view of the fact that the School 6 Tribunal had no jurisdiction to entertain and decide the appeal, the findings recorded by it are no longer remain valid and needs to be set aside on that count alone. However, the question of absorption of the petitioner, since he claims to be a retrenched employee, has to be determined and looked into by the competent authority. A competent authority to decide the question whether a person should be treated as a retrenched employee or whether he is required to be absorbed either in some other school or in the same school is the Education Officer (Secondary) Zilla Parishad, Nanded, who prepares a list of surplus teachers. The petitioner can put forth his claim before the Education Officer (Secondary) Zilla Parishad, Nanded for grant of benefit of Section 25-A and Rule 26 of MEPS rules. It may be open for the Education Officer to decide the said question in accordance with law, after permitting the respondent/management to submit its reply. If the Education Officer decides the claim of the petitioner, he shall not 7 get influenced by any of the observations made in the order passed by the Tribunal or by this Court. It is expected that the Education officer shall decide the claim of the petitioner as early as possible. 8) In view of above, this petition is allowed. The Judgment and order dated 15th February, 2010 passed by the Presiding Officer, School Tribunal, Aurangabad in Appeal No. 247/1997, is quashed and set aside. Rule is made absolute in aforesaid terms with no order as to costs. Civil Application stands disposed of in view of the decision in the writ petition. (R.K.DESHPANDE) JUDGE bdv/wp4347.01