1 wp9774.10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 9774 OF 2010 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. H.K. Munde, Advocate for the petitioners. Mr. G.V. Wani, Advocate for respondent no.1. Mr. K.J. Ghute-Patil, A.G.P. for respondent no.3. CORAM : B.P. DHARMADHIKARI, J. DATE : 7TH APRIL, 2011 Heard Advocates Mr. Munde for petitioner and Mr.Wani for respondent no.1 and learned A.G.P. for respondent no.3. Respondent no.2 is the Headmaster of the School run by the petitioners and the respondent no.4 is the new employee allegedly appointed by the petitioners after termination of respondent no.1. Hence, looking to the nature of orders proposed to be passed, the service upon the respondent nos. 2 and 4 is dispensed with. 2. Contention of petitioners is, present respondent no. 1 was appointed on probation on 07.08.2001 and before 2 wp9774.10 expiry of that period, he was terminated on 31.03.2003. Tribunal has however found that he was appointed on 13.06.2000 and therefore, from 13.06.2000, till his termination, he had already completed period of more than two years, and therefore, attained status of permanent employee. Advocate Mr. Munde contends that the issue about legality and validity of the entry on 13.06.2000 or then on 07.08.2001 has not been framed. 3. Advocate Mr. Wani contends that it was never defence of the present petitioners before the School Tribunal that entry in service of the present respondent no.1 is not in accordance with law. 4. Division Bench Judgment of this Court in case of "Anna Manikrao Pethe V/s Presiding Officer, School Tribunal, Amravati and Aurangabad Division, Amravati and others" ( 1997(3) Mh.L.J. 697" has already laid down three issues which the School Tribunal has to frame before proceedings to grant of relief of reinstatement to any employee. One of the issue is whether, the employment of such employee is in accordance with provisions of Section 5 of the M.E.P.S. Act or not ? This has been again reiterated recently in "2007 (6) Mh.L.J. 667" (Priyadharshani Education Trust V/s Ratis (Rafia) Bano D/o Abdul Rasheed and others). 3 wp9774.10 5. In the impugned judgment, the School Tribunal has not framed these issues including the issue whether the entry of the petitioner is either on 13.06.2000 or then on 07.08.2001 and is in accordance with law and it has not been answered. 6. Hence, impugned judgment is unsustainable and same is quashed and set aside. The School Tribunal shall frame the necessary issues as has been held in the judgments cited above and thereafter proceed to decide the appeal in accordance with law. Accordingly, the impugned judgment dated 05.09.2009 in appeal no. 119 of 2003 is hereby quashed and set aside. Appeal is restored back to the file of School Tribunal, Aurangabad. The parties are directed to appear before the School Tribunal, Aurangabad on 28th April, 2011. The Tribunal shall attempt to decide the appeal itself on merits as early as possible and in any case by 31.08.2011. 7. Rule made absolute accordingly. No costs. (B.P. DHARMADHIKARI) JUDGE gas/wp9774.10