1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CAZ NO. 288/2011 AND LPA NO. 36/2008 IN WRIT PETITION NO. 5255 OF 2007 (Shridhar Gunwantrao Mohod vs. Navjeewan Society, Amravati & Ors.) __________________________________________________________________________ Office Notes, Office Memorandum of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. CORAM : B.P.DHARMADHIKARI & P.D. KODE, JJ. JULY 18, 2011. Heard finally with the consent of Shri Kothale, learned counsel for the petitioner, Shri Ghurde, learned counsel for respondents No. 1 & 2 and Shri Sonare, learned AGP for respondent No. 3. The petitioner was appointed as Instructor in the year 1996 by Respondents No. 1 & 2 and was terminated by order dated 23.04.1999 with effect from 31.05.1999. He challenged that termination by filing Appeal No. 98 of 1999 before the School Tribunal, Amravati, under Section 9 of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. Vide judgment dated 07.09.2007, the School Tribunal found that he was employee of Military School and, therefore, it had no jurisdiction. This judgment of School Tribunal was questioned in Writ Petition No. 5255 of 2007 and the learned Single Judge of this Court on 26.11.2007 2 maintained it. Shri Kothale, learned counsel has invited our attention to the order of Maharashtra Secondary and Higher Secondary Education Board dated 16.10.2001 to urge that first recognition has been granted to School of Respondents No. 1 & 2 by said order. He contends that in view of this position, when definitions under Section 2(20), (21), (25) and 6A of MEPS Act are looked into, it is apparent that as School/ Course is recognized by a Board established under Maharashtra Secondary and Higher Secondary Boards Act, 1965, and School is a private School and duly recognized under that Act, School Tribunal has got jurisdiction. He, therefore, states that the matter needs remand immediately as the appellant is out of employment since 1999. Shri Ghurde, learned counsel for respondents No. 1 & 2 and Shri Sonare, learned counsel for respondent No. 3 for other respondents are opposing the prayers. Shri Ghurde, learned counsel points out that post of Instructor is not contemplated under MEPS Act. In the alternative and without prejudice, he states that when first recognition to the course is in the year 2001, termination two years prior to that cannot be regulated by MEPS Act. After hearing respective counsel in this 3 respect, we find that there is substance in the contention of Shri Kothale, learned counsel that when recognition is granted for the first time in the year 2001-02 by Board, the course may have started at least five years before 2001-02. However, we are not concluding this aspect because necessary material in this respect need to be produced by the parties before the School Tribunal and after appreciation thereof, School Tribunal can record appropriate finding. Insofar as availability of Instructor in staffing pattern is concerned, in the light of judgment of Division Bench of this Court in the case of Anna Pethe vs. Presiding Officer, School Tribunal, Amravati, 1997 (3) Mh. L.J. 697 and Priyadarshini Education Trust vs. Ratis Bano, reported at 2007 (6) Mh. L.J. 667, the School Tribunal has to frame preliminary issue to find out whether employment given to the appellant before it is in accordance with law or not. This aspect, therefore, can be looked into by the School Tribunal at that time and non availability of post as such, therefore, cannot be a ground at least at this stage to hold that School Tribunal does not possess jurisdiction. In view of this position, we quash and set aside the judgment of the School Tribunal dated 07.09.2007 and also the judgment of the learned 4 Single Judge of this Court dated 26.11.2007 both mentioned supra. The proceedings in Appeal No. 98 of 1999 are restored back to the file of School Tribunal, Amravati, for taking fresh decision in the matter in accordance with law after giving parties necessary opportunity of being heard. Parties are directed to appear before the School Tribunal on 29th August 2011 and School Tribunal shall thereafter proceed further in accordance with law and attempt to decide the appeal as early as possible and in any case by 31st January 2012. With these directions and observations, writ petition is allowed. Rule is made absolute in above terms. However, there shall be no order as to costs. JUDGE JUDGE *GS.