(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 8795 OF 2010 1. Maharashtra Sainik Shikshan Prasarak Mandal, Sanjay Nagar, Old Jalna, District : Jalna, Through its President, Shri Maroti s/o. Balaji Shinde, Age : 66 years, Occupation : President of the petitioner - Education Society, R/o. Itware Momin Galli, Jalna. 2. The Head Master, Shri Sant Kabir Primary School, Sanjay Nagar, Jalna. 3. Maharashtra Sainik Shikshan Prasarak Mandal, Sanjay Nagar, Old Jalna, District : Jalna, through its Secretary. 4. The Head Master, .. Petitioners Sant Kabir Primary School, (Original respondent Rahul Nagar, Vidyut Colony, nos.1, 2, 4 and 5) Old Jalna, Dist. Jalna. versus 1. Asaram s/o. Kishanrao Gunjkar, Age : 33 years, Occupation : Nil, R/o. Gandhinagar, Rohanwadinagar, District : Jalna. (2) 2. The Education Officer (Primary), .. Respondents Zilla Parishad, Jalna. (No.1 - Original appellant & No.2 - Original respondent no.3) ....................... Mrs. A.S. Rasal, Advocate, for the petitioners. Mr. M.R. Kulkarni, Advocate, for respondent no.1 / caveator. Mr. V.C. Patil, Advocate, holding for Mr. C.G. Patil, Advocate, for respondent no.2. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 23RD MARCH 2011 ORAL JUDGMENT : 1. Heard Adv. Mrs. A.S. Rasal, for the petitioners; Adv. Mr. M.R. Kulkarni, for respondent no.1, and Adv. Mr. V.C. Patil, holding for Adv. Mr. C.G. Patil, for respondent no.2. 2. Rule. Rule made returnable forthwith. Heard finally with consent. (3) 3. Contention of Adv. Mrs. Rasal is, there was no post of Clerk available for respondent no.1 and only on the basis of an appointment order produced subsequently, the finding that he was working in the school of petitioner has been drawn. She contends that there is no finding that his entry into service is in accordance with the provisions of Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. She relies upon judgment of Division Bench of this court reported at 1997(3) Mh.L.J. 697, in the case of Anna Manikrao Pethe Vs. Presiding Officer, School Tribunal, Amravati and Aurangabad Division, Amravati, and others, and subsequent judgment of Division Bench of this court reported at 2007(6) Mh.L.J. 667, in the case of Priyadarshini Education Trust and others Vs. Ratis (Rafia) Bano d/o. Abdul Rasheed and others, to substantiate her contention. 4. Adv. Mr. M.R. Kulkarni states that working of one Shri Yuvraj Shinde has nothing to do with the employment of respondent no.1. Respondent no.1 has been appointed after following prescribed procedure and he has worked in school for more than 4 years. The School Tribunal has correctly appreciated the position and recorded the finding. 5. After hearing respective Counsel, I find that the (4) School Tribunal has only recorded its conclusion on the point of appointment of respondent no.1 in the school. Whether that appointment was in accordance with law, or not, has not been gone into at all. The Division Bench of this court, in the case of Anna Manikrao Pethe Vs. Presiding Officer, School Tribunal, Amravati and Aurangabad Division, Amravati, and others (supra), as also in the case of Priyadarshini Education Trust and ot hers Vs. Ratis (Rafia) Bano d/o. Abdul Rasheed and others (supra), require the School Tribunal to formulate an issue in this respect and then to adjudicate. Here, the School Tribunal has not framed issue regarding legality or otherwise of respondent no.1's appointment. 6. As that issue has not been framed, there is no finding. Hence I am not in a position to appreciate rival contentions being raised before me. Only to enable the School Tribunal to adjudicate the issue about legality or otherwise of appointment of respondent no.1 as Clerk in the school, impugned judgment and order will have to be set aside. 7. In the result, the petition is allowed. (i) The impugned judgment and order dated 26-7-2010, passed by the learned Presiding Officer, School Tribunal, (5) Aurangabad, in Appeal No. 11/2006, is quashed and set aside. Proceedings in the said appeal are restored back to the file of School Tribunal, Aurangabad, for taking fresh decision in respect of legality or otherwise of appointment of respondent no. 1. (ii) The School Tribunal shall attempt to decide the said appeal on its own merits, as early as possible and in any case, within a period of two months from the date on which parties appear before it. (iii) Parties are directed to appear before the School Tribunal on 18th April 2011 and to abide by its further instructions in the matter. (iv) Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp8795