wp5698.11.odt 1/5 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETN. NO.5698/2011 Vijay Sukhdeorao Naidekar -vs- The Presiding Officer, School Tribunal, Amravtai and others ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Ms P. Rane, counsel for the petitioner. Ms Deshmukh, AGP for the respondent No.1. CORAM : SMT. VASANTI A. NAIK, J. DATE : 21.11.2011. By this petition, the petitioner impugns the judgment passed by the Presiding Officer, School Tribunal, Amravati on 23rd of September, 2011 dismissing an appeal filed by the petitioner under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. The petitioner was working as a Peon with the respondent Nos.2 and 3 since 1994. Since the respondent Nos.2 and 3 conducted an enquiry against the petitioner and terminated his services by an order dated 09/04/1997, the order of termination was challenged by the petitioner in an appeal. The Tribunal decided the appeal against the petitioner by the judgment dated 14/06/2005. It was held by the Tribunal in the said judgment that the appointment of the petitioner was made in accordance with the provisions of wp5698.11.odt 2/5 Section 5 of the Act of 1977 and the same was approved by the Education Officer. The Tribunal, however, held that the enquiry conducted against the petitioner was fair and proper and was not vitiated on account of the irregularities pleaded by the petitioner. Since this issue was answered against the petitioner, the appeal filed by the petitioner was dismissed by the judgment dated 14th of June, 2005. The petitioner challenged the judgment in Writ Petition No.258/2006. This Court quashed and set aside the judgment dated 14th of June, 2005 by allowing the writ petition, by the judgment dated 30th September, 2010. It was observed by this Court that it was necessary for the Tribunal to have decided the issue whether the provisions of Rule 37 (4) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 were mandatory and whether the non compliance of the said provisions vitiated the enquiry conducted against the petitioner. This Court, after quashing and setting aside the judgment dated 14/06/2005, remitted the matter to the School Tribunal for a fresh decision on the same on merits after providing the parties concerned, an opportunity of being heard. After the remand of the matter, by the judgment dated 23/09/2011, the School Tribunal has again dismissed the appeal filed by the petitioner. The Tribunal held that though the provisions of Rule 37 (4) of the Rules of 1981 were not complied with and the termination of an employee would be vitiated for non compliance of Rule 37 (4) of the Rules of 1981, the appeal was liable to be dismissed wp5698.11.odt 3/5 in this case as it was found that the appointment of the petitioner was not in accordance with the provisions of Section 5 of the Act of 1977. The judgment dated 23rd of September, 2011 is challenged by the instant petition. The School Tribunal, Amravati did not commit any error in dismissing the appeal filed by the petitioner by holding that the appointment of the petitioner was not in accordance with Section 5 of the Act of 1977. Though the Tribunal observed that the provisions of Rule 37 (4) of the Rules of 1981 were mandatory and the non compliance of those provisions would vitiate an enquiry, the petitioner was not entitled to any relief in the appeal as it was found on a re-appreciation of the material on record that the appointment of the petitioner was not in accordance with the provisions of Section 5 of the Act of 1977. The Tribunal observed that the petitioner was appointed on a post reserved for scheduled tribe category candidate. The management had produced the advertisement on record which clearly showed that the post was reserved for scheduled tribe category candidate. The petitioner had also submitted a certificate of belonging to caste Dhoba, which is a scheduled tribe at the time of his appointment. Thus, it is apparent from the record that the petitioner was appointed on the post which was ear marked for a scheduled tribe category candidate on an impression that the petitioner belonged to the scheduled tribe category. However, during the pendency of the wp5698.11.odt 4/5 appeal filed in the year 1997, the Caste Scrutiny Committee invalidated the caste claim of the petitioner and it was held by the Scrutiny Committee that the petitioner did not belong to Dhoba scheduled tribe. In this background, by placing reliance on the reported decisions of this Court, the Tribunal held that the appointment of the petitioner was not in accordance with Section 5 of the Act of 1977 and was not an “appointment” in the eye of law. The Tribunal, having held that the petitioner's appointment was not in accordance with Section 5 of the Act of 1977, rightly held that the petitioner was not entitled to the reliefs claimed in the appeal. Hence, though the Tribunal had held that the enquiry conducted against the petitioner was vitiated in view of non compliance of Rule 37 (4) of the Rules of 1981, the petitioner's appeal was liable to be dismissed as the petitioner's appointment was not made in accordance with Section 5 of the Act of 1977. In the facts and circumstances of the case, the Tribunal rightly dismissed the appeal filed by the petitioner. Merely because the issues framed as per the directions in Anna Pethe's case were answered in favour of the petitioner by the judgment dated 14th of June, 2005, it cannot be said that the Tribunal could not have taken another view on the same issues by the judgment dated 23rd of September, 2011 as the judgment dated 14th of June, 2005 was quashed and set aside by the judgment of this Court in Writ Petition No. 258/2006 and the matter was directed to be decided afresh on merits. Hence, the Tribunal could have definitely arrived at a wp5698.11.odt 5/5 conclusion on the perusal of the material on record that the appointment of the petitioner was not made in accordance with the provisions of Section 5 of the Act of 1977. There is no error, much less a jurisdictional error in the impugned judgment dated 23/09/2011. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE KHUNTE