( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 3819 OF 2003 Rohidas s/o Sahebrao Sawale, R/o at post Kasare,Tq. Sakri, District Dhule. PETITIONER VERSUS 1. The Secretary, Savitribai Phule Shikshan Sanstha, Undangaon, Tq. Sillod, Dist. Aurangabad. 2. The Head Master, Savitribai Phule Primary School, Undangaon, Tq. Sillod, Dist. Aurangabad. 3. The Education Officer (Primary), Zilla Parishad, Aurangabad, Tq. and Dist. Aurangabad. RESPONDENTS WITH WRIT PETITION NO. 3820 OF 2003 Ravindra s/o Arun Kshirsagar, R/o at post Samode (Nawagaon), Tq. Sakri, Dist. Dhule. PETITIONER VERSUS 1. The Secretary, Savitribai Phule Shikshan Sanstha, Undangaon, Tq. Sillod, Dist. Aurangabad. 2. The Head Master, ( 2 ) Savitribai Phule Primary School, Undangaon, Tq. Sillod, Dist. Aurangabad. 3. The Education Officer (Primary), Zilla Parishad, Aurangabad. RESPONDENTS ..... Mr. Sanjay Kolhare, advocate for the petitioner in both writ petitions. Mr. M.M. Joshi, advocate for respondents No. 1 and 2 in both writ petitions. Mr. Arun G. Kanade, advocate for respondent No. 3. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 24th June, 2009] ORAL JUDGEMENT : 1. Both these petitions are being decided together in as much as short controversial question involved in these petitions is same. 2. The petitioners were appointed as Assistant Teachers by the respondents No. 1 and 2. An advertisement was issued by the respondent No. 1 for appointment of school teachers. There were five (5) vacant posts, out of which three (3) were reserved and ( 3 ) two (2) were open. The advertisement (Exh-E) indicated that if the reserved category candidates would not be available, then the other candidates may be considered for such appointments. The petitioners were selected and appointed to the post as they were found to be qualified. Initially, they came to be appointed for the academic year 1997-98. The services of the petitioners were continued thereafter as per the approval of the Education Officer uptill termination effected on 30th April, 2001 by the respondent No. 2. They challenged the termination orders by filing two different appeals (appeal No. 229/2001 and appeal No. 59/2002). The learned Presiding Officer of the School Tribunal held that the appointments of the petitioners were irregular. The learned Presiding Officer of the School Tribunal further came to the conclusion that the petitioners were appointed as Shikshan Sevaks and, therefore, were not covered by the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, “the MEPS Act”). It is for such reasons that their appeals were dismissed. ( 4 ) 3. Heard learned counsel for the parties. 4. Core issue involved in both these petitions is whether the petitioners are covered by the provisions of the MEPS Act. The question is no more res integra in view of the judgement of this Court in writ petition No. 8313/2008 (Principal – Our Lady Of Salvation High School v. Ms. Rashmi Upadhyay and others). A co-ordinate Bench of this Court has held that the Amendment Act, 2007 would act retrospectively and, therefore, the “Shikshan Sevak” as defined in clause (24A) of section 2 would be covered by the provisions of the MEPS Act. In other words, such Shikshan Sevaks were entitled to file appeal under section 9 of the MEPS Act against the order of termination. The petitioners were held ineligible for certain reasons including the fact that they were not members of the backward class and that their earlier service as Shikshan Sevak could not be taken into account. It cannot be overlooked that there were five (5) posts available and two (2) of them were unreserved. Secondly, even assuming that there was backlog of the ( 5 ) reserved category candidates, then also, the advertisement itself indicated that if such candidates would not be available, then “other candidates” would be considered. The reservation could be carried forward in such a fact situation when the candidates of reserved category were not available even subsequently and having regard to the relevant Government Resolutions. Ofcourse, this question cannot be determined by this Court at the present. 5. Considering the legal position, the amendment of clause 24A of section 2 of the MEPS Act, would be retrospectively applicable and as such, both the petitioners were entitled to file appeal before the School Tribunal. The dismissal of their appeals for want of jurisdiction is, therefore, improper and unsustainable. 6. Considering the foregoing reasons, the petitions are allowed. The impugned judgements and orders rendered by the learned Presiding Officer of the School Tribunal are quashed. The appeals are restored ( 6 ) and are directed to be heard on merits. All the questions involved are kept open. Both the appeals be expeditiously disposed of by the School Tribunal. No costs. 7. In view of disposal of writ petitions, the civil application No. 8587/2004 (in writ petition No. 3819/2003) and civil application No. 8588/2004 (in writ petition No. 3820/2003) do not survive and hence, stand disposed of accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/WP3819-03-2830-03