1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.7763 OF 2009 1. SHRI SHARDA BHUVAN EDUCATION SOCIETY Duly registered Public Trust and Society Nanded Law College Premises, VIP Road, Babanagar, Nanded Through its Secretary. 2- The Secretary, Shri Sharda Bhuvan Education Society, duly registered Public Trust and Society, Nanded Law College Premises, VIP Road, Babanagar, Nanded. 3- Kusumtai Chavan D.Ed College, Nanded Run by petitioner No.1 Society through It’s principal (I/c) Shri Suresh Ganpatrao Jadhav, age 49 yrs, Occ. Service, r/o. c/o Kusumtai Chavan D.Ed. College, Nanded. PETITIONERS. V/S 1. VARSHA D/O. HARIHAR CHONDEKAR age 35 , occ. Assistant Teacher, (Under suspension), R/o 1) C/o Kashinath Isadkar (teacher), Nanded , Co-Op Housing Society, Vijay Nagar, Nanded. (2) Varsha d/o Harihar Chondekar, age 35 yrs, Occ. Assistant Teacher, (under suspension), R/o at Post Usmannagar, Dist. Nanded. 2. Dy. Director of Education Department, Aurangabad Division, Aurangabad. (Notices of R No.2 to be served on G.P at High Court Bench at Aurangabad.) RESPONDENTS. ... Mr. R.R. MANTRI, advocate for the petitioners. R/2 SERVED Mr. CHINCHOLKAR G.N. Advocate, FOR R-1 ... 2 CORAM : S. B. DESHMUKH, J. DATE : 16th FEBRUARY, 2010. ORAL JUDGMENT :- 1. Heard learned counsel for the parties. 2. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 3. Order passed by the learned Presiding Officer, School Tribunal, Latur on July 30, 2009 in appeal No.20/2001 is assailed in this writ petition by the present petitioners. 4. Counsel for the petitioners points out application filed in trial court i.e. before learned Presiding Officer, School Tribunal, Latur. It is annexure 'B' (page 10) of the compilation. This document seems to be copy of Resolution of Board of Directors dated 06.06.2009 (Resolution No.11 ) (6). With the assistance of counsel for the petitioners, I have seen this copy of the resolution. Apart from this copy of the resolution, I have also seen another document i.e. communication dated 06.06.2009, addressed to the respondent by the Principal of the College. This has been pointed out by the learned counsel for respondent. In the case on hand, application which is filed by the present petitioners before learned Presiding Officer, School Tribunal, Latur is on record (page 33) annexure 'G'. This application before learned Presiding Officer, School Tribunal, Latur in appeal No.20/2009 was at Exh.23. This application, according to present petitioners was filed by respondent Nos. 1 to 3 in that appeal under section 9 of the M.E.P.S Act. From the copy of the application, it appears that prayer was made that ‘preliminary issue of jurisdiction may kindly be framed and appeal filed by the appellant may kindly be dismissed for want of jurisdiction’. This 3 application was filed on 19.09.2009. 5. Counsel for the petitioners submits that parties are at issue "as to whether respondent-teacher has been suspended by the petitioner-management or services of respondent-teacher has been terminated." According to counsel for the petitioners, application made, is only with a request to frame a preliminary issue of jurisdiction. 6. Counsel for the respondent No.1 supports the order passed by the trial court. 7. I have heard submission of both the learned counsels. I am not recording their submissions and my opinion also, for the reason that issue required to be considered and decided by the competent Tribunal / Court. Though the counsel for the petitioners submits that this is an application only requesting for framing of the preliminary issue of jurisdiction, prayer made by present petitioner in an application Exh.23 in the trial court do seeks dismissal of the appeal for want of jurisdiction. Thus, prayer is a mixed prayer cannot be said only for the framing of the preliminary issue. But then, this prayer in my view needs to be read with the context and/or pleadings in the application. In other words, application in its entirety needs to be considered. On such exercise, in my view grievance of the petitioners appears to be for framing of the preliminary issue as to “whether appeal filed by the respondent-teacher is maintainable before the learned Presiding Officer, School Tribunal, Latur under section M.E.P.S Act.” 8. I am not entering into the merits as to whether respondent- teacher has been suspended or terminated. Order impugned, passed by the Presiding Officer, School Tribunal needs to be quashed and set aside. Matter 4 needs to be remitted back to the learned Presiding Officer, School Tribunal, Latur with further direction that he shall first frame the preliminary issue, in view of the contentions raised in the application Exh.23, after framing of the issue, he shall hear the parties and pass appropriate order on that application. 9. Writ Petition is partly allowed. Order impugned is quashed and set aside. Case is remitted back to the learned Presiding Officer, School Tribunal, Latur with further direction that he shall decide application Exh.23 a fresh without being influenced by his earlier observations in the order and after hearing both the parties. Such exercise to be completed by learned Presiding Officer, School Tribunal, Latur within a period of two months from the date of appearance of the parties before the Tribunal. The parties shall appear before learned Presiding Officer, School Tribunal, Latur on 02.03.2010. Petitioners to take writ of this order and make it available to learned Presiding Officer, School Tribunal, Latur. Rule is made absolute in above terms. No costs. 10. Ad-interim relief granted earlier by this Court in terms of prayer clause 'C' on 21.11.2009 stands vacated. ( S. B. DESHMUKH ) JUDGE. ..... aaa/7763.09