1 wp5133-03 ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5133 OF 2003 Shri Nitinkumar R. Ahire .. Petitioner Vs. Ajinkyatara Shikshan Prasarak Mandal and Ors. .. Respondents Ms.Kumud Bhatia for the petitioner Mr.P.N.Joshi for respondent nos.1 and 2 CORAM: K.K. TATED, J. DATE: 15th MARCH, 2011 P.C. 1. Heard the learned counsel for the parties. 2. This petition under Article 226 and 227 of the Constitution of India is directed against the Judgment and Order dated 18.2.2003 passed by the Presiding Officer, School Tribunal, in Appeal No.17 of 1999 filed by the petitioner against the termination of his services as a teacher by the respondent nos.1 and 2 by oral order dated 01.01.1999. A few facts giving rise to this petition are briefly stated as under: 3. The petitioner claims to have been appointed by respondent no.1 and 2 orally as Assistant Teacher w.e.f. 12.6.95 in their School, that is, Shree 2 wp5133-03 Bhuleshavar Madhyamik Vidyalaya in a clear and permanent vacancy. At that time, the School was not recognized by the State of Maharashtra and the petitioner was not qualified. The petitioner got himself qualified in April 1998 on passing B.ED examination. The school was recognized by the State Government in June 1998 on no grant basis. According to the petitioner, though he served the respondent no.1 at their school at Bhulegaon for more than three years from 1995, his services were wrongfully orally terminated by the respondents on 1.1.99 and he was since then restrained from entering into the class room by the Head Master on the ground that his services were no longer required. 4. Being aggrieved by the termination of his services by the respondents, the petitioner preferred appeal no.NSK/17 of 1999 before the Presiding Officer, School Tribunal, Nasik and also filed an application for condonation of delay for 4 months. 5. The respondent nos.1 and 2 filed their written statement before the Hon ble Presiding Officer, School Tribunal, Nasik in appeal no.NSK/17 of ’ 1999. They vehemently opposed the petitioner s appeal on several ’ grounds. Their contention before the School Tribunal was that they started the School in the academic year 1997-98. Prior to 1997-98 the School was not in existence at all. On humanitarian grounds and for social purpose and for benefit of the petitioner, considering his acquaintance and that too actually for obtaining educational qualification, 3 wp5133-03 the respondents issued a certificate in favour of the petitioner for obtaining admission in the B.ED college. On the basis of that certificate, the petitioner sought admission as a regular student in the academic year 1996-97 in B.ED College, Amalner and he has taken disadvantage of the said certificates and filed false appeal before the Tribunal against them on the basis of false and fabricated documents. 6. They further submitted before the Tribunal that in the academic year 1996-97 respondent was attending the B.ED College at Amalner as a regular student and therefore, the question of his attendance with the respondent school in the academic year 1996-97 does not arise at all. In the academic year 1997-98 and 1998-99 the petitioner was not in the employment of the respondent school. Hence, the question of termination of his service w.e.f. 1.1.99 by oral orders does not arise at all. 7. Considering the submissions made by the petitioner and the respondent before the School Tribunal, the School Tribunal dismissed the petitioners appeal on merits and also rejected the petitioner s application for ’ condonation of delay in preferring the appeal. 8. The petitioner has by this petition challenged the decision of the School Tribunal on various grounds. 9. The learned counsel for the petitioner submits that the learned Presiding Officer did not rely on the certificate issued by the Sarpanch of Village Yeola dt.27.2.99 and letter dt.27.2.99 issued by the Police Patil of the said 4 wp5133-03 Village at the time of deciding the appeal. She further submits that the learned Presiding Officer ought to have observed that the petitioner was rendering service in the respondent institution continuously with unblemished record of service w.e.f. 12.6.95 till 1.1.99 and as such he completed the total service for about 3 years 6 months sincerely and satisfactorily. 10. She submits that by virtue of section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, the petitioner is deemed to have become permanent and confirmed for the reasons that he was deputed for vacation course for acquiring training qualification and after completion of vacation course of B.ED (Physical), he was again continued in service and as such previous untrained service to be treated as continued. 11. The learned counsel for the petitioner further submitted that the Tribunal failed to consider the documentary evidence i.e. the statement of mark sheet for first term examination and IInd Unit Test Exam prepared by him as a subject teacher at Ex.18 and 18A, letter dt.15.2.96 issued by the Respondent school duly signed by Ajinkyatara Shikshan Prasarak Mandal, Yeola, Dist.Nasik and Shree Bhuleshavar Madhyamik Vidyalaya at Ex.19 and Ex.20, letter dt.30.12.98 issued by respondent school at Ex.21, Experience Certificate dt.27.2.99 issued by respondent school at Ex.23 and affidavit of one Gopinath Dnyandev Rothe and Rambhao Karbari Gaikwad 5 wp5133-03 dated 27.7.00 and 24.4.00 respectively at Ex.23 and 24. 12. According to the learned counsel for the petitioner, the tribunal on the voluminous evidence adduced by the petitioner should have held that the petitioner s service were wrongfully terminated and he should have been ’ reinstated in service. 13. With the help of the learned counsel for the petitioner, I have perused those documents. They are all private documents and they do not have any presumptive value of correctness of contents therein under any enactment. It is no longer in dispute that there is no order in writing from the respondent regarding the petitioner s appointment as Assistant ’ Teacher. The school was not recognized by the Government till June 1998 and even thereafter no order appointing the petitioner as Assistant Teacher was passed. There is also no written order of termination of his services at the end of December 1988. His appointment as a teacher was not in accordance with section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 which reads as under: 5. Certain obligations of Management of private “ schools: (1) The Management shall, as soon as possible, fill in, in the manner prescribed, every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy: [Provided that unless such vacancy is to be filled in by promotion, the Management shall, before proceeding to 6 wp5133-03 fill such vacancy ascertain from the Educational Inspector, Greater Bombay, [the Education Officer, Zilla Parishad or, as the case may be, the Director or the officer designated by the Director in respect of schools imparting technical, vocational, art or special education,] whether there is any suitable person available on the list of surplus persons maintained by him, for absorption in other schools; and in the event of such person being available, the Management shall appoint that person in such vacancy] (2) Every person appointed to fill a permanent vacancy [except shikshan sevak] shall be on probation for a period of two years. Subject to the provisions of sub- sections (3) and (4), he shall, on completion of this probation period of two years, be deemed to have been confirmed.: [Provided that, every person appointed as shikshan sevak shall be on probation for a period of three years.] [(2A) Subject to the provisions of sub-section (3) and (4), shikshan sevak shall, on completion of the probation period of three years, be deemed to have been appointed and confirmed as a teacher.] (3) If in the opinion of the Management, the work or behaviour of any probationer during the period of his probation, is not satisfactory, the Management may terminate his services at any time during the said period after giving him one month s notice [or salary [or ’ honorarium] of one month in lieu of notice.] (4) If the services of any probationer are terminated under sub-section (3) and he is reappointed by the Management in the same school or any other school belonging to it within a period of one year from the date on which his services were terminated, then the period of probation undergone by him previously shall be taken into consideration in calculating the required period of probation for the purposes of sub-section (2). [(4A) Nothing in sub-section (2), (3) or (4) shall apply to a person appointed to fill a permanent vacancy by promotion or by absorption as provided under the 7 wp5133-03 proviso to sub-section (1).] (5) The Management may fill in every temporary vacancy by appointing a person duly qualified to fill such vacancy. The order of appointment shall be drawn up in the form prescribed in that behalf, and shall state the period of appointment of such person.” 14. From the bare reading of section 5 shows that the petitioner is not entitled to get any benefit from this section. The petitioner also relied on judgment in the matter of Hindi Vidya Bhavan, Mumbai and Ors vs. Presiding Officer, School Tribunal, Mumbai and Others reported in 2007 (6) Mah L.J. 563 wherein our High Court held that for want of approval, an appointment of the member of the staff would not render “ ” invalid. By any stretch of imagination, that authority is not applicable to the facts and circumstances of the present case. 15. In the present case, respondents did not appoint the petitioner in writing as Assistant Teacher either in the year 1995 or even thereafter. Therefore, above mentioned authority is not helpful to the petitioner in the present case. It is to be noted that the School was not recognized by the Government till 1998 and even thereafter no appointment order appointing the petitioner as Assistant Teacher was passed. There is also no written order of termination of his services at the end of December 1988. 16. His appointment as a teacher was not in accordance with section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) 8 wp5133-03 Regulation Act, 1977. Therefore, he could not claim protection of his services under that Act. Taking into consideration, the undisputed facts mentioned above, School Tribunal dismissed his appeal. There is no legal infirmity in the impugned order of the School Tribunal which can be set right by this court in the petition under Article 227 of the Constitution of India.. 17. In the result, there is no substance in the petition. 18. Petition is dismissed 19. No order as to costs. (K.K. TATED, J.)