1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Letters Patent Appeal No. 268 of 2009 in Writ Petition No. 5413 of 2008 (D) APPELLANT : Ku. Jaimala Bhaurao Ramteke Aged about 42 years, Occu. Asstt. Teacher, Saraswati Purva Madhyamik School, (Koka) Jungle), Tah. and Dist. Bhandara, R/o Koka, Dist. Bhandara. ...VERSUS... RESPONDENTS : 1] The Presiding Officer, School Tribunal, Nagpur. 2] Preeti Shikshan Sanstha, Bhandara through its Secretary Shri B.D.Bhaladhare, R/o Bhandara, Tah. * Dist., Bhandara. 3] The Education Officer (Primary), Zilla Parishad, Bhandara 4] The Head Master, Saraswati Purva Madhyamik School, Koka (Jungle), Tah. and Dist. Bhandara. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-==- Mr. V.M.Deshpande, Advocate for Appellant. Mr. A.Z.Jibhkate, Advocate for Respondent no.2 Mr. S.B.Ahirkar, A.G.P. for Respondent nos.1 to 3 C ORAM : D.B.BHOSALE ; and PRASANNA B. VARALE, JJ. DATED : 21st July, 2010. 1] Heard learned counsel for the parties. 2 2] By this Letters Patent Appeal, the appellant has impugned the judgment and order dated 30/4/2009 rendered by the learned Single Judge in Writ Petition No. 5413 of 2008, dismissing the writ petition and confirming the order passed by the School Tribunal, dated 10/12/2008, in Appeal No. STC/26/2001, filed under Section 9 of the Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977. The appellant had filed the appeal before School Tribunal challenging her termination. 3] We have heard learned counsel for the parties for some time. Learned counsel for the appellant vehemently submitted that her initial appointment was on probation and on permanent vacancy and that it was also approved by the Education Officer and, therefore, she was entitled to be made permanent under Section 5 of the M.E.P.S. Act. Learned counsel for the appellant did not raise any other contention. The similar contention was urged before the tribunal as also before the learned Single Judge. 4] In support of the contention, learned counsel for the appellant strongly relied upon the appointment letter issued by the respondent-institute on 01/6/1998. The learned Single Judge has considered the said letter and in paragraph 18 of the judgment, rejected the contention of the appellant and observed that the wording of the letter clearly show that the respondent-institution intended to appoint the appellant on temporary vacancy and, therefore, it was for the petitioner to demonstrate that at the relevant time the post of permanent teacher was vacant and permission to fill 3 in that post was sought from the Education Officer and that she was appointed after following the due procedure. It appears that the appellant could not and did not demonstrate the same either before the School Tribunal or before the learned Single Judge. In paragraph 22 of the judgment, the learned Single Judge has also observed that there is no material on record to suggest that all the relevant rules and provisions were infact followed before the appointment of the appellant and the Education Officer had granted permission to recruit the employee in the permanent vacancy as required under Section 5 of the M.E.P.S. Act. It is further observed that mere approval to the appointment of the petitioner would not go to resolve the irregularity/illegality committed by the management in the appointment of the appellant. It is, thus, clear that the appointment of the appellant itself was illegal and it was not made by following the due procedure contemplated by the provisions of M.E.P.S. Act. Since the appointment itself had not been approved to have been taken place by following the legal procedure, as has been rightly held by the learned Single Judge, shall not create any right in favour of the appellant that of the permanent employee. We do not find any substance in the appeal, warranting interference in the impugned judgment, passed by the learned Single Judge. 5] The President of respondent – institute has filed on record an affidavit dated 23/6/2010, in which they have made a statement that in future, if the vacancy of Assistant Teach occur in the school and same is required to be filled in from the candidates belonging to Scheduled Caste category, Corrected as per Court’s order dtd.12/8/10 (‘tribe’ replaced with ‘Caste’) sd/- Dt.17.8.10 4 as per the Roster point and if the Education Officer grants permission to fill in the same from the said category, without advertisement, they are ready to accommodate the appellant in the said post. 6] In view thereof, we observe that the institute may consider the claim of the appellant, if such vacancy occur in future. 7] With these observations, the appeal is disposed of. JUDGE JUDGE Diwale