High Court
Legal Reasoning
1 WP 3462-2005.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 3462 OF 2005Padmakar s/o Hiraman PatilAge : 39 years, Occu. : Nil,R/o. Joshi Galli, Paithan,Tq. Paithan, Dist. Aurangabad... PetitionerVersus1.Jijamata Mahila Mandal, Paithan,through its President, BhagwatGalli, Paithan, Tq. Paithan,Dist. Aurangabad.2.The Head Master,Jijamata Mahila Primary School,Bhagwat Galli, Paithan, Tq. Paithan,Dist. Aurangabad.3.The Education Officer (Primary),Zilla Parishad, Aurangabad... RespondentsMr. S. R. Barlinge, Advocate a/w Mr. Kalyan V. Patil, Advocate for the Petitioner.Mrs. M. A. Kulkarni, Advocate for Respondent Nos. 1 and 2.Mr. S. W. Munde, Advocate for Respondent No. 3. CORAM : KISHORE C. SANT, J.Date on which reserved for order :27th February, 2025.Date on which order pronounced :10th March, 2025. FINAL ORDER :- .Heard the parties for final disposal at the stage of admission byconsent of the parties. 1 of 9 2 WP 3462-2005.odt2.The petitioner has approached this Court challenging an orderpassed by the learned Presiding Officer, School Tribunal, Aurangabadthereby dismissing an application for condonation of delay that wascaused in filing appeal by the petitioner. The petitioner was workingwith respondent No. 2 school run by respondent No. 1 management asa primary teacher. The respondent No. 3 is Education Officer(Primary), Zilla Parishad, Aurangabad. 3.Few facts giving rise to the petition are as under :4.The petitioner was appointed as primary teacher on probationbasis by order dated 23.06.1997. The approval was granted to theappointment of the petitioner for a period of two (02) years vide letterdated 17.03.1999. The petitioner was thereafter confirmed by themanagement by order dated 05.04.2000. The said also came to beconfirmed by respondent No. 3 vide order dated 06.05.2000. On08.04.2000 he was even given charge as in-charge Headmaster. Thesaid appointment was also approved by respondent No. 3. It is the casethereafter that, the petitioner was required to proceed on leave from07.01.2002. He even submitted an application for grant of leave onmedical ground. The said leave was sanctioned, however, when hecame back to the school for joining, he was not allowed to join. Theschool sought fitness certificate and also medical certificate. The 2 of 9 3 WP 3462-2005.odtpetitioner therefore made representations to the management and tothe Education Officer seeking directions to allow him to join the duties.The Education Officer directed the management to allow the petitionerto join his duties, however, in spite of that, the respondent Nos. 1 and 2refused to allow him to join the duties. It is his case that, thereafter,the respondent No. 1 demanded Rs. 30,000/- (Rs. Thirty Thousandonly) to allow him to join the duties and he was threatened thatotherwise he would be terminated. On reopening of the school heagain went to school on 10.07.2002 to join the school. He ultimatelyrealized that the management do not want to continue his services.The communication dated 10.07.2002 by respondent No. 1 was takenas termination. The petitioner thus approached the learned SchoolTribunal by filing an appeal No. 103/2002. 5.In the said appeal, it was the stand of the respondents that thepetitioner was not duly appointed to the school as Assistant Teacher.One Jayshree Deshpande was appointed as Assistant Teacher in the saidschool. However, she was not possessing requisite qualification ofD.Ed., her services were also terminated and the appeal was pending. Itis the case of the management that, the petitioner was appointed in herplace. The petitioner was never appointed against clear vacant post.When he was given the charge of post of Headmaster, he illegally gave 3 of 9
Legal Reasoning
4 WP 3462-2005.odtan appointment to one Shri S. D. Kokate as Assistant Teacher by takingsome bribe. The appointment of Shri S. D. Kokate was not eveninformed to the management. The learned School Tribunal acceptedthe stand of the management. It is prayed for dismissal of an appeal. 6.The learned School Tribunal also dismissed the appeal on theground of delay of more than six months. The said order has goneunchallenged by the petitioner. The petitioner thereafter again filedanother appeal bearing No. 62/2004 before the learned SchoolTribunal along with an application for condonation of delay. Thelearned Presiding Officer, School Tribunal rejected the application forcondonation of delay on the ground that there was no satisfactoryexplanation of the delay and the decision in the earlier appeal wouldoperate as res judicata. Thus, the petitioner is before this Court.7.The learned advocate Mr. Barlinge for the petitioner vehementlyargued that, there is no dispute that the petitioner was appointed byfollowing due process of law. His appointment was approved by therespondent No. 3. When this was the position, the petitioner could nothave been terminated without following procedure as prescribed underRules 36 and 37 of the Maharashtra Employees of Private Schools(Conditions Of Service) Rules, 1981 (hereinafter referred to as“M.E.P.S. Rules”). The learned Presiding Officer, School Tribunal has 4 of 9 5 WP 3462-2005.odtadopted hyper technical approach and has rejected the delaycondonation application. The finding that the application is barred byprinciples of res judicata is totally erroneous. Earlier there was noapplication for condonation of delay for that. Thus, there was noreason to make this observation. It was necessary for the learnedSchool Tribunal to consider the matter on merits, however, the same isnot done. He thus submits that, the petition needs to be allowed bycondoning the delay with direction to the learned School Tribunal toconsider the appeal on merits. 8.The learned advocate Smt. Kulkarni for respondent No. 1 and 2vehemently opposed the petition. It is the case of the managementthat, the appeal filed by the petitioner bearing No. 103/2002 wasterminated on merits. The said order is not challenged by thepetitioner and thus, the petitioner has accepted the said order. Afterhaving accepted the order, the petitioner could not have filed anotherappeal on the same cause of action. In any case, there was delay whichwas not satisfactorily explained. The learned School Tribunal thereforerightly rejected the application. There is also bar of principles of resjudicata. On merits it is submitted that, the petitioner on his ownillegally abandoned the services. He did not produce any medicalcertificate to show that he was not well. In fact, he never came for 5 of 9 6 WP 3462-2005.odtjoining the service. Now, the case of termination is concocted by thepetitioner by after thought. There is communication that themanagement had asked him to submit medical certificate, however, thisfact is not disputed by the petitioner. In Appeal No. 103/2002 it isclearly held by the learned School Tribunal that, the petitioner failed toprove that his termination is otherwise termination. After accepting thejudgment in the earlier appeal, now it is not open for the petitioner tochallenge the same again.9.The learned advocate Mr. Munde appearing for respondent No. 3also vehemently opposes the writ petition. He submits that, no case ismade out to entertain the petition.10.This Court has gone through the order dated 13.07.2005wherein, this Court had dismissed the writ petition. The said order wascarried in L.P.A. No. 128/2007. It is observed by the Division Benchthat the real controversy for considering the question, the Single Judgehas not considered the case on merits. It is observed that, themanagement has not come up with a case that the termination ofservices was on any particular date. It is held that, it is therefore forthe employee to point out the cause of action. The delay or limitationneed to be computed from the date of termination. In view of thisorder, this Court has to consider the challenge as well. 6 of 9 7 WP 3462-2005.odt11.The question is therefore as to what is the date of termination. Itis the case of the petitioner that he was terminated on 10.07.2002when he received a undated communication from respondent No. 1and thus, he had taken the said date as date of otherwise termination.The order passed in the earlier appeal by the learned School Tribunal,the learned School Tribunal had answered the issue as to whether therespondent No. 1 terminated the services of the appellant with effectfrom 10.07.2002. The answer given is no. It is held that, the appealwas not within limitation. Though earlier two issues were answered infavour of the petitioner that his appointment was made by followingprocedure under Section 5 of the Maharashtra Employees of PrivateSchools (Conditions of Service) Regulation Act, 1977 (hereinafterreferred to as “M.E.P.S. Act”) and as to whether the post was approvedby the Education Officer. In spite of answering issues aboutappointment and vacant post in favour of the petitioner, still the appealwas dismissed on the ground of limitation and no date of terminationwas shown. 12.From the record it does appear that, there was approval grantedby the respondent No. 3 to the appointment of the petitioner onprobation. Subsequently, by order dated 05.04.2000 there is approvalgranted by respondent No. 3, however, the wording shows that the 7 of 9 8 WP 3462-2005.odtappointment was for further period of temporary nature and the saidcan be terminated without giving any notice. However, again it is seenfrom the order dated 06.05.2000, the approval was given for temporaryperiod subject to approval of staffing pattern as per Section 9 of theM.E.P.S. Act and subsequently he was appointed as in-chargeHeadmaster. There is also a communication dated 19.06.2002 by thepetitioner to respondent No. 3 and respondent No. 1 stating that, theHeadmaster is not allowing him to join the services. It is thus takenthat he was terminated from 10.07.2002. 13.In view of the order passed in L.P.A. No. 128/2007 this Court hasto see what is the exact date of termination except stating that thepetitioner was terminated with effect from 10.07.2002. There isnothing on record. From the reply of respondents it is seen that, acriminal case was filed against the petitioner and therefore, thepetitioner was absconding and therefore, he illegally abandoned theservice. There was no application filed for condonation of delay in theappeal. The petitioner has never shown readiness to join. Even fromthe communication dated 17.06.2002 it does appear that, the petitioneron his own stated that from 21.01.2002 he tried to resume the duty,however, he was not allowed by the Headmistress to join. On his ownhe stated that, though he submitted applications, no endorsement of 8 of 9
Decision
9 WP 3462-2005.odtreceipt is given to him. This clearly shows that there is no proof toshow that the petitioner has ever tried to join the duty. It was open forhim to sent communication through post, however, that is also notappearing on the record. This Court holds that the petitioner failed toprove date of termination and also fact of termination.14.This Court finds substance in the argument of the learnedadvocate for the respondents that, the petitioner did not challenge thejudgment in appeal No. 103/2002. In the judgment in AppealNo. 103/2002 the learned School Tribunal has specifically recorded afinding that the date of termination as 10.07.2002 is not proved. Onthe aspect of limitation also the said finding attained finality. Thisclearly indicates that the petitioner accepted that order. In view of this,filing of the appeal thereafter certainly is barred by limitation and alsoprinciples of res judicata.15.No illegality or perversity is found in the judgment and order ofthe learned School Tribunal. Considering all above facts, this Court isnot inclined to cause interference. 16.With this, the writ petition stands dismissed. ( KISHORE C. SANT, J. ) P.S.B. 9 of 9