1. Heard Mr. Warulkar, learned Counsel for the Petitioner, Ms. Jog, learned Counsel for the Respondent Nos.5 and 6 and Mr. Joshi, learned AGP for the Respondent Nos.1 to 4.

2. In the present Petition challenge is to the Judgment and Order dated 25/8/2016 passed by the Presiding Officer, School Tribunal, Chandrapur in Appeal STC No. 31/2006, whereby the learned Tribunal has dismissed the Appeal filed by the present Petitioner.

3. In the present Petition, in order to understand the controversy involved between the parties, it would be necessary to record certain facts, which are undisputed in the matter, are as under :

The Respondent No.6 is the Management and administer the Respondent No.5 - School. In the Academic Year 1993-94, the School has received permission to start Secondary Classes i.e. from standard 8th onwards and in the natural growth, the School also received permission to run 9th and 10th standard. Accordingly, the School started its full fledged functioning since the Academic Session 1995-96.

The Respondent Nos.5 and 6, after receiving permission of starting classes of 8th to 10th standard, were in need of a teaching as well as non-teaching staff in the School. Accordingly, on 2/6/1994, 12/6/1995 and 10/8/1996 the advertisements were issued by the Management for filling up the teaching and non-teaching posts. Those advertisements were issued without seeking permission of the Education Officer, as the School was not receiving grant-in-aid.

4. It is the case of the Petitioners that initially in the year 1995 one Shri Subhash Kadu was President and Shri Kondbaji Kadu was Secretary of the Trust. The Managing Committee headed by them was administering the affairs of the Trust and the School. In this background, after publishing the advertisement, the present Petitioner along with other teaching and non-teaching staff came to be appointed in the Respondent No.6 - School as a Clerk vide appointment order dated 27/6/1995. At the relevant time, as School was not receiving grant-in-aid, the proposal of approval was not forwarded to the Education Officer. As such, the Petitioner has rendered services during the period when the School was not receiving grant-in-aid, without any expectation of regular salary.

5. It is stated that Respondent No.6 - School first time started receiving 60% grant in the Academic Session 2001-02 vide communication dated 19/12/2003 issued by the Education Officer. After receipt of 60% grant from the Government, the proposal of the Petitioner along with other staff members was forwarded to the Education Officer. The Education Officer, by his order dated 22/1/2002, granted approval to the appointment of the Petitioner from the date of his appointment i.e. 1/7/1995 as a Clerk.

6. It is submitted that after receiving grant-in-aid to the School, the dispute between the members of Management Committee was started. Objection was raised against Shri Subhash Kadu, who was posing himself as a President, that he was holding the post even after his removal as a member of Trust. The said dispute was over when Shri Subhash Kadu has withdrawn his objection to Change Report, pending before the Assistant Charity Commissioner.

7. At the relevant time, the Secretary of the Management i.e. Respondent No.5 has started raising complaints against the appointment of the Petitioner and other staff members on the ground that appointments were not made by following due procedure of law. He has, therefore, made complaint to the Deputy Director of Education to cancel the approval of the Petitioner and other staff members on the count that their appointment was not made by following due procedure of law. The Deputy Director of Education, by taking cognizance of same, authorised the Education Officer to conduct enquiry into the matter.

8. In response to the direction, Education Officer issued notice to the Petitioner and others to remain present before him, and accordingly, on 29/7/2006 the enquiry was conducted by the Education Officer. The Education Officer, after conducting enquiry, passed the order dated 11/8/2006 by holding that at the time of appointment of the Petitioner in the School, the School Committee was not properly constituted as per the provisions of law. Some of the Members, who are shown in the School Committee were never the members of the Trust shown in Schedule-I of the PTR, and therefore, the appointment of the Petitioner along with other teaching and non-teaching staff is illegal. In the same order, he has directed to recover salary paid to the Petitioner and other teaching and non-teaching staff from the date of grant of approval, till the date of his order, and if the Management fails to recover salary, then same will be recovered from the non-salary grant, which will be due and payable to the School/Management. So also, it was stated that on failure to comply his direction, action will be initiated against the School under Rule 97.2 of the Secondary School Code.

9. In view of this communication of the Education Officer dated 11/8/2006, the Respondent No.5, by his order dated 22/8/2006, issued termination order to the Petitioner by stating that his appointment being illegally made by the Management, as observed by the Education Officer in his order dated 11/8/2006, his services are terminated with immediate effect and also directed to refund the amount and salary, which he received from the date of approval till the date of termination with the Management within a period of 15 days.

10. The Petitioner, being aggrieved by the said order of termination, has preferred the statutory appeal before the Presiding Officer, School Tribunal, Chandrapur bearing Appeal No. 31/2006. So also against the order of the Education Officer of rejecting the approval by order dated 11/8/2006, has preferred Writ Petition No. 4874/2006 before this Court. The Writ Petition was, however, allowed to withdraw by this Court to canvass grievance before the appropriate Authority. It is seen from the record that thereafter the Deputy Director of Education conducted hearing in his office on 9/2/2007 and by his letter No. Sec/No/6216/17 dated 17/3/2007, confirmed the order of Education Officer of cancelling the approval of the Petitioner and others. The Petitioner along with other teaching and non-teaching staff, therefore, approached upto the Hon’ble Minister to redress their grievance.

11. In this background, the Hon’ble Minister, School and Education Department, Maharashtra State conducted hearing in his office on 16/8/2007 and in pursuance of minutes of that hearing, Secretary of the Department by communication dated 24/10/2007 asked the Deputy Director of Education that on the basis of minutes of hearing dated 16/8/2007, he should take necessary action as per the Rules and submit the report of his action to his office.

12. In the present matter, Deputy Director of Education, Nagpur constituted Four Members Enquiry Committee to submit all the details of School from its inception, details of appointment of Petitioner and other staff, details of approval of services of Petitioner and other staff, procedure adopted for rejection of approval, procedure adopted for grant of approval to fresh appointment in place of Petitioner. Accordingly, Four Members Committee, in their report dated 14/12/2009 observed that, the Education Officer has granted approval to the appointment made in School before receipt of grant-in-aid from the date of their appointment. In respect of procedure adopted to cancel the order of approval, it is recorded that after receipt of the complaint from Secretary of Society namely, Shri Aagaskande and Shri K. S. Urade, Deputy Director of Education, by his letter dated 7/12/2005 asked Education Officer to submit his report. The Education Officer, on 3/5/2006 submitted his report, wherein there was no recommendation by Education Officer to cancel the order of approval. But contrary to that report, Deputy Director of Education directed that those who are involved in preparing bogus school committee resolution, FIR be registered against them, cancel all approvals and recover the grant. In pursuance of same, Education Officer conducted hearing and by his order dated 11/8/2006 cancelled the order of approval. In view of filing of Writ Petition No. 4874/2006 and liberty was granted to the Petitioner to canvass his grievance before the appropriate Forum, Deputy Director of Education, on 9/2/2007, conducted hearing in the matter and by his letter dated 17/3/2007 confirmed the order of Education Officer to cancel the order of approval of Petitioner. It is also observed that out of 9 employees, Appeal filed by 8 employees against termination is pending before the School Tribunal.

13. Insofar as fresh appointment in place of Petitioner is concerned, it is observed that while granting permission to fill up the post by order dated 16/9/2006, it was made clear that permission was granted subject to final decision in pending Appeals before the School Tribunal. Thereafter Management has initiated procedure to make fresh appointment in School. All candidates appointed in place of terminated employee has been granted approval by the Education Officer.

14. In the light of observation made by Four Members Committee, it was recommended that as per the letter forwarded by Deputy Director of Education to the Director of Education dated 3/5/2008, employees working at Saraswati Vidyalaya, Dhondgaon should be declared excess, and as a special case, their absorption be done in other School. In respect of one vacant post, Management should decide to appoint one employee Shri Moon. No comment was made in respect of other employees, as their Appeal was pending before the School Tribunal.

15. The Petitioner has pointed out the communication dated 15/4/2010 issued by the Assistant Secretary of Maharashtra State to the Director of Education. Same was issued in reference of the letter of Deputy Director of Education dated 4/3/2010. Perusal of letter shows that clarification was sought in view of pendency of Appeal of the Petitioner and others before the School Tribunal and explanation was sought, what course should be applied in the matter. The Director of Education then issued communication to the Deputy Director of Education and sought his comment in the matter. The Deputy Director of Education, Nagpur, by his communication dated 31/5/2010 addressed to the Director of Education by reproducing the entire report of four members committee, stated that nine employees whose approval are rejected are not by any way responsible for any illegal act, hence, he recommended to reinstate them in service with continuity of service. He further stated that approval of newly appointed candidate be cancelled with immediate effect, and due to dispute in Management, Administrator be appointed over the School.

16. It is further pointed out that Respondent No.1 further asked clarification by his communication dated 1/7/2010 on various issues from the Deputy Director of Education. One of the issue in the said letter, on which explanation was sought, was that, “why the action was not taken against the School for not reinstating 9 employees in the School”. “If 9 employees has to pay their salary, then employees working there would be needed to be terminated, therefore, by taking action as per Rules, submit report to his Office”.

17. The Deputy Director of Education, by his communication dated 9/9/2010, directed the Education Officer, in terms of letter of Director of Education dated 1/7/2010 that if the Management is not obeying the order, action for withdrawal of recognition under Rule 3.2 of Secondary School be initiated against the School.

18. The Education Officer, by his communication dated 13/10/2010 addressed to the Management stated that in view of rejection of approval of nine employees, Management has terminated their services. One of the employee Shri Moon has withdrawn his appeal. Remaining eight employees, including Petitioner, are also ready to withdraw the appeal, if they are reinstated in service. Therefore, reinstate eight employees with immediate effect, otherwise recognition of the School will be withdrawn.

19. In that background, Management approached before this Court by filing Writ Petition No. 5193/2010. The Respondent/Management has pointed out subsequent events, which took place in the matter, and also stated that as the issue of termination of Petitioner and other employees being pending before the School Tribunal, the order of the Education Authorities directing to reinstate them in service is incorrect. Considering the grievance raised by the Management and the fact that the Appeal filed by the Petitioner and other employees were pending before the School Tribunal, Chandrapur, this Court initially granted interim order and then by final order dated 25/4/2011 disposed of the Petition with direction that the School Tribunal shall decide the Appeal filed by the employees on its own merit and the interim stay granted in the said Writ Petition to the communication of Deputy Director of Education dated 13/10/2010 to reinstate the present Petitioner along with other teachers was kept continued till the final decision of appeal before the School Tribunal.

20. The Petitioner, therefore, amended the appeal memo pending before the School Tribunal and all these subsequent facts were brought to the notice of the School Tribunal, Chandrapur. So also Respondent/Management filed counter-affidavit before the School Tribunal to clarify their stand.

21. Before the School Tribunal, Chandrapur, Respondent Nos.5 and 6 have contested the Appeal on its own merits. It is the main contention of the present Respondent Nos.5 and 6 that at the time of appointment of the Petitioner and other teaching and non-teaching staff, the School Committee was not properly constituted. It is also pointed out that Shri Subhash Kadu involved in the prejudicial interest of the Trust was removed vide Resolution dated 13/3/1995 from the post of President. The said Change Report was accepted by order dated 31/3/2005. As such, it is stated that on 13/3/1995 Shri Subhash Kadu was not President of the Trust. Hence, the appointment made by the School Committee under the Chairmanship of Shri Subhash Kadu are illegal.

22. The Respondent/Management before the School Tribunal in addition to above in their reply has also specifically stated that entire action of termination is based upon the report of Education Officer dated 11/8/2006. According to him, Education Officer was asked to take necessary action by recording the finding that the appointment of the Petitioner and other teaching and non-teaching staff being illegal, Respondents were constrained to issue termination order as a consequence and result of the order dated 11/8/2006. According to them, Education Officer in his enquiry report dated 11/8/2006 has held that the appointment of the Petitioner and other teaching and non-teaching staff were not made by following due procedure of law, and therefore, directed the Management to terminate the services of the Petitioner and other staff and as a consequence of the same, impugned termination order dated 22/8/2006 was issued in the matter. The same being otherwise justified, the Appeal filed by the Employees deserved to be dismissed.

23. In the light of submission made by both the parties before the School Tribunal, the School Tribunal, vide impugned Judgment dated 25/8/2016 decided the Appeal. The learned Tribunal in the impugned Judgment, by relying upon the report of the Education Officer and also by recording the finding that at the time of appointment of the Petitioner the constitution of the School Committee was not legal and the person, who was not Member of the Trust, was shown in a School Committee and thereby holding that the School Committee being not duly authorised to make an appointment of teaching and non-teaching staff coupled with the fact that the Education Officer has submitted his report dated 11/8/2006 reached to the conclusion that appointment of the Petitioner was not made through legally constituted School Committee, and hence, the termination order issued as a consequence of the same is legal and proper in the matter.

24. I have heard learned Counsel for both sides at length in the matter and perused the Record and Proceeding received to this Court as well as documents enclosed in the Petition.

25. The learned Counsel for both sides have relied upon certain Judgments of this Court as well as the Hon’ble Supreme Court of India. So also has relied upon the original record of the School Tribunal which was called in the matter. In the present case, in my opinion, the issue which arose and required to be decided is — (i) Whether in consequence of report of Education Officer dated 11/8/2006 termination order is justified? (ii) Whether the appointment of Petitioner can be treated as illegal appointment or irregular appointment due to non-constitution of valid School Committee at the time of his appointment? (iii) Whether services of confirmed employees after 11 years of appointment can be terminated without conducting enquiry? and (iv) Whether the School Tribunal has considered entire controversy pointed out by the parties before him while deciding Appeal?

26. In this regard, firstly, it would be necessary to consider the scheme of the Maharashtra Employees of Private Schools (Conditions of Service Regulation) Act, 1977 and Rules 1981 (for short, ‘MEPS Act’ and ‘Rules of 1981’), which governs the service conditions of the Petitioner. This enactment was brought into operation by the legislature with an object to provide security and stability of service to the employees to enable them to discharge their duties towards pupils and their guardians in particular and the Institution and Society in general, effectively and efficiently. In pursuance of this object, the legislature has mandated under Section 4(6) of the MEPS Act that, “no employee of a private school shall be suspended, dismissed or removed or his services shall not be otherwise terminated or he shall not be reduced in rank, by the Management, except in accordance with the provisions of this Act and the Rules made in that behalf.

27. In view of this mandate of the MEPS Act, it is clear that the Management cannot terminate the services of any employee without following the provisions of the Act and Rules framed thereunder. It would be necessary to mention that under Section 5 of the MEPS Act any person being appointed on a permanent vacancy on completion of his period of probation period acquired automatic deemed confirmation in service. Hence, once the employee has acquired deemed confirmation in service, his services can be terminated by taking recourse of Rules 36 and 37 of the MEPS Rules, if they found to be involved in any misconduct or otherwise by imposing the penalties prescribed under Rule 29 of the MEPS Rules. As per Rule 29 read with Rule 31 of the MEPS Rules, termination of the service of the employee is a major penalty. Such penalty can be imposed, if an employee is found to be involved in misconduct, moral turpitude, wilful and persistent negligence of duties and incompetency. Thereafter Rules 33 to 37 provides the procedure for inflicting major penalty against the permanent employee.

28. In the present matter, it is admitted fact on record, as can be seen from the appeal memo and reply of the Respondent/Management that on the complaint of Respondent No.5 to the Deputy Director of Education, the Education Officer conducted hearing to verify as to whether the appointment of the Petitioner and other teaching and non-touching staff was made by following due procedure of law or not and thereby decided to cancel the orders of approval of the Petitioner and other employees. The Education Officer in his report dated 11/8/2006 has recorded the finding that appointment of the Petitioner and other teaching and non-teaching staff were made by illegally constituted School Committee and also recorded the finding that the persons who were not authorised to be the Member of the Committee, has been shown as a member of School Committee, and therefore, by entering into an era of validity and invalidity of the School Committee, decided the issue of appointment of Petitioner. The Education Officer further directed the Management to refund the entire salary paid to the Petitioner from the date of his approval of service with immediate effect and if the said order is not complied with, then action under Rule 97.2 of the School Code will be taken against the Management. The termination order dated 22/8/2006 clearly shows that on the basis of enquiry conducted by the Education Officer, and direction to the Management to take immediate action in the matter, issued termination order.

29. The Respondents, in support of Judgment of the School Tribunal, came with the submission that appointment order obtained by the Petitioner and other employees by misrepresenting and by playing fraud on the Education Officer. According to the Respondents, Education Authorities have prerogative to cancel the approval, if the Authority found that appointment was obtained by misrepresentation or by playing fraud. According to Respondents, Petitioner and other employees along with him has fabricated the documents pertaining to resolution of School Committee at the time of their appointment. According to the Respondents, as per the provisions of MEPS Act, Deputy Director of Education can enquire into the complaints made by the Management. Appointment of Petitioner along with other employees is nullity in law, void ab initio and hence no need to conduct any enquiry into the matter.

30. According to Respondents, the appointment order signed by the then Head Master as Ex-officio Secretary of School Committee has no authority to issue the appointment order. At the time of appointment of Petitioner and other employees in the year 1995, all posts were vacant and same were filled in by way of advertisement. Hence, the appointment order issued under these circumstances are void in law.

31. As per enquiry report one of the co-employee has bribed the then President Shri Subhash Kadu, one employee has not attained the age of 18 years at the time of appointment, not possessing requisite qualification for post. These all facts are recorded in minutes of hearing dated 29/7/2006.

32. In the meeting of School Committee, the newly appointed candidates along with Petitioner are shown as Members of the School Committee. So also in the meeting of School Committee dated 7/6/1995, Shri Subhash Kadu shown as President was removed from 13/3/1995 and Change Report of the same was allowed on 31/3/2005. Hence, he was not authorised to preside over the meeting.

33. However, all the facts were suppressed by the Petitioner. If all these documents looked into, it is clear that by misrepresentation and by way of fraud, appointment order was obtained by the Petitioner along with other employees.

34. The Respondent has relied upon the following Judgments in the matter in support of their submission :

                    (i) S. P. Chengalvaraya Naidu V/s Jagannath, 1994(1) SCC 1, with a proposition that a person who’s case is based on falsehood, has no right to approach the Court and such person be summarily throughout at any stage of litigation.

                    (ii) Ram Chandra Singh V/s Savitri Devi, 2003(8) SCC 319, wherein it is held that suppression of material documents amount to fraud and such contention can be raised at any stage of the proceeding and falls under the proposition relied upon the various Judgments which are discussed by the Hon’ble Supreme Court of India.

                    (iii) Union of India V/s Raghuwar Pal Singh, 2018(15) SCC 463, wherein the Hon’ble Supreme Court of India has held that if the appointment orders were not signed by the competent authority, then same is a nullity in law and even compliance of natural justice is not required while terminating the services of employee.

                    (iv) Prakash V/s Janta Education, 2022(1) Mh.L.J. 243, if the appointment order is not signed by the proper authority, then it is a nullity and applying the said principle the appointment of the Petitioner is liable to be quashed and set aside.

                    (v) Ramkrishna Chauhan V/s Seth D. M. High School, 2013(2) Mh.L.J. 713, wherein it is held that if the appointment orders issued on purely temporary basis and the same has been accepted by the employee, then he cannot challenge the same by stating that same was contrary to the provisions of law.

                    (vi) Mohd. Yunus V/s Mohd. Mustaqim, 1983 (4) SCC 566 and State of Haryana V/s Manoj Kumar, 2010(4) SCC 350, on the proposition that this Court while exercising the powers under Article 227 of the Constitution of India cannot act as an Appellate Court or Tribunal or evade the provisions upon which the Tribunal has decided the Appeal.

Lastly, the Respondent has relied upon the Judgment of the Hon’ble Supreme Court of India in the case of State of UP. And Others V/s Maharaja Dharmander Prasad Singh and Others, along with connected Appeals, (1989) 2 Supreme Court Cases 505 to state that if it is found that any order obtained by fraud or misrepresentation, then in such circumstances, same can be looked only by the authorities and reconsider the entire issue.

35. In view of this factual aspect, the issue which is cropped up in the matter as to whether the Education Officer can decide the validity of the School Committee, which is the internal affairs of Management and comes under the domain of Assistant Charity Commissioner to decide the said issue under the provisions of Maharashtra Public Trust Act. In this regard it would be relevant to refer the Judgment of this Court in the case of Murlidhar s/o Janrao Kale and Others V/s State of Maharashtra and Others, 2011 (1) Mh.L.J. 849. In the said Judgment, the Division Bench of this Court has dealt with such controversy and specifically answered this issue by quoting a question as under :

                    “Who is the Authority to decide which Trustee or Board of Trustee or Group of Trustees or person connected with Trust are entitled to administrate to Trust or its Institution or School or Colleges or whether the Deputy Director of Education or any other Education Authority will have jurisdiction to decide such issue or authorised the Trustees or Board of Trustees or Group of Trustees to look after the administration of the School run by a Trust pending dismissal of Change Report before the Assistant Commissioner or in a given case of dispute.”

In this regard, the specific findings were recorded by the Divisional Bench of this Court in paragraph No.9 of the Judgment, which reads thus :

                    “9. In the light of the above discussion, we hold that the Deputy Director of Education had no authority, power or jurisdiction to decide which board of trustees or trustees shall run the management of the Trust and the Schools but the jurisdiction is with the Assistant Charity Commissioner. We therefore hold that the order dated 30-1-2010, passed by the Deputy Director of Education, Amravati Division, Amravati holding that the elected Management led by President in the election on 16-3-2008 and the members shown in the Change Report No. 119/2008 are the authorized trustees to look after the management of the Trust and the school, is without any authority and without jurisdiction. It is noteworthy that this Court while remitting the matter to the Deputy Director of Education while deciding Writ Petition No. 3983/2009 on 11-1-2010 had never asked the Deputy Director of Education to decide this question as to who shall run the Trust and its institutions.”

From the abovesaid Judgment it is clear that Deputy Director of Education or any other Educational Authority has no authority to decide which Board of Trustees shall run the management of the trust and jurisdiction to decide the same lies with the Assistant Charity Commissioner.

36. It would be further relevant to refer the Judgment passed by the Co-ordinate Bench of this Court in the case of Azaz Kibriya Khan s/o Maqsoodali Khan V/s Tanvir Ahmed Khan Shabbir Khan and Others, 2017(4) Mh.L.J. 372, in which, this Court has observed in paragraph No.4 as under :

                    “4. Under the scheme of the Act of 1977 and the Rules framed under it, the School Tribunal is not required to delve into inter se disputes of the trustees. The trustees individually cannot be permitted to raise the issues regarding administration of the school. Under the scheme of the Act of 1977 and the Rules framed under it, the decisions regarding imposing/inflicting punishment on the employees is to be taken by the management of the school. The "management" is defined under section 2(12) of the Act of 1977 as follows:

                    "Management", in relation to a school, means,

                    (a) In the case of a school administered by the State Government, the Department;

                    b) in the case of a school administered by local authority, that local authority; and

                    (c) In any other case, the Person, or body of persons, whether incorporated or not and by whatever name called, administering such school:"

                    Thus the decision of terminating the services of the employees is required to be taken by the management i.e. the person, or body of persons administering the school As per Rule 36(1) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as the "Rules of 1981"), in case of an employee other than the head of the school if the management decides to hold an enquiry, the Chief Executive Officer authorised by the management has to act as per the various provisions of Rule 36 of the Rules of 1981. The scheme of the Act of 1977 and the Rules framed under it do not recognise the right of individual trustee to seek audience before the Tribunal in appeal under section 9 of the Act of 1977 and if it is permitted, the Tribunal will have to decide the inter se disputes amongst the trustees/office bearers of the society (Trust) which jurisdiction is not conferred on the Tribunal. The issue as to who is in control of the affairs of the Public Trust falls within the jurisdiction of the authorities under the Maharashtra Public Trusts Act, 1950. The Tribunal while considering the appeal filed by the employee under section 9 of the Act of 1977 is required to only examine the legality of the termination order. The appellant before the School Tribunal will have to discharge the preliminary burden of asserting that the termination order challenged by him in appeal is illegal having not been issued by the competent authority and then the management which is impleaded as respondent in the appeal will have to discharge its burden of refuting the claim of the appellant (employee).”

37. In the facts and circumstances of the present case, Judgment of the Full Bench in the case of St. Ulai High School V/s Devendraprasad, 2007(1) Mh.L.J. 597, is also relevant, wherein it is clarified that neither in the act nor under the Rules anywhere imposed a condition that grant of approval to an appointment by the Education Officer is a sine qua non for valid appointments. Per contra, it is held that the matter of approval is between the Management and the Education Officer and is relevant only for the release of grant by the State Government to the Management. The School Tribunal has to decide about the nature of appointment independently.

38. This Court, considering the Judgment of Hon’ble Full Bench in the case of Santosh Dalvi V/s Smt. Bharti Jadhav, 2007(3) Mh.L.J. 647, has held that the Education Officer has no statutory powers to issue direction to terminate the services of the employee. The relevant paragraph 7 of the said Judgment reads as under :

                    “7. In spite of repeated query, the learned A.G.P., was unable to point out any provision of law either in the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 or the Rules framed thereunder or in the Secondary School Code which could justify the order of the Education Officer, in the case in hand, in relation to direction issued to the Management to terminate the services of the respondent No. 1. The learned A.G.P. sought to justify the order solely on the ground that there were illegalities committed by the School Management and, therefore, action was Administrator was appointed on 14th September, 2005. The powers of taken and even the Education Officer to take appropriate action for illegalities committed by the School Management cannot be disputed. However, that itself cannot empower the Education Officer to issue directions of the nature which were issued in the matter in hand for termination of service of the respondent No. 1. In the absence of any statutory provision empowering the Education Officer to issue such direction, no fault can be found with the findings of School Tribunal, wherein it has been observed that the termination order having been issued solely at the instance of the direction given by the Education Officer and in the absence of the Education Officer disclosing statutory provision to issue such direction, the order of termination was liable to be set aside. Indeed, the Tribunal has exercised its jurisdiction in accordance with the law and considering the fact that direction issued For termination of service of the respondent No. 1 was beyond the scope of powers of the Education Officer, no fault can be found with the impugned order.”

39. It would be further pertinent to note that there is difference between “irregular appointment” and “void ab initio appointment”. If the employee at the time of appointment was not holding requisite qualification for post and without verifying the same appointment was made, then it can be said that appointment was void ab initio from the date of its inception. However, if appointment is to be made by the Management after adopting certain procedure and there was procedural lapse committed by the Management Committee, then it can be termed as “irregular appointment”. As per the settled position of law, “irregular appointment” could be regularized but not the appointment which found to be void ab initio. It would be relevant to refer the Judgment of Co-ordinate Bench of this Court in the case of Harishchandra Panditrao Gitte V/s Shridhar Gangaram Gitte and Others, 2007(1) Mh.L.J. 837, wherein in paragraph 15 has observed as under :

                    “15. The contention of learned counsel respondents/interveners is that though, order of reversion could be branded as illegal and late Suvvalal had no legal authority to issue the same yet, the petitioner - Prof. H. P. Gitte cannot claim reinstatement for the reason that he was not appointed by Selection Committee constituted under statute No. 219. I am unable to persuade myself to go along this line of argument. The appointment of Prof. H. P. Gitte was confirmed as a result of the resolution passed by the Managing Committee and he was accordingly informed by letter dated 24-5-1993 (Exh.A). He was placed in regular pay-scale of Principal. The letter does not indicate that his such appointment was made subject to approval by the University. The said letter does not show that it was ad hoc appointment. On the other hand, the letter referred to above would show that his services as Principal came to be regularised and confirmed. There is difference between "irregular appointment" and "void ab initio appointment". The appointment to the post of Principal is required to be made by the Managing Committee of the College after adopting regular procedure. The candidate is required to undergo selection procedure and Selection Committee is to be constituted as per statute No. 219. The appointment of petitioner - Prof. H. P. Gitte was quite irregular since he was not selected by the Selection Committee. This was procedural lapse committed by the management Committee of the college. The petitioner himself was not responsible for such an irregularity. In case of Ram Sarup vs. State of Haryana and others, AIR 1978 SC 1536 the Apex Court held that irregular appointment could be regularised as and when the candidate would acquire the necessary qualifications to hold the post. The Apex Court observed as under:

                    "The question then arises as to what was the effect of breach of Cl. (1) of R.4 of the Rules. Did it have the effect of rendering the appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularised as and when the appellant acquired the necessary qualifications to hold the post of Labour-cum-Conciliation Officer. We are of the view that the appointment of the appellant was irregular since he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years' experience of the working of labour laws in any one of the three capacities mentioned in Cl (1) of R. 4 or in any higher capacity, his appointment must be regarded as having been regularised.”

40. Here in the present case, considering the allegations, which are raised by the Respondent/Management, at the most, the case of the Petitioner and other staff of the School falls in the category of irregular appointment. It is not the case of the Respondent/Management that the Petitioner and the other staff of the School, at the time of appointment, were not holding the requisite qualification, any document at the time of appointment, particularly advertisement, committee report etc. was manipulated by them. The allegation against the present Petitioner and other staff of the School was that the resolutions of the School Committee, which were relied upon, were found to be incorrect, as the person, who was not a member of Trust, was shown as a Member. The Petitioner and the teaching and non-teaching staff, who were working earlier, their names were shown as Members of School Committee and themselves got appointment in the School. But, no where it is pointed out that the other members, who were present at the time of passing resolution of School Committee, were not the Members or such resolutions were never passed by the Management. Therefore, considering the nature of allegations, which are levelled against the present Petitioner, the case of the Respondent falls under the category of irregular appointment.

41. After going through the entire Judgments, which the Respondent has relied upon, it is clear that the Hon’ble Supreme Court has held that if the appointment found to be void ab initio, then appointment of employees can be cancelled. However, in my opinion, as recorded above, it is not a case of illegal appointment, rather it is a case of irregular appointment. Therefore, considering the view expressed in above paras by me, in my opinion, the case laws, which Respondent has relied upon, are not applicable in the present case.

42. In addition to above, it would be also pertinent to note that in the present case, the appointment of the Petitioner was dated 27/6/1995. The impugned termination order issued by the Management was dated 22/8/2006. As such, the Petitioner has rendered almost eleven years of service in the Respondent No.6/School. Admittedly, due to his continuous service of eleven years, he has obtained the deemed confirmation in the employment as per Section 5(2) of the MEPS Act, therefore, as per the mandate of Section 4(6) of the MEPS Act, the procedure incorporated under Rules 35 to 37 was required to be followed, if the Management is of the opinion that appointment of the Petitioner is illegal. But admittedly in the present matter no such procedure has been followed. Hence, it is clear that there is a violation of the statutory provisions of law, by which, the services of the Petitioner are governed.

43. In the background of abovesaid facts, one more Judgment which is relevant in the present matter is also required to be referred i.e. the decision of Auragabad Bench in Writ Petition No. 8134/2012 decided on 8/9/2016. The Co-ordinate Bench of this Court has taken a view that after rendering service of 10 years by any employee, the action of Management to terminate the services is not permissible. While laying down this principle, this Court has taken assistance of various Judgments of the Hon’ble Supreme Court of India. Paragraph No.19 of this Judgment would be relevant in the matter. Same reads as under :

                    “19. In my view, the above recorded factors have been totally lost sight of by the School Tribunal thereby rendering the impugned judgment unsustainable. On these premise, the reliance placed by respondent Nos. 1 and 4 on the judgments of the Hon'ble Apex Court in the matter of Nagendra Chandra and others vs. State of Zarkhand and others, (2008) 1 SCC 798, Ashok Kumar Sonkar vs. Union of India and others, (2007) 4 SCC 54, State of M. P. and others vs. Shyama Pardhi etc., AIR 1996 SC 2219 and the judgments of this Court in the matter of Priyadarshini Education Trust and others vs. Ratis (Rafia) Bano Abdul Rasheed and others, 2007(6) Mh.L.J. 667 2007(6) ALL MR 238, Rayat Shikshan Sanstha and another vs. Yeshwant Dattatraya Shinde, 2009(6) Mh.L.J. 475 and Chandramani Devraj Tiwari vs. Secretary, Smt. R. B. Tiwari Sanskrutik Kendra and others, 2008(3) Mh.L.J. 274 is misconceived. After 10 years of permanent service by the petitioner and without any challenge from the Management for 9 years, renders the action of termination illegal and unsustainable”

44. The enactment, by which the service of the Petitioners are governed, is a special Code in itself. It provides all the procedure and powers to the Management to take action. If the management is of the opinion that the employee has committed any of the misconduct, as contemplated under Rule 29 of the MEPS Rules, then the Management has to follow the mandatory procedure as stated under Rules 36 and 37 of the MEPS Rules.

45. In the present case, admittedly, no such procedure has been adopted in the matter. The learned Assistant Government Pleader failed to demonstrate any provision under MEPS Act and Rules framed thereunder empowering Educational Authorities to make enquiry into the validity of School Committee dehors Rule 36 and 37 of the MEPS Act and by entering into that era direct Management to take action in the matter. Hence, due to non adhering the procedure contemplated under Rules 36 and 37, termination is vitiated and liable to be quashed and set aside.

46. In view of the abovesaid factual as well as legal position in the matter, I reached to the conclusion that the Management, who has terminated the services of the Petitioner by impugned termination order dated 22/8/2006 on the basis of communication of the Education Officer dated 11/8/2006 is illegal. Secondly, the Deputy Director of Education as well as Education Officer seems to have rectify their mistake, which is confirmed from the communication dated 31/5/2010, addressed by the Deputy Director of Education to the Director of Education, wherein it is clearly stated that in the entire episode there was no role played by the Petitioner and other employees. The Education Officer, by his communication dated 13/10/2010 asked the Management to reinstate the Petitioner along with other employees on his former post. Hence, this aspect was not considered by the School Tribunal.

47. As recorded above, the appointment of the Petitioner almost can be said to be an irregular appointment due to non-constitution of valid School Committee, but on the basis of documents available on record, it no where clear that there is any illegality in the appointment of the Petitioner. After service of 10 years on the count of such irregularity, the services of the employee cannot be terminated, and therefore, the impugned Judgment passed by the School Tribunal needs interference in the matter.

48. From the above discussion, it is clear that the impugned termination order was issued in view of report of the Education Officer dated 11/8/2004. Thereafter the Deputy Director of Education constituted Four Members Committee. The said Committee, on 14/12/2009 submitted the report. It has been recommended that the employees of School be declared as excess and be absorbed in any other School as a special case. One employee namely Shri Moon who has withdrawn his appeal from the School Tribunal, was directed to be reinstated on available vacant post. The Management has reinstated him and at present he is working in the School. The Deputy Director of Education and Education Officer then directed the Management to reinstate the Petitioner along with others, but the said order was challenged in Writ Petition No. 5193/2010 before this Court. This Court granted stay, but by the final order dated 25/4/2011 in view of pendency of Appeal filed by the Petitioner and others, directed to redress their grievance before the School Tribunal.

49. The learned School Tribunal, while deciding the Appeal, only to the extent of direction of Deputy Director of Education on the complaint of Secretary to Education Officer and report of Education Officer dated 11/8/2004 has considered the matter. The learned Tribunal did not touch to subsequent events which were brought on record by the Petitioner in appeal. Perusal of the subsequent events clearly demonstrate that order of Education Officer was cancelled and Four Members Committee constituted by the Deputy Director of Education has specifically recommended to absorb the services of employees appointed on the place of Petitioner and reinstate the Petitioner on his former post along with others.

50. It is further pertinent to note that out of nine employees, who were removed by the Management, after the report of Four Members Committee, reinstated one employee Shri Moon in service. But in respect of Petitioner and other employees, Management seems to be negligent and expressed their displeasure to reinstate them in service. This is nothing but discrimination at the hands of Respondent/Management amongst the identically situated employees.

51. In view of the facts and circumstances of the case, it is clear that the Petitioner, since the date of termination is out of employment. It is established on record that the Petitioner was/is diligently prosecuting his cause. It is not the case of Respondent/Management that during the pendency of Petition, the Petitioner was gainfully employed elsewhere. This all mess created by the Respondents in the matter. Therefore, in my considered opinion, all the Respondents jointly and severally responsible to pay 100% back wages to the Petitioner from the date of termination till the date of reinstatement or attaining the age of superannuation, in case the Petitioner has attained the age of superannuation. So also he is entitled for continuity of service with all consequential benefits of service.

52. Accordingly, I proceed to pass following order.

                    ORDER

                    1. Writ Petition is allowed.

                    2. The impugned Judgment and Order dated 25/8/2016 passed by the Presiding Officer, School Tribunal, Chandrapur in Appeal STC No. 31/2006 is hereby quashed and set aside.

                    3. The Respondent Nos.5 and 6 are directed to reinstate the Petitioner in service on his former post of Clerk with continuity of service and 100% back wages from the date of termination till the date of reinstatement and in case Petitioner has attained the age of superannuation, then till the date of attaining age of superannuation.

                    4. The Employee, who was appointed in place of Petitioner, after termination of the Petitioner shall be held excess in service and his services shall be absorbed by the Education Officer (Secondary) as a special case to any other School as per Rules.

                    5. In case the Petitioner has attained the age of superannuation during the pendency of Petition, then the Respondent Nos.5 and 6 shall immediately by taking entry of continuity of service in his service book from the date of termination till attaining the age of superannuation, forward the proposal to the concerned Authority within 45 days from the date of Judgment of this Court.

                    6. Rule is made absolute in above terms. No order as to costs.

53. Since the Writ Petition is disposed of, pending Civil Application No.98/2025 does not survive. The same stands disposed of accordingly.

Later on :

54. At this stage, Ms. Ritu Jog, learned Counsel appearing for the Respondent Nos.5 and 6 seeks stay to this order for a period of six weeks. The same is strongly opposed by the learned Counsel for Petitioner.

55. In the circumstances, this order shall remain stayed for a period of four weeks.