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2011 Supreme(Bom) 197
2011(6) All MR 344
High Court of Bombay at Aurangabad
HONOURABLE MR. JUSTICE D.B. BHOSALE & THE HONOURABLE MR. JUSTICE R.M. BORDE
Dr.Kalpana Narayanrao Kadam
Versus
Godavari Manar Charitable Trust & Others
LETTERS PATENT APPEAL NO.32 OF 2011 IN WRIT PETITION NO.941 OF 2009 AND LETTERS PATENT APPEAL NO.31 OF 2011 IN WRIT PETITION NO.905 OF 2009
Decided on : 18-02-2011
For the Appellant:R.N. Dhorde, Advocate h/f V.R. Dhorde, Advocate.
For the Respondents:R1, Satyajit Bora, R3, Anand Bhandari, Advocates, R2, D.R. Kale, AGP.
Headnote:Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Section 9-Bombay High Court Appellate Side Rules, 1960, Chapter XVII, Rule 18-Letters Patent (Bombay), Clause 15-Letters Patent appeal-Judgment-Interlocutory order-Every interlocutory order cannot be regarded as ’judgment’-Only those interlocutory orders which are final determination affecting vital and valuable rights of parties and which work serious injustice to party concerned would be "judgment".-Every interlocutory order cannot be regarded as a ’judgment’, but only those orders would be judgments, which are final determination affecting vital and valuable rights of the parties and which work serious injustice to the party concerned.
Bombay High Court Appellate Side Rules, 1960 - Chapter 17, Rule 18-Letters Patent (Bombay), Clause 15-Letters Patent Appeal-Against judgment of single Judge passed on a writ petition under Article 226 of Constitution-Lies to Division Bench of High Court.-Rule 18 in Chapter XVII of the Rules deals with single Judge’s power to finally dispose of applications under Articles 226 or 227. It states that notwithstanding anything contained in Rules 1, 4 and 17 of this chapter, applications under Article 226 or under Article 227 of the Constitution (or applications styled as applications under Article 227 of the Constitution read with Article 226 of the Constitution) arising out of the orders passed under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, (See Rule 18(41), may be heard and finally disposed of by a single Judge. Rule 18 in Chapter XVII of the Rules read with Clause 15 of the Letters Patent provides for appeal to the Division Bench of the High Court from a judgment of the single Judge passed in a writ petition under Article 226 of the Constitution.
D.B. Bhosale, J.
Heard learned counsel for the parties.
Admit.
Appeals are heard finally at the stage of admission with the consent of learned counsel for the parties.
2. These two letters patent appeals are basically directed against the order dated 4.12.2009 passed in Writ Petition No.941/2009 whereby this Court granted interim relief in terms of prayer clause (D). In the prayer clause (D), the respondent-writ petitioner prayed for stay of the order passed by the School Tribunal. The appellant also sought review of the order dated 4.12.2009 by filing Civil Application No.636/2010 in Writ Petition No.941/2009 and Civil Application No.637/2010 in Writ Petition No.905/2009. Both the civil applications seeking review of the order dated 4.12.2009 were rejected vide order dated 23.7.2010. This order is also under challenge in the appeals.
3. Writ Petition No.941/2009 has been filed by the respondent-trust whereas Writ Petition No.905/2009 has been filed by the respondent-Apparao Patil, both challenging the judgment and order rendered by the School Tribunal dated 17.10.2008 in the appeal filed by the appellant challenging her oral termination order dated 11.10.2007. The said order, terminating the appellant's services as Head Mistress, has been quashed and set aside by the Tribunal. The Tribunal has directed respondent-trust to reinstate the appellant as Head Mistress in Shri Saibaba Secondary and Higher Secondary School with continuity of service from the date of her oral termination. They are further directed to pay full back wages to the appellant from the date of termination with all consequential benefits. This Court admitted both the writ petitions and granted interim relief in terms of prayer clause (D) in the writ petitions.
4. Before we proceed further, it would be relevant to mention few undisputed facts. The appellant was initially appointed in primary school run by respondent -trust vide order dated 3.10.1989 as Assistant Teacher. Lateron she was appointed as Head Mistress of the said school. In 2002, having regard to the qualification of the appellant, she was appointed in Shri Saibaba Secondary and Higher Secondary School (for short "the said school"), run by respondent-trust, as Assistant Teacher. Since 2000, the post of Head Master in the said school was vacant and in view thereof in 2002, the appellant was appointed as in-charge Head Mistress. Till then, respondent-trust did not appoint either respondent-Apparao Patil, who claims to be a senior most teacher in the said school, or any other senior teacher as Head Master, and chose to keep the said post vacant till the appellant was appointed in 2002. The said appointment was approved by the Education Officer vide order dated 6.5.2004, as contemplated by Rule 3 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short "MEPS Rules"), and she continued to work as full-fledged Head Mistress of the said school till she was orally terminated on 11.10.2007 by respondent-trust. None of the senior teachers in the said school including respondent-Apparao Patil, made any grievance either in 2002, when she was appointed as incharge Head Mistress, or in 2004 when her appointment as Head Mistress was approved by the Education Officer. The order of approval dated 6.5.2004, clearly makes reference to "no objection" given by all senior teachers in the said school in favour of the appellant's appointment as Head Mistress. The respondent-trust has not denied the "no objections" given by senior teachers as mentioned in the letter / order of approval.
Respondent-Apparao Patil claims that for the first time on 25.9.2006, he made representation to respondent-trust and the Education Officer making grievance of her appointment as Head Mistress denying his claim. However, thereafter he did not approach either the Tribunal or the Education Officer or any other forum taking exception to her appointment as Head Mistress and kept quiet for a
