Bombay High Court Division Bench Considers Teacher's Reinstatement in LPA; Reviews Requirement for Preliminary Issue on Appointment Validity Under MEPS Act, Section 5. Appointment on Reserved Post with Higher Qualification Questioned; Court Clarifies That Issue of Appointment Compliance Is Not Jurisdictional and Must Be Pleaded.

Service dispute concerning termination of a teacher and compliance with the appointment requirements under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977.

Appellant sought reinstatement with continuity of service and back wages.

The appellant’s services were terminated retrospectively by the Head Master on the ground that the Education Officer refused to approve her appointment because she held M.A., B.Ed. instead of D.Ed., despite her posting being under the trained graduate teacher quota.

The School Tribunal dismissed her appeal under Section 9 of the MEPS Act, holding that the appointment was not as per Section 5. The learned Single Judge of the High Court in Writ Petition No.8531 of 2009 refused reinstatement but issued certain directions, noting that a subsequent appointee (respondent no.4) was working on the post since 2003.

Whether the Letters Patent Appeal is maintainable against the order of the Single Judge passed in a writ petition under Articles 226 and 227 of the Constitution. Whether the appointment of the appellant was in accordance with Section 5 of the MEPS Act and the Rules framed thereunder, and whether the School Tribunal could dismiss the appeal solely on the preliminary issue of appointment validity. Whether the Single Judge was justified in denying reinstatement despite findings that the appellant was appointed against a permanent reserved post for which she possessed the requisite qualifications.

Appellant’s submission: The Tribunal recorded that the post was under 25% Graduate Quota and the appellant’s M.A., B.Ed. was correct; the finding of invalid appointment under Section 5 was baseless as it rested on non-production of advertisement which was never the stand of the management or Education Officer; mere refusal of approval does not render appointment void; the Single Judge wrongly denied reinstatement based on lis pendens consideration; the LPA is maintainable as per Advani Oerlikon Full Bench. Respondents’ submission: The LPA is not maintainable as the Single Judge exercised powers under Article 227; the burden to prove compliance with Section 5 lay on the appellant and she failed; the Tribunal rightly framed and answered the preliminary issue as per Anna Manikrao Pethe; the legal position on appointment of graduate teachers for 5th-7th standard schools was unsettled until 2007 and cannot be applied retrospectively; the appellant did not produce advertisement to disprove the Tribunal’s finding.

The issue of appointment validity under Section 5 of the MEPS Act is not a jurisdictional issue but a mixed question of fact and law that must arise from the pleadings of the parties; the School Tribunal cannot frame such an issue suo motu based on a vague or unsubstantiated plea. The direction in Anna Manikrao Pethe requiring the Tribunal to frame a preliminary issue even if not raised must be read in the context that the issue must be properly pleaded and not merely a bare denial. The Full Bench in St. Ulai High School v. Devendraprasad Jagannath Singh overruled the limb of Anna Pethe that rendered an appeal non-maintainable where appointment was not approved, indicating that mechanical framing of preliminary points is not warranted.

The issue whether the appointment of the concerned teacher was made in accordance with Section 5 of the MEPS Act... or not, is a mixed question of facts and law and is not a question of jurisdiction of the Tribunal. The issues must be framed confined to facta probanda, i.e. With respect to material questions of fact or law and not to facta probantia, i.e. on subordinate facts. By raising a oneline pleading without any substantiation thereof, that the appointment of the appellant was not in accordance with Section 5 of MEPS Act and the Rules, cannot give rise to an issue to that effect. The judgments of the Division Benches of this Court in Anna Manikrao Pethe Vs. Presiding Officer, and Shailaja Ashokrao Walse Vs. State of Maharashtra (supra) to the extent that they hold that an appeal is not maintainable before the Tribunal at the behest of an employee whose appointment has not been approved do not reflect the correct position in law and are overruled.

The appellant was appointed on 1 August 2000; terminated on 31 January 2003 retrospectively from 8 April 2002. She filed an appeal before the School Tribunal under Section 9 of the MEPS Act; the Tribunal dismissed it on the preliminary issue that the appointment was not as per Section 5. Aggrieved, she filed Writ Petition No.8531 of 2009 before the High Court; the learned Single Judge refused reinstatement but gave some directions. Hence, the present Letters Patent Appeal No.149 of 2012 was filed against the order of the Single Judge.

• Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977: Section 5, Section 9
• Constitution of India: Article 226, Article 227