Letters Patent Appeal No.140 of 2003,Writ Petition No.4417 of 2003,Letters Patent Appeal No.141 of 2003,Writ Petition No.4418 of 2003

26th March, 2004

Petitioner Counsel: Mr. R. S. APTE,Mr. D. K. AILAWADI
Respondent Counsel: Mr. R. M. PATNE,Mr. SHAIKH NASIR MASIH

Cases Cited:
Chairman/President Rotary Charitable Trust Vs. Nagendra Pratapsingh, 2003(4) ALL MR 888=(2003)5 Bom.C.R. 12 [Para 8]

JUDGMENT

C. K. THAKKER, C.J.:- Both these appeals have been filed against an order passed by the learned single Judge in Writ Petition No.4417 of 2003. By the said order, the learned single Judge has confirmed the order passed by the Presiding Officer of the Additional School Tribunal, New Mumbai in Appeal No.128 of 1999 dated 19th April, 2003 and setting aside an order of termination issued against Smt. P. B. D'Souza (Respondent No.3 in LPA No.140 of 2003 and Respondent No.5 in LPA No.141 of 2003) dated 26th March, 1999 with effect from 30th April, 1999.

2. So far as the first Letters Patent Appeal (LPA No.140 of 2003) is concerned, it is filed by the School whereas the other Letters Patent Appeal (LPA No.141 of 2003) is filed by the Appellant who was ordered to be appointed as Head Mistress of the School.

3. The Tribunal while considering the case of Smt. D'Souza, came to the conclusion that when the Head Mistress was about to complete two years, by an order dated 26th March, 1999 her services came to be terminated with effect from 30th April, 1999. The Tribunal noted that the order prima facie appeared to be an order of "termination simpliciter". Considering the attenuating circumstances, however, the Tribunal held that it was not an order of termination simpliciter.

4. One of the circumstances relied upon by the Tribunal was that a certificate was issued in favour of Respondent No.3 on 2nd August, 1999. In the said certificate, it was stated that Smt. D'Souza had served the School as a Head Mistress for two years. During her probation period, her teaching as well as general work as Head Mistress was "Satisfactory". It was also stated "She bears good moral character".

5. The order was challenged by the School Management by filing Letters Patent Appeal. Three contentions were raised before the learned single Judge. Firstly, that it was a minority school and school had, therefore, right to appoint Head Mistress and the said action cannot be interfered with. Secondly, it was contended that Smt. D'Souza was appointed on probation and only after two years, she could be deemed to be confirmed under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. Since she was appointed on 23rd June, 1997 she was to complete two years on 23rd June, 1999 and before that on 26th March, 1999 her services were terminated which was in consonance with law and hence the Tribunal has committed an error of law in setting aside the order. Thirdly, it was contended that no approval was granted by the Education Officer and on that ground also, action of termination could not have been interfered with by the Tribunal.

6. Learned single Judge by giving cogent reasons in paragraphs 8, 9 and 10 rejected all the contentions. We are in agreement with the reasons recorded and conclusions arrived at by the learned single Judge.

7. There are additional reasons also. The certificate issued by the Management goes to show that her work was satisfactory. Moreover, though the order was passed in April, 2003, the said order has not been complied with. The learned Counsel for Smt. D'Souza has stated that though attempts had been made by Smt. D'Souza to get reinstatement, she was not reinstated.

8. In this connection, it may be profitable to refer to a decision of this Court in Chairman / President Rotary Charitable Trust and Others Vs. Nagendra Pratapsingh and another, (2003)5 Bom.C.R. 12 : 2003(4) ALL MR 888, wherein the Division Bench of this Court held that when a person approaches this Court, it is expected of the Petitioner / Appellant to comply with the order passed by the Court / Authority. If the order has not been complied with and no interim relief is obtained, it may be one of the grounds not to grant relief in favour of such litigant.

9. An additional argument which has been advanced by the learned Counsel for the Appellant in Letters Patent Appeal No.141 of 2003 and it is that Smt. Shahnaz Afsari, the Appellant, was appointed after the termination of services of Mrs. D'Souza and therefore she should not suffer. From the record, it is clear that she was appointed as Acting Head Mistress till regular appointment is made to the post of Head Mistress. She, therefore, cannot claim any right. Even otherwise, when the action of terminating services of Smt. D'Souza was held to be illegal and unlawful, in our opinion, relief in favour of Smt. D'Souza cannot be denied.

10. Since the action is held to be removal, in our opinion, other contentions are not relevant nor case law would help the appellants.

11. Both the Letters Patent Appeals, therefore, deserve to be dismissed and are accordingly dismissed.

12. No order as to costs.

13. Parties be given ordinary copy of this order duly authenticated as true copy by the Sheristedar of this Court.

Appeal dismissed.