2010(6) ALL MR 739
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

S.A. BOBDE AND C.L. PANGARKAR, JJ.

Bipinchandra Dubey & Anr.Vs.Sant Kawarram Shikshan Parishad, Gondia, Through Its Secretary Murlidhar Hardasmal Thakrani & Ors.

Writ Petition No.910 of 1993

11th June, 2010

Petitioner Counsel: Mr. S. P. KSHIRSAGAR
Respondent Counsel: Ms. TAJWAR KHAN

Constitution of India, Art.226 - Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act (1977), S.9 - Maharashtra Employees of Private Schools (Conditions of Service) Rules (1981), R.6, Proviso - Writ petition - Alternate remedy - Petitioners originally approaching Court for a direction to respondent No.4 Educational Officer to consider Fifth to Seventh Standard Classes of respondent No.2/School as attached to Primary School and give all benefits accordingly - Petition pending in this regard since 1993 - Petitioner's services terminated apparently sometime in the year 2008 i.e. the period when amendment was prayed for and allowed - Hence, the principle that a party should not be relegated to an alternate remedy if the petition has been pending for a long time does not apply to the present petition - Held, appropriate remedy available to petitioner is to file an appeal under S.9 of the M.E.P.S. Act. (Para 2)

JUDGMENT

S. A. BOBDE, J.:- The petitioners have approached this Court for a direction to respondent no.4/Education Officer to consider Fifth to Seventh Standard classes of respondent no.2/School as attached to the Primary School and give all the benefits accordingly. The petitioners were untrained teachers who were initially appointed in the Primary School. When the Primary School was started, the Middle school and the Secondary school were already functioning. When the petitioners were appointed, the middle school classes were attached to the Primary School. However, later on, it seems that the Education Officer treated the Middle school classes as attached to the Secondary School classes. The respondent/Management, apparently, refused to allow the petitioners to undergo course for training qualification so that the petitioners can be treated as qualified by virtue of 2nd proviso to Rule 6 of the Maharashtra Employees of Private Schools Rules, 1981, which reads as follows :

"6. Qualifications of Teachers :

The minimum qualifications for the posts of teachers and the non-teaching staff in the primary schools, secondary schools, Junior Colleges and Junior Colleges of Education shall be as specified in Schedule "B" :

Provided that.............

(Provided further that, the untrained graduate appointed as a teacher after obtaining the permission from the Education Officer before the commencement of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and who continues to be in service in any school on the date of commencement of the Maharashtra Employees of Private Schools (Conditions of Service) (Amendment) Rules, 1984 shall, be continued in service on the condition that he obtains the prescribed training qualifications at his own cost before 1st June, 1987, unless he has already obtained such qualifications, failing which his services shall be terminated."

2. When the petition was filed, a prayer was made to direct the respondent/School to do all necessary acts to safeguard services of the petitioners. However, it appears that, during pendency of the petition, the services of petitioner no.1 only were terminated by the respondent/Management as petitioner no.2 had abandoned his services. In the circumstances, we are of the view that petitioner no.1 is the only petitioner in the array of the petitioners who must avail of the remedy provided by Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, which reads as follows :

"9. Right of appeal to Tribunal to employees of private schools :

(1) Notwithstanding anything contained in any law or contract for the time being in force, (any employee in a private school,-

(a) who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank, by the order passed by the Management; or

(b) who is superseded by the Management while making an appointment to any post by promotion,

and who is aggrieved, shall have a right of appeal and may appeal against any such order or supersession to the Tribunal constituted under Section 8) :

Provided that, no such appeal shall lie to the Tribunal in any case where the matter has already been decided by a Court of competent jurisdiction or is pending before such Court, on the appointed date or where the order of dismissal, removal, otherwise termination of service or reduction in rank was passed by the Management at any time before the 1st July, 1976.

(2) .........

(3) .........

(4) .........."

3. It is not available to the petitioner to contend that he should not be relegated to the alternate remedy because the petition has been pending in this regard since 1993. The petitioner's services were terminated apparently sometime in the year 2008 i.e. the period when the amendment was prayed for and allowed. Hence, the principle that a party should not be relegated to an alternate remedy if the petition has been pending for a long time does not apply to the present petition. In any case, we are of the view that the appropriate remedy available to the petitioner is to file an appeal u/s.9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. Accordingly, the petition is dismissed. Rule is discharged.

Petition dismissed.