k 1/9 909 rpwst 41305.25 as.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION (STAMP) NO.41305 OF 2025 IN WRIT PETITION NO.10596 OF 2016 Pragati Vitthal Gawande ....Petitioner V/S The Principal K.M.S. Education & Ors. ....Respondents WITH INTERIM APPLICATION NO.246 OF 2026 IN REVIEW PETITION (STAMP) NO.41305 OF 2025 (for condonation of delay) Pragati Vitthal Gawande ....Applicant V/S The Principal K.M.S. Education & Ors. ....Respondents _________ Mr. Shrirang Katneshwarkar a/w Mr. Sandeep Gupta for the Petitioner/Applicant. Mr. Anurag Saxena with Ms. Mando Loke for Respondent Nos.1 and 2. Ms. K.N. Solunke, Additional GP with Mr. S.L. Babar, AGP for Respondent/State. __________ CORAM : SANDEEP V. MARNE, J. DATE : 25 JUNE 2026. P.C.: 1. Petitioner has sought review of order dated 14 February 2025 passed by this Court dismissing Writ Petition No.10596 of 2016 5led by katkam Page No. 1 of 9 k 2/9 909 rpwst 41305.25 as.doc her challenging the judgment and order dated 10 September 2015 passed by Presiding Of5cer, School Tribunal, Mumbai. 2. There is delay of 283 days in 5ling the Review Petition. Petitioner has pleaded in the Interim Application that she was 5rst advised to challenge the order under review before the Hon’ble Supreme Court and accordingly she had met an Advocate on Record at Delhi, who had advised 5ling of Review Petition rather than challenging the order before the Hon’ble Supreme Court. Petitioner has pleaded that both she as well as her husband were unwell, on account of which review could not be 5led within the permissible time. There are date wise pleadings as well as supporting documents demonstrating treatment underwent by the Petitioner’s husband. I am satis5ed with the justi5cation pleaded for condonation of delay of 283 days. Moreover, this Court is also satis5ed about an error apparent in the order under review and in that view of the matter, I deem it appropriate to condone the delay in 5ling the Review Petition. Accordingly, Interim Application No.246 of 2026 is allowed by condoning the delay in 5ling the Review Petition. 3. Perusal of order dated 14 February 2025 would indicate that this Court has mainly rejected the Petition by recording a 5nding that the School Tribunal did not record a de5nitive 5nding that the Petitioner had completed 30 months of service. This is apparent from following 5ndings recorded in paragraph 4 of the order under review: “4) It appears that there was factual dispute in the present case as to whether the Petitioner actually performed duties after 28 August 2012. No doubt her appointment order dated 30 October 2000 indicated that she was appointed as Shikshan Sevak from 2 December 2009 to 1 December 2012. katkam Page No. 2 of 9 k 3/9 909 rpwst 41305.25 as.doc Upon a factual enquiry, the Tribunal could not record a de5nitive 5nding that she completed 30 months of service. There was serious dispute before the Tribunal about performance of duties and responsibilities by the Petitioner after 28 August 2012.” 4. However, perusal of the order passed by the School Tribunal would indicate that a speci5c issue No.1 was framed as to whether the Petitioner had completed her tenure of three years or 30 months as Shikshan Sevak. Issue No.1 framed and answered by the School Tribunal is as under: i) Whether the appellant has completed her tenure of 3 years or 30 months as Shikshan Sevak? Yes. 5. Thus, the School Tribunal speci5cally answered issue No.1 in the af5rmative. The reasons recorded for answering issue No.1 in the af5rmative are to be found in paragraphs 16 to 18 of the order of the School Tribunal which read thus: “16. I have gone through the rival contentions of appellant and the respondents and heard both the learned advocates at length. I have also gone through the documents placed on record by the appellant as well as respondents. The appellant mainly relied on the appointment letter, mark- sheet prepared by her on 07.12.2012 which is countersigned by the examiner, letter issued by the respondent no.3 to the Dy. Director dated 21.02.2013 wherein the respondent no.3 has mentioned that, on 13.05.2012 the appellant has completed 30 months 12 days tenure of Shikshan Sevak. According to this entire documentary proof it is the case of the appellant that she has completed her tenure of 30 months as Shikshan Sevak as per G.R. dated 13.10.2000 and completed the probation period U/Sec. 5(2) of the Act. 17. On the contrary the respondent no.1 and 2 relied on the muster roll 5led on record from December 2009 to December 2012. The learned advocate for respondent no.1 and 2 pointed out that, in the muster on 28.08.2012 below the name of appellant it is endorsed that, “As per ‘Sanch Manyata’ the services of the appellant are terminated w.e.f. 28.08.2012.” katkam Page No. 3 of 9 k 4/9 909 rpwst 41305.25 as.doc 18. I have gone through the muster 5led on record; it reveals that, respondent no.1 and 2 permitted the appellant sign on the muster even after the endorsement on 28.08.2012 up to 30.09.2012. Thereafter in the month of October 2012 her name is mentioned on the muster but signatures are not seen. It is also clear from the Mark-Sheet dated 07.12.2012 which is countersigned by the examiner that, the appellant was working with the respondents till 07.12.2012. As per the appointment order of the appellant her tenure of Shikshan Sevak ends on 01.12.2012. Therefore, it can be said that, appellant has completed the 30 months tenure as Shikshan Sevak and worked in the respondent school for some days after completion of tenure. Therefore, I answer the point no.1 in the af5rmative.” 6. Thus, the School Tribunal speci5cally held upon conduct of factual enquiry that the Petitioner had completed 30 months tenure as Shikshan Sevak and had worked in the School for some days after completion of the said tenure. 7. Thus, there is an error apparent on face of the record in the 5nding recorded by this Court in paragraph 4 of the order under review. 8. The learned counsel appearing for Respondent No.1-Management submits that even if it is assumed that there is some error in recording a 5nding in paragraph 4 of the order under review, the same would have no impact on the 5nal outcome of the Petition. He submits that this Court has considered the provisions of Section 5(2A) of the Maharashtra Employees’ of Private Schools (Conditions of Service) Regulation Act, 1977 (Act of 1977) as well as Rule 26 of the Maharashtra Employees’ of Private School (Conditions of Services) Rules, 1981 (Rules of 1981) and has thereafter declined relief in favour of the Petitioner. However, perusal of 5ndings recorded in paragraph 5 of the order under review katkam Page No. 4 of 9 k 5/9 909 rpwst 41305.25 as.doc would indicate that the same is again premised on an erroneous assumption that there was dispute about Petitioner working for a period of three years and about satisfactory completion of period of probation. This is clear from following 5ndings recorded in paragraph 5 of the order under review: “5) Another problem in the case of the Petitioner is non grant of deemed status as Assistant Teacher under provisions of Section 5(2A) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. Since there was a dispute as to whether the Petitioner has really worked for a period of three years and whether she satisfactorily completed period of probation, it cannot be concluded that she had attained the status of deemed permanent Assistant Teacher. The school Tribunal has recorded a 5nding by relying upon provisions of Section 26 of the the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 that she was not even issued any appointment order after her tenure came to an end. The Tribunal has therefore refused to treat the Petitioner as the con5rmed Assistant Teacher. … …. … … ….” (emphasis added) 9. Mr. Katneshwarkar invites the attention of this Court to the judgment of Full Bench of this Court in Ram Avadh Mahel Pal vs. Shivdatta Educational Trust & Ors. 1 . The issue referred for determination by the Full Bench was as under: “Whether the Shikshan Sevak on completion of three years or 30 months service appointed on regular basis as an Assistant Teacher in a school in terms of Clause 8 of the Government Resolution dated 13th October, 2000 is required to be appointed as a con5rmed teacher or a teacher on probation?” 10. It appears that during pendency of reference, sub-section (2A) came to be inserted in Section 5 of the Act of 1977 as under: “(2A) Subject to the provisions of sub-sections (3) and (4), shikshan sevak shall, on completion of the probation period of three years, be deemed to have been appointed and con5rmed as a teacher.” 1 Writ Petition No.4645 of 2006, decided on 31 August 2007. katkam Page No. 5 of 9 k 6/9 909 rpwst 41305.25 as.doc 11. Thus, by virtue of insertion of sub-section (2A) in Section 5 of the Act of 1977, every Shikshan Sevak on completion of period of probation of three years is deemed to have been appointed and con5rmed as teacher. Full Bench accordingly proceeded to answer the reference in paragraph 6 of the judgment as under: “6. The reference before the Full Bench will now stand covered by the amendment made by Maharashtra Act XIV of 2007. As a result of the amendment, it has been provided that every person appointed as Shikshan Sevak shall be on probation for a period of three years. Moreover, subject to the provisions of sub sections (3) and (4) of Section 5 a Shikshan Sevak shall on completion of the probation period of three years be deemed to have been appointed and con5rmed as a teacher. Incidently, it may be necessary to note that the gazette noti5cation dated 15th February, 2007 which is referred to in the de5nition of the expression ‘Shikshan Sevak’ in Clause (24A) of sub section (2) as amended incorporates the Government Resolution dated 13th October, 2000.” 12. While dismissing the Petition, this Court did not doubt entitlement of the Petitioner for achieving status of a con5rmed teacher based on provisions of Section 5(2A) of the Act of 1977. However, a factually erroneous 5nding is recorded in paragraph 5 of the order under review that Petitioner had not worked for a period of three years/30 months and was yet to complete the requisite period of achieving status as con5rmed teacher. As observed above, the School Tribunal, upon conduct of a factual enquiry, has recorded an emphatic 5nding that the Petitioner had indeed completed probation period of 30 months as Shikshan Sevak. 13. In my view therefore, the order dated 14 February 2025 suffers from an error apparent on face of record, which deserves to be the recti5ed by exercising power of review. katkam Page No. 6 of 9 k 7/9 909 rpwst 41305.25 as.doc 14. The effect of reviewing the order dated 14 February 2025 will be to allow the Petition by setting aside the order passed by the School Tribunal. Though the School Tribunal had answered issue No.1 relating to completion of period of probation in favour of the Petitioner, it still declined the bene5t of Rule 26(2) of Rules of 1981 to her which contemplates absorption in some other School on account of retrenchment due to abolition of post. The School Tribunal has proceeded to decline the bene5t of Rule 26(2) of Rules of 1981 to Petitioner by recording a 5nding that she was not issued fresh appointment as a teacher after completion of three years as Shikshan Sevak. However, this 5nding is in the teeth of provisions of Section 5(2A) of the Act of 1977. In my view therefore, once it is held that the Petitioner had completed period of probation of 30 month, she became entitled to the bene5t of provisions of Rule 26(2) of Rules of 1981 on account of she attaining the status of a deemed con5rmed teacher. 15. The Petitioner was not allowed to resume duties by the Management after 7 December 2012 on account of reduction in the strength of students. The prayer of the Petitioner in the Appeal 5led before the School Tribunal was for reinstatement in services of the Management with full back-wages. However, following alternative prayer clause (c) was also made by the Petitioner in her Appeal: “[c] It is alternatively prayed that the respondent no.1 and 2 be directed to declare the appellant to be surplus teacher directing her to accommodate and adjusted the appellant in the post being vacant in the Graduate trained Teacher. And appeal be allowed accordingly.” katkam Page No. 7 of 9 k 8/9 909 rpwst 41305.25 as.doc 16. If the Petition is allowed, the Petitioner would become entitled to absorption as a surplus teacher in some other School by the State Government. However, Petitioner would attain status of surplus teacher right from the day of her discontinuation. This would put 5nancial burden on the State Government to pay her wages from the date of discontinuation i.e. 7 December 2012. 17. Mr. Katneshwarkar has taken instructions from the Petitioner, who is personally present before the Court. He has fairly submitted that if Petitioner is granted status of con5rmed teacher with effect from 7 December 2012 and is accommodated in some other School by the State Government, Petitioner is willing to give up the claim for wages from 7 December 2012 till she is absorbed in some other School. Noting this fair stand taken by the Petitioner, in my view, the Writ Petition deserves to be allowed as a consequence of review of the order dated 14 February 2025. 18. I accordingly proceed to pass the following order: i) Order dated 14 February 2025 is reviewed and recalled. ii) Writ Petition No.10596 of 2016 is partly allowed by setting aside the judgment and order dated 10 September 2015 passed by School Tribunal in Appeal No.22 of 2013. iii) It is declared that the Petitioner is wrongfully terminated from service on 7 December 2012. katkam Page No. 8 of 9 k 9/9 909 rpwst 41305.25 as.doc iv) However, instead of directing the Management to reinstate the Petitioner with effect from 7 December 2012 it is declared that the Petitioner has attained the status of a surplus teacher for the purpose of availing the bene5t of Rule 26(2) of the Rules of 1981. v) Accordingly, the State Government shall proceed to absorb the Petitioner in some other School as a surplus teacher within a period of two months from today. vi) Petitioner has given up prayer for backwages from 7 December 2012 till August 2026. However, in the event the State Government is unable to make an offer for absorption to the Petitioner on or before 30 August 2026, the Petitioner shall be entitled to draw all bene5ts as surplus teacher from 1 September 2026 onwards. 19. With the above directions, Review Petition is partly allowed and disposed of. There shall be no order as to costs. (SANDEEP V. MARNE, J.) katkam Page No. 9 of 9 SUDARSHAN RAJALINGAM KATKAM Digitally signed by SUDARSHAN RAJALINGAM KATKAM Date: 2026.06.29 20:28:37 +0530