Judgment 6 wp4803.11.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR WRIT PETITION NO.4803 OF 2011 1. The Principal Secretary, Shri Hanuman Vyayam Prasarak Mandal, Amravati. 2. The Head Master, Anudanit Adiwasi Ashram Shala, Hataru, Tahsil Chikhaldara, District Amravati. ….. Petitioners. :: V E R S U S :: 1. Sunil s/o Raghunathrao Gulsundare, aged about 32 years, occupation – nil, resident of Takarkheda, post Asegaon Purna, tahsil Chand Bazar, district Amravati. 2. Additional Commissioner of Tribal Department, Amravati. ….. Respondents. =================================== Shri V.H.Pandey, Advocate h/f Shri Ashwin Deshpande, Counsel for Petitioners. Mrs.S.W.Deshpande, Counsel for Respondent No.1. Shri S.S.Doifode, Additional Government Pleader for Respondent No.2. =================================== CORAM : URMILA JOSHI-PHALKE & RAJ D.WAKODE, JJ. DATE : 24/09/2026 ORAL JUDGMENT : (Per : URMILA JOSHI-PHALKE) .....1/- 2026:BHC-NAG:12910-DB Judgment 6 wp4803.11.odt 2 1. Heard learned counsel Shri V.H.Pandey for petitioners, learned counsel Mrs.S.W.Deshpande for respondent No.1, and learned Additional Government Pleader for respondent No.2. 2. By this petition, petitioners seek to quash and set side order dated 12.5.2011 passed by respondent No.2 – The Additional Commissioner of Tribal Department, Amravati in Appeal No.4/2011 on ground that respondent No.2 – The Additional Commissioner of Tribal Department, Amravati is not having jurisdiction to entertain the appeal. 3. Learned counsel for petitioners submits that petitioner No.1 is the Principal Secretary of “Hanuman Vyayam Prasarak Mandal, Amravati” which runs several schools and colleges in Vidarbha Region. Whereas, petitioner No.2 is the Headmaster of “Anudanit Adiwasi Ashram Shala, Hataru, Tahsil Chikhaldara, district Amravati,” which is also one of schools run by Petitioner No.1. Respondent No.1, initially, came to be appointed as “Shikshan Sewak” in petitioners’ school on 7.7.2004 for a period of three years i.e. 8.7.2004 to 7.7.2007. Respondent No.1, after .....2/- Judgment 6 wp4803.11.odt 3 completion of the said period of three years, came to be appointed as “Primary Teacher” in petitioners’ school vide appointment order dated 16.8.2007. Petitioners provide residence to schools’ teachers at schools’ premises itself for ready access to schools. On 10.8.2008, two girls students of “Aashram School” made a complaint against respondent No.1 to the Headmaster complaining that they were sexually molested by respondent No1 and, therefore, a due enquiry was initiated. The girls students were enquired. The Headmaster of the said school, thereafter, wrote a letter to the Principal Secretary of the Institution about the incident happened in the school premises. In view of the said incident, the petitioner had issued suspension order dated 23.8.2008 to respondent No.1. After considering final enquiry report dated 21.2.2009, petitioner No.1 had issued termination order dated 28.2.2009 to respondent No.1. The said termination order as well as enquiry report was challenged by respondent No.1 before respondent No.2 – The Additional Commissioner of Tribal Department, Amravati and respondent No.2, without having jurisdiction, in view of Section 9 of the Employees of Private .....3/- Judgment 6 wp4803.11.odt 4 Schools (Conditions of Service) Regulation Act, 1977 (the Act of 1977), decided the said appeal and quashed and set aside the termination order as well as the enquiry report. Being aggrieved with the same, the present writ petition is preferred. 4. In support of his contentions, learned counsel for petitioners placed reliance on the decision of learned Single Judge of this Court in Writ Petition No.3490/2015 (Vijay Kesari Adivasi Vikas Bahuuddeshiya Sanstha, Narkhed, thr.its Secretary and anr anr vs. Additional Commissioner, Tribal Development, Nagpur and ors) decided on 3.12.2015 and also placed reliance on the decision Division Bench of this Court in Writ Petition No.840/2021 (Mahatma Fuley Adivasi va Magasvargiya Seva Sanstha, Jalgaon- Jamod and anr vs. Additional Commissioner Tribal Development Department, Amravati and ors) decided on 1.2.2022 and submitted that issue involved in the present petition, whether respondent No.2 is having jurisdiction or not, is already decided by .....4/- Judgment 6 wp4803.11.odt 5 this court and, therefore, the present writ petition deserves to be allowed. 5. Learned counsel for respondent No.1 submits that considering the present petition is pending since 2011, respondent No.1 is awaiting for his service benefits and reinstatement and, therefore, remanding the matter back to file an appeal by respondent No.1 before appropriate forum there would again be delay in deciding the cause and, therefore, the petition deserves to be dismissed. 6. Learned Additional Government Pleader for respondent No.2 submits that respondent No.2 has already considered the said appeal on merits and, therefore, no interference is called for. 7. After hearing both sides and perusing the record, it reveals that the said appeal was entertained by respondent No.2. 8. Learned counsel for petitioners has rightly placed reliance on the decision of learned Single Judge of this Court in Vijay Kesari Adivasi Vikas Bahuuddeshiya Sanstha, Narkhed, thr.its Secretary .....5/- Judgment 6 wp4803.11.odt 6 and anr anr vs. Additional Commissioner, Tribal Development, Nagpur and ors (supra) wherein learned Single Judge of this court has placed reliance on the decisions in the cases of Chandrika Misir and anr vs. Bhaiya Lal, reported in (1973)2 SCC 474 and Chief Engineer, Hydel Project and ors vs. Ravinder Nath and ors, reported in AIR 2008 SC 1315. 9. We have given our due consideration to the above said decisions. 10. The Hon’ble Apex Court in the case of Secretary, APD Jain Pathshala and ors vs. Shivaji Bhagwat More and ors, reported in (2011)13 SCC 99 held that, “there was no power with the State Government to create such an appellate forum in which the appeal filed by the respondent No.2 came to be entertained.” The said decision has subsequently been followed by learned Single Judge of this court at Aurangabad Bench in Writ Petition No.3044/2011 (Balkrishan Jadhav vs. State of Maharashtra) decided on 2.8.2013. It is, therefore, clear that the question regarding absence of jurisdiction with respondent respondent No.2 to entertain the .....6/- Judgment 6 wp4803.11.odt 7 appeal stands settled against respondent No.1. On the said count, therefore, the impugned order is liable to be set aside. 11. Considering the aspect that petitioners have not raised any objection before the Appellate Tribunal regarding the jurisdiction by respondent No.2 and further absence to raise this issue before the appellate forum by way of reply, this court has considered the decision in the case of Chitturi Subbanna vs. Kudappa Subbanna and ors, reported in AIR 1965 SC 1325 wherein the Hon’ble Apex Court, in paragraph No.59, expressed that, “if a party omits to raise an objection to a direction given by a lower court in its judgment, he must be deemed to have waived his right and cannot, for the first time at the hearing of an appeal from that decision challenge the courts' power to give the direction. It has further been observed that, “the same must be treated as a waiver even of a plea of jurisdiction. It is however to be noted that the said view in paragraph No.59 is a minority view. The majority view as taken in the said decision holds that even if a new point is not taken in the grounds of appeal but is sought to be .....7/- Judgment 6 wp4803.11.odt 8 raised as an additional ground, the High Court has discretion to permit the same to be raised or even to be refused. However, the discretion exercised by the High Court would not be interfered with except for reasons.” 12. This court further considered the decision in the case of Tharumal and anr vs. Masjid Hajum Pharosan va Madrassa Talimul Islam Mirza Izsmail Road, Jaipur, reported in (1994)3 SCC 375 and observed that there no averment made in the written statement was permitted to be raised before the High court and the Supreme Court held that the same should not have been permitted. 13. It is however to be noted that in the case of Chandrika Misir and anr (supra), the Hon’ble Apex Court has held that where the court lacks inherent jurisdiction, then even if such a plea with regard to lack of jurisdiction has not been raised, the same can be permitted to be raised at any stage. The similar view on the same lines has been taken in Chief Engineer, Hydel Project and ors (supra). .....8/- Judgment 6 wp4803.11.odt 9 14. Here, in the present case, admittedly, in view of Section 9 of the Act of 1977, the respondent No.2 is not having jurisdiction to entertain the appeal. Moreover, this aspect also stands concluded in view of the decision in the case of Secretary, APD Jain Pathshala and ors (supra). Though petitioners have not specifically raised ground before the Appellate Court, the same can be permitted to raise before this court. Therefore, we concur with the view taken by learned Single Judge of this court in the case of Vijay Kesari Adivasi Vikas Bahuuddeshiya Sanstha (supra) and the Division Bench of this court in the case of Mahatma Fuley Adivasi va Magasvargiya Seva Sanstha (supra) wherein it is held that the order of termination issued by the Management terminating the services of such employee can be challenged before the School Tribunal by filing an appeal under Section 9 of the Act of 1977 and the said issue has been decided by learned Single Judge in Writ Petition No.3330/2019 (Shri Hansh Shikshan Krida and Vyayam Prasarak Mandal, Akola and anr vs. Laxman Maroti Raut and anr) decided on 21.9.2020. .....9/- Judgment 6 wp4803.11.odt 10 15. In view of the aforesaid discussion, following order is passed: ORDER (1) The writ petition is allowed. (2) The order dated 12.5.2011 passed by respondent No.2 – The Additional Commissioner of Tribal Department, Amravati in Appeal No.4/2011 is hereby quashed and set aside. (3) Respondent No.1 is at liberty to challenge the order of termination dated 28.2.2009 by filing an appeal under Section 9 of the Act of 1977 before the School Tribunal at Amravati. (4) The School Tribunal at Amravati shall consider application for condonation of delay considering the writ petition was pending before this court since 2011. (5) If respondent No.1 files such appeal within two weeks from today, the same shall be entertained by the School Tribunal on its .....10/- Judgment 6 wp4803.11.odt 11 own merits without going into question of delay and such appeal is preferred, it shall be decided within a period of six weeks. The writ petition is disposed of with the aforesaid terms. No costs. Rule is made absolute. JUDGE JUDGE !! BrWankhede !! .....11/- Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge Date: 29/09/2026 19:16:52