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6) Before the Tribunal, the Education officer filed his reply dated 25.2.2005 to the appeal and stated that the only reason for not approving the appointment of the appellant was that she was possessing M.A.B.Ed qualification and she was appointed on the scale of D.Ed. Teacher.

7) The School Tribunal heard both the parties and finally held that the appointment of the appellant was not in accordance with Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, MEPS Act) and thus dismissed the appeal.

13) Under the civil jurisprudence in the adversary litigation, a Court of law is required to decide the issues or the disputes arising between the parties and as projected by the parties before the Court. The issue whether the appointment of the concerned teacher was made in accordance with Section 5 of the MEPS Act and the Rules framed thereunder or not, is a mixed question of facts and law and is not a question of jurisdiction of the Tribunal. The issues on mixed question of facts and law are framed by the Court of law or the Tribunals in accordance with the pleas raised by the contesting parties in their respective pleadings. The issues arise when they are pleaded according to the law. By raising a one-line 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 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. Court should not decide an issue not arising out of pleadings of parties (See AIR 1968 SC 534). Similarly, no issue can be framed on a point not pleaded (see 1999 (8) SCC 692). The Tribunal is guided by the pleadings raised by the contesting or other parties before it and the Tribunal does not have any personal knowledge about the case of the parties before it. The issue about validity of the appointment , as contemplated by Section 5 of MEPS Act and the Rules framed thereunder, cannot be said to be an issue of jurisdiction of a Tribunal.

19) We do not find any reason why the same tenet of law enunciated by the Supreme Court in case of labour disputes majority of which are `service matters' should also not apply in relation to `service-matters' of all employees of private schools who institute appeals before the specially created `School Tribunal' under MEPS Act, 1977 . We, therefore, hold in the light of the law laid down by the Apex Court that the preliminary issue as to whether the appointment of the appellant is made in accordance with Section 5 of the MEPS Act and the Rules there under, should not be framed mechanically in the first place and should be framed only if it arises and is properly substantiated in the pleadings of the parties to the appeal and further at that the School Tribunal should decide all the issues at the same time without trying any or some of them as preliminary issues.

Therefore, I am of the opinion that the appellant has failed to establish that she was duly appointed as per section 5 of MEPS Act, 1977."

21) The said finding has been confirmed by the learned Single Judge. The Tribunal has also recorded a finding, as above, that appointment of the appellant was in the post of Trained Graduate Teacher, which is called "25% quota". . In the light of the judgment of the Hon'ble Apex Court in the case of State of Maharashtra and Ors. Vs. Tukaram Trimbak Chaudhari and Ors. - 2007 (9) SCC 201, it will have to be held that though the appellant is M.A.B.Ed and not D.Ed. her appointment was legal and valid. The only issue then remained was about non-production of advertisement by the appellant for want of which, the School Tribunal held that her appointment was not in accordance with Section 5 of the MEPS Act and the Rules framed there under. In this connection, it is important to note that the said issue was never raised by the management or the Education officer; and admittedly, the appellant had given an application dated 8.7.2005 for production of documents, on which, the Tribunal has passed an order on 8.7.2005 directing production of documents mentioned in the application. The management did not produce those documents despite the said order passed by the Tribunal. Document No. 3, that was sought to be produced was, in relation to entire proposal for her approval, which would include even advertisement. In the first place, the Tribunal was not justified in holding her appointment invalid for non-production of advertisement since none of the parties raised such objection and even otherwise, document No.3, in the list of the said application dated 8.7.2005, was not produced despite order of the Tribunal and the said documents would have clearly shown the advertisement. Since the management disobeyed the order of the Tribunal, adverse inference ought to have been drawn by the Tribunal, but the Tribunal itself ignored the order dated 8.7.2005 for production of documents. We, therefore, hold that the appointment of the appellant was in accordance with Section 5 of the MEPS Act and the Rules framed there under.