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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
LETTERS PATENT APPEAL NO. 358 OF 2008 IN
WRIT PETITION NO. 940 OF 2002
Smt. Vidyadevi Abhimanyu Raut,
aged about 58 years, occupation
Service, r/o 28, Agney Layout,
Khamla, Nagpur. ... APPELLANT
Versus
1. Bahujan Vikas Education Society,
through its Secretary, Shri S.R.
Adhao, Jagnath Budhwari,
Bharatmata Chowk, Nagpur,
r/o 413, Vaidehi Apartment,
Hanuman Nagar, Nagpur.
2. Education Officer (Secondary),
Zilla Parishad, Sarpanch Bhavan,
Near Nayay Mandir, Akashwani
Chowk, Nagpur.
3. Head Master,
Jagnath Vidyalaya, Jagnath
Budhwari, Bharat Mata Chowk,
Nagpur.
4. Shri Suresh Narayan Dhatrak,
Assistant Teacher, Jagnath Vidyalaya,
Jagnath Budhwari, Bharat Mata,
Nagpur, r/o 130, Hanuman Nagar,
Nagpur.
5. Shri Bhojraj Bhanjibhau Dhanuskar,
Assistant Teacher, Jagnath Vidyalaya,
Jagnath Budhwari, Bharat Mata
Chowk, Nagpur r/o Sai Kripa,
Ayodhya Nagar, Nagpur.
6. Shri Manohar Nilkantha Waghmare,
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Assistant Teacher, Jagnath Vidyalaya,
Jagnath Budhwari, Bharat Mata
Chowk, Nagpur, r/o Plot No. 39 (Old),
Near Dhawade Hospital, Sneha Nagar,
Nagpur. ... RESPONDENTS
Shri Rohit Vaidya with Shri Anand Parchure, Advocates for the
appellant.
Shri A.V. Palshikar, AGP for respondent No. 2.
.....
CORAM : B.P. DHARMADHIKARI &
ROHIT B. DEO, JJ.
JULY 17, 2017.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.) Heard Shri Rohit Vaidya, learned counsel for the appellant and Shri Palshikar, learned AGP for respondent No. 2. Nobody for other respondents.
2. The submission is, when a person like Shri Dhatrak, Junior not only to the appellant but also to Respondent Nos. 5 & 6 was promoted as Head Master and that promotion was rightly set aside in challenge at the instance of present appellant, the management ought to have promoted the appellant after removal of Shri Dhatrak.
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3. The contention is, considering the eligibility and entitlement of Respondent Nos. 5 and 6 again, at that juncture, was not open and it has vitiated the entire exercise.
4. The learned AGP submits that Respondent Nos. 5 & 6 were seniormost and thereafter at Sr. No. 3, the appellant was placed. Shri Dhatrak was below the appellant. Respondent Nos. 5 & 6 gave no objection as per Rule 3(3) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as 1981 Rules), and as Respondent Nos. 5 & 6 then agreed to waive their right to promotion, after due verification, the management thought it fit to promote Shri Dhatrak. When Respondent Nos. 5 & 6 found that Shri Dhatrak cannot be promoted and instead the management was required to promote the appellant, they did not give no objection. Their seniority, therefore, was required to be accepted and accordingly the seniormost Respondent No. 5 was promoted.
5. With the assistance of both learned counsel, we ::: Uploaded on - 19/07/2017 ::: Downloaded on - 20/07/2017 00:17:02 ::: lpa358.08 4 have perused the judgment delivered by the learned Single Judge. The facts show that the appellant joined the School on 13.10.1999 and Respondent No. 4 - Dhatrak was her junior, as he joined on 15.10.1999. Respondent Nos. 5 & 6 were already in the School and, therefore, senior to the appellant. However, Respondent Nos. 5 & 6 gave their no objection/ consent for promoting Shri Dhatrak and accordingly Shri Dhatrak was promoted. The appellant, who had not given that no objection, challenged the promotion of his junior and hence it was required to be withdrawn.
6. The question, therefore, is not whether it was a different vacancy. Though vacancy was the same, it was being filled in again and at that juncture, Respondent Nos. 5 & 6 refused to give their consent/ no objection. Respondent Nos. 5 & 6 may have been prompted by various considerations but they objected to their supersession by the present appellant.
7. In this situation, we find that the School Tribunal as also the learned Single Judge have rightly appreciated the ::: Uploaded on - 19/07/2017 ::: Downloaded on - 20/07/2017 00:17:02 ::: lpa358.08 5 controversy. No injustice has been done to the present appellant. There is no jurisdictional error or perversity. Letters Patent Appeal is, therefore, dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
JUDGE JUDGE
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*GS.
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