Bombay High Court
Vivek S/O Madhukarrao ... vs State Of Maharashtra & Ors on 1 April, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
MISC. CIVIL APPLICATION (REVIEW) NO.223 OF 2016
IN
WRIT PETITION NO.5816 OF 2005(D)
ORIGINAL Vivek S/o Madhukarrao Dharmadhikari,
PETITIONER: R/o Awadhoot Wadi, Yavatmal.
ig -VERSUS-
ORIGINAL 1. State of Maharashtra through its
RESPONDENTS: Secretary, Dept of Education,
Mantralaya, Mumbai-32.
2. The Education Officer ( (Secondary),
Zilla Parishad, Yeotmal.
3. Lok Nayak Bapuji Aney Vidyalaya
Through its Head Master, Tilakwadi,
Yeotmal.
4. The Education Society through its
Secretary, Lok Nayak Bapuji Aney
Vidyalaya, Tilakwadi, Yeotmal.
5. Shyam Sunder S/o Janardhan
Manchalwar, 1, Mahatma Fule Society,
Borundia Nagar Road, Yeotmal.
Shri Anand Parchure, Advocate for the appellant.
Shri H. R. Dhumale, Asstt. Government Pleader for respondent
Nos.1 & 2.
Shri Apurv De, Advocate for respondent Nos.3 & 4.
Shri M. A. Deshpande, Advocate for respondent no.5.
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CORAM: A.S. CHANDURKAR, J.
DATED: APRIL, 1
2016.
st
ORAL JUDGMENT :
1. Heard.
2. Present application has been moved seeking review of
the judgment dated 30-9-2014 to the extent the applicant has not
been granted consequential monetary relief though the impugned
order was set aside in Writ Petition No.5816/2005.
3. The applicant had filed Writ Petition No.5816/2005
challenging the order dated 2-9-2005 passed by the non-applicant
no.2. The dispute was with regard to seniority between the
applicant and the non-applicant no.5. By judgment dated 30-9-
2014, the order dated 2-9-2005 passed by the non-applicant no.2
was set aside and the management was directed to re-fix the
seniority of the applicant and non-applicant no.5 ignoring the
undertaking given by the applicant on 15-9-1992.
4. Shri Anand Parchure, learned Counsel for the
applicant submitted that in the writ petition the prayer for grant of
consequential benefits had been made. However, while allowing
the writ petition said relief has been inadvertently not granted. It
is submitted that the applicant was already working as an Assistant
Teacher and it has been held that he was entitled to be placed in
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category 'C' on 15-9-1992. According to the learned Counsel, the
applicant was entitled to be placed in the 25% Graduate quota
from 1-1-1996. Therefore, the applicant already having worked on
the post of Assistant Teacher, it was only a question granting the
monetary difference as admissible under the higher pay scale. It is
submitted that failure to consider the aspect regarding entitlement
to consequential relief amounts to an error apparent on the face on
record and hence, the judgment deserves to be reviewed.
ig The application is opposed by Shri Apurv De, learned
Counsel for the applicant nos.3 & 4 and Shri M.A. Deshpande,
learned Counsel for non-applicant no.5. It is submitted that as the
consequential relief has not been granted in the aforesaid
judgment, the same is deemed to have refused. It is then
submitted that the non-applicant no.5 has already discharged
duties as Assistant Teacher in the 25% Graduate quota from 31-1-
1996 onwards and, therefore, there would be no question of
recovering the payments received by him in the higher scale. It is,
therefore, submitted that there is no case for review and,
therefore, the application is misconceived.
6. Shri H. R. Dhumale, learned Asstt. Government
Pleader for the respondent Nos.1 & 2 submits that it is for the
management to pass consequential orders in terms of aforesaid
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judgment as regards interse seniority between the applicant and
the non-applicant No.5.
7. It is not in dispute that in the writ petition, a prayer is
made for setting aside the order of seniority dated 2-9-2005 along
with a prayer for grant of consequential benefits. The judgment
dated 30-9-2014 does not indicate that said relief was deliberated
upon and specifically refused. Perusal of the entire judgment
indicates that the order dated 2-9-2005 passed by the Education
Officer was set aside on the ground that the same was contrary to
the law laid down by this Court earlier. It is, therefore, clear that
as a consequence of setting aside the said order, the applicant was
entitled for consequential reliefs. Failure to consider said aspect
which was urged would, therefore, amount an error apparent on
the face of record. Hence, a case for reviewing the judgment dated
30-9-2014 has been made out.
8. It is not in dispute that the applicant as well as the
non-applicant no.5 have worked on the post of Assistant Teacher.
The applicant though entitled to receive salary in the higher scale
was not so paid. Hence, while granting consequential relief to the
applicant, there would be no question of recovering any payments
made to the non-applicant No.5 as he had also discharged his
duties on the post of Assistant Teacher.
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9. In view of aforesaid, the following order is passed.
(1) The application is allowed.
(2) The judgment dated 30-9-2014 in Writ Petition
No.5816/2005 is reviewed and the following portion is added in
para 15.
"After the seniority of the petitioner is re-fixed, the
respondent nos.3 & 4 shall take necessary steps to grant him
consequential benefits. The pay bills in that regard be forwarded to
the respondent no.2 within a period of four weeks and the
respondent no.2 shall take appropriate steps on the same within
further period of four weeks from said date. The respondent no.2
shall not deny the entitlement of the petitioner only on the ground
that the respondent no.5 has been paid salary in the higher scale.
In the peculiar facts of the case, the amounts already paid to the
respondent no.5 shall not be recovered."
(3) The application is allowed in aforesaid terms. No costs.
JUDGE
//MULEY//
