Bombay High Court
Pandurang Trimbak Sawant vs State Of Maharashtra And Others on 28 March, 2016
Bench: R.V. Ghuge
WP/3771/2015
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3771 OF 2015
Pandurang Trimbak Sawant
Age 56 years, Occ. Service,
R/o Plot No.4, Telephone Colony,
Pimple Road, Amanler,
District Jalgaon. ..Petitioner
Versus
1. The State of Maharashtra
Through its Principal Secretary,
School Education Department,
Mantralaya, Mumbai - 32.
2. Khandesh Shikshan Mandal,
Amalner, District Jalgaon
Through its Chairman.
3. The Secretary,
Coordination Committee,
Khandesh Shikshan Mandal,
Amalner, District Jalgaon.
4. The Education Officer (S),
Zilla Parishad, Jalgaon.
5. Dhanraj Himmatrao Thakur,
Age major, Occ. Service,
R/o G.S.High School, Amalner,
District Jalgaon. ..Respondents
...
Advocate for Petitioner : Shri Patil Vinod Prakash
AGP for Respondents 1 & 4 : Shri Basarkar A.P.
Advocate for Respondents 2 & 3 : Shri Yawalkar Siddhartha B.
Advocate for Respondent 5 : Shri Patil Sandesh R.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: March 28, 2016
...
ORAL JUDGMENT :-
1. Heard.
2. Rule.
WP/3771/2015
3. By consent, Rule is made returnable forthwith and the petition is
taken up for final disposal.
4. The petitioner is aggrieved by the order dated 1.1.2015, delivered by
the School Tribunal, Nasik by which Misc. Application No.10 of 2013 seeking
condonation of delay has been rejected.
5.
The contention of the petitioner is that he has been denied
promotion as an Assistant Head Master on various occasions. The first
occasion arose in June 2001 when the post of Assistant Head Master was
created and reserved for the Scheduled Caste Category. The petitioner
belongs to the said category. He was denied the said promotion and
assured that he would be accommodated in future. Similar occasions arose
in 2003, 2006, 2011 and 2013 when the post of Assistant Head Master fell
vacant.
6. The petitioner submits that he had tendered his representations to
the management on 3.10.2001, 16.10.2001, 23.11.2004, 25.7.2007,
23.2.2008, 18.11.2009, 13.4.2010, 26.9.2011, 23.3.2013, 16.4.2013,
8.7.2013, 25.9.2013 and 19.10.2013. Since his efforts for redressal of his
grievance were rendered futile, he finally filed an Appeal under Section 9 of
the Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 ("the MEPS Act" for short) on 21.12.2013.
WP/3771/2015
7. Shri Patil, learned Advocate for the petitioner contends that denial
of promotion is a recurring cause of action. Same has occurred on five
occasions as noted above. The School Tribunal has rejected the application
on the ground that the claim dates back to June 2001 and the Appeal has
been filed after 12 years. He tenders across the Bar, an affidavit sworn by
the petitioner stating therein that he is willing to waive all monetary
benefits from June 2001 in relation to the post of Assistant Head Master.
He further submits that the petitioner has only 14 months service left prior
to his retirement.
8. Shri Yawalkar, learned Advocate appearing on behalf of respondent
Nos.2 and 3 / management submits that there are three posts of Assistant
Head Master available with the educational institution. Considering the
ratio laid down by the learned Full Bench of this Court in the matter of New
English High School Association, Nagpur Versus Baldev Fakira Ade [2006 (6)
Mh.L.J. 882], unless there are four posts available, there cannot be a
reservation provided for one post. He, however, adds that all these issues
can be gone into by the Tribunal while considering the contentions of the
petitioner as well as the management.
9. With regard to the delay caused, he submits that though supersession
or denial of promotion may amount to a recurring cause of action, in the
instant case, the cause of action has arisen in the years 2001, 2003, 2006,
2011 and 2013. The grievance of the petitioner, at best, could be
considered in relation to the last cause of action since he has not assailed
WP/3771/2015
any of the actions of the management with relation to appointment of
Assistant Head Master in the years 2001, 2003, 2006 and 2011. Moreover,
even if the grievance of the petitioner is considered today, the same would
be from the date of filing of the Appeal and its decision and cannot be
made effective retrospectively. He, therefore, submits that this petition be
dismissed with costs.
10. Shri Patil, learned Advocate appearing on behalf of respondent No.5,
opposes this petition on the ground that presently, respondent No.5 is the
Assistant Head Master. The affidavit-in-reply filed by respondent No.5 would
make it clear that he has been appointed with effect from 1.6.2001 from
the S.T. category since the post was reserved for the S.T. category. The
claim of the petitioner is without merits, considering the orders passed by
the Education Officer on which respondent No.5 relies upon.
11. The learned AGP submits that the present issue is between the
petitioner and respondent Nos.2 to 5.
12. I have considered the submissions of the learned Advocates.
13. Denial of promotion and continued supersession can be a recurring
cause of action since it continues from the date it has so occurred.
Nevertheless, it cannot be ignored that the petitioner has not assailed his
purported first supersession on 1.6.2001, when respondent No.5 herein was
appointed. It is for more than 12 years that the petitioner has kept silent
WP/3771/2015
notwithstanding the fact that he has made several representations.
14. The grievance of the petitioner is that the post of Assistant Head
Master also fell vacant in 2013. He claims supersession in 2013 as a
consequence of which he has lodged his Appeal on 21.12.2013. Considering
the same and taking into account the affidavit filed by the petitioner today,
the Appeal lodged by the petitioner can be restricted only to the extent of
the alleged cause of action which is said to have arisen in 2013.
15.
In the light of the above, this petition is partly allowed. The
impugned order dated 1.1.2015 is quashed and set aside. Misc. Application
No.10 of 2013 is allowed on the condition that the cause of action in the
Appeal shall be restricted only to the post of Shri M.R. Sonar, who has
retired from the post of Assistant Head Master in 2013 and has been arrayed
as respondent No.5 in the petitioner's appeal. The reliefs sought by the
petitioner shall, therefore, be restricted to the cause of action that may
have arisen pursuant to the retirement of Shri M.R. Sonar. The petitioner
shall, therefore, not be entitled to raise any issues with regard to the
earlier causes of action in the light of the fact situation and also by taking
into account his affidavit filed today, which is marked as Exhibit "X" for
identification.
16. The School Tribunal shall accordingly register the appeal filed by the
petitioner and, considering the fact that he has fourteen months left for
retirement, shall endeavour to decide the said appeal as expeditiously as
WP/3771/2015
possible and preferably on/or before 14.12.2016.
17. Rule is made partly absolute in the above terms.
( RAVINDRA V. GHUGE, J. )
...
akl/d
