Bombay High Court
Dnyandev Ramrao Bhosle vs Lokmanya Shikshan Sanstha Vizora ... on 6 October, 2016
Bench: R.V. Ghuge
*1* 911.wp.3205.95
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3205 OF 1995
Dnyandeo Ramrao Bhosale,
Age : 44 years, Occupation : Assistant Teacher,
Vidyavikas Vidyalaya, Vizora,
Tq.Bhoom, District Osmanabad.
...PETITIONER
-VERSUS-
1 The Lok Manya Shikshan Sanstha,
Vizora, Tq.Bhoom, District Osmanabad.
Through its Secretary,
Bhanudasrao s/o Ramrao Khose,
Age : Major,
R/o Bhoom, District Osmanabad.
2 The Education Officer (Secondary),
Zilla Parishad, Osmanabad.
3 The Chief Executive Officer,
Zilla Parishad, Osmanabad.
4 Bapu s/o Parsuram Kawale,
Age : 36 years, Occupation : Service,
R/o village Pakarud, Tq.Bhoom,
District Osmanabad.
5 The Presiding Officer,
School Tribunal, Aurangabad,
District Aurangabad.
6 The State of Maharashtra.
Copy to be served on AGP,
High Court, Aurangabad.
...RESPONDENTS
WITH
CIVIL APPLICATION NO.2888 OF 2002
::: Uploaded on - 13/10/2016 ::: Downloaded on - 14/10/2016 00:08:15 :::
*2* 911.wp.3205.95
IN WP/3205/1995
WITH
CIVIL APPLICATION NO.9020 OF 2016
IN WP/3205/1995
WITH
CIVIL APPLICATION NO.9318 OF 2003
IN WP/3205/1995
...
Advocate for Petitioner : Shri S S Shinde.
Advocate for Respondent No.1 : Shri Ajinkya Kale h/f Shri S.B.Talekar.
AGP for Respondents 2 and 6 : Shri P.N.Kutti.
...
ig CORAM: RAVINDRA V. GHUGE, J.
DATE :- 06th October, 2016
Oral Judgment :
1 The Petitioner/ Employee is aggrieved by the judgment and
order dated 26.09.1994 by which the School Tribunal has dismissed
Appeal No.119/1991-M for the sole reason that the appeal is barred by
limitation.
2 The issue raised in this petition is with regard to the
purported supercession of the Petitioner in the light of the fact that
Respondent No.4 has been appointed as the Headmaster by order dated
06.07.1991 in the Baleshwar Vidyalaya. The Petitioner contends that he
was appointed as an Assistant Teacher on 29.08.1972. After acquiring
requisite qualifications, he was placed in Category-C in 1975. He was
*3* 911.wp.3205.95
working with Vidyavikas Vidyalaya which is grant in aid institution. On
20.06.1984, Baleshwar Vidyalaya was started on no grant basis.
Respondent No.4 was appointed as an Incharge Headmaster from 1984. In
1991, Baleshwar Vidyalaya started receiving 100% grants and Respondent
No.4 was appointed as a full-fledged Headmaster on 06.07.1991.
3 The grievance of the Petitioner is that he being senior to
Respondent No.4, he should have been appointed as a Headmaster of
Baleshwar Vidyalaya and the common seniority list should have been
maintained.
4 Respondent No.4 was earlier represented by Advocate Shri
R.D.Mane. He informed this Court on 28.06.2016 that he has intimated
Respondent No.4 through a letter sent by RPAD that he was withdrawing
his appearance. Yet, no appearance was caused by Respondent No.4. A
fresh notice was issued by this Court to Respondent No.4. Respondent
No.1/ Management has placed on record a receipt of the speed post A.D.
envelope served upon Respondent No.4 to inform him regarding pendency
of this petition. The printout of the tracking report for the said envelope is
placed on record which indicates that Respondent No.4 is served on
03.10.2016. A copy of the receipt and printout of the tracking report are
collectively marked as Exhibit X for identification.
*4* 911.wp.3205.95
5 The Petitioner submits that he is not making any prayer
against Respondent No.4 since the Petitioner as well as Respondent No.4
have both superannuated and retired from service. The Petitioner's claim,
therefore, would be restricted only to claiming monetary benefits as
against Respondent No.1/ Management or through the State exchequer.
6 Shri Talekar, learned Advocate appearing on behalf of
Respondent No.1/ Management, has strenuously supported the impugned
judgment and submits that the School Tribunal has rightly concluded that
the appeal of the Petitioner is barred by limitation and has, therefore,
correctly dismissed the appeal. He prays for imposition of heavy costs on
the Petitioner for dragging the Management in litigation.
7 I have considered the submissions of the learned Advocates
for the respective sides.
8 Even if it is presumed that Respondent No.4 was appointed as
a regular Headmaster in 1984, the grievance of the Petitioner under
Section 9(1)(b) of the MEPS Act, 1977 with regard to the challenge to his
supercession is not affected by the law of limitation as has been concluded
by this Court in Secretary, Shiorai Education Society, Wani vs. Presiding
*5* 911.wp.3205.95
Officer, School Tribunal, Aurangabad, 2000(2) Mh.L.J. 752 and by the
learned Division Bench of this Court in the matter of Mohammad Hasan
Khan vs. Mohammad Majidulla, 2002(4) ALL MR 512. On this count also,
the claim of the Petitioner could have been entertained by the School
Tribunal.
9 Respondent No.4 has also preferred Appeal No.69/2005
under Section 9 of the MEPS Act, 1977 before the School Tribunal at
Solapur against the same Respondent/ Management. In paragraphs 1 and
4 of his appeal memo placed on record, Respondent No.4 has averred that
he was appointed as a Headmaster of Baleshwar Vidyalaya on 19.06.1991
and his appointment was accorded approval by the Education Officer on
06.07.1991. It requires no debate that an in-charge Headmaster has no
right to the post. The appointment as an in-charge/ officiating
Headmaster would not amount to a substantive appointment. The
Petitioner has filed his appeal on 18.09.1991 alleging that the
appointment of Respondent No.4 on 06.07.1991 has resulted in his
supercession. Though limitation for filing an appeal of 30 days, may not
apply in this case, the Petitioner's appeal can be assumed to be delayed by
about 70 days.
10 In the light of the above, this Writ Petition is partly allowed.
*6* 911.wp.3205.95
The impugned order dated 26.09.1994 is quashed and set aside. The
application for condonation of delay stands allowed.
11 It is informed that the Osmanabad district has been attached
to the School Tribunal at Solapur. The proceedings earlier were with the
School Tribunal at Aurangabad. As such, the Petitioner is permitted to
tender a copy of his appeal which he has earlier filed with the School
Tribunal at Aurangabad on 18.09.1991, freshly signed and affirmed,
before the School Tribunal at Solapur along with a copy of this judgment
as well as other documents if desired, within a period of THIRTY DAYS
from today.
12 The School Tribunal, Solapur is at liberty to call for the record
and proceedings from the School Tribunal, Aurangabad with regard to the
appeal filed by the Petitioner. After registering the appeal, the School
Tribunal, Solapur shall issue notices to the litigating sides and shall,
thereafter, decide the appeal on it's own merits as expeditiously as possible
and preferably on or before 31.08.2017.
13 Needless to state, all contentions of the litigating sides are
kept open and the School Tribunal shall consider that the claim of the
Petitioner would now be restricted only to the extent of monetary benefits
*7* 911.wp.3205.95
considering the fact that the Petitioner as well as Respondent No.4 have
superannuated.
14 Rule is made partly absolute in the above terms.
15 All the pending Civil Applications do not survive and the same
are disposed of.
kps
ig (RAVINDRA V. GHUGE, J.)
