Milinds/O Namdevrao Kamble vs The State Of Mah. Thr. Its 7 Pr. ...
2017 Latest Caselaw 1698 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR


                          WRIT PETITION NO. 2019 OF 2009


            Milind s/o. Namdevrao Kamble,
            aged about 48 years, Occ. Service,
            R/o. 129, Untkhana, Dahipura Layout,
            Nagpur                                                   PETITIONER


                               ...VERSUS...


 1.         The State of Maharashtra,
            through its Principal Secretary,
            Education Department, 
            Mantralaya, Mumbai.

 2.         The Presiding Officer,
            School Tribunal, Nagpur.

 3.         Bharatiya Shikshan Mandal,
            through its President,
            C/o. Pandit Baccharaj Vyas Vidyalaya,
            Raja Baksha, Nagpur.

 4.         The Education Officer (Secondary),
            Zilla Parishad, Nagpur.

 5.         Suresh S/o Shankar Borgaonkar,
            aged about 58 years, Occ. Retd. Teacher,
            R/o. 44-D, Tapovan Complex, Wardha
            Road, Nagpur.

 6.         Deorao Shrawanji Sarve,
            aged about 57 years, Occ. Service,
            R/o. B-105, Sai Prasad Apartment,
            Reshimbagh Chowk, Nagpur.




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 7.       Sau. Pratima w/o. Pramod Deulwadkar,
          aged about 55 years, Occ. Service,
          R/o. Plot No. 89, Sundarban Layout,
          Wardha Road, Narendra Nagar, Nagpur.

 8.       Pandit Baccharaj Vyas Vidyalaya &
          Junior College, through its Head Master,
          Raja Baksha, Nagpur                                     ...... RESPONDENTS

 -------------------------------------------------------------------------------------------
 Shri D.Duvvuri, counsel for Petitioner.
 Shri K.L.Dharmadhikari, AGP for Respondent nos. 1, 2 and 4
 Shri A.D.Mohgaonkar, counsel for Respondent Nos. 5 to 7
 -------------------------------------------------------------------------------------------
                          CORAM: R. K. DESHPANDE, J.

th DATE : 13 APRIL, 2017 .

ORAL JUDGMENT

1] The petitioner working as Assistant Teacher and

belonging to Scheduled Caste category was promoted by an

order dated 29.04.2002 to the post of Assistant Head Master

with effect from 01.05.2002. This was the subject matter of

challenge in Appeal No. STN/36/2007 before the School

Tribunal at Nagpur under Section 9 of the Maharashtra

Employees of Private Schools (Condition of Service

Regulations) Act, 1977. The School Tribunal holds that the

petitioner was junior to respondent Nos. 5 to 7, who were the

appellants before it, but the reservation of the isolated post of

Assistant Head Master for Scheduled Caste category was

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illegal and consequently, the promotion of the petitioner in

deviation of the principle of senior was illegal. The School

Tribunal relied upon the decision of the Full Bench of this

Court in the case of New English High School Association,

Nagpur and another vrs. Baldev Fakira Ade and another,

reported in 2006 (6) Mh.L.J. 882.

2] Shri Duvvuri, the learned counsel appearing for

the petitioner urged that the approval to the appointment of

the petitioner was given by the Education Officer on

09.07.2002 and after making representation on 12.10.2007,

the appeal in question was preferred before the School

Tribunal after an inordinate delay. The same was, therefore,

liable to be dismissed on that short ground.

3] On 01.10.2009, this Court admitted the matter

and passed an order as under;

"Heard.

Rule.

On the question of interim relief, counsel for the parties were heard from time to time. Mr. Mohgaonkar, learned counsel for the respondents, opposed the grant of interim relief on the ground that the same would amount to granting final relief in the main writ petition without deciding the writ petition finally. It is seen that the petitioner was promoted to the post of Assistant

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Head Master on 02.05.2002 and has been working since then. After the Full Bench judgment of this Court, respondent Nos. 5, 6, 7 and 8 preferred appeal before the Tribunal claiming on the basis of the said judgment that petitioner could not have been promoted and they were entitled to the said relief of promotion. Appeal was preferred on 28.12.2007. There is no independent explanation for filing the appeal after the period of about five years. It appears that the only cause of action for filing the appeal was the decision of Full Bench of this Court. In my opinion, change in law by a decision of the Court cannot be a good explanation for such a long delay of five years. It is true, as pointed out by Mr.Mohgankar, that for challenging supersession in the matter of promotion, there is no limitation provided under Section 9 of the M.E.P.S. Act. In the case of The State of Gujrat v. Patil Raghav Natha - 1969 (2) SCC 187, in para 11, Supreme Court has had to say -

"The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised".

In the instant case, there is no reason why the appeal should have been entertained after so many years, since I have already held that the decision of Full Bench cannot be a cause of action to approach the Court. Since the petitioner has been working for about five years on promotional post, it would be wholly improper to displace him from that post. In view of the strong prima facie case made out by the petitioner, I grant interim relief in terms of prayer clause (iii) of the petition with further direction to the management to restore the petitioner to his original post of Assistant Head Master.

This order is stayed for 15 days at the request of Mr.Mohgankar".

4] It is reported by the learned counsels appearing

for the parties that respondent Nos. 5 to 7 who had filed

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appeal before the School Tribunal have already retired from

service on attaining the age of superannuation. In view of

the interim order passed by this Court on 01.10.2009, the

petitioner was continued in the post of Assistant Head Master

and he is still working on the said post. The respondent Nos.

5 to 7 were subsequently promoted directly to the post of

Head Master and all these promotions were challenged by

the petitioner by filing appeals before the School Tribunal and

the Writ Petition No. 1277 of 2015 arising out of one of such

appeals is pending before this Court for judgment.

5] Both the learned counsels appearing for the

parties agree that the challenge which is pending in Writ

Petition No. 1277 of 2015 has nothing to do with the

controversy involved in the present writ petition. Both the

learned counsels agree that the promotion to the post of

Head Master is required to be made from the category "C" of

the teachers in Schedule-F under the M.E.P.S. Rules. The

said petition can be decided on its merits.

6] In view of this undisputed position, no purpose

would be served in adjudicating the controversy involved in

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the present case either one way or the other. Since

respondent Nos. 5 to 7 have already retired on attaining the

age of superannuation, the petitioner can be continued on

the post of Assistant Head Master and he cannot be

displaced and shall be entitled to all the benefits of the post.

7] This petition is, therefore, disposed of with these

observations by further clarifying that none of the findings

recorded in the judgment delivered by the School Tribunal

which is impugned in this petition shall come in the way of

any of the parties and any controversy in this petition can be

adjudicated in other proceedings as an incidental issue.

Merely because the petitioner is continued in the post of

Assistant Head Master that by itself will not confer upon him

any right to get promotion to the further post of Head Master.

JUDGE

Rvjalit