Sharda Bhuvan Education Society, ... vs Govind Nagoarao Deshmukh
2017 Latest Caselaw 5357 Bom

                                             1             36-SA-214


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD
                               
                    SECOND APPEAL NO. 214 OF 1992
                                WITH
                  CIVIL APPLICATION NO.397 OF 1993
                                WITH
                 CIVIL APPLICATION NO.1674 OF 1992

         Sharda Bhuvan Education Society,
         Nanded, through its Secretary
         Baburao Ganpatrao Phalak        ..Appellant 

                 V E R S U S

1.       Govind Nagorao Deshmukh,
         Age :  years, Occu :
         R/o : 

2.       Chief Executive Officer,
         Zilla Parishad, Nanded                       ..Respondents
 
                         --
Mr.P.P.Kothari,   Advocate   i/b.   Mr.S.S.Bora, 
Advocate for appellant
Mr.N.S.Tekale,   Advocate   i/b.   Mr.P.V.Mandlik, 
Senior Advocate for  for respondent No.1
                         --


                                   CORAM : SANGITRAO S. PATIL, J. 

DATE : AUGUST 01, 2017 ORAL JUDGMENT :

Heard the learned Counsel for the

parties.

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2. The appellant has challenged the judgment

and decree dated 03.04.1992 passed in R.C.A. No.7

of 1996 by the learned IV Asstt. District Judge,

Nanded, whereby the judgment and decree dated

08.12.1985 passed in R.C.S. No.121 of 1981 by the

learned Civil Judge, Junior Division, Nanded, came

to be reversed and it has been declared that

respondent no.1 is entitled to the post of

Headmaster with effect from September, 1976, with

the benefits attached to the post of Headmaster,

but he was held entitled to get monetary benefits

towards the difference in the salary for the

period of three years preceding the date of filing

of the suit.

3. This Second Appeal came to be admitted on

the sole substantial question of law, which reads

as under :-

" Whether the suit filed by respondent no.1 (original plaintiff) for declaration is within limitation?"

3 36-SA-214

4. As seen from the facts of the case,

respondent no.1 became eligible for being

appointed to the post of the Headmaster in the

month of September, 1976, after he completed

Diploma in Education. He made an application to

the appellant with a request to appoint him to the

post of the Headmaster but that was ignored.

Thereafter also, respondent no.1 moved the

appellant for getting himself appointed as

Headmaster. The last application is dated

26.07.1978 in the form of reminder to the

appellant, wherein it was specifically mentioned

that respondent no.1 had filed application for

getting appointment to the post of Headmaster on

19.08.1977, but no reply has been received by the

appellant in respect of that application.

Respondent no.1, therefore, requested the

appellant to consider that application and take

decision thereon. Admittedly, no decision was

taken by the appellant on that application and it

4 36-SA-214

was not ever communicated to respondent no.1 that

his claim for being appointed as Headmaster, was

rejected on any count.

5. The learned Counsel for the appellant

submits that the cause of action for the suit

arose in April, 1974 when respondent no.1, for the

first time, had applied to the appellant for being

appointed as Headmaster. He submits that the

respondent actually acquired the qualification for

being appointed to that post in September, 1976.

Therefore, even if the cause of action is

considered to have arisen in September, 1976, the

present suit filed on 06.03.1981, would not be

within limitation as per Article 58 of the

Limitation Act. He, therefore, submits that the

suit was rightly dismissed by the trial Court

holding that it was not within limitation,

however, the first appellate wrongly reversed that

finding as well as the decree passed by the trial

Court holding that the suit is within limitation.

5 36-SA-214

6. As against this, the learned Counsel for

respondent no.1 pointed out to the letter Exh.65

dated 26.07.1978, wherein it was specifically

mentioned that the previous application dated

19.08.1977 filed by respondent no.1 for getting

himself appointed as Headmaster was not replied by

the appellant. Therefore, a request was made by

respondent no.1 to the appellant to take

appropriate decision on that application, however,

no decision had been taken by the appellant and

therefore, the suit filed on 06.03.1981, would be

within the limitation.

7. As stated above, the application dated

19.08.1977 filed by respondent no.1 for being

appointed to the post of Headmaster was not ever

replied by the appellant. As per the letter dated

26.07.1978, respondent no.1 requested the

appellant to take decision on the application

dated 19.08.1977. However, no decision was taken

6 36-SA-214

by the appellant, therefore, even if it is held

that the limitation started after 26.07.1978,

giving cause of action for respondent no.1 to file

the suit for declaration of his entitlement to the

post of Headmaster, the suit filed on 06.03.1981,

would be well within the limitation vide Article

58 of the Limitation Act. The first appellate

Court has rightly considered the evidence on

record and has rightly held that the suit is

within the limitation.

8. So far as the monetary benefits are

concerned, the first appellate Court has rightly

held that respondent no.1 is entitled to get

difference of salary for the period of three years

preceding the date of filing of the suit. As

such, though the status of respondent no.1 to hold

the post of the Headmaster was declared with

effect from September, 1976, the actual monetary

benefits were given to him for the period of three

years preceding the date of filing of the suit.

7 36-SA-214

9. The first appellate Court has rightly

reversed the findings of the trial Court and

rightly decreed the suit. I do not find any

illegality or perversity in the judgment of the

first appellate Court.

10. The appeal is devoid of any substance.

It is liable to be dismissed and accordingly,

dismissed. No costs.

11. Civil Applications stand disposed of.

[SANGITRAO S. PATIL, J.]

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