Chandrakant S/O Yeshwantrao Raut vs Ashok Shikshan Sanstha, & 2 Others
2017 Latest Caselaw 4101 Bom

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

                            WRIT PETITION N0. 1442/1998

        Chandrakant  s/o Yeshwantrao Raut 
        Aged about  39 years, occu: service 
        Resident of Bhagchand Nagar,  
        Dhamangaon Railway 
        Tahsil Chandur  Rly, Dist. Amravati.                      ..PETITIONER.

                                          VERSUS

1)      Ashok Shikshan Santha 
        Ashoknagar, Through President 
        Shri Sudhir Narayanrao Shende 
        having its office at Deorao Thakre Vidyalaya 
        Ashoknagar, 
        Ashoknagar, Tah. Dhamangaon Rly.
        Dist. Amravati.

        (Amendment carried out as per order 
        dated 15.03.2017)


2)      Shri Narsing Shamrao Dafle 
        aged about 45 years, occu: service 
        R/o C/o Ashok Vidyalaya, 
        Juna Dhamangaon 
        Tq. Chandur Railway, Dist. Amravati. 

3)      The Education Officer (Sec)
        Zilla Parishad, Armavati. 

4)      Ashok Shikshan Sanstha,
        Tiwsa, Dist.Amravati 
        Through its Administrator 
        Mr. Shivanand  Narayan Dutonde 
        (Amended as per order dated 23.1.2015)             ..RESPONDENTS
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...................................................................................................................
          Dr.Anajan De, Advocate for the petitioner 
          Mr. V.P. Maldhure,  Assistant Government Pleader for 
          respondent no.3 
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                                                            CORAM:R.K. DESHPANDE &
                                                                     MRS.SWAPNA JOSHI, JJ.

DATED : 06 th July, 2017

ORAL JUDGMENT: (Per R.K.DESHPANDE, J.)

This petition challenges the order dated 6.4.1998 passed by

the Education Officer (Secondary) Zilla Parishad, Amravati, cancelling

the approval dated 6.3.1997 granted to the appointment of the

petitioner on the post of Headmaster of Ashok Vidyalaya, Old

Dhamangaon, run by respondent no.1-Sanstha.

2. It is not in dispute that the petitioner was appointed as an

Assistant Teacher in the school which was not receiving grant-in-aid

from the State Government. A separate seniority list of teachers in such

school was maintained in which the petitioner was the seniormost

employee. As per the Government Resolution dated 29.6.1981, the

petitioner was promoted to the post of Headmaster on 25.12.1990. The

petitioner worked on the post of Headmaster till 6.4.1998 when the

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Education Officer by the impugned order, determined that the petitioner

was not the senior-most employee but, one N.S.Dafle, the respondent

no.2, was senior to the petitioner and hence the approval to the

appointment of the petitioner was cancelled.

3. It is also not in dispute that Maharashtra Employees of

Private Schools (Conditions of Service) Regulation Act, 1977 and the

rules framed thereunder, came into force with effect from 16th July,

1981. The statutory rules contemplate framing of a common seniority

list of the employees working in all the schools run by the same society

and the promotions were required to be made on the basis of such

seniority list, to the post of Headmaster. The Government Resolution

dated 29th June,1981 directing maintenance of a separate seniority list

of teachers working in non-aided schools lost its significance. As a result,

in Writ Petition No.517/1993 decided by this Court, the Government

Resolution dated 29th June 1981, was set aside.

4. Dr. Anajan De, learned counsel appearing for the petitioner

does not dispute the fact that the petitioner would not be the senior-

most employee/Assistant Teacher if combined seniority list of aided and

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non-aided employees working in the schools run by the same

management, is to be operated. He, however, placed heavy reliance

upon the Circular issued by the State Government of 8th November, 1994

implementing the decision of this Court delivered in Writ Petition No.

517/1993 by which the Government cancelled the circular issued on

29th June, 1981 and made it clear in Clause No.5 that all appointments

made in recognised non-aided secondary schools by way of promotion

prior to it, shall not be disturbed on the ground that combined seniority

list is required to be maintained. He submits that the petitioner is

entitled to protection under clause (5) and his promotion should not

have been disturbed. The learned counsel further submits that the claim

of respondent no.2 for promotion to the post of Headmaster is required

to be rejected as a stale claim.

5. In our view, the Government Resolution dated 29th June,

1981 became inoperative in view of coming into force of MEPS Act and

the Rules framed thereunder which prescribes the guidelines for

preparation of seniority list exactly contrary to one which were laid

down in Government Resolution dated 29th June, 1981. The petitioner

could not have therefore been promoted to the post of Headmaster by

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acting on the basis of the said Government Resolution on 25.12.1990

i.e. much after coming into force of the said Act and the Rules.

6. We find that several petitions were filed in this respect

before this Court and one of which was Writ Petition No.3548/1994 filed

by the petitioner claiming grant of approval to his appointment as

Headmaster and disposed of by this Court on 25th July 1995. After

disposal of this petition, the petitioner was granted approval by the

Education Officer vide his communication dated 21.11.1995 and that

was the subject-matter of challenge in Writ Petition No. 3796/1997 by

the respondent no.2. This Court set aside the said approval on

21.01.1998 and directed consideration of the matter after hearing the

respondent no.2. Accordingly, after hearing the parties the order

impugned dated 6.4.1998 has been passed. We find reference to some

other decisions in the documents placed on record. Be that as it may,

what we wanted to show is that, the claim of the respondent no.2

cannot be considered as a stale claim and a challenge to the promotion

of the petitioner remained alive till filing of this petition.

7. We are informed that the petitioner has worked on the post

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of Headmaster from 25.12.1990 to 16.4.1998. However, we are unable

to notice the future period for which he was working as Headmaster. We

would therefore like to make it clear that there shall be no recovery from

the salary of the petitioner on the post of Headmaster for the period for

which he has already worked. We have not gone into the question as to

whether the petitioner was otherwise eligible for being promoted to the

post of Headmaster in terms of the provisions of MEPS Act and the Rules

framed thereunder and if the petitioner so desires, he shall be at liberty

to agitate it in appropriate forum in accordance with law.

8. In the result, the Writ Petition is dismissed, with no order as

to costs.

                         JUDGE                         JUDGE


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