Smt. Vidyadevi Abhimanyu Raut, ... vs Bahujan Vikas Education Socity, ...
2017 Latest Caselaw 4585 Bom

   lpa358.08                                                                    1



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH

           LETTERS PATENT APPEAL  NO.  358  OF  2008 IN
                WRIT  PETITION NO.  940  OF  2002

  Smt. Vidyadevi Abhimanyu Raut,
  aged about 58 years, occupation 
  Service, r/o 28, Agney Layout,
  Khamla, Nagpur.                              ...   APPELLANT

                    Versus

  1. Bahujan Vikas Education Society,
     through its Secretary, Shri S.R.
     Adhao, Jagnath Budhwari,
     Bharatmata Chowk, Nagpur,
     r/o 413, Vaidehi Apartment,
     Hanuman Nagar, Nagpur.

  2. Education Officer (Secondary),
     Zilla Parishad, Sarpanch Bhavan,
     Near Nayay Mandir, Akashwani
     Chowk, Nagpur.

  3. Head Master,
     Jagnath Vidyalaya, Jagnath 
     Budhwari, Bharat Mata Chowk,
     Nagpur.

  4. Shri Suresh Narayan Dhatrak,
     Assistant Teacher, Jagnath Vidyalaya,
     Jagnath Budhwari, Bharat Mata,
     Nagpur, r/o 130, Hanuman Nagar,
     Nagpur.

  5. Shri Bhojraj Bhanjibhau Dhanuskar,
     Assistant Teacher, Jagnath Vidyalaya,
     Jagnath Budhwari, Bharat Mata
     Chowk, Nagpur r/o Sai Kripa,
      Ayodhya Nagar, Nagpur.

  6. Shri Manohar Nilkantha Waghmare,


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    lpa358.08                                                                           2



       Assistant Teacher, Jagnath Vidyalaya,
       Jagnath Budhwari, Bharat Mata
       Chowk, Nagpur, r/o Plot No. 39 (Old),
       Near Dhawade Hospital, Sneha Nagar,
       Nagpur.                               ...   RESPONDENTS



  Shri   Rohit   Vaidya   with   Shri   Anand   Parchure,   Advocates   for   the
  appellant.
  Shri A.V. Palshikar, AGP for respondent No. 2.
                       .....

                                 CORAM :       B.P. DHARMADHIKARI &
                                               ROHIT B. DEO, JJ.

JULY 17, 2017.

ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)

Heard Shri Rohit Vaidya, learned counsel for the

appellant and Shri Palshikar, learned AGP for respondent No. 2.

Nobody for other respondents.

2. The submission is, when a person like Shri Dhatrak,

Junior not only to the appellant but also to Respondent Nos. 5

& 6 was promoted as Head Master and that promotion was

rightly set aside in challenge at the instance of present

appellant, the management ought to have promoted the

appellant after removal of Shri Dhatrak.

3. The contention is, considering the eligibility and

entitlement of Respondent Nos. 5 and 6 again, at that juncture,

was not open and it has vitiated the entire exercise.

4. The learned AGP submits that Respondent Nos. 5 &

6 were seniormost and thereafter at Sr. No. 3, the appellant

was placed. Shri Dhatrak was below the appellant. Respondent

Nos. 5 & 6 gave no objection as per Rule 3(3) of the

Maharashtra Employees of Private Schools (Conditions of

Service) Rules, 1981 (hereinafter referred to as 1981 Rules),

and as Respondent Nos. 5 & 6 then agreed to waive their right

to promotion, after due verification, the management thought it

fit to promote Shri Dhatrak. When Respondent Nos. 5 & 6

found that Shri Dhatrak cannot be promoted and instead the

management was required to promote the appellant, they did

not give no objection. Their seniority, therefore, was required

to be accepted and accordingly the seniormost Respondent No.

5 was promoted.

5. With the assistance of both learned counsel, we

have perused the judgment delivered by the learned Single

Judge. The facts show that the appellant joined the School on

13.10.1999 and Respondent No. 4 - Dhatrak was her junior, as

he joined on 15.10.1999. Respondent Nos. 5 & 6 were already

in the School and, therefore, senior to the appellant. However,

Respondent Nos. 5 & 6 gave their no objection/ consent for

promoting Shri Dhatrak and accordingly Shri Dhatrak was

promoted. The appellant, who had not given that no objection,

challenged the promotion of his junior and hence it was

required to be withdrawn.

6. The question, therefore, is not whether it was a

different vacancy. Though vacancy was the same, it was being

filled in again and at that juncture, Respondent Nos. 5 & 6

refused to give their consent/ no objection. Respondent Nos. 5

& 6 may have been prompted by various considerations but

they objected to their supersession by the present appellant.

7. In this situation, we find that the School Tribunal as

also the learned Single Judge have rightly appreciated the

controversy. No injustice has been done to the present

appellant. There is no jurisdictional error or perversity. Letters

Patent Appeal is, therefore, dismissed. However, in the facts

and circumstances of the case, there shall be no order as to

costs.

           JUDGE                                                 JUDGE
                                         ******

  *GS.