Balasaheb Kalyanrao Kulkarni vs The State Of Mah And Ors
2017 Latest Caselaw 7058 Bom

                                                                          WP 7696/2008  
  
                                               - 1 -




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                     BENCH AT AURANGABAD                                                 

                                                               
                                            WRIT PETITION NO.7696/2008


                                    Balasaheb s/o Kalyanrao Kulkarni,
                                    age 41 yrs., occu.service,
                                    r/o Nipani Tq.Bhoom
                                    Dist.Osmanabad.    
                                                      ...Petitioner..

                         Versus


                          1]        The State of Maharashtra,
                                    through Deputy Director of Education,
                                    Latur.

                          2]        The Deputy Director of Education,
                                    Latur Division, Latur.

                          3]        The Education Officer (Secondary),
                                    Zilla Parishad, Osmanabad.

                          4]        The Head Master,
                                    Beleshwar Vidyalaya, Pakhrud,
                                    Tq.Bhoom Dist.Osmanabad.

                          5]
                  The Secretary,
                  Lokmanya Shikshan Sanstha, 
                  Vizora Tq.Washi Dist.Osmanabad. 
                                    ...Respondents... 
                                                     
                          .....
Smt.M.A. Kulkarni, Advocate for petitioner.
Smt.M.A. Deshpande, AGP for respondent nos.1 to 3.
Shri B.A. Dhenge, Advocate for respondent nos.4 & 5. 
                          .....
  




     ::: Uploaded on - 15/09/2017                      ::: Downloaded on - 17/09/2017 02:26:02 :::
                                                                       WP 7696/2008  
  
                                           - 2 -

                                    CORAM: R.D. DHANUKA &
                                            SUNIL K. KOTWAL, JJ. 

DATE: 13.09.2017

ORAL JUDGMENT (Per R.D. Dhanuka, J.) :

1] Heard learned counsel for the parties.

2] By this petition filed under Article 226 of the

Constitution of India, the petitioner seeks an order and

direction against the respondent nos.3 and 4 to grant the

petitioner trained graduate regular scale with effect

from 1.2.2001 by issue of writ of mandamus or any other

appropriate, writ, order or direction in the like nature.

3] It is the case of the petitioner that he was

initially appointed as an Assistant Teacher on 13.6.1988

in D.Ed. scale with the respondent no.5. The services of

the petitioner were terminated some time in the year

1982. The petitioner filed an appeal before the School

Tribunal at Aurangabad. The petitioner and the

management filed compromise petition before the School

Tribunal on 14.9.1994.

4] Under the said compromise petition, the

management agreed to reinstate the petitioner on the post

of Assistant Teacher in D.Ed. scale with seniority and

WP 7696/2008

- 3 -

other benefits from June, 1988, excluding the arrears of

salary. The petitioner waived his right in respect of

arrears of salary from date of termination till

reinstatement. The management agreed to consider the

claim of the petitioner on the post of trained graduate

pay-scale in future if vacancy arises. The petitioner

reserved his right to claim the post of trained graduate

Assistant Teacher if vacancy arises in future.

5] The respondent no.3 granted the trained graduate

scale to the petitioner with effect from 1.6.2008. The

petitioner thus filed this petition inter-alia praying

for an order and direction to grant trained graduate

scale with effect from 1.2.2001.

6] Learned counsel for the petitioner submits that

on 1.2.2001, there was a vacancy and thus the petitioner

was eligible to be appointed to the said post and also

the trained graduate scale with effect from 1.2.2001.

She submits that the respondent nos.3 and 4, however,

have granted the trained graduate scale to the petitioner

with effect from 1.6.2008. The respondent nos.3 and 4

thus shall be directed to grant trained graduate scale

with effect from 1.2.2001.

WP 7696/2008

- 4 -

7] Learned counsel for the respondent nos.4 & 5

invited our attention to the compromise petition dated

14.9.1994 and more particularly Clause (3) thereof and

would submit that the management had agreed to consider

the claim of the petitioner on the post of trained

graduate pay-scale in future only if vacancy would arise.

Similarly, the petitioner also had reserved his right to

claim the post of trained graduate Assistant Teacher if

vacancy would arise in future. He submits that on

1.2.2001, one Mr.K.P. Paul, who was working as Head

Master in Vidya Vikas Vidyalaya, Vizora, run by the

respondent no.5, retired on attaining the age of

superannuation. However, there was dispute between one

Mr.D.R. Bhosale and Mr.N.P. Chavan and both were claiming

the post of Head Master in the said school. The said

dispute reached upto this Court.

8] The said Mr.D.R. Bhosale was appointed to the

said post on 1.2.2001. The Education Officer, however,

refused to grant approval to the said appointment. The

said Mr.D.R. Bhosale thus filed a Writ Petition bearing

No.6721/2006 in this Court inter-alia impugning the

refusal on the part of the Education Officer (Secondary)

WP 7696/2008

- 5 -

to grant him approval. By an order dated 27.6.2008

passed by Division Bench of this Court in the said writ

petition filed by Mr.D.R. Bhosale, this Court was pleased

to set aside the impugned order passed by the Education

Officer and remitted the matter back to him for decision

afresh in accordance with law. This Court held that the

respondent no.4 to that petition i.e. Mr.N.P. Chavan was

junior than the said Mr.D.R. Bhosale.

9] Pursuant to the said order passed by the

Division Bench of this Court, the Education Officer was

pleased to grant permanent approval for the post of Head

Master occupied by Mr.D.R. Bhosale with effect from

1.2.2001 to June, 2008 and accordingly fixed his pay.

The said Mr.D.R. Bhosale retired some time prior to

1.10.2008. The respondent no.3 accordingly granted the

trained graduate scale to the petitioner with effect from

1.6.2008.

10] It is not in dispute that the petitioner was

fully aware of the claim made by Mr.D.R. Bhosale and the

said Mr.N.P. Chavan to the said post of Head Master. The

said dispute was resolved by an order dated 27.6.2008

passed by this Court. The Education Officer has

WP 7696/2008

- 6 -

ultimately granted approval to the appointment of said

Mr.D.R. Bhosale to the said post with effect from

1.2.2001. The petitioner never challenged the

appointment of Mr.D.R. Bhosale to the said post with

effect from 1.2.2001.

11] Since the said post was already occupied by the

said Mr.D.R. Bhosale, the respondent nos.4 and 5 could

not have appointed the petitioner to the said post being

not vacant. The respondent nos.4 and 5 have implemented

the order passed by this Court on 27.6.2008. The

petitioner did not apply for modification and/or vacating

the order dated 27.6.2008 passed by this Court in Writ

Petition No.6721/2006 filed by said Mr.D.R. Bhosale. The

petitioner also did not challenge the approval granted by

the Education Officer to the appointment of said Mr.D.R.

Bhosale to the post of Head Master with effect from

1.2.2001.

12] In our view, the respondent nos.4 and 5 were

thus justified in refusing to grant trained graduate

scale to the petitioner prior to 1.6.2008. It is not in

dispute that the petitioner has been already granted

trained graduate scale with effect from 1.6.2008, which

WP 7696/2008

- 7 -

is accepted by the petitioner.

13] For the reasons recorded aforesaid, we are of

the view that there is no merit in this petition and the

same deserves to be dismissed. We, therefore, pass the

following order.

O R D E R

The writ petition is dismissed. Rule is

discharged. There shall be no order as to

costs.

(SUNIL K. KOTWAL, J.) (R.D. DHANUKA, J.)

ndk/c1391710.doc