Bombay High Court
Madhukar S/O Laxman Sahare vs Presiding Officer, School ... on 21 September, 2017
Bench: B.P. Dharmadhikari
1 LPA7.10.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
LETTERS PATENT APPEAL NO. 7 OF 2010
IN
WRIT PETITION NO.3546 OF 1997
APPELLANT : Madhukar S/o Laxman Sahare,
Aged about 48 years,
R/o Jakh Post Shahapur,
District Bhandara.
VERSUS
RESPONDENTS : 1] Presiding Officer, School Tribunal,
Nagpur (Incharge of Addl. School
Tribunal, Chandrapur)
2] Navyuvak Education Society,
through its Secretary New Babulkheda,
Kunjilal Peth, Nagpur.
3] Head Master,
Manavta High School, Saveri,
District Bhandara.
4] The Education Officer (Secondary),
Zilla Parishad, Bhandara.
----------------------------------------------------------------------------------------------
Mr. R. S. Parsodkar, Advocate for the appellant
Mr. K. L. Dharmadhikari, A.G.P. for respondent nos.1 and 4
Mr. H. A. Deshpande, Advocate for respondent nos.2 and 3
----------------------------------------------------------------------------------------------
CORAM : B. P. DHARMADHIKARI and
ARUN D. UPADHYE, JJ.
DATE : SEPTEMBER 21, 2017.
2 LPA7.10.odt
ORAL JUDGMENT (Per B.P. Dharmadhikari, J.)
1. Heard learned Counsel for the respective parties.
2. Short submission of learned counsel Shri Parsodkar is,
the appellant was appointed against open category post and hence,
that issue needs to be looked into in present letters patent appeal.
3. Learned counsel Shri Deshpande for respondent nos.2
and 3 has submitted that because of judgment delivered in this
letters patent appeal on 01.3.2011, later order dated 02/2/2012 in
Misc. Civil Application No.66/2017 (Review) and order dated
12/11/2013, there is no merit in this letters patent appeal. He also
contends that the effort to raise contention that the appellant was
appointed against open post, cannot be sustained.
4. We have perused the judgment delivered by the School
Tribunal on 26/9/1997 and judgment delivered by the learned
Single Judge on 22/7/2009.
5. The appellant was terminated by the Management as a
candidate belonging to Scheduled Tribe, though his caste claim was
3 LPA7.10.odt
not referred to the Scrutiny Committee. This termination was
questioned before the the School Tribunal in Appeal No. STN
-301/1994. The appeal was later on amended to urge that the
appellant was appointed against open category post. The School
Tribunal recorded a finding that the appellant was appointed against
reserved post and therefore, it dismissed the appeal. This dismissal
was questioned in Writ Petition No.3546/1997 and the learned
Single Judge on 22/7/2009 dismissed that petition upholding the
finding that the appellant was appointed against reserved category
post.
6. Thereafter, present letters patent appeal came to be filed
on 16/10/2009.
7. In this letters patent appeal, on 01/3/2011 accepting the
contention of the appellant that without referring the caste claim to
Scrutiny Committee he could not have been terminated, this Court
had allowed the appeal. The appellant was directed to be reinstated.
A review was then filed by the employer pointing out that caste claim
of the appellant was already invalidated on 25/9/1998 and that
4 LPA7.10.odt
invalidity was not pointed out to this Court. That review has been
allowed on 02.2.2012 and the letters patent appeal has been restored
back to file.
8. These developments, therefore, show that the appellant
earlier was satisfied with the direction of this Court to reinstate him,
issued on 01.03.2011 while allowing his Letters Patent Appeal. This
direction was only on account of the then alleged pendency of his
caste claim. At that juncture, he did not seek reinstatement as
interim relief and did not pray for keeping the letters patent appeal
pending pointing out that the question whether he was recruited
against Open post or not, needed to be decided. Thus, for about one
year, he did not make any grievance and acquiesced in the final
adjudication of the appeal.
9. The order of invalidity was passed long back i.e. on
25.9.1998, but this invalidation was then not pointed out on
01.03.2011.
10. It appears that thereafter, in letters patent appeal, on
12.11.2013, a statement was made by the appellant that he was not
5 LPA7.10.odt
interested in challenging the adverse order of the Scrutiny
Committee in the petition. It is not in dispute that the order of
invalidation was challenged in Writ Petition No. 5837/2012 and that
writ petition was also thereafter withdrawn on 12.11.2013 itself.
Thus, the petitioner gave up the caste claim and also on 01.3.2011,
decided to waive his contention that he was selected and appointed
against open category post. We, therefore, find substance in
preliminary objection raised by Shri Deshpande, learned counsel that
nothing survives in this Letters Patent Appeal today.
11. However, we have, by way of an abundant precaution
also looked into the merits of the controversy. The learned Single
Judge has, in the judgment dated 22.7.2009, noted in paragraph 8
that the appellant wrote a letter on 04.4.1994 to the Education
Officer stating that he was working with the respondent no.2 School
from 06.8.1985 on the post of Trained Secondary Teacher under
Scheduled Tribe category. The learned Single Judge also noted
another letter dated 30.4.1994 and observed that the petitioner had
repeatedly stated that he was a teacher working under Scheduled
Tribe category. The learned Single Judge has also looked into the
6 LPA7.10.odt
contention of the employer that the appeal initially filed projected
the appellant as employed on reserved post and it was later on
amended to incorporate an assertion that he was selected and
appointed against open post.
12. The aforesaid findings of fact reached by the learned
Single Judge are not demonstrated to be either erroneous or
perverse.
13. The School Tribunal has also reached the similar
findings in its judgment. We do not see any error in these concurrent
findings.
14. In view of these conclusions, no case is made out
warranting intervention in Letters Patent Appeal. The Letters Patent
Appeal is dismissed. No costs.
JUDGE JUDGE
Wadkar/Diwale
