Bombay High Court
Mahesh Dashrath Wanave vs The State Of Maharashtra, Through ... on 4 August, 2025
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2025:BHC-AS:33145-DB
1-WP-4322-2014.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4322 OF 2014
WITH
CIVIL APPLICATION NO. 2955 OF 2016
IN
WRIT PETITION NO. 4322 OF 2014
Mahesh Dashrath Wanave,
Age-40 years, Occ.-Service,
R/at Lokseva Barrack No. 1081,
O.T. Section, Room No. 17,
Ulhasnagar No. 3, District-Thane,
421 003. ...Petitioner
Versus
1. The State of Maharashtra
Through the Secretary,
Education Department, Mantralaya,
Mumbai-400 032.
2. Bhiwandi Nizampur Municipal
School Board through its Chairman,
having his office at Bhiwandi Municipal
Corporation, Bhiwandi, District-Thane.
3. The Administrative Officer,
Bhiwandi Nizampur City Municipal
Corporation Education Board,
Prabhu Ali Mandai, Bhiwandi-421 302,
District-Thane.
4. The Education Officer,
Zilla Parishad (Primary),
Thane.
5. Prabhakar Ramlal Gadhari,
Age-Adult, Occ.-Service,
At School No. 47,
Bhiwandi Nizampur Municipal School Board,
Bhiwandi-421 302, District-Thane. ...Respondents
__________
Mr. Jagannath S. Pawar a/w Ms. Siddhi P. Mekde and Ms. Pratiksha
Keni, Advocates for the Petitioner.
Mr. P. P. Kakade, Addl.G.P. a/w Mr. V. M. Mali, AGP for the
State/Respondent No. 1.
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Mr. N. R. Bubna, Advocate for Respondent Nos. 2 and 3, Municipal
Corporation.
__________
CORAM : RAVINDRA V. GHUGE &
ASHWIN D. BHOBE, JJ.
RESERVED ON : 8th MAY 2025
PRONOUNCED ON : 4th AUGUST 2025
ORDER (Per Ashwin D. Bhobe, J.) :
-
1. Heard Mr. Jagannath Pawar, learned Advocate for the
Petitioner, Mr. Kakade, learned Addl.G.P. for the State/Respondent
and Mr. Bubna, learned Advocate for Respondent Nos. 2 and 3.
2. By the present Petition under Articles 226 and 227 of the
Constitution of India, the Petitioner has sought for the following
reliefs :-
a. For writ of certiorari, writ in the nature of certiorari or
any other appropriate writ, direction or order calling for
records and proceedings of an order dated 01/03/2014
passed by Respondent No. 3 Administrative Officer and after
examining the legality, validity and propriety thereof the said
order dated 01/03/2014 passed by Respondent No. 3
Administrative Officer be quashed and set aside and
Respondent No. 3 Administrative Officer be directed to
promote Petitioner to the post of Headmaster in its school
w.e.f. year 2010 with all consequential benefits thereof
including arrears of salary, backwages, continuity of service
etc.
b. For a Writ of Mandamus, writ in the nature of
1-WP-4322-2014.odt
mandamus or any other appropriate writ, direction or order
directing Respondent No. 3 Administrative Officer to
forthwith withdraw order dated 01/03/2014 granting
promotion to Respondent No. 5 as Headmaster and in lieu of
that Petitioner be Promoted as Headmaster.
c. For a Writ of Mandamus, writ in the nature of
mandamus or any other appropriate writ, direction or order
directing Respondents to forthwith take action pursuant to
the letters dated 26/08/2013 and 04/03/2014 issued by the
Assistant Commissioner, Kokan Vibhag, Kokan Bhawan to the
Respondent Administrative Officer and Petitioner be
Promoted as a Headmaster w.e.f. year 2010.
d. For a Writ of Mandamus, writ in the nature of
mandamus or any other appropriate writ, direction or order
directing the Respondents to promote Petitioner to the post of
Headmaster in its school w.e.f. year 2010 with all
consequential benefits thereof including arrears of salary,
backwages, continuity of service etc.
Factual Matrix :-
3. Respondent No. 2 has 102 (Marathi, Gujarati, Urdu, Telgu
and Hindi Medium) schools. Out of them, 32 schools are Marathi
Medium having 24 sanctioned posts of Marathi Medium
Headmaster.
4. Petitioner belongs to NT(D) Category and is qualified as HSC
D.Ed and is duly qualified to be appointed as a Headmaster. He is
1-WP-4322-2014.odt
a Marathi Medium Teacher, he was an Assistant Teacher as on 14 th
August 1998.
5. 9 posts of Marathi Medium Headmasters were vacant till
December 2013. Petitioner, a senior most Assistant Teacher in the
NT(D) Category candidates, was eligible, having the qualifications
required to be appointed as a Headmaster.
6. As per roaster maintained by Respondent Nos. 2 and 3,
Bhivandi Nizampur Municipal Corporation, Point No. 3 is reserved
for NT(A) Category, Point No. 4 is reserved for NT(C) Category,
Point No. 7 is reserved for NT(B) Category and Point No. 11 is
reserved for NT(D) Category. NT(A) (Mrs. Mangala Patil-
Headmistress), NT(B) (Mrs. Geeta Javare-Headmistress) and
NT(C) (Mrs. Ujawala Damakale-Headmistress) are already filled up
with respective category candidates. From this NT(D) Category
candidate occupying the Post of Headmaster since 2003, Mrs.
Ujwala Mukund Damakale retired on 31st May 2010 and the
Petitioner being senior most NT(D) Category candidate, was
entitled to be promoted to the post of Headmaster, but the
Petitioner was ignored without any justifiable cause and the SBC
candidate Mr. Bansode was promoted as Headmaster instead of the
Petitioner. When this particular candidate of SBC Category Mr.
Bansode retired, Respondent No. 5, Mr. Prabhakar Ramlal Gadhari
from again NT(C) Category was promoted and the Petitioner was
unjustifiably ignored and left out of such rightful opportunity of
promotion.
7. Petitioner, who was qualified to be appointed as a
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Headmaster and when it was the turn of the candidate under
NT(D) Category to be promoted as per the roaster, register
maintained being denied, Petitioner made several representations
to the School Authorities as also the Commissioner, seeking his
right of being promoted. However, no response was received from
the Respondent.
8. Petitioner is aggrieved by the appointment of Respondent No.
5, who has been appointed contrary to the rules, by denying the
Petitioner his right to be promoted. Order dated 1 st March 2014,
appointing Respondent No. 5 is also a subject matter of challenge
in the present Petition.
9. Respondent No. 2 has opposed the Petition essentially on the
ground that the Government Resolution ("GR" for short) dated 25 th
May 2004 and GR dated 26 th October 2004, which prescribes
procedure for granting reservation in promotion, were struck down
by this Court to the extent it granted reservation in promotion.
Respondent No. 2 relied on the decision of this Court in the case of
State of Maharashtra v/s. Vijay Gogre1. It is the contention of
Respondent No. 2 that the State has challenged the decision before
the Hon'ble Apex Court by filing SLP(C) No. 28306 of 2017, which
is pending before the Hon'ble Supreme Court. However, no interim
orders are passed. Respondent No. 2 further claims that the State
Government has issued a GR dated 18th February 2021, making all
promotions temporary on the basis of seniority. Respondent No. 2
submits that as per the Seniority List of 2024-2025 of Marathi
Medium Primary Schools of the Respondent-Corporation, Petitioner
1 2017 SCC OnLine Bom 7398.
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is at Serial No. 12 and therefore, the Petitioner cannot claim that
any of his right being violated.
10. Mr. Jagannath Pawar, learned Advocate for the Petitioner
submits that the Petitioner was eligible and entitled to be
appointed to the post of Headmaster under NT(D) Category, as per
the roaster point. He submits that as per the roaster point, it was
turn of the NT(D) Category candidate. However, Respondent No. 2
on the basis of an incorrect report submitted by the
Admin/Education Officer, showing the Petitioner to be junior to
Respondent No. 5, contrary to law, promoted Respondent No. 5
from NT(C) Category. He submits that the said appointment of
Respondent No. 5 by order dated 1 st March 2014, was contrary to
the Promotion Committee, which has suggested the name of
Petitioner for promotion to the post of Headmaster under the
NT(D) Category. He submits that the decision relied on by
Respondent No. 2, would not apply to the case of Petitioner, as
claim of the Petitioner is to the post, which arose in the year 2010,
whereas the decisions, which struck down the GR dated 25 th May
2004, was on 4th August 2017. He submits that the pendency of
SLP before the Hon'ble Supreme Court does not have any bearing
on the case of Petitioner.
11. Mr. Bubna, learned Advocate for Respondent Nos. 2 and 3
has filed written submissions dated 8th May 2025 on record.
Paragraph nos. 2 to 4 of the said written submissions, read as
under :-
"2. In present case petitioner is claiming that he be
granted promotion under NT D category. The petitioner has
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relied upon G.R. dated 25/5/2004 and G.R. dated
26/10/2004 which prescribes procedure for granting
reservation in promotion as per G.R. dated 25/5/2004. G.R.
dated 25/5/2004 under which petitioner is seeking
reservation in promotion was struck down by this Hon'ble
Court to the extent it granted reservation in promotion. The
decision in case of State of Maharashtra v/s. Vijay Ghogre
reported in 2017 SCC OnLine Bom Page 7398, has been
annexed to affidavit filed on behalf of respondent.
3. State Government challenged the aforesaid decision in
Apex Court by filing the SLP(C) No. 28306 of 2017. I say that
said Petition is pending till date and decision passed by this
Hon'ble Court was not stayed. I say that as per G.R. dated
18/2/2021 (annexed to reply filed on behalf of respondent),
respondent corporation is making all promotions temporarily
on the basis of seniority. I say that as per seniority list of
2024-25 of Marathi Medium Primary Schools of respondent
corporation, petitioner is at serial no. 12. I therefore submit
that no right of petitioner is infringed.
4. I submit that municipal officers have acted strictly in
accordance with law. I therefore submit that there is no
substance in the petition and the same deserves to be
dismissed with costs in the interest of justice."
12. Challenge to GR dated 25th May 2004, was a subject matter
of Writ Petition No. 2797 of 2015 before a Coordinate Division
Bench. In view of the difference in opinion, the matter was
referred to the learned Third Judge. Order dated 4 th August 2017,
passed in Writ Petition No. 2797 of 2015 reads as follows :-
"ORDER
1. By order dated 21st December, 2016, in view of
difference in our opinions, we had requested the matters be
placed before the Hon'ble the Chief Justice for reference to
third learned Judge or a larger Bench. The Hon'ble the Chief
Justice referred the matter to learned brother Justice M. S.
1-WP-4322-2014.odt
Sonak. Learned brother Justice M. S. Sonak has rendered his
opinion on 25th July, 2017, partly agreeing with the view of A.
A. Sayed, J. In the circumstances, the final operative order is
passed in the following terms:
ORDER
(i) The impugned judgment and order dated 28 th November,
2014 of Maharashtra Administrative Tribunal to the extent it
strikes down the Reservation Act is set aside and the issue of
constitutional validity of the Reservation Act is kept open for
determination in appropriate case and on an appropriate
occasion;
(ii) The Government Resolution dated 25th May, 2004 is
struck down to the extent it makes provisions for reservation
in matters of promotions in favour of Scheduled Caste,
Scheduled Tribes, De-Notified Tribes (A), Nomadic Tribes
(B), Nomadic Tribes (C), Nomadic Tribes (D) and Special
Backward Classes, being ultra vires Article 16(4A) of the
Constitution and contrary to the law laid down in M. Nagraj
case;
2. The Petitions are disposed of in the above terms by
virtue of the majority view (A. A. Sayed, J. and M. S. Sonak,
J.). Rule to stand disposed of accordingly.
3. It is clarified that since GR dated 25th May, 2004 is
struck down, consequential direction is issued to the State
Government to take necessary corrective steps/measures in
respect of promotions already granted, within 12 weeks from
today, which direction is necessitated in view of the order
dated 28th March, 2008 of the Supreme Court modifying the
interim order of this Court dated 9 th March, 2007, by which
the promotions were made subject to the final decision in the
old Writ Petition No. 8452 of 2004.
A. A. SAYED, J. ANOOP V. MOHTA, J.
4. Upon the pronouncement of the order, the learned
Government Pleader appearing for the State requested for
stay to the effect and operation of this order to the extent
stated in paragraph 1(ii) and paragraph 3 above. He pointed
out that by order dated 21st December, 2016, this Court had
continued the stay granted to the impugned judgment and
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order of MAT until the final decision on Reference by the third
learned Judge. Learned Counsel for the Respondents/original
Petitioners oppose the prayer for stay.
5. In the facts and circumstances of the case, we accede to
the request of the learned Government Pleader and stay the
effect and operation of this order to the extent as prayed by
the learned Government Pleader for a period of 12 weeks from
today. It is clarified that the order dated 28 th March, 2008
passed by the Supreme Court modifying the interim order
dated 9th March, 2007 of this Court shall continue to operate
for the said period."
13. In view of the aforesaid facts and the matter being subjudice
before the Hon'ble Supreme Court in SLP(C) No. 28306 of 2017,
we are not inclined to entertain the present Writ Petition, at this
stage. However, if the Hon'ble Supreme Court delivers a judgment
which would justify the claim of Petitioner to the position of the
Headmaster, we grant liberty to the Petitioner to approach this
Court upon disposal of SLP(C) No. 28306 of 2017 and renew his
request. We record that, even if the Petitioner may have retired
from service, he would be entitled to make a claim for notional
appointment as the Headmaster with all service monetary benefits.
All the rights and contentions of the Petitioner, are left open.
14. With the above observations and directions, this Writ Petition
No. 4322 of 2014 stands disposed off. There will be no order as to
costs.
15. Civil Application No. 2955 of 2016 is disposed off in view of
the order passed in the aforesaid Writ Petition.
[ASHWIN D. BHOBE, J.] [RAVINDRA V. GHUGE, J.]
Gitalaxmi Digitally signed
by GITALAXMI
GITALAXMI KRISHNA
KRISHNA KOTAWADEKAR
KOTAWADEKAR Date:
2025.08.05
10:17:45 +0530
