WP-9885.10 v. The State of Maharashtra & Ors.

Shri S.R. Barlinge, Advocate for the petitioner. Shri K.B. Chaudhary, Additional Government Pleader for the Respondents No. 1 to 5. Shri U.S. Malte, Advocate, for Resp. No. 6. Shri S.B. Yawalkar, Adv. for Resp. No. 7 & 8. ------ CORAM : B.P. DHARMADHIKARI & SUNIL P. DESHMUKH, JJ. DATE : JULY 18, 2012 P. C.

Rule. Heard finally.

Petitioners belonging to open category question promotions given to Respondents No. 7 and 8 on the ground that as total number of schools with Respondent No.6-Management is only two, 2 WP-9885.10 reservation is not applicable. To substantiate this, support is being taken from the judgment of Full bench of this Court in N.E.H.S. Association vs. Baldev, 2006 (6) Mh.L.J. 882.

It is further pointed out that similar challenge has been entertained and allowed by this Court in Writ Petition No.1273 of 2008 [Padmasing s/o Kondu Chanda vs The State of Maha] on 15.7.2008. Shri Barlinge states that aggrieved Respondents in that matter had approach the Hon'ble Apex Court, but the said judgment has been maintained.

Advocate Yawalkar for Respondents No. 7 and 8 points out that in seniority list there are others who are above petitioners in open category, but they have not made any grievance about promotions of Respondents No. 7 and 8. According to him, if promotions of Respondents No. 7 and 8 are to be disturbed, persons at serial Nos. 4 and 5 in seniority list may become eligible and not the petitioners and, therefore, no cause of action has accrued in favour of the petitioners. He points out that petitioner 3 WP-9885.10 No. 1 has retired on 31.5.2010 and petitioner No. 2 has retired in October 2010, and Petitioners No. 3, 4 and 5 are continuing in service.

He further states that present respondents No. 7 and 8 are promoted way back in 2000 and the same is not questioned within limitation as required under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. He, therefore, prays for dismissal of the petition, or alternately, contends that the petitioners may approach the School Tribunal for redressal of their grievance.

Advocate Malte for Respondent No. 6 is seeking time to file reply affidavit. Learned Additional Govt. Pleader is also seeking time.

We find from facts in Writ Petition No.1273 of 2008 decided on 15.7.2008 by Division Bench at Aurangabad Bench, that promotions effected in 2006 were questioned by placing reliance 4 WP-9885.10 on judgment of Full Bench in N.E.H.S. Association vs. Baldev (supra). The Division Bench has accepted the challenges and found that the promotions effected were unsustainable and the roster was held to be not applicable as number of school was only two and therefore posts of Head Master were available in open category.

The facts of the case at hand are not different. In this situation, we follow the aforesaid judgment of the Division Bench dated 15.7.2008 in Writ Petition No.1273 of 2008.

It is apparent that if persons in seniority list above the petitioners are eligible for promotions prior to petitioners, merely because they have chosen not to challenge the promotions given to their juniors, namely, Respondents No. 7 and 8, that does not debar petitioners from raising such challenge. Admittedly, Respondents No. 7 and 8 are junior to the petitioners also. 5 WP-9885.10

In this situation, we set aside the promotions given to Respondents No. 7 and 8 and direct Respondent No. 6 to take fresh decision in the matter in accordance with the standing of respective eligible candidates in the seniority list. Such decision shall be taken within a period of three months from today.

Till such decision as above is taken by Respondent No.6, Respondents No. 7 and 8 shall continue to hold the post.

Petition is thus allowed and disposed of. Rule made absolute, accordingly. No costs. (SUNIL P. DESHMUKH, J.) (B.P. DHARMADHIKARI, J.) pnd/WP-9885.10