VINAYAK KRISHNAJI JOSHI Vs. AKOLA EDUCATION SOCIETY

JUDGEMENT

(1.) The petitioners who are legal heirs of deceased employee of respondent No. 1 and 2 who had in this writ petition challenged the order/judgment dated 21-9-1993 passed by School Tribunal whereby School tribunal allowed appeal of present respondent No. 3 and held that promotion of deceased employee by order dated the 23-11-1991 to the post of Headmaster at akola school was illegal and in turn directed respondents 1 and 2 to promote respondent No. 3 as Headmaster in place of said employee. This Court granted interim order on 14-1-1994 and that order continues to operate even today. During pendency of petition original petitioner/employee expired and his legal heirs have been brought on record. The respondent No. 1 and 2 run another school at Murtijapur and post of Headmaster therein became vacant in 1994. Against that post, another employee by name Shri Mural has been promoted as respondent Nos. 1 and 2 found him seniormost from backward/reserved category. Shri Mural has also retired on superannuation but he contends that as he happens to be senior than respondent No. 3 Shri Bagade, he needs to be promoted before respondent No. 3 and for this purpose he had filed Civil Application No. 2554/1993 in Writ Petition 3465/1993. The latter writ petition was filed by management challenging the very same judgment of School Tribunal with prayer to restore its promotion order dated 23-11-1991. As the parties are common and the common questions arise for consideration, both the petitions were requested to be taken up for hearing together. However, after perusal of record, it was found that on 30-7-2004 Division Bench discharged rule in that matter nobody appeared for petitioner on that day.

(2.) The facts which are not in dispute can be briefly stated thus. The respondent No. 1 society runs two schools as mentioned above and both the schools are recognised and admitted to grants by State Government. The deceased employee joined the services on 1-7-1959 and he obtained training qualification in 1962. Respondent No. 3 who belongs to Schedule Caste category was initially appointed as Assistant Teacher in some other school where he was declared surplus and was absorbed with respondent No. 1 on 12-11-1976. As per government Resolution dated 17-9-1980 prescribing 24 percent reservation, 3-6-197.7 has been treated as cut-off date for the purposes of working out and implementation of the roster and carrying forward the reservations. The year of first appointment of Headmaster/assistant Headmaster effected after 3-6-1977 has been treated as "initial year of recruitment". In High school at Akola the post of Headmaster fell vacant in December 1977 and one Morshikar from open category was appointed as Headmaster from 1-1-1978. Shri Morshikar retired on superannuation on 31-10-1991 and his appointment/promotion as Headmaster was never challenged by anybody including present respondent No. 3, Against that vacancy, deceased petitioner Vinayak was promoted as he was Seniormost assistant Teacher and also from open category. This promotion came to be challenged by present respondent No. 3 by filing appeal vide appeal No. 17 of 1992-A before School Tribunal, Aurangabad. In the meanwhile post of headmaster in another school i. e. at Murtijapur became vacant because of retirement of 'shri Deshmukh. The intervenor Shri Mural in Writ Petition 3465/1993 was therefore appointed as in-charge Headmaster on 1-5-1994 and he retired on 28-2-1999. After this retirement; respondent No. 3 came to be appointed as Headmaster at Murtijapur from 1-3-1999 and Education Officer also granted approval to this appointment. After retirement of deceased Vinayak, one shri Kavishwar and after his retirement Shri Jaltare from 1-5-1996 were appointed as Headmasters from open category. As the appeal of respondent No. 3 was pending, Education Officer did not grant approval to these appointments. Lastly one Shri S. G. Pande was appointed as Headmaster from 1-5-1997 and he was also from open category. Education Officer did to grant approval even to this appointment. However, it has been approved after promotion of respondent No. 3 as Headmaster from 1-3-1999. Thus deceased petitioner received salary only as assistant Teacher and subsequent open category candidates also received similar treatment. Only Shri Pande got salary as Headmaster from 1-3-1999. After retirement of Shri Pande, Shri Kshirsagar has been working as Headmaster at Akola.

(3.) The School Tribunal has found that provisions of Rule 3 (3) , sub-rule 10 (a) and (b) of Rule 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules of 1981 (hereinafter referred to as the Rules) are relevant in the situation. After considering the facts and the law on the point, it has found that 50 point roster was applicable as there are two post of Headmaster and vacancy which arose after 3-6-1977 should have been filled in by promoting seniormost backward class candidate. It has considered the claim of Shri Mural also and found that said employee did not assert his seniority and did not file any appeal before School Tribunal. Accordingly it held that present respondent No. 3 (appellant before it) was aggrieved person and roster applied by rotation and therefore respondent No. 3 was entitled to be promoted by reverting deceased employee shri Vinayak. It further held that there was no question of jumping promotion in view of express provisions of the Rules. It therefore, directed respondent Nos. 1 and 2 to promote respondent No. 3 as Headmaster of its school at Akola. It is this order which has been impugned in present petition.