DHARAMSINGH NARSING JADHAV Vs. PRESIDENT ARYAN EDUCATION SOCIETY

JUDGEMENT

(1.) THE petitioner herein was working as Assistant Teacher in Aruan Education society, M. N. Dandekar High School, Palghar, the respondent No. 2 herein. The petitioner was promoted to the post of Deputy Head Master w. e. f. 19. 10. 1997 vide order annexed at Exh. 'e' herein. This appointment of the petitioner was challenged by the respondent No. 5 herein, who is also working as Assistant Teacher in the said School by filing the appeal being Appeal No. 228/97. The said Appeal was heard and decided by the Presiding Officer Additional School Tribunal, Mumbai by its order dated 13th November 1998. By the said impugned order, dated 13th November 1998. By the said impugned order, the appeal was allowed and the order of appointment of the petitioner was Deputy Head Master was set aside. In these circumstances, the petitioner approached this court by way of this writ petition.

(2.) I have heard the learned counsel for the petitioner and the respondents, particularly, respondent No. 5. On a bear reading of the order, I fail to comprehend on what premise or the reasoning that order rests. It is curious to note that the appellate order did not point out as to how and what extent the order under appeal is illegal and unconfirmed. It is noted that the appellate authority was considering the rival claims of the respondent No. 5 and the petitioner herein to the post of deputy Head Master, vacancy thereof was occured on 19-10-1997. The important thing on the part of the appellate authority was to see as to who was qualified to be promoted to the post of Deputy Head Master on 19-10-1997 among the two, i. e. the petitioner and the respondent No. 5. In that context it may be relavent to comply with the roster regarding caste, legally prepared and valid as per the rules as to which tribe is entitled to, particularly when the post of Deputy Head Master is reserved to be filled from among the reserve candidates. It is primary duty of the appellate authority to examine the kind of tribes that is entitled to be filled up in that post. It is an undisputed fact that the petitioner is Denotified Tribes and the respondent No. 5 is Nomadic Tribes. Therefore, it must be relevant issue in this case, by following the roster, to see member of which tribe is entitled to hold that post. This exercise is completely lacking in the appellate court order. The appellate authority has noticed that the petitioner was absent and he could not file any document to establish its claim. But it cannot be treated as a defect in prosecuting the case of the petitioner. The appellate authority is well within its right to call for the records from the education department or the School and examine the genuiness or the veracity of the rival claims of the candidates. Therefore, the absence of the petitioner or non production of the required document cannot be made as a ground for not considering the petitioner's claim. At any rate the petitioner's claim has not been considered by the appellate authority. In this view of the matter, it is necessary in the interest of justice and for the reasons stated above, to remand the matter back to the appellate authority for re-consideration of the case afresh.

(3.) IN the result, the impugned order is hereby set aside. The matter is remanded back to the appellate authority of the School Tribunal. The Presiding officer, school Tribunal, New Bombay is directed to take up the hearing of the appeal afresh after giving the parties concerned sufficient opportunity of being heard. The parties are at liberty to file evidence and additional pleadings, if they so desired. In the result, the writ petition is disposed of. Rule is also disposed of accordingly with no order as to costs.