Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO.1044 of 1998 Shri Anand Maruti Shinde At & Post Makjan Tal. Sangmeshwar, Dist. Ratnagiri ...Petitioner V/s. 1. Shri Patankrao Dadasaheb Patil At & Post Dahivalibudruk Tal. Chiplun, Dist.Ratnagiri. 2. Secretary, Ratnakar Education Society, At & Post Dahivalibudruk Tal. Chiplun, Dist. Ratnagiri. 3. Education Officer (Secondary) Zilla Parishad, Ratnagiri. ...Respondents Mr.R.S.Apte, Advocate for the Petitioner Mr.S.S.Pakale, Advocate for Respondent Nos.1 and 2 Mr.S.K.Chinchalikar, AGP for Respondent No.3 CORAM CORAM CORAM : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. DATED DATED DATED : 24th January, 2008 : 24th January, 2008 : 24th January, 2008 ORAL ORAL ORAL JUDGEMENT JUDGEMENT JUDGEMENT This Petition takes exception to the Judgement and order dated 21-10-1997 rendered by the School Tribunal at Kolhapur, thereby dismissing the petitioner’s Appeal registered as Appeal No. 195/1993. In the said Appeal the petitioner had raised a grievance of his supercession to the post of Head Master and respondent no.3 was appointed to the said post w.e.f. 1-7-1993. 2. There is no dispute that the petitioner was 2 initially appointed w.e.f. 1-7-1988 as an Assistant Teacher and it appears that he was served with a notice of termination dated 13-8-1990 and was terminated. The said termination notice was challenged in Appeal No.1/1990 and it was allowed by the School Tribunal at Mumbai on 9-10-1990 but ex-parte. The Respondents were duly served and the Head Master had appeared before the Tribunal on 10-7-1991 and filed an application for adjournment to engage an Advocate and also to file reply. On two subsequent dates i.e. 29-7-91 and 22-8-91 none appeared for the management and, therefore, the appeal proceeded exparte as per the order passed on 22-8-1991. The Appeal was finally heard on 22-9-1991 and was allowed on 9-10-1992. The petitioner claims that he possessed the qualifications of B.A. B.Ed when he was appointed as an Assistant Teacher on 1-7-1991 whereas Respondent No. 3 holding the qualifications of M.A. B.Ed. was appointed w.e.f. 11-7-1988 and both of them being Assistant Teachers in category ’C’ (in schedule F) he was senior to respondent no.3 and had put in 5 years of service as on 1-7-1993. He, therefore, prayed that he was not only senior to the respondent no.3 but has put in continuous service of 5 years in the Secondary School and respondent no. 3 was short of few days to complete that requirement. 3. The management filed reply and brought on record 3 the appointment orders issued to the petitioner as well as the letters of approval for the said appointment. It was pointed out that the initial appointment w.e.f. 1-7-1989 was on temporary basis and only for one academic year. At the end of April 1990 he was discontinued and the said appointment was against a post reserved for Scheduled Tribe candidate. He was again appointed on 21-6-1990 against the very same reserved post. Approvals granted by the Education Officer were also for temporary period and strictly for the respective academic years. It was also pointed out that he was not given the trained graduate pay scale but he was given pay scale of primary school teacher (D.Ed scale). The management did not point out as to when the petitioner was given the B.Ed scale. However, the School Tribunal noted that between his first appointment and second appointment there was a gap of 90 days’ and between his termination on 13-8-1990 and reinstatement as per the Judgement of School Tribunal rendered on 9-10-1990 there was almost more than 50’ days gap. However, by the School Tribunal he was granted reinstatement with full backwages and, therefore, gap in his service in the year 1990 becomes irrelevant but certainly there was a break in service for 90 days at the end of the academic year 1988-89. 4. Mr. Apte, the learned counsel for the petitioner 4 submitted that the order dated 9-10-1990 shows that the petitioner was appointed in a clear vacancy w.e.f. 1-7-1988 and had attained the status of deemed permanent teacher within the meaning of Section 5(2) of the MEPS Act, 1977 and this was a judicial finding which could not be overlooked unless the same was set aside by a higer forum. Mr.Apte further pointed out that no Appeal or Writ Petition was filed challenging the said Judgement dated 9-10-1990 and, therefore, it was not proper for the School Tribunal in Appeal No.195/1993 to hold that there was break in service of 90 days or the petitioner was appointed on temporary basis in the initial academic years. 5. The Tribunal in the impugned Judgement has noted that the earlier Appeal was decided exparte as far as the management is concerned. It referred to the documents brought on record which were not disputed namely the appointment orders, letters of approval issued by the Education Officer and held that when the petitioner was appointed in D.Ed scale, he could not be treated to be category ’C’ alongwith respondent no.3 or above it. The Tribunal also noted that the original appointment of the petitioner was against the reserved post of Scheduled Tribe and, therefore, he could not be said to have attained the status of a deemed permanent teacher. It is clear that all these documents were not 5 before the Tribunal when the petitioner’s earlier Appeal No. 15/1990 was decided exparte. The impugned Judgement of the Tribunal cannnot be termed as a Judgement sitting in appeal over the earlier Judgement. The record was placed before the Tribunal and considering the same, the impugned Judgement was rendered. The record clearly indicated that respondent no.3 was senior to the petitioner and, therefore, his appointment to the post of Head of Secondary School on probation from 11-7-1988 could not be set aside at the instance of the petitioner. The view taken by the Tribunal cannot be termed as perverse or patently erroneous so as to call for interference under Article 227 of the Constitution and more particularly when the approval orders issued by the Education Officer clearly indicated that the appointment of the petitioner for earlier two academic years was on temporary basis and against the post reserved for Scheduled Tribe and even if it is presumed that appointment in D.Ed. scale was illegal, the gap between two tenures which was more than 90 days clearly indicated that the respondent no.3 was senior to him even in category ’C’. 6 6. In the premises this petition fails and the same is hereby dismissed. 7. Rule discharged. [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.]