1 IN THE HIGH COURT OF BOMBAY AT GOA. WRIT PETITION NO. 182/2003. Shri Gopal M. Shetye, Library Attendant, Shri Kamleshwar Higher Secondary School, Korgao, Pernem, Goa. … Petitioner. V/s 1. The Director of Education, Directorate of Education, Government of Goa, having office at 18th June Road, Panaji, Goa. 2. Shri Kamleshwar Shikshan Prasarak Saustha, through its Chairman, having office at Korgao, Pernem, Goa. 3. The Chairman, Shri Kamleshwar Higher Secondary School, Korgao, Pernem, Goa. 4. The Chairman, Shri Kamleshwar High School, Pethichawada, Pernem, Goa. 5. State of Goa, Through its Chief Secretary, having Office at Secretariat, Panaji – Goa. 6. Shri Surendra Mohan Gaude, resident of Gawadewada, 2 Korgao, Pernem, Goa. … Respondents. Mr. M. S. Sonak, Advocate for the Petitioner. Mr. S. D. Lotlikar, Senior Advocate with Ms. A. Chodankar, Advocate for respondent Nos. 2 to 4. Mr. V. A. Lawande, Advocate for respondent No. 6. CORAM: D. G. KARNIK, J. F. M. REIS, J. DATE: 21 st September, 2010. ORAL JUDGMENT ( Per D. G. Karnik, J. ) By this petition the petitioner seeks a mandamus directing respondent Nos. 1 to 5 to consider the petitioner for promotion to the post of LDC with effect from 26th September,2000 in the Respondent No. 4 school. 2. The respondent No. 2, society runs three schools in the State of Goa. Two of the said schools are joined as respondent Nos. 3 and 4. Respondent No. 3 is a Higher Secondary School having classes upto twelfth standard, and respondent No. 4 is High School having classes upto tenth standard. 3. On 1st October 1996, the petitioner was appointed to a post of a library attendant (which is equivalent to the post of a peon) in the respondent No. 3 school w.e.f. 1.10.1996. A lower division clerk (for 3 short L.D.C.) appointed in respondent No. 4 school was promoted as an upper division clerk (for short U.D.C.), and therefore, one post of L.D.C. in the respondent No. 4 school became vacant with effect from 26.9.2000. The petitioner requested the management to consider him for appointment to the post of L.D.C. which had fallen vacant in the respondent No. 4 school. It appears that the respondent No. 4 school sought permission of the director of education – respondent No. 1 whose sanction is necessary as per law for appointment of the petitioner to the post of L.D.C. In the mean while, father of respondent No. 6 who was working as a U.D.C. in the respondent No. 4 school died on 1.2.2000 and the respondent no. 6 being his son applied for the appointment on compassionate ground to the post of L.D.C. which had already fallen vacant. The respondent No. 1 directed the management of the respondent No. 4 to appoint to the post of L.D.C. on compassionate ground. Accordingly the respondent No. 4 school appointed the respondent no. 6 to the post of L.D.C. with effect from 18.12.2001. 4. Aggrieved by the decision of the respondent No. 4 to appoint the respondent No. 6 to the post of L.D.C., the petitioner herein made representation to the respondent no. 1. The representation was rejected by the respondent No. 1 by his letter dated 15.2.2002. 5. Aggrieved petitioner has filed this petition challenging the order of appointment issued to the respondent No. 6 by the respondent No. 4 in pursuance of the directions issued by the respondent No. 1. The petitioner has also prayed for directions that his claim for the post of L.D.C. be considered by respondent No. 4. 4 6. Mr. Lawande learned advocate appearing for the respondent No. 6 firstly contended that the petition is liable to be dismissed on the ground of laches as the petition was filed after about 15 months of his appointment. 7. The Constitution Bench of the supreme Court in the case of R. S. Deodhar (supra) has held that once the petition is entertained at the stage of final hearing the petition may not be dismissed on delay and laches. However, in a subsequent decision in Chuba Jamir & ors. Vs. State of Nagaland and ors., (2009) 15 SCC 169 the Supreme Court has held that the decision of the Constitution Bench in the case of R. S. Deodhar (1974) 1 SCC 317 does not lay down an inviolable rule that once a writ petition is entertained on merits, appellate court is powerless in going into questions of delay and laches and the conduct of the petitioner. 8. The present petition is admitted by order dated 2.6.2003. In our opinion it is too late in the day to dismiss the petition on the ground of delay and laches. The decision in the case of Chuba Jamir (supra) does not lay down that the writ petition should be dismissed on the ground of delay and laches even after it was admitted that the Court is not powerless to dismiss the petition. 9. The respondent No. 2 who manages the society had itself initially recommended the name of the petitioner to the post of L.D.C. There was every reason for him to believe that the representation made to the Director would be considered favourably. 5 Consequently he could have reasonably waited till the decision of the respondent No. 1- the Director of Education. The respondent No. 1 rejected his representation and soon thereafter the petitioner has filed the petition. There is no inordinate delay in approaching this Court after the rejection of his representation. 10. Mr. Lotlikar the learned Counsel appearing for respondent Nos. 2 to 4 i.e. management of two schools submitted that though initially the respondent Nos. 2 had recommended the name of the petitioner for the appointment to the post of L.D.C., in view of the order of the respondent No. 1 directing compassionate appointment of respondent No. 6 they had appointed him. During the period of 7 years of his appointment the respondent No. 6 has been working satisfactorily and the management is satisfied with the working of the respondent No. 6 and has no intention of dismissing or removing the respondent No. 6 from the post of L.D.C. so as to give appointment to the petitioner. 11. In view of the stand taken by the management at the hearing, it would be necessary to consider whether the petitioner has a right for being appointed to the post of L.D.C. In the year 2000-01 when the post of L.D.C. fell vacant in the respondent No. 4 school, the petitioner was employed as Library Attendant in respondent No. 3 school. The post of L.D.C. had fallen vacant in the different school i.e. the respondent No. 4 school. Though both the schools are under the same management, the management does not maintain common seniority list. In the reply filed by the respondent No. 6 he has specifically stated that the management of respondent No. 3 and 4 6 maintain separate seniority lists. He has also filed on record copies of two separate seniority lists maintained by respondent Nos. 3 and 4 respectively. No rejoinder has been filed by the petitioner disputing this position. It is thus clear that the seniority list in respect of respondent no. 3 school and respondent No. 4 school are separate. 12. Mr. Lotlikar the learned Counsel for respondent no. 2 stated that the post of a non teaching staff in respondent No. 3 school run by the society are not transferable. As the seniority list of each school is maintained separately in the absence of any material on record we are unable to hold that the post of a non teaching staff in the respondent No. 3 and 4 schools are naturally transferable. In the absence of vacancy in respondent No. 3 school, prima facie the petitioner would not have a right to be transferred to respondent No. 4 school on promotion. 13. Rule No. 86-A of Goa Daman & Diu School Education Rule, 1986 framed under Goa Daman & Diu Education Rule 1994 regarding the filling up of vacancies reads thus: “ Transfer of services of employees. - If the service of an employee of a school are transferable to another school under the same management and if he is so transferred by the management, the employee shall be given the order of such transfer for his record, and a) the employee so transferred shall be entitled to 7 such joining time and transfer allowances as are admissible to the corresponding employee in the Government schools: Provided that no joining time or transfer allowance shall be admissible to the employee where the transfer is made at the request of the employee or the transfer is made to re-deploy surplus staff.” 14. The rule does not confer a power on a non teaching employee to claim transfer as of right to other schools on a promotional post. In our view the petitioner who was employed in the respondent No. 3 school had no right to claim that the vacancy arising in a different school be filled up by his promotion. At the most he was entitled to be considered like any other person. The management, at one time was willing to consider his case but the post was filled by compassionate appointment as per the order of respondent No. 1. The management committed no error by appointing respondent no. 6 on compassionate ground. 15. It was contended that the post of L.D.C., is promotional post and therefore, the respondent No. 6 could not be appointed directly to the promotional post by way of compassionate appointment. In this regard Mr. Sonak relied upon the decision in the case of State of Bihar & ors. Vs. Samuz Zoha & ors (1996) 4 SCC 546 and Hiraman Vs. State of U.P. And ors. (1997)11 SCC 630. It may be noted that the post of L.D.C. is the lowest post in the non manual cadre while the post of peon is the lowest post in the manual 8 cadre. Some times employees employed in manual cadre are employed in non manual cadre if they possess qualification for holding the non manual post, but on that count it cannot be said that the manual cadre post is feeder post of non-manual category. The affidavit filed on behalf of respondent no. 1, Director of Education clearly specifies that the post of L.D.C. are to be filled 12 ½ % by promotion failing which by direct recruitment. We are therefore, unable to hold that the post of L.D.C. is promotional post and therefore the respondent No. 6 could not have been appointed thereto on compassionate ground. The two decisions of the Supreme Court in Samzuz Doha and Hiraman (Supra) are not applicable to the facts of the present case. 16. Since we have come to the conclusion that the petitioner has no right to the post of L.D.C. in a different school and since the post has been filled up by appointment of respondent No. 6 by compassionate appointment as per order of the respondent no. 1 and the management is satisfied with the appointment, the petitioner cannot succeed. The petition is dismissed with no order as to costs. D. G. KARNIK, J F. M. REIS, J. MF/-