201wp5102.10.odt 1 . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No. 5102 of 2010 (Shikshan Sanstha and anr. vs. The Dy. Director of Edu. and anr.) Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Coram: D. D. Sinha and A. P. Bhangale, JJ. Date : 20/01/2011. Heard Mr. P.N.Shende, Adv. for the petitioners, Mr.A.S.Fulzele, Assistant Government Pleader for respondent nos. 1 and 2 and Mr.I.N.Choudhari, Adv. for respondent no.3. Counsel for the petitioners has submitted that the proposal of petitioner no.2 was forwarded by the Management to the Education Officer for grant of approval in the post of Head Mistress. It is contended that the Education Officer vide order dt. 9.9.2010 rejected the same on the grounds mentioned in paras 2 and 10, which read thus : “ Para No.2 : Shri R.R.Bisen who was B.A.B.ED. 201wp5102.10.odt 2 . at the time of first appointment 01-07- 1989, he should have been appointed on two years probation as per Rule 68.3 of S.S.Code. The contention of applicants is that there was no permanent vacancy cannot be justified because, 1) Shri R.R.Bisen was appointed again and again in every Session till 01-07-1992, from which he was appointed on Probation. 2) Untrained teacher was working in clear and vacant post at the same time. The contention of petitioners that due to continuous officiation, applicant no.2, is senior cannot be justified, because as per Rule 68.4 of S.S.Code no untrained teacher can be permanent and the applicant no.2 was untrained till 03-03-1992. She obtained Training Qualification on dated 04-01-1992, therefore she will come in Category “C” Schedule “F” of M.E.P.S.1981, on 04-01-1992.” “Para No.10 : The applicant no.2, can not be granted approval of Regular H.M. because there are 3 posts of Headmaster in the society and as per the promotion, there is 33 % reservation. Therefore, 1 post of 201wp5102.10.odt 3 . Headmaster will go to SC/ST as per the Roasters. Other 2 posts of Headmasters who are working are not belonging to SC/ST category. The financial and administrative power cannot be given to applicant no.2, because as per Govt. Circular dated 10-03-1990, if there is court case pending against the promotion then administrative and Financial power should be given to other than a Teacher who has filed the appeal and against whom the appeal is pending. Due to above facts & Rules, the appeal of applicant no.1 and 2, is rejected by this Office. “ Counsel for the petitioners has submitted that respondent no.3 filed an appeal before the School Tribunal in respect of the alleged action of supersession alleged to have been taken by the petitioner/Management which is pending for decision. It is contended that, during pendency of the appeal, the Education Officer ought not to have decided the issue of seniority under Rule 12 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. In order to substantiate this contention, reliance is placed on the decision of this Court reported in 201wp5102.10.odt 4 . 2001 (1) Mh.L.J. 486, Umesh Balkrishna Vispute .vs. State of Maharashtra and Others. We have considered the contentions canvassed by the learned Counsel for the petitioners and also perused the decision (cited supra). The relevant observations in para 21 read thus : “ We, after having heard the parties at length and after having considered the aforesaid judgments, are of the considered view that finalisation of the seniority list in terms of rule 12 of the Rules is not final and conclusive and not binding on the tribunal and section 9 (1) of the Act has overriding effect as it opens with non obstante clause and the dispute relating to seniority list can also be considered by the Tribunal as an incidental question while deciding the controversy in regards to the supersession. The dispute relating to supersession in the matter of promotion squarely lies within the jurisdiction of the tribunal. The view taken by the learned single Judge of this Court in Burondi K. Lodghar vs. Vilasrao M. Desai, (supra) cannot be said to be a good law. We, 201wp5102.10.odt 5 . therefore, have no difficulty in upholding the jurisdiction of the tribunal to go into the question of seniority of the teachers. The tribunal can also go into the question of supersession by the management while making promotion. “ The observations made by the Division Bench of this Court in the above referred paragraph makes it evident that finalisation of the seniority list in terms of Rule 12 of the Rules is not final and conclusive and not binding on the Tribunal and Section 9 (1) of the Act has overriding effect as it opens with non-obstante clause and the dispute relating to seniority list can also be considered by the Tribunal as an incidental question while deciding the controvery in regard to supersession. In that view of the matter, we see no reason to show indulgence and the School Tribunal is competent to take into consideration this aspect since there is no finalty reached to the decision taken by the Education Officer under Rule 12. In the circumstances, no case is made out for showing interference. Hence, the petition is dismissed. Appeal No.48 of 2009 filed by 201wp5102.10.odt 6 . respondent no.3 pending before the Tribunal is expedited. JUDGE JUDGE jais