1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. LETTERS PATENT APPEAL No. 398/2011 IN WRIT PETITION No. 1323/2008 & MISC. CIVIL APPLICATION No.26/2011. The President, Shri Balmukund Rathi Education and 2 others. -VERSUS- The Presiding Officer, School Tribunal, Amravati and others. _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ CORAM : B.P.DHARMADHIKARI & P.D. KODE, JJ. DATED : NOVEMBER 30, 2011. Shri Sharma, learned Counsel for appellants, Shri M.K. Pathan, learned A.G.P. for respondent Nos. 1 and 3 and Shri N.R. Pathrabe, learned Counsel for respondent No.7. Other respondents though served, are not represented. Appeal is heard finally by consent of parties, at the stage of admission itself by Admitting the same. We find that when judgment was 2 pronounced earlier by the learned Single Judge on 24.11.2010, the contesting respondents i.e., respondent nos. 1 to 4 were not represented. According to those respondents, who are appellants in the present matter their Advocate was no more and hence, they went un-represented. Application for review was then filed vide Misc. Civil Application No. 26/2011 and on 04.08.2011 the same was disposed of. Shri Sharma, learned Counsel appearing for appellants in this background states that costs of Rs.10,000/- imposed on the present appellants while disposing of review, are not justified. He further contends that one Shri Nerkar, a backward candidate was given protection in accordance with the government policy dated 15.06.1995, after invalidation of his caste claim and hence, roaster point underwent change. Respondent no.7 who was appointed after due advertisement, therefore could not be continued as post advertised was in open category and this later development changed that position. It is also contended that the learned Single Judge has restrained the Management from declaring respondent no.7 as 3 surplus. Learned Counsel has urged that teacher who is rendered surplus will be required to be found out, after ascertaining the seniority and other relevant material. Who so ever is rendered surplus then, can be absorbed in accordance with the provisions of law. Shri Pathrabe, learned Counsel appearing on behalf of respondent no.7 states that, respondent no.7 was appointed against open roaster point after advertisement and the learned Single Judge has therefore, correctly found that her services could have been terminated only if her performance was un- satisfactory. He further contends that caste claim of Shri Nerkar, has not been subjected to scrutiny and has not been invalidated till date, hence, there is no question of accommodating Shri Nerkar, against her vacancy or roaster point. According to the learned Counsel, this was the contention raised before the School Tribunal and also before the learned Single Judge. In this situation, he contends that as respondent no.7 was treated unfairly and matter was required to be adjourned unnecessarily time and again by the learned Single Judge, cost of Rs.10,000/- has 4 been inflicted. He claims that Management has already paid those costs to respondent no.7. After hearing the respective counsel we find that when petition was disposed of, the appellants were un-represented. They filed review and while disposing of that review on 04.08.2011, the learned Single Judge has found no substance in the application for review, and therefore, costs of Rs.10,000/- was imposed. Costs are not for delaying the matter. As petition was earlier decided without hearing the appellants and order of School Tribunal was in their favour and same was set aside by the learned Single Judge allowing Writ Petition, prayer of management to hear them and filing of review application for said purpose cannot be viewed as a malafide act. We, therefore, find imposition of costs of Rs.10,000/- upon the appellants for that, unjustified. The same is, therefore, quashed and set aside. Liberty to appellants to adjust the costs, if already paid, in future payment to respondent no.7. In so far as the question of determination of surplus teacher is concerned, it is at present a 5 hypothetical situation. Whether Shri Nerkar could have been given protection or then the act of accommodating him by department later on i.e., after the advertisement in response to which respondent no.7 came to be selected, are all disputed questions. The said protection could not have been questioned by respondent no.7 before the School Tribunal. It is, therefore, apparent that the determination and treatment to be extended to such surplus teacher will have to be ascertained only after such surplus teacher is found out, in accordance with the seniority list in future. Contention of learned counsel appearing on behalf of respondent no.7, that caste claim of Shri Nerkar was never subjected for scrutiny to the Caste Scrutiny Committee and hence there is no question of extending him any protection, can also be gone into at that time. We find that the learned Single Judge has directed the Management to follow the procedure for declaring the teacher as surplus, and has also found that the said determination could not have been avoided by following circuitous way of terminating 6 services of respondent no.7. There is nothing wrong in these observations and directions. Contention of appellants that it has simply abided by the directions of Education Department, cannot be a valid defence in this respect. Respondent no.7 could not have been made an escape goat for no fault on her part. However, the learned counsel for the appellant has contended that the learned Single Judge has restrained the management from adjusting Shri Nerkar against the post held by the petitioner. We are not in a position to note any such restraint upon appellant in the order. The appellants have every right to act in accordance with the provisions of the Maharashtra Employees of Private Schools (Conditions of Services) Rules, 1981 and to declare the junior most employee as surplus, in accordance with law. In this situation, the appeal is partly allowed and the order of imposition of costs of Rs.10,000/- is quashed and set aside. JUDGE JUDGE Rgd