-1- IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.10816 OF 2004 NO.10816 OF 2004 NO.10816 OF 2004 Narayan Vasant Chitari ...Petitioner v/s The State of Maharashtra and ors. ...Respondents Mr R.V. Govilkar with Mr Sarang Aradhye for Petitioner. Mr C.R. Sonawane, AGP for Respondent Nos.1 and 2. CORAM : D.K. DESHMUKH AND N.D. DESHPANDE JJ. DATE : 16TH APRIL 2008. -2- P.C. :- 1. Basically the petitioner challenges the order dated 1st March 2005 reverting the petitioner from the post of Supervisor to the post of Assistant Teacher. The relevant and material facts for deciding this petition are that the petitioner was in the services of the respondent No.3 as Arts Teacher. The Government issued a resolution amending Schedule ’F’ of the Maharashtra Private School Employees (Service Conditions) Regulations 1981 dated 25th November 1988 making Arts Teacher eligible for being considered for promotion on the basis of their seniority. The amendment was to take effect from the date of Government Resolution i.e. 25th November 1988. The Government issued a Resolution dated 9th April 2003 amending the Government Resolution dated 25th November 1988. The amendment was that the Government Resolution dated 25th November 1988 was not to come into force from the date of Government Resolution. Impliedly therefore, the change would take effect from inception i.e. when the Rules were framed. In the meantime, on the basis of Government Resolution dated 25th November 1988 as amended by Government Resolution dated 9th April 2003, by order dated 10th July 2004 the petitioner was -3- promoted to the post of Supervisor. After the petitioner was promoted to the post of Supervisor, it appears that the Government on 15th July 2004 issued another Resolution cancelling the Government Resolution dated 9th April 2003, amending the original Government Resolution dated 25th November 1988. The Management, interpreting the subsequent Resolution as taking away the entitlement of the petitioner for being considered for promotion to the post of Head Master, issued the order dated 1st March 2005 reverting him to the post of Assistant Teacher. The petitioner has challenged that order. He has also challenged the Government Resolutions. 2. According to the petitioner, firstly the Government Resolution dated 25th November 1988 is invalid. In any case, alternatively, according to the petitioner, that Government Resolution will operate prospectively and therefore, effect of that Government Resolution is not to invalidate the promotion of the petitioner to the post of Supervisor. An affidavit has been filed on behalf of the State Government. In that affidavit, in paragraph 4, the Government has accepted that the stand taken by the petitioner that the Government Resolution dated 15th July 2004 is prospective in application. Paragraph 4 of that affidavit is relevant which reads as under :- -4- "4. I say that the petitioner Shri Narayan Vasant Chitari came to be promoted w.e.f. 1/7/2004. The Government Resolution cancelling the Government Corrigendum dated 9/4/2003 came to be issued on 15/7/2004 which is of prospective nature and the petitioner was promoted prior to issuance of the said Government Resolution dated 15/7/2004. Therefore, the Government Resolutions dated 25/11/1988 and 15/7/2004 cannot be made applicable to the case of the petitioner as the petitioner was promoted w.e.f. 1/76/2004. I therefore say that the reversion of the petitioner from the post of Supervisor to the post of Assistant Teacher is improper and incorrect. I say that the petitioner’s promotion to the post of Supervisor is proper and all promotions after the cut-off date i.e. 28/2/2005 will be required to avail by the petitioner. I say that since the Government Resolution dated 15/7/2004 is not applicable to the case of the petitioner, the reversion of the petitioner made by the Management in view of the Government Resolution dated 15/7/2004 is incorrect." -5- . The said affidavit in reply is filed on behalf of the State Government. The State Government thus accepts the case of the petitioner. So far as the Management is concerned, the reply filed on behalf of the Management does not oppose the petition. In this situation, we have no option but to accept the stand taken by the State Government in relation to its own Resolutions. If that is so, the Government Resolution dated 15th July 2004 will not introduce any infirmity in the order of promotion of the petitioner to the post of Supervisor and that is the only reason given in the order dated 1st March 2005 reverting the petitioner to the post of Assistant Teacher and therefore, in our opinion, the order issued by the Management, reverting the petitioner to the post of Assistant Teacher, will have to be set aside. We have been informed that during the pendency of the petition, the petitioner has retired from service on attaining the age of superannuation. Therefore, now the petitioner would only be entitled to monetary benefit i.e. the difference in the pay or allowances payable to the posts of Assistant Teacher and Supervisor. In the result therefore, petition succeeds, the order dated 1st March 2005 reverting the petitioner to the post of Assistant Teacher is set aside. As the petitioner has retired, there is no question of reinstating the petitioner in the post of Supervisor. However, the Management shall pay to the petitioner all -6- monetary benefits to which the petitioner may become entitled under the law as a consequence of this order on the assumption that the petitioner continued to hold the post of Supervisor till the date of his superannuation. Rule is made absolute accordingly with no order as to costs. . Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of the Court. . Certified copy expedited. ( D.K. DESHMUKH J.) ( N.D. DESHPANDE J.)