1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Writ Petition No. 3612 of 2009 Harihar S/o Marotrao Kelode R/ Motinagar, Near Shivani Mangal Bhavan, Ashti, Tah. Ashti, Dist. Wardha. ......PETITIONER. ....VERSUS.... 1] State of Maharashtra, through its Secretary, Higher and Technical Education, Mantralaya, Mumbai – 32. 2] The Director of Vocational Training and Education, Maharashtra State, Mumbai. 3] The Deputy Director Vocational Training and Education, Nagpur Region, Nagpur. 4] Hutatma Smarak Samiti, Through its Secretary, Ashti, Tah. Ashti, Dist. Wardha, 5] Anjuman Technical High School, Sadar, Nagpur, through its Principal. 6] Shri S.D.Ganjude, Instructor, R/o Peth Ahmadpur, Post. Ashti, Tah. Ashti, Distt. Wardha. .....RESPONDENTS. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-==- Mr. Anand Parchure, Advocate for the Petitioner Mr. A.S.Fulzele, A.G.P. for Respondent nos.1 to 3 Mr. S.S.Ghate, Advocate for Respondent no.6. C ORAM : D.B.BHOSALE ; and PRASANNA B. VARALE, JJ. DATED : 10th August, 2010. 2 (Per : P. B. Varale, J.) By the present writ petition, the petitioner is challenging the order/communication dated 10/8/2009 issued by respondent no.3 – Deputy Director of Vocational Training and Education, whereby the petitioner was declared surplus and was directed to be absorbed in respondent no.5 – Anjuman Technical High School, Nagpur, as view of Rule 21 of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. The petitioner also challenges the office order dated 03/11/2009 issued by respondent no.3 - Deputy Director of Vocational Training and Education, Nagpur, by which it was informed that though the petitioner was directed to be absorbed in respondent no.5 – Anjuman Technical High School, Nagpur, the said school being an Urdu medium school and the petitioner being Instructor in the Marathi medium school, respondent no.5 school expressed its inability to absorb the petitioner and accordingly, made a request to respondent no.3 to cancell the order of absorption. Respondent no.3, considering the request of respondent no.5 school, cancelled the earlier order of absorption of the petitioner, dated 10/8/2009 and declared the petitioner as surplus. Mr. Anand Parchure, learned counsel for the petitioner has submitted that the petitioner was initially appointed as a Instructor in respondent no.4 – Hutatma Smarak Samiti, on 01/10/1985. Subsequently, the order dated 30/6/1986 was passed thereby giving fresh appointment to the petitioner. The petitioner was discharging his duties on the 3 post of Instructor to the best of his ability. According to the petitioner, his service record is unblemished. The learned counsel further submitted that respondent no.6 – Shri S.D.Ganjude, was appointed as Instructor on 19/7/1984. He worked for some time and left the services. He was re-appointed on 09/7/1990 and thus, there was break in service of respondent no.6. Learned counsel further submitted that a seniority list was prepared by respondent no.4 samiti on 01/5/2009, wherein the petitioner is shown senior to respondent no.6. A copy of the seniority list is placed on record at ‘Annexure-3’. Learned counsel for the petitioner submitted that in the year 2006, the petitioner had raised an objection about the seniority and in view of the controversy of the seniority between the petitioner and respondent no.6, the respondent no.4 samiti considered the controversy. In these proceedings, respondent no.6 on the basis of the documents, accepted that the petitioner is senior to him and also submitted a letter to respondent no.4 samiti that he has no objection if the petitioner is placed as a senior employee in the seniority list. A copy of the decision of the respondent no.4 – samiti is placed on record as ‘Annexure-6’. In view of the above facts, according to learned counsel for the petitioner, the petitioner is senior to respondent no.6 and as such respondent no.6 ought to have been declared surplus by the concerned authority. We have perused the affidavit in reply filed on behalf of respondent no.3 – Deputy Director of Vocational Training and Education, Nagpur. The seniority list prepared on 01/7/2009 is annexed to the reply, wherein respondent no.6 is shown at Sr. No.1, whereas the petitioner is shown at Sr. No.3. 4 Perusal of this seniority list show that the petitioner has signed before his placement, mentioning “signed subject to legal right”, in vernacular ^^dk;ns’khj gDd jk[kqu lgh**- When we asked learned A.G.P. that whether any further opportunity was given to the petitioner to substantiate his objection, learned AGP replied in negative. It is seen from the reply affidavit that though, explanation was called from the District Vocational and Training Officer, Wardha in respect of the objection of the petitioner, but no explanation was forwarded by the said office. It will be useful to refer the contentions in the reply affidavit of respondent no.3, which reads thus : “8. It is pertinent to note here that after submitting modified seniority list by the President, Hutatma Smarak Samiti on 14.12.2009, the objection dated 14.12.2009 of the petitioner was received on 21.12.2009 on the modified/revised seniority list submitted by the respondent no.4. After receipt of objection of the petitioner this answering respondent immediately called explanation/ information from the District Vocational Education & Training Officer, Wardha and the respondent nos.4 & 5 by communication dated 23.12.2009 and thereafter by reminder dated 28.01.2010. 9. However, till this date no explanation is received, therefore, the contention of the petitioner that the answering respondent has miserably failed to appreciate that the petitioner is not at Sr. No.3 in the list of seniority s the respondent no.6 has abandoned his services and was reappointed w.e.f. 07.9.1990. the petitioner claimed that he was appointed on 01.10.1985 and therefore, claims that he cannot be declared surplus.” In our opinion, it was necessary for the authority concerned to consider the objection of the petitioner and to take decision. 5 In the course of arguments, in view of the above mentioned facts, learned counsel for the parties submit that as the issue involved is about the seniority which is not decided appropriately by the concerned authority, they may be permitted to approach respondent no.3 for deciding the seniority inter se between the petitioner and respondent no.6. Learned counsel for the parties further submit that in view of these facts, the necessary directions be issued. There is no need to record the findings. In view of the joint submission, we direct respondent no.3 – Deputy Director of Vocational Training and Education, Nagpur Region, Nagpur to decide the issue of seniority between the petitioner and respondent no.6 by giving an opportunity of hearing to them. He shall take the decision as early as possible and preferably within a period of six weeks from the date of receipt of this order, The writ petition is accordingly disposed of with the above directions. JUDGE JUDGE Diwale