1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.281 OF 2009 Shivaji s/o Sakharam Rathod, Age: 39 years, Occ: Service as Peon in Dnyanvikas Vidlayala, Patoda (Bk), Tal.Jalkot, Dist.Latur.` .. Peitioner Versus 1. The State of Maharashtra, through the Secretary, School Education Department, Mantralaya, Mumbai. 2. The Education Officer (Secondary), Zilla Parishad,Latur. 3. Samarth Education Society, Dongar-shelki, Dist. Latur, Through its Secretary. 4. Samarth Vidyalaya, Ekurka (Road), Tq. Udgir, Dist. Latur, through its Head Master. 5. Vijaykumar s/o Kishan Gaikwad, Age: 36 years, Service as Peon in Samarth Vidyalaya, Ekurka Road, Tal. Udgir, Dist. Latur. 6. Dnyanvikas Vidyalaya, Patoda (Bk) Tal. Jalkot, Dist. Latur, Through its Head Master. .. Respondents 2 ... Mr. S.S. Deo, Advocate for petitioner. Mr. K.G. Patil, A.G.P. for respondent Nos.1 & 2. Mr. V.G. Sakolkar, Advocate for respondent No.4. Mr. P.G. Rodge, Advocate for respondent No.5. ... CORAM : A.M. KHANWILKAR & S.S. SHINDE, JJ. DATE : 20TH JANUARY, 2010 PER COURT : Rule. Rule made returnable forthwith. With the consent of learned Counsel for the parties, the petition is taken up for final hearing at admission stage. 2. Heard Counsel for the parties. By this Writ Petition under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the order of repatriation in favour of respondent No. 5 passed by respondent No.2 as contained in letter dated 21-04-2007 being contrary to the provisions of Rule 26 of the M.E.P.S. Rules, 1981. Admitted facts are that the petitioner was senior to 3 respondent No. 5 in service. Both the petitioner as well as respondent No. 5 were declared surplus and absorbed in another school. Subsequent thereto, vacancy arose in the original school (respondent No.4), in which the petitioner and respondent No. 5 were working, prior to repatriation. The Head Master repatriated respondent No. 5 against the said vacant post. That order was passed on 21-04-2007. The petitioner made representation questioning the correctness of the said decision of the Head Master. Since the petitioner was unsuccessful in persuading the respondents, has opted to file present Writ Petition. 3. Significantly, in the reply filed by the Education Officer before this Court in response to the Writ Petition, it is plainly admitted that the Head Master ought to have considered the norms specified by the Rules of 1981. He was required to keep in mind that as to whose right comes first from the surplus Staff and 4 thereafter, to adopt the procedure permitted by the Rules. As aforesaid, going by the language of the Rules of 1981, the order of repatriation in favour of the concerned employee will have to be passed keeping in mind the seniority. In other words, the junior employee cannot be repatriate ignoring the claim of the senior employee who stands in a better position. 4. Counsel for respondent No.5, however, contend that the challenge of the petitioner cannot be looked into, in as much as respondent No. 5 has already rejoined respondent No. 4 School and has been working there in that capacity for almost two years when the petitioner for the first time made representation to the concerned Authorities. Such representation cannot be entertained in view of the Rule 26(4) of the Rules of 1981. 5. In our opinion, all questions on merits as well as the maintainability of the 5 representation made by the petitioner will have to be examined by respondent No. 2 Education Officer in accordance with law. That shall be done within FOUR WEEKS from today. The petitioner, respondent No. 5 as well as respondent No. 5 take notice of hearing before the Education Officer which is now fixed on 01-02-2010. The private parties shall appear in the office of the Education Officer at 11-00 A.M. on that day, when the Education after giving fair opportunity, proceed with the hearing of the representation made by the petitioner and finally decide the same within specified time. The order to be passed shall be communicated to the respective parties within ONE WEEK from the passing of the order. The petition is disposed of accordingly. Rule made absolute in above terms. ( S.S. SHINDE, J. ) ( A.M. KHANWILKAR, J.) sut/JAN10/wp281.09