1 wp7764-09.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITIONEAL NO.7764/2009 Keshav S/o Kaniram Rathod .. Petitioner. Vs The State of Maha. & Ors .. Respondents .... Mr.V.D.Sapkal,Adv. for petitioner. Mr.S.R.Choukidar,Adv.for R.3 & 4. Mr.S.K.Kadam,AGP for State. ... WRIT PETITION NO.9056.2010 Bhartiya Sanskruti Sanvardhan Shikshan Prasarak Mandal through Secretary. .. Petitioner Vs Keshav Kaniram Rathod and others. .. Respondents. .... Shri S.R.Choukidar,Adv.for petitioner Shri S.K.Kadam,AGP for State .... 2 wp7764-09.odt CORAM : NARESH H.PATIL AND T.V.NALAWADE, JJ. DATE : 9TH NOVEMBER ,2011 ORAL ORDER : 1] Heard. 2] The petitioner challenges the communication made by Director, Education, Aurangabad, Region, Aurangabad dated 28/8/2007 addressed to Principal, Rajiv Gandhi Mahavidyalaya, Karmad, Dist.Aurangabad. 3] The learned counsel for the petitioner submits that circumstances were created for getting petitioner’s resignation by communication dated 1/2/2001. The petitioner has been working as a Clerk according to the petitioner. The copy of resignation is on record filed alongwith affidavit in reply filed by respondents 1 and 2. The endorsement is also appearing on the resignation letter indicating that the management had accepted the resignation on 30/4/2011. In the year 2003, the petitioner filed an Appeal before the College Tribunal bearing Appeal No.61/03. It is the contention of petitioner that the then President of the society and the Principal, filed a purshis on 28/9/2004 whereby, it was stated before the Tribunal that the petitioner is taken back in service by an order dated 28/9/2004 and the Presiding Officer, College Tribunal passed following order : “Appellant is present in person. The Incharge Principal of Respondent No.2 College is present in person. The incharge Principal has filed on record Purshis indicating that the appellant is taken back in 3 wp7764-09.odt service. Appellant has filed Purshis stating that he is taken back in service. He does not want to proceed further. He admits execution of this pursis. Hence pursis is recorded.” 4] The petitioner states that thereafter, the petitioner resumed his duties. His salary was also disbursed in the year 2007. But lateron, abruptly the respondent Director of Education, communicated stoppage of the salary by impugned communication. Since then, the petitioner though working, is not being paid salary. The learned counsel for the petitioner therefore, submits that the Director had no authority to pass such order without hearing the petition and as the petitioner is still working, the petitioner is entitled to be paid salary. 5] The respondent filed affidavit in reply. Learned A.G.P. Shri S.K.Kadam submits that there is serious dispute between the members of management. The Director had issued the impugned communication. According to learned counsel, as petitioner had resigned, the impugned communication was passed as State Government was not entitled to disburse salary of the employee who had tendered resignation. 6] Shri Choukidar, learned counsel appearing for respondent no.4 submits that a dispute in respect of change report is pending before the Apex Court in proceeding of Special Leave to Appeal No.21504/08. By an order dated 13/1/2009 the Apex Court passed the following order : “Having heard learned counsel for the petitioners and the respondent no.2, who is appearing in person, we are of the view that the matter requires further consideration. Let notice issued on the special leave petition. As far as respondent no.2 is concerned, since he is appearing in person, service of notice on him is 4 wp7764-09.odt waived. Since learned counsel is also appearing on behalf of respondent 4, service of notice on the said respondent be also waived. Let notice be served on the other respondents in the usual course. In the meantime, the parties are directed to maintain status quo as of today, with regard to the management of the Society/Trust. But we also indicate that the present management will only be entitled to continue with the day to day management of the said Society/Trust, and will not be entitled to take any major policy decision with regard to the management or the administration of the Trust, which will also include appointment of staff. The respondents will be entitled to file counter affidavit to the special leave petition within four weeks; rejoinder, if any, be filed within two weeks thereafter. Let the matter be listed after six weeks.” 7] A copy of the said order is placed on record. Shri Choukidar, learned counsel submits that the person who filed purshis as President of the Society in the proceedings of Appeal filed by the petitioner was not competent and authorised to file such a purshis. It is further submitted that the petitioner is not in service since last two years, and new petition has been filed by the management through its Secretary, challenging the authority of respondent no.4 to issue appointment order dated 31/1/01 in favour of respondent no.1 and for quashing and setting aside the said appointment order. 8] After considering the submissions advanced and the material placed before us, we find that a serious dispute is going on between the members of the society-management. The question as to whether the President of the society who filed purshish before College Tribunal in the year 2004 was authorised, competent cannot be gone into in the present proceedings by this Court in its extra ordinary writ jurisdiction. The issue in respect of change 5 wp7764-09.odt report is already pending before the Apex Court. The learned counsel Shri Choukidar appearing for Secretary, submits that the petitioner is not in service since last two years, though the learned counsel for the petitioner Shri Sapkal disputes the said statement and submits that the petitioner is in service. 9] In the facts of the case, we therefore, observe that in exercise of extra ordinary writ jurisdiction, we are not inclined to address the issue raised in the present petition. The Apex Court is seized of the matter in respect of the change report. We find that the disputed questions of facts are raised in these petitions. In case the petitioner has discharged his duties as Clerk and he is still discharging his duties, the petitioner may resort to alternate remedies for claiming his salary. Both the Petitions are dismissed. (T.V.NALAWADE, J.) (NARESH H. PATIL,J.) umg/wp7764-09