Wp 3682.09 1 IN THE HICH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3682/2009 Sudhakar V.Wayeda Petitioner Vs. The State of Maharashtra & Ors. Respondents Mr.N.V.Bandiwadekar for petitioner Mr.A.B.Vagyani,AGP for res.1 & 2 Mr.N.R.Bubna for Res.8-A CORAM- A.M.KHANWILKAR AND MRS.MRIDULA BHATKAR,JJ. DATE 26th April,2011 P.C. . Heard counsel for the parties. 2 Admittedly, the initial appointment of the petitioner was against D.Ed. post which was available at the relevant time and for that reason he was placed under category ‘E’. The petitioner accepted that position without any demurrer. Besides, there are other about ten teachers appointed on D.Ed. post prior to the initial appointment of the petitioner even though they possessed similar qualification as that of the petitioner. Mr.Bandiwadekar, however, has invited our attention to the decision in the Wp 3682.09 2 case of Lakhwinder K.Gurai Vs. Garison Children Education Society, reported in 2006 (5) B.C.R.,612 and would contend that the fact that the petitioner when initially appointed, was paid pay scale of trained undergraduate teacher, that would make no difference to reckon his seniority position. It is submitted that the petitioner’s seniority will have to be decided on the basis of his qualification on the date of his initial appointment and depending on the said qualification he ought to be placed in category ‘C’ and given commensurate pay scale. Indeed, the petitioner in present proceedings is not insisting for B.Ed.pay scale and would be content only if he is given seniority placement in category ‘C’ from the date of his initial appointment. 3 The argument though seems to be attractive at the first blush, needs deeper investigation. This is so, because the learned AGP has invited our attention to the fact that besides the petitioner there are other ten teachers, senior to the petitioner who were appointed against D.Ed. post and therefore, were placed in category E as in the case of Wp 3682.09 3 the petitioner inspite of their qualification at the time of their initial appointment. At the same time, there are other substantially large number of teachers who were appointed directly on B.Ed. post by following regular selection process, subsequent to the appointment of the petitioner; and if the contention of the petitioner were to be accepted, it may result in a situation where seniority position of those teachers appointed against B.Ed. post would be affected. In that, the petitioner will have to be given placement before the said teachers in category ‘C’ even though those teachers were appointed on B.Ed. post in earlier point of time, unlike the petitioner who was appointed against the vacancy of D.Ed. Post. It is indisputable that candidates from category ‘C’ alone can be considered for promotion to the post of Assistant Head Master or Head Master. The candidates in category ‘E’ are not eligible as ordinarily they would not possess requisite qualification. This would result in anomalous situation and would also invite financial implication for the Government. Wp 3682.09 4 4 In the context of this submission, we called upon the learned AGP to point out as to how many teachers were appointed directly in B.Ed. post after the appointment of the petitioner against the vacancy in D.Ed. post. In response, the learned AGP submits that there are about over 35 teachers. If it is so, the argument of the petitioner can be looked into only if those persons who are likely to be affected by the outcome of this petition are before the Court. Realising this position, counsel for the petitioner prays for time to amend the petition so as to bring all the teachers appointed against B.Ed.post after the appointment of the petitioner on record as party respondents in this petition. Amendment be carried out on or before 17/6/2011, failing which the petition shall stand dismissed for non-prosecution, without further reference to the Court. 5 After amendment is carried out notice be issued to the newly added respondents, which will be returnable on 1/7/2011. Wp 3682.09 5 6 Mr.Bubna appearing for respondent no.8-A submits that he was instructed to appear for fit persons appointed as the Board of Administrator. However, the order of Administrator has been vacated. As a result, the concerned trustees will have to pursue the proceedings for and on behalf of the Trust. (MRS.MRIDULA BHATKAR,J.) (A.M.KHANWILKAR ,J.)