1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.157 OF 2009 IN WRIT PETITION NO.631 OF 2009 Dinkar s/o Bhivaji Tribhuvan, Age : 50 years, Occu. Service, R/o C/o Rural High School & Junior College, Puntamba, Taluka Rahata, District Ahmednagar ..APPELLANT VERSUS 1. Ashok s/o Deoram Ohol, Age : 45 years, Occu.Service, R/o C/o Rural High School & Junior College, Puntamba, Taluka Rahata, District Ahmednagar 2. The Secretary, Governing Body of the Educational Institution of the Bombay Annual Conference Of the Methodist Church in South Asia, 1st Floor, 21 YMCA Road, Mumbai Central, Mumbai-400 008 3. The Manager, Rural High School & Junior College, Puntamba, Taluka Rahata, District Ahmednagar 4. The Education Officer (Secondary), Zilla Parishad, Ahmednagar ..RESPONDENTS 2 Mr S.S. Jadhavar, Advocate for the appellant; Mr V.D. Salunke, Advocate holding for Mr P.B. Shirsath for respondent no.1; Mr K.S. Bhore,Advocate for respondents no.3 & 4. CORAM : P.V. HARDAS AND A.V. POTDAR, JJ (Date of reserving the judgment : 16.9.2009 Date of pronouncing the judgment : 16.10.2009) JUDGMENT [ PER P.V.HARDAS , J ] Admit. With the consent of learned Counsel for the parties this Letters Patent Appeal is heard finally at this stage. This Letters Patent Appeal has been filed by the appellant against the order of learned Single Judge of this Court dated 29.1.2008 granting stay to the order of the School Tribunal and also order of the learned Single Judge dated 26.11.2008 confirming the stay granted by the learned Single Judge on 29.1.2008. 2. Such of the facts in brief as are necessary for the decision of this Letters Patent Appeal may briefly be stated thus :- 3 The appellant claims to have been appointed as an Assistant Teacher in the school run by respondent no.2 on 7.6.1985 and claims to have been promoted on the post of Supervisor on 18.11.2002. According to the appellant on 31.1.2006 the Head Master of the school, namely one Shri P.N. Gaikwad retired from service on attaining the age of superannuation and the appellant claims to have been appointed as in-charge Head Master with effect from 1.2.2006. On 28.5.2006 the appellant claimed to have been appointed/promoted on the post of Head Master. The respondent no.1, according to the appellant, came to be appointed as a Shikshan Sevak on 12.7.2002 for a period of three years and acquired the status of an Assistant Teacher on completion of period of Shikshan Sevak on 12.7.2005. The respondent no.1, it appears came to be appointed as the Head Master on 25.5.2006 by one Shri N.L. Karkare. As pointed out by us above, the appellant was already working as in-charge Head Master of the school with effect from 1.2.2006. The respondent no.1, it appears filed an appeal before the School Tribunal, which was registered as Appeal No.64 of 2006 challenging his termination. The appellant before us was heard by the School Tribunal and the School Tribunal after considering the merits of the matter, by 4 judgment dated 14.1.2008 dismissed the appeal. The respondent no.1 being aggrieved by the dismissal of the appeal by the School Tribunal filed Writ Petition No.631 of 2008 in this Court. By order dated 29.1.2008, the learned Single Judge of this Court granted interim relief in terms of prayer clause (C) to the writ petition. As pointed out by us above, the interim order dated 29.1.2008 came to be confirmed by the learned Single Judge on 26.11.2008. 3. Prayer clause (C) to the petition reads thus :- "Pending hearing and final disposal of this writ petition grant stay to the execution and implementation of the order dtd.14.1.2008 passed by Presiding Officer, School Tribunal, Pune Region, Solapur in Appeal No.64 of 2006." 4. Shri S.S. Jadhvar, learned Counsel for the appellant has urged before us that the learned Single Judge was in error in granting stay to the order/judgment of the School Tribunal by which the appeal filed by respondent no.1 came to be dismissed. It is, therefore, stated before us that the learned Single Judge could have granted stay to an order which was capable of being executed. As a result of the stay granted by the learned Single Judge of this Court, the appellant whose appeal has been dismissed continues to discharge his duties unhindered. Shri 5 Salunke, learned Counsel for the respondent has invited our attention to the findings recorded by the School Tribunal as well as to the orders passed by the learned Single Judge of this Court, which is subject-matter of challenge in this appeal. Shri Salunke, learned Counsel for the respondent has relied upon the judgment of Division Bench of this Court in Hussain Khan vs. Shah Babu Education Society & ors., 2006 (4) Mh.L.J. 553, to urge before us that the School Tribunal was in error in not taking into consideration that the respondent no.1 fell in the zone of consideration and was thus entitled to have been appointed as the Head Master. This judgment deals with the scheme of appointment/promotion to the post of Head of the institution. The Division Bench, therefore, held that section 3 has to be read in entirety and as a complete scheme and not by intersecting these two sub-sections i.e. (1) and (2) therein. The judgment further states that the rule of seniority would not apply to a school run by minority institution. 5. Reliance is also placed on the judgment of the Supreme Court reported in Deoraj vs. State of Maharashtra & ors., 2004 (3) Mh.L.J. 343, to urge before us that the Court can grant interim relief which may amount to a final relief. The Supreme Court at paragraphs 11 and 12 of the aforesaid judgment has held thus :- 6 "Ordinarily, the Court is inclined to maintain status quo as obtaining on the date of the commencement of the proceedings. However, there are a few cases which call for the Court's leaning not in favour of maintaining the status quo and still lesser in percentage are the cases when an order tantamounting to a mandamus is required to be issued even at an interim stage. There are matters of significance and of moment posing themselves as moment of truth. The availability of a very strong prima facie case of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme 7 hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent." 6. Learned Counsel for the respondent has further placed reliance on the Division Bench judgment of this Court in Hakimsingh s/o Ram Sumer Singh Yadav vs. Shri Vardhaman Sthanakwasi Jain Shravak Sangh & ors., 2001 (1) Bom.C.R. 313 dealing with the appointment of Head Master of a minority institution. Similarly, reliance is also placed on the judgment of Supreme Court in Board of Secondary Education & Teachers Training vs. Jt. Director of Public Instructions, Sagar & ors., (1998) 8 Supreme Court Cases 555, to urge before us that the minority institution has a right of management of such institution to appoint Principal of its own choice. 7. The aforesaid judgments dealing with the right of the minority institution to appoint a Head Master of its own choice and the submissions advanced in that regard on behalf of the appellant pertain to the merits of the matter. In the present case the appeal filed by respondent no.1 had been rejected by the School Tribunal. The order dismissing the appeal by the School Tribunal was incapable of being executed. In such circumstances, no stay could have been granted to an order which as incapable 8 of execution as it would amount to granting a final relief to a party at the stage of admission of the petition. Granting of such interim relief amounting to final relief in the present case was not according to us a rare and an exceptional case warranting the granting of such interim relief. The petitioner's appeal challenging his termination came to be dismissed and by virtue of the interim relief the clock is put back and the petitioner is enjoying the status quo which was existing prior to his termination. In such circumstances, therefore, according to us the granting of the interim relief at the stage of admission was not warranted in the facts of the present case. The aforesaid order of the learned Single Judge dated 29.1.2008 granting the ad interim relief and the subsequent order dated 26.11.2008 confirming the aforesaid relief, no doubt on certain conditions, was unwarranted. 8. Reliance was also placed on the judgment of Supreme Court in Suneeta Aggarwal vs. State of Haryana & ors., AIR 2000 S.C. 1058, to urge before us that the conduct of the appellant disentitled him from challenging the order of the learned Single Judge granting ad interim relief. In our considered opinion, the ratio of the aforesaid judgments cited before us are inapplicable to the facts of the present case. 9 9. The Letters Patent Appeal, therefore, deserves to be allowed and the impugned orders insofar as they relate to granting of ad interim relief and the confirmation of the ad interim relief deserves to be quashed and set aside. 10. In the result, Letters Patent Appeal is allowed and impugned orders are quashed and set aside with no order as to costs. ( A.V. POTDAR ) ( P.V.HARDAS ) JUDGE JUDGE 11. At this stage Shri P.B. Shirsath, learned Counsel for respondent no.1 requests that the interim relief granted by the learned Single Judge be continued for a period of four weeks from today. We accede to the request and the interim relief granted by the learned Single Judge to continue for a period of four weeks from today. ( A.V. POTDAR ) ( P.V.HARDAS ) JUDGE JUDGE amj/lpa157.09 10