1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 7369 OF 2007 Jaiprakash s/o Narayan Chandrawanshi .. PETITIONER VERSUS The State of Maharashtra & others .. RESPONDENTS Mr. M.C. Syed, Advocate for the petitioner. Mr. R.P. Phatke, AGP for respondent nos. 1 to 4. ===== CORAM : NARESH H. PATIL & K. K. TATED, JJ. DATE : 4 th AUGUST, 2010. PER COURT : 1 Heard Mr. M.C. Syed, learned counsel for the petitioner and Mr. R.P. Phatke, learned AGP for respondent nos. 1 to 4. None present for rest of the respondents. 2 According to the petitioner, he was appointed in the year 1997 2 as an assistant teacher. He served with the institution for three years. The petitioner contends that he was terminated by the management against which an appeal was filed. The appeal came to be dismissed. Against the order passed by the Presiding Officer, School Tribunal, Latur in Appeal no. 84/2006, the petitioner preferred Writ Petition bearing no. 3622/2007. By order dt. 27-6-2007, learned Single Judge of this court dismissed the writ petition granting liberty in favour of the petitioner to seek appropriate remedy / recourse of law in relation to his claim regarding appointment as physical instructor / teacher. Petitioner filed Letters Patent Appeal against said order. The Division Bench of this court (Coram : Justice Naresh H. Patil and Justice N.D. Deshpande ) by order dt. 24-2-2009 dismissed the appeal. Learned counsel for the petitioner has brought to our notice an order passed by the Division Bench of this court (Coram : Justice B.H. Marlappale and Justice D.G. Karnik) in Writ Petition no. 3832/2001 filed by the management Shivaji Shikshan Sanstha. Learned counsel for the petitioner submits that the petitioner is not in service as assistant teacher since 2001 but his right to claim the post of physical instructor 3 is still subsisting and under the liberty granted by the court earlier, the petitioner has filed the present petition. 3 Respondent / management filed affidavit in reply. In paragraph no. 4 of the said affidavit in reply, the management states :- 4 With reference to para nos. 1, 2 and 14 of the Writ petition, I say that the contention of the petitioner, that although the petitioner was appointed on 1-7-1996, appointment order was issued to him on 5-8-1997, is false and is without any basis. The petitioner is not entitled to be appointed as Assistant Teacher. So far as the post of Physical Education Teacher in Respondent no. 6 – school is concern, as per the Circular issued by Respondent no. 1 on 23-9-2003, only one post of Physical Education Teacher can be kept in a School and that is already filed in. In reply to para no. 14, I say that, Mr. K.V. Kale appointed in Respondent no. 6 – school, is earlier in time as compared with the petitioner. The copy of appointment Order of the petitioner dtd. 5-8-1997 and copy of appointment Order of Shri S.V. Kale dtd. 1-7-1996, showing Shri Kale is appointed earlier, are annexed herewith and marked as EXHIBIT ‘R-1’ collectively. . Respondent State has filed affidavit in reply through Assistant Project Officer on behalf of respondent no. 4. 4 4 Contention of the learned counsel is that as the petitioner is qualified to become physical instructor and the post being available, the petitioner ought to have been appointed as physical instructor. The stand of the respondent is that the petitioner was appointed initially for a limited period. He was untrained and thereafter he was terminated. One post was available for physical instructor and accordingly, one Mr. Kale was appointed. Learned counsel for the petitioner submits that petitioner is senior to Mr. Kale and therefore he should be appointed in place of Mr. Kale. 5 The question is right of petitioner to claim a particular post. Learned counsel for the petitioner submits that Mr. Kale is appointed as assistant teacher and not as physical teacher. Admittedly, petitioner was not appointed as physical instructor but as assistant teacher. The petitioner was not qualified to hold the post as assistant teacher. Petitioner was terminated and challenge to his termination was negatived by the courts through out. In the light of these facts and the fact that the petitioner is not in service after 2001, 5 no interference at this stage is called for in exercise of extra ordinary writ jurisdiction under Article 226 of the Constitution of India. Petition is devoid of merit hence rejected. 6 In view of dismissal of the petition, pending civil application, if any, does not survive and stands disposed of. ( K. K. TATED, J. ) ( NARESH H. PATIL, J. ) dyb/office/wp7369.07.odt