Kambli 1 wp2331.10 IN THE HIGH COURT JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2331 OF 2010 Mahadeo Krishna Kumbhar ...Petitioner vs. Administrative Officer Sangli Miraj & Kupwad & ors. ...Respondents --- Mr.S.S.Pakale i/b K.J.Phakade for Petitioner. Mr.S.R.Nargolkar, AGP for Respondent No. 1 & 3. Mr.A.A.Kumbhakoni i/b Mr.A.M.Kulkarni for Respondent No.5. Mr.G.H.Keluskar for Respondent No.3. --- CORAM: D.K.DESHMUKH & N.D.DESHPANDE,JJ. Dated: 6th October, 2010 P.C.: Rule. Returnable forthwith. Heard finally by Kambli 2 wp2331.10 consent of parties. 1. Following can be taken as admitted facts: That the Petitioner and the Respondent No.5 are working under the same management, which is running the schools, which are private recognised schools. The Respondent No.5 admittedly is senior to the Petitioner. On 20th September, 2000, a letter was addressed by the management to the Respondent No.5 stating therein that on 9-9-2000 the school committee has passed a resolution that the Respondent No.5 is to be upgraded with effect from 1-10-2000 to the scale of Rs. 5500-175-2000 (graduate scale) and therefore the Respondent No.5 was asked to give her consent for her up-gradation. The Respondent No.5 responded to that letter by communication dated 22-10-2000 stating therein that she has filed a petition in this Kambli 3 wp2331.10 court claiming post of Head-Mistress of some school under the same management, and therefore, because that petition is pending she is not expressing any opinion about accepting the graduate scale and that she is reserving her right. It is the case of the Management that on 19-3-2004 again a letter was addressed to the Petitioner stating therein that she has not given her clear consent by her letter dated 22-10-2000 and that her claim for promotion to the post of Head-Mistress and accepting the graduate scale are totally independent and one has nothing to with other and therefore, if she is willing to accept the graduate scale she should give her consent. According to the Respondent No.5, she did not receive that letter. On 16-11-2006, the management again addressed a letter to the Respondent No.5 referring to the earlier correspondence and Kambli 4 wp2331.10 pointing out that if the Petitioner does not give her clear consent accepting the graduate scale, some other person will be given that scale assuming that she is not willing. To that letter the Respondent No.5 gave a reply dated 22-11-2006 again repeating the same thing, that because the petition is pending for post of Head-Mistress, she cannot exercise the option and she is reserving her right. It appears that assuming that the Respondent No.5 is not willing to accept graduate scale, the management upgraded the Petitioner to the graduate scale with effect from 15-6-2007. It appears that after two years the Respondent No.5 made a complaint about graduate scale being given to the Petitioner before the Deputy Director, Education and it also appears that she was heard by the Deputy Director on 1-9-2009 and the decision of the Deputy Director was Kambli 5 wp2331.10 communicated to the Management by order dated 30-1-2010. By that order, the up-gradation of the Petitioner was cancelled and the Respondent No.5 was directed to be given graduate scale from 15-6-1996. It is this order which is under challenge. 2. We have heard the learned Counsel for both sides. 3. On behalf of the Respondent No.5, it was claimed that the Petitioner has given an undertaking while accepting the graduate scale that in case there is an objection raised and if he has to surrender the graduate scale he will do so. According to the Respondent No.5, therefore, the Petitioner is not entitled to maintain this petition. 4. In our opinion, the objection that is raised by the Respondent No.5 has no Kambli 6 wp2331.10 substance. Because undertaking was given by the Petitioner that if somebody else is held entitled to the graduate scale in preference to the Petitioner, then he will surrender his graduate scale. In this petition, he has raised a question whether the Respondent No.5 was at all entitled to graduate scale from 15-6-1996 as has been held by the order dated 30-1-2010. Perusal of the communication dated 20-9-2000 from the management to the Respondent No.5 shows that the Resolution of the School Committee was to give upgraded scale to the Respondent No.5 with effect from 1-10-2000. There is no Resolution passed by the management to give graduate scale to Respondent No.5 from 15-6-1996. In any case none has been produced before us by which the management has resolved to give upgraded scale to the Respondent No.5 with effect from 1996, as has been done by the impugned order. Kambli 7 wp2331.10 What she was offered was graduate scale from 2000. However, the Deputy Director has directed giving the graduate scale to the Respondent No.5 from 15-6-1996, for which there appears to be no foundation at all. 5. Perusal of the correspondence placed on record shows that the Respondent No.5 was offered graduate scale from 1-10-2000 and her willingness was sought. She did not give her willingness and therefore, again a letter was written after this letter on 16-11-2006. Again the Respondent No.5 by her letter dated 22-11-2006 did not give her consent. In our opinion, once the management informed the Respondent No.5 that her claim for the post of Head-Mistress, which she has made in writ petition in this court, has nothing to do with her upgradation to the graduate scale. The Respondent No.5 was absolutely free to Kambli 8 wp2331.10 accept the graduate scale without prejudice to her contentions in the Writ Petition. But for unknown reason she did not do so. She did not raise any objection even to the grant of graduate scale to the Petitioner in 2007. The Petitioner has been given graduate scale from 15-6-2007. Respondent No.5 made her representation two years thereafter on 17-8-2009 and the Deputy Director, who was aware that graduate scale has been given in place of Respondent No.5 to the Petitioner, even without granting an opportunity of being heard to the Petitioner, cancelled the order granting graduate scale to the Petitioner. We do know in what power the Deputy Director has made this order. If the management has upgraded the Petitioner to graduate scale because of the conduct of the Respondent No.5, her remedy was else where. To our knowledge there is no provision Kambli 9 wp2331.10 contained either in the M.E.P.S. Act or in the Secondary School Code, which empowers the Deputy Director of Education to cancel the order passed by the management giving graduate scale to a teacher. 6. Thus, we find that the order impugned in the petition is without authority of law and has been made in breach of principles of natural justice and ignoring the obstinate conduct of the Respondent No.5. 7. In the result, therefore, the petition succeeds and is allowed. The order dated 30-1-2010 passed by the Deputy Director of Education is set aside. Rule made absolute accordingly. No order as to costs. (D.K.DESHMUKH,J.) (N.D.DESHPANDE,J.)