1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 368/2010. Archana Subas Vaidya -: VERSUS :- Swargiya Manikrao Anavane Shikshan Sanstha and others. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JULY 26, 2010. Heard Shri H.A. Deshpande, learned Counsel for the petitioner, Shri N.D. Khamborkar, learned counsel for respondent no.1, Shri Patel, learned A.G.P. for respondent no.2 and 3 and Shri A.D. Mohgaonkar with Shri S.A. Deo, learned Counsel for respondent No.4. Shri P.P. Thakre, learned Counsel points out that he has filed Civil Application No. 562/2010 on behalf of two employees namely – Ku. S.G. Gaikwad and Shri B.V. Orke, seeking intervention. Shri Deshpande, learned counsel contends that petitioner is subsequently promoted as Head of the 2 respondent no.1 School on 26.11.2009 and on representation dated 05.12.2009 made by respondent no.4, exparte she has been held junior and respondent no.4 has been asked to take the charge. He contends that the vacancy in the post of Head became available in the year 2007, and at that time present petitioner was the only qualified and senior most candidate. Respondent no.4 secured graduation in 2008 and hence, is even otherwise junior when claim for post of Head is to be looked into. He points out that presently petitioner is working as Head. Shri Mohgaonkar, with Shri Deo, learned counsel appearing for respondent no.4 state that the qualification of graduation being pressed into service is not required for the post of Head. They contend that respondent no.4 is senior to petitioner and on 05.12.2009 the Social Welfare Officer has correctly recognized this position. They further state that the alleged order dated 26.11.2009 was never on record and petitioner never functioned as Head of the School. Respondent no.4 being senior was working as in-charge Head. Contention is, petitioner and respondent no.1 through its Secretary are in collusion and to harass respondent no.4 they have also unnecessarily suspended him. He also makes a grievance that as a part of this tactics, they have not 3 released salary of all the employees in the School and a separate account has been opened for that purpose. Shri Khamborkar, learned counsel for respondent no.1 opposes the contention of Shri Mohgaonkar. He states that salary of every body is being disbursed as and when it is received from the Social Welfare Officer. He states that the grievance made by petitioner is correct. Shri Patel, learned A.G.P. for respondent nos. 2 and 3 states that the office of respondent no.2 has been releasing the salary for all employees and salary bills as received are being honoured after appropriate verification. The contentious issue between the parties is about seniority. Petitioner contends that graduation is the requisite qualification and Clause 48 of the School Code, 1997 for School for Physically Handicapped, is relied upon by him. Shri Mohgaonkar, relies on the provisions of said Code only and he also states that the issue is also settled by the judgment of this Court. Perusal of the impugned order dated 05.12.2009 shows that the same has been passed immediately after receipt of representation of even date from respondent no.4. The petitioner was not given any opportunity of hearing also. The other order produced on record shows that on 4 26.11.2009 the Management issued orders in favour of the present petitioner. The order dated 30.11.2009 passed by respondent no.2 shows that he issued orders in favour of respondent no.4. The order has again not been issued after considering the alleged order dated 26.11.2009 issued by respondent no.1 to petitioner, and therefore, over looking the claim of petitioner. Today Shri Deshpande, learned counsel for petitioner as also Shri Khamborkar, learned counsel for respondent no.1 have made statement that salaries of employees are being disbursed and no body is being victimized. In this situation, I find that interest of justice can be met with by directing respondent no.2 to hear the petitioner, respondent no.4 as also management to find out who is senior and qualified and to take appropriate decision about it and to decide whether the order of respondent no.1 Management dated 26.11.2009 is legal and valid. The contention of respondent no.4 that there is no such order is kept open and respondent no.2 can also enquire into it. Similarly the contention of petitioner that respondent no.2 has no such jurisdiction and his order of promotion dated 26.11.2009 needs to be assailed before competent Forum is 5 also kept open and it can also be looked into by respondent no.2. If respondent no.2 finds that there are other employees more senior/qualified than petitioner and respondent no.4, the respondent no.2 can also consider their entitlement in accordance with law. The issue of seniority and filling in the post of Head shall be decided as early as possible and in any case by 30.09.2010. Parties to appear before respondent no.2 on 05.08.2010 and to abide by his further instructions in the matter. With these directions the impugned orders dated 30.11.2009 and 05.12.2009 are quashed and set aside. The Social Welfare Officer shall also verify whether there is any substance in the complaint of Shri Mohgaonkar, learned counsel that employees have been discriminated and salaries have not been released. If that be the position, he shall take appropriate action against the person found guilty in the matter. Writ Petition is partly allowed of with above directions. Civil Application No.562/2010 is rendered infructuous and it is disposed of as such. Rule is made absolute accordingly. No costs. JUDGE Rgd.