1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4754 OF 1997 Arvind S/o Sakharam Rathod Age : Major, Occ. Service At present serving as Lab. Assistant, R/o : Vasantrao Naik High School, Parbhani. .... PETITIONER V E R S U S 1. The State of Maharashtra Through Dy. Director of Education, Aurangabad Region, Aurangabad. 2. The Education Officer (Secondary), Zilla Parishad, Parbhani. 3. The Head Master Vasantrao Naik High School, Parbhani. 4. Marathwada Pradesh Scheduled Tribe Vimukt Jati and Backward Class Seva Sangh, Parbhani through its President Shri. Ramrao Rathod. 5. The District Social Welfare Officer, Parbhani. .... RESPONDENTS Mr. R.L.Chintalwar, Advocate for petitioner. Mr. N.B.Patil, Assistant Govt. Pleader for State. Mr. P.B.Rakhunde, Advocate holding for Mr. V. B.Nayak, Advocate for respondent no. 1. 2 CORAM : B.R.GAVAI AND S.V.GANGAPURWALA, JJ. DATE : 25/06/2010 ORAL JUDGMENT : [ PER - S.V. GANGAPURWALA, J. ] 1. The petitioner claims that he has been appointed as a Peon in an Ashram School. Thereafter he was transferred to Vasantrao Naik Secondary school and after transfer to the said school, he was promoted as Laboratory Assistant. According to the petitioner, the said promotion was accorded sanction by the Education Officer on 1/1/1997. 2. Thereafter, vide Order dated 17/4/1997, the Zilla Parishad, Parbhani cancelled promotion of the present petitioner as Laboratory Assistant on the ground that 50 point roster has not been followed. 3. Since 1992, the intervener/respondent Narayan Shinde is working in the said School i.e. Vasantrao Naik Secondary school and also possesses necessary qualification for the post of Laboratory Assistant. He belongs to Scheduled Tribe whereas the petitioner is from V. J.N.T. category. 4. The intervener/respondent has placed on record the order issued by the President of the said Institution, wherein it has been made clear that as per the roster, a candidate from the Scheduled Tribe category ought to have been appointed as Laboratory Assistant. 5. It is the contention of the learned counsel for the petitioner that 3 the petitioner’s promotion has been cancelled by the Zilla Parishad, Parbhani on the sole ground that he has been transferred from the Ashram School to the Secondary school and the same is not permissible. The learned counsel for the petitioner places reliance on the Circular dated 20/11/1997, wherein it has been clarified that the transfer of an employee from Ashram school to the general school is permissible. As such, the learned counsel for the petitioner contends that the impugned order cancelling his promotion is illegal. 6. As it has been seen that the cancellation of promotion is not only due to the fact that he was transferred from Ashram school to the general school, but it was also on account of the fact that 50 point roster was not followed. In view of the fact that there was total non observance of 50 point roster, the promotion of the petitioner an not be up-held. 7. By an interim order passed by this Court, the petitioner has been continued on the said post. We have held that the order impugned i.e. the order dated 17/4/1997 can not be faulted with and the petition is devoid of any merit. Still the petitioner was working on the said post due to the interim order passed by this Court. We direct that no recovery should be made against the petitioner and the intervener/respondent is entitled to be promoted to the post of Laboratory Assistant. The intervener/respondent shall get the deemed date of promotion as on 4/10/1995. Though we have directed that he would get the deemed date of promotion as on 4/10/1995, but he would not be paid the salary of the said period as that of Laboratory Assistant. 4 8. For working out the equities, we order that the petitioner should be accommodated in the post of present intervener/respondent and he would be given promotion as and when he would be due for the same in accordance with the roster point. The intervener/respondent shall be entitled to join as Laboratory Assistant within the period of 15 days from today. 9. Writ Petition being sans of merit, is dismissed. Rule is discharged. However, there shall be no order as to costs. 10. In view of the disposal of the Writ Petition, Civil Applications stand disposed of. [ S.V.GANGAPURWALA ] [ B.R.GAVAI ] JUDGE JUDGE knp/WP 4754.97