1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.142 OF 2010 IN WRIT PETITION NO.364 OF 2009 1. Incharge President, Shri Gurudeshmukh Ashram, Bhima Shankar Nagar, Gopal Chawdi, New Nanded, Ta. & Dist. Nanded. 2. Shobha Vithalrao Awalwar, Age: 45 years,Occ: Headmistress, R/o. Shri Jagatguru Pancchaccharya, High School, Bhima Shankar Nagar, Gopal Chawdi, New Nanded, Ta. & Dist. Nanded. ...APPELLANTS VERSUS 1. Jaiwant Tukaram Pandagale, Age: 47 years, Occ: Ass.Teacher, R/o. India Gandhi Hou. Society, Plot No.10-A, CIDCO, New Nanded, Ta. & Dist. Nanded. 2. The Education Officer (Secondary), Zilla Parishad, Nanded. Ta. and Dist. Nanded. ...RESPONDENTS ... Shri. V.D. Gunale, Advocate for appellants. Shri. B.L. Sagar Killarikar, Advocate holding for Shri. R.K. Ashtekar, Advocate for respondent No.1. Shri. S.D. Kaldate, A.G.P. for respondent No.2. .... 2 CORAM: NARESH H. PATIL & K.K. TATED, JJ. DATE : 2ND SEPTEMBER, 2010. PER COURT : 1. Heard learned Counsel for the parties. 2. The appellant Shobha is aggrieved by an order dated 4th November, 2009 passed by the learned Single Judge in Writ Petition No. 364 of 2009. In substance, the submission of Shri. V.D. Gunale, learned Counsel for the appellants is that the appellant Shobha was appointed having M.A.B.Ed. qualification, in the pay scale of Rs.1400-2600 and respondent Jaiwant was appointed on the same day having B.A. B.Ed. qualification in different pay scale of Rs.1200-2040. It was further submitted that the appellant Shobha was appointed in Secondary Section of the school and the respondent Jaiwant was appointed in Primary Section of the school. Therefore, in the light of provisions of Rule 12, Note-3 of Schedule-F of the 3 Maharashtra Employees of Private Schools (Condition of Services) Rules, 1981, the appellant Shobha becomes senior to the respondent Jaiwant and accordingly, seniority list was prepared, which was not objected to by respondent Jaiwant and at highly belated staged, respondent Jaiwant, after withdrawing suit filed by him, approached the School Tribunal. The respondent Jaiwant did not file application for condonation of delay and without considering all these facts and circumstances, the Tribunal allowed the appeal and cancelled the promotion order passed in favour of appellant Shobha with consequential reliefs. The learned Counsel further submits that challenge to the seniority list at belated stage ought not to have been considered by the Tribunal. It was submitted that respondent Jaiwant kept quiet for number of years, which amounts to acceptance of the seniority list of appellant-Shobha and therefore, the learned Single Judge ought to have upheld the contentions raised by the appellant- petitioner Shobha. The learned Counsel for the 4 appellants placed reliance on the following citations. (1) Secretary, Shiorai Education Society versus Presiding Officer, School Tribunal & others reported in 1999 (Supp.) Bom.C.R. 109. (2) Madhao s/o Somaji Sarode versus Jyotiba Dhyanupasak Shikshan Sanstha, Dudhala and others reported in [2004(4) Mah.L.R. 227]. (3) Chinchani Tarapur Education Society's English Medium School, M.I.D.C. Boisar and others vs. Surekha Shirish Dogmane and others reported in 2008(1) Mh.L.J. 513. 3. Shri. B.L. Sagar Killarikar, learned Counsel for respondent Jaiwant submitted that issue of consideration and evaluation of the seniority list inter-se teachers is already considered and summed up in Saramma Varghese v/s Secretary/President 5 S.I.C.E.S. Society and others reported in 1990(1) B.C.R. 185. The said judgment was considered by the learned Single Judge. In the facts of the present case, therefore, even if the appellant- Shobha is higher in qualification but she falls in same category. The learned Counsel urged that in the facts of the present case, 5th to 7th Standard Classes are part of the secondary school classes and therefore, it could not be permissible for the appellant Shobha to say that respondent Jaiwant was appointed to teach primary section of the school and appellant Shobha was appointed in different cadre of the secondary school. 4. We have considered the submissions advanced by the learned Counsel, and citations supra, and perused the judgment and order of the Tribunal and learned Single Judge. We find that the learned Single Judge has adopted sound view in the light of the facts of the case and the judgments cited before this Court. Prima facie, we are not convinced with the submissions advanced by learned 6 Counsel for the appellant-Shobha that the judgment of Chinchani Tarapur Education Society's English Medium School, M.I.D.C. Boisar and others vs. Surekha Shirish Dogmane and others reported in 2008(1) Mh.L.J. 513 would be applicable to the facts of the present case. No doubt, appellant Shobha was working as Headmistress since 2001 and respondent Jaiwant approached the Tribunal in the year 2003 but on that ground, the consequential reliefs granted in favour of respondent Jaiwant could not be denied. 5. In exercise of our jurisdiction under Letters Patent, we do not notice any serious infirmity or perversity in the view adopted by the learned Single Judge. The Letters Patent Appeal is dismissed. [K.K. TATED, J.] [NARESH H. PATIL, J.] SUT/SEP10/lpa142.10