Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 7834 of 2007 Devendra Prabhakar Parkhe ...Petitioner V/s. State of Maharashtra & ors. ...Respondents Mr.J.S.Kini i/by. Suresh Dubey for the Petitioner Mr.S.K.Chinchalikar, AGP for Respondent No.1 CORAM CORAM CORAM : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. DATED DATED DATED : 16th January, 2008 : 16th January, 2008 : 16th January, 2008 P.C. Heard Mr.Kini, the Learned Counsel for the Petitioner who is impleaded as Respondent No.3 before the School Tribunal in an Appeal filed under Section 9 of the MEPS Act, 1977. In the said Appeal the promotion to the post of junior clerk has been challenged by the present Respondent No.2. As the Appeal was beyond time as per the office note, he filed an application for condonation of delay and the same was registered as Misc. Civil Application No. 13/2004. By the impugned order dated 22-8-2007 the Learned Presiding Officer of the School Tribunal, Pune Region has held that the Appeal filed by the Appellant was in time and hence the application was disposed off. 2 2. Mr.Keni at the threshold pointed out that the challenge raised by the present Respondent No.2 before the School Tribunal is against two different promotion orders i.e. date 1-8-1996 and 29-4-2002. The prayer in appeal reads as under:- "to quash and set aside the promotion given to respondent no.2 to the post of senior clerk with effect from 1-8-96 and alternatively from 29-4-2002." While highlighting, the prayer for promotion was made in the alternative form. Mr. Kini submitted that the appellant was not in the employment as on 1-8-1996 and infact he joined as laboratory attendant only on 1-2-1997. This submission appears to be correct as the appellant himself has admitted that he joined in the post of laboratory attendant on 1-2-1997. Mr. Kini is, therefore, right in his submission that the promotion if any effected from 1-8-96 could not be challenged by the opponent. Coming to the alternative prayer, the challenge to the promotion dated 29-4-2002, it is pertinent to note that the same was approved by the Education Officer vide his letter dated 3-9-2002 and w.e.f. 29-4-2002, the same order was withdrawn by the Education Officer vide his letter dated 29-4-2002. However, the Petitioner filed a Civil Suit (RCS No. 3 1406/2003) and obtained an order of injunction on 14-10-2003. On account of this order passed by the Civil Court, he continued in the post of laboratory attendant. 3. The Civil Suit filed by the Petitioner could not be treated as the subject matter related to the promotion of the Petitioner/Plaintiff and under Section 9 of the MEPS Act, 1977, he had the remedy of filing an Appeal and thus creates an implied bar for entertaining any Civil Suit as has been held by this Court. Secondly, the Division Bench of this Court in Mohammed Hasan khan Mohammed Hasan khan Mohammed Hasan khan V/s. V/s. V/s. Mohammed Majidulla in Writ Petition No.5802/1995 Mohammed Majidulla in Writ Petition No.5802/1995 Mohammed Majidulla in Writ Petition No.5802/1995 decided on 24-4-2002 has on the analysis of Section 9 of the MEPS Act taken a view that the issue of jurisdiction is not applicable when the appeal relates to the grievance of promotion/supersession. But for the exparte injunction obtained by the Petitioner in the Civil Court, the Education Officer would not have restored the Petitioner’s promotion by the letter dated 24-3-2004 and if regards be had to this date, then certainly the appeal was infact within limitation. 4. Be that as it may, when it comes to filing an Appeal for agitating the grievance of supersession, the limitation of 30 days is not applicable within the meaning of Section 9 of the MEPS Act, 1977 and, 4 therefore, no fault is to be found with the impugned order passed by the School Tribunal. 5. Hence, the Petition fails and the same is hereby rejected summarily. At the sametime it is made clear that in the Appeal filed by the Respondent No.2, the challenge to the promotion to the post of junior clerk w.e.f. 29-4-2002 shall only be considered and the appeal will be decided on its own merits without being influenced by any observations made in the impugned order. Hearing of the Appeal is expedited. [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.]