1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR W.P.NO.2209 of 2010 The President, Datta Prasadik Shikshan Prasarak Mandal and anr. ..vs.. The Hon’ble School Tribunal, Amravati and others. W.P.NO.2210 of 2010 The President, Datta Prasadik Shikshan Prasarak Mandal and anr. ..vs.. The Hon’ble School Tribunal, Amravati 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 : JUNE 18, 2010. Heard Mrs.R.D.Raskar, learned counsel for the petitioners, Smt.Wasnik, learned AGP for respondent nos.1 to 3 and Shri Jibhkate, learned counsel for respondent no.2. At the outset, it should be stated that the petitioners in both these matters had filed applications for amendment pointing out a subsequent Government Resolution dated 10/5/2005 and its compliance by them, by giving promotion to one Shri D.R.Bhagat in 1999. The said promotion and compliance is being disputed by respondent no.2/employee. Respondent no.2/employee filed an appeal before the School Tribunal Challenging the action of the 2 petitioners in issuing advertisement for filling in two posts in clerical category by direct recruitment. They contended that as they possess necessary qualification and they are working in lower category, they are entitled to be promoted on those posts as per settled service conditions and they also pointed out that they are working on that post. The School Tribunal has considered this controversy in the light of judgment of this court and has found that the act of Management resorting to direct recruitment denying promotion to qualified employees is supersession. It has, therefore, held the appeal as filed maintainable. It allowed the appeal and directed the petitioner/Management to give appointment to the appellants on the post of Jr.Clerk in open category and reserved category respectively as mentioned in the advertisement. In this back ground, Advocate Mrs.Raskar has contended that the service conditions are regulated by Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act and Rules and law does not contemplate any precedence or preference in the matter of recruitment in class-III category. She further points out that the School Tribunal has not considered the Government Resolution dated 10/5/2005 and, according to her, that Government Resolution modifies the earlier requirement of reserving 25% of vacancies for in-service candidates on lower posts. She points out that now there is reservation equal to 25% of total number of posts in the cadre of Jr.Clerks. She points out that in the category of Jr.Clerk there are four posts with the petitioner/Management and as one Bhagat is 3 already promoted from lower posts as junior clerk in 1999, one post is already occupied in compliance with the modified resolution dated 10/5/2005. In this background, her argument is that the advertisement issued for direct recruitment is in consonance with law and Education Officer has given no objection for the said advertisement. Advocate Jibhkate, on the other hand, states that the order issued to Shri Bhagat in 1999 is not in accordance with the policy of promoting qualified candidate from lower category to higher category. He further points out that the Government Resolution dated 10/5/2005 mentions posts in category ‘B’ and category ‘C’. His contention that all clerical posts, therefore, need to be grouped together and total strength of ‘C’ category post with the petitioners, therefore, is seven. He, therefore, states that two posts need to be reserved for the candidates working in lower category and the School Tribunal has accordingly correctly appreciated the controversy. The petitioners have pointed out that order issued to Shri Bhagat in 1999 could not be placed before the School Tribunal and the School Tribunal, therefore, had no occasion to consider the entitlement of said Bhagat or relevance of that action in the light of controversy before it. Respondent no.2 is denying said promotion and as documents are filed for the first time before this court, I find that the controversy cannot be resolved here in this writ petition. The documents need to be looked into by the School Tribunal. The other contention of the learned counsel for the petitioners is that as yet there is no recruitment and 4 hence the appeal as filed was in any case premature. However, I am not in a position to accept this because if in such a situation recruitment is allowed and the innocent outsiders step into employment, their future will be at the risk. Matters, therefore, need to be sent back to School Tribunal. The Management is free to file Resolution dated 10/5/2005 and the order issued to Shri Bhagat in 1999 with other relevant documents to show its compliance with the policy decision in the matter taken by the State Government in the then Government Resolution dated 10/5/2005. The objections of Shri Jibhkate in this respect are kept open and the School Tribunal shall consider the same in accordance with law. The impugned judgment is set aside only to that extent to facilitate consideration of documents being filed by petitioners. It is informed to this court that during pendency of the appeal before the School Tribunal, the petitioners were restrained from making any appointment in response to the advertisement issued. That interim order will continue further till the School Tribunal decides the appeal finally. The proceedings in the said appeal are expedited and the School Tribunal, Amravati shall attempt to decide the appeal as early as possible and in any case by 31st October, 2010. Rule made absolute accordingly. In the circumstances of the case, there shall be no order as to costs. JUDGE 5 chute