1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4493 OF 2008 (Anand Dnyan Shikshan Sanstha & Ors. vs. Purushottam Parasram Kumbhare & Ors.) 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. NOVEMBER 11, 2008. Heard Shri Jagtap, learned counsel for the petitioners, Shri Parsodkar, learned counsel for respondent No.1, Shri Kothari, learned AGP for respondent No.2 and Ms. Pathak, learned counsel for respondent No.3. Shri Jagtap, learned counsel contends that the School Tribunal has erroneously overlooked the fact that Respondent No.3 was occupying the first available post for reserved category and Respondent No.1, who came to be appointed against reserved category post as Scheduled Tribe candidate, therefore, could not have been continued in service as there was only one post of Peon. He contends that the fact that there was one sanctioned post of Peon is not in dispute either before the School Tribunal or before this Court and hence by the impugned order of School Tribunal, the petitioners - management is required to continue two persons on 2 the same post. It is his further contention that the School Tribunal has given undue importance to the earlier appointments made in exigencies of service by the petitioners prior to 3.7.1995. He points out that both i.e. Respondent No.1 and Respondent No.3 were interviewed after public advertisement and have been appointed with effect from 3.7.1995 and hence their earlier service from 25.6.1995 and 26.6.1995 is hardly relevant. He states that thus, the School Tribunal has confused the issues and thereby has passed an order, which is totally unsustainable. Shri Parsodkar, learned counsel, on the other hand, states that the management had advertised total eight posts of Peons and after conducting interviews, appointment orders were issued to Respondent No. 1 as also to Respondent No.3. He points out that Respondent No. 1 was initially given appointment order on 25.6.1995 i.e. prior to advertisement. He further states that Respondent No. 3 also produced similar appointment order dated 26.6.1995 and it was also prior to advertisement but the same was found to be not legal and valid by the School Tribunal. He contends that in such circumstances, a finding of School Tribunal that Respondent No.1 was working 3 from 1.7.1995 is supported by record and as it has not been shown to be perverse and even if appointment of Respondent No. 3 is looked into as one from 3.7.1995, Respondent No.1 becomes senior to him and, therefore, has been rightly continued in service by the School Tribunal by granting him reinstatement. Ms. Pathak, learned counsel, on the other hand states that the advertisement in this respect was published on 27.6.1995 and admittedly Respondent No. 1 as also Respondent No. 3 were interviewed in response to that advertisement on 2.7.1995 and thereafter appointments have been made. She contends that what transpired prior to 3.7.1995 is not at all relevant and the School Tribunal has erroneously observed that Respondent No.1 was working from 1.7.1995. She contends that as he was interviewed on 2.7.1995, there could not have been appointment in his favour from 1.7.1995. The facts on hand show that as per advertisement published by the petitioners – management on 27.6.1995, total six posts of Peon were advertised. Two were stated to be for Scheduled Caste, two were stated to be for Scheduled Tribe and two were stated to be reserved for Nomadic Tribe. As the management submitted 4 proposal for approval of services of both Respondent No.1 and Respondent No.3, the Education Department granted approval to services of Respondent No.3 only hence Respondent No.1 approached this Court in Writ Petition No. 4738 of 2005 and this Court directed the Education department to hear him and to take appropriate decision. The Education department then heard Respondent No.1, considered the facts and found that there was only one sanctioned post of Peon on the establishment of the petitioners and therefore found that Respondent No.1 was working on post which was not sanctioned and fastened responsibility of his service and salary upon the management. In view of this order, the petitioners – management terminated the services of Respondent No.1 and Respondent No. 1 has approached the School Tribunal in Appeal No. STC-8 of 2006 in which the impugned judgment dated 13.8.2008 has been delivered. The perusal of impugned judgment reveals that the fact of publication of advertisement dated 27.6.1995 for six posts of Peon is not in dispute and the fact that appointment order was issued to Respondent No. 1 on 25.6.1995 is also not 5 in dispute. The School Tribunal has found that though the management and Respondent No.3 came up with a case that appointment order dated 26.6.1995 was issued in favour of Respondent No.3, the order does not appear to be genuine. The School Tribunal has recorded its reasons for this purpose at pages 126 and 128 of the records. It found that the appointment order issued to Respondent No.1 was typed one while the appointment order allegedly issued to Respondent No. 3 was in handwriting. It left the place of application for employment submitted by Respondent No. 3 blank and also the date on which he was supposed to get himself medically examined was also left blank. These facts noted by the School Tribunal and relied upon by it to hold that appointment order dated 26.6.1995 issued to Respondent No. 3 is not genuine, are not in dispute before me. It is in this background that it has examined the case further and it has found that in response to appointment order dated 25.6.1995, Respondent No.1 had joined duties on 1.7.1995. This fact again is not in dispute before me in present writ petition. Thus, the petitioners – management is trying to take advantage of its own wrong and is 6 trying to further create a situation in which Respondent No. 1 and Respondent No. 3 are required to quarrel with each other. In present circumstances, I find that the petitioners - management cannot be permitted to take advantage of its own wrong. I do not find any perversity or jurisdictional error in the application of mind by the School Tribunal. No case is made out warranting any interference in writ jurisdiction. Present Writ Petition is dismissed. However, in the circumstances of the case, there shall be no order as to costs. JUDGE *GS.