1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6916 OF 2007 Nagesh s/o. Revanappa Garte Age 35 years, Occ. Peon, R/o. Garte Niwas, Shivnagar, Tal. & Dist. Latur. .. Petitioner/s Versus 1] The State of Maharashtra Through Secretary, Education Department, Mantralaya – Mumbai – 32. 2] The Administrator, Mahatma Basweshwar Education Society, Latur. 3] The Head Mistress Shri Deshikendra Vidyalaya, Signal Camp, Latur. 4] The Education Officer (Secondary) Zilla Parishad, Latur. 2 5] Dhananjay s/o. Sudhakar Lade, Age 27 years, Occ. Service, R/o. C/o. Shri Deshikendra Vidyalaya, Signal Camp, Latur. .. Respondent/s. --- Mr. R.K. Ashtekar, Advocate for petitioner. Mr. S.K. Kadam, AGP for the respondent No.1 Mr. S.S. Halkude, Advocate for the respondent NO.3 Mr. H.V. Patil, Advocate for the respondent NO.5 CORAM : B.R. GAVAI & N.D.DESHPANDE,JJ. DATE : - 1st October, 2009. ORAL JUDGMENT [PER B.R. GAVAI,J.] :- 1] The petitioner has filed this petition, challenging the order issued by the respondent No.2 in favour of the respondent No.5, dated 1st August, 2007, as Jr. Clerk in the respondent No.3 School. 2] The petitioner was appointed as Peon in the respondent No.3 School on 11th October, 1999. The services of the petitioner were duly approved by the respondent No.4. 3] It appears that in 2007, the respondent Management had issued an advertisement for the post of Jr. Clerk. The petitioner had made a 3 representation that in view of the M.E.P.S. Rules, he should be appointed on the said post of Jr. Clerk instead of the same being made available in the open market. The said representation was not considered and by the impugned order dated 1st August, 2007, the respondent No.5 came to be appointed as Junior Clerk. Being aggrieved thereby, the present petition. 4] This court, after taking into consideration Note 3 of the Schedule F of the said Rules, and the judgment of the Division Bench of this court in the case of “Ramesh Shivram Khairnar Vs. State of Maharashtra and others” reported in 2003(4) Mh.L.J. 470, and in the matter of “Ashok Shankarrao Shinde Vs. Prabhodhan Shikshan Sanstha, Nagpur reported in (1999) 1 Mh.L.J. 348, has held in W.P. No. 2369/2007, that a peon who possesses the necessary qualification for seeking appointment of Jr. Clerk is entitled to be promoted to the post of Junior Clerk. It has been further held that it is not permissible for respondent management to fill up the said post from open category. 5] It is not in dispute that the petitioner possesses the requisite qualification for being appointed as Jr. Clerk. In that view of the matter, Rule is made absolute in terms of prayer clause (B). However, it is made clear that the petitioner would not be entitled for salary of arrears towards difference between the pay presently payable to him and the pay in the scale of junior clerk. He would be entitled to continuity as junior clerk from 1st August, 2007, and his present salary would be drawn taking into consideration his officiation as junior clerk from 1st August, 2007. 4 6] In order to work out the equities, we had suggested the management (respondent Nos. 2 and 3, ) to consider as to whether the respondent No.5, who is also in service for a considerable length of time, could be accommodated on the post of Peon, which is presently occupied by the petitioner. Shri Halkude, the learned counsel appearing on behalf of the management, upon instructions of his client, graciously submits that the respondent management is willing to accommodate the respondent No.5 on the post of peon. Shri Hanumant Patil, Advocate appearing on behalf of the respondent No.5 on instructions of his client, accepts the said proposal. . It is , therefore, directed that the respondent No.5 shall be absorbed on the post of Peon falling vacant due to the promotion of the petitioner as Junior Clerk. It is further made clear that the respondent No.5 would be entitled to the seniority as Peon w.e.f. 1-8-2007 with continuity of service. Since we have directed that the petitioner shall not be entitled to any arrears of difference of salary between the scale of junior clerk and the scale of Peon, we further direct that there shall be no recovery of any payment from the salary of respondent No.5 and he would be entitled to salary of Peon from the date on which he would actually officiate as such. [N.D. DESHPANDE, J.] [B.R. GAVAI,J.] Grt/- 5