IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3177 OF 2009 Shri Santosh Sampat Kangane ...Petitioner Vs. The State of Maharashtra & Ors. .. Respondents --- Shri A.M. Joshi for Petitioner Shri J.S. Kini i/b. Suresh Dubey for Respondent Nos.5 Mr. A.P. Vanarase, AGP for Respondent Nos.1 and 2 ---- CORAM: V.M. KANADE J. DATED 17TH APRIL, 2009 P.C. 1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel appearing on behalf of the Respondents. 2. The Petitioner is challenging the judgment and order dated 21st October, 2008 passed by the School Tribunal in Appeal no. 38 of 2007. 3. The Petitioner had filed an appeal seeking promotion of the post of Senior Clerk from 2002. 4. The Tribunal, while rejecting the claim of the Petitioner for promotion from 1996, has observed that the Petitioner was not appointed in the year 1997 and, therefore, the question of promoting him from 1996 does not arise. The Tribunal, therefore, was only concerned with the claim of the Petitioner seeking promotion to the post of Senior Clerk from the year 2002. The Tribunal dismissed the appeal. Being aggrieved by the said order of dismissal, the Petitioner has filed this petition under Articles 226 and 227 of the Constitution of India. 5. Shri Joshi, the learned Counsel appearing on behalf of the Petitioner submitted that the Tribunal while deciding the said appeal has not decided the issue of seniority and has observed that the said issue can be decided only after the Education Officer, decides the issue under section 12 (2) of the said MEPS Act. At the same time, the Tribunal was pleased to reject the claim of payment of his supersession from 29.4.2002. He submitted that the said observation of the Presiding Officer was contrary to the ratio of the judgment of the Division Bench of this Court in the case of Umesh Balkrishna Vispute vs. State of Maharashtra & Others reported in 2001 (2) Bom. C.R. 145. He submitted that in view of the observation of the Division Bench that the dispute relating to seniority can also be considered by the Tribunal as an incidental question while deciding the controversy in regard to the supersession, the Tribunal ought to have considered the same while deciding the appeal. 6. The learned Counsel for the Respondents, on the other hand, submitted that the Tribunal on the basis of the material on record, came to the conclusion that the Petitioner herein was not entitled to be promoted from the said date as claimed by him since the Petitioner was appointed in the year 1996. He invited my attention to the observations made by the Learned Presiding Officer of School Tribunal and submitted that there was no reason, therefore to interfere with the finding recorded by the Tribunal. He also submitted that the ratio of the judgment in the case of Umesh Balkrishna Vispute vs. State of Maharashtra & Others reported in 2001 (2) Bom. C.R. 145 would not apply to the facts of the present case. He invited my attention to the observations made by the Division Bench in paragraph 21 of the said order. 7. After hearing the learned Counsel for the Petitioner and the Respondents, in my view, the Tribunal had erred in making the following observations. “Once the correct and valid seniority list as on the date of resignation of Mr. Shaligram is prepared by the Management, all the points raised in this appeal about seniority can be easily determined.” Similarly in paragraph 36, the Tribunal has observed that: “In the light of forgoing discussion the Appellant's claim of supersession from 29.4.2002 has to be rejected. To determine the general seniority issue, Respondent No.4 will have to consider whether the appointments of Appellant and Respondent No.3 were as per the above discussed procedure or not. Hence, copy of this judgment may be sent to him. The appeal deserves to be dismissed by leaving parties to bear the respective costs. Accordingly I proceed to pass the following order: FINAL ORDER: 1. The appeal is hereby dismissed. 2. Parties shall bear their respective costs. 3. Copy of the judgment be sent to Respondent No.4 in view of observation made in the judgment.” 8. In my view, the said observations are clearly contrary to the ratio of the judgment laid down by the Division Bench of this Court in the case of Umesh Balkrishna Vispute vs. State of Maharashtra & Others reported in 2001 (2) Bom. C.R. 145. The Division Bench in paragraph 19 after having taking into consideration the view of the two unreported judgments of Nagpur Bench as held as under: “The perusal of the aforesaid findings of the Division Bench clearly lay down that Clause (b) of section 9(1) of the Act empowers the Tribunal to entertain the appeal against the order of supersession while making appointment by promotion and while adjudicating the validity of the order of supersession passed by the Management, the validity of the seniority list of objection to it can also be considered as an incidental question.” 9. In my view, therefore, the observation made by the Presiding Officer is clearly contrary to the ratio of the judgment of this Court. It is open for the Tribunal to have considered the submission made by the rival parties on the question of seniority and make an observation on the basis of question of supersession decided by him regarding inter-se of the parities and, thereafter, record about the question of claim of the supersession raised by the Petitioner herein. The Respondents had filed an application for dismissal of appeal on the non-disclosure of the material facts and under the said application, several facts have been mentioned. It is open for the Tribunal, after taking consideration the facts disclosed in the appeal and reply filed by the Respondents to give a finding as to whether the Petitioner herein was junior to the Respondents or not? To the limited extent, therefore, in my view, the order deserves to be set aside and the matter, therefore, will have to be remanded back to the Tribunal for fresh determination. On this aspect also, the Tribunal shall also decide the application for dismissal of appeal which is filed by the Respondents herein. 10. Accordingly, the petition is allowed. The impugned order is set aside. The matter is remanded back to the Tribunal for fresh determination on merits and in accordance with law after applying the ratio of the judgment passed by the Division Bench of this Court. All questions are open. 11. The Tribunal shall decide the appeal and the application as expeditiously as possible and preferably within a period of six months. V.M. KANADE J.