IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 1966 OF 1994 WRIT PETITION NO. 1966 OF 1994 WRIT PETITION NO. 1966 OF 1994 NANMDEO GANPATI AIWALE NANMDEO GANPATI AIWALE NANMDEO GANPATI AIWALE AGE 39 YRS., OCCU.SERVICE AGE 39 YRS., OCCU.SERVICE AGE 39 YRS., OCCU.SERVICE R/O.ATPADI TAL.ATPADI, R/O.ATPADI TAL.ATPADI, R/O.ATPADI TAL.ATPADI, DIST.SANGLI. ... PETITIONER. DIST.SANGLI. ... PETITIONER. DIST.SANGLI. ... PETITIONER. VS. VS. VS. 1. APPASAHEB BABA KELEBAG 1. APPASAHEB BABA KELEBAG 1. APPASAHEB BABA KELEBAG AND ORS. ... RESPONDENTS. AND ORS. ... RESPONDENTS. AND ORS. ... RESPONDENTS. MR. N.V.BANDIWADEKAR I/B. LMR. P.D.DALVI FOR MR. N.V.BANDIWADEKAR I/B. LMR. P.D.DALVI FOR MR. N.V.BANDIWADEKAR I/B. LMR. P.D.DALVI FOR PETITIONER. PETITIONER. PETITIONER. NONE FOR THE RESPONDENTS THOUGH SERVED. NONE FOR THE RESPONDENTS THOUGH SERVED. NONE FOR THE RESPONDENTS THOUGH SERVED. CORAM : A.P. DESHPANDE, J. CORAM : A.P. DESHPANDE, J. CORAM : A.P. DESHPANDE, J. DATE : January 16, 2007. DATE : January 16, 2007. DATE : January 16, 2007. JUDGMENT 1. The Respondent No. 2 Bhiwandi JUDGMENT 1. The Respondent No. 2 Bhiwandi JUDGMENT 1. The Respondent No. 2 Bhiwandi Educational Society administers two recognized aided Educational Society administers two recognized aided Educational Society administers two recognized aided secondary schools by name, Rajaram Bapu Patil High secondary schools by name, Rajaram Bapu Patil High secondary schools by name, Rajaram Bapu Patil High School, Atpadi and New High School, Garniki, School, Atpadi and New High School, Garniki, School, Atpadi and New High School, Garniki, Tal.Atpadi, Dist.Sangli. The present petitioner Tal.Atpadi, Dist.Sangli. The present petitioner Tal.Atpadi, Dist.Sangli. The present petitioner belongs to Schedule Caste Category. The Management of belongs to Schedule Caste Category. The Management of belongs to Schedule Caste Category. The Management of the school took a decision to promote the petitioner to the school took a decision to promote the petitioner to the school took a decision to promote the petitioner to the post of Headmaster having regard to the mandate of the post of Headmaster having regard to the mandate of the post of Headmaster having regard to the mandate of Rule 9 of the Maharashtra Employes of Private Schools Rule 9 of the Maharashtra Employes of Private Schools Rule 9 of the Maharashtra Employes of Private Schools Regulation Act, 1977. Sub-rule 10-A provides for 13% Regulation Act, 1977. Sub-rule 10-A provides for 13% Regulation Act, 1977. Sub-rule 10-A provides for 13% reservation for SC Category. In the roster, the first reservation for SC Category. In the roster, the first reservation for SC Category. In the roster, the first vacancy is reserved for the SC Category whereas the vacancy is reserved for the SC Category whereas the vacancy is reserved for the SC Category whereas the reservation prescribed for NT Category is only 4%. It reservation prescribed for NT Category is only 4%. It reservation prescribed for NT Category is only 4%. It is not in dispute that for the first time, the is not in dispute that for the first time, the is not in dispute that for the first time, the management has granted the promotion to a Reserve management has granted the promotion to a Reserve management has granted the promotion to a Reserve Category candidate, when it took decision to promote Category candidate, when it took decision to promote Category candidate, when it took decision to promote the petitioner, the petitioner so also the Respondent the petitioner, the petitioner so also the Respondent the petitioner, the petitioner so also the Respondent NO.1 were eligible for being promoted to the post of NO.1 were eligible for being promoted to the post of NO.1 were eligible for being promoted to the post of Head Master. The Management promoted the petitioner to Head Master. The Management promoted the petitioner to Head Master. The Management promoted the petitioner to the post of Headmaster, as he belong to SC Category and the post of Headmaster, as he belong to SC Category and the post of Headmaster, as he belong to SC Category and though junior to other teachers, from open category so though junior to other teachers, from open category so though junior to other teachers, from open category so also the Respondent No.10, who was from N.T. Category. also the Respondent No.10, who was from N.T. Category. also the Respondent No.10, who was from N.T. Category. When a person is to be appointed by promotion, on the When a person is to be appointed by promotion, on the When a person is to be appointed by promotion, on the application of a roster, the seniority looses it application of a roster, the seniority looses it application of a roster, the seniority looses it significance. Seniority inter-se the persons belong to significance. Seniority inter-se the persons belong to significance. Seniority inter-se the persons belong to that particular that particular that particular category would alone matters. The Respondent No.1 category would alone matters. The Respondent No.1 category would alone matters. The Respondent No.1 being aggrieved by the grant of promotion to the being aggrieved by the grant of promotion to the being aggrieved by the grant of promotion to the petitioner, filed an appeal before the Presiding petitioner, filed an appeal before the Presiding petitioner, filed an appeal before the Presiding Officer, School Tribunal. The School Tribunal has Officer, School Tribunal. The School Tribunal has Officer, School Tribunal. The School Tribunal has allowed the alppeal by holding that the Respondent allowed the alppeal by holding that the Respondent allowed the alppeal by holding that the Respondent NO.1, herein, being senior to the petition, ought to NO.1, herein, being senior to the petition, ought to NO.1, herein, being senior to the petition, ought to have been preferred for appointment to the post of have been preferred for appointment to the post of have been preferred for appointment to the post of Headmaster. The School Tribunal seems to be labouring Headmaster. The School Tribunal seems to be labouring Headmaster. The School Tribunal seems to be labouring under impression that all persons for whom reservation under impression that all persons for whom reservation under impression that all persons for whom reservation is made under Sub Rule 10-A, would form one group and is made under Sub Rule 10-A, would form one group and is made under Sub Rule 10-A, would form one group and the senior most in that group alone need to be the senior most in that group alone need to be the senior most in that group alone need to be promoted. That foundation for allowing the appeal is promoted. That foundation for allowing the appeal is promoted. That foundation for allowing the appeal is erroneous. Model roster would indicate that the first erroneous. Model roster would indicate that the first erroneous. Model roster would indicate that the first point is earmarked for SC Category candidate and senior point is earmarked for SC Category candidate and senior point is earmarked for SC Category candidate and senior most candidate from SC category need to be appointed in most candidate from SC category need to be appointed in most candidate from SC category need to be appointed in the first vacancy. Though truly speaking it was not the first vacancy. Though truly speaking it was not the first vacancy. Though truly speaking it was not the first vacancy when the petitioner was promoted the first vacancy when the petitioner was promoted the first vacancy when the petitioner was promoted nonetheless it is an admitted position that the nonetheless it is an admitted position that the nonetheless it is an admitted position that the petitioner’s appointment by promotion was the first one petitioner’s appointment by promotion was the first one petitioner’s appointment by promotion was the first one to be granted by the Management to a person from to be granted by the Management to a person from to be granted by the Management to a person from Reserve Category. This being the position it sounds Reserve Category. This being the position it sounds Reserve Category. This being the position it sounds logical that the Management chose to appoint the logical that the Management chose to appoint the logical that the Management chose to appoint the petitioner to the promotional post, first in point of petitioner to the promotional post, first in point of petitioner to the promotional post, first in point of time. Perusal of the Order passed by the Tribunal time. Perusal of the Order passed by the Tribunal time. Perusal of the Order passed by the Tribunal reveals that in the entire judgment, the Tribunal has reveals that in the entire judgment, the Tribunal has reveals that in the entire judgment, the Tribunal has given stress on the issue of inter se seniority of the given stress on the issue of inter se seniority of the given stress on the issue of inter se seniority of the petitioner and Respondent NO.1 and repeatedly it is petitioner and Respondent NO.1 and repeatedly it is petitioner and Respondent NO.1 and repeatedly it is observed that the Respondent NO.1 is much senior to the observed that the Respondent NO.1 is much senior to the observed that the Respondent NO.1 is much senior to the Petitioner. As stated hereinabove, there is no Petitioner. As stated hereinabove, there is no Petitioner. As stated hereinabove, there is no question of comparing seniority of two persons, when question of comparing seniority of two persons, when question of comparing seniority of two persons, when they do not fall in the same category of backward they do not fall in the same category of backward they do not fall in the same category of backward class. If a person from SC Category is to be granted class. If a person from SC Category is to be granted class. If a person from SC Category is to be granted promotion, the same would be irrespective of seniority promotion, the same would be irrespective of seniority promotion, the same would be irrespective of seniority of teachers from open category and other categories of of teachers from open category and other categories of of teachers from open category and other categories of the backward class.. As the Management promoted the the backward class.. As the Management promoted the the backward class.. As the Management promoted the petitioner in compliance with the roster, as he petitioner in compliance with the roster, as he petitioner in compliance with the roster, as he happened to be the candidate from SC Category, the happened to be the candidate from SC Category, the happened to be the candidate from SC Category, the Tribunal could not have over-ruled the decision of the Tribunal could not have over-ruled the decision of the Tribunal could not have over-ruled the decision of the Management by allowing the appeal, holding that the Management by allowing the appeal, holding that the Management by allowing the appeal, holding that the claim of the Respondent NO.1, herein, was superseded by claim of the Respondent NO.1, herein, was superseded by claim of the Respondent NO.1, herein, was superseded by the Petitioner. The Petitioner and the Respondent the Petitioner. The Petitioner and the Respondent the Petitioner. The Petitioner and the Respondent NO.1’s claim were not comparable and hence, inter se NO.1’s claim were not comparable and hence, inter se NO.1’s claim were not comparable and hence, inter se seniority is an irrelevant factor. I am of the clear seniority is an irrelevant factor. I am of the clear seniority is an irrelevant factor. I am of the clear view that as the Petitioner was promoted as Headmaster view that as the Petitioner was promoted as Headmaster view that as the Petitioner was promoted as Headmaster from SC Category, the Respondent NO.1, who was claiming from SC Category, the Respondent NO.1, who was claiming from SC Category, the Respondent NO.1, who was claiming the promotional post from NT Category, could not have the promotional post from NT Category, could not have the promotional post from NT Category, could not have successfully challenged the same solely on the ground successfully challenged the same solely on the ground successfully challenged the same solely on the ground that he was senior to the Petitioner. In the result, that he was senior to the Petitioner. In the result, that he was senior to the Petitioner. In the result, the Petition deserves to be allowed. the Petition deserves to be allowed. the Petition deserves to be allowed. 2. It may be indecently stated at this stage that 2. It may be indecently stated at this stage that 2. It may be indecently stated at this stage that the Respondent NO.1 also came to be promoted as the Respondent NO.1 also came to be promoted as the Respondent NO.1 also came to be promoted as Headmaster in the other school, managed by the Headmaster in the other school, managed by the Headmaster in the other school, managed by the Respondent No.2 in the year 2001 and had opted for Respondent No.2 in the year 2001 and had opted for Respondent No.2 in the year 2001 and had opted for voluntary retirement from 31st December, 2003, he voluntary retirement from 31st December, 2003, he voluntary retirement from 31st December, 2003, he ceases to be in the employment as of now. It will also ceases to be in the employment as of now. It will also ceases to be in the employment as of now. It will also not be inappropriate to state that during the pendency not be inappropriate to state that during the pendency not be inappropriate to state that during the pendency of the petition, the Judgment and Order passed by the of the petition, the Judgment and Order passed by the of the petition, the Judgment and Order passed by the School Tribunal, in favour of the Respondent NO.1, School Tribunal, in favour of the Respondent NO.1, School Tribunal, in favour of the Respondent NO.1, was stayed by this Court. was stayed by this Court. was stayed by this Court. In this view of the matter, the writ petition In this view of the matter, the writ petition In this view of the matter, the writ petition is allowed. is allowed. is allowed. The impugned Order passed by the School The impugned Order passed by the School The impugned Order passed by the School Tribunal dated 16/17.3.1994 in Appeal No. 182 Tribunal dated 16/17.3.1994 in Appeal No. 182 Tribunal dated 16/17.3.1994 in Appeal No. 182 of 1993 is hereby quashed and set aside. of 1993 is hereby quashed and set aside. of 1993 is hereby quashed and set aside. The Rule is made absolute in the above terms The Rule is made absolute in the above terms The Rule is made absolute in the above terms with no Order as to costs. with no Order as to costs. with no Order as to costs. ..... ..... ..... [A.P.DESHPANDE, J.] [A.P.DESHPANDE, J.] [A.P.DESHPANDE, J.] IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLAGE SIDE APPELLAGE SIDE APPELLAGE SIDE WRIT PETITION NO. 1966 of 1994 WRIT PETITION NO. 1966 of 1994 WRIT PETITION NO. 1966 of 1994 DATE OF DECISION : January 16, 2007. DATE OF DECISION : January 16, 2007. DATE OF DECISION : January 16, 2007. For approval and signature : For approval and signature : For approval and signature : The Hon’ble Mr. Justice A.P.Deshpande : The Hon’ble Mr. Justice A.P.Deshpande : The Hon’ble Mr. Justice A.P.Deshpande : 1. Whether Reporters of Local Papers 1. Whether Reporters of Local Papers 1. Whether Reporters of Local Papers may be allowed to see the may be allowed to see the may be allowed to see the judgment? judgment? judgment? 2. To be referred to the Reporter or 2. To be referred to the Reporter or 2. To be referred to the Reporter or not ? not ? not ? 3. Whether Their Lordships wish to 3. Whether Their Lordships wish to 3. Whether Their Lordships wish to see the fair copy of the see the fair copy of the see the fair copy of the judgment? judgment? judgment? 4. Whether this case involves a 4. Whether this case involves a 4. Whether this case involves a substantial question of law as to substantial question of law as to substantial question of law as to the interpretation of the the interpretation of the the interpretation of the Constitution of India, 1950, or Constitution of India, 1950, or Constitution of India, 1950, or any Order made thereunder? any Order made thereunder? any Order made thereunder? 5. Whether it is to be circulated to 5. Whether it is to be circulated to 5. Whether it is to be circulated to the Civil Judges? the Civil Judges? the Civil Judges? 6. Whether the case involves an 6. Whether the case involves an 6. Whether the case involves an important question of law and important question of law and important question of law and whether a copy of the judgment whether a copy of the judgment whether a copy of the judgment should be sent to Nagpur, Goa & should be sent to Nagpur, Goa & should be sent to Nagpur, Goa & Aurangabad Office? Aurangabad Office? Aurangabad Office? ***** ***** *****