1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO 2357 OF 2011. Nitin S/o Arvind Wankhede. .Vrs. State of Maharashtra, thr. the Secretary, Education Department, Mantralaya,Mumbai and Others. ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. (S/Shri C.A. Joshi, R.C. Joshi, M.S.Sambare, M.Iliya Shekani, Advocates for Petitioner) Shri V.K.Paliwal, Advocate for respondent No.4) CORAM : B. P. DHARMADHIKARI & P.D.KODE, J J. DATED : 15.06.2011 The appeal preferred by the Petitioner under Clause 61.1 of Secondary School Code has been disposed of by Director of Education on 02nd May 2011 by only recording conclusion that present respondent No.2 is senior to present Petitioner. This 2 fact was never in dispute and question was whether respondent No.4 had relinquished his entitlement to the post of Head Master in terms of explanation to Rule 3(3)(5) of Maharashtra Employees of Private Schools (Conditions of Service), Rules,1981. The controversy came to this Court in Writ Petition 2438 of 2010 and by order dated 15th June, 2010 the respondent Education Officer was directed to pass a reasoned order. That reasoned order was passed by the Education Officer on 01st September,2010. The writing by respondent No2 on 26.05.2009 has been held to meet the requirements of said explanation to sub-rule(3), and therefore, present Petitioner was found entitled to be promoted as Head Maser and he was given approval accordingly on permanent basis. It is therefore, obvious that while deciding appeal against this order dated 01st September, 2010 it was obligatory for respondent No.5 to look into that writing. There are rival pleadings about it. However there is no effort to find out whether said 3 writing could have been treated as legal relinquishment of the entitlement as envisaged in explanation to Rule 3(3)(5) of Maharashtra Employees of Private Schools (Conditions of Service), Rules,1981. As that had not been done we find there is failure to exercise jurisdiction. Order dated 02nd May,2010 is therefore quashed and set- aside. Matter is remanded back to respondent No.5 for fresh consideration, in accordance with law. The parties are directed to appear before respondent on 06.07.2011 and said respondent shall hear and pass appropriate order,as early as possible and in any case by 12th August, 2011. Rule made absolute accordingly no order as to costs. Till then the position as prevailing today shall continue. JUDGE JUDGE scd//