1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1320 OF 2011 IN WRIT PETITION NO.2169 OF 2002 Shri.Rajaram Sampat Kamble .. Applicant V/s The Secretary/ Administrative Officer, All India Shri.Shivaji Memorial Society, Pune & Ors. .. Respondents Mr.S.V.Pitre, Advocate for the applicant. Mr.Nitin Dhumal, Advocate for Respondent Nos.1 & 2. Mrs.M.S.Bane, ‘B’ Panel Counsel / A.G.P.for Respondent Nos.3 to 5. Mr.Uday Warunjikar, Advocate for Intervener in W.P.No.2169/2002. CORAM: R.G.KETKAR, J. DATE: 22nd September, 2011. P.C.: 1. Rule. Learned counsel for the respective Respondents waive service. By consent of the parties, Rule is made returnable forthwith and is heard finally. 2. Heard Mr.Pitre, learned counsel for the Applicant – original petitioner, Mr.Nitin Dhumal, learned counsel for Respondent Nos. 1 & 2, Mrs.Bane, learned AGP for Respondent Nos.3 to 5 and Mr.Mr.Uday Warunjikar, learned counsel for the Intervener- Mr.Sarode, whose application is ordered to be heard alongwith the main petition. 3. The applicant has filed Writ Petition No.2169 of 2002 2 challenging the judgment and order dated 07.03.2002 passed by the learned Presiding Officer, School Tribunal, Pune in Appeal No.17 of 2000. By that judgment, the appeal preferred by the applicant under section 9 of the Maharashtra Employees of the Private School (Conditions of Service) Regulation Act, 1977 challenging the termination order dated 30.03.2000 was dismissed. The Petition was admitted on 10.04.2002 and the interim relief in terms of prayer clause (c) was granted, whereby the termination order dated 30.03.2000 issued by Respondent Nos.1 & 2 was stayed and the applicant was permitted to continue his services with Respondent No.2 as the Assistant Teacher. 4. During the pendency of the petition, it appears that one Mr.Namdeo Sarode has filed an application for intervention in the main petition as also for vacating the interim order. It is not in dispute that in so far as the relief of intervention is concerned, the Court has directed that the said relief shall be considered at the time of final hearing of the main petition. In so far as vacating the interim relief is concerned, after hearing both sides, the said prayer was rejected by order dated 23.07.2003. 5. It further appears that the Contempt Petition No.59 of 2003 was 3 filed by the Intervener Mr.Sarode. By order dated 13.02.2004 this Court recorded that since there was only one sanctioned post, the State of Maharashtra shall disburse the salary and the arrears to the Respondent No.1 Management in respect of the single sanctioned post within a period of eight weeks from the date of the order. The Court was informed by the learned counsel appearing for Respondent No.1 Management that the applicant herein and Mr.Sarode were reinstated and were given half workload. Respondent No.1 Management was directed to disburse the amount received from the State Government equally between the applicant and Mr.Sarode. The said order was passed as an interim arrangement. 6. The present application is taken out by the applicant petitioner interalia praying that he may be declared as a surplus teacher in Respondent No.2 School and he may be permitted to join as full time permanent teacher in Accounting and Auditing with the SNDT Arts & Commerce Junior College, Pune with continuity of service since June, 1997 and full back wages since February 2004. 7. Mr.Dhumal strenuously opposed this application and in particular 4 the last portion of prayer clause (b) where-under the applicant is seeking permission to join as full time permanent teacher with continuity of service since June, 1997 and full backwages since February, 2004. 8. Mr.Pitre states that presently the applicant is seeking permission to join as full time teacher on temporary basis in Accounting & Auditing with the SNDT Arts & Commerce Junior College, Pune. In so far as the rest of the prayers viz. appointment on permanent basis, continuity of service and full back wages are concerned, he states that that prayers may be considered at the time of final hearing of the Writ Petition No.2169 of 2002. Mr.Pitre invited my attention to the order dated 11.02.2011 passed by this Court in the main petition. By that order, the learned AGP appearing for Respondent Nos.3 to 5 was directed to take instructions and file affidavit as to whether the applicant could be declared surplus in accordance with Rule 26 of the Maharashtra Employees of the Private School (Conditions of Service) Regulation Act, 1977 and the Rules, and can be accommodated in some other School. 9. Subsequently on 25.03.2011 this Court permitted the applicant to make a representation to the Deputy Director of Vocational 5 Education & Training, Pune within a period of one week from the date of that order and the same was to be decided within two weeks thereafter. 10.On behalf of the 3rd Respondent, affidavit in reply is made by Rajendra Suryakant Ghume, Incharge Joint Director. It is contended that the applicant is not a surplus teacher. It is further averred that the 3rd Respondent is not the appointing authority. The management of the S.N.D.T.Womens’ College, Pune has the authority to appoint the applicant as a fresh appointment. It is further averred that the applicant cannot be declared as a surplus teacher. In view of the stand of the Respondent No.3, it is not possible for this Court to declare the applicant as surplus. 11.Mr.Pitre invited my attention to the letter dated 08.04.2011 addressed by the Joint Director of Vocational Education & Training, Pune to the applicant setting out therein that subject to the applicant obtaining no objection from the SNDT College, Pune and the appropriate order of this Court, his request for joining the SNDT College can be considered. Pursuant to this, the Incharge Principal of the SNDT College, Pune has conveyed no objection to the applicant joining as full time teacher on 6 temporary basis to the Joint Director of Vocational Education & Training, Pune on 26.05.2011. 12.Mr.Warunjikar, learned counsel for the Intervener Sarode submitted that because of the interim order, two teachers are working on one sanctioned post, and both the teachers have been paid half salary each, and in case this application is allowed, appropriate direction may be issued to the Management to disburse full salary to the Intervener. Mr.Dhumal learned counsel for the Management states that after the applicant is permitted to join duties with SNDT College, the Management will have no objection in paying full salary to the Intervener Sarode. The statement made by the learned counsel for the Management is accepted. 13.In view of the letter dated 26.05.2011 of the Incharge Principal of S.N.D.T.Arts and Commerce College for Women, the applicant is permitted to join as full time teacher in Accounting & Auditing with the SNDT Arts & Commerce Junior College, Pune on temporary basis subject to the decision in W.P.No.2169 of 2002. 14.Having regard to the peculiar facts and circumstances of the case, this order is passed without prejudice to the rights and contentions 7 of the parties and as a purely adhoc interim arrangement, as also subject to the further order that may be passed finally in the main Writ Petition. Rule is made absolute in the above terms with no order as to costs. Civil Application stands disposed of. Parties to act on an authenticated copy of this order. Liberty to apply in case the occasion arises. (R.G.KETKAR, J.)