1 W.P.No.5146.10 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5146 OF 2010 Bharati Vidyapeeth & anr. ... Petitioners v/s Shri Vaibhav Jagannath Kanunje & ors. ... Respondents Mr.S.V.Pitre i/by Mr.Manoj Wadekar & Associates for the petitioners. Mr.S.A.Rajeshirke for respondent No.1. Mr.P.I.Khemani, A.G.P. For respondent Nos.2 and 4. CORAM: SMT.NISHITA MHATRE, J. DATED: 16TH SEPTEMBER, 2010 P.C.: 1. The petition has been filed against the order passed by the School Tribunal,. Pune, on 16.4.2010. The appeal filed by respondent No.1 has been allowed. The order promoting respondent No.3 from 15.6.2009 to the post of Assistant Head Master is set aside as the Tribunal found that it was contrary to the provisions of Maharashtra Employees of Private Schools Act and the rules framed thereunder. The Tribunal has further directed the petitioners to promote 2 W.P.No.5146.10 respondent No.1 to the post of Assistant Head Master with effect from 15.6.2009 and to pay him the difference of pay with effect from 27.8.2009 i.e. when the appeal was filed, till he is promoted. All ancillary benefits like seniority, deemed date of promotion and continuation in service from 15.6.2009, etc. were also directed to be extended to respondent No.1. 2. Mr.Pitre appearing for the petitioners takes exception to this order by relying firstly, on a resolution of the State Government dated 25.6.1992. He also submits that assuming the Tribunal was right in setting aside the order of promotion of respondent No.3, the Tribunal could not have directed the petitioners to promote respondent No.1 as an Assistant Head Master, as the merit of respondent No.1 has not been considered by the Tribunal. 3. As regards the first point raised by Mr.Pitre in respect of Government Resolution dated 25.6.1992, this Government Resolution has been considered in the case of Mrs.Lakhwinder Kaur Gurai v/s The Garison Children Education Society & ors., reported in 2006 (5) All.M.R. 149, by a learned Single Judge of this Court. This Court has held that the entitlement of an employee which flows out of statutory rules cannot be defeated by a Government 3 W.P.No.5146.10 Resolution. The Tribunal has considered the Government Resolution and has concluded that the petitioners had promoted respondent No.3 out of turn and that respondent No.1 was in fact entitled to the post of Assistant Head Master. 4. The contention of Mr.Pitre that the merit of respondent No.1 would have to be ascertained before promoting him, is also without substance. It is true that promotions to the post of Assistant Head Master are to be made by considering merit as well. However, the rules provide for certain qualifications for being appointed as an Assistant Head Master. The rules also provide that the senior-most Assistant Teacher would be posted as an Assistant Head Master. There is no material on record to indicate that the respondent No.1 had no merit for being appointed as an Assistant Head Master. In fact, he had been sidelined only because of the aforesaid Government Resolution. 5. In these circumstances, in my view, the Tribunal has committed no error in allowing the appeal. 6. Writ petition rejected. ..... 4 W.P.No.5146.10 5 W.P.No.5146.10