Subhash Eknath Salunkhe Vs Shikshan Prasarak Sanstha and Ors.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE SIDE
 REVIEW PETIITON NO. 64 OF 2007
 IN

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 WRIT PETITION NO. 2728 OF 1996

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 Subhash Eknath Salunkhe .... Petitioner

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 versus

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 Shikshan Prasarak Sanstha,
 Karanje Peth, Satara & ors...... Respondent.

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 Shri Dilip Bodke for the petitioner.
 Shri A.M.Joshi for the espondent.

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 CORAM; A.P. DESHPANDE, J.
DATED; 18TH OCTOBER, 2007

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P.C.;

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 1. Review Petition is admitted and taken up for
 hearing by consent of parties.

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 2. The applicant in Review Petition is respondent

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 no.1 in W.P. No.2728/96. The Review Applicant is
 working as an Assistant Teacher in a school
 administered by the respondent no.1/society. He was
 being paid in the scale admissible to a teacher
 possessing S.S.C. D.Ed. qualification (hereinafter
 referred to as D.Ed. scale). As one Mrs. N.C.Patil

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 came to be granted a higher pay scale admissible to a
 trained graduate teacher (B. Ed. scale), the Review
 Applicant filed an appeal before the Presiding

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 Officer, School Tribunal under section 9 of
 M.E.P.S.Act. The tribunal allowing the appeal, set
 aside the promotion granted to Mrs. N.C.Patil and
 further directed that the Review Applicant/Appellant
 before the tribunal be treated as a trained teacher
 with effect from 21-8-1992 and directed the society to
 pay the difference of salary till passing of the
 judgment, and to pay salary in the scale admissible to
 B.Ed teacher after the judgment of the tribunal. The
 said judgment and order passed by the School Tribunal
 dated 23-1-1996 came to be challenged by filing a Writ
 Petition in this court by the soiety bearing W.P.No.
 2728/96.

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 3. When the matter came up for admission, this court
 by an order dated 8-7-1996 granted Rule and by way of
 an interim order, pending decision of the writ
 petition, directed that the respondent no.1/Review
 Applicant be paid salary in the scale admissible to a
 trained graduate teacher, which was being paid to the
 respondent no.2 in the Writ Petiiton. Thus, pursuant
 to the order dated 8-7-1996, I am informed by the
 learned advocate appearing for the respective parties,
 that the Review applicant was paid salary in the scale
 admissible to a trained graduate teacher till the
 petition came to be finally decided by a judgment
 delivered on 12-1-2007. By the said judgment, the

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 order passed by the school tribunal has been quashed
 and set aside on the ground that the appeal filed by
 the present Review applicant was misconceived. It is
 categorically held in the said judgment that only an
 employee who is superseded by the management while
 making appointment to any post by promotion can only
 file an appeal. I concluded in the said judgment that
 on account of denial of higher pay scale, no appeal
 lies under section 9 and thus the tribunal’s judgment
 has been found to be without jurisdiction. It is this
 judgment dated 12-1-2007 of which review is sought by
 filing this review application.

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 4. The learned advocate Shri C.H. Gangal was
 appearing for the respondent no.1 in the writ petition
 and had also filed his power, but some how by mistake
 the name of the counsel did not appear in the cause
 list published by the Bar Association. Hence the
 advocate could not and did not appear when the matter
 was taken up for final hearing. The learned counsel
 for the society does not dispute the factual position
 and does not oppose the review petition. A limited
 greivance is made by the learned counsel for the
 review applicant and the same is to the effect that
 under the orders passed by this court daed 8-7-1996
 the respondent no.1 in writ petition/review applicant
 was paid salary in the scale admissible to a trained

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 graduate teacher till the date of decision of the writ
 petition and thus it is contended that the society
 should not recover the said amount, which has been
 paid to the review petitioner. The learned counsel
 appearing for the society on instructions from his
 client makes a statement that the society will not
 make any recovery of the amount of salary paid to the
 review petiitoner, in the scale admissible to a
 trained graduate teacher with effect from 8-7-1996
 till the date of judgment. No other objection is
 raised to the judgment rendered in the writ petition
 dated 12-1-2007. Hence on concession made available
 by the counsel for the society, the judgment dated
 12-1-2007 passed in W.P.No. 2728/96 is modified to
 the following extent.

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 Though the order passed by the school tribunal
 is quashed and set aside, the
 society/respondent no.1 in this application
 (petitioner in writ petition) shall not
 recover the amount of salary or any part
 thereof,which has been paid to the review
 petitioner pursuant to the interim order dated

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 8-7-1996 till the decision of the Writ
 Petition.

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 6. This modification be carried out in the judgment

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 by inserting the same before the last sentence in the
 judgment which reads thus:

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 "Rule is made absolute in the above terms with

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 no orders as to costs."

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 Review Petition is accordingly partly allowed and
 disposed of.

Subhash Eknath Salunkhe v. Shikshan Prasarak Sanstha and Ors.

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Subhash Eknath Salunkhe v. Shikshan Prasarak Sanstha and Ors.

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