Second Appeal holding that the suit for declaration of entitlement to the post of Headmaster was within limitation, dismissing the appeal against the first appellate Court's judgment.
Appeal dismissed with no costs; Civil Applications disposed of.
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1 36-SA-214
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
SECOND APPEAL NO. 214 OF 1992
WITH
CIVIL APPLICATION NO.397 OF 1993
WITH
CIVIL APPLICATION NO.1674 OF 1992
Sharda Bhuvan Education Society,
Nanded, through its Secretary
Baburao Ganpatrao Phalak..Appellant
V E R S U S
1. Govind Nagorao Deshmukh, Age : years, Occu : R/o :
2. Chief Executive Officer, Zilla Parishad, Nanded ..Respondents
Mr.P.P.Kothari,Advocatei/b.Mr.S.S.Bora,
Advocate for appellant
Mr.N.S.Tekale, Advocate i/b. Mr.P.V.Mandlik,
Senior Advocate for for respondent No.1
CORAM : SANGITRAO S. PATIL, J.
DATE : AUGUST 01, 2017
ORAL JUDGMENT :
Heard the learned Counsel for the
parties.
2 36-SA-214
2.The appellant has challenged the judgment
and decree dated 03.04.1992 passed in R.C.A. No.7
of 1996 by the learned IV Asstt. District Judge,
Nanded, whereby the judgment and decree dated
08.12.1985 passed in R.C.S. No.121 of 1981 by the
learned Civil Judge, Junior Division, Nanded, came
to be reversed and it has been declared that
respondent no.1 is entitled to the post of
Headmaster with effect from September, 1976, with
the benefits attached to the post of Headmaster,
but he was held entitled to get monetary benefits
towards the difference in the salary for the
period of three years preceding the date of filing
of the suit.
3.This Second Appeal came to be admitted on
the sole substantial question of law, which reads
as under :-
"Whether the suit filed by
respondent no.1 (original plaintiff)
fordeclarationiswithin
limitation?"
3 36-SA-214
4.As seen from the facts of the case,
respondent no.1 became eligible for being
appointed to the post of the Headmaster in the
month of September, 1976, after he completed
Diploma in Education. He made an application to
the appellant with a request to appoint him to the
post of the Headmaster but that was ignored.
Thereafter also, respondent no.1 moved the
appellant for getting himself appointed as
Headmaster. The last application is dated
26.07.1978 in the form of reminder to the
appellant, wherein it was specifically mentioned
that respondent no.1 had filed application for
getting appointment to the post of Headmaster on
19.08.1977, but no reply has been received by the
appellant in respect of that application.
Respondent no.1, therefore, requested the
appellant to consider that application and take
decision thereon. Admittedly, no decision was
taken by the appellant on that application and it
4 36-SA-214
was not ever communicated to respondent no.1 that
his claim for being appointed as Headmaster, was
rejected on any count.
5.The learned Counsel for the appellant
submits that the cause of action for the suit
arose in April, 1974 when respondent no.1, for the
first time, had applied to the appellant for being
appointed as Headmaster. He submits that the
respondent actually acquired the qualification for
being appointed to that post in September, 1976.
Therefore, even if the cause of action is
considered to have arisen in September, 1976, the
present suit filed on 06.03.1981, would not be
within limitation as per Article 58 of the
Limitation Act. He, therefore, submits that the
suit was rightly dismissed by the trial Court
holding that it was not within limitation,
however, the first appellate wrongly reversed that
finding as well as the decree passed by the trial
Court holding that the suit is within limitation.
5 36-SA-214
6.As against this, the learned Counsel for
respondent no.1 pointed out to the letter Exh.65
dated 26.07.1978, wherein it was specifically
mentioned that the previous application dated
19.08.1977 filed by respondent no.1 for getting
himself appointed as Headmaster was not replied by
the appellant. Therefore, a request was made by
respondent no.1 to the appellant to take
appropriate decision on that application, however,
no decision had been taken by the appellant and
therefore, the suit filed on 06.03.1981, would be
within the limitation.
7.As stated above, the application dated
19.08.1977 filed by respondent no.1 for being
appointed to the post of Headmaster was not ever
replied by the appellant. As per the letter dated
26.07.1978, respondent no.1 requested the
appellant to take decision on the application
dated 19.08.1977. However, no decision was taken
6 36-SA-214
by the appellant, therefore, even if it is held
that the limitation started after 26.07.1978,
giving cause of action for respondent no.1 to file
the suit for declaration of his entitlement to the
post of Headmaster, the suit filed on 06.03.1981,
would be well within the limitation vide Article
58 of the Limitation Act. The first appellate
Court has rightly considered the evidence on
record and has rightly held that the suit is
within the limitation.
8.So far as the monetary benefits are
concerned, the first appellate Court has rightly
held that respondent no.1 is entitled to get
difference of salary for the period of three years
preceding the date of filing of the suit. As
such, though the status of respondent no.1 to hold
the post of the Headmaster was declared with
effect from September, 1976, the actual monetary
benefits were given to him for the period of three
years preceding the date of filing of the suit.
7 36-SA-214
9.The first appellate Court has rightly
reversed the findings of the trial Court and
rightly decreed the suit. I do not find any
illegality or perversity in the judgment of the
first appellate Court.
10.The appeal is devoid of any substance.
It is liable to be dismissed and accordingly,
dismissed. No costs.
11.Civil Applications stand disposed of.
[SANGITRAO S. PATIL, J.]
kbp
2 issues framed by the court
Whether the suit filed by respondent no.1 for declaration is within limitation?
Whether the first appellate Court was correct in holding that the suit is within the limitation period under Article 58 of the Limitation Act.
1 provisions across 1 enactments
Sharda Bhuvan Education Society
Govind Nagorao Deshmukh
Chief Executive Officer, Zilla Parishad, Nanded
Sangitrao S. Patil
As recorded by the court registry
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