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2008 DIGILAW 411 (BOM)

Bharatbhushan Ramchandra Sonule v. State of Maharashtra

2008-03-14

D.D.SINHA, VASANTI A.NAIK

body2008
JUDGMENT D.D.SINHA, J. Heard Shri Dastane, learned Counsel for the petitioners, Shri Thakre, learned Assistant Government Pleader for the respondent no.1, Mrs. Munshi, learned Counsel for the respondent nos. 2 and 3, Shri Motghare, learned Counsel for the respondent nos. 4 and 5, and Shri Shende, learned Counsel for the respondent nos. 9 to 24. 2. Shri Motghare, learned Counsel for the respondent nos. 4 and 5, raised a preliminary objection regarding maintainability of the petition. It was contended that Division Bench of this Court vide judgment and order dated 13.4.2005 passed in Writ Petition Nos. 3311/2004, 3942/2004, 3943/2004 and 6113/2004 has held that inter se seniority of Teachers working in the Secondary Schools administered and managed by the Zilla Parishads in the State of Maharashtra will be governed by the provisions of Secondary Schools Code. The learned Counsel for the respondent nos. 4 and 5, therefore, contended that present petition is not maintainable at the behest of the Secondary School Teachers teaching in Zilla Parishad Schools at Gondia and Bhandara. 3. It was further submitted by the learned Counsel for the respondent nos. 4 and 5 that Shri D.V. Pillare, respondent no.5 in Writ Petition No. 6113/2004, filed Review Petition No. 517/2005 seeking review of the said judgment and order dated 13.4.2005. The Division Bench of this Court dismissed the said review petition by holding thus : On prima facie consideration of the Rules of 1968, it can be found that the said Rules do not govern the field of appointment, seniority, etc. In view of the view taken by us that Rules of 1962 cannot be read into the rules of 1968, we do not find that any case is made out for review of the judgment and order dated 13.4.2005. The review application is, therefore, dismissed.. The learned Counsel for the respondent nos. 4 and 5 contended that the present petition is also in the form of review petition and the petitioners are ultimately seeking review of the said judgment and order dated 13.4.2005. It was, therefore, submitted that second review petition is not maintainable in law. 4. Shri Dastane, learned Counsel for the petitioners, submitted that petitioners are the Teachers employed in the Schools established, managed and run by the Zilla Parishad, Gondia and Bhandara. It was, therefore, submitted that second review petition is not maintainable in law. 4. Shri Dastane, learned Counsel for the petitioners, submitted that petitioners are the Teachers employed in the Schools established, managed and run by the Zilla Parishad, Gondia and Bhandara. The present petition is preferred by the petitioners for recalling judgment and order dated 13.4.2005 passed by the Division Bench of this Court in Writ Petition Nos. 3311/2004, 3942/2004, 3943/2004 and 6113/2004 whereby it has been held that inter se seniority of Teachers in Zilla Parishad Schools should be determined as per provisions contained in the Secondary Schools Code. It was contended that the said decision adversely affects number of Zilla Parishad Teachers throughout State of Maharashtra, who were not parties to the said writ petitions and, therefore, the present petition filed by the petitioners for recalling judgment and order dated 13.4.2005 is maintainable. In support of his contentions, the learned Counsel placed reliance on the judgment of the Apex Court in Pohla Singh alias Pohla Ram (D) by L.Rs. and others v. State of Punjab and others { (2004) 6 SCC 126 } 5. We have given anxious thought to the contentions canvassed by the respective Counsel for the parties. The common question, which was required to be decided by the Division Bench of this Court in Writ Petition Nos.3311/2004, 3942/2004, 3943/2004 and 6113/2004, was : Whether service conditions of Teachers working in the Secondary Schools managed by the Zilla Parishads throughout State of Maharashtra are governed by the provisions of Secondary Schools Code or by the provisions of the Maharashtra Civil Services (Regulation of Seniority) Rules, 1982 ?. The Division Bench of this Court vide judgment and order dated 13.4.2005 allowed the said petitions and held that service conditions of Teachers working in the Secondary Schools administered and managed by the Zilla Parishads are governed by the provisions contained in the Secondary Schools Code. The law laid down by the Division Bench of this Court in the said judgment is uniformly applicable to all the Schools administered and managed by the Zilla Parishads throughout State of Maharashtra and, therefore, inter se seniority of Teachers in such Schools will be governed by the provisions of Secondary Schools Code. The law laid down by the Division Bench of this Court in the said judgment is uniformly applicable to all the Schools administered and managed by the Zilla Parishads throughout State of Maharashtra and, therefore, inter se seniority of Teachers in such Schools will be governed by the provisions of Secondary Schools Code. It is pertinent to note that law declared by the Division Bench of this Court cannot be given a restricted meaning to mean that it decides only inter se seniority of the petitioner Teachers in the said petition working in the Secondary Schools managed by the Zilla Parishads. On the other hand, it is applicable to the entire class of Teachers working in the Secondary Schools administered and managed by the Zilla Parishads throughout State of Maharashtra. The law declared by the Division Bench of this Court is applicable to the whole class of Teachers working in such Schools and, therefore, individual Teachers, who were not parties to the said writ petitions, are also bound by the law laid down in the said decision, which is of a general nature and applicable to the entire class of Teachers working in the Secondary Schools managed by the Zilla Parishad. The normal rule that person who is not party to the proceedings and the decision given by the Court in such proceedings is not binding on him, is not available to the present petitioners, who are part and parcel of the class of Teachers working in the Secondary Schools managed by the Zilla Parishads whose inter se seniority will be governed by the provisions of Secondary Schools Code. The Division Bench of this Court has declared a general law governing the Teachers working in the Secondary Schools run by the Zilla Parishads throughout State of Maharashtra and did not decide rights of individual Teachers. The said law is uniformly applicable to all the Teachers working in the Secondary Schools run by the Zilla Parishads throughout State of Maharashtra and, therefore, it is not open for the individual Teacher to challenge the said decision on the ground that he was not a party to the said writ petition. In our considered view, the present petitioners are not legally entitled to file a separate petition for recalling the judgment and order on the ground that they were not parties to the said petition. In our considered view, the present petitioners are not legally entitled to file a separate petition for recalling the judgment and order on the ground that they were not parties to the said petition. If we hold that such petitions are maintainable, then in that event, it will be open for all the Teachers, who were not parties to the said petitions, to call in question validity of law declared by the Division Bench of this Court by filing independent petitions, which will be an unending exercise in futility. Whenever law is declared by this Court and is applicable to class of persons, it is binding on the entire class even though some of the individuals were not parties to such proceedings. 6. There is another aspect to it. If a decision has been followed in large number of cases, that again is an important factor, which cannot be ignored. The law declared by the Division Bench of this Court is uniformly applicable to all the Teachers working in the Secondary Schools run and managed by the Zilla Parishads throughout State of Maharashtra and, therefore, it will be impermissible to allow present petitioners, who are part of the said class of Teachers, to re-open the issue concluded by the Division Bench of this Court merely because they were not parties to the said petitions. 7. Insofar as decision of the Apex Court in Pohla Singh alias Pohla Ram (D) by legal representatives and others (cited supra) relied by the learned Counsel for the petitioners in support of his contentions is concerned, it is no doubt true that Supreme Court has held that second petition filed by the appellants for recalling the decision passed in earlier petition in which they were not parties was maintainable. However, that view was taken by the Apex Court in view of facts and circumstances of the said case. The facts of the said case , in nutshell, are as follows : In the proceedings of declaration of surplus area, certain surplus land of father of respondent no.4 was allotted to the appellants (allottees) and they were also put in possession thereof. The allottees deposited the compensation amount, which was received by father of respondent no.4. The father of respondent no.4 filed Civil Writ Petition No. 3213/1968 challenging the order declaring surplus area without impleading the appellants (allottees) as parties to that petition. The allottees deposited the compensation amount, which was received by father of respondent no.4. The father of respondent no.4 filed Civil Writ Petition No. 3213/1968 challenging the order declaring surplus area without impleading the appellants (allottees) as parties to that petition. It was contended that when Civil Writ Petition No. 3213/1968 was allowed by the High Court and the order passed therein was not challenged by the appellants by preferring an appeal, it was not open to another learned Single Judge to entertain another writ petition at the instance of allottees and to make a declaration that they (allottees) were not bound by the decision rendered in Civil Writ Petition No.3213/1968 and also that they could not be dispossessed from the land in dispute in compliance therewith. The Apex Court, in such circumstances, in para (19) of the judgment has observed thus : The recourse taken to the second writ petition by the allottees, therefore, cannot be said to be illegal as their basic grievance was that though they were in possession since 1962, i.e. for nearly 18 years, but the order declaring the land as surplus had been set aside in a writ petition wherein they were not impleaded as parties. In these circumstances, we are of the opinion that writ petition filed by the allottees was rightly allowed by the learned Single Judge.. 8. The aforesaid observations of the Apex Court clearly demonstrate that second petition filed by the allottees was held to be maintainable in view of the fact that those allottees were in possession of land for nearly 18 years. The order declaring land as surplus was set aside in a petition wherein they were not impleaded as parties and, therefore, Apex Court, in such peculiar circumstances, has held that second petition filed by those allottees was maintainable. The order declaring land as surplus was set aside in a petition wherein they were not impleaded as parties and, therefore, Apex Court, in such peculiar circumstances, has held that second petition filed by those allottees was maintainable. However, in the present case, as we have already observed hereinabove, the Division Bench has declared the law, which is uniformly applicable to the class of Teachers working in the Secondary Schools administered and managed by the Zilla Parishads throughout State of Maharashtra and petitioners being part and parcel of the said class of Teachers, the law declared by the Division Bench is binding on them and, therefore, in our considered view, it is impermissible for the petitioners to file the present petition for recalling the judgment and order passed by the Division Bench of this Court, with the result, the present petition is not maintainable. 9. We cannot lose sight of the fact that review petition filed by Shri D.V. Pillare was also dismissed by the Division Bench of this Court and the present writ petition is also in the nature of review petition in that sense of the term and, therefore, even on this count, the present petition is not maintainable. 10. For the reasons stated hereinabove, the present petition is dismissed as not maintainable. No order as to costs.