The Division Bench of the Bombay High Court consisting of Justices A.S. Chandurkar and Pushpa V. Ganediwala held that if the consequence of setting aside an order without jurisdiction results in reviving or restoring an illegal order, the court may refuse to entertain a challenge to such order that has been passed without jurisdiction as it would result in revival of an earlier illegal order that was set aside by such order, albeit without jurisdiction.
Facts
The petitioner and the respondent no.4 are serving as Headmaster and Assistant Teacher respectively at the school run by the respondent no.3. The petitioner was appointed on the post of Assistant Teacher while the respondent no.4 was appointed as Assistant Teacher. Their appointments were duly approved by the Education Officer (Secondary). The petitioner was shown to be senior than the respondent no.4 in the seniority list that was prepared for the years 2017-18 and 2018-19. In the seniority list for the year 2018-19, the petitioner was shown at Serial Number 1 while the respondent no.4 was shown at Serial Number 6. On 30.04.2018 the Management passed a resolution promoting the petitioner to the post of Headmaster from 01.05.2018. The petitioner accordingly took charge of the post of Headmaster from 01.05.2018 and his appointment as such was approved by the Education Officer (Secondary). It is the case of the respondent no.4 that his placement in the seniority list for the year 2018-19 was improper and he ought to be shown to be senior to the petitioner. Hence, the respondent no.4 made a representation to the Management seeking appropriate placement in the seniority list. A copy of that representation was also addressed to the Education Officer (Secondary). It appears that the Education Officer (Secondary) in exercise of powers conferred by Rule 12 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (‘the said Rules’) passed an order holding that in view of Government Circular dated 03.05.2019, as well as a communication from the Office of the Director of Secondary and Higher Education, the respondent no.4, was senior to the petitioner. On the same day, the Education Officer (Secondary) directed the Management to submit a proposal showing the respondent no.4 as Headmaster for necessary approval. The petitioner protested such direction through his two consecutive communications. On finding that there was no response to the same from the Office of the Education Officer (Secondary) the petitioner has filed this writ petition under Article 226 of the Constitution of India challenging the communications dated 12.06.2019 by which the Education Officer (Secondary) has held the respondent no.4 to be senior to the petitioner as well as the direction issued to the Management to send a proposal indicating the respondent no.4 to be the headmaster.
Contentions Made
Appellant: The Education Officer (Secondary) had no jurisdiction to entertain any grievance relating to the seniority list of the year 2018-19 under Rule 12 of the said Rules after the Management had based on such seniority list promoted the petitioner and had exceeded its jurisdiction. Reliance was placed on Umesh Balkrishna Vispute vs State of Maharashtra & Ors, St.Ulai High School & Anr vs Devendraprasad Jagannath Singh & Anr, Bhagwant Sheshrao Borale vs Education Officer, (Secondary), Zilla Parishad, Buldana & Ors and Salim Gulab Mulla vs State of Maharashtra & Ors. The petitioner was rightly shown to be senior to the respondent no.4 since 2017-18 and the claim as sought to be made by the respondent no.4 was not liable to be accepted. The impugned communications dated 12.06.2019 were liable to be set aside.
Respondent: The direction issued by the Education Officer (Secondary) to the Management to treat the respondent no.4 to be senior to the petitioner was because it was found that the initial placement of the petitioner in the seniority list was incorrect and that on noticing such error the Education Officer (Secondary) found that the respondent no.4 was senior to the petitioner. The Education Officer (Secondary) merely rectified the error that was apparent in the seniority list wherein the petitioner was shown to be senior to the respondent no.4. The impugned communications did not warrant interference. Even if the Education Officer (Secondary) had wrongly exercised jurisdiction under Rule 12 of the said Rules, this Court may not exercise discretion under Article 226 of the Constitution of India to set aside the impugned communications for the same would result in reviving the earlier illegal placement of the petitioner. Reliance was placed on Maharaja Chintamani Saran Nath Shahdeo vs State of Bihar & Ors and Bhartiya Seva Samaj Trust, Through President & Anr vs Yogeshbhai Ambalal Patel & Anr. The writ petition may not be entertained, and it be dismissed.
Observations of the Court
The Bench observed that:
“Considering the legal position referred to hereinabove, which is now well settled it becomes immediately clear that the Management having promoted the petitioner on 30.04.2018 to the post of Headmaster and the petitioner having taken charge of that post from 01.05.2018, the Education Officer (Secondary) lost jurisdiction to determine the inter se seniority between the petitioner and the respondent no.4 thereafter. It is thus clear that the impugned communications dated 12.06.2019 by which the respondent no.4 is held to be senior to the petitioner is the outcome of an exercise without jurisdiction.”
“Even assuming that the Education Officer (Secondary) had acted beyond jurisdiction under Rule 12 of the said Rules such error did not deserve to be corrected as the illegality of the petitioner being shown senior to the respondent no.4 would be revived.”
Referring to decisions relied upon, they observed:
“From the aforesaid decisions, if the consequence of setting aside an order without jurisdiction results in reviving or restoring an illegal order, the court may refuse to entertain a challenge to such order that has been passed without jurisdiction as it would result in revival of an earlier illegal order that was set aside by such order, albeit without jurisdiction. This principle is well recognized but its application would depend on the facts of each case.”
It was further observed that:
“We are not in a position to record a finding that the placement of the respondent no.4 initially in the seniority list at Serial Number 6 was incorrect and the same was rightly directed to be corrected by showing the respondent no.4 at Serial Number 1. This would require proper adjudication, and, in our view, the earlier decisions of this Court take care of the situation. If the respondent no.4 is aggrieved by the promotion of the petitioner on the post of Headmaster resulting in his supersession, the remedy u/s 9 of the said Act is available to him. In such proceedings the incidental question of inter se seniority can be gone into by the School Tribunal. Thus, the contention urged on behalf of the respondent no.4 that setting aside the communications dated 12.06.2019 would result in restoring the incorrect placement of the petitioner at Serial Number 1 in the seniority list cannot be accepted as an absolute proposition. That contention would require proper adjudication. Hence for these reasons we are not able to accept the contention canvassed by the learned counsel for the respondent no.4 in that regard.”
Judgment
The communications dated 12.06.2019 were set aside being an outcome of illegal exercise of jurisdiction by the Education Officer (Secondary).
Case Name: Nildhwaj Motiramji Kamble vs The State of Maharashtra & Ors
Citation: WRIT PETITION NO. 4990/2019
Bench: Justice A.S. Chandurkar, Justice Pushpa V. Ganediwala
Decided on: 19th January 2022
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