Bombay High Court
Shirishkumar Lakhichanda ... vs State Of Maharashtra And Others on 8 October, 2015
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2318 OF 2015
Shrishkumar s/o. Lakhichanda Choudhari,
Age Major, Occupation service as
Assistant Teacher, New English School,
Bhalod, Taluka Yaval,
District Jalgaon PETITIONER
VERSUS
1] State of Maharashtra,
[Through: Secretary,
Department of School Education,
Mantralaya, Mumbai]
2] Education Officer [Secondary],
Zilla Parishad, Jalgaon
3] Secretary,
Secondary Education Society,
Bhalod, Taluka Yaval,
District Jalgaon
4] Jayant s/o. Ichharam Choudhari,
Age Years, Occupation: Service as
Head Master, New English School and
Junior College, Bhalod, Taluka Yaval,
District Jalgaon
5] Vinayak s/o. Pandit Visawale,
Age Years, Occupation: Service as
Assistant Head Master, New English
School and Junior College, Bhalod,
Taluka Yaval, District Jalgaon
6] Avinash s/o. Nathu Nehete,
Age Years, Occupation: Service as
Supervisor, New English
School and Junior College, Bhalod,
Taluka Yaval, District Jalgaon. RESPONDENTS
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2
...
Mr.S.R.Choukidar, Advocate for the Petitioner
Mrs. S.G.Chincholkar, AGP for the Respondent No.1 & 2
Mr. A.G.Talhar, Advocate for the Respondent Nos.3 & 6.
...
CORAM: S.S.SHINDE &
A.M.BADAR, JJ.
Reserved on : 14.09.2015
Pronounced on: 08.10.2015
JUDGMENT: [Per S.S.Shinde, J.]:
1]
This Petition is filed with following prayer:
B] Rule may be made absolute and by issuing
appropriate writ, order or direction, following
reliefs may be granted:
i] To quash and set aside decision contained in
the communication dated 17-01-2015;
ii] To hold and declare that petitioner is senior
most employee on the establishment of New
English School, Bhalod and direct respondent
nos.1 to 3 to place the petitioner at serial no.1
in the seniority list of the employees from the
establishment of New English School and based
thereon, extend consequential benefits of
appointment as Head and other consequential
benefits flowing from the placement in the
seniority list and extend to the petitioner the
benefit of appropriate pay scale with effect
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from 1-06-2007 and pay arrears of salary and
grant approval to the appointment of as Head
of the school by directing appointment as Head
of the school.
2] The learned counsel appearing for the
petitioner submits that, the petitioner possessed of
educational qualification namely S.S.C. D.Ed. at the time of
entry in service and was appointed as an Assistant Teacher.
The petitioner had, while in service, completed B.A. in the
Year 1986 and B.Ed. in the Year 1995. The respondent
No.4 was possessed of B.Sc. B.Ed. qualification. He was
appointed as an Assistant Teacher on a D.Ed. scale and
continued his appointment on such terms until 05.11.1990.
He was extended B.Ed. scale for the first time on
05.11.1990. It is submitted that, the respondent No.5 was
appointed as an Assistant Teacher and possessed of B.Sc.
B.Ed. qualification while entry in the service and was
extended the B.Ed. scale for the first time on 30.06.1990.
The respondent No.5 was appointed as Assistant Head
Master on 30th August, 2008. It is submitted that, the
respondent No.6 is possessed of B.Sc. B.Ed. qualification
which he had completed in the year 1987. On 30th August,
2008, the respondent No.6 was appointed on the post of
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Supervisor. From 16.06.2007 to 07.08.2007, the seniority
list of the employees serving on the establishment of the
school was circulated, wherein the respondent Nos.4 to 6
were shown above the petitioner because of their
completion of B.Ed. course earlier in the point of time than
the petitioner. The said placement was objected by the
petitioner by placing reliance on Circular dated 16.02.1995
issued by the Director of Education. It is the contention of
the learned counsel appearing for the petitioner that, the
objection raised by the petitioner to the seniority list was
erroneously turned down by the Education Officer. It is
submitted that, the Hon'ble Supreme Court in the
unreported Judgment in the case of Viman Awale Vs.
Gangadhar in Civil Appeal No.7699 of 2014, decided on
13th August, 2014, had an occasion to consider as to
whether the acquisition of B.Ed. qualification at a later date,
even when such higher qualification is requisite
qualification for the higher post, is determinative factor for
fixing the seniority list. While answering the said issue, the
Hon'ble Supreme Court held that, the said factor i.e.
acquisition of B.Ed. qualification is not determinative factor
for fixing the seniority. It is submitted that, the petitioner
had filed representations with the respondent Nos.1 to 3 for
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re-determination of the seniority list, based on the law laid
down by the Hon'ble Supreme Court, however, the
respondent Nos.1 to 3 have rejected the prayer of the
petitioner. Hence this Petition.
3] On the other hand, the learned AGP appearing
for the Respondent - State submits that, there is inordinate
delay, in taking an exception to the seniority list, and also
to the appointment of the respondent No.4 as a Head
Master and to overcome point of limitation in availing
appropriate remedy, the present Petition is filed. It is
submitted that, the Petition raises disputed questions of
fact, and therefore, the Petition may not be entertained.
4] The learned counsel appearing for the
respondent Nos.3 to 6 invited our attention to the affidavit-
in-reply and submits that, the order of approval in giving
B.Ed. pay scale to the respondent No.4 has been acted
upon with effect from 30th June, 1999, and the same is not
challenged by the petitioner at the relevant time. It is
submitted that, the respondent No.4 possessed the
educational qualification i.e. B.Sc. B.Ed. at the time of
appointment, and therefore, the respondent No.4 was
appointed as an Assistant Teacher. In fact, though
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answering respondent ought to have been appointed on
B.Ed. scale, however, he was appointed on a D.Ed. scale
and the approval was also received to that effect. It is
submitted that, the petitioner was given a trained graduate
scale i.e. B.Ed. scale on 30th June, 1999, and considering the
qualification and scale, the petitioner has accepted the
order in the Year 1999 and no challenge was made to that
effect and no objection was raised. Therefore, it is a matter
of record that, the objection, which was taken by the
present petitioner, was in fact not tenable at that stage, in
view of the fact that, the present petitioner has accepted
the order in the Year 1999 itself. It is submitted that, the
petitioner did not point out or not placed any document on
record which would show that, the petitioner was senior
upto the Year 2007 to the respondent No.4. It is submitted
that, the respondent No.4 herein was appointed as a Head
Master of the school. The present petitioner did not
challenge the action of appointing the respondent No.4 as a
Head Master, by way of filing appeal before the School
Tribunal, and therefore, filing the present Writ Petition
belatedly after lapse of 8 years from the appointment of the
respondent No.4 as a Head Master, that too, by passing the
remedy of statutory appeal under Section 9 of the MEPS
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Act, cannot be countenanced, and therefore, the Petition
deserves to be rejected.
5] It is submitted that, the representation /
application filed by the petitioner to the Education Officer
was misconceived inasmuch as the Education Officer could
not have set aside the promotion given to the respondent
No.4 as Head Master.
ig It is submitted that, though the
Education Officer can decide the seniority as per Rule 12,
but it is a matter of record that, the present petitioner did
not submit any application or raised any objection on or
after 1st July, 1999, and first time objection was raised in
the Year 2007, and the Education Officer has rightly
decided the said application by his order dated 1st July,
2008. It is submitted that, as per Schedule-F of the said
Act, which clearly mandates that, the fixation of seniority of
teachers in secondary school is given as per the category
'C'. The holders of graduate trained qualification will have
to be placed in category 'C', so the present petitioner, in
fact, while entering in the service was not having B.Ed.
qualification, but he was having D.Ed. qualification. It is
submitted that, the respondent No.4 has been rightly
placed above the petitioner in the seniority list i.e. in the
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category 'C'. It is submitted that, the schedule-F clearly
mandates that, the holder of qualification should be placed,
in the seniority list according to their qualifications and not
on the basis of pay scale. It is submitted that, it is a matter
of record that, the respondent No.4 was appointed in the
Secondary School since beginning, and therefore, on the
basis of qualification, the management placed him in the
seniority list.
ig Simply because at the time of initial
appointment of the respondent No.4, a D.Ed. pay scale was
given to him, that does not take away any statutory right of
the respondent No.4. It is submitted that, the Petition
deserves to be rejected on the ground of latches and for not
availing the remedy of appeal under Section 9 of the MEPS
Act, 1977. Therefore, relying upon the averments in the
affidavit-in-reply, the learned counsel appearing for the
respondent Nos.3 to 6 submit that, the Petition may be
dismissed.
6] We have heard the learned counsel appearing
for the petitioner, learned AGP appearing for the
Respondent - State, and the learned counsel appearing for
the respondent Nos.3 to 6. With their able assistance,
perused the pleadings and grounds taken in the Petition,
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annexures thereto, reply filed by the respondent Nos.3 to 6,
and also the relevant provisions of the MEPS Act and Rules.
It is undisputed position that, the order of approval
granting B.Ed. pay scale in favour of the respondent No.4
with effect from 30th June, 1999, has been acted upon at
the relevant time. However, the petitioner did not raise any
objection till the Year 2007. It further appears that, the
seniority list was drawn, and accordingly, the respondent
Nos.4 to 6 were shown above the petitioner in the seniority
list, and the respondent No.4 came to be appointed as
Head Master in the year 2008. The objection raised by the
petitioner to the seniority list was turned down by the
Education Officer on 29.11.2007. The respondent No.4 was
appointed as Head Master of the New English School and
Junior College, Bhalod, in the Year 2008. The petitioner did
not challenge the order of the Education Officer dated
29.11.2007, and the action of the respondents to appoint
the respondent No.4 as Head Master of the said School. It
is also not in dispute that, the remedy of appeal as
provided under Section 9 of the said Act, was available to
the petitioner so as to challenge the appointment of the
respondent No.4 as a Head Master. However, nothing has
been brought on record to show that, the order of
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appointment of the respondent No.4 as a Head Master was
challenged by the petitioner before the Appellate Forum. If
the prayer of the petitioner is perused carefully, the prayer
is two fold; firstly to re-draw the seniority list of the
employees working in the New English School, Bhalod, and
secondly, to appoint the petitioner as a Head Master in case
the petitioner is shown senior to the respondent No.4 and
further
petitioner.
consequential benefits be extended to the
7] As already observed, it is admitted position
that, the objection raised by the petitioner to the seniority
list was turned down by the Education Officer in the year
2007-08. The petitioner did not take further steps by
availing appropriate remedy, so as to challenge the
decision of the Education Officer rejecting his objection to
the seniority list. It appears that, by way of filing application
/ representation once again in the Year 2015, to the
respondent Nos.1 to 3, the petitioner, so as to overcome
the limitation to challenge the decision of the Education
Officer taken in the Year 2007 itself, has filed such
applications / representations, and thereafter, the present
Writ Petition. Not only that, there is inordinate delay in
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taking exception to the seniority list by way of filing present
Writ Petition, but admittedly the petitioner has not availed
the remedy of statutory appeal so as to take exception to
the appointment of the respondent No.4 as a Head Master.
Therefore, there is inordinate and unexplained delay in
challenging the seniority list, and also the appointment of
the respondent No.4 as a Head Master, that too, by passing
remedy of appeal. It is true that, there is no specific
provision prescribing limitation for filing the Writ Petition,
however, the Hon'ble Supreme Court in the case of The
Moon Mills Ltd. Vs. M.R.Meher, President Industrial
Court, Bombay & others1 held thus:
It is true that the issue of a writ of certiorari is
largely a matter of sound discretion. It is also true
that the writ will not be granted if there is such
negligence or omission on the part of the applicant
to assert his right as, taken in conjunction with the
lapse of time and other circumstances, causes
prejudice to the adverse party. The principle is to a
great extent, though not identical with, similar to
the exercise of discretion in the Court of Chancery.
The principle has been clearly stated by Sir Barnes
Peacock in Lindsay Petroleum Co. v. Prosper
Armstrong Hurd, Abram Farewell, and John Kemp,
(1874) 5 PC 221 at p.239, as follows:
1 AIR 1967 SC 1450
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"Now the doctrine of laches in Courts of equity
is not an arbitrary or a technical doctrine. Where it
would be practically unjust to give a remedy, either
because the party, has, by his conduct, done that
which might fairly be regarded as equivalent to a
waiver of it, or where by his conduct and neglect he
has, though perhaps not waiving that namely, yet
put the other party in a situation in which it would
not be reasonable to place him if the remedy were
afterwards to be asserted, in either of these cases,
lapse of time and delay are most material. But in
every case, if an argument against relief, which
otherwise would be just, is founded upon mere
delay, that delay of course not amounting to a bar
any statute of limitations, the validity of that
defence must be tried upon principles substantially
equitable. Two circumstances, always important in
such cases, are, the length of the delay and the
nature of the acts done during the interval, which
might affect either party and cause a balance of
justice or injustice in taking the one course or the
other, so far as relates to the remedy."
In the case of M/s. Tilokchand and
Motichand & others Vs. H.B.Munshi & another2 the
Supreme Court held that, it may be stated that a citizen
who sleeps over his fundamental rights even for many
years and allows third parties to acquire those rights,
cannot be helped by the court in its writ jurisdiction.
2 1969 (10) SCC 110
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Yet in another exposition in the case of State
of Maharashtra Vs. Digambar3, the Supreme Court
about exercise of power under Article 226 of the
Constitution of India in para Nos.18 to 21 held thus:
18. Coming to the exercise of power conferred
upon the High Court under Article 226 of the
Constitution for issuing orders, directions or writs
for 'any purpose', such power is discretionary, being
a matter well-settled, cannot be disputed.
19. Power of the High Court to be exercised
under Article 226 of the Constitution, if is
discretionary, its exercise must be judicious and
reasonable, admits of no controversy. It is for that
reason, a person's entitlement for relief from a High
Court under Article 226 of the Constitution, be it
against the State or anybody else, even if is
founded on the allegation of infringement of his
legal right, has to necessarily depend upon
unblameworthy conduct of the person seeking
relief, and the Court refuses to grant the
discretionary relief to such person in exercise of
such power, when he approaches it with unclean
hands or blame-worthy conduct.
20. Laches or undue delay, the blame-worthy
conduct of a person in approaching a Court of
equity in England for obtaining discretionary relief
which disentitled him for grant of such relief was
3 1995 (4) SCC 683
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explained succinctly by Sir Barnes Peacock, long
ago, in Lindsay Petroleum Co. v. Hurd (1874) 5 PC
221 thus:
"Now the doctrine of laches in Courts of Equity
is not an arbitrary or a technical doctrine. Where it
would be practically unjust to give a remedy, either
because the party has, by his conduct, done that
which might fairly be regarded as equivalent to a
waiver of it, or where by his conduct and neglect he
has, though perhaps not waiving that remedy, yet
put the other party in a situation, in which it would
not be reasonable to place him if the remedy were
afterwards to be asserted, in either of these cases,
lapse of time and delay are most material. But in
every case, if an argument against relief, which
otherwise would be just, is founded upon mere
delay, that delay of course not amounting to a bar
any statute or limitations, the validity of that
defence must be tried upon principles substantially
equitable. Two circumstances, always important in
such cases, are, the length of the delay and the
nature of the acts done during the interval, which
might affect either party and cause a balance of
Justice or injustice in taking the one course or the
other, so far as it relates to the remedy."
21. Whether the above doctrine of laches which
disentitled grant of relief to a party by equity court
of England, could disentitle the grant of relief to a
person by the High Court in exercise of its power
under Article 226 of our Constitution, when came up
for consideration before a Constitution Bench of this
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Court in Moon Mills Ltd. v. M.R.Meher, President,
Industrial Court, Bombay, it was regarded as a
principle that disentitled a party for grant of relief
from a High Court in exercise of its discretionary
power under Article 226 of the Constitution.
In the case of Santoshkumar Shivgonda
Patil and others Vs. Balasaheb Tukaram Shevale &
others4 in para 11, the Supreme Court held thus:
11. It seems to be fairly settled that if a statute
does not prescribe the time-limit for exercise of
revisional power, it does not mean that such power
can be exercised at any time; rather it should be
exercised within a reasonable time. It is so because
the law does not expect a settled thing to be
unsettled after a long lapse of time. Where the
legislature does not provide for any length of time
within which the power of revision is to be exercised
by the authority, suo motu or otherwise, it is plain
that exercise of such power within reasonable time
in inherent therein.
8] Therefore, in the light of the discussion herein
above, it is clear that, there is inordinate delay in filing the
present Writ Petition. Secondly to overcome the point of
limitation in availing appropriate remedy so as to take
exception to the seniority list, and the appointment of the
4 [2009] 9 SCC 352
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respondent No.4 as a Head Master, the present Writ
Petition appears to have been filed by the petitioner, which
also raises disputed questions of fact.
9] Apart from inordinate and unexplained delay in
filing the Writ Petition, if the facts of the present case are
considered, the respondent No.4 has stated in the affidavit-
in-reply that, he was appointed in the Secondary School
since beginning and he was placed in the seniority i.e. in
the category 'C'. However, it appears that, in the case of
Viman Awale [supra], the Supreme Court has considered
different facts situation inasmuch as the petitioner therein
and the respondent No.4, at the initial stage were not
possessing B.Ed. qualification, but they were only D.Ed.
Therefore, they were placed in category-D of Schedule 'F'.
However, as stated by the respondent No.4 in his affidavit-
in-reply, since beginning he was placed in category-C of
Schedule 'F'. In that case, the petitioner therein did avail
remedy of appeal, and upon dismissal of appeal, filed Writ
Petition, and thereafter, Special Leave Petition.
10] While exercising the writ jurisdiction, it is not
desirable to undertake exercise of adjudication of the
disputed questions of fact. As already observed, the
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respondent No.4 claimed that, he was appointed from
beginning in the Secondary School, and since he possessed
B.Ed. qualification at the entry point, he was placed in the
seniority list in category-C of Schedule-F. For adjudication
of such rival claims, the petitioner ought to have availed
appropriate remedy at the appropriate time within
limitation provided under the relevant Statutes / Rules /
procedure.
ig We also find considerable force in the
submission of the counsel appearing for respondent Nos.4
to 6 that, the Education Officer cannot decide the issue of
the appointment of the Head Master, in view of the remedy
of appeal provided under Section 9 of MEPS Act.
11] In the light of the discussion in the foregoing
paragraphs, inevitable conclusion is that, it is not desirable
to entertain the Writ Petition, which raises disputed
questions of fact, and also there is inordinate delay in filing
the Petition, challenging the decision of the Education
Officer, rejecting the objection of the petitioner in the Year
2007-08 to the seniority list, and also to take exception to
the appointment of the respondent No.4 as a Head Master
in the Year 2008.
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12] In the result, the Writ Petition stands rejected.
However, we make it clear that, we have not expressed any
opinion on merits of the matter, and if the petitioner is
advised, he may avail remedies made available, with prayer
for condonation of delay. However, we make it clear that,
we have not expressed any opinion, either on merits, or
delay in availing such remedies.
Sd/- Sd/-
[A.M.BADAR] [S.S.SHINDE]
JUDGE JUDGE
DDC
