Bombay High Court
Shri. Babar Manohar Sonyabapu vs The President, Yashwantrao ... on 6 April, 2016
Bench: R.D. Dhanuka
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WP3556.14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3556 OF 2014
Babar Manohar Sonyabapu, )
of Mumbai, aged 51 years, residing at )
503, Shalini Niwas, Adarsh Nagar, )
Hanuman Mandir Road, Kanjurmarg(E),)
Mumbai - 400 042 ) ..... Petitioner
(Orig. Appellant)
VERSUS
1. The President, )
Yashwantrao Chavan Shikshan Prasarak )
Mandal, having its office at 92/8, Geeta )
Building, Opp.Sion Bus Depot, Sion (E), )
Mumbai - 400 022 )
2. The Chief Executive Officer, )
Yashwantrao Chavan Shikshan Prasarak )
Mandal, having its office at 92/8, Geeta )
Building, Opp.Sion Bus Depot, Sion (E), )
Mumbai - 400 022 )
3. Gagangiri Night High School, )
Municipal Marathi School No.1, )
Kanjur Marg, Bhandup(E), )
Mumbai - 400 042 )
4. The Education Inspector, )
North-Zone, New Administrative Building)
No.2, IInd Floor, R.C.Marg, Chembur, )
Mumbai - 400 071 )
5. The Dy. Director of Education, )
(Secondary) for Greater Mumbai, )
Jawahar Balbhavan, Charni Road, )
Mumbai - 400 004 )
6. Shri Madhukar Namdeo Jadhav, )
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Residing at B-003, matoshreekripa )
R.C.F.Colony, Bhandup Village, )
Bhandup (E), Mumbai - 400 042 )
7. Shri Ashok Tatyaba Godse, )
Residing at Chawl No.1, R. No.2, )
Tavate Niwas, Behind Saraswati High )
School, Kanjur Village, Kanjur Marg (E),)
Mumbai - 400 042 )
8. The Director of Education (Secondary))
State of Maharashtra, Central Building, )
Pune - 1 ) ..... Respondents
(Orig. Respondents)
Ms.Kumud Bhatia for the Petitioner.
Mr.Nitin Dhumal for Respondent nos. 1 to 3, 6 and 7.
Mr.A.R.Metkari, A.G.P. for the State - Respondent nos. 4, 5 and 8.
CORAM : R.D. DHANUKA, J.
RESERVED ON : 22nd MARCH, 2016
PRONOUNCED ON : 6th APRIL, 2016
JUDGMENT :
Rule. Learned counsel appearing for the respondents waive service. By
consent of parties, matter is heard finally.
2. By this petition filed under Articles 226 and 227 of the Constitution of India,
the petitioner (original appellant) has impugned the order dated 25 th October, 2013
passed by the learned Presiding Officer of the School Tribunal, Mumbai allowing
an application filed by the respondents challenging the jurisdiction of the school
tribunal on the ground that the school tribunal had no subject matter jurisdiction.
Some of the relevant facts for the purpose of deciding this petition are as under :-
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3. The petitioner is qualified as M.A.,B.Ed. On 14th June, 1993, the petitioner
was appointed as an Assistant Teacher in the respondent no.3 Night High School
situated at Kanjur Marg.
4. On 30th June, 2008, the post of Head Master in the said school fell vacant
due to the resignation of Mr.B.R.Ghanwat w.e.f. 30th June, 2008.
5. On 1st July, 2008, the respondent nos. 1 and 2 appointed Mr.Madhukar
Namdeo Jadhav, respondent no.6 as an In-charge Head Master of the said school.
On 9th September, 2008, the petitioner by his advocate's letter called upon the
respondent nos. 1 and 2 to consider his willingness to work as Head Master of the
said school by promoting to the said post by taking into consideration his service
record. It was alleged in the said letter that the service record of the senior most
teacher Mr.M.N.Jadhav and other two senior most teachers Mr.A.T.Godse and
Mr.A.B.Rane and also of the two junior most teachers viz. Mr.S.N.Bhosale and
Mr.C.D.Desai was not satisfactory.
6. On 1st October, 2008 the petitioner met the Chief Executive Officer of the
respondent no.1 and expressed his desire to work as a Head Master.
7. On 1st November, 2008, the petitioner made a representation to the
respondent nos. 4 and 5 to direct the respondent no.1 to fill up the Head Master in
the said school as per the Rule 3 of the M.E.P.S.Rules. Since there was no
favourable response from the respondent nos. 1 to 5 inspite of the representation
made by the petitioner, the petitioner filed a writ petition (2767 of 2008) in this
court inter alia praying for writ of mandamus directing the respondent nos. 1 and 2
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to appoint the petitioner as Head Master and for other reliefs. By an order dated
2nd April, 2009 this court directed the respondent nos. 1 and 2 to look into the
grievance of the petitioner.
8. By their advocate's letter dated 26th June, 2009, the respondent nos. 1 and 2
informed the petitioner that it was found that the respondent no.6 was senior to the
petitioner and hence he was promoted as Head Master and a proposal of approval
of his appointment was sent to the Education Officer on 2nd May, 2009.
9. The petitioner through his advocate's letter dated 31st July, 2009 made a
representation to the Director of Education, Pune-1 and called upon him to cancel
the appointment of respondent no.6 as Head Master and to take action against the
management for their acts of misconduct and inefficiency.
10. Sometime in the month of October 2009, the petitioner filed an appeal(42 of
2009) before the School Tribunal, Mumbai inter alia praying for setting aside the
promotion of the respondent no.6 to the post of the Head Master to the respondent
no.3 school w.e.f.1st January, 2009, for a declaration that the respondent nos. 7 and
8 were not competent to be considered for promotion to the post of Head Master as
per the provisions of Rule 3(3) of the M.E.P.S.Rules and for an order and direction
against the respondent nos. 1 and 2 to appoint the petitioner to the post of the Head
Master in respondent no.3 school w.e.f.1st January, 2009 and for consequential
benefits of difference in pay and allowances of Head Master. On 8 th December,
2009, the contesting respondents filed their joint written statement contesting the
appeal filed by the petitioner on various grounds.
11. On 21st December, 2009, the petitioner made an application for amendment
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of the appeal memo to place on record certain acts of alleged misconduct of the
respondent nos. 6 to 8 teachers by which those teachers had alleged to have
fabricated the answer-sheets of the students. The petitioner also annexed the
answer-sheets of those students in support of his amendment application.
12. On 2nd February, 2010, the respondents made an application before the
school tribunal inter alia praying for framing the preliminary issue of jurisdiction
of the school tribunal to entertain the appeal filed by the petitioner. The petitioner
filed a reply on 5th March, 2010 opposing the said application and contended that
the school tribunal had jurisdiction to try and decide the appeal filed by the
petitioner.
13. On 25th October, 2013, the learned Presiding Officer, School Tribunal,
Mumbai rejected the appeal (42 of 2009) filed by the petitioner on the ground of
lack of jurisdiction of the school tribunal to entertain the said appeal and allowed
the application filed by the respondents challenging the jurisdiction of the school
tribunal to entertain the said appeal. The petitioner has impugned the said order
dated 25th October, 2013 passed by the Presiding Officer of the School Tribunal in
this writ petition on various grounds.
14. Learned counsel appearing for the petitioner submits that the petitioner was
superseded to the post of Head Master of the respondent no.3 school by promoting
one of the respondent by ignoring the merits of the petitioner and overlooking the
unsatisfactory record of service of the respondent nos. 6 and 7. It is submitted that
under rule 3(3) of the said M.E.P.S.Rules, a person can be appointed as a Head
Master by promotion only if he has satisfactory record of service along with his
seniority and must fulfill the qualification as laid down in Rule 3(1) of the
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M.E.P.S. Rules, 1981. It is submitted that the management of school including the
night school has to fill up the post of the Head Master by appointing senior most
member of teaching staff in accordance with the guidelines Schedule F.
15. It is submitted by the learned counsel for the petitioner that respondent nos.
6 and 7 did not have satisfactory record of service. The petitioner had pointed out
by placing on record the answer-sheets of the students which were alleged to have
been fabricated by the respondent nos. 6 to 8 which was a serious act of
misconduct on their part. It is submitted that since the promotion to the post of
Head Master was not only based on the seniority but also on the merits including
satisfactory record of service, the respondent nos. 1 and 2 could not have
appointed the respondent no. 6 merely on seniority. She submits that while
deciding the appeal under section 9 filed by the petitioner alleging supersession of
the petitioner based on these submissions, the school tribunal had ample power and
jurisdiction to decide all such incidental issues in the said appeal filed under
section 9(1) (b) of the M.E.P.S.Act. She submits that the M.E.P.S.Rules
specifically provided for the qualification and criteria of promotion of teacher as a
Head Master by promotion.
16. It is submitted by the learned counsel that though the petitioner had
furnished the documents showing adverse record of service of respondent nos. 6
and others, the school tribunal erroneously rejected the appeal filed by the
petitioner and failed to exercise its jurisdiction to decide the said issue contrary to
section 9 of the M.E.P.S.Act. It is submitted that since there was a dispute raised
by the petitioner in the criteria of deciding the seniority list with regard to the
satisfactory service of the person promoted to the post of the Head Master by the
respondent nos. 1 and 2, the petitioner could have agitated such issue only by
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filing an appeal before the School tribunal under section 9 of the said M.E.P.S.Act,
1977. She submits that the issue of jurisdiction raised by the respondents was a
mixed question of facts and law and could not be decided as a preliminary issue.
17. Learned counsel for the petitioner submits that even while deciding the stay
application by the school tribunal on 13 th November, 2009, the school tribunal had
specifically expressed and recorded its view in the said order that the grievances of
the petitioner that the respondent no.6 had no satisfactory record and had quoted
several instances showing misconduct of the respondent no.6 but at the interim
stage, the school tribunal could not consider those allegations unless there was
evidence. The school tribunal however while rejecting the stay application on
these ground expedited the hearing of the appeal. She submits that though the
appeal was filed by the petitioner in the year 2009 and the written statement was
filed by the respondents on 8th December, 2009, the respondents filed an
application on 2nd February, 2010 for framing a preliminary issue which came to be
decided by the school tribunal on 25th October, 2013 after more than three years.
She submits that since the hearing of the appeal was already expedited by the
school tribunal, the school tribunal could have decided the said appeal itself
including the issue of promotion of the respondent nos. 6 and 7 in accordance with
rule 3 of the M.E.P.S.Rules, 1981.
18. Learned counsel appearing for the petitioner placed reliance on the judgment
of this court in case of Umesh Balkrishna Vispute vs. State of Maharashtra and
others reported in 2001(1) Mh.L.J. 486 and would submit that the dispute relating
to supersession in the matter of promotion squarely falls within the jurisdiction of
the tribunal under section 9(1) (b) of the Maharashtra Employees of Private
Schools (Conditions of Service) Regulation Act, 1977. She submits that the
determination of inter se seniority is a disputed question of facts and can be
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incidentally decided by the school tribunal. She submits that whether the
respondent no. 6 was having satisfactory record of service or not and had merits
for being promoted or not itself is a disputed question of fact and thus the school
tribunal could not have dismissed the appeal filed by the petitioner at this stage.
19. Learned counsel appearing for the petitioner also placed reliance on the
judgment of Supreme Court in case of N.C.Das vs. Gauhati High Court reported
in (2012) 2 SCC 321 and would submit that since the promotion could be granted
to the respondent nos. 6 and 7 not only on the basis of seniority but also on the
basis of merits, the school tribunal could not have dismissed the appeal at the
preliminary stage without giving an opportunity to the parties to prove whether
respondent no. 6 had satisfied both the conditions i.e. seniority cum merit for being
promoted to the post.
20. Learned counsel for the contesting respondents i.e. respondent nos. 1 to 3
and 6 and 7 on the other hand submits that the petitioner was admittedly junior to
respondent nos. 6 and 7 in the seniority list. The respondent no.6 was at serial no.1
in the seniority list whereas the petitioner was at serial no.4. He submits that the
Director of Education has ample power to hold enquiry under section 4(A)(1)(b) if
the management has neglected or has refused to hold an enquiry against the
employee in accordance with the provisions of M.E.P.S.Act and the rules made in
that behalf. He submits that the allegations of mal-practice etc. made by the
petitioner against respondent nos. 6 and 7 could not be decided by the school
tribunal. He submits that the school tribunal has rightly rejected the appeal filed
by the petitioner on the ground that the only education department was competent
authority to decide those questions raised by the petitioner and if satisfied has to
take action for the same. He placed reliance on the reasons recorded by the school
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tribunal and would submit that since the respondent nos. 6 and 7 were admittedly
seniors to the petitioner, they were rightly appointed as Head Masters and thus
there was no question of any supersession of the petitioner. He submits that since
there was no supersession of the petitioner, the appeal filed by the petitioner itself
was not maintainable under section 9(1)(b) of the M.E.P.S.Act, 1977.
21. Learned counsel for the contesting respondents submits that the petitioner
had also filed a separate writ petition in this court inter alia praying for his
appointment to the post of Head Master on various grounds which were also raised
in the appeal filed before the school tribunal. He submits that this court did not
grant any relief in favour of the petitioner in the said writ petition. He submits that
the management had thereafter looked into the allegations made by the petitioner
against the respondent nos. 6 and 7 and having not found any substance in those
allegations made by the petitioner conveyed their decision to the petitioner. He
submits that the petitioner could not have agitated those issues once again before
the school tribunal. He place reliance on the judgment of this court in case of
Mohan Bapurao Shinde vs. Terana Charitable Trust & Ors., reported in 2010(6)
Bom.C.R.203 and would submit that since the petitioner was junior to the
respondent nos. 6 and 7, promotion of respondent nos. 6 and 7 cannot amount to
supersession of the petitioner and thus the appeal under section 9(1)(b) filed by the
petitioner alleging supersession itself was not maintainable. He submits that the
petitioner was thus not replaced by the respondent nos. 6 and 7 by promotion but
those respondents were promoted in view of their seniority over the petitioner.
22. A perusal of the order passed by the school tribunal indicates that the entire
order is passed on the premise that the respondent nos. 6 and 7 were admittedly
senior to the petitioner. Insofar as the documents produced by the petitioner
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against the respondent nos. 6 and 7 including some answer-sheets in support of the
submission that due to adverse service record of the respondent nos. 6 and 7, they
could not have been promoted as Head Masters as per Rule 3(3) of the
M.E.P.S.Rules, 1981 is concerned, the school tribunal has rejected the said
submission on the ground that the question of qualification of a person to any post
could not be the subject within the purview of section 9 of the M.E.P.S.Act, 1977.
It is held that the question regarding point of supersession was a ground of
disqualification which could not be considered by the school tribunal and could be
considered only by the education department.
23.
It is not in dispute that the petitioner had filed an appeal in the year 2009.
The contesting respondent had already filed their reply in the year 2009. The
application made for framing of preliminary issue of jurisdiction was filed by the
contesting respondent on 2nd February, 2010. While refusing to grant interim relief
to the petitioner, the school tribunal by an order dated 13 th November, 2009 had
though expedited the said appeal, rejected the said interim relief on the ground that
the grievances of the petitioner that the respondent no.6 had no satisfactory record
in respect of which he had quoted many instances showing the misconduct of the
respondent no.6, those allegations could not be considered by the school tribunal at
that interim stage unless there was evidence. Though the appeal was expedited by
the school tribunal by an order dated 21st December, 2009, instead of deciding the
appeal itself, the school tribunal decided the preliminary issue which was raised on
2nd February, 2010 by the respondents which contentions were disputed by the
petitioner on 5th March, 2010, by deciding the issue of jurisdiction on 25 th October,
2013. In my view since the school tribunal had refused to grant interim relief on
the ground that those allegations could not be considered by the school tribunal at
the interim stage unless there was evidence, in my view, the school tribunal after
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refusing to grant interim relief could not have considered the preliminary objection
after expiry of three years and ought to have disposed of the appeal itself on merits
after giving an opportunity to both the parties to lead oral evidence.
24. There is no dispute that the promotion to the post of Head Master could be
considered not only on the basis of seniority but could be considered only on the
basis of the seniority cum merit under rule 3(3) of M.E.P.S.Rules. There was
serious allegation made by the petitioner against the respondent nos. 6 and 7 not
only in the appeal before the school tribunal but also in the earlier writ petition
filed by the petitioner. The petitioner had also produced some documents in
support of his these allegations before the school tribunal. In my view since the
criteria for granting promotion under Rule 3(3) of the M.E.P.S.Rules was seniority
cum merit, the school tribunal ought to have considered both the aspects and not
only the seniority in the appeal filed by the petitioner.
25. In my view if the school tribunal upon considering the evidence would have
come to the conclusion that the respondent nos. 6 and 7 had no satisfactory record
of service, though they were seniors to the petitioner, the promotion granted to the
respondent nos. 6 and 7 by the management would have been set aside. The
allegations made by the petitioner challenging the alleged satisfactory record of the
respondent nos. 6 and 7 were disputed questions of fact which had bearing on the
promotion granted to the respondent nos. 6 and 7 and thus could not have been
brushed set aside by rejecting the same by deciding the same as a preliminary
issue. The entire order is based on the premise that the petitioner being junior to
the respondent nos. 6 and 7 could not alleged supersession of the petitioner by
respondent nos. 6 and 7 and thus the appeal was not maintainable under section
9(1)(b).
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26. In my view the issue of jurisdiction of the school tribunal has to be decided
on the basis of averments made in the appeal filed by the appellant and not on the
basis of the defence raised by the respondents. If the petitioner was able to prove
before the school tribunal by leading oral as well as documentary evidence that the
respondent nos. 6 and 7 were not meritorious and had adverse service record, the
respondent nos. 6 and 7 could not have been promoted as Head Master in view of
the criteria for promotion being seniority cum merit. In my view the school
tribunal thus while deciding the issue of supersession could have incidentally
decided the issue of merits of the respondent nos. 6 and 7 including the issue as to
whether they had adverse service record and whether could not have been
promoted inspite of such adverse service record though they were found senior to
the petitioner.
27. In my view, by dismissing the appeal at the preliminary stage, the school
tribunal has not exercised its jurisdiction to decide the criteria for promotion
described under Rule 3(3) of the M.E.P.S.Rules, 1981. The school tribunal in my
view has failed to exercise its jurisdiction to look into the allegations of non-
fulfillment of the criteria for making promotion of the respondent nos. 6 and 7
which had the effect of supersession of the petitioner by the management by
appointing the candidates who may not satisfy the condition of Rule 3(3) of the
M.E.P.S. Rules, 1981.
28. In my view the order passed by the school tribunal holding that such
allegation of mal-practice or adverse record of service of the respondent nos. 6 and
7 could be decided by the authority under the provisions of M.E.P.S.Act read with
M.E.P.S.Rules, 1981 and the tribunal could decide only if the petitioner was
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superseded by appointment of respondent nos. 6 and 7 is patently erroneous. In
my view the school tribunal had jurisdiction to decide the issue of respondent nos.
6 and 7 not having satisfied the criteria for being promoted under rule 3(3) which
would have bearing on the supersession of the petitioner. Judgment of the
Division Bench of this court in case of Umesh Balkrishna Vispute (supra) and
judgment of Supreme Court in case of N.C.Das (supra) would assist the case of the
petitioner.
29. Insofar as judgment of this court in case of Mohan Bapurao Shinde (supra)
relied upon by the learned counsel for the contesting respondents is concerned,
there was no issue raised before this court in the said judgment challenging the
appointment of the contesting respondents on the basis of seniority cum merit.
The judgment of this court in case of Mohan Bapurao Shinde (supra) thus is not
be applicable to the facts of this case and is clearly distinguishable.
30. I, therefore, pass the following order :-
(a) The impugned order dated 25th October, 2013 passed by
the Presiding Officer, School Tribunal,Mumbai below Ex.12-A
allowing an application of the contesting respondents and
dismissing the appeal filed by the petitioner on the ground of
jurisdiction is set aside. Application made by the contesting
respondents (Ex.12-A) is dismissed. Appeal No.42 of 2009
filed by the petitioner is restored to file.
(b) The Presiding Officer, School Tribunal, Mumbai shall
decide the Appeal No.42 of 2009 filed by the petitioner in
accordance with law without being influenced by the
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observations and conclusions drawn in the impugned order
dated 25th October, 2013 including the issue whether the
contesting respondents had fulfilled the conditions for granting
promotion under rule 3 of the M.E.P.S.Rules expeditiously.
(c) Rule is made absolute in the aforesaid terms. No order
as to costs.
[R.D. DHANUKA, J.]
