Bombay High Court
Shri. Salim Gulab Mulla vs The State Of Maharashtra Through ... on 31 August, 2016
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.826 OF 2015
Salim Gulab Mulla )
Aged 54 years, Occupation-Service, )
R/o. Plot No.7, Gulistan Manzil, )
Mahesh Colony, Sahyadri Nagar, )
Wai, District- Satara. ) .. Petitioner
Versus
1. The State of Maharashtra )
through the Secretary,
School Education Department
ig )
)
Mantralaya, Mumbai - 400 032. )
2. The Education Officer (Secondary) )
Zilla Parishad, Satara )
3. Kaleshwari Shikshan Prasarak )
Mandal, At Mandhardeo )
Taluka Wai, District-Satara, )
through its Chairman/Secretary, )
4. Sunil Ananta Devkule )
Aged Adult, working as Assistant )
Teacher, New English School, )
Mandhardeo, Taluka-Wai, )
District Satara. ) .. Respondents
---
Mr.N.V. Bandiwadekar i/by Mr.Sagar A. Mane for the petitioner.
Mr.A.R. Metkari, AGP for the respondent nos.1 and 2.
Mr.Chetan G. Patil for the respondent no.3.
Mr.Prashant Bhavake for the respondent no.4.
---
CORAM : R.D. DHANUKA, J.
RESERVED ON : 8th August 2016
PRONOUNCED ON : 31st August 2016
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Judgment :-
. Rule. Learned counsel appearing for the respondent waives
service. By consent of parties, the petition is heard finally.
2. By this writ petition under Articles 226 and 227 of the
Constitution of India, the petitioner has impugned the order passed by
the Education Officer (Secondary), Zilla Parishad, Satara holding that
the respondent no.4 is senior in service to the petitioner in the cadre of
Assistant Teacher in the secondary school run by the respondent no.3
Society and directing the respondent no.3 to submit proposal of the
respondent no.4 as Head Master to the Education Officer. The impugned
order has been passed by the Education Officer in exercise of power
under Rule 12 of the Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981 (for short "the said MEPS Rules").
Some of the relevant facts for the purpose of deciding this petition are
as under :-
3. The petitioner was born on 14th September 1960 and has
passed M.A. B.Ed. and is duly qualified to be appointed as an
Assistant Teacher in the secondary school. The respondent no.3 is the
Education Institution registered under the provisions of the Bombay
Public Trusts Act, 1950 and also the Societies Registration Act, 1860.
The respondent no.3 is running a government recognised secondary
school by name New English School at Mandhardeo, Taluka-Wai,
District-Satara having classes Standard V to X. The said school was
started in the academic year 1988-89 on an unaided basis and it started
receiving grant-in-aid from the government stage wise. The said school
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became fully aided in the year 1995-96. The respondent no.2 is the
Education Officer who has been appointed under the provisions of the
Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 (for short "the said MEPS Act").
4. It is the case of the petitioner that in the academic year
1990-91 when the school was being run on no grant basis, the
management initiated selection procedure and after completing the
same, he was selected as an Assistant Teacher in the said school. The
management passed a resolution in its meeting dated 11 th June 1990 and
decided to appoint the petitioner along with four other employees in
the said school. The petitioner was appointed as Assistant Teacher on
13th June 1990 vide an appointment order dated 13 th June 1990. It is
the case of the petitioner that the petitioner accordingly joined the school
from 13th June 1990. Since the school was not receiving any grant-in-
aid, the management as well as the Head Master of the school did not
submit any proposal to the Education Officer for approval to the said
appointment of the petitioner as well as the other four employees
mentioned in the said resolution dated 11th June 1990.
5. It is the case of the petitioner that from the date of joining
the said school, the petitioner continuously worked in the said school
without any break. During the month of May vacation, the school was
closed. The petitioner however was paid salary for the said vacation
by the management.
6. It is the case of the petitioner that for the academic year
1991-92, the respondent no.3 passed a resolution dated 1st June 1991 and
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appointed the petitioner as an Assistant Teacher from 19 th June 1991 on
probation. The management accordingly issued an appointment letter on
4th June 1991 in favour of the petitioner on probation for a period of two
years. It is the case of the petitioner that services of the petitioner came
to be continued in the subsequent academic year also.
7. By an order dated 30th March 1993, the Education Officer
granted approval to the appointments of various teaching and non
teaching employees in the said school including the petitioner. The
petitioner came to be granted approval from 19 th June 1991 on probation.
By an order dated 12th March 1994, the Education Officer granted
approval to the appointment of the petitioner for the academic year
1993-94 in the same pay scale. By an order dated 28 th January 1994, the
Education Officer granted approval to the petitioner on probation on the
same pay scale. It is the case of the petitioner that the petitioner came to
be paid salary during the summer vacation in the year 1991, 1992 and
1993 and was in continuous officiation from 13th June 1990.
8. It is the case of the petitioner that the management had
prepared seniority lists of the teachers working in the said school. In
the seniority lists, the date of appointment of the petitioner was shown
as 13th June 1990 and his name was placed at serial no.1 on the basis of
that date appointment. The name of Shri Erande Bhagwan Baliram
who was appointed on 24th June 1991 was placed at serial no.2 whereas
the name of the respondent no.4 herein who was appointed on 17 th June
1992 was placed at serial no.3. It is the case of the petitioner that neither
the said Shri Erande Bhagwan Baliram nor the respondent no.4 raised
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any objection to the said seniority lists and also to the placement given
to the petitioner above them in the said seniority lists.
9. On 31st January 2013, the Head Master of the school Shri
P.B. Gaikwad was superannuated. It is the case of the petitioner that
since the petitioner was the next senior-most teacher with good service
record and being eligible and qualified to be promoted as a Head
Master of the said school, the respondent no.3 management passed a
resolution dated 1st February 2012 to promote the petitioner as Head
Master from 1st February 2012 and accordingly issued an order of
appointment dated 26th January 2012 w.e.f. 1st February 2012.
10. It is the case of the petitioner that the petitioner took
charge of the post of the Head Master of the said school w.e.f. 1st
February 2012. The management thereafter submitted a proposal to
the Education Officer for seeking approval to the said promotion of the
petitioner to the post of Head Master. The respondent no.2 Education
Officer by his order dated 30th April 2012 informed the management
that since the approval to the appointment of the respondent no.4 was
from 14th June 1993 whereas the regular approval to the petitioner as
an Assistant Teacher was from 13th June 1994, the respondent no.4 was
senior to the petitioner and thus approval to the said promotion of the
petitioner as Head Master could not be granted.
11. The management placed reliance on the order dated 30 th
April 2012 passed by the Education Officer and issued an order dated
7th May 2012 informing the petitioner that the petitioner was reduced to
the rank of an Assistant Teacher from 7th May 2012. The petitioner
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herein impugned the said order of reduction in rank/reversion passed by
the management on 7th May 2012 by filing an appeal (38 of 2012)
before the school tribunal, Kolhapur under Section 9 of the MEPS Act
against the respondent nos.2 to 4 herein on 2nd June 2012.
12. By a judgment and order dated 7th March 2013, the school
tribunal allowed the said appeal filed by the petitioner and quashed and
set aside the order dated 7th May 2012 issued by the management for
reduction in rank having found illegal and directed the management to
reinstate the petitioner to the post of Head Master with continuity of
service but without any difference of pay. The management thereafter
reinstated the petitioner to the post of Head Master and submitted a
proposal of the said appointment to the Education Officer. The Education
Officer granted approval by an order dated 8 th May 2013 to the
appointment of the petitioner as In-charge Head Master from 1 st May
2013 to 31st July 2013.
13. The respondent no.4 filed a writ petition (6848 of 2013)
in this Court and impugned the judgment and order dated 7 th March
2013 passed by the school tribunal allowing the appeal filed by the
petitioner herein. The said writ petition appeared on board before this
Court on 13th August 2014, when the learned counsel for the respondent
no.4 herein (the petitioner in Writ Petition No.6848 of 2013) sought
liberty to withdraw the said writ petition and to independently assert
his claim that he was senior to the petitioner herein by adopting
appropriate proceedings in that regard before the appropriate forum.
Learned counsel for the management and the petitioner therein gave
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their no objection for the petitioner therein to adopt such appropriate
course of action as permissible in law.
14. This Court accordingly permitted the petitioner therein to
withdraw the said writ petition with liberty to avail appropriate remedy
available in law to assert his claim of seniority over the respondent no.3
thereto (the petitioner herein). In the said order, this Court clarified that
the appropriate forum shall decide the issue of seniority between the
petitioner and the respondent no.3 thereto on its own merit and in
accordance with law, without being influenced by the observations as
made in the impugned order dated 7th March 2013 passed by the school
tribunal which was subject matter of the said writ petition.
15. The respondent no.4 herein made a representation to the
Education Officer under Rule 12 of the MEPS Rules and claimed that he
was senior to the petitioner herein. The petitioner herein filed his reply
dated 29th October 2014 and pointed out that he was senior in service to
the respondent no.4. The Education Officer directed the management to
produce certain documents including the appointment orders of the
petitioner and Shri Erande Bhagwan Baliram, the resolutions passed by
the management, advertisements, roaster copy etc. which came to be
submitted by the management before the Education Officer. The
management reiterated before the Education Officer that the petitioner
herein was senior to the respondent no.4.
16. On 5th January 2015, the Education Officer passed an order
and informed the management that the respondent no.4 was senior in
service to the petitioner and therefore the management should submit
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proposal of the respondent no.4 for Head Master of the said school. The
petitioner received a copy of the said order on 9 th January 2015 and
made a representation on 12th January 2015 to the Education Officer
and contended that the order passed by the Education Officer was not
proper. The Education Officer informed the petitioner that he had already
passed an order and there was no question of reconsidering the said
issue. Being aggrieved by the said order dated 5th January 2015, the
petitioner filed this writ petition under Articles 226 and 227 of the
Constitution of India.
17.
Mr.Bandiwadekar, learned counsel for the petitioner invited
my attention to the order of appointment of the petitioner dated 13 th June
1990, the resolution passed by the respondent no.3 management dated
24th November 1991, the order of appointment dated 4 th June 1991
appointing the petitioner on probation as an Assistant Teacher for a
period of two years, approvals granted by the Education Officer on 30 th
March 1993, 12th April 1994 and 28th November 1994 and Seniority
lists in the year 1997 etc. It is submitted by the learned counsel that in
the seniority lists prepared and circulated by the management, the name
of the petitioner was placed at serial no.1 showing the date of the
appointment of the petitioner as 13th June 1990 whereas the name of
the respondent no.4 was placed at serial no.3 and the date of the
appointment shown as 17th June 1992. The respondent no.4 did not
challenge any of the seniority lists prepared by the management. He
submits that on 31st January 2012, Shri P.B. Gaikwad, the then Head
Master retired. On 24th February 2012 the management passed a
resolution to promote the petitioner to the post of Head Master w.e.f. 1 st
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February 2012 and also issued a letter of promotion to the petitioner for
the said post.
18. Learned counsel for the petitioner invited my attention to
the order dated 30th April 2012 passed by the Education Officer rejecting
the proposal of the management to grant approval to the appointment
of the petitioner as Head Master on the ground that the respondent no.4
was granted approval on 14th June 1993 whereas the petitioner was
granted approval on 13th June 1994 and thus the respondent no.4 was
senior to the petitioner. He submits that on the basis of the said illegal
order passed by the Education Officer, the management reverted the
petitioner to the post of Assistant Teacher by its order dated 7 th May
2012. He invited my attention to various findings recorded by the
school tribunal in the judgment and order dated 7 th March 2013 allowing
the appeal (38 of 2012) filed by the petitioner under Section 9 of the
MEPS Act challenging the order of reversion dated 7th May 2012.
19. It is submitted that the respondent no.4 herein was a party
to the said appeal and was impleaded as the respondent no.3. He submits
that the school tribunal in the said judgment and order held that seniority
was to be reckoned from the date of officiation in a particular cadre
and not on the basis of approval granted by the Education Officer. On
perusal of the approval which was accorded to the petitioner as well as
the respondent no.4 on the same date i.e. 14th June 1993, the letter
dated 30th April 2013 by the Education Officer in which the respondent
no.4 has been treated as senior the school tribunal has held that the said
order of approval was totally misconceived. The school tribunal held
that there was no hesitation to record the finding that the petitioner
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was senior to the respondent no.4 herein and answered the said issue in
affirmative.
20. The school tribunal declared that the order of the
management for reduction in rank without any inquiry was per se
illegal and void ab initio. It is held that the petitioner was entitled for
reinstatement to the said post of the regular Head Master forthwith. The
school tribunal accordingly directed the management to reinstate the
petitioner to the post of Head Master forthwith with continuity of
service and other incidental benefits except the difference of pay. The
school tribunal rejected the prayer for back wages as difference of pay
for the post of Head Master to Assistant Teacher. The management
accordingly reinstated the petitioner to the post of Head Master. The
management thereafter submitted proposal to the respondent no.2
Education Officer for approving the appointment of the petitioner to
the said post of Head Master.
21. Learned counsel for the petitioner submits that by an order
dated 13th August 2014 passed by this Court in the Writ Petition (6848
of 2013) which was filed by the respondent no.4 herein impugning the
order of the school tribunal granting reinstatement to the petitioner
herein, the said judgment and order dated 7th March 2013 passed by the
school tribunal was not set aside. The petitioner had withdrawn the said
writ petition with liberty to pursue the appropriate proceedings. He
submits that the petitioner had given his no objection for the respondent
no.4 herein to adopt such appropriate course of action as permissible in
law. He submits that the petitioner was already promoted to the said post
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of Head Master pursuant to the said judgment and order dated 7 th March
2013 passed by the school tribunal.
22. It is submitted that once the petitioner was already
promoted to the said post of Head Master, the respondent no.4 herein
could not have filed any representation before the Education Officer for
determination of seniority dispute under Rule 12 of the MEPS Rules.
He submits that the said representation itself was without jurisdiction
and untenable. In support of this submission, learned counsel for the
petitioner placed reliance on the judgment of this Court in the case of
Bhagwant Sheshrao Borale Vs.Education Officer, (Secondary), Zilla
Parishad, Buldhana & Ors., reported in 2009 (6) Mh.L.J. 478 and in
particular paragraph 5 thereof. Reliance is also placed on the judgment
of this Court in the case of Vidyalata Nilkanth Patil Vs.
Chairman/Secretary, Shikshan Prasarak Samiti, Badapokharan and
Ors., reported in 2016 (4) Mh.L.J. 106 and in particular paragraphs 20,
27, 42 to 49 and would submit that after adverting to the judgment of
the Full Bench of this Court in the case of St.Ulai High School and
Anr. Vs. Devendraprasad Jagannath Singh, reported in 2007(1)
Mh.L.J. (Full Bench) 597 and the judgment of this Court in the case
of Bhagwant Sheshrao Borale (supra), it is held by this Court in the
said judgment that the Education Officer has no jurisdiction to
adjudicate upon the seniority dispute after an appointment or promotion
is already made by the management to a particular post. The issue of
seniority can be decided by the school tribunal as an incidental issue
while considering the appeal against the order of supersession, reduction
in rank etc.
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23. It is submitted that since the petitioner was already
promoted to the post of Head Master, representation made by the
respondent no.4 under Rule 12 of the MEPS Rules for determination of
inter se seniority dispute between the petitioner and the respondent no.4
was not an appropriate remedy in law. He submits that the impugned
order passed by the Education Officer determining the seniority between
the petitioner and the respondent no.4 after promotion to the post of Head
Master already having been granted to the petitioner by the management
was without jurisdiction and contrary to the law laid down by this Court.
24.
Without prejudice to the submissions made aforesaid, the
next submission of the learned counsel for the petitioner is that the
impugned order passed by the Education Officer refusing to grant
approval to the appointment of the petitioner and directing the
management to submit proposal of the respondent no.4 for the said post
of Head Master on the ground that the approval to the appointment of
the respondent no.4 was granted earlier in point of time then the
appointment of the petitioner is ex facie illegal, perverse and without
application of mind. He submits that for the purpose of appointment,
promotion or for determining the seniority, the date of approval granted
by the Education Officer is not relevant. He submits that the date of
appointment of the employee is relevant for the purpose of seniority and
promotion.
25. It is submitted that the petitioner was appointed by an
appointment order dated 13th June 1990 as full-time Assistant Teacher
and had joined the said school with effect from that date. The petitioner
has been continuously working since then in the respondent no.3 school.
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He submits that the petitioner was also granted salary for the vacation
period from time to time by the management. My attention is also
invited to the resolution passed by the management on 1st February
2007 thereby condoning the so called break during the period 1 st May
1991 to 18th June 1991, 1st May 1992 to 12 th June 1992, 1st May
1993 to 13th June 1993 and 1st May 1994 to 12th June 1994 totaling
into 179 days. He submits that by the said resolution, the period to 179
days was condoned with payment for vacation period and for the
purpose of seniority.
26.
It is submitted that the seniority of the petitioner thus had to
be counted from 13th June 1990 or in any event w.e.f. 19 th June 1991
whereas the respondent no.4 was admittedly appointed on 17 th June
1992 i.e. much after the appointment of the petitioner. In support of
this submission, the learned counsel for the petitioner placed reliance on
Rule 13 of the MEPS Rules and note 5 of Schedule 'F' to the MEPS
Rules. He submits that there is no provision under the MEPS Act or
Rules considering the date of approval for the purpose of promotion or
seniority. He submits that vacation salary for all the vacations had
already been paid to the petitioner. He placed reliance on the judgment of
the Division Bench of this Court in the case of Anjali Jayant Khati
Vs. Bal Mandir Sanstha & Ors., reported in 2009(1) Bom.C.R. 206
and in particular paragraphs 2, 8 and 10 thereof. Reliance is also placed
on the judgment of this Court in the case of Sumangala w/o
Manoharrao Sakharkar Vs. State of Maharashtra & Ors., reported in
2010 (1) Mh.L.J. 63 and in particular paragraphs 20, 21, 26, 28 and 33
thereof.
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27. Learned counsel for the respondent no.3 adopts the
submissions made by Mr.Bandiwadekar, learned counsel for the
petitioner and submits that the petitioner was all throughout senior to the
respondent no.4. He submits that the Education Officer has no
jurisdiction to decide the issue of seniority after promotion of the
petitioner to the post of Head Master by the management.
28. Mr.Bhavake, learned counsel for the respondent no.4, the
contesting respondent invited my attention to the paragraphs 4 and 5 of
the writ petition and submits that in the said paragraphs, the petitioner
himself had relied upon the alleged resolution dated 1 st June, 1991
thereby appointing the petitioner as a assistant teacher from 19 th June,
1991 on probation. He submits that the management itself had appointed
the petitioner vide order of the appointment dated 9 th June, 1993 for a
period of one year w.e.f. 14th June, 1993 to 30th April, 1994. He submits
that if the petitioner was already appointed on probation as assistant
teacher from 19th June, 1991 as claimed by the petitioner, the
management would not have appointed the petitioner on 9th June, 1993 as
assistant teacher for a period of one year from 14th June, 1993 to 30th
April, 1994. He submits that it is thus clear that the petitioner was not
appointed on probation w.e.f. 19th June, 1991 as claimed by the petitioner.
29. Learned counsel appearing for the respondent no.4 also
placed reliance on resolution dated 1st February, 2007 alleged to have
been passed by the management purporting to condone the break of 179
days which was granted to the petitioner. He submits that even in the said
resolution, it is provided that the petitioner was appointed w.e.f. 13th June,
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1994. He submits that thus the respondent no.4 having been appointed in
the year 1992 whereas the petitioner was appointed in the year 1993, the
respondent no.4 was senior to the petitioner.
30. It is submitted by the learned counsel for the respondent no.4
that if the petitioner would have been appointed on probation in the year
1991, the petitioner could not have taken benefit of the break of the
vacation period. It is submitted that this court while granting liberty to
withdraw the writ petition filed by the respondent no.4 on 13 th August,
2014, the management as well as the petitioner herein did not oppose the
grant of liberty sought by the respondent no.4 for withdrawal of the said
writ petition (6848 of 2013). He submits that this court while granting
liberty to the petitioner to file appropriate proceedings in the said order
dated 13th August, 2014 had clarified that the appropriate forum shall
decide the issue of seniority between the petitioner and the respondent
no.3 on its own merits and in accordance with law without being
influenced by the observations as made in the impugned order passed by
the tribunal.
31. It is submitted that since there was a dispute in respect of the
seniority between the petitioner and the respondent no.4, the said
seniority dispute could be decided at the first instance by the education
officer under Rule 12 of the M.E.P.S.Rules and thus the representation
made by the respondent no.4 for deciding the seniority between the
petitioner and the respondent no.4 before the education officer was the
right and appropriate remedy exercised by the respondent no.4. He
submits that the petitioner herein or the management did not raise any
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issue before the education officer contending that the education officer
had no jurisdiction to decide the seniority issue on the ground that the
petitioner herein was already promoted to the post of headmaster when
such representation was made by the respondent no.4.
32. It is submitted by the learned counsel for the respondent no.4
that the petitioner had come to this court with a false case that he was
appointed in the year 1991. He submits that the appointment order
purported to have been issued by the management in favour of the
petitioner in the year 1991 was ex-facie fabricated.
33. Insofar as judgment relied upon by the learned counsel for
the petitioner is concerned, it is submitted that the management in this
case in any event could not have condoned the break after several years.
He submits that it is however his case that his client was appointed
earlier in point of time then the appointment of the petitioner and thus this
court shall not interfere with the order passed by the education officer.
34. Mr.Bandiwadekar, learned counsel for the petitioner in
rejoinder reiterates the submission that for the purpose of promotion and
computation of seniority, the date of initial appointment of the teacher is
relevant and not the date on which his appointment was approved by the
education officer. He submits that the appointment of the petitioner made
by the management in the year 1990 and in the year 1991 had not been
challenged by the respondent no.4 in any proceedings till date. He
submits that since the petitioner was in continuous service since the date
of initial appointment, the seniority of the petitioner has to be considered
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on the basis of the date of his appointment. He submits that in any event
since the education officer had already granted approval to the
appointment of the petitioner in respect of the appointment made atleast
in the year 1991, the education officer could not have been granted
approval to the petitioner subsequently w.e.f. 13th June, 1994 for one year.
He submits that the order passed by the education officer is ex-facie
without application of mind and contrary to law laid down by this court.
35. It is submitted that the approval granted by the education
officer for the appointment of the petitioner made in the year 1991 and
1993 are on record. The education officer could not have been ignored
the earlier approval already granted to the petitioner. The learned counsel
for the petitioner placed reliance on the proposal submitted by the
management vide their letter dated 19th March, 2012 to the education
officer for the appointment of the petitioner made in the post of assistant
teacher on probation. He submits that allegations made across the bar by
the respondent that appointment of the petitioner in the year 1990 or 1991
is fabricated is totally baseless.
REASONS AND CONCLUSIONS:-
36. It is not in dispute that by an order dated 13 th August, 2014
passed by this court in the said Writ Petition No. 6848 of 2013, the order
passed by the learned Presiding Officer, School Tribunal, Kolhapur
allowing the appeal filed by the respondent no.4 is not set aside. The
appointment of the respondent no.4 to the post of headmaster w.e.f. 1 st
February, 2012 is also not set aside. The question that arises for
consideration of this court is (i) whether the education officer could have
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determined the seniority dispute raised by the respondent no.4 though the
petitioner herein admittedly was already acting as headmaster since 1 st
February, 2012, (ii) whether the education officer could have considered
the date of approval to the appointment of the petitioner for the purpose
of computing the seniority or ought to have considered the date of
appointment of the petitioner i.e. 13th June, 1990 or 19th June, 1991, (iii)
whether the education officer could have directed the management to
submit a proposal of the respondent no.4 for approval for the post of
headmaster under any of the provisions of MEPS Act.
37.
It is not in dispute that the respondent no.4 herein had made
representation to the education officer after this court passed the said
order dated 13th August, 2014 in Writ Petition No.6848 of 2013. The
petitioner as well as the management appeared before the education
officer. The education officer passed the impugned order holding that the
respondent no.4 was senior to the petitioner herein and directed the
management to submit proposal of the respondent no.4 as headmaster of
the respondent no.2 school. The education officer passed the said order
on the premise that the seniority of the petitioner shall be considered on
the basis that the education officer vide order dated 28 th November, 1994
had granted approval to the appointment of the petitioner on probation
showing the date of appointment on 13th June, 1994.
38. In my view since the petitioner was already promoted to the
post of headmaster by the management vide an order dated 26 th January,
2012 w.e.f. 1st February, 2012 and the petitioner had already taken charge
of the headmaster of the school and since then he has been performing his
duties as headmaster, the education officer did not have jurisdiction to
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determine the alleged seniority dispute under Rule 12 of the MEPS Rules.
This court in case of Bhagwant Sheshrao Borale (supra) after adverting
the judgment of this court in case of Umesh B.Vispute vs. State of
Maharashtra and others 2000 (4) Mh.L.J. 564 has held that once the
promotion is granted and the appointment is made, the question of
seniority has to be decided by the school tribunal and the education
officer will have no jurisdiction to fix the seniority and to demote a
person already promoted. This court in case of Vidyalata Nilkanth Patil
(supra) has after adverting the several judgments of this court including
the judgment in case of Bhagwant Sheshrao Bolare (supra) has held that
the education officer could not have determined the seniority under Rule
12 of the MEPS Rules in view of the teacher already having been
promoted to the post of headmistress. This court held that the said
decision of the education officer was totally without jurisdiction and was
illegal. This court accordingly in the said judgment has set aside the
order passed by the education officer determining the seniority under rule
12 of the MPES Rules after the petitioner in that case had already
promoted to the post of headmaster. The judgments referred to aforesaid
squarely apply to the facts of this case. I am respectfully bound by the
aforesaid judgments. In my view the impugned order passed by the
education officer holding that the respondent no.4 was senior to the
petitioner though the petitioner was already promoted to the said post of
headmaster as far back as on 1st February, 2012 is totally without
jurisdiction and is illegal.
39. In my view the directions issued by the learned education
officer to the management to submit the proposal of the respondent no.4
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as the headmaster of the school of the respondent no.2 while determining
the seniority of the respondent no.4 is also without jurisdiction and
contrary to the provisions of MEPS Act and the MEPS rules. In my view
no such direction could have been issued by the education officer to the
management to submit the proposal of the respondent no.4 as headmaster.
The appointment of the headmaster has to be made by the management
and not by the education officer.
40. I shall now consider the issue whether the learned education
officer could have considered the date of approval granted by the
education officer to the appointment of the petitioner and not the date of
his appointment for the purpose of computation of seniority is valid or
illegal.
41. It was the case of the management that the date of initial
appointment of the petitioner was 13th June, 1990 and since then the
petitioner had been working uninterruptedly without any break in service.
However since the respondent no.2 was not receiving any grant-in-aid at
the relevant time when the petitioner was appointed as an assistant
teacher on 13th June, 1990, the management did not seek any approval to
the said appointment of the petitioner and also other employees who were
employed at the relevant time by sending proposal to the education
officer. The management however subsequently passed a resolution on 1st
June, 1991 and appointed the petitioner as an assistant teacher on 19th
June, 1991 on probation. The education officer by an order dated 30th
March, 1993 had granted approval to the appointment of the petitioner as
assistant teacher w.e.f. 19th June, 1991. The education officer however
ppn 21 wp-826.15 (j).doc
passed another order on 12th March, 1994 granting approval to the
appointment of the petitioner for the academic year 1993-94 on probation
basis. In my view, the education officer could not have changed the date
of appointment shown in the record of the management while granting
approval to the appointment of the teachers appointed by the
management.
42. The post of the headmaster in the respondent no.2 school fell
vacant in view of the superannuation of Mr.P.B.Gaikwad on 31 st January,
2012. The management having found the petitioner as a senior most
teacher in the respondent no.2 school, eligible and qualified to the said
post of the headmaster, passed a resolution in the meeting held on 24 th
February, 2012 and appointed the petitioner to the said post of headmaster
w.e.f. 1st February, 2012. The education officer however allegedly
informed the management that as approval to the appointment of the
respondent no.4 was from 14th June, 1993 and since the approval to the
appointment of the petitioner was 13th June, 1994, the respondent was
senior to the petitioner and thus the approval to the appointment of the
petitioner as headmaster could not be granted. The management
thereafter issued an order on 7th May, 2012 based on the order passed by
the education officer and reverted the petitioner to the post of the assistant
teacher w.e.f. 7th May, 2012. The school tribunal has already set aside the
said order dated 7th May, 2012 by the management by a judgment and
order dated 7th May, 2013.
43. A perusal of the record clearly indicates that the petitioner
had been paid salary even for the vacation period since the date of his
ppn 22 wp-826.15 (j).doc
appointment as assistant teacher and was condoned the artificial break
granted by the management. The management has confirmed this fact in
their affidavit in reply filed in this petition. My attention is also invited to
the resolution passed by the management to this effect which is forming
part of the record of the proceedings. Under Rule 13 of the MEPS Rules,
1981, all the employees and the teaching staff including the headmasters,
laboratory assistants and laboratory attendants in a school are entitled to
vacations mentioned therein. Non-permanent employees are entitled to
the salary for the period of vacation if they had served for a major part of
respective term and the temporary vacancy such as vacancy on account of
leave, deputation or post created for a specific period, in which they were
originally appointed continue to exist beyond the period of vacation and
that the employees continue to be in service after the vacation.
44. Admittedly the petitioner in this case was paid salary for the
vacation period and the post on which the petitioner was appointed as an
assistant teacher continued to exist beyond the period of vacation. There
was thus continuity of the service of the petitioner since the date of his
appointment as assistant teacher till he was promoted to the post of
headmaster and even thereafter. This court in case of Sumangala
Manoharrao Sakharkar (supra) has considered this issue in detail. This
court considered the fact that the management had resolved to condone
the break granted during the summer vacation and held that the employee
does not perform his duty simply because the institution is closed in
vacation and thus the vacation is not a break. This court interpreted Rule
13 of the MEPS Rules and has held that the vacation cannot be treated as
a break in service for the reason that the school being closed for vacations
ppn 23 wp-826.15 (j).doc
the employee would have continued, and secondly as the employee is
held entitled under Rule 13 to the salary for the said period and had
actually drawn that salary. It is held that the termination at the
commencement of vacation and reappointment on reopening of the
school could not at all be termed as a break.
45. The Division Bench of this court in case of Anjali Jayant
Khati (supra) has interpreted Rule 13(3) of the MEPS Rules and has held
that even during the vacation, an employee is deemed to be on duty
though the termination order may have been issued. It is held that if an
employee is deemed to be on duty there is no reason why the period of
summer vacation should not be calculated to treat the employee's service
as continuous. Even during the vacation period, it must be assumed for all
purposes that he was on duty and was discharging his duties during that
period. It is held that whenever such salary is paid, the said person must
be deemed to be on duty continuous and his services must be deemed to
be continuous and without any break. The judgment of Division Bench
of this court in case of Anjali Jayant Khati (supra) and judgment of this
court in case of Sumangala Manoharrao Sakharkar (supra) squarely
apply to the facts of this case. I am respectfully bound by the said
judgments.
46. In my view, even if the petitioner was granted artificial
break initially, in view of the vacation, since the said post on which the
petitioner was appointed continuous to exist and the management has
condoned the break and has paid salary to the petitioner even for the
vacation period, the appointment of the petitioner was deemed to have
ppn 24 wp-826.15 (j).doc
been continued without any break. The date of the initial appointment of
the petitioner as assistant teacher thus ought to have been considered for
the purpose of computing the seniority and promotion. In this case the
petitioner was admittedly appointed as assistant teacher on the permanent
post w.e.f. 19th June, 1991 on probation and thus atleast the said date
ought to have been considered for the purpose of seniority and promotion.
47. The Division Bench in case of Anjali Jayant Khati (supra)
has considered the issue at length as to whether the services of an
employee could be said to be continuous from his initial date of
appointment or could be said to be continuous as mentioned by the
education officer in the seniority list as prepared by him. This court has
held that although the appointment of the employee may be temporary,
the fact remains that he was appointed against the vacant post and
therefore when he was confirmed, his confirmation relates back to the
date of initial appointment. It is held by the Division Bench that once the
management had sent a seniority list prepared on the basis of the date of
the initial appointment of the teacher, the education officer has no right to
change the date unless he has had some other material before him to do
so. It is held by the Division Bench that for the purpose of reckoning the
seniority of the employee, their initial dates of appointment as mentioned
in the petitions should be taken into account. In my view the judgment of
Division Bench of this court in case of Anjali Jayant Khati (supra)
squarely applies to the facts of this case.
48. In my view, the impugned order passed by the Education
officer holding that the respondent no.4 was senior to the petitioner on the
ppn 25 wp-826.15 (j).doc
basis of the date of approval dated 28 th November, 1994 granted to the
appointment of the petitioner on probation which was later than the date
of approval granted to the respondent no.4 i.e. w.e.f. 14 th June, 1993 is
totally perverse, without application of mind and contrary to the
provisions of MEPS Act and Rules and also the law laid down by this
court in case of Anjali Jayant Khati (supra) and thus deserves to be set
aside on that ground also. The education officer cannot change the date
of appointment shown by the management in the seniority list for the
purpose of computing the seniority of the employee. The approval once
granted by the education officer relates back to the date of original
appointment.
49. Insofar as submission of Mr.Bhavake, learned counsel for
the respondent no.4 that the petitioner was not appointed on probation
w.e.f. 19th June, 1991 since the management had appointed the petitioner
vide appointment letter dated 19th June, 1993 for a period of one year
w.e.f. 14th June, 1993 to 30th April, 1994 is concerned, a perusal of the
record clearly indicates that it was an undisputed position that the
petitioner was already appointed as assistant teacher from 19th June, 1991.
The management has reaffirmed this position by filing affidavit also in
this court. The appointment of the petitioner was also approved by the
education officer to the post of the assistant teacher on 30th March, 1993
with effect from 19th June, 1991. There is thus no merit in this
submission of the learned counsel for the respondent no.4.
50. Insofar as submission of the learned counsel for the
petitioner that in resolution dated 1st February, 2007 passed by the
management purporting to condone the break of 179 days to the
ppn 26 wp-826.15 (j).doc
petitioner and in the said resolution it was provided that the petitioner
was appointed w.e.f. 13th June, 1994 and thus it could not be canvassed by
the petitioner that he was appointed in the year 1991 is concerned, there is
no merit in this submission of the learned counsel for the petitioner. The
petitioner had produced sufficient proof in this regard before the school
tribunal in the appeal which was filed by the appellant which appeal was
allowed by the school tribunal and also for perusal of this court. The
management has also confirmed before the school tribunal as well as
before this court that the appointment of the petitioner was made on
probation w.e.f. 19th June, 1991.
51. Insofar as submission of the learned counsel for the
petitioner that when the petitioner filed representation before the
education officer for determination of seniority after this court granted
liberty to the petitioner to avail of appropriate remedy is concerned no
objection was raised by the petitioner is concerned, even if the petitioner
did not raise any objection before the education officer not to determine
the seniority in view of the petitioner already having been promoted to
the post of headmaster and the said appointment was in place, the same
would not confer any jurisdiction upon the education officer to decide the
seniority issue though the petitioner was already promoted to the post of
headmaster. This court in case of Vidyalata Nilkanth Patil (supra) has
held that since the education officer had no jurisdiction to determine the
seniority after promotion of the employee already having been made,
even if an objection is not raised by the employee before the education
officer not to determine the seniority between him and another employee,
the same would not confer any jurisdiction in the education officer to
ppn 27 wp-826.15 (j).doc
adjudicate upon the seniority after promotion to the post was already
made.
52. The judgment of this court in case of Vidyalata Nilkanth
Patil (supra) squarely applies to the facts of this case. I am respectfully
bound by the said judgment. In my view the impugned order passed by
the education officer was totally without jurisdiction. Be that as it may,
the impugned order holding that the respondent no.4 was senior to the
petitioner on the basis of the date of approval granted by the education
officer and not on the basis of the date of initial appointment is ex-facie
perverse and illegal, the same deserves to be set aside. In my view the
petitioner being senior most teacher and being qualified and eligible
was rightly promoted as headmaster by the respondent no.3 w.e.f. 1 st
February, 2012.
53. I therefore pass the following order :-
(a) Writ petition is made absolute in terms of prayer clauses (b) & (c).
(b) The education officer is directed to grant approval to the promotion
of the petitioner to the post of headmaster within four weeks from
the date of submission of the proposal by the management to the
education officer with effect from the date of his appointment as
1st February, 2012 as headmaster.
(c) The management shall apply for approval of the appointment of the
petitioner to the post of headmaster after two weeks from today.
(d) Rule is made absolute in the aforesaid terms.
(e) No order as to costs.
(f) The parties to act on the authenticated copy of this order.
R.D. DHANUKA, J.
