Bombay High Court
Sayyad Yousuf Sayyad Moosa vs The State Of Mah And Ors on 26 October, 2016
Bench: P.R. Bora
1 WP NOS.6794/2012 & 7246/2012
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6794 OF 2012
Sayyad Yousuf S/o. Sayyad Moosa,
Age:45 years, Occ: Service,
R/o. Nazir building, Near Balgir Math,
Gadipura, Nanded.
...PETITIONER
VERSUS
1. The State of Maharashtra,
through the Secretary,
Secondary Education Department,
Mantralaya, Mumbai, and
Education Officer Secondary,
Zilla Parishad, Nanded,
2. Ardhapur Education Society,
Darga Mohalla, Ardhapur,
through it's Secretary,
Mirza Akhtarulla Beig,
S/o. Sadulla Beig,
Age:52 years, Occ: Business,
R/o. Mali Galli, Ardhapur,
Dist. Nanded.
3. Abdul Jalil S/o. Mohammad Ismail,
Age:45 years, Occ: Service in Dr Iqbal,
Urdu Model School, Ardhapur,
Dist. Nanded.
4. Sayyed Shamshuddin S/o.
Sayyed Kasim Ali,
Age:62 years, Occ.: Legal Practice &
The Secreatry of R-2,
R/o. Ardhapur, Dist. Nanded (Intervenor)
(Added as per Courts order dated 6/9/2012.)
...RESPONDENTS
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2 WP NOS.6794/2012 & 7246/2012
WITH
WRIT PETITION NO. 7246 OF 2012
Gulam Qutubjani s/o. Gulam Jilani
Age:55 years, Occu.: Business &
President of Executive Body of
Ardhapur Education Society,
R/o. Quba Colony, Ardhapur,
Tq. Ardhapur, Dist. Nanded
...PETITIONER
VERSUS
1. State of Maharashtra
Through its Secretary,
Secondary Education
Department Mantralaya,
Mumbai
2. Education Officer (Secondary),
Zilla Parishad, Nanded
3. Abdul Jalil Md. Ismail
Age:43 years, Occu.: Service,
R/o. Dr. Iqbal Urdu Model School,
Ardhapur, Tq. Ardhapur,
Dist. Nanded
4. Sayyad Yusuf Sayyad Musa
Age:35 years, Occu.: Headmaster,
Dr. Iqbal Urdu Model School,
Ardhapur,
R/o. Nazir Building, Near Balgir Math
Gadipura, Nanded Tq. & Dist. Nanded
5. Syyed Shamshuddin S/o. Syyed Kasim Ali,
Age: 62 years, Occu.: Legal Practitioner &
the Secretary of R-2
R/o. Ardhapur, Dist. Nanded
(Intervenor added as Resp.Nos.5 as
per order dt.27/09/2012 passed in
C.A. No.11013 of 2012)
...RESPONDENTS
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3 WP NOS.6794/2012 & 7246/2012
Mr. R.R. Mantri, Advocate for Petitioner in W.P. No.
6794 of 2012.
Mr. H.I. Pathan, Advocate for Petitioner in W.P.
No.7246 of 2012.
Mr. D.J. Choudhary with Mr. B.B. Bhise, Advocate h/f.
Mr. Abhijeet Choudhary, Advocate for Applicant in
C.A.No. 9637 of 2014.
Mr. P.G. Borade & Mr. S.W. Munde, AGP's for State.
Mr. Ajay Deshpande, Advocate for Respondent Nos. 2
& 4 in W.P. No.6794 of 2012 & for Respondent No. 5
in W.P. No. 7246 of 2012.
Mr. Rajendra Deshmukh with Mr. Amol Joshi,
Advocates for Respondent No. 3 in both W.P's.
...
ig CORAM: P.R.BORA, J.
...
Date of reserving the judgment: 17/06/2016
Date of pronouncing the judgment: 26/10/2016
...
JUDGMENT:
1. Heard. Rule. Rule made returnable and heard
forthwith with the consent of the learned Counsel for the
parties.
2. Writ Petition No.6794/2012 is filed against the
judgment and order dated 4th of August, 2012, passed by
the School Tribunal at Latur in Appeal No.14 of 2011.
Petitioner was respondent no.3 in the Appeal before the
School Tribunal. The aforesaid appeal was filed by present
4 WP NOS.6794/2012 & 7246/2012
respondent no.3 challenging promotion of the present
petitioner on the post of Headmaster with a consequential
relief to promote him on the post of Headmaster from
1.1.2003 by setting aside the promotion of the present
appellant as Headmaster.
3. It was the contention of the present respondent
no.3 in the aforesaid appeal that the present appellant was
junior to him and could not have been appointed on the
post of Headmaster, superseding his claim. As against it,
it was the contention of the present petitioner before the
School Tribunal that the appeal filed by respondent no.3
was hopelessly barred by limitation and was not
entertainable. According to the petitioner, he was
appointed on the post of Headmaster w.e.f. 1.1.2003 but
till 2011, respondent no.3 did not raise any challenge to
his appointment. According to the petitioner, even
otherwise, respondent no.3 was not eligible to be
appointed as the Headmaster since he was not holding the
requisite qualification for such appointment. The School
Tribunal, however, has allowed the appeal filed by
respondent no.3 and vide the impugned order has directed
5 WP NOS.6794/2012 & 7246/2012
the school management to appoint respondent no.3 on the
post of Headmaster of the School w.e.f. 1.1.2003.
Aggrieved thereby, the petitioner has filed the present
petition.
4. Challenging the same order passed by the
School Tribunal in Appeal No.14/2011, the School
Management through its President has filed Writ Petition
No.7246 of 2012. In view of the fact that exhaustive
arguments were heard in Writ Petition No.6794/2012,
majority facts and the arguments are referred to of the
said matter, and parties are referred to in accordance with
their status in the said writ petition.
5. Before adverting to the legal issues raised in the
petition, it is necessary to note down the facts of the case
in brief which are thus:
Petitioner possesses the qualification as B.A., B.Ed.
He was appointed as Assistant Teacher in the secondary
school run by respondent no.2 Education society w.e.f.
1.2.1993 and since then is in continuous employment of
respondent no.2. Respondent no.3 possesses the
6 WP NOS.6794/2012 & 7246/2012
qualification as B.Com., B.P.Ed. and was initially appointed
in the school run by respondent no.2 w.e.f. 11.6.1990 for
a short period and was re-appointed w.e.f. 15.7.1991.
His appointment was specifically for the Standards Vth to
VIIth. As per the averments in the petition, the seniority
lists were time to time published wherein respondent no.3
was shown junior to the petitioner. As further averred in
the petition, respondent no.3 did not raise any grievance
in respect of the seniority lists so published. Shri Abdul
Rauf was appointed as Headmaster in the year 1998 and
he worked on the said post till the year 2002.
Respondent no.3 though had joined the services prior to
said Shri Abdul Rauf, did not make any grievance against
the appointment made of said Shri Abdul Rauf on the post
of Headmaster. With effect from 1.1.2003, the petitioner
was appointed as Headmaster and his appointment was
duly approved by the Education Department.
Respondent no.3, however, did not raise any challenge to
the appointment of the petitioner. Respondent no.3 also
did not challenge the approval granted by the Education
Officer to the appointment of the petitioner on the post of
Headmaster.
7 WP NOS.6794/2012 & 7246/2012
6. In the year 2008, the School management
terminated the services of the petitioner. According to the
petitioner, his services were illegally terminated with a
oblique motive to appoint respondent no.3 on his post who
is the nephew of the then Secretary of the school
management. The termination was challenged by the
petitioner by filing an appeal before the School Tribunal
which set aside the termination and directed reinstatement
of the petitioner. The order passed by the School
Tribunal was challenged by the school management before
the High Court and the interim stay was also sought by the
school management. The High Court, however, refused
to grant interim relief. The refusal of the interim relief
was challenged by the School management in the
Honourable Apex Court, however, the Apex Court did not
grant any relief. Despite, the School management did not
get the petitioner joined. The petitioner, therefore, filed
a contempt petition and only thereafter the petitioner was
reinstated.
8 WP NOS.6794/2012 & 7246/2012
7. In the meanwhile, the School management
published the seniority list showing respondent no.3 as the
seniormost employee in the teaching staff. Respondent
no.3, thereafter, filed Writ Petition bearing No.1040/2010
before the High Court seeking direction to decide the
dispute about the seniority. In the aforesaid writ
petition, a direction was issued by this Court to the
Education Officer to decide the seniority of the petitioner
and respondent no.3. The Education Officer vide its
order dated 25.5.2010 held that the petitioner was senior
to respondent no.3. Respondent no.3 challenged the
said order passed by the Education Officer by filing Writ
Petition No.5619/2010. The High Court disposed of the
aforesaid petition vide order passed on 28th February,
2011, granting liberty to respondent no.3 to challenge his
supersession before the School Tribunal. Respondent
no.3, thereafter, filed an appeal before the School Tribunal
at Latur, bearing Appeal No.14/2011. As stated
hereinabove, the School Tribunal, Latur, allowed the
appeal filed by respondent no.3 vide the impugned order.
9 WP NOS.6794/2012 & 7246/2012
8. The Writ Petition No.6794/2012 was filed on
13th of August, 2012. On 16th August, 2012, this Court
has passed an order thereby directing the parties to
maintain status quo as on the said date. During the
course of the arguments, it was informed by the parties
that, in view of the order so passed by this Court, the
petitioner continued to work on the post of Headmaster.
9. The petitioner has challenged the judgment and
order passed by the School Tribunal on various grounds.
Shri Mantri, learned Counsel appearing for the petitioner,
submitted that the Tribunal was not having any jurisdiction
to entertain the appeal in respect of the dispute of
seniority. Learned Counsel further contended that the
Tribunal has failed in considering the fact that respondent
no.3 was appointed specifically in the Primary Section as a
Graduate Teacher and not as a Trained Graduate Teacher
and he was all along posted in the Primary Section and
was not even eligible to be appointed as Assistant Teacher
and, consequently, was not eligible to be appointed on the
post of Headmaster. Learned Counsel further submitted
that the School Tribunal had failed in appreciating that
10 WP NOS.6794/2012 & 7246/2012
cause of action for raising a dispute by respondent no.3
had in fact had arisen in the year 1998 when Abdul Rauf
was promoted to the post of Headmaster, however,
admittedly, respondent no.3 did not make any grievance
at that time. Learned Counsel further submitted that
thereafter the petitioner was appointed on the post of
Headmaster w.e.f. 1.1.2003 and his appointment was also
duly approved by the Education Department. Learned
Counsel submitted that up till seven years thereafter,
respondent no.3 kept quiet and did not make any
grievance against the appointment made of the petitioner
on the post of Headmaster. Learned Counsel submitted
that the Tribunal must have considered the aforesaid facts.
Learned Counsel further submitted that by remaining silent
for long seven years after the appointment of the
petitioner on the post of Headmaster, respondent no.3 has
impliedly waived his right to be appointed to the said post
and / or has acquiesced for the said appointment.
According to the learned counsel, in the aforesaid
circumstances, only on the point of delay, the Tribunal
must have rejected the appeal filed by respondent no.3.
Learned counsel further submitted that the Tribunal has
11 WP NOS.6794/2012 & 7246/2012
grossly erred in arriving at a conclusion that respondent
no.3 was consistently making the grievance as about his
seniority and that he has time to time submitted the
representations in the period 1992 to 2011. Learned
Counsel further submitted that the Tribunal has also erred
in observing that the seniority lists which were published
from 2000 to 2009-2010 were not in accordance with the
M.E.P.S. Rules since the same were published under the
signature of the Headmaster and not by the respondent
management. Learned Counsel further submitted that
the Tribunal has also erred in not appreciating that
seniority lists published in the year 2000-2001 to 2009-
2010 were duly signed by respondent no.3 and as such, he
was quite aware at which place he was placed in the ladder
of seniority. Learned Counsel submitted that since
respondent no.3 did not raise any dispute about the
seniority lists so published, is estopped from raising any
dispute after long ten years. Learned Counsel further
submitted that the Tribunal has also failed in not
considering the fact that Shri Sayyad Shamsuddin Sayyad
Kasim, who was the Secretary at the relevant time is the
real maternal uncle of respondent no.3 and he helped
12 WP NOS.6794/2012 & 7246/2012
respondent no.3 to create a concocted record. Learned
counsel further submitted that the Tribunal also did not
appreciate that the general rules of seniority could not
have been applied to the appointments and promotions in
the minority institution. In support of the contention so
raised, learned Counsel for the petitioner relied upon
certain judgments, which are referred in the further
discussion.
10. Shri Rajendra S.Deshmukh, learned Counsel
appearing for respondent no.3, resisted the submissions
advanced on behalf of the petitioner. Learned Counsel
supported the impugned judgment. Learned Counsel
submitted that the School Tribunal is competent to
entertain the dispute as regards to the seniority also.
Learned Counsel further submitted that the copies of the
representations submitted by respondent no.3 are placed
on record. Learned Counsel submitted that all these
applications bear the endorsement of the Secretary of the
School management evidencing receipt of the said
representations. Learned Counsel further submitted that
mere delay in raising a dispute cannot defeat the right
13 WP NOS.6794/2012 & 7246/2012
which accrued in favour of respondent no.3. Learned
Counsel further submitted that no period of limitation is
prescribed for preferring an appeal in the matter of
supersession. Learned Counsel further submitted that the
Tribunal has rightly considered the issues and has passed
the well reasoned order. Learned Counsel submitted that
respondent no.3 possesses the required qualification to be
appointed as an Assistant Teacher as well as to be
promoted to the post of Headmaster. Learned Counsel
submitted that respondent no.3 was a Trained Graduate
Teacher since his inception in service. Learned Counsel
further submitted that respondent no.3 is well versed with
the Urdu language and his S.S.C. certificate evinces the
said fact. Learned Counsel further submitted that Gulam
Kutubjani Gulam Gilani who has filed Writ Petition
No.7246/2012 has no authority to file such petition.
Learned Counsel, in support of his contentions, has relied
upon the following judgments which referred to at the
appropriate place.
11. Shri Deshpande, learned Counsel appearing for
respondent no.4, adopted the argument advanced by Shri
14 WP NOS.6794/2012 & 7246/2012
R.S.Deshmukh, learned Counsel for respondent no.3.
12. Shri H.I.Pathan, learned Counsel appearing for
respondent no.2 supported the case of the petitioner.
Learned Counsel submitted that the appointment made of
the petitioner on the post of Headmaster w.e.f. 1.1.2003,
was not liable to be challenged in an appeal before the
School Tribunal adhering to the general rules of seniority
considering the fact that respondent no.2 is a minority
institution. Learned Counsel placed on record the circular
issued by the Government of Maharashtra on 21st of
September, 1982, to urge that, reading of Section 3(2) of
the M.E.P.S.Act shows that the Act does not apply to the
recruitment, etc. of the head of the minority school and it
is not necessary that his name should be notified by the
management to the Deputy Director. Learned Counsel
further submitted that since respondent no.3 has taken all
his education in Marathi Medium was, in fact, not eligible
to be appointed as an Assistant Teacher in respondent
no.2 school. Learned Counsel relied upon the judgment
of the Division Bench of this Court in Writ Petition
No.5180/2000 and in Writ Petition No.6073/2005,
15 WP NOS.6794/2012 & 7246/2012
delivered on 22.9.2005. Learned Counsel prayed for
quashment of the judgment of the School Tribunal.
13. I have carefully considered the submissions
advanced by the learned Counsel for the respective
parties. I have also perused the impugned judgment and
the other material placed on record by the parties. I
deem it appropriate to deal with the objections raised in
exception to the impugned judgment in the same
chronology as they are raised.
14. As noted hereinabove, the first objection which
has been raised on behalf of the petitioner is that
respondent no.3 was not eligible to be appointed even as
an Assistant Teacher since he was not holding the requisite
qualification i.e. degree of B.Ed. and was holding a degree
of B.P.Ed. However, I do not see any substance in the
objection so raised. As held by Division Bench of this
Court, in the case of Laxman Khanderao Ekhande vs
The State Of Maharashtra ( 2007 (1) Mh.L.J. 860),
there can be no discrimination between the Graduate
Teachers with the B.Ed. qualification and the Graduate
16 WP NOS.6794/2012 & 7246/2012
Teachers with B.P.Ed. qualification for any purpose.
15. The another objection raised by the petitioner
that the School Tribunal was not having jurisdiction to
entertain the dispute of seniority also does not hold any
water in view of the judgment of this Court in the case of
U.B.Vispute Vs. State of Maharashtra ( (2001) 1
Mh.L.J. 486).
ig As held by this Court in the aforesaid
judgment, the dispute relating to seniority list can also be
considered by the Tribunal as an incidental question while
deciding the issue of supersession.
16. The objection raised by the present respondent
no.2 i.e. the present School management, that the
appointment of respondent no.3 itself was illegal in the
Urdu school run by it since respondent no.3 has completed
his education through Marathi medium and he does not
have any knowledge or he is not conversant with Urdu
language also does not deserve any consideration in view
of the material placed on record by respondent no.3
showing that he was well versed with the Urdu language
and that Urdu language was his special subject for the
17 WP NOS.6794/2012 & 7246/2012
examination of S.S.C. Further, though respondent no.3 is
serving as an Assistant Teacher in respondent no.2 school
since last several years, no such objection is ever raised
that he is incapable of teaching the subjects allotted to him
in Urdu. The School Management is thus estopped from
raising any objection that respondent no.3 does not have
due qualification to teach in Urdu school.
17. The further objection that as because the
appointment of respondent no.3 since beginning was in
Primary Section of the school to teach the students to 5th
to 7th Standards, and as the order of appointment issued
in favour of respondent no.3 categorically reflects the said
fact, and therefore he cannot be said to be eligible to be
appointed as the Headmaster of the secondary school as
he does not have any requisite experience to teach in the
secondary school also has not impressed me much.
Dr.Iqbal Urdu Model High School is, admittedly, a
secondary school having 5th to 10th Standards.
Considering the definition of the `Secondary School' as
provided in the Secondary Schools Code, 5th to 7th
Standards also form part of Secondary School.
18 WP NOS.6794/2012 & 7246/2012
18. The further two grounds raised by the
petitioners in both the writ petitions, however, certainly,
deserve to be considered; one is about the delay
committed by respondent no.3 in challenging the
appointment of the petitioner, and the other is right of the
minority institution as enumerated in Section 3(2) of the
M.E.P.S.Act, to appoint a person of their choice on the post
of Headmaster of the school and the bar provided to
challenge such orders.
19. Respondent No.3 had filed an appeal under
Section 9(1)(b) of the M.E.P.S.Act, 1977 before the School
Tribunal at Latur alleging that the school management had
illegally appointed the present petitioner on the post of
headmaster of Dr.Iqbal Urdu Model High School,.
Ardhapur, superseding his claim to the said post The
contents of Appeal No.14/2011 so filed by respondent no.3
reveal that respondent no.3 has been making written
representations start from 15.7.1992 and onwards,
requesting the school management to take steps so as to
maintain proper seniority list in accordance with the
19 WP NOS.6794/2012 & 7246/2012
provisions of law so that his claim of seniority and
promotion is not affected. From the plea so raised by
respondent no.3 in appeal filed by him before the School
Tribunal, it is quite evident that since 1992, it was the
grievance of respondent no.3 that seniority list has not
been properly maintained by the school management and
that because of such improper maintenance of the
seniority list, his chances of promotion were likely to be
affected.
20. Respondent no.3 along with his reply to the
present petition has annexed copies of the representations
allegedly submitted by him to the school management
time to time. Though there is a serious dispute about the
fact whether, in fact, such representations were sent by
respondent no.3 or such concocted record is subsequently
prepared by respondent no.3; assuming that such
representations were, in fact, submitted by respondent
no.3, from such representations of which the
representation allegedly submitted by respondent no.3 on
8.11.1992 reveals that respondent no.3 had requested for
his appointment to the post of Headmaster. When such
20 WP NOS.6794/2012 & 7246/2012
application was made by respondent no.3, it is obvious
that he was claiming himself to be the seniormost teacher
in the school. The question arises, when respondent no.3
became aware of the fact that in the seniority lists
maintained by the school management, his seniority has
not been properly maintained, what action was taken by
him to redress his said grievance. Rule 12 of the
M.E.P.S.Rules relates to maintenance of seniority lists of
the teaching staff, including Headmaster and Assistant
Headmaster and non teaching staff in the school in
accordance with the guidelines in Schedule F of the said
Rules. Sub-clause (2) of Rule 12 provides that the
objection, if any, to the seniority list or changes therein
shall be duly taken into consideration by the management.
Sub-clause (3) of the said Rule prescribes that disputes, if
any, in the matter of inter se seniority shall be referred to
the Education Officer for his decision. At the relevant
time, respondent no.4 in the present writ petition, namely,
Mr. Sayyad Shamsuddin Sayyad Kasim was the Secretary
of the school management. All the representations,
allegedly submitted by respondent no.3, raising dispute
about or making complaints about improper maintenance
21 WP NOS.6794/2012 & 7246/2012
of the seniority lists are shown to have been received by
said respondent no.4. The further question arises as to
what action was taken by respondent no.4 on the
objections so received to him from respondent no.3 about
the seniority lists. The question also arises as to what
action was taken by respondent no.3 when, admittedly, no
action was taken on the said representations for years
together.
21. It is true that no limitation is provided for
filing an appeal by an aggrieved person under Section 9(1)
(b) of the Act as is prescribed for filing the appeals from
the order of dismissal, removal, otherwise termination of
service or reduction in rank, as the case may be.
However, in no case it can be accepted that since no
limitation is provided, an appeal by an employee, who
claims to be superceded by the management while making
any appointment to a post by promotion, can file an appeal
after a huge delay of years together without providing any
just and sufficient explanation therefor. There are catena
of judgments delivered by the Honourable Apex Court as
well as by different High Courts holding that if a Statute
22 WP NOS.6794/2012 & 7246/2012
does not prescribe time limit for exercise of revisional or
appellate powers, it must be exercised within a reasonable
time frame. In the instant matter, the material on record
reveals that respondent no.3 claims himself to be a
seniormost teacher in Dr.Iqbal Urdu Model High School,
Ardhapur. It is also the matter of record that through
one Shri Abdul Rauf Abdul Latif, who joined the services on
15.6.1992 i.e. after respondent no.3 had joined the
services, respondent no.3 did not raise any objection or
take any step to challenge the order whereby said Abdul
Rauf was promoted to the post of Headmaster in the year
1998. Said Abdul Rauf worked on the said post of
Headmaster from the year 1998 to 2002. In whole of the
said period, respondent no.3 did not raise any objection or
lodge any protest against the appointment so made or
seek cancellation of the promotion so made with
consequent relief for his appointment to the said post. It
is also the matter of record that the present petitioner
came to be appointed on the post of Headmaster w.e.f.
1.1.2003. However, respondent no.3 challenged the
promotion so given to the present petitioner only in the
year 2011 by filing an appeal before the School Tribunal
23 WP NOS.6794/2012 & 7246/2012
bearing Appeal No.14/2011.
22. In the aforesaid appeal filed by respondent
no.3, it is the contention of respondent no.3 in para 8 of
the said appeal that though he had raised objection since
beginning i.e. since the year 1992, however, cause of
action cannot be said to have arisen until fixation of the
seniority list which was done by the management finally
vide publication of the seniority list on 25.11.2009. The
contention so raised is wholly illogical. As per the said
version, it appears that according to respondent no.3,
appointment of Abdul Rauf on the post of Headmaster
w.e.f. 1998 and, thereafter, the appointment of the
present petitioner on the said post w.e.f. 1.1.2003 did not
provide respondent no.3 any cause of action and the same
arose only after fixation of seniority by management in the
year 2009-2010. If the aforesaid proposition is to be
accepted, a further inference needs to be drawn that had
the management not carried out the task of preparation
and fixation of seniority, even until the year 2016-2017,
perhaps, respondent no.3 would not have initiated any
action for want of cause of action. The plea so taken by
24 WP NOS.6794/2012 & 7246/2012
respondent no.2 must be rejected for the reason that
according to case of respondent no.3 himself, he was
superseded in the year 1992 when Sayyad Zakir Ali
Sayyad Sadat Ali was appointed on the post of
Headmaster. Even if it is assumed that Sayyad Zakir Ali
may be held senior to respondent no.3, since he joined the
services on 10th of July, 2991, whereas respondent no.3
joined on 15.7.1991 when in the year 1998 Shaikh Abdul
Rauf was appointed on the post of Headmaster, the cause
of action had certainly arisen for respondent no.3 to
challenge the said promotion when respondent no.3 was
claiming to be senior than said Abdul Rauf.
23. Respondent no.3 cannot deny that in the year
1998 when Abdul Rauf was appointed as a Headmaster, he
had become aware that he has been superseded. There is
therefore no sense in the argument made on behalf of
respondent no.3 that since the seniority list was not
published by the school management in accordance with,
and in the manner as provided under the provisions of the
M.E.P.S. Rules till the year 2009, he did not initiate any
legal action. The employees are very sensitive about the
25 WP NOS.6794/2012 & 7246/2012
seniority list obviously for the reason that further
promotions depend upon the position at which name of the
concerned employee is shown in the seniority list.
However, the moment a junior person is promoted to a
higher post the employee concerned gets a cause of action
to challenge the promotion of the said junior employee
though there may not be any seniority list in existance.
The law now stands settled that the issue of seniority can
very well be decided by the School Tribunal in an appeal
filed by an employee alleging his supersession. Thus,
there seems no justification in the contention raised by
respondent no.3 that, since the seniority list was not
published till the year 2009, there was no cause of action
for him to challenge the promotion of the present
petitioner, or earlier to that, of Abdul Rauf. In no case it
can be accepted that respondent no.3 was not aware of
the date of joining of the present petitioner, or that of
Abdul Rauf, and for the said reason, he was waiting for
the publication of seniority list by the school management.
24. As per his own version, respondent no.3 had
first raised an objection in the year 1992 that seniority list
26 WP NOS.6794/2012 & 7246/2012
is not being properly maintained and that he has not been
shown at proper place in the said seniority list which may
have adverse effect on the right of his promotion. It is
the further contention of respondent no.3 that he was not
silent on his rights but has been making various
representations raising the grievance about the list of
seniority and his right of promotion. In an appeal filed by
respondent no.3, in para no.2 thereof, respondent no.3
has provided the particulars as about the representations
made by him which reveal that first of such representation
was made by respondent no.3 on 15th of July, 1992, and
thereafter on 8.11.1992, 20th of September, 1998, 5th of
December, 2002, 10th of December, 2002, 28th
December, 2002, 7th of January, 2003, 20th of March,
2003, 25th of July, 2003, 10th of January, 2004, and 5th
of February, 2005.
25. The question is: whether mere making of such
representations, but not taking any further action available
in law, was sufficient for respondent no.3 and can the
delay which has been caused in ultimately filing an appeal
by him before the School Tribunal for the said reason can
27 WP NOS.6794/2012 & 7246/2012
be justified and can be condoned.
26. The Honourable Apex Court, in number of
cases, has ruled that mere representations would not be
adequate explanation to take care of delay. In the case of
K.V. Rajalakshmi Shetty and Anr. v. State of Mysore and
Ors. ( AIR 1967 SC 993), it was first stated by the
Honourable Apex Court that there is a limit to the time
which can be considered reasonable for making
representations and if the Government had turned down
one representation, making of another representation on
similar lines will not explain the delay. In the case of
State Of Orissa vs Pyarimohan Samantaray and Ors
( (1977) 3 SCC 396), the Honourable Apex Court held that
making of repeated representations cannot be regarded as
satisfactory explanation of the delay. In the said case the
petition was dismissed by the Honourable Apex Court on
the point of delay alone. In the case of State of Orissa
and others Vs. Shri ArunKumar Patnaik and others ((1976)
3 SCC 579), the High Court of Orissa had entertained a
petition challenging the appointment and seniority of the
respondent in the said petition, 11 years after the order of
28 WP NOS.6794/2012 & 7246/2012
his appointment and had set aside the said appointment.
In an appeal by the State, the Honourable Apex Court set
aside the order passed by the High Court observing that
the writ petitioners were guilty of laches and had brought
to the Court a grievance too stale to merit redress. The
Honourable Apex Court further expressed its grave
concern that an extraordinary jurisdiction was exercised in
such an abject disregard of consequences and in favour of
the persons who were unmindful of their so called rights
for many long years.
27. The principle laid down by the Honourable Apex
Court in the afore mentioned judgments that
representations would not be adequate explanation to take
care of delay has been reiterated by the Honourable Apex
Court in the case of Rabindranath Bose Vs. Union of India (
(1970) 1 SCC 84) and thereafter in the case of Karnataka
Power Corporation Ltd. vs K. Thangappan & Anr ( (2006)
4 SCC 322) and also in the case of Shiv Das Vs. Union of
India and others ( (2007) 9 SCC 274).
29 WP NOS.6794/2012 & 7246/2012
28. In the instant matter, the learned School
Tribunal has accepted the justification provided by
respondent no.3 for the delay which was caused in filing
the appeal by him observing that respondent no.3 had
time and again raised grievance about the seniority list.
The observation so made and the finding so recorded by
the Tribunal cannot be sustained in view of the principles
laid down by the Honourable Apex Court in the judgments
referred to hereinabove.
29. Moreover, from the material on record, it is
difficult to believe that respondent no.3 was making
representations from the year 1992. Copies of all such
representations are filed on record by respondent no.3
along with his affidavit in reply. All such applications /
representations bear the signature of present respondent
no.4 acknowledging the receipt of the said
representations. It is not in dispute that respondent no.3
is the nephew of respondent no.4. It is the specific
allegation of the petitioner that respondent no.3 with the
help of respondent no.4 prepared the aforesaid concocted
record. The allegation so made by the petitioner is
30 WP NOS.6794/2012 & 7246/2012
difficult to be brushed aside for many reasons. It is
nowhere explained by respondent no.3 as to why he did
not submit such representations in the office of the
society, or the school. It is further not explained by
respondent no.3 as to why he did not send copies of the
representations submitted by him to the Education Office.
Respondent no.3 also has not made any attempt to bring
on record the relevant Inward Register maintained in the
office of the Education Society or the school so as to
demonstrate the fact of submission of his applications time
to time. It was also pointed out by the learned Counsel
for the petitioner that respondent no.3 did not file copies
of such representations in his earlier two writ petitions
filed in this Court. The record supports the contention of
the petitioner. In the said writ petitions filed by respondent
no.3, copies of such representations are in fact, not filed
on record by him though, no doubt, in one of such writ
petitions respondent no.3 has contended that though he
has been making representations from the year 1992,
copies of such representations were not available with him
at the time of filing of the said writ petition. The
contention so raised and the explanation so given by
31 WP NOS.6794/2012 & 7246/2012
respondent no.3 cannot be accepted considering the
overall circumstances involved in the case. I reiterate
that the allegation made by the petitioner that respondent
no.3 prepared a concocted record as about the submission
of the representations by him from 1992, and continuously
thereafter, is difficult to be ruled out. Moreover, as
elaborately discussed by him hereinabove, mere
submission of representations for quite a long period was
not enough on the part of respondent no.3 and that cannot
be a justification for the delay caused by respondent no.3
in approaching the School Tribunal. It appears that the
School Tribunal has utterly failed in appreciating this
aspect and has recorded certain unsustainable findings in
that regard.
30. Further, as I have noted earlier, the cause of
action had arisen for respondent no.3 on the date on which
Shri Abdul Rauf was appointed on the post of Headmaster
in the year 1998. It subsequently arose on 1.1.2003
when the present petitioner was appointed on the said
post of Headmaster. It is incredible that the service
horoscopes of Abdul Rauf and the present petitioner were
32 WP NOS.6794/2012 & 7246/2012
not known to respondent no.3, for want of publication of
the seniority list by the school management when
respondent no.3 was aspiring for the said post.
31. The factual position, as noted above, clearly
shows that for nearly eighteen years respondent no.3 had
remained silent on his rights. The question arises, in
such circumstances and situation, whether the impugned
order passed by the School Tribunal would sustain.
From the discussion made in the impugned judgment, it
appears that while discarding the objections raised by the
present petitioner as about delay and laches on the part of
respondent no.3, in approaching the School Tribunal, the
weighing factor in the mind of the School Tribunal was that
there is no limitation provided in the M.E.P.S.Act for filing
of an appeal against the order of supersession. It is
evident that the learned School Tribunal failed in
appreciating that in catena of judgment, the Honourable
Apex Court has consistently held that even if a Statute
does not prescribe time limit for exercise of revisional or
appellate powers, it must be exercised within a reasonable
time frame and further, there must be a reasonable
33 WP NOS.6794/2012 & 7246/2012
explanation by the aggrieved party justifying the period of
delay.
32. In the instant case, as has been elaborately
discussed by me here-in-above, though the cause of action
for filing an appeal by respondent no.3 had arisen in the
year 1998, he has failed in providing any cogent and
sufficient explanation therefor. On the contrary, from the
facts which have come on record and looking to the
conduct of respondent no.3, it can be reasonably inferred
that respondent no.3 had acquiesced for appointment of
Abdul Rauf on the post of Headmaster in the year 1998
and, thereafter, to the appointment of the present
petitioner on the said post w.e.f. 1.1.2003. For a moment,
even if the theory of acquiescence is kept aside, by not
raising any objection to the aforesaid appointment within
reasonable time, respondent no.3 shall be deemed to have
waived his right for appointment to the said post. Delay
or laches is one of the factors to be borne in mind by the
Courts or the Tribunals when they exercise their powers
under the Statute. No doubt, in appropriate cases, the
Courts may and must exercise such powers, however, if
34 WP NOS.6794/2012 & 7246/2012
the inordinate delay on the part of the petitioner,
applicant or appellant is not satisfactorily explained, the
Court shall decline to intervene and grant any relief to
such a person by exercising the jurisdiction vested in it.
33. As laid down by the Hon'ble Apex Court in
the case of Shiv Dass vs Union Of India and others ( 2007)
9 SCC 274),
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 opposite party, and in such circumstances
writ petition has to be dismissed.
34. In the aforesaid case, the Apex Court has
reproduced the observations made by Sir Barnes Peacock
in Lindsay Petroleum Company v. Prosper Armstrong Hurd
etc., (1874) 5 P.C. 221. I deem it appropriate to
reproduce hereinbelow the said observations, which are
thus:
"7. What was stated in this regard by Sir Barnes
Peacock in Lindsay Petroleum Company v. Prosper
Armstrong Hurd etc., (1874) 5 P.C. 221 at page 239 was
approved by this Court in The Moon Mills Ltd. v. M.R.
35 WP NOS.6794/2012 & 7246/2012
Meher, President, Industrial Court, Bombay and Ors. (AIR
1967 SC 1450) and Maharashtra State Road Transport
Corporation v. Balwant Regular Motor Service, Amravati
and Ors. (AIR 1969 SC 329), Sir Barnes had stated:
"Now the doctrine of laches in Courts of Equity is
not an arbitrary or 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, if founded upon mere
delay, that delay of course not amounting to a bar
by any statute of limitation, 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."
35. In the case of State of M.P. v. Nandlal Jaiswal
( (1986) 4 SCC 566 ) also, it was laid down by the
Honourable Apex Court that the Court shall not ordinarily
assist tardy and the indolent or the acquiescent and the
lethargic. The Honourable Supreme Court has further
observed in the said matter that if there is inordinate
delay on the part of the petitioner and such delay is not
satisfactory explained, the Court may decline to intervene
36 WP NOS.6794/2012 & 7246/2012
and grant relief in exercise of its power.
36 In the case of M.S. Mudhol And Anr. vs S.D.
Halegkar And Ors. ( 1993 (3) SCC 591), the
controversy before the Honourable Apex Court was relating
to the eligibility of the first respondent therein to occupy
the post of Principal of Delhi Kannada Senior Secondary
School.
It was the contention of the petitioners that
respondent was lacking two essential qualifications and, as
such, was not eligible to be appointed on the post of
Headmaster. The High Court of Delhi had dismissed the
petition on the ground of laches and hence the Special
Leave Petition was filed before the Honourable Apex Court.
The Honourable Apex Court did not interfere in the order
passed by the High Court and consequently declined to
interfere with the appointment of the first respondent
mainly on the ground of delay and laches on the part of
petitioners in approaching the Court and in taking
objection to the appointment of respondent No.1 on the
post of Principal of the College. The Honourable Apex
Court dismissed the Special Leave Petition observing that
it was not proper to disturb the appointment of the said
37 WP NOS.6794/2012 & 7246/2012
respondent at the late stage when he has been discharging
his functions continuously for over a long period of 9 years
when the Court was moved and about 13 years when the
petition was being heard by the Apex Court.
37. In the case of Gian Singh Mann Vs. High
Court of Punjab and Haryana and another ( 1984 (4)
SCC 266), the Honourable Apex Court dismissed the
petition for delay and laches on the part of the petitioner in
filing the petition. The writ petition was filed before the
Honourable Apex Court about 11 years after the dates
from which the promotions were claimed. The petitioner
therein had taken a plea that he was making successive
representations to the Department and that was the
reason he did not file the petition at the earlier stage.
The Honourable Apex Court rejected the plea so raised by
the petitioner observing that making successive
representations by the petitioner can hardly justify the
inordinate delay of 11 years caused in filing the petition by
the petitioner.
38 WP NOS.6794/2012 & 7246/2012
38. In the case of Vijay Kumar Kaul and others
vs. Union of India and others ( 2012 AIR (SCW)
3277), the Honourable Apex Court has ruled that a litigant
who invokes the jurisdiction of the Court for claiming
seniority, it is obligatory on his part to come to the Court
at the earliest or at least within a reasonable span of time.
The Honourable Apex Court has further observed that the
belated approach is impermissible as in the meantime
interests of third parties gets ripened and further
interference after enormous delay is likely to usher in a
state of anarchy. The Honourable Apex Court has further
observed that it is a matter of great significance that at
one point of time the equity that existed in favour of one
melts into total insignificance and paves the path of
extinction with the passage of time.
39. In the case of Balwant Singh ( Dead) v. Jagdish
Singh and others ( AIR 2010 SUPREME COURT 3043), the
Hon'ble Apex Court has held that liberal approach in
matters of condonation of delay and in construing the word
"sufficient cause" does not mean doing injustice to
opposite party. Time and again the Honourable Apex
39 WP NOS.6794/2012 & 7246/2012
Court has ruled that though there may not be any
limitation provided in the Statute for approaching the
Court for redressal of any grievance under the said
Statute, the aggrieved person has to ventillate his
grievance and knock the doors of the Court within a
reasonable period. Concept of reasonableness is
explained by the Honourable Apex Court in the case of
Balwant Singh ( Dead) v. Jagdish Singh and others (cited
supra). The Honourable Apex Court has said that,
" Even if the term `sufficient cause' has to
receive liberal construction, it must squarely fall
within the concept of reasonable time and proper
conduct of the concerned party. The purpose of
introducing liberal construction normally is to
introduce the concept of `reasonableness' as it is
understood in its general connotation. The law of
limitation is a substantive law and has definite
consequences on the right and obligation of a party
to arise. These principles should be adhered to and
applied appropriately depending on the facts and
circumstances of a given case. Once a valuable right,
as accrued in favour of one party as a result of the
failure of the other party to explain the delay by
showing sufficient cause and its own conduct, it will
be unreasonable to take away that right on the mere
asking of the applicant, particularly when the delay is
directly a result of negligence, default or inaction of
that party. Justice must be done to both parties
equally. Then alone the ends of justice can be
achieved. If a party has been thoroughly negligent in
implementing its rights and remedies, it will be
equally unfair to deprive the other party of a valuable
40 WP NOS.6794/2012 & 7246/2012
right that has accrued to it in law as a result of his
acting vigilantly."
40. In the case of Joint Collector Ranga Reddy
District and another vs. D.Narsing Rao and others ( (2015)
3 SCC 695), the Honourable Apex Court has reiterated that
where no limitation period is prescribed under the Statute,
powers should be exercised by the authorities / Courts
within reasonable period.
41. In the instant case, as has been elaborately
discussed by me, hereinabove, the cause of action for
initiating an action by respondent no.3 had arisen in the
year 1998, but he made a grievance about it for the first
time in the year 2010 and approached the School Tribunal
in 2011 i.e. after lapse of about 13 years. As noted
earlier, the justification given by respondent no.3 for not
approaching the appropriate authorities / Tribunal is not
at all convincing. As noted earlier, mere filing of
representations would not be an adequate explanation to
take care of delay. In the circumstances, it appears to me
that the School Tribunal has manifestly erred in
considering the case of respondent no.3 after long lapse of
41 WP NOS.6794/2012 & 7246/2012
time and without considering the relevant circumstances.
Vide the impugned order, the School Tribunal has impliedly
set aside the appointment of the petitioner on the post of
Head Master after he has worked on the said post for long
9 years.
42. In view of the law laid down by the Honourable
Apex Court in the case of Shiv Das Vs. Union of India and
others (cited supra), the School Tribunal ought not have
entertained the grievance of respondent no.3 and should
not have passed the impugned order which has resulted in
causing severe prejudice to the present petitioner. The
School Tribunal has utterly failed in appreciating that when
Respondent No.3 did not take any effective step and
remained silent for about 13 years, he shall be deemed to
have waived his right to be appointed on the post of
Headmaster. There is every reason to believe that
respondent no.3 had acquiesced the appointment of the
petitioner on the post of Headmaster. Having regard to
such conduct of respondent no.3 and in absence of any
satisfactory explanation from respondent no.3 of the
inordinate delay, the appeal filed by respondent no.3
42 WP NOS.6794/2012 & 7246/2012
ought to have been rejected by the School Tribunal solely
on the ground of delay and laches.
43. The observations made by the School Tribunal
in paragraph no.21 of the impugned judgment that since
there was no seniority list published by respondent
management, when the present petitioner was promoted
to the post of Headmaster, is wholly erroneous and
unsustainable. The Tribunal has failed in appreciating
that the seniority lists published under the signature of the
Headmaster of the School were throughout signed by
respondent no.3 from the year 2000-2001 and onwards till
2009-2010 without raising any objection or lodging any
protest about the correctness of the said seniority lists.
Though an attempt has been made to bring on record that
respondent no.3 was making representations during the
said period complaining that his name has not been
properly shown in the seniority lists, and his juniors are
shown above him, the entire said evidence is not at all
trustworthy and it appears that a concocted record has
been prepared by respondent no.3 in that regard.
43 WP NOS.6794/2012 & 7246/2012
44. Shri Manohar Dhondibarao Patil, serving then as
Deputy Education Officer, Zilla Parishad, Nanded, has filed
affidavit in reply in both the Writ Petitions on behalf of
respondent no.1. In the said affidavit in reply, in
paragraph no.14 thereof, it is expressly alleged that
respondent no.3 has prepared a false and fabricated
record showing that respondent no.3 has made 11
representations between 1992 to 2005. It is further
averred that none of the said 11 representations was
forwarded to the Education Office.
45. Moreover, merely because the seniority list was
not published by the respondent management, in no case
it can be a ground for not initiating an action by
respondent for his alleged supersession. The moment a
junior was appointed on the post of Headmaster, the cause
of action had accrued for respondent no.3 to challenge the
said promotion and file an appeal against the order
whereby he was superseded. It is well settled that the
dispute relating to seniority list can also be considered by
the Tribunal as an incidental question while deciding the
controversy in regards to the supersession. Thus, that
44 WP NOS.6794/2012 & 7246/2012
could not have been a reason for not filing an appeal by
respondent no.3 for the period of more than 13 years.
Cause of action had accrued for respondent no.3 the
moment a person junior to him was appointed on the post
of Headmaster. Whether the seniority list was in existence
at the relevant time, whether it was published by the
respondent's school management or it was published
under the signature of the Headmaster of the School, were
all immaterial issues and the same cannot provide an
excuse for respondent no.3 for not filing an appeal
immediately or within a reasonable period thereafter.
Respondent no.3 was well aware of the service-horoscopes
of Abdul Rauf and the present petitioner. Thus, the
alleged non existence of the seniority lists or non
existence of the proper seniority lists according to law,
could not have precluded respondent no.3 from filing an
appeal. I reiterate that having regard to the inordinate
delay committed by respondent no.3 in approaching the
School Tribunal, to assert his right on the post of
Headmaster, and when the delay has not at all been
satisfactorily explained by respondent no.3 and when from
the circumstances on record reasonable inference can be
45 WP NOS.6794/2012 & 7246/2012
drawn that respondent no.3 had acquiesced the
appointment of the present petitioner on the post of
Headmaster by remaining silent for a long period, the
School Tribunal ought to have dismissed the appeal filed
by respondent no.3. The Tribunal has grossly erred in
not doing so. The order passed by the Tribunal,
therefore, cannot be sustained.
46. One more ground is pressed by the petitioners
in both the writ petitions that Ardhapur Education society
being a minority institution, provisions of the M.E.P.S.Act
and the Rules do not apply to the recruitment of a Head of
minority school and other persons not exceeding three,
who are employed in such school and whose names are
notified by the management to the Director or, as the case
may be, the Deputy Director for this purpose. Learned
Counsel for the petitioners in both the Writ Petitions, in
support of their aforesaid contention have relied upon two
Division Bench judgments of this Court; one in the case of
Hakimsingh Ram Sumer Singh Yadav vs. Vardhman
Sthanakwasi Jain Shrevak Sangh and others ( 2004 (4)
Mh.L.J. 626) and the other in the case of Hussain Khan vs.
46 WP NOS.6794/2012 & 7246/2012
Shah Babu education Society, Patur ( 2006 (4) Mh.L.J.
553).
47. In the case of Hakimsingh Ram Sumer Singh
Yadav (cited supra), the petitioner had challenged the
appointment of respondent no.3 in the said writ petition on
the ground that in the list of seniority, he was senior to
said respondent no.3 and, as such, was entitled to be
appointed on the post of Headmaster. The Division
Bench, while rejecting the said contention has held that
the provisions of the M.E.P.S.Act do not apply to the
recruitment of Head of minority school. In the said
judgment, the Division Bench has referred to the earlier
Division Bench judgment of this Court in the case of
Gunwantlal K.Khamar Vs. State of Maharashtra and others
( 1993 (1) CLR 295). In the case of Gunwantlal K.Khamar
the Division Bench has referred to number of judgments of
the Hon'ble Supreme Court as well as the judgment of the
Full Bench of the Kerala High Court and in the concluding
paragraph has observed thus:
47 WP NOS.6794/2012 & 7246/2012
" The importance of the post of the Head of
the institution has thus been reiterated in several
decisions and considered as a right to administer the
institution and protected by Article 30(1) of the
Constitution. It is, therefore, not possible to accede
to the submission of Shri Vashi that sub-section (2)
of section 3 confers arbitrary powers upon the
minority institutions. The apprehension that there is
likelihood of misuse is not sufficient to strike down
the sub-section as violative of Article 16. Indeed the
departure from the general rule in respect of the
recruitment of a head of minority school is protected
by Article 30(1) of the Constitution. The contention
that the right reserved to recruit head of the minority
institution without complying with the provisions of
the Act had no nexus to the object to be achieved by
Article 30 cannot be accepted. The excellence of the
education provided by an institution would depend
directly on the excellence of the head of the school.
Even while recruiting the head of a minority school, it
is not permissible to bypass conditions of service
pertaining to the minimum qualifications, but once
the appointee is found to be eligible, then the choice
cannot be questioned on the ground that the
appointee was not a senior most teacher. To insist
that only the senior most eligible teacher should be
appointed to the post of a head of the school would
amount to denial of right guaranteed by Article 30(10
of the Constitution. It was contended that sub-
section (2) of section 3 of the Act would lead to
oppression and discontentment amongst the senior
teachers as the chance of promotion to the head of
the school would be in jeopardy. A teacher entering
service in a minority institution knows fully well that
the right to be posted as head master does not
depend upon the seniority but on the selection to be
made by the management. In our judgment, the
challenge to the validity of sub-section (2) of section
3 of the Act is without any merit and the appeal must
fail."
48 WP NOS.6794/2012 & 7246/2012
48. The principles as laid down in the case of
Gunwantlal K.Khamar ( cited supra), are reiterated in the
subsequent decision in the case of Hussain Khan vs. Shah
Babu Education Society, Patur ( cited supra). The Division
Bench, in the said case has held that,
" The scheme of appointment / promotion to the
post of Head is composite in section 3(1) and 3(2) of
Maharashtra
Employees of Private
( Conditions of Service ) Regulation Act, 1977.
Schools
Section 3(2) operates as a mandatory proviso in the
nature of exception or a non obstante clause by
virtue of language employed therein to the rule of
law incorporated in section 3(1). Therefore, section
3 has to be read in entirety and as a complete
scheme and not by intersecting these two sub-
sections i.e. (1) and (2) therein. While on plain
reading of section 3(1), it reveals that the rule of law
as to the appointment to the post of Head is by
seniority as a general rule of law. Section 3(2)
provides that the rule of seniority shall not apply to
the School run by the minority institution. "
In view of the law laid down as above, it has to be held
that since the recruitment to the post of Headmaster in the
minority institution is excluded from the purview of the
M.E.P.S.Act in view of the protection granted under Article
30(2) of the Constitution, the appointment of the
petitioner was not liable to be challenged by respondent
no.3. The School Tribunal has committed an error in
49 WP NOS.6794/2012 & 7246/2012
impliedly setting aside the order of appointment of the
petitioner on the post of Headmaster by directing the
appointment of respondent no.3 on the said post.
49. In Writ Petition No.7246/2012 the copy of the
resolution passed in the meeting of the Education society
held on 23rd December, 2002, is placed on record. In
the said meeting vide Resolution No.3 it was unanimously
resolved to appoint the present petitioner on the post of
Headmaster of the School. The contents of the
Resolution in that regard reveal that the subject of
appointment of the present petitioner on the post of
Headmaster of the School was thoroughly discussed in the
said meeting and considering the merits of the petitioner
and his administrative capacity, a decision was taken to
appoint the petitioner on the post of Headmaster. The
material on record further reveal that the appointment so
made in pursuance to the aforesaid Resolution was duly
approved by the Education Department in the year 2003
itself and respondent No.3 did not challenge the same till
the year 2011. Under Section 3(2) of the M.E.P.S.Act, it
was well within the discretion of the management of the
50 WP NOS.6794/2012 & 7246/2012
minority institution to appoint a person of their confidence
on the post of Headmaster of the School and the
provisions in the M.E.P.S.Act and the Rules as about the
seniority, etc. were not applicable for the appointment of
the Head of the minority school. It is thus evident that
the appointment of respondent no.3 was not liable to be
challenged on the ground of seniority.
50. Admittedly, in the appeal before the School
Tribunal no such plea was raised by the School
management that it is a minority school and, as such, the
provisions of the M.E.P.S. Act, in so far as the appointment
of the head of the school is concerned, are not applicable.
The material on record reveals that in the appeal before
the School Tribunal, the school management has
supported respondent no.3. However, the plea so raised
in the Writ Petition being a legal plea can very well be
considered though the same was not raised before the
School Tribunal. Respondent no.4 has not disputed that
the Ardhapur Education Society is a minority institution.
However, it is the contention of respondent no.4 that in
order to claim the privileges being a minority institution,
51 WP NOS.6794/2012 & 7246/2012
the names are required to be sent to the Deputy Director
of Education and his approval is required to be obtained to
claim such benefit. It is further stated that in absence of
such approval being accorded by the Deputy Director, no
institution can claim privilege in the matter of appointment
to the post of Headmaster notwithstanding seniority. In
view of he circular dated 21st September, 1982, placed on
record by
the writ petitioner in Writ Petition
No.7246/2012, the contention so raised by respondent
no.4 is liable to be rejected. As provided in the said
circular, the requirement of notifying the names with the
Deputy Director is applicable for the appointment of the
three employees other than the head of the school. The
aforesaid Government circular clearly lays down that the
name of the Head of the School need not be notified.
51. In view of the specific provision under Section
3(2) of the M.E.P.S. Act and the clarification provided by
the Government circular dated 21st of September, 1982,
the appointment of the present petitioner was in fact not
liable to be challenged or questioned on the ground of
seniority. It was the prerogative of the management of
52 WP NOS.6794/2012 & 7246/2012
the minority institution to appoint a person of their
confidence on the post of Headmaster of the school. As
stated earlier, vide Resolution passed in the meeting of the
Education Society held on 23rd December, 2002, the
petitioner was appointed on the post of Headmaster of the
School. Nothing has been brought on record to show
that the said Resolution has been subsequently cancelled
or set aside. Thus, the appointment of the present
petitioner was not liable to be challenged by respondent
no.3 on the ground of seniority. The order passed by the
School Tribunal therefore cannot be sustained.
52. In the result, the following order :
ORDER
1. Both the Writ Petitions are allowed.
2. The order passed by the School Tribunal, Latur,
in Appeal No.14/2011, dated 4th of August, 2012, is
quashed and set aside.
3. No order as to costs.
53 WP NOS.6794/2012 & 7246/2012
4. Pending Civil Applications, if any, stand
disposed of.
5. Rule made absolute in above terms.
(P.R.BORA)
JUDGE
...
AGP/6794-12wp
