Bombay High Court
Vidhayak Samiti Pimpalners Late N ... vs The State Of Maharashtra And ... on 22 September, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6459 OF 2020
1. Vidhayak Samiti Pimpalner's
Late N.S.Patil Secondary and
Higher Secondary School, Pimpalner
Tq.Sakri, District Dhule,
Through its Secretary,
Mahendra S/o Ramrao Gangurde,
Age-58 years, Occu-Agriculture,
R/o Patil Line, Pimpalner,
Tq.Sakri, District Dhule,
2. Harendrakumar Pandharinath Shete,
Age-55 years, Occu-Service,
R/o Behind Mahajan Lodge,
Satana Road, Pimpalner,
Tq.Sakri, District Dhule -- PETITIONERS
VERSUS
1. The State of Maharashtra,
Through the Secretary for
High Education Department,
Mantralaya, Mumbai
2. The Deputy Director of Education,
Nashik Division, Nashik,
3. The Education Officer (Secondary)
Zilla Parishad, Dhule,
District Dhule,
4. Bhalchandra Lala Chavan,
Age-54 years, Occu-Service,
R/o Alankar Nagri, Chikse Road,
Pimpalner, Tq.Sakri,
District : Dhule -- RESPONDENTS
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Mr.V.D.Hon, Sr. Counsel h/f Mr.A.V.Hon, Advocate for the petitioners.
Mr.S.R.Yadav, AGP for respondent Nos.1 to 3.
Mr.S.S.Deshmukh, Advocate for respondent No.4.
( CORAM : RAVINDRA V. GHUGE &
S.G. MEHARE, JJ)
DATE : SEPTEMBER 22, 2021
ORAL JUDGMENT : (Per Ravindra V. Ghuge, J.)
1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties
2. The issue that falls for our consideration in this petition is as to
[a] whether a teacher who has resigned as the Head Master, can again
rise and put forth a claim that he again desires to become the Head
Master, [b] Whether such a teacher can be permitted to reclaim the
position of a Head Master once he has resigned ?
3. This petition has been filed by petitioner No.1, an Educational
Institution, through it's secretary and petitioner No.2, a teacher at
Sr.No.3 in the seniority list, prior to the retirement of the senior
teachers Shri.K.B.Bhamre on 31/05/2019 and Shri.P.A.Bhat on
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30/09/2020.
4. The petitioner has put forth prayer clause "B" and 'C" ass under :-
"B. Issue a writ of certiorari or writ in the nature of certiorari to
quash and set aside the order dated 19.08.2020 passed by the
respondent No.2 the Deputy Director of Education, Nashik
Division, Nashik.
C. Issue a writ of mandamus or writ in the nature of mandamus
to the respondent Nos. 2 and 3 the Deputy Director of Education,
Nashik Division, Nashik and the Education Officer (Secondary),
Zilla Parishad, Dhule, respectively, to consider the proposal
submitted by petitioner No.1 for appointment of petitioner No.2
Harendrakumar Pandharinath Shete, senior most teacher as
regular Head Master of the School viz N.S.Patil Secondary and
Higher Secondary School, Pimpalner, Tq. Sakri, Dist.Dhule."
5. We have considered the strenuous submissions of the learned
Sr.Advocate on behalf of the petitioners, the learned AGP on behalf of
respondent Nos. 1 to 3 and Shri. Deshmukh, learned Advocate on
behalf of respondent No.4.
6. The facts of the case are that respondent No.4 was before this
Court in WP No.4999/2019 making a grievance that he should be
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appointed as a Head Master as Shri Bhamre (Sr.No.1) and Shri Sawle
(Sr.No.2) had retired, Shri Bhat (Sr.No.3) was not interested in
becoming the Head Master and Shri Shete, petitioner No.2 herein, had
resigned as the Head Master. This Court, vide order dated 20/08/2019,
directed the Educational Institution to submit a proposal of the senior
most teacher, apart from those who have declined to work as Head
Master, to the Education Officer for a decision.
7. Pursuant to the above directions, the Education Officer
considered the prevailing fact situation of Shri Bhamre having
superannuated, Shri Bhat having declined and Shri Shete having
resigned as Head Master and then proceeded to appoint respondent
No.4 Shri B.L.Chavan, who was then an immediate senior candidate
eligible to be appointed as Head Master. However, the approval
granted to Mr.Chavan was suddenly cancelled vide order dated
16/10/2019 passed by the same Education Officer who, in turn,
granted approval to officiate as Incharge Head Master to Mr.Umesh
Jayram Patil, who was down below at Sr.No.6 in the seniority list for
the year 2019-2020.
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8. Shri Chavan, therefore, approached this Court in WP
No.110/2020 raising a grievance that he could not have been
dislodged, in as much as, there is another teacher namely
Mr.M.Y.Thingle below him and Shri Umesh Patil was even junior to
Mr.Thingle. This Court, by order dated 09/03/2020, quashed the
impugned order of the Education Officer and considering the role
played by the Education Officer, directed the Deputy Director of
Education to consider the whole issue and pass a fresh order.
9. As the Deputy Director of Education/respondent No.4 herein
delivered an order dated 19/08/2021 approving the appointment of
Mr.Chavan as the Head Master, this petition has been preferred by the
petitioners.
10. For clarity, we are recording the seniority list, as it was at the
relevant time in A.Y. 2019-2020 as under :-
1. Shri Bhamare Kishor Bhalchandra- Head Master (superannuated on
31/05/2019).
2. Shri Bhat Pramod Anant - Declined to be Head Master
(superannuated on 30/09/2020).
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3. Shri Shete Harendrakumar Pandharinath (petitioner No.2), was Head
Master - Voluntarily resigned and again subsequently declined to be
Head Master.
4. Shri Chavhan Bhalchandra Lala - Respondent No.4 - Incumbent Head
Master.
5. Shri Thingle Madhukar Yoseph
6. Shri Patil Umesh Jairam - Was appointed Incharge Head Master - His
appointment was quashed by order dated 09/03/2020 passed by this
Court in WP No.110/2020.
11. The learned Senior Advocate has canvassed that on the date the
impugned order was passed, Shri Bhamre had already retired and Shri
Bhat had declined to become the Head Master. Shri Shete, petitioner
No.2 was then senior most and was willing to be the Head Master. Shri
Bhat has retired on 30/09/2020. The Deputy Director has referred to
the resignation of Mr.Shete tendered on 17/03/2019 as the Head
Master and has illegally not appointed him as the Head Master. The
rules clearly mandate that the senior most eligible teacher has to be the
Head Master. The consent of Mr.Shete was not taken and he was not
even heard. He then points out a recent development that Shri Chavan
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has resigned as Head Master on 04/09/2021 and as such, it is only
Mr.Shete who could be considered for appointment as Head Master
12. Rule 3 of the MEPS Rules, 1981 reads thus :-
"3. Qualifications and appointment of Head. - (1) A person to be
appointed as the Head -
(a) (i) of a primary school having an enrollment of students above 200
or having Standards I to VII shall be the senior most trained teacher
who has put in not less than five years' service; and
(ii) of any other primary school shall be the senior most teacher in the
school;
(b) of a secondary school including night school or a Junior College of
Education shall be a graduate possessing Bachelor's degree in teaching
or education of a statutory University or any other qualification
recognised by Government as equivalent thereto and possessing not
less than five years' total full-time teaching experience after graduation
in a secondary school or a Junior College of Education out of which at
least two years' experience shall be after acquiring Bachelor's degree in
teaching or education :
Provided that, in the case of a person to be appointed as the Head of a
night secondary school -
(i) he shall not be the one who is holding the post of the Head or
Assistant Head of a day school, and
(ii) the experience laid down in clause (b) of sub-rule (1) may be as a
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part-time teacher.
(2) In the case of appointment to the post of Head of a secondary
school including night school or a Junior College of Education if there
is no person with the teaching experience mentioned in clause (b) of
sub-rule (1) available on the staff of the school or if the qualified
persons, though available and eligible, relinquish their claims for the
post of Head and if a Management desires to appoint a person, from
the teaching staff of the school who does not possess the requisite
teaching experience mentioned in clause (b) of sub-rule (1), it shall
apply to the Deputy Director for relaxing the requirement. The Deputy
Director may, after recording reasons in writing, grant or refuse such
relaxation. In such cases, the appointment shall not be made without
obtaining the previous approval of the Deputy Director.
Note : In the case of a graduate teacher already in service in a
secondary school or Junior College of Education for more than fifteen
years on the 1st June 1963, the Deputy Director shall relax I he
requisite qualifications for appointment of such teacher as a Head.
(3) The Management of a school including a night school shall fill up
the post of the Head by appointing the senior most member of the
teaching staff (in accordance with the guidelines laid down in Schedule
"F" from amongst those employed in a school (if it is the only school
run by the Management) or schools if there are more than one school
(excluding night school) conducted by it) who fulfills the conditions
laid down in sub-rule (1) and who has a satisfactory record of service.
[Explanation - For the purpose of this rule, the Management shall
communicate any occurrence of vacancy of the Head to the senior-most
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qualified teacher having satisfactory record of service and ask him to
submit his willingness for appointment to the post within a period of
fifteen days from the date of receipt of the communication. The claim
of the senior-most qualified teacher having satisfactory record of
service, for appointment to the post of Head, may be disregarded only
if he, of his own free will, gives a statement in writing to the Education
Officer that he has voluntarily relinquished his claim to the post. This
shall not debar him from being considered for subsequent vacancies as
and when they occur. Such a teacher shall record his statement in his
own handwriting before the Education Officer within a period of fifteen
days from the date of receipt of the communication as aforesaid and
the Education Officer shall endorse it as having been recorded in his
presence. A statement once duly made by such teacher before the
Education Officer shall not be allowed to be withdrawn. In the event of
the teacher failing to submit his willingness for appointment to the post
or to give a statement to the Education Officer within a period of fifteen
days, it shall be assumed that he has relinquished his claim on the said
post :
Provided that, where an unforeseen vacancy of Head occurs owing to
reasons like resignation without giving due notice, death, termination
of services, reduction in rank or otherwise, the senior-most teacher
desirous of relinquishing his claim for appointment to the post shall,
within seven days from the date of receipt of a communication by him
of occurrence of such vacancy from the Management, communicate to
the Management in writing about the same so as to enable the
Management to finalize the appointment. Such a teacher shall
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thereafter as soon as possible and in any case within a period of fifteen
days from the date of receipt of the communication as aforesaid record
his final statement before the Education Officer to enable him to
approve the appointment, or as the case may be, to disapprove the
appointment if such teacher states in his statement before the
Education Officer that the communication sent by him in writing to the
Management was obtained from him by the Management under duress.
In the event of the teacher failing to record a final statement within a
period of fifteen days as aforesaid it shall be assumed that he has
relinquished his claim on the said post;]"
13. We find from the record that there are internal squabbles in the
two factions of the Educational Institution. We may not be called upon
to consider that controversy. Suffice it to say that we have to consider
the following factors :-
[a] The senior most employee Shri Bhamre has superannuated.
[b] The next senior most teacher Shri Sawle has also superannuated.
[c] By following the seniority, petitioner No.2 Shri Shete was already
appointed as a Head Master and he voluntarily retired on 17/03/ 2019
citing reasons that he cannot continue to perform the said function.
[d] On 14/09/2019, petitioner No.2 Shri Shete again informed in
writing that he does not desire to again become the Head Master due to
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his ill health.
[e] This Court has already negated the appointment of Shri Umesh
Jayram Patil as the Head Master, who was junior by two stages to
respondent No.4 Shri Chavan.
[f] Considering the above, Shri Chavan was already appointed as the
Head Master on 10/10/2019 and his appointment was approved from
the day he took charge of Incharge Head Master from 01/09/2019.
14. Petitioner No.2 Shri Shete has resigned voluntarily and he has
not lodged any complaint with the Education Officer or respondent
No.2 that he was pressurized to resign. It is now contended that he
resigned because he had some domestic problems and he has now
resolved his domestic problems and therefore he should again be
considered for appointment as Head Master by removing respondent
No.4 Shri Chavan. We are of the view that if a person has resigned
voluntarily and has not raised any grievance as regards the factum of
his resignation, the matter has to rest there. His resignation attains
finality and such a teacher can not subsequently rise and say that his
domestic problems are resolved and he is again willing to become the
Head Master and for which the position of Head Master already
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occupied by respondent No.4 Chavan can fall vacant only after
terminating the services of Mr.Chavan as Head Master. If this is
permitted, there would be a grave uncertainty. A person who has
resigned voluntarily, can not thereafter, at the cost of the incumbent
Head Master, be re-appointed as the Head Master by terminating the
incumbent Head Master, save and accept, if his resignation is
challenged and is proved to be a forceful resignation, so as to be
quashed and set aside.
15. When respondent No.4 Mr.Chavan was already appointed as
Head Master, there was no reason for the petitioner/Management to
create a controversy of trying to dislodge him and appoint Shri Umesh
Jayram as Head Master, and thereafter take a plea that petitioner No.2
Mr.Shete is now willing to be the Head Master once again. Moreover,
Mr.Shete has again declined in writing on 14/09/2019 from becoming
an Head Master.
16. We find from the impugned order that respondent No.2 has
adverted to these factors in details and has passed a well reasoned
order. Certain disputed issues about petitioner No.2 Shri Shete having
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been allegedly involved in an offence of outraging the modesty of a
mother of a student, have also been referred to in the impugned order.
Nevertheless, this factor has not influenced the impugned order and we
have no reason to consider the said factor since a citizen of this Country
will always be presumed to be innocent until proven guilty.
17. In service matters, a person who has resigned from the post of
Head Master, thereby has acquiesced his right to continue as the Head
Master and cannot be permitted, one fine morning, to rise and reclaim
the said position at the cost of the incumbent Head Master. We,
therefore, answer the two issues, accordingly .
18. Now, a controversy has been brought before this Court by the
petitioner/Management contending that now Mr.Chavan has resigned
voluntarily. We are unconcerned with the same, notwithstanding, the
fact that the learned Advocate for Mr.Chavan submits that he finds
Mr.Chavan to be under great pressure and duress, who did not even
meet him though he is present in the Court hall. As this is an issue
inter-se the Head Master Mr.Chavan and the Management, we have no
reason to deal with this aspect. The Education Officer can deal with
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this issue of purported resignation. We have concluded in this
judgment that Shri Chavan is rightly approved as Head Master and Shri
Shete is not eligible to become the Head Master having resigned and
again having declined to become the Head Master.
19. This petition is, therefore, dismissed. Rule is discharged.
( S.G. MEHARE, J. ) ( RAVINDRA V. GHUGE, J. )
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