Shri Nildhwaj Motiramji Kamble vs The State Of Maharashtra, Through ...
2022 Latest Caselaw 703 Bom

WP 4990-19                                     1                   Judgment

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR.
                   WRIT PETITION NO. 4990/2019

Nildhwaj Motiramji Kamble,
Aged about 54 years, Occ. Headmaster,
Adarsh Vidyalaya, Dongarkharda,
Tah. Kalamb, Dist. Yavatmal,
R/o 1, Khoja Colony, At Post Dongar-Khardha,
Dongar-Khardha, Tal.Kalamb, Dist. Yavatmal.                    PETITIONER

                               .....VERSUS.....

1.   The State of Maharashtra,
     through its President, Department of Education,
     Mantralaya, Mumbai-32.

2.   The Education Officer (Sec)
     Zilla Parishad, Yavatmal.

3.   Adarsh Shikshan Sanstha,
     Through its President, Dongarkharda,
     Tah. Kalamb, Dist. Yavatmal.

4.   Nitin Janraoji Ingole,
     Age - 41 years, Occ. Service,
     R/o C/o Adarsha High School,
     Dongarkharda, Tah. Kalamb, Dist. Yavatmal.              RESPONDENT S

                 Shri P.P. Thakare counsel for the petitioner.
 Mrs. K.R. Deshpande, Assistant Government Pleader for the respondent nos.1
                                    and 2.
               Shri A.A. Naik, counsel for the respondent no.4.

CORAM : A. S. CHANDURKAR AND SMT. PUSHPA V. GANEDIWALA, JJ.

DATE     : 19TH JANUARY, 2022.
ORAL JUDGMENT          (PER : A.S. CHANDURKAR, J.)

RULE. Rule made returnable forthwith and heard the learned

counsel for the parties.

WP 4990-19 2 Judgment

2. The petitioner and the respondent no.4 are serving as

Headmaster and Assistant Teacher respectively at the school run by the

respondent no.3. The petitioner was appointed on the post of Assistant

Teacher on 09.09.1985 while the respondent no.4 was appointed as

Assistant Teacher on 11.12.2002. Their appointments were duly

approved by the Education Officer (Secondary). The petitioner was

shown to be senior than the respondent no.4 in the seniority list that was

prepared for the years 2017-18 and 2018-19. In the seniority list for the

year 2018-19, the petitioner was shown at Serial Number 1 while the

respondent no.4 was shown at Serial Number 6. On 30.04.2018 the

Management passed a resolution promoting the petitioner to the post of

Headmaster from 01.05.2018. The petitioner accordingly took charge of

the post of Headmaster from 01.05.2018 and his appointment as such

was approved by the Education Officer (Secondary) on 17.05.2018. It is

the case of the respondent no.4 that his placement in the seniority list for

the year 2018-19 was improper and he ought to be shown to be senior to

the petitioner. Hence, on 31.07.2018 the respondent no.4 made a

representation to the Management seeking appropriate placement in the

seniority list. A copy of that representation was also addressed to the

Education Officer (Secondary). It appears that the Education Officer

(Secondary) in exercise of powers conferred by Rule 12 of the

Maharashtra Employees of Private Schools (Conditions of Service) Rules, WP 4990-19 3 Judgment

1981 (for short, 'the said Rules') passed an order on 12.06.2019 holding

that in view of Government Circular dated 03.05.2019 as well as a

communication from the Office of the Director of Secondary and Higher

Education dated 27.05.2019, the respondent no.4 was senior to the

petitioner. On the same day, the Education Officer (Secondary) directed

the Management to submit a proposal showing the respondent no.4 as

Headmaster for necessary approval. The petitioner protested against such

direction through his communications dated 03.07.2019 and 04.07.2019.

On finding that there was no response to the same from the Office of the

Education Officer (Secondary) the petitioner has filed this writ petition

under Article 226 of the Constitution of India challenging the

communications dated 12.06.2019 by which the Education Officer

(Secondary) has held the respondent no.4 to be senior to the petitioner as

well as the direction issued to the Management to send a proposal

indicating the respondent no.4 to be the Headmaster.

3. Shri Prashant Thakare, learned counsel for the petitioner

submits that the Education Officer (Secondary) had no jurisdiction to

entertain any grievance relating to the seniority list of the year 2018-19

under Rule 12 of the said Rules after the Management had on the basis of

such seniority list promoted the petitioner. According to him the

jurisdiction to entertain any grievance/dispute in the matter of inter se WP 4990-19 4 Judgment

seniority is available with the Education Officer (Secondary) only till such

time the Management has not acted upon the same and effected any

promotion. On an order of promotion being issued by the Management

the person aggrieved by the same is required to challenge such order of

promotion by filing an appeal under Section 9 of the Maharashtra

Employees of Private Schools (Conditions of Service) Regulation Act,

1977 (for short, 'the said Act'). Since the Education Officer (Secondary)

had chosen to adjudicate the dispute as regards inter se seniority between

the petitioner and the respondent no.4 despite the fact that prior thereto

the petitioner had been promoted to the post of Headmaster it was clear

that the Education Officer (Secondary) exceeded the jurisdiction

conferred on him by Rule 12 of the said Rules. In support of this

contention, the learned counsel placed reliance on the decisions in Umesh

Balkrishna Vispute Versus State of Maharashtra & Others [2000(4)

Mh.L.J. 564], St.Ulai High School & Another Versus Devendraprasad

Jagannath Singh & Another [2007(1) Mh.L.J. 597], Bhagwant Sheshrao

Borale Versus Education Officer, (Secondary), Zilla Parishad, Buldana &

Others [2009(6) Mh.L.J. 478] and Salim Gulab Mulla Versus State of

Maharashtra & Others [2016(6) Mh.L.J. 617].

On merits of the adjudication, it was submitted that the

petitioner was rightly shown to be senior to the respondent no.4 since

2017-18 and the claim as sought to be made by the respondent no.4 was WP 4990-19 5 Judgment

not liable to be accepted. It was thus submitted that the impugned

communications dated 12.06.2019 were liable to be set aside.

4. Shri Akshay Naik, learned counsel for the respondent no.4

opposed the aforesaid submissions. According to him, the direction

issued by the Education Officer (Secondary) to the Management to treat

the respondent no.4 to be senior to the petitioner was in view of the fact

that it was found that the initial placement of the petitioner in the

seniority list was incorrect and that on noticing such error the Education

Officer (Secondary) found that the respondent no.4 was senior to the

petitioner. It was held by the Education Officer (Secondary) that the

earlier placement of the petitioner pursuant to the Government Circulars

dated 24.01.2017 and 14.11.2017 was incorrect for the reason that by a

subsequent Government Circular dated 03.05.2019 the earlier two

Government Circulars had been withdrawn. Inviting attention to the

adjudication as made by the Education Officer (Secondary) he submitted

that a specific reference to the Government Circular dated 03.05.2019

had been made in the communication dated 12.06.2019. Thus, according

to the learned counsel the Education Officer (Secondary) merely rectified

the error that was apparent in the seniority list wherein the petitioner was

shown to be senior to the respondent no.4. The respondent no.4 having

entered category 'C' under the said Rules prior to the petitioner he was in WP 4990-19 6 Judgment

fact senior in service to the petitioner. On this count, it was submitted

that the impugned communications did not warrant interference.

It was then submitted that even if the Education Officer

(Secondary) had wrongly exercised jurisdiction under Rule 12 of the said

Rules after issuance of the order of promotion in favour of the petitioner

this Court may not exercise discretion under Article 226 of the

Constitution of India to set aside the impugned communications for the

same would result in reviving the earlier illegal placement of the

petitioner. In other words, it was submitted that if the consequence of

setting aside an illegal order results in restoring or perpetuating the

earlier illegality, this Court ought to refuse to exercise jurisdiction under

Article 226 of the Constitution of India for setting aside such illegal order.

The learned counsel by placing reliance on the decisions in Maharaja

Chintamani Saran Nath Shahdeo Versus State of Bihar & Others [(1999)

8 SCC 16] and Bhartiya Seva Samaj Trust, Through President & Another

Versus Yogeshbhai Ambalal Patel & Another [(2012) 9 SCC 310] sought

to draw support for the aforesaid proposition in view of the law laid down

therein. On this count too it was submitted that the writ petition may not

be entertained and it be dismissed.

5. Mrs. Kalyani Deshpande, learned Assistant Government

Pleader for the respondent nos.1 and 2 referred to the affidavit filed on WP 4990-19 7 Judgment

behalf of the Education Officer (Secondary) and submitted that the

impugned communications dated 12.06.2019 were issued after giving

due opportunity of hearing to the petitioner as well as the respondent

no.4. The impugned communications were issued pursuant to the

Government Circular dated 03.05.2019 and hence the same did not call

for any interference.

6. We have heard the learned counsel for the parties at length

and with their assistance we have gone through the documents placed on

record. We have also given due consideration to their respective

submissions and in our considered opinion, the impugned

communications are liable to be set aside.

At the outset, it may be stated that the legal position as

regards the point of time when the Education Officer (Secondary) can

exercise jurisdiction under Rule 12 of the said Rules now stands settled in

the light of the decisions in Umesh Balkrishna Vispute, Bhagwant

Sheshrao Borale and Salim Gulab Mulla (supra). It has been held in the

aforesaid decisions that the Education Officer (Secondary) can exercise

jurisdiction to determine any inter se dispute as regards seniority that has

been referred to him under Rule 12(3) of the said Rules till such time the

Management has not acted upon that seniority list and has thereafter

proceeded to promote an employee on that basis. In Bhagwant Sheshrao WP 4990-19 8 Judgment

Borale (supra) it has been held in clear terms that once an order of

promotion is issued and an appointment is made by the Management on

the basis of the seniority list, the Education Officer (Secondary) would

have no jurisdiction to thereafter re-fix the seniority and demote a person

already promoted. This position has been reiterated in Salim Gulab

Mulla (supra). In Umesh Balkrishna Vispute (supra), the Division Bench

has held that finalization of the seniority list in terms of Rule 12 of the

said Rules is not final and conclusive. Such adjudication is not binding

on the School Tribunal and in an appeal under Section 9 of the said Act

where the dispute as regards supersession is raised it would be open for

the Tribunal to go into the question of seniority as an incidental question

in such appeal.

7. When the facts of the case in hand are appreciated it is seen

that in the seniority list for the years 2017-18 and 2018-19 the petitioner

was shown to be senior to the respondent no.4. The Management by its

resolution dated 30.04.2018 resolved to promote the petitioner on the

post of Headmaster. It accordingly issued an order of promotion on

30.04.2018 and the petitioner took charge of the post of Headmaster on

01.05.2018. The Education Officer (Secondary) thereafter proceeded to

approve the petitioner's appointment on 17.05.2018 on the post of

Headmaster. Such approval was to operate from 01.05.2018. It is not in WP 4990-19 9 Judgment

dispute that thereafter the Education Officer (Secondary) has chosen to

entertain the dispute as regards inter se seniority between the petitioner

and the respondent no.4 and it is in this backdrop that the Education

Officer (Secondary) issued the impugned communications on 12.06.2019.

Considering the legal position referred to hereinabove, which is now well

settled it becomes immediately clear that the Management having

promoted the petitioner on 30.04.2018 to the post of Headmaster and the

petitioner having taken charge of that post from 01.05.2018, the

Education Officer (Secondary) lost jurisdiction to determine the inter se

seniority between the petitioner and the respondent no.4 thereafter. It is

thus clear that the impugned communications dated 12.06.2019 by which

the respondent no.4 is held to be senior to the petitioner is the outcome

of an exercise without jurisdiction. On this short count, the challenge as

raised by the petitioner to the communications dated 12.06.2019 ought to

succeed.

8. Anticipating that such exercise of power by the Education

Officer (Secondary) under Rule 12(3) of the said Rules was against law,

it is urged on behalf of the respondent no.4 that as the respondent no.4

even otherwise is senior to the petitioner the communications dated

12.06.2019 may not be set aside as the consequence of setting aside those

communications would result in the petitioner being wrongly shown WP 4990-19 10 Judgment

senior to the respondent no.4. Even assuming that the Education Officer

(Secondary) had acted beyond jurisdiction under Rule 12 of the said

Rules such error did not deserve to be corrected as the illegality of the

petitioner being shown senior to the respondent no.4 would be revived.

According to the learned counsel for the respondent no.4 this legal

proposition is well settled.

In Maharaja Chintamani Saran Nath Shahdeo (supra) the

appellant was the proprietor of an Estate which included a subsisting

lease of mines and minerals therein. In compensation proceedings the

appellant was paid compensation which was accepted by him.

Subsequently, a fresh assessment was carried out and the amount of

compensation was further enhanced which amount was also accepted by

the appellant. The appellant thereafter made a complaint and sought

further enhancement in the amount of compensation. He was granted

such additional compensation. Subsequently, in suo motu proceedings

the case was re-opened and it was found that the additional

compensation granted to the appellant was in violation of the relevant

Statute. The appellant challenged this action contending that the suo

motu re-opening of the proceedings was without jurisdiction and the

Authority concerned ought to have filed an appeal. The High Court

refused to interfere in the matter by observing that even if the suo motu

order was set aside as being without jurisdiction, it would result in WP 4990-19 11 Judgment

restoring an illegal order of grant of excess compensation. In that

context, the Hon'ble Supreme Court observed that though the Member

had no jurisdiction to pass the suo motu order for refund, the action

taken was valid and proper. If such action was set aside it would amount

to reviving an invalid order of payment of excess compensation to the

appellant. This judgment has been referred to and relied upon in

Bhartiya Seva Samaj Trust & Another (supra).

9. From the aforesaid decisions, it is clear that if the

consequence of setting aside an order without jurisdiction

results in reviving or restoring an illegal order, the court may refuse to

entertain a challenge to such order that has been passed without

jurisdiction as it would result in revival of an earlier illegal order that

was set aside by such order, albeit without jurisdiction. This principle is

well recognized but its application would depend on the facts of

each case.

To consider whether this principle can be applied to the case

in hand, it would be necessary to refer to certain aspects which have

material bearing. In the seniority list for the year 2017-18 the petitioner

has been shown at Serial Number 1 while the respondent no.4 has been

shown at Serial Number 6. Thereafter in the seniority list for the year

2018-19 the petitioner is again shown at Serial Number 1 while the WP 4990-19 12 Judgment

respondent no.4 is shown at Serial Number 6. This list is dated

28.07.2018. The respondent no.4 on 31.07.2018 has raised a

protest to his placement at Serial Number 6. According to him, he

was senior in service to the petitioner as well as one Kumari Pradnya

Ramdas Kamble, who was shown at Serial Number 5 in the seniority

list. His complaint dated 31.07.2018 specifically raises objection

to his being shown junior to the Assistant Teachers at Serial Numbers 1

and 5. It is thus clear that the present is not a dispute of seniority

only between the petitioner and the respondent no.4 but according

to the respondent no.4 he is senior even to another Assistant Teacher

who is shown at Serial Number 5 in the seniority list for the year

2018-19.

The impugned communication dated 12.06.2019 which is an

adjudication by the Education Officer (Secondary) under Rule 12 of the

said Rules contains only one reason and it states that in view of

Government Circular dated 03.05.2019 as well as the letter of the

Director of Higher Education dated 27.05.2019, the respondent no.4 was

senior to the petitioner. Except for reference to Government Circular

dated 03.05.2019 there is no other consideration in the said adjudication.

That adjudication also reveals that it is only the petitioner and the

respondent no.4 alongwith the Management who were heard in the

matter. As the complaint of the respondent no.4 also refers to the WP 4990-19 13 Judgment

placement of the Assistant Teacher at Serial Number 5 above the

respondent no.4 to be incorrect, the said communication does not

indicate said Assistant Teacher placed at Serial Number 5 being heard in

the matter. It is true that the said Assistant Teacher at Serial Number 5 is

not before the Court but the fact remains that by the impugned

communication the respondent no.4 is now shown to be the senior-most

amongst all Assistant Teachers. Pertinently, Government Circular dated

03.05.2019 is issued much later than the order of promotion that was

issued to the petitioner on 30.04.2018. In other words, a promotion

already effected is sought to be set at naught by relying upon a

Government Circular that was not in existence when the order of

promotion was issued. That Government Circular was issued almost a

year later.

The dispute of seniority as sought to be raised by the

respondent no.4 would require proper adjudication by considering all

relevant aspects. Such adjudication would have to be done by taking into

consideration relevant aspects on the basis of which the parties claim to

be senior to each other. It would have been a different matter if the

petitioner and the respondent no.4 would have been placed at Serial

Numbers 1 and 2 and the dispute of seniority was only confined to them.

As stated above, the petitioner was placed at Serial Number 1 while the

respondent no.4 was placed at Serial Number 6. The impugned WP 4990-19 14 Judgment

communications dated 12.06.2019 seek to place the respondent no.4

above the petitioner. Thus from Serial Number 6 the respondent no.4

would be placed at Serial Number 1. If this communication is maintained

despite being without jurisdiction it is likely to result in further

multiplicity since the stand of the incumbents at Serial Numbers 2 to 5 is

not before the Court. Moreover, the aspect of inter se seniority would

require adjudication and hence the respondent no.4 cannot be declared to

be senior to the petitioner in a summary manner. Yet another aspect that

dissuades us from accepting the contention of respondent no.4 is that the

petitioner's placement in the seniority list has resulted in the Management

promoting the petitioner on 30.04.2018. This order of promotion cannot

be ignored unless it is set aside in appropriate proceedings. The order of

promotion would therefore have to be given its legal effect until it is set

aside.

10. For all these reasons we are not in a position to record a

finding that the placement of the respondent no.4 initially in the seniority

list at Serial Number 6 was incorrect and the same was rightly directed to

be corrected by showing the respondent no.4 at Serial Number 1. This

would require proper adjudication and in our view the earlier decisions of

this Court take care of the situation. If the respondent no.4 is aggrieved

by the promotion of the petitioner on the post of Headmaster resulting in WP 4990-19 15 Judgment

his supersession, the remedy under Section 9 of the said Act is available

to him. In such proceedings the incidental question of inter se seniority

can be gone into by the School Tribunal. Thus the contention urged on

behalf of the respondent no.4 that setting aside the communications

dated 12.06.2019 would result in restoring the incorrect placement of the

petitioner at Serial Number 1 in the seniority list cannot be accepted as an

absolute proposition. That contention would require proper adjudication.

Hence for these reasons we are not in a position to accept the

contention canvassed by the learned counsel for the respondent no.4 in

that regard.

11. Accordingly, the communications dated 12.06.2019 bearing

Outward Nos.1547 and 1548 are set aside being an outcome of illegal

exercise of jurisdiction by the Education Officer (Secondary). It is open

for the respondent no.4 to challenge the promotion of the petitioner on

the post of Headmaster effected by the order dated 30.04.2018 issued by

the Management if the respondent no.4 is so aggrieved. It is clarified that

we have not examined the issue of inter se seniority between the

petitioner and the respondent no.4. If that claim is agitated in

appropriate proceedings, it shall be decided on its own merits in

accordance with law.

WP 4990-19 16 Judgment

12. Rule is made absolute in aforesaid terms leaving the parties to

bear their own costs.

(SMT. PUSHPA V. GANEDIWALA, J.) (A.S. CHANDURKAR, J.)

APTE

Signed By: Digitally signed byROHIT DATTATRAYA APTE Signing Date:19.01.2022 14:07