Bombay High Court
Parmeshwar Gangaram Dhole vs The State Of Maharashtra Through ... on 14 October, 2022
Bench: Mangesh S. Patil, Sandeep V. Marne
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8783 OF 2021
Rashtriya Sahakari Shikshan Prasarak
Mandal Ltd. Chalisgaon, Dist. Jalgaon
Through it's Secretary
(Shri. Arun Bhimrao Nikam, Age: 73 yrs,
Occu: Secretary of above trust). .. Petitioner
Versus
1. The State of Maharashtra
Through its Principal Secretary,
Sports and Education Department,
Mantralaya, Mumbai.
2. The Deputy Director of Education
Nashik Division, Nashik
3. The Education Officer (Secondary)
Zilla Parishad, Jalgaon
Tq. & Dist. Jalgaon
4. Parmeshwar s/o. Gangaram Dhole
Age : 48 years, Occu : Service,
Head Master, Secondary School,
Bahal, Tq. Chalisgaon, Dist. Jalgaon ..Respondents
...
Mr. Ramesh I. Wakade, Advocate for the petitioner.
Smt. R.P. Gour, AGP for Respondent Nos.1 to 3
Mr. Suvidh S. Kulkarni, Advocate for Respondent No.4 (absent)
...
WITH
WRIT PETITION NO.1129 OF 2020
Parmeshwar s/o. Gangaram Dhole
Age : 48 years, Occu : Service,
R/o. Working as Head Master,
Secondary School, Bahal,
Tq. Chalisgaon, Dist. Jalgaon .. Petitioner
::: Uploaded on - 15/10/2022 ::: Downloaded on - 15/10/2022 18:55:01 :::
2
Versus
1. The State of Maharashtra
Through its Secretary,
Education Department,
Mantralaya, Mumbai.
2. The Education Officer (Secondary)
Zilla Parishad Jalgaon
Tq. & Dist. Jalgaon
3. Rashtriya Sahakari Shikshan Prasarak
Mandal Ltd., Chalisgaon, Dist. Jalgaon
Through its Chairman.
4. Rashtriya Sahakari Shikshan Prasarak
Mandal Ltd., Chalisgaon Dist. Jalgaon
Through its Secretary .. Respondents
...
Mr. Suvidh S. Kulkarni, Advocate for the Petitioner (absent)
Ms. R.P. Gour, AGP for Respondent Nos.1 & 2
Mr. Ramesh I. Wakade, Advocate for Respondent Nos.3 & 4
...
CORAM : MANGESH S. PATIL &
SANDEEP V. MARNE, JJ.
RESERVED ON : 27-09-2022
PRONOUNCED ON : 14.10.2022
JUDGMENT (PER SANDEEP V. MARNE, J.) :
. Writ Petition No.8783 of 2021 has been filed by the
School Management assailing the decision of the Education Officer
(Secondary), Zilla Parishad, Jalgaon dated 16.10.2019. By that order,
the Education Officer has held the promotion of Shri. Ashok Nathu
Deore as headmaster to be invalid and has directed the Management
to promote respondent no.4 as headmaster with retrospective effect
from 01.08.2011.
2. Respondent No.4 in Writ Petition No.8783 of 2021 is the
petitioner in Writ Petition No.1129 of 2020 which is filed by him for
implementation of the order dated 16.10.2019.
3. The short issue that arises for consideration is about
validity of the order dated 16.10.2019. Considering the order that we
propose to pass, we do not deem it necessary to narrate the entire
factual background under which both the petitions have been filed.
The main issue raised by the school management in Writ Petition
No.8783 of 2021 is about the jurisdiction of the Education Officer in
deciding the issue of entitlement of promotion.
4. The school management runs 48 schools and 1 Junior
College. It had promoted one Shri. Ashok Nathu Deore on the post of
Headmaster from NT-C category on rotational reservation by order
dated 01.08.2011. It is claimed by the School Management that such
promotion was effected in accordance with the seniority list
maintained as per the provisions of Maharashtra Employees of Private
Schools' (Conditions of Service) Rules, 1981 (hereinafter referred to
as the 'Rules of 1981'). The promotion was approved vide approval
order dated 30.03.2013 with effect from 01.08.2011. Thereafter
respondent no.4 (Parmeshwar Gangaram Dhole) was promoted to
the post of headmaster by order dated 30.05.2017 and approval to
his promotion was granted by order dated 20.07.2017. It is the case
of the school management that one Smt. Shubhada Vitthal Shingade
@ Shubhada Shriram Kolekar had challenged the promotion of
Shri. Ashok Nathu Deore by filing appeal before the School Tribunal,
Nashik in Appeal No.50 of 2011 which came to be rejected vide
judgment and order dated 15.03.2013. It is therefore submitted by
the school management that if respondent no.4 was aggrieved by the
promotion of Shri. Ashok Nathu Deore, he ought to have filed appeal
before School Tribunal rather than approaching the Education Officer.
It is, therefore, submitted that the Education Officer did not have any
jurisdiction to decide the issue of promotion or supersession.
5. Under Section 9 of the Maharashtra Employees of Private
Schools (Conditions of Service) Regulation Act, 1977 (hereinafter
referred to as the 'Act of 1977') an appeal would lie in respect of
grievance of supersession. Sub-section (1) of Section 9 reads thus:
'9. Right of appeal to Tribunal to employees of private
schools. - (1) Notwithstanding anything contained in any
law or contract for the time being in force, [any employee
in a private school-
(a) who is dismissed or removed or whose services are
otherwise terminated or who is reduced in rank, by the
order passed by the management; or
(b) who is superseded by the Management while making
an appointment to any post by promotion;
and who is aggrieved, shall have a right of appeal and may
appeal against any such order or supersession to the
Tribunal constituted under section 8]:
Provided that, no such appeal shall lie to the Tribunal in
any case where the matter has already been decided by a
Court of competent jurisdiction or is pending before such
Court, on the appointed date or where the order of
dismissal, removal, otherwise termination of service or
reduction in rank was passed by the Management at any
time before the 1st July 1976.
(2) .........
(3) .........
(4) .........'
6. Undoubtedly, respondent no.4 had the remedy of filing
an appeal under Section 9 of the Act of 1977 if he felt aggrieved by
the promotion of Mr. Ashok Nathu Deore in the year 2011. Since
School Tribunal has the jurisdiction to decide the issue of promotion
and supersession, we are of the view that the Education officer has
erred in entertaining the said dispute and giving a verdict of
entitlement of rival parties for promotion.
7. Mr. Wakade, learned Counsel appearing for the
petitioner has rightly relied upon the decision of this Court in
Saraswati Seva Sangh vs. Education Officer (Secondary Section) Zilla
Parishad, Thane and others [2002 (5) Mh.L.J. 388] in which this
Court held that the Education Officer does not have jurisdiction to
decide the issue of termination in respect of which there is specific
remedy of filing appeal under Section 9 of the Act of 1977. He has
also relied upon the decision of this Court in Mohammad Hasan Khan
vs. Mohammad Majidulla & Others, 2002 (4) All.M.R. 512, wherein
the issue involved was about the time limit within which the appeal
against the grievance of supersession would be filed under Section 9
(1)(b) of the Act of 1977. Though the judgment is not directly
relevant to the issue, the same does suggest that there is a remedy
available under Section 9 of the Act in respect of the grievance of
supersession. We are of the view that the Education Officer thus
could not have decided the grievance of supersession raised by
respondent no.4.
8. Faced with this difficulty Ms. Gour, learned AGP has
relied upon the provisions of Rule - 12 of the Rules of 1981 to
contend that the Education Officer would have role to play with
regard to maintenance of seniority list under Schedule 'F' of the
Rules. However, the Education Officer has not confined himself to
the question of determination of seniority, but has proceeded to hold
the promotion of Shri. Ashok Nathu Deore to be erroneous and
directed promotion of respondent no.4 retrospectively with effect
from 01.08.2011. In this regard, Mr. Wakade has rightly relied upon
the decision of this Court in Umesh Balkrishna Vispute vs. State of
Maharashtra and Others [2000 (4) Mh.L.J. 564] in which it is held
that finalization of seniority list in terms of Rule 12 of the Rules, 1981
is not final and conclusive and that the same is not binding on the
School Tribunal. It is further held that Section 9 (1) of the Act has
overriding effect as it opens with non obstante clause and 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. Therefore, reliance of Ms. Gour on the provisions of
Rule 12 of the Rules of 1981 is misplaced.
9. Consequently, we are of the view that the order dated
16.10.2019 passed by the Education Officer is unsustainable. We set
aside the same. Writ Petition No.8783 of 2021 accordingly succeeds
and is allowed. Consequently, Writ Petition No.1129 of 2020 seeking
implementation of the order dated 16.10.2019 is dismissed. However,
it would be open to the petitioner in Writ Petition No.1129 of 2020
(the respondent no.4 in writ Petition No.8783 of 2021) to exercise
the remedy as provided for under Section 9 of the Act of 1977. In the
event such appeal is filed, the same shall be decided strictly in
accordance with its own merits without being influenced by the
observations of the Education Officer in order dated 16.10.2019 or
the observations made by us in this judgment. The issue of limitation
in filing such appeal is kept open.
10. Rule is made absolute in Writ Petition No.8783 of 2021.
Rule is discharged in Writ Petition No.1129 of 2020. There shall be
no order as to costs.
( SANDEEP V. MARNE, J. ) ( MANGESH S. PATIL, J. )
GGP
