Laxman Kashinath Mule vs The Chairman/ Secretary Mahatma ...
2023 Latest Caselaw 3329 Bom

2023:BHC-AS:10035

                                                                                      WP-6904-22.DOC


                                                                                     Sayali Upasani


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            APPELLATE SIDE CIVIL JURISDICTION

                                 WRIT PETITION NO.6904 OF 2022


              Laxman Kashinath Mule                                               ...Petitioner

                                Vs.
              The Chairman/Secretary, mahatma                                  ...Respondents
              Phule Vidyaniketan Sanstha and
              Another

             Mr. Satish Raut, for Petitioner.
             Mr. S.D. Rayrikar, AGP, for Respondent No. 5-State.
             Ms. Manjiri Parasnis, for Respondent No. 6.

                                          CORAM:- N. J. JAMADAR, J.

RESERVED ON:- 23rd MARCH, 2023 PRONOUNCED ON:- 3rd APRIL, 2023 JUDGMENT:-

1) Rule. Rule made returnable forthwith and heard finally.

2) This Petition assails the legality, propriety and

correctness of the judgment and order passed by the

learned Presiding Officer, School Tribunal, Pune dated 6 th

April, 2022, in Appeal No.29 of 2021, whereby the Appeal

preferred by the respondent No. 6, came to be allowed and

WP-6904-22.DOC

the order of promotion of the petitioner-respondent No. 6

therein, to the post of Head Master dated 1 st January,

2021, came to be quashed and set aside with a direction to

respondent No.1-Society to promote respondent No.6 herein

to the post of Head Mistress in respondent No. 3 - School

with effect from 1st January, 2021, with backwages and

continuity of service and all consequential benefits.

3) The Petition arises in the backdrop of the following

facts:-

(a) Respondent No.1 - Mahatma Phule Vidyaniketan

Sanstha is a Public Charitable Trust registered under

Maharashtra Public Trust Act, 1950. It runs various pre-

primary, primary and secondary schools. Dnyanprobdhini

Prathmik Vidyamandir - respondent No. 3 is one of the

schools run by respondent No. 1. Petitioner was appointed

as an Assistant Teacher in respondent No. 3- School on 1 st

June, 1993. Education Officer, Zila Parishad, Pune-

respondent No. 5 gave approval to the appointment of the

petitioner to the post of Assistant Teacher, vide letter dated

10th June, 1994, with effect from June, 1993. Respondent

WP-6904-22.DOC

No. 6 was also appointed as Assistant Teacher in the said

school on 1st June, 1993.

(b) The petitioner claims that till the year 2017, in the

seniority list of the Assistant Teachers maintained at

respondent No. 3 - School, the petitioner was shown senior

to respondent No. 6. The petitioner being placed at Sr. No. 3

and respondent No. 6 at Sr. No. 4. Respondent No. 6 never

challenged the said seniority list till the year 2020.

(c) On 1st February, 2018, Mrs. Meghna M. Patki, who

was working as a Head Mistress, retired. In breach of the

rules, respondent No. 1 made changes in the seniority list

for the year 2018-2019. Respondent No. 6 was shown at Sr.

No. 4 and petitioner at Sr. No. 5. Taking umbrage, the

petitioner raised an objection to the seniority list. Yet, the

respondent No. 1 promoted respondent No. 6 to the post of

Head Mistress and forwarded the proposal for approval to

Administrative Officer Primary Education Department,

Pune Municipal Corporation - respondent No. 4. The

petitioner raised an objection before the respondent No. 4

WP-6904-22.DOC

about the promotion as well as seniority list for the year

2018-2019.

(d) Vide communication dated 22nd November, 2019,

respondent No. 4 rejected the proposal for approval to the

appointment of respondent No. 6 to the post of Head

Mistress pointing out that in accordance with the Rule 12

of Maharashtra Employee of Private Schools (Conditions of

Services) Regulation Rules, 1981 ("the Rules, 1981"), where

the date of appointment is same, an employee who is senior

by age, shall be considered senior in service. Petitioner

asserts the said order attained finality.

(e) Thereupon, respondent No. 1 by an order dated 19 th

December, 2019, reduced respondent No.6 from the post of

Head Mistress to Assistant Teacher at respondent No. 3-

School. Respondent No. 1, thereafter promoted petitioner to

the post of Head Mistress vide order dated 1 st January,

2021. Respondent No. 4 granted approval to the promotion

of the petitioner to the post of Head Mistress by

communication dated 11th February,2021.

WP-6904-22.DOC

(f) Respondent No. 6 challenged the order dated 1 st

January, 2021, promoting the petitioner to the post of Head

Mistress by preferring an Appeal No.29 of 2021. Petitioner

as well as respondent Nos. 1 to 3 filed reply in the said

Appeal. After appraisal of the material and hearing the

parties, the learned Presiding Officer, School Tribunal by

the impugned order was persuaded to allow the Appeal

preferred by respondent No. 6 and set aside the order of

petitioner's promotion dated 1st January, 2021.

4) The learned Presiding Officer was of the view that in

seniority list in the year 2018-2019, respondent No. 6 was

shown senior to the petitioner. Respondent No. 6 was in

fact promoted to the post of Head Mistress. However, upon

an objection being raised by the petitioner, respondent No.

4 vide communication dated 22 nd November, 2019, rejected

the approval.

5) In the opinion of the learned Presiding Officer, School

Tribunal, the respondent No. 4 had not decided the issue

of seniority and had left the issue to be decided by the

Management. The fact that initial date of appointment of

WP-6904-22.DOC

the respondent No. 6 was 1st June, 1993 and that of the

petitioner 1st June, 1993, also weighed with the School

Tribunal. Holding that the respondent No. 4 has not

correctly decided the issue of seniority, the learned

Presiding Officer set aside the order of promotion of the

petitioner and directed the Management to promote

respondent No. 6 to the post of Head Mistress.

6) Being aggrieved, the petitioner has invoked the writ

jurisdiction of this Court.

7) I have heard Mr. Raut, the learned Counsel for the

petitioner, Ms. Manjiri Parasnis, the learned Counsel for

the respondent No. 6 and Mr. S.D. Rayrikar, the learned

AGP for respondent No. 5 - State.

8) The learned Counsel took the Court through the

material on record including the seniority list and the

impugned order passed by the School Tribunal.

9) Mr. Raut submitted that the learned Presiding Officer,

School Tribunal completely misconstrued the nature of the

controversy and the governing principles of law. According

to Mr. Raut, the learned Presiding Officer, School Tribunal

WP-6904-22.DOC

failed to appreciate that in accordance with the provisions

contained in the Rules, 1981, the Education Officer was the

Competent Authority to decide any dispute as to inter se

seniority. In the case at hand, since the Education Officer

had ruled in favour of the petitioner and the said decision

was never called in question, the School Tribunal could not

have ventured into the said aspect and interfered with the

order of promotion, urged Mr. Raut.

10) Mr. Raut laid emphasis on the fact that in the

approved seniority list as of 13 th May, 2017, the petitioner

was shown senior to respondent No. 6. No dispute was ever

raised about seniority. When the post of Head Mistress of

respondent No. 3 - School became vacant, and an occasion

arose to promote an Assistant Teacher in the year 2018-

2019, the seniority list was unlawfully tinkered with and

the respondent No. 6 was shown senior to the petitioner for

no rhyme or reason. Mr. Raut urged with tenacity that to

the said seniority list, the petitioner had raised objection

by making an endorsement, "not acceptable", as is evident

WP-6904-22.DOC

from the copy of the seniority list (Exhibit-D) to the

Petition.

11) Mr. Raut further submitted that the Administrative

Officer - respondent No. 4 upon an objection being raised

by the petitioner ruled on 22nd November, 2019, that the

seniority ought to be determined in accordance with Rule

12 of the Seniority Rules. Approval was accordingly

declined. Ignoring all these facts, according to Mr. Raut,

the learned Presiding Officer, School Tribunal erroneously

observed that the fact that the respondent No. 6 was

shown senior to the petitioner in the seniority list in the

year 2018-2019, was admitted. Therefore, the impugned

order warrants interference.

12) Per contra, Ms. Parasnis submitted that School

Tribunal had correctly appreciated the issue of seniority

and no interference is warranted in exercise of writ

jurisdiction. It was urged that the respondent No. 6 was in

fact appointed with respondent No. 3 - School on 1 st June,

1990. Respondent No. 6 was shown senior in the seniority

list for the year 2001- 2002. In the circumstances, the

WP-6904-22.DOC

claim of petitioner that she is senior to respondent No. 6

was rightly discarded by the School Tribunal, urged Mr.

Parasnis.

13) In the backdrop of the aforesaid facts, which have

been noted fairly elaborately, the question that crops up for

consideration is whether the School Tribunal was justified

in interfering with the order of promotion of the petitioner

to the post of Head Mistress on the ground that the

Education Officer had not correctly and properly decide the

inter se seniority ?

14) At the outset, it is necessary to note, the impugned

order manifests two contradictory findings as regards the

determination of seniority by the Education Officer. At one

stage, the learned Presiding Officer, School Tribunal

observes that the Education Officer had not decided the

dispute about inter se seniority between petitioner and

respondent No.6 (paragraph No. - 11) and, at another

stage, the learned Presiding Officer concludes the

Education Officer had not decided the question of seniority

correctly and legally (paragraph No. - 13).

WP-6904-22.DOC

15) It may be apposite to immediately notice, the

provisions contained in Rule 12 of the Rules, 1981. It reads

as under:-

".....12. Seniority List (1) Every Management shall prepare and maintain seniority list of the teaching staff including Head Master and Assistant Head Master and non-teaching staff in the School in accordance with the guidelines laid down in Schedule "F". The seniority list so prepared shall be circulated amongst the members of the staff concerned and their signatures for having received a copy of the lit shall be obtained. Any subsequent change made in the seniority list from time to time shall also be brought to the notice of the members of the staff concerned and their signatures for having noted the change shall be obtained.

(2) Objections, if any, to the seniority list or to the changes therein shall be duly taken into consideration by the Management.

(3) Disputes, if any, in the matter of inter se seniority shall be referred to the Education Officer for his decision. "

16) The aforesaid Rules, cast an obligation on the

management to prepare and maintain seniority list of

teaching and non-teaching staff in accordance with the

guidelines given in Schedule "F". The seniority list so

prepared is required to be circulated amongst the members

of the staff concerned. Any subsequent change is also

required to brought to the notice of staff concerned and

WP-6904-22.DOC

their signatures obtained in acknowledgment of having

noted the change. The rule envisages an opportunity to the

employees to raise an objection to the seniority and enjoins

the management to consider the same. If any dispute

arises in the matter of inter se seniority, Sub Rule (3) of

Rule 12, 1981, warrants its reference to the Education

Officer for a decision thereon.

17) In the case at hand, all the aforesaid features of the

Rule 12, 1981, seem to have found their practical

application. A seniority list for the year 2016-2017 as of 31 st

May, 2017, was prepared and circulated (Exhibit-C to the

Petition). It seems to have been noted both by the Petitioner

and respondent No. 6, in particular, without any protest.

For the year 2018-2019, again the seniority as of 1 st June,

2018, was circulated with a change qua the petitioner and

respondent No. 6. Now the respondent No. 6 was shown

senior to the petitioner. A copy of the seniority list (Exhibit-

D) reveals that the petitioner promptly raised an objection

by making an endorsement "not acceptable". Lastly, the

inter se seniority dispute eventually came before the

WP-6904-22.DOC

Education Officer and vide communication dated 29 th

November, 2019, the respondent No. 4 ruled that since the

petitioner and respondent No. 6 were both appointed on 1 st

June, 1993, the person, who is senior by age, will be

treated as senior. It seems on the basis of the said

decision, the respondent No. 1 was reduced in rank to the

post of Assistant Teacher.

18) The learned Presiding Officer, School Tribunal was,

however, of the view that the Education Officer had not

decided inter se seniority dispute. I am afraid in the

backdrop of the material on record and the communication

dated 22nd November, 2019, such a view could not have

been legitimately recorded. The learned Presiding Officer,

School Tribunal lost sight of the fact that up to the year

2016-2017, the petitioner was shown senior to respondent

No. 6 and later had not lodged any protest.

19) This may not amount to an acquiescence on the part

of respondent No. 6. However, when the seniority list was

changed for the year 2018-2019, the petitioner raised an

objection. In this view of the matter, the learned

WP-6904-22.DOC

Presiding Officer, School Tribunal could not have held that

there was no dispute that in the seniority list for the year

2018-2019, the respondent No. 6 was shown senior to the

petitioner. Such inference coupled with contradictory

findings as to the decision by the Education Officer about

inter se seniority of petitioner and respondent No. 6,

impaired the approach of the learned Presiding Officer,

School Tribunal. As a matter of fact, the Education Officer

had in terms decided in favour of the petitioner by giving a

ruling that since the petitioner and respondent No. 6 had

joined the service on the same date i.e. 1 st June, 1993, the

one senior in age would be senior in service.

20) Ms. Parasnis would however urge that the said finding

is against the weight of the record. Respondent No. 6 had

joined the service on 1st June, 1990, support was sought to

be drawn from the appointment order dated 15 th May, 1990.

It indicates that the respondent No. 6 was appointed on

purely temporary basis for the period of one year. The

appointment order dated 15th June, 1993, whereby the

WP-6904-22.DOC

respondent No. 6 was appointed as an Assistant Teacher

with effect from 1st June, 1993, seals the issue.

21) Ms. Parasnis, relied upon a seniority list maintained

for the year 2001-2002, in which respondent No. 6 was

shown senior to the petitioner (Exhibit-E to the affidavit-in-

reply). I am afraid the said document is of any assistance

to the respondent No. 6. It does not seem to have been

prepared, maintained and circulated in the manner

ordained by Rule 12 of the Rules, 1981. In any event, the

basis of seniority of respondent No. 6 in the said chart is

the appointment on temporary basis in the said school.

Conversely, in the seniority list for the year, 2016-2017,

maintained and circulated in accordance with the Rules,

1981, the respondent No. 6 was shown junior to the

petitioner.

22) In the aforesaid view of the matter, the learned

Presiding Officer, School Tribunal was not justified in

arriving at a finding that the respondent No. 6 was senior

in service to the petitioner and on that premise set aside

the order of promotion dated 1st January, 2021.

WP-6904-22.DOC

23) Resultantly, the Petition deserves to be allowed.

Hence, the following order.

-:ORDER:-

(i)       The Petition stands allowed.

(ii)      The impugned judgment and order dated 6 th

April, 2022, stands quashed and set aside.

(iii) The order of promotion of the petitioner to the

post of Head Mistress dated 1st January, 2021, stands

restored with continuity in service and all

consequential benefits without backwages.

(iv) The order of status quo passed by this Court on

13th June, 2022, stands vacated and the salaries of

the petitioner and respondent No. 6 be released in

conformity with the aforesaid order.

(v) Rule made absolute to the aforesaid extent.

(vi)      No costs.


                                                    [N. J. JAMADAR, J.]