Bombay High Court
The Chairman/ President / ... vs Mrs. Jyostna Anil Surve And Ors on 10 March, 2023
Bench: N. J. Jamadar
21-WP5058-2022.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SANTOSH
SUBHASH WRIT PETITION NO. 5058 OF 2022
KULKARNI
Digitally signed by
SANTOSH SUBHASH
KULKARNI
1 The Chairman/President/Secretary
Date: 2023.03.13
17:24:38 +0530 The General Education Society, Having
office at : Dadar, Mumbai - 28
2 The Head Master/Principal G.E.I. New
English School and Junior College, Joshi
Baug, Kalyan (W) ...Petitioners
Versus
1 Mrs. Jyostna Anil Surve
Age : 54 years, Occu. Service
R/at B-2/6, Runwal Nagar, B Plot, Kolbad,
Near Pratap Cinema, Thane (W) - 400 601
2 The Deputy Director of Education,
Jawhar Bal Bhavan, Charni Road,
Mumbai - 400 004
3 The Education Officer (Sec),
Education Department Zilla Parishad,
Thane ...Respondents
Mr. A. A. Garge, a/w Kashyap Bhalerao, for the Petitioners.
Ms. Pranita Pramod Hingmire, for Respondent No.1.
Mr. A. P. Vanarse, AGP for the State/Respondent Nos.2 and 3.
CORAM: N. J. JAMADAR, J.
DATED : 10th MARCH, 2023
JUDGMENT:-
1. Rule. Rule made returnable forthwith and with the
consent of the Counsels for the parties heard finally.
2. The challenge in this petition is to an order dated 3 rd
March, 2022, passed by the Presiding Officer, Additional School
21-WP5058-2022.DOC
Tribunal, Navi Mumbai, on an application (Exhibit-11) preferred
by the petitioner in Appeal No.15 of 2021, whereby the petitioner
sought reference of the purported inter se seniority dispute, to
the Education Officer/Deputy Education Officer in accordance
with the provisions contained in Rule 12(3) of the Maharashtra
Employees of Private Schools (Conditions of Services) Rules,
1981 ("the MEPS Rules").
3. The background facts necessary for the determination of
this petition can be stated in brief as under:
(a) The General Education Society, petitioner No.1, runs,
inter alia, G. E. I. New High School and Junior College at Joshi
Baug, Kalyan (W). Petitioner No.2 is the Principal of the said
College. Respondent No.1 was initially appointed as an
Assistant Teacher on 11th January, 1993. On 1st January, 2020,
respondent No.1, being senior most Assistant Teacher, was
promoted as the Vice Principal of Junior College.
(b) Vide communication dated 30th August, 2021,
petitioner No.1 reverted respondent No.1 to the post of Assistant
Teacher on the strength of a decision taken in the meeting of the
Board of Directors of petitioner No.1 held on 27 th August, 2021.
It was, inter alia, recorded that her seniority ought to have been
considered from 11th January, 1993, instead of 1st August, 1997
21-WP5058-2022.DOC
and thus reckoned, there were other Assistant Teachers, who
were senior in service to respondent No.1.
(c) Being aggrieved, respondent No.1 preferred an appeal
before the School Tribunal under Section 9 of the Maharashtra
Employees of Private Schools (Conditions of Services) Regulation
Act, 1977 ("The MEPS Act").
(d) The petitioners entered appearance. Petitioner No.1
preferred an application (Exhibit-11) assailing the tenability of
the appeal on the ground that there was no reduction in rank,
as such, and the dispute was essentially regarding inter se
seniority amongst the Assistant Teachers. In view of the
provisions contained in Rule 12 of the MEPS Rules, the said
issue was within the province of the authority of Education
Officer. Therefore, petitioner No.1 prayed for dismissal of the
appeal and reference of the dispute to the Education Officer.
(e) By the impugned order, the learned Presiding Officer,
School Tribunal, was persuaded to reject the application holding
that petitioner No.1 - Management had not finalized the
seniority list in accordance with the mandate contained in Rule
12(1) of the MEPS Rules. Resultanly, it cannot be said that
there was a dispute as to inter se seniority simplicitor. The
Presiding Officer thus directed the filing of reply by the
21-WP5058-2022.DOC
petitioners and determination of the appeal, thereafter, in an
expeditious manner.
4. Being aggrieved, the petitioners have invoked the writ
jurisdiction of this Court.
5. Mr. Garge, the learned Counsel for the petitioners,
submitted that the Presiding Officer was clearly in error in
rejecting the application. Inviting the attention of the Court to
the communication impugned before the School Tribunal and
the letter dated 1st September, 2021 (Exhibit-H), whereby the
said decision was accepted by respondent No.1, albeit under
protest, and the seniority list of the Assistant Teachers prepared
by petitioner No.1, it was strenuously submitted that petitioner
No.1 had merely corrected an inadvertent mistake as there were
other Assistant Teachers, who were senior in service to
respondent No.1. In any event, according to Mr. Garge, Vice
Principal is not a designated promotional post. Therefore, there
was no reduction in rank, in the strict sense of the term.
6. Mr. Garge would further urge that as the Assistant
Teacher was designated as a Vice Principal by the sheer force of
seniority, having noticed that there was an error in reckoning
the seniority of respondent No.1 viz-a-viz other Assistant
Teachers, petitioner No.1 was fully justified in revoking the order
21-WP5058-2022.DOC
of appointment of respondent No.1 as the Vice Principal. Mr.
Garge would thus urge that the dispute is about inter se
seniority pure and simple. Inviting the attention of the Court to
the provisions contained in Rule 12(3) which warrant reference
of the dispute in the matter of inter se seniority to the
Education Officer, Mr. Garge would urge that the petition
deserves to be allowed.
7. Rule 12 of the MEPS Rules 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 list shall be obtained. Any
subsequent change made in the seniority list from time to
time shall also be bought 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 duty 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."
8. Ms. Hingmire, the learned Counsel for respondent No.1,
laying emphasis on Sub-Rule (1) of Rule 12 stoutly submitted
that the question of reference of the dispute to the Education
Officer about inter se seniority under Sub-Rule (3) would arise
only after the management adheres to the mandate contained in
21-WP5058-2022.DOC
Sub-Rule (1) in the matter of fixing the seniority. In the case at
hand, petitioner No.1 Management nowhere claims that
seniority was fixed in the manner ordained by Sub-Rule (1) of
Rule 12. Without fixing the seniority and providing an
opportunity of raising objection to the provisional seniority,
respondent No.1 was unjustifiably divested of the office of the
Vice Principal. The learned Presiding Officer, School Tribunal,
was thus justified in rejecting the application.
9. Mr. Garge could not dispute the fact that the seniority list,
on which reliance was sought to be placed on behalf of the
petitioners, had not been circulated amongst members of the
staff concerned. Nor objection thereto considered and
determined by the Management. However, according to Mr.
Garge, the issue can be resolved by giving time to the petitioners
to circulate the seniority list, invite the objection and, thereafter,
determine the seniority.
10. I am afraid the aforesaid course can be resorted to, at this
juncture. Implicit in the aforesaid submission is non-
compliance of the provisions contained in Sub-Rules (1) and (2)
of Rule 12. In the circumstances, the question as to whether
the impugned action of divesting respondent No.1 of the office of
Vice Principal, on which the respondent No.1 admittedly worked
21-WP5058-2022.DOC
pursuant to the promotion order, constitutes reduction in rank,
is required to be determined by the School Tribunal. Thus, no
fault can be found with the impugned order declining to make a
reference of the dispute to the Education Officer.
11. Mr. Garge next attempted to assail the tenability of the
appeal before the School Tribunal on the count of non-joinder of
a necessary party. It would be suffice to observe that all issues
would be open for consideration by the School Tribunal.
12. Resultantly, the petition deserves to be dismissed.
13. Hence, the following order:
:ORDER:
(i) The petition stands dismissed.
(ii) Rule discharged.
(iii) No order as to costs.
[N. J. JAMADAR, J.]
