Shri. Mahadeo Dnyanu Lingade And ANR v. The State Of Maharashtra Thru The Secretary, School Education Dept. And ORS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.12714 OF 2018

1. Mahadeo Dnyanu Lingade

2. Loksewa Udyog Sheti Va Shikshan Vikas Sanstha .. Petitioners Vs.

The State of Maharashtra through the Secretary, School Education Department & Ors.

.. Respondents Mr. N.V. Bandiwadekar I/b. Ms. A.N.Bandiwadekar for the petitioners. Mrs. Vaishali Nimbalkar, AGP, for respondent nos.1 to 3. Mr. A.V. Anturkar, Senior Advocate, a/w Rajaram Deshmukh for respondent no.4.

CORAM : A.K. MENON, J.

DATED : 21 st FEBRUARY, 2019.

P.C. :

1. The challenge in this writ petition is to an order dated 22 nd October, 2018 by which the 4 th respondent was declared as senior to the 1 st petitioner. Considering the nature of the dispute and the scope of the petition, it was felt appropriate that the petition can be disposed finally at the stage of admission. Accordingly, by consent of parties, petition is taken up for final disposal at the stage of admission. 1/22

2. Rule. Rule returnable forthwith.

3. The facts in brief are as follows;

The 2 nd petitioner is managing one school which employs 1 st petitioner and the 4 th respondent. The 1 st respondent is the State of Maharashtra, the 2 nd respondent being the Deputy Director of Education, Pune Region and the 3 rd respondent is the Education Officer(Secondary), Zilla Parishad, Solapur. The 1 st petitioner and the 4 th respondent joined as an Assistant teachers in a school managed by the 2 nd petitioner. The school is recognized by the State and aided institution which manages classes of standard 5 to 10 on aided basis and a classes of standard 11 and 12 for the Arts faculty on an unaided basis. The 1 st petitioner and the 4 th respondent were appointed one after the other. The 1 st petitioner was born on 1 st June, 1961 and was appointed in the open category having qualified with a B.A. in Marathi in 1985 and B.

Ed Marathi/History in 1988. He was qualified to be appointed as an assistant teacher in the secondary school. By an order dated 22 nd September, 1988, the 1 st petitioner came to be appointed as assistant teacher with effect from 1 st October, 1988 enjoying a pay scale of a trained graduate teacher. He worked in this position till 11 th June, 1989. On and from 9 th June, 1989, the 1 st petitioner was continued in service on a permanent basis as assistant teacher effective from 12 June, 1989 without a break in service.

approval of the appointment of the 1 st petitioner which respondent no.3 granted on or about 24 th June, 1999. Meanwhile on 2 nd February, 1989 respondent no.4 was appointed as an assistant teacher in the school.

4. The 4 th respondent was also born on 1 st June, 1961. He secured qualifications of B.A. in 1984 and B.Ed in 1987 and M.A. in 1988. The th respondent was appointed as an assistant teacher with effect from nd February, 1989. The 3 rd respondent granted approval to the appointment of the 4 th respondent also vide order dated 24 th June, 1999. By order dated 13 th January, 1994 the 3 rd respondent granted approval of the appointment of the petitioner no.1 on permanent basis by way of continuity from 12 th June, 1989. Thus, 1 st petitioner was appointed as teacher from 1 st October, 1988 and 4 th respondent from nd February, 1989. The 3 rd respondent granted approval to both these persons from the dates of appointment.

It transpires that upon retirement of the head master of the school on 31 st May, 2018, the 1 st petitioner was promoted as incharge head master from 1 st June, 2018 till regular promotion was granted. The 2 nd petitioner submitted a proposal to the 3 rd respondent for approval and was granted approval on 20 th June, 2018 as incharge head master permitting him to sign pay bills and to look after day to day administration of the school for the period from 1 st June, 2018 to 31 st August, 2018.

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5. On 3 rd September, 2018 the 3 rd respondent extended the signing authority to 1 st petitioner from 1 st September, 2018 to 30 th November, 2018. Some internal disputes are stated to have arisen in the management which also led to dispute in seniority claims between the st petitioner and the 4 th respondent. At that stage, the 2 nd respondent was requested to conduct a hearing and decide the matter of inter-se seniority. As a result of the dispute, it appears that the management called upon the 2 nd respondent vide letter dated 22 nd June, 2018 protesting the promotion of 1 st petitioner as head master. The 2 nd respondent, however, made enquiries with 3 rd respondent. In this behalf the 3 rd respondent addressed a letter dated 17 th July, 2018 to the 2 nd respondent informing him of the developments as to the dispute in seniority.

2 nd respondent was requested to conduct a hearing and decide the dispute. The 2 nd respondent on 11 th September, 2018 informed the 3 rd respondent of a hearing scheduled on 27 th September, 2018 copies were also sent to the petitioners and 4 th respondent and after permitting the parties to file their written submissions the hearing was held. The 2 nd respondent reportedly considered the dates of appointment and vide order dated 22 nd October, 2018 held that 4 respondent was senior to 1 st petitioner as per government circular dated 14 th November, 2017 issued by 1 st respondent as well government resolution dated 5 th October, 2015.

was therefore directed to submit a proposal to the 3 rd respondent seeking approval of the promotion of respondent no.4 as head master of the school. Approval was then granted on 31 st October, 2018. It is these orders that the petitioners have challenged.

6. Mr. Bandiwadekar, the learned counsel for the petitioners submitted that the 1 st petitioner was appointed as a teacher from 1 st October, 1988 whereas the 4 th respondent was appointed only on 2 nd February, 1989 approval was granted to these two persons only from their dates of appointment and therefore the petitioner was senior to the 4 respondent not only on the basis of their appointments but also on the basis of continuous officiation. The 1 st petitioner he submitted was in continuous service right from his date of appointment whereas seniority of the 4 th respondent could be assessed only from 2 nd February, 1989 on the basis of continuation of the officiation. He submitted that the management prepared the seniority list.

The 1 st petitioner was shown as being appointed on 1 st October, 1988 and the th respondent on 2 nd February, 1989. Therefore the 1 st petitioner was placed above 4 th respondent in the assistant teacher category. The 1 st petitioner came to be appointed as incharge head master on 1 st June, 2018 and once again the seniority list, 1 st petitioner was placed above the 4 th respondent. In the year 2013-14, however, the petitioner no.

were shown as 1 st October, 1988 and 2 nd February, 1989.

7. Mr. Bandiwadekar submitted that although this was an incorrect representation the 1 st petitioner did not deem it necessary to raise an objection at that stage to the seniority list. According to him, in the academic year 2018-19 when the seniority list was prepared, 1 st petitioner was at serial number 1 and 4 th respondent at serial no.2 as he was then a supervisor, the 4 th respondent having been promoted to that post in the year 1998. It is only upon the head master of the school superannuating on 31 st May, 2018, that the issue of promoting the 1 st petitioner was taken up.

8. Mr. Bandiwadekar submitted that the impugned order is illegal and passed without jurisdiction. He submitted that the representation of the management could have been decided only by the 3 rd respondent who was the Education Officer. He submitted that the disputes as to inter-se seniority would necessarily have to be decided by the Education Officer and in the instant case the matter was referred by the Education Officer to the Deputy Director of Education, 2 nd respondent, which could not have been done. According to Mr. Bandiwadekar it was incumbent upon the 3 rd respondent to decide the issue himself and therefore the order passed by 2 nd respondent is without jurisdiction and therefore invalid.

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9. Mr. Bandiwadekar contended that under Rule 12 of the MEPS Rules, only the 3 rd respondent would have exercised jurisdiction in the matter of inter-se seniority and this could not have been referred to the Deputy Director. He invited my attention to the provisions of Rule 12 sub rule (3) which sets out that disputes in the matter of inter-se seniority shall be referred to the Education Officer for this decision. He therefore submitted that the order being passed without jurisdiction, could not be sustained. According to Mr. Bandiwadekar, the 2 nd respondent being not vested with jurisdiction under Rule 12 could not have exercise his discretion and ordered the change in the seniority. According to Mr.

Bandiwadekar, the 2 nd respondent would have jurisdiction only when the dispute of inter-se seniority was between the teachers working in a higher secondary school or junior college and therefore the order impugned is not sustainable. He submitted that respondent no.4 is also believed to have made a representation with regard to the appointment of 1 st petitioner as incharge head master claiming that he was senior to the 1 st petitioner. Thus, clearly there was a dispute which is correctly described as one pertaining to inter-se seniority and in the face of such a dispute only the 3 rd respondent could have exercised jurisdiction. He reiterated that there was no justification in the 3 rd respondent referring the matter to the 2 nd respondent.

action. Despite the fact that the 2 nd respondent was superior in rank to the 3 rd respondent, the 3 rd respondent could not avoid his responsibilities and request the 2 nd respondent to conduct the hearing.

10. Mr. Bandiwadekar, therefore submitted that the 2 nd respondent had erred in passing the impugned order that even on facts and on the basis of continuous officiation the 4 th respondent could not be treated as senior. He submitted that service book of the 1 st petitioner also reflected this fact of seniority and therefore there is no occasion for the nd respondent to adopt the course of action that he has. According to him, the service book showed the 1 st petitioner as senior to the 4 respondent and 4 th respondent has not taken any objection at the relevant time. Although on some occasions 1 st petitioner was shown below the 4 th respondent, the date of appointment of the 1 st petitioner was undoubtedly prior to that of 4 th respondent.

11.Mr. Bandiwadekar then submitted that the 2 nd respondent who also failed to consider the provisions of Schedule F of the MEPS Rules which provided that seniority of teachers had to be counted on the basis of continuous officiation and that there was no doubt of the dates on which the petitioner had assumed charge. The service book of 4 respondent had showed his initial date of appointment is from 2 nd 8/22

February, 1989. However, the next year he has shown as from 12 June, 1989 whereas there is a break in service on 30 th April, 1989 this break in service was from 1 st May, 1989 to 11 th June, 1989. For this reason also it is submitted that 4 th respondent could not have been treated as senior to the 1 st petitioner. Mr. Bandiwadekar, the learned counsel for the petitioner submitted that no other criteria could be gone into for determining the seniority such as date of birth, qualifications etc. The reliance placed on the government resolution was stated to be misconceived. Furthermore, the fact that 4 respondent held higher educational qualification that of a Master of Arts did not entail any change in the seniority position and that the seniority list of 1999-2000 wherein the petitioner no.1 was placed after respondent no.4 by itself did not weaken the case of the petitioner since in the subsequent seniority list, the petitioner was placed above respondent no.4 to which no objection was raised by the 4 respondent.

12. Furthermore, the fact that 4 th respondent having passed diploma management school and having completed training was not relevant. Mr. Bandiwadekar further submitted that the government resolution dated 14 th November, 2017 is in breach of Schedule F and the rules has already in challenge in various writ petitions. Mr. Bandiwadekar then submitted that the impugned order has proceeded on the basis of the 9/22

promotion given to the 4 th respondent as supervisor from 15 th June, 1988 and to which approval was granted by 3 rd respondent on 18 January, 1989. The 2 nd respondent failed to consider that only because of 4 th respondent promoted as supervisor did not change the seniority position of either party. In other words, the promotion to the post of supervisor is of no consequence. It is was further contended on behalf of the petitioner that during the hearing before the 2 nd respondent, it was contended that the order dated 24 th June, 1999 which was projected as revised approval order was fabricated by virtue of which a footnote was inserted showing that the earlier approval granted to the st petitioner was cancelled and that the revised order has been issued while impugned order had not taken this into consideration. Thus, in these circumstances, the order must be quashed.

13. Mr. Bandiwadekar further submitted that after the writ petition was filed on 30 th October, 2018 the matter was mentioned before the Court and circulation was granted for admission on 19 th November, 2018 since the Courts were remained to be closed during the Diwali vacations. This petition was sought to be served by hand delivery on rd and 4 th respondent but 4 th respondent declined to accept the same and ultimately it is accepted on 6 th November, 2018. On 1 st November, 2018 the 4 th respondent contended that he had already been granted 10/22

approval as head master of the school by 3 rd respondent. Although at that time the petitioner had not received any communication from 3 rd respondent, he submitted that application was made under the R.T.I. Act on behalf of 2 nd petitioner and in response thereto, a copy of the office noting granting approval to 4 th respondent as well as an order dated 31 st October, 2018 issued by respondent no.3 granting approval to the promotion of 4 th respondent as head master was provided. The petition was therefore amended to challenge the order dated 31 st October, 2018. It is the petitioners contention that 3 rd respondent acted as hastily and in order to frustrate the writ petition and there was no question of the management submitting any proposal to the 3 rd respondent seeking approval of the 4 th respondent as headmaster.

It is contended that there was a dispute among the members of the management and a rival group which is not really involved in the affairs of the 2 nd petitioner trust and the school had been instrumental in the 4 th respondent's appointment. Accordingly, it is contended that there was violation of principles of natural justice inasmuch as 3 rd respondent tried to overreach the orders that this Court may pass by issuing the impugned order inspite of being informed that the writ petition being filed would be coming up for admission on 19 November, 2018.

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14. Mr. Bandiwadekar relied upon the following judgments:

(1) Harshad Chiman Lal Modi v/s. DLF Universal Ltd. & Another1

(2) I.C.I.C.I Ltd. And another v/s. Sharad Khanna and others2 15.The petition is opposed on behalf of 4 th respondent by Mr. Anturkar who relied upon the contents of an affidavit in reply dated 29 November, 2018. Mr. Anturkar submitted that the petitioner had suppressed the material facts and had not disclosed the true and correct facts. He submitted that the petition is not maintainable since the signatory to the petition is not the Secretary of the Lokseva Udyog Sheti Shikshan Vikas Seva Trust.

It is submitted that the appointment of the 1 st petitioner and the 4 th respondent was given on 12 th June, 1989 but there was break in service from 12 th June, 1989 and the appointment of both 4 th respondent and the 1 st petitioner was to be treated as continuous from 12 th June, 1989 and both 1 st petitioner and 4th respondent were born on the same date. After considering all factors permanent approval was granted by the Education Officer, Secondary, on 13 th January, 1994 and in that approval 4 th respondent is shown at serial number 1 and was therefore treated as senior to the st petitioner. That from 1 st June, 1990 to 31 st October, 1993, 4 respondent was working as head master of the school and thereafter (2005) 7 scc 791 1993 (1) Mh.L.J.

considering the seniority he was appointed as a supervisor on a promotional post on 15 th June, 1998. That in 1998 a seniority list was prepared and that the 4 th respondent was shown at serial number 1.

The seniority list is also signed by the petitioner who has never disputed the seniority list. Not having disputed the seniority list, it was contended that the 1 st petitioner could not challenge the seniority today. That the date of birth and the date of joining of both the candidates were the same and therefore the higher qualification should be taken into consideration. That the 2 nd respondent had considered all the issues and come to the conclusion that the 4 respondent was senior most. The 4 th respondent had obtained a Diploma in School Management as well as training as headmaster having completed the National Secondary Education Programme. However, 1 st petitioner had not completed this training and clearly 4 respondent has a higher qualification. That 4 th respondent was also working as a supervisor since 1998 apart from the headmaster from 1 st June, 1990 to 31 st October, 1993.

16. Mr. Anturkar contended that 2 nd respondent is a higher and superior officer to the Education Officer who had the jurisdiction to entertain the dispute of the seniority. It is further contended by Mr. Anturkar that 4 th respondent has been senior to the 1 st petitioner since 1989. In 13/22

this behalf he referred to a statement at Exhibit H-4 to the affidavit in reply being the seniority list wherein the 4 th respondent is shown at serial number 1 and the 1 st petitioner at serial number 2. It is further contended that after the order was passed by 2 nd respondent, the 4 respondent has taken charge, submitted the salary bills and has been functioning in the capacity as head master since 31 st October, 2018. In that sense the order of the Deputy Director of Education has already been implemented and the management has acted upon the same.

17. On behalf of the respondents, it is further submitted that the petitioners grievance relates to supersession and approval granted was on the basis of 4 th respondent having been appointed as supervisor in 1998 that the appointment of supervisor was on the basis of seniority in the year 1998 which was not challenged. Being a matter of supersession it will be for the school tribunal to decide the issue in accordance with the decision in St. Ulai High School v/s. Devendraprasad Jagannath Singh and another 3.

18. I have heard the learned counsel for the parties at length and considered the factual matrix which prima facie indicates that there are disputed questions of fact which need to be gone into. The 1 st petitioner and 4 th respondent are born on the same date and have been 2007(1) Mh.L.J. 597 14/22

shown senior to one another at different stages without protest on either side. In the petition, the petitioners have reiterated that although "on some occasions" 4 th respondent was shown as senior to st petitioner but the 1 st petitioner did not think it necessary to object to the seniority list. Thus the petitioners admit that the 4 th respondent was shown as senior to the 1 st petitioner and yet the 1 st petitioner did not think it necessary to question the seniority list. The dispute in the management of the 2 nd petitioner has also resulted in controversy over authorization of the 2 nd petitioner to pursue the matter before this Court. It is a common ground that the dispute pertaining to the management of the 2 nd petitioner trust is engaging the attention of Charity Commissioner and it is on this basis that the Education Officer has proceeded to request the 2 nd respondent Deputy Director of Education to consider the issue and take a decision in the matter.

19. A perusal of the order impugned in this petition reveals that the Education Officer who is the appropriate authority to take decision. vide his letter dated 17 th July, 2018 requested the Deputy Director of Education-2 nd respondent to take decision on the disputed aspects. Vide his letter, he has informed the 2 nd respondent that the proposal for approving the 2 nd petitioner as head master was made by the Secretary of the 2 nd petitioner trust whereas the proposal for approval of the 4 15/22

respondent was made by the Chairman/Secretary of the trust. One request followed was closely by the other. The petitioners proposal having been sent on 26 th June, 2018 and the 4 th respondent's on 2 nd July, 2018, the Education Officer was of the view that it cannot be ascertained whether either of the two persons was authorized to submit proposals and in this context the Education Officer- 3 rd respondent had sought information relating to a change report is said to be pending before the Charity Commissioner. The Education Officer therefore took a view that unless the change report was allowed, approval could not be granted.

Since the 1 st petitioner was appointed initially he has been given authority to sign the salary bills on a temporary basis from 1 st June, 2018 to 31 st August, 2018, disputes as to seniority between the 2 nd petitioner and the 4 th respondent having arisen, it was thought fit to appoint another person. There were further issues pertaining to seniority list inter-se between the persons next in line and it is in these circumstances the Education Officer has decided that the concerned parties may be heard by the Deputy Education Officer and a decision be given.

20. Mr. Bandiwadekar had relied upon copies of the appointment orders dated 29 th September, 1988 and 9 th June, 1989 in respect of the 1 st petitioner as also approvals of appointment of 1 st petitioner and 4 16/22

respondent dated 24 th June, 1999 and 13 th January, 1994 as also the communication dated 17 th July, 2018 written by the 3 rd respondent to the 2 nd respondent. Reliance was also placed on the submissions made by the 1 st petitioner to 2 nd respondent in which the 1 st petitioner has made submissions on merits. There was no challenge to the authority, jurisdiction or competence of 2 nd respondent to decide the issue. The hearing was accordingly proceeded with without any protest.

21. Although Mr. Bandiwadekar had submitted that merely because the hearing was conducted before a wrong forum and the 1 st petitioner had participated it will not make the decision valid, I am of the view that the Act does not contain any provision which disqualifies the Deputy Director on a request of the Education Officer hearing the matter specially since the matter was referred to him by the Education Officer. The matter relating to disputes in the management obviously could not have been dealt with by the Education Officer whose jurisdiction would be restricted within the four corners inter-se seniority matters. I am therefore, unable to accept the contention of Mr. Bandiwadekar that although the 1 st petitioner attended the hearing without protest, made submissions and invited a decision it would render the decision bad for want of jurisdiction. 17/22

22. Mr. Bandiwadekar also relied upon the joining report and resolutions passed by the School Committee on 14 th June, 1998, approval granted on 18 th January, 1995 and the government resolution dated 5 October, 2015 which inter alia deals with the aspect of preference of a candidate with higher educational qualifications. The decision of the nd respondent was inter alia also based on consideration of this resolution. It is on the basis of this resolution that the higher qualification of the 4 th respondent has been considered. One of the contentions of Mr. Bandiwadekar is that the compilation of documents was relied upon by the petitioners will show that the 4 th respondent was granted benefit of senior scale after 12 years of the service and selection grade after 24 years of service with effect from 2 nd February, 1989.

However, at the hearing before the Deputy Director and before this Court, the 2 nd respondent contended that date of continuous officiation was not 2 nd February, 1989 but 12 th June, 1989 therefore the claim of the 4 th respondent was false. He submitted that the information was on the basis of R.T.I. application dated 1 st November, 2018 which shows that the appointment of 4 th respondent was shown from 2 nd February, 1989.

consideration before the appropriate forum as and when the order impugned is challenged before the appropriate forum.

23. In the course of arguments, one of the submissions advanced was that under Rule 12(3) matters of inter-se seniority shall be referred to Education Officer for his decision. The fact remains that the Education Officer has in the facts of the case and having observed that there was serious dispute amongst the management had referred the matter to the 2nd respondent-Deputy Director of Education who has heard the parties and passed an order. Although Rule 12(3) does provided for disputes of inter-se seniority to be referred to the 3 rd respondent, it is on account of the disputes in the management that the Education Officer has referred the matter to the superior authority. Nothing in the M.E.P.S.

Act and Rules prohibits the Deputy Director of Education from taking a decision in the matter specially since the parties have appeared before him and had agitated the issues raised in the present petition. There are also disputes pertaining to the entries in the service book extracts of 1st petitioner and 4th respondent. One of the contentions taken up by the respondent is that owing to the disputes between the parties custody of the service book and the entries therein are not authentic. These also give rise to the disputed questions of fact.

24. Mr. Bandiwadekar had relied upon the decision in Harshad Chimanlal Modi (supra) in support of his contention that an order which was required to be passed by the authority should be in accordance with law and in the present case the dispute of inter-se seniority list ought to have been referred to the Education Officer who has required to decide the same. It is not a case where the Deputy Director- 2nd respondent has usurped powers of some other authority viz. the 3 rd respondent. Although Mr. Bandiwadekar had referred to a resolutions of the management, the fact that serious disputes exists among the management is admitted and I am of the view that the decision cited by Mr. Bandiwadekar on behalf of the petitioners are of no avail.

25. On the other hand, in the case of St. Ulai High School (supra) the full bench has held that where action has been taken by the management against an employee on the basis of such a determination of the Education Officer, an appeal could be filed before the school tribunal. It is only in cases where no consequential action has been taken by the management, it would be open to the employee to take recourse against the decision under Rule 12 in accordance with law. It is also a trite law that the decision of the Education Officer is not final. It is also to be noted that after the petition was filed on 30th October, 2018 no application was made for ad-interim relief but only circulation was 20/22

sought and was granted on 19th November, 2018. No application for ad-interim relief was made nor was an attempt made to move the vacation Court or leave sought to move the vacation court. In the meantime, the impugned order was given effect to. No doubt there may have been some haste in giving effect to the order but the amendments carried out to the petition also made allegations of fabrication of document as can be seen from paragraphs 28 and 29 of the petition. These are matters that there cannot be considered in this writ petition. These are aspects that can be conveniently decided in proceedings before the appropriate forum.

26. In view of the fact that the 1st petitioner claims to have been deprived despite the seniority he claims that to be entitled to and given the effect of the close contest between the parties and which is compounded by disputes in the management, I am of the view that this is not a fit case that interference more so because the 4th respondent has already been in office for sometime and has been officiating as headmaster. It is also in the interest of the institution that they have some stability of attending to administrative matters in the school. Even otherwise the decision of the Education Officer is not final on the aspect of inter-se seniority. In the instant case, the hearing may have been conducted by the 2 nd respondent at the request of the 3 rd respondent. The decision is 21/22

effectively at the behest of the 3 rd respondent. In this case consequential action has already been taken by the management although there is a dispute within the management itself. It would in my view constitute an action falling within Section 9(1)(b) of the MEPS Act and the decision taken to appoint the 4 th respondent is deemed one under Rule 12(3). It is made clear that this Court has not taken any view on merits of the rival claims between the 1 st petitioner and the 4 respondent. It is clarified that filing of this writ petition will not bar the filing of an appeal, if any filed and if in the event of any delay having occasioned, the tribunal will consider the duration of the pendency of this writ petition in any application for condonation of delay. In these circumstances, I am of the view that the impugned order does not call for interference in the writ jurisdiction of this Court. It will be open for the petitioner to approach the school tribunal for redressal of his grievances. I therefore, pass the following order;

(i) Writ petition is dismissed.

(ii) No orders as to costs.

(A.K.MENON,J.) wadhwa 22/22