RAVINDRA v. GHUGE ANDY. G. KHOBRAGADE, JJ.DATE
Legal Reasoning
903-WP-11261-2023.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 11261 OF 2023Savita d/o Manmath SwamiAge: 56 years, Occ. Service,R/o: Near Omkareshwar Temple,Chakur, Tq. Chakur,Dist. Latur… PETITIONER VERSUS1.The State of Maharashtra Through its Secretary,School Education & Sports Department,Mantralaya, Mumbai2.The Deputy Director of EducationLatur Division, Latur3.The Education Officer (Secondary),Zilla Parishad, Latur,Tq. & Dist. Latur4.Jagat Jagruti Shikshan Prasarak Mandal,Chakur, Dist. Latur,Through its Secretary 5.The Headmaster Jagat Jagruti Vidya Mandir,Chakur, Dist. Latur … RESPONDENTS .…Mr. B. R. Kedar, a/w Mr. S. K. Mathpati, Advocates for Petitioner Mr. S. K. Tambe, AGP for Respondent Nos. 1 to 3 Mr. Vivek Dhage, Advocate for Respondent No.4 Mr. R. R. Deshpande, Advocate h/f Ms Priyanka Deshpande,Advocate for Respondent No.5 .… 1 of 12 (( 2 ))903-WP-11261-2023CORAM: RAVINDRA V. GHUGE ANDY. G. KHOBRAGADE, JJ.DATE:03.01.2024ORAL ORDER (Per- Ravindra V. Ghuge, J.) :- 1.The Petitioner who is a lady teacher, has put forth prayerclauses (A), (B), (C) and (D) as under:-“(A)To direct the respondent No.4 to revise the seniority listas per the directions issued by the respondent No.3 – EducationOfficer vide order dated 03.01.2023 and submit the proposal ofsenior most teacher for appointment on the post of Headmasterof the respondent No.5 – School within stipulated period, byissuing a writ of mandamus or any other writ, order ordirection as the case may be;(B)To direct the respondent No.3 to decide the proposal forgrant of approval to the appointment of the petitioner on thepost of Headmistress of the respondent No.5 – School, withinstipulated period, by issuing a writ of mandamus or any otherwrit, order or direction as the case may be;(C)To direct the respondent No.1 to 3 to take action againstthe respondent No.4 for continuous default in complying thedirections of the authority, by issuing a writ of mandamus orany other writ, order or direction as the case may be;(D)To direct the respondent No.4 and 5 to implement theorder dated 03.01.2023 passed by the respondent No.3 –Education Officer (Secondary), Zilla Parishad, Latur, pendinghearing and final disposal of the present petition.” 2 of 12 (( 3 ))903-WP-11261-20232.We have considered the extensive submissions of thelearned Advocates for the respective sides, yesterday. Since thehearing continued till late hours, that we posted the matter today fordictating the order.3.Considering the submissions of the learned Advocates forthe respective sides, it is apparent that the Petitioner is before thisCourt, seeking the implementation of the order dated 03.01.2023. Noother issue is raised by the Petitioner in this Petition. The order dated03.01.2023 has been delivered in the backdrop of an order dated11.01.2019 passed by this Court [Coram: S. V. Gangapurwala (as HisLordship then was) and A. M. Dhavale, JJ.] in Writ Petition No. 6613of 2018, which was filed by the present Petitioner. It would beappropriate to reproduce the order since it is the foundation of thisPetition, hereunder :-“. Mr Kedar, learned counsel for the petitioner submits that,as per Rule 12 of the Maharashtra Employees of Private SchoolsRules, it is the Education Officer who has to take decision onthe seniority list. The petitioner had approached the EducationOfficer. The Education Officer, after hearing the parties, haddirected the management to consider the objection of thepetitioner and decide the seniority list. The same ought not tohave been done by the Education Officer. 3 of 12 (( 4 ))903-WP-11261-20232.Mr Dhage, learned counsel for respondent No. 4Management submits that, as per the order of the EducationOfficer, the Management had issued notice to the petitioner.Petitioner did not remain present. The objection of thepetitioner is rejected by order dt. 04.01.2018 and the same isalso communicated to the Education Officer. The learnedcounsel further submits that, respondent No. 4 is appointed asa Headmaster and if the petitioner has to challenge the same,the petitioner has a remedy before the School Tribunal.3.In the present case, we are not concerned with theappointment to the post of the Headmaster. The issue before usis about the seniority. As per rule 12 of the MEPS Rules, it is forthe Education Officer to decide the objection and the seniority.In fact, the Education Officer ought to have decided the saidobjection instead of remitting back to the Management whenthe Management itself has forwarded the seniority list.4.It appears that, as per the order of the Education Officer,the Management has taken a decision on the seniority list andhas also communicated that to the Education Officer underorder dt. 04.01.2018.5.The Education Officer shall take final decision withregard to the seniority list submitted after hearing all theparties concerned as per Rule 12 of the MEPS Rules. The sameshall be done expeditiously, preferably within a period of sixmonths from today.6.The parties herein shall appear before the EducationOfficer on 30.01.2019.”4.It is in pursuance to the above order passed by this Court,by which the parties were directed to appear before the EducationOfficer on 30.01.2019. Needless to state, in view of the said 4 of 12 (( 5 ))903-WP-11261-2023directions, no notice was required to be issued by the EducationOfficer for intimating the date of hearing to any of the litigatingparties at the relevant time.5.A host of grounds have been raised before us byRespondent No.4, which is the education trust and by RespondentNo.5, who is the Head Master of the school at issue. We summarisetheir contentions as under:-(a)Respondent No.5, the purported Head Master of the school Shri S. M. Naragude claims to be the senior most teacher.(b)His first appointment is dated 02.08.2002 in category "C" under Schedule-F of the M.E.P.S. Rules, 1981.(c)The Petitioner was appointed as an Primary Assistant Teacher in category "E" under Schedule-F by order dated 12.06.1986 with effect from 18.06.1986.(d)The Petitioner acquired D.Ed. qualification in August 1986.(e)The Petitioner obtained B.A. degree in March/April 1991 and B.Ed. qualification on 10.05.1997.(f)Respondent No.5 Shri Naragude completed B.Ed. in 1997 and was appointed on 02.08.2002.(g)The Petitioner has not raised any objection to the seniority list which was published in 2017 and thereafter.(h)Shri Naragude, Respondent No.5 herein was appointed asthe Head Master on 03.10.2022 and he joined the post two days prior to the appointment on 01.10.2022. The Petitioner stood superseaded. Therefore, the Petitioner 5 of 12 (( 6 ))903-WP-11261-2023has to approach the School Tribunal under Section 9 of the M.E.P.S. Act, 1977.(i)Mr. Naragude was not heard when the order dated 03.01.2023 was passed by the Education Officer.(j)In the light of the judgments delivered by the learned FullBench of this Court in St. Ulai High School and another Vs. Shri Devendraprasad Jagannath Singh - 2007 (1) Mh.L.J. 597 and Namdeo Vishnu Sase Vs. The State of Maharashtra others - 2023 (2) Mh.L.J. 598, thisPetition is not maintainable.6.It is undisputed, rather conceded that the order passed bythis Court dated 11.01.2019 directing the Education Officer to decidethe objections as regards the seniority raised by the Petitioner herein,within six months, was not challenged by the management or theHead Master, before the Hon'ble Supreme Court. The said order hasattained finality. The order at issue dated 03.01.2023 is a reason andoutcome of the order of this Court dated 11.01.2019 reproducedabove. All the parties appeared on the date 30.01.2019 as directed bythis Court.7.The learned AGP representing the Education Officersubmits that Shri Naragude has not been granted regular approval asa Head Master considering the order of this Court dated 11.01.2019,since the proceedings were being considered by the Education Officer 6 of 12 (( 7 ))903-WP-11261-2023pursuant to this order of the High Court. As the School had to beheaded by a Head Master, a temporary approval was granted to ShriNaragude only for the academic year 2022-2023 as an Incharge HeadMaster, vide order dated 16.01.2023. Subsequently, an extension wasgranted from 15.06.2023 only till 31.12.2023. From 01.01.2024,Shri Naragude is not even a temporarily approved Head Master.8.It is, thus, obvious from the record before us that in orderto overcome the directions of this Court set out in the order dated11.01.2019, the management appointed Shri Naragude as the HeadMaster by order dated 03.10.2022. It is specifically contended beforeus that he took charge as the Head Master two days prior to hisappointment order, on 01.10.2022. This requires no debate that themanagement has attempted to overbear the authority of this Courtand truncate the directions issued vide order dated 11.01.2019. Whatis most significant is that neither the management nor the InchargeHead Master Shri Naragude, have challenged the order passed by theEducation Officer dated 03.01.2023 before this Court. The said orderis a direct outcome of our directions set out in the order dated11.01.2019. The Education Officer has rightly refused to grantpermanent approval to the appointment of Mr. Naragude, 7 of 12
Legal Reasoning
(( 8 ))903-WP-11261-2023notwithstanding that the management has moulded it’s order toproject that Mr. Naragude was granted a permanent appointment.9.The management has put forth a fallacious submissionthat once the management has appointed Mr. Naragude as apermanent Head Master, it is inconsequential as to whether theEducation Officer grants a temporary approval. Reliance is placed onthe law laid down in St. Ulai High School (supra), to contend thatthe grant of approval by the Education Officer is not a conditionprecedent to a valid order of appointment. Obviously, the law laiddown in St. Ulai High School (supra), has been misread by themanagement. The issue before the learned Full Bench of this Courtwas as regards whether absence of approval by the Education Officer,would necessarily lead to the removal of the teacher fromemployment or his employment would be rendered illegal. The issuesbefore the learned Full Bench are set out below paragraph 2, whichread thus:-“2.(i) Whether the Deputy Director of Education could haverecalled the earlier order of approval granted by the EducationOfficer on the ground that the Teacher, whose approval wasalready granted, was not the senior most Teacher or not ?(ii)Whether the issue of seniority, including issue ofqualification having bearing on seniority, if raised by the 8 of 12 (( 9 ))903-WP-11261-2023aggrieved Teacher or an employee, could have been decidedonly by the School Tribunal in the appeal filed by such personimpugning the order of supersession or promotion, underSection 9(1) (b) of the MEPS Act read with Rules ?”10.Considering the law laid by the learned Full bench andthe directions of this Court dated 11.01.2019, the management hasindulged in an attempt to overbear the authority of this Court byappointing Mr. Naragude with retrospective effect as the Head Master.The Education Officer has rightly granted a temporary approval, sincethis Court had directed that the seniority list be formalised afterconsidering the entire record and for which, a hearing was directed.Though the decision was not taken within six months, the decisionwas in the offing and eventually, the decision was delivered on03.01.2023 by the Education Officer, which has not been challengedeither by the management or Mr. Naragude.11.The management and Mr. Naragude have placed relianceupon the judgment delivered by another Full Bench of this Court inNamdeo Vishnu Sase (supra), to contend that if a teacher issuperseded pursuant to the formalization of a seniority list byappointing another person as the Head Master, the grievance can be 9 of 12 (( 10 ))903-WP-11261-2023raised by such superseded teacher before the School Tribunal.However, the facts of the case before us are completely different.Though the management attempted to dodge the directions of thisCourt by hurriedly appointing Mr. Naragude as the Head Master withretrospective effect on 03.10.2022, the Education Officer granted atemporary approval to his appointment as a stop gap arrangement.An Incharge Head Master does not have any right to demandregularization on the post of Head Master. It is the Education Officerwho has to consider the fact as to whether a senior most teacher hasbeen appointed as the Head Master and thereafter proceed to grantregular approval. Temporary approval as an Incharge Head Masterwould not create any rights or equities in favour of Mr. Naragude and,therefore, approval as an Incharge Head Master would not amount tosuper-session of the Petitioner.12.In the above backdrop, as the Petitioner who has beendeclared as the senior most teacher by the Education Officer videorder dated 03.01.2023, is before this Court for issuing directions tothe Respondent authorities to act in furtherance of the said senioritylist and keeping in view that the said order dated 03.01.2023,formalizing the seniority list, has not been challenged before this 10 of 12 (( 11 ))903-WP-11261-2023Court, we have no hesitation in accepting this Petition. More over,Shri Naragude is without any approval with effect from 01.01.2024. 13.Considering the overall effect of the directions of thisCourt dated 11.01.2019, the final seniority list declared vide orderdated 03.01.2023, which is intact, this Petition is allowed in terms ofprayer clause (A). We direct the management to act in furtherance ofthe said seniority list formalized vide order dated 03.01.2023, withina period of fifteen days. After the senior most teacher is appointed asthe Head Master (the Petitioner having been declared as the seniormost teacher), the proposal to seek approval to his appointment shallbe forwarded by the management to the Education Officer, within oneweek thereafter. The Education Officer would accord approval to theappointment of the Head Master within one week from the receipt ofthe said proposal.14.We have considered the glaring conduct of themanagement, who itself tendered a provisional seniority list to theEducation Officer in view of the directions of this Court dated11.01.2019 and without waiting for the Education Officer to pass afinal order in view of this direction of the High Court, granted a 11 of 12 (( 12 ))903-WP-11261-2023permanent appointment to Mr. Naragude, which is an attempt tooverbear the authority of this Court and ignore the majesty of law. Weare inclined to impost cost of Rs.1,00,000/- (Rupees One Lakh) onthe management. 15.The learned Advocate for the management submits thatits action may have been a result of misinterpretation and amisunderstanding. It may not be taken as a deliberate act. 16.The learned Advocate for the Petitioner submits that, ifthe management obeys this order passed by the Court today withinthe time frame granted, then he would concede to the request of themanagement not to impose cost. However, if the directions of thisCourt are not complied with, he prays that this act may be consideredas an aggravated act of contempt and cost of Rs.1,00,000/- can beimposed. We accept the statement made by the Petitioner andcaution the Management accordingly. [ Y. G. KHOBRAGADE, J. ] [ RAVINDRA V. GHUGE, J. ]SMS 12 of 12