1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5304 OF 2007 Mrs.Uma Ramakant Kulkarni. ...Petitioner. Vs. Education Officer (Secondary), Zilla Parishad, Sangli & Ors. ...Respondents. .... Mr. R.S. Apte, Senior Advocate with Mr.Amit Sale for the Petitioner. Mr. R.M. Patne, AGP for Respondent No.1. Mr.Indrajeet Joshi for Respondent No.2. Ms.Seema Sarnaik with Mr. A.M.Kulkarni for Respondent No.3. ..... CORAM : DR.D.Y.CHANDRACHUD, J. October 3, 2008. P.C. Rule, by consent of Counsel returnable forthwith. Counsel appearing on behalf of the Respondents waive service. By consent of Counsel and at their request taken up for hearing and final disposal. 2. The Education Officer (Secondary), Sangli, was required to determine the issue of seniority in pursuance of an order dated 1st September 2006 passed by a Learned Single Judge of this Court in 2 Writ Petition 5671 of 2006. 3. The Education Officer has held that the Third Respondent, who was appointed on 22nd June 1992, would rank senior to the Petitioner whose date of appointment has been fixed as 12th June 1995. The Education Officer held that as a matter of fact the Petitioner had also worked during the Academic Year 1992-93. However, during the relevant period, she had worked for eight hours, whereas the Third Respondent had worked nineteen hours a week. The Education Officer has inter alia purported to revoke (i) the approval granted to the promotion of the Petitioner as a Headmaster; and (ii) the order of promotion of the Petitioner as Headmaster and has directed that recoveries be made. 4. The submission which has been urged on behalf of the Petitioner before the Court is that the Education Officer could have only determined the issue of seniority under Rule 12 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, and that if the Third Respondent was aggrieved by the 3 promotion granted to the Petitioner, an appeal would lie before the School Tribunal which alone could have decided the issue of supersession, if any. 5. The position that it is for the School Tribunal to decide the issue of supersession of an employee of a private school stands concluded in view of the judgment of the Full Bench in St. Ulai High School vs. Devendraprasad Jagannath Singh.1 The Full Bench has held that the decision of the Education Officer on inter se seniority under Rule 12 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules,1981, is not final; and where action is taken by the management on the strength of such a determination, the Tribunal would have the jurisdiction, while deciding the lawfulness of the action of the management, to adjudicate upon the correctness of the determination of the Education Officer and it would be open to the employee concerned to seek recourse to his remedies against the decision under Rule 12 in accordance with law. There is merit in the submission which has been urged on behalf of the Petitioner that the jurisdiction of the Education Officer in the proceedings before him was 1 2007(1) Mh. L.J. 597 4 to determine the issue of seniority under Rule 12. It was not open to the Education Officer to revoke the promotion of the Petitioner and to direct, as a consequence, the recovery of salary already paid to the Petitioner during the period when the Petitioner worked as a Headmaster. 6. At the hearing of these proceedings, Counsel appearing on behalf of the Third Respondent stated on instructions that the Third Respondent would take recourse to the remedy of a substantive appeal under Section 9(1) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, in order to challenge the promotion which has been granted to the Petitioner. In view of the statement made on behalf of the Third Respondent to the effect that the Third Respondent would take steps to challenge the promotion of the Petitioner to the post of headmaster, the following order shall meet the ends of justice: (i) It would be open to the Third Respondent to file a substantive appeal under Section 9(1) of the Maharashtra Employees 5 of Private Schools (Conditions of Service) Regulation Act, 1977, in order to challenge the promotion of the Petitioner to the post of Headmaster; (ii) All the rights and contentions of the parties in the event that such an appeal is filed, including the defences of the Petitioner herein, are kept open to be decided by the Tribunal; (iii) The directions contained in operative clauses (1), (4) and (5) of the impugned order of the Education Officer, namely, (i) Revoking the appointment of the Petitioner as Assistant Teacher; (ii) Revoking the approval granted to the appointment of the Petitioner with effect from 15th June 1992; and (iii) Revoking the appointment of the Petitioner as a Headmistress with effect from 1st April 1996; and (iv) directing recovery shall stand quashed and set aside; (iv) The School Tribunal, in the event of an appeal being filed within four weeks from today, is requested to dispose of the appeal preferably within a period of four months thereafter; 6 (v) In the meantime, if the salary of the Petitioner has been withheld, it shall be released in accordance with law within a period of four weeks from today. 7. In view of these directions, which have been passed with the consent of the Petitioner, the Third Respondent and the management of the Institution, no further directions have been sought in the proceedings. The petition shall stand disposed of. .....