1 wp8744.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.8744 OF 2010. Rukhminibai Pratishthan, Mumbai, 8, Piter Martial Apartment, Opposite Old Prabhadevi Mandir, Dadar (West), Mumbai - 400 023, through its Chairman. ...PETITIONER. VERSUS 1. Ravindra Deoram Patil, age 37 years, occu. service, r/o Sadawan,Tq. Amalner, District Jalgaon. 2. Shri Shaikh Shabbir Shaikh Ajij, Assistant Teacher, c/o V.N. Patil Madhyamik Vidyalaya, Igatpuri, District Nashik. 3 Madhukar Krushna Marathe, Head Master, c/o Kirti Vijay Patil Army School, Shirdon, Tal. Panvel, Dist. Thane. 4. Sharad Yashwant Ahirrao, Head Master, r/o Nawal Bhau Madhyamik Vidyalaya, Tade, Tal. Erandol,Dist. Jalgaon. 5. Rajendra Vishwanath Patil, Head Master, c/o Nawal Bhau Madhyamik Vidyalaya, Tade, Tal. Erandol,Dist. Jalgaon. 6.Shyamkumar Bhimrao Jadhav, Head Master, 2 wp8744.10 c/o Saraswati Madhyamik Vidyalaya, Sadawan, Tal. Amalner, Dist. Jalgaon. 7. The Education Officer (Secondary), Zilla Parishad, Jalgaon, District Jalgaon. 8. The Education Officer (Secondary), Zilla Parishad, Thane, District Thane. 9. The Education Officer (Secondary), Zilla Parishad, Nashik, District Nashik. ...RESPONDENTS. ... Shri S.R. Barlinge, Advocate for petitioner. Shri D.V. Tele, AGP for R.Nos.7 to 9. Shri V.D. Sapkal, Advocate for R.No.1. Shri Vinod Patil, Advocate for R.No.2. Mrs. M.A. Deshpande, Advocate h/f Shri A.S. Deshpande, Advocate for R.Nos.3 to 6. ... CORAM: S.S. SHINDE,J. RESERVED ON: 24th AUGUST, 2011. PRONOUNCED ON :6th SEPTEMBER, 2011. JUDGMENT: 1. This writ petition takes exception to the judgment and order dated 17th July, 2010 passed by the Presiding Officer, School Tribunal, Nashik in Appeal No.JAL/36/2009. 3 wp8744.10 This Court on 13th December, 2010 directed this matter to be listed for final disposal. Accordingly, the matter is taken up for final hearing with consent of the parties. 2. Rule. Rule is made returnable forthwith. 3. The background facts of this case are, as under: The petitioner herein runs four schools namely, (1) Saraswati Madhyamik Vidyalaya, Sadawan, Tal. Amalner, Dist. Jalgaon; (2) Kirti Vijay Patil Army School, Shirdon, Tal. Panvel, Dist. Thane; (3) Nawal Bhau Madhyamik Vidyalaya,Tade, Tal. Erandol,Dist. Jalgaon; and (4) Nawal Bhau Madhyamik Vidyalaya, Tade, Tal. Erandol,Dist. Jalgaon. All the four schools are functioning in different districts. The respondent No.1 herein - original appellant before the School tribunal 4 wp8744.10 filed an appeal stating therein that the management of the petitioner institute did not maintain combine seniority list of all the employees working in all the four schools. The management has prepared the seniority list of the employees working in the school itself. As per the seniority list, the original appellant is senior to the respondents No.3 to 6. The original appellant holds qualifications of M.A.,B.Ed. Since June, 2000, the appellant has been working as Assistant Teacher in the school namely Saraswati Madhyamik Vidyalaya, Sadawan, Tal. Amalner, Dist. Jalgaon. The appellant has been working as in charge Head Master. In the month of October, 2008, the school namely Saraswati Madhyamik Vidyalaya, Sadawan became 100% aided school, which resulted in creating a permanent post of head master in the said school. It is the case of the original appellant that since 9 years, the 5 wp8744.10 appellant has been working as in-charge head master in the said school. The school management has recently promoted respondent NO.6 on the post of Head Master w.e.f. 1st June, 2009. The Education Officer has also accorded approval to the said appointment. Therefore, the appellant had made representations to the school authorities as well as the Education Officer for redressal of his grievance. The appellant also came to know that the school management has promoted the respondents No.3 to 6 on the post of Head Master in other schools though they are junior to the appellant. The appellant has not relinquished his claim to the post of head master. The appellant has rendered unblemished services, without any grievance, complaint and he has clean service record. In spite of this, the school management has illegally promoted respondents No.3 to 6 on the post of head master. Therefore, the appellant was constrained to file appeal with 6 wp8744.10 the afore said grievance. 4. The present petitioner, who is respondent No.1 in the appeal filed by the appellant, resisted the claim of the appellant by filing written statement. It was denied that the claim of the appellant was refused by the petitioner institute. It is stated that the appeal of the appellant is hit by non joinder of necessary parties. The petitioner herein i.e. respondent No.1 in the appeal has further contended that the vacancy of the Head in Kirti Vijay Patil Army School, Shirdon occurred in the year, 2005. The post of Head Master was advertised by the school management. The Education Officer, Zilla Parishad, Raigad recommended the name of Madhukar Krushna Marathe for the post of head master on the basis of educational qualification and merit. Accordingly, the school management appointed Shri M.K. Marathe 7 wp8744.10 on the post of head master on 1st July, 2006 and the competent authority has also accorded approval to the said appointment. It was further contended that the management had communicated occurrence of vacancy of the post of head master to the appellant and asked him to submit his willingness for the appointment to the said post; but, the appellant by his letter, refused for appointment to the post of head master in presence of Education Officer, Zilla Parishad, Nashik. Under circumstances, the school management has promoted Shri Ravindra Vishwanath Patil on the post of head master from the year, 2006. It was further contended that the management had communicated occurrence of the post of head master in Nawal Bhau Madhyamik Vidyalaya, Tade, Tq. Erandol, Dist. Jalgaon to the appellant but, the appellant has refused appointment to the said post and insisted to work in the school situated in his village. It is further contended that the appellant had never raised 8 wp8744.10 objection after promotion of Shri Sharad Yashwant Ahirrao. 5. It is further stated that in the year, 2009, vacancy arose for the post of head master in Saraswati Madhyamik Vidyalaya, Sadawan, Tal. Amalner, Dist. Jalgaon but, it was incumbent on the part of the management to fill up the said post as per roster point and, therefore, the management has promoted Shri Sharadkumar Bhimrao Jadhav on the post of head master w.e.f. 1.6.2009. The school management has promoted Shri M.K. Marathe, S.Y. Ahirrao and R.V. Patil on the posts of head master in the year, 2006. The competent authority has also accorded approval to the said appointments. There is huge delay in filing appeal against these employees. There is delay in filing an appeal against the order of school management dt. 1.6.2009 promoting Mr.S.B. Jadhav on the post of head master. It is also stated that the appellant has 9 wp8744.10 committed serious misconduct while working on the post of head master at Saraswati Madhyamik Vidyalaya, Sadawan. The allegations of willful negligence were also levelled against the appellant by the respondent management. It appears that the original respondents No.2 to 9 in the appeal remained absent though served and, therefore, appeal set ex parte against the respondents 2 to 9. 8. After appreciating the evidence on record and hearing the parties, framing necessary points, the School Tribunal decided the appeal filed by the original appellant / respondent No.1 herein holding that the orders of the management of respondents - institute promoting or appointing original respondents No.3 to 6 on the post of head master, are not sustainable and, therefore, the same came to be set aside. Further direction was given to the respondents - institute to promote the 10 wp8744.10 appellant on the post of head master along with benefit attached to the said post w.e.f. June, 2009. The management was directed to comply with the said order within 14 days from the date of the order. Hence, this writ petition. 7. The learned Counsel for the petitioner submits that the school tribunal did not frame necessary points for consideration / determination and, therefore, on that ground, the judgment and order impugned in this writ petition deserves to be quashed and set aside. It is submitted that the pleadings raised before the school tribunal clearly indicate that the school tribunal had no jurisdiction to decide the claim filed by the respondent No.1 herein - original appellant. However, the school tribunal did not even frame an issue in that respect. The learned Counsel for the petitioner further submitted that the first vacancy for the post of head master in 11 wp8744.10 Kirti Vijay Patil Army School, Shirdon occurred in the year, 2005 and the said vacancy was advertised by the school management and after selection by the duly constituted selection committee, Mr. Madhukar Krushna Marathe was appointed on 1st July, 2006 as head master. It is further submitted that since that was direct recruitment, appeal was beyond the scope of section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, referred to as 'MEPS Act') and was hopelessly barred by limitation also. It is further submitted that second vacancy had occurred in Naval Bhau Madhyamik Vidyalaya, Tade, Taluka Erandol, Dist. Jalgaon, to which the respondent No.1 i.e. original appellant relinquished his claim and submitted a letter to that effect. This vacancy was also filled in the year, 2006 and there was delay of more than three years in challenging the said appointment. It is submitted that the last 12 wp8744.10 vacancy was filled in on 1st June, 2009 when Shri S.B. Jadhav was appointed as Head Master from reserved category. It is further submitted that even after appointment of Shri S.B. Jadhav, the respondent No.1 - original appellant belatedly filed appeal without even filing an application for condonation of delay. It is further submitted that the school tribunal gets jurisdiction to decide an appeal if the appeal is filed within thirty days from the date of the impugned action as per the provisions of Sub-section (2) of Section 9 of the MEPS Act. However, the appeal in the present case was filed after three years and, therefore, an application for condonation of delay giving satisfactory explanation for the delay caused in filing the appeal was necessary. However, no such application for condonation of delay was filed and still, the school tribunal proceeded to decide the appeal on merits and condoned the delay without there being an application for condonation of delay. 13 wp8744.10 In fact, the pleadings raised before the school tribunal clearly indicated that the school tribunal had no jurisdiction to decide the claim filed by the respondent no.1 - original appellant. However, the school tribunal even did not frame an issue in respect of inordinate delay. The school tribunal did not consider it necessary to frame an issue in respect of the direct recruitment to the post of head master and whether such direct recruitment can be challenged under the provisions of Section 9 of MEPS Act. The school tribunal also did not frame an issue in respect of the appointment of the respondent No.6 namely Mr. S.B. Jadhav, who was promoted to the post of head master on a reserved vacancy meant from the category of Scheduled Caste. Therefore, according to the learned Counsel for the petitioner, the issues framed by the school tribunal were not proper and therefore, the school tribunal arrived at a wrong conclusion that the promotions given 14 wp8744.10 to the respondents 3 to 6 before it, were contrary to the provisions of the MEPS Act and Rules framed thereunder. It is further submitted that in respect of relinquishment of claim to the post of head master, in other schools, a specific plea was raised by the respondents that the original appellant had relinquished his claim to the post of head master when he was informed about vacancy. The tribunal did not frame any specific issue in this regard and without properly appreciating the evidence on record, jumped to the conclusion that the respondent no.1 had not relinquished his claim. According to the learned Counsel for the petitioner, this is totally erroneous approach shown by the tribunal and therefore, the impugned judgment and order deserves to be quashed and set aside. It is further submitted that respondents 15 wp8744.10 No.3 to 6 are already occupying the posts of head master for more than three years and, therefore, they need to be protected during pendency of the writ petition. 8. The learned Counsel for the petitioner invited my attention to the memo of petition, grounds taken therein, annexures thereto and submitted that the writ petition deserves to be allowed. It is further submitted that the school tribunal has not properly appreciated the provisions of section 9 of the MEPS Act while appreciating the contention of the petitioner that the appeal filed by the appellant is hopelessly time barred. The learned Counsel further submitted that this Court in case of The Executive President & Others vs. Bhaskar Bhagwant Yadav & others [2001(1) Bom.C.R. 159], has taken a view that in case of appeal filed aggrieved by supersession, the aggrieved person should file the appeal within 30 days of supersession. 16 wp8744.10 The learned Counsel invited my attention to paras 6 and 8 of the said judgment and submitted that this Court has already concluded the said point i.e. the point of limitation in filing appeal in case of supersession and, therefore, the school tribunal was bound to follow the said judgment. 9. On the other hand, the learned Counsel for respondent No.1 submitted that the school tribunal, after appreciating the entire evidence brought on record by the parties and also hearing the parties, has passed the impugned judgment and order and allowed the claim of the original appellant being the senior most teacher in the petitioner institute and, therefore, there is no infirmity in the impugned judgment and order and, therefore, this Court may not interfere in writ jurisdiction. The learned Counsel also invited my attention to the contentions 17 wp8744.10 raised in appeal memo and also the arguments advanced before the School tribunal and submitted that the writ petition is devoid of any merits. He further submitted that it is undisputed position that the respondent no.1 i.e. original appellant is senior most teacher and he was entitled for appointment as full fledged head master even when first vacancy occurred in 2005 and the subsequent vacancies which occurred in the year, 2006. It is submitted that the petitioner did not communicate about the said occurrence of vacancies to the appellant. Since the schools are situated at different places, there was no occasion for the appellant to know about the appointments of respondents no.3 to 6 as head masters though they are junior to the appellant. It is submitted that the management has not maintained common seniority list. The learned Counsel invited my attention to sub-rule (5)(a) of Rule 3 of the M.E.P.S. Rules, 1981 and submitted that if a 18 wp8744.10 suitable teacher possessing qualifications laid down in the foregoing provisions of this rule is not available to fill in the post of a Head of a school, the Management shall, with the prior permission of the Education Officer in case of primary schools, or of the Deputy Director in the case of other schools, advertise the post and select and appoint a person possessing the requisite qualifications and experience. However, in the instant case, the appellant was already working as in-charge head master and being senior most teacher, he was suitable teacher possessing qualifications and therefore, there was no occasion for the petitioner management to advertise the said post and appoint Mr. Marathe as head master even without prior permission from the Education authorities. Therefore, according to the learned Counsel for respondent No.1 i.e. original appellant, the appointment of Mr. Marathe as head master was also contrary to the M.E.P.S. Rules. It is further 19 wp8744.10 submitted that the contention of the petitioner management that when second vacancy occurred, the said fact was communicated to the appellant is devoid of any merits. The management has not placed anything on record to show that such a communication was there by the management to the appellant. It is submitted that the appellant has never relinquished his claim. The letter which is produced by the management on record stating the appellant has relinquished his claim for the post of head master is a concocted document. The said document itself would demonstrate that the said document is dated 17.10.2006 and Shri Rajendra Vishwanath Patil has been appointed on 1.6.2006. Therefore, there is no question of relinquishment of claim by the appellant on 17.10.2006 i.e. after more than three and half months of the appointment of Mr. R.V. Patil as head master. Therefore, according to the learned Counsel for the appellant, such letter was never given 20 wp8744.10 by the appellant to the Education Officer and it was never signed before the Education Officer since on the relevant date the appellant was working in his school. There was no question of going to the Education Officer at Nashik and giving such letter or signing such letter. It is submitted that about the contention of the petitioner that the appellant had relinquished his claim, the school tribunal has given findings and nothing contra has been brought on record in this petition and, therefore, such finding recorded by the school tribunal cannot be disturbed. It is further submitted that even when three vacancies occurred, the same was not communicated to the appellant. It is submitted that respondents No.3 to 6 herein are juniors to the appellant. The appellant was already working as in-charge head master for number of years and, there was no reason why he was not appointed as a full fledged head master in spite of four vacancies arose 21 wp8744.10 from 2005 till 2009. The learned Counsel also invited my attention to the appeal memo and submitted that the appellant is working with the institute as in-charge head master from 2000 for about nine years and the approval has also been granted by the Education Officer from time to time. The learned Counsel invited my attention to the number of letters / representations made to the Education authorities by the appellant raising his grievance that juniors to him are appointed as head masters. However, he is not appointed as head master. It is further submitted that the petitioner institute has not prepared common seniority list. The appellant was not able to get information about the inter-se seniority since four schools of the petitioner management are in different districts. Taking undue advantage of this fact that the appellant is not aware about the seniority list, the petitioner management has given promotion to junior teachers by denying claim 22 wp8744.10 of the appellant to the post of head master, though appellant is senior most teacher in the said institute. It is further submitted that under the provisions of Right to Information Act, the appellant was able to get some necessary documents and he found that the respondents no.3 to 6, who are appointed as head master are juniors to him. 10. The learned Counsel for respondent No.1 further submitted that in cases of supersession when appeal is filed, the limitation is not provided by the legislature under the provisions of Section 9 of the M.E.P.S. Act. Therefore, according to the learned Counsel for respondent No.1, since no such limitation is provided for filing appeal, there was no question of filing an application for condonation of delay by the appellant. However, he submits that satisfactory explanation was offered before the school tribunal and after appreciating the contention 23 wp8744.10 of the appellant, the school tribunal was satisfied that the delay occurred in filing the appeal is condonable and to that effect findings are recorded by the tribunal. The learned Counsel further submitted that the point of limitation has been dealt with by the tribunal extensively and, therefore, merely because said point is not specifically framed, that would not render the decision of the school tribunal unsustainable. The learned Counsel submitted that this Court in case of Secretary, Shiorai Education Society vs. Presiding Officer, School Tribunal & others [2000(2) Mh.L.J. 752] had an occasion to interpret the provisions of sub-section (2) of Section 9 of the said Act and held that the words "such appeal" mentioned in sub-section (2) of section 9 can safely be construed to be referable only to contingencies mentioned in sub-section (1)(a) of section 9. It has no applicability to appeal challenging supersession. The learned Counsel for 24 wp8744.10 respondent No.1 invited my attention to paras 8 to 11 of the said judgment and submitted that the point raised by the petitioner about the limitation in filing appeal in cases of supersession is no more res integra and is covered by the aforesaid pronouncement of this Court. The learned Counsel further invited my attention to the judgment of the Division Bench of this Court in case of Mohammad Hasan Khan vs. Mohammad Majidulla & others [2003(Supp.) Bom.C.R. 235] and submitted that the Division Bench has also considered the grievance u/s 9(1)(b) and (2) of of the MEPS Act, 1977 and had taken a view that the language of sub-section (1) and sub-section (2) is clear and unambiguous and if the legislature, at any time, had intended to provide limitation period for an appeal against the order of supersession within the meaning of sub-clause (b) of sub-section (1), it was not prevented from providing for such a contingency by amending the language of sub- 25 wp8744.10 section (2). However, the legislature, in its wisdom, did not do so and, therefore, the view taken by Sinha, J., in case of Secretary, Shiorai Education Society (supra) must be upheld. 11. The learned Counsel further submitted that the Hon'ble Supreme Court in case of Uttam Namdeo Mahale vs. Vithal Deo & others [1998(1) Bom.C.R. 786], has taken a view that in absence of any specific limitation provided under the Act, necessary implication is that the general law of limitation provided in the Limitation Act stands excluded. Therefore, the learned Counsel would submit that the contention of the petitioner that appeal should have been filed within a reasonable period, has no force and the same is required to be rejected. The learned Counsel for respondent No.1, at the cost of repetition, would submit that 26 wp8744.10 merely because the school tribunal did not frame points of limitation and jurisdiction, that by itself cannot be a ground to interfere in the impugned judgment and order. The school tribunal has dealt with all the aspects and has given categorical findings on each aspect and, therefore, the contention of the petitioner that since necessary points were not framed by the school tribunal, this petition may be allowed, is without any merits. In support of his contention, he relied on the judgment of this Court in case of Pushpalata Parshuram Borukar & others vs. Madhavlal N. Pittie Esquire & another [2005(3) Bom.C.R. 458] and also the judgment of the Supreme Court in case of G.Amalorpavam & ors. vs. R.C. Diocese of Madurai & Ors. [2006(5) Bom.C.R.896]. The learned Counsel vehemently submitted that the petitioner has not brought any contra material to disturb the findings of the school tribunal and, therefore, in extraordinary jurisdiction of this Court, the 27 wp8744.10 findings recorded by the school tribunal may not be interfered with. Therefore, he submits that the writ petition deserves to be dismissed. 12. The learned Counsel for respondent NO.2 submitted that respondent No.2 has relinquished his claim for the post of head master and also the respondent No.1 i.e. original appellant has relinquished his claim for the post of head master. 13. The learned counsel for the respondents No.3 to 6 invited my attention to the affidavit-in-reply filed on their behalf and submitted that respondent No.1 himself has relinquished his claim to the post of head master and, therefore, it is not open for him to challenge the appointments of the respondents No.3 to 6, which is hopelessly time barred. It is submitted that the contention of the respondent No.1