1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 3891 OF 2009 Mrs.Uma Ramakant Kulkarni and Ors. ..Petitioners Vs. Shri.Vinayak Gajanan Paranjape and Ors. ..Respondents .... Mr.R.S.Apte Senior Counsel with Mr.Amit Sale Adv. for Petitioners Mr.A.A.Kumbhakoni Senior Counsel with Mr.A.M.Kulkarni Adv. for Respondent No.1. Mr.A.P.Vanarse AGP for Respondent No.3 .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE OF RESERVED : 31st July, 2009 DATE OF PRONUNCEMENT : 18th Aug., 2009 P.C.: 1. This writ petition is directed against the order of the School Tribunal, Kolhapur dated 2nd March, 2009, whereby the appointment of the petitioner no.1 as Head Mistress with effect from 8th May, 1995 came to be set aside. By the said order, the respondent nos.1 and 3 i.e. Education Institution and Education Officer were directed to promote, appoint and approve the appointment of respondent no.1 as incharge Head Master from 8th May, 1995 till 26th February, 1997 and from 22nd June, 1997 onwards as Head Master with full back wages and continuity in service with effect from 8th May, 1995. 2. By order dated 8th August, 2006 the Education Officer (Secondary) 2 determined the seniority list, which order came to be challenged by the petitioners by filing writ petition No. 5671 of 2006. This Court disposed of the writ petition by order dated 1st September, 2006 and remanded the matter back to the Education Officer. Pursuant to the order dated 1st September, 2006 passed by the learned Single Judge of this Court in writ petition No. 5671 of 2006, the Education Officer determined the issue of seniority by order dated 9th May, 2007 and held that the respondent no.1 who was appointed on 22nd June, 1992 would rank senior to the petitioner whose date of appointment has been fixed as 12th June, 1995. By the said order, the Education Officer also inter alia directed the Management to cancel the appointment dated 15th June, 1992 of the petitioner no.1 and of petitioner no. 2 of the year 1992 as Assistant Teacher; he revoked the approval granted to the appointment of the petitioner nos.1 and 2 in 1992. He also revoked the appointment of the petitioner no.1 as Head Mistress with effect from 1st April, 1996. Recovery of amounts was directed in respect of the petitioners. 3. The above order came to be challenged by filing writ petition No.5304 of 2007. The said writ petition was disposed of by order dated 3rd October, 2008. The learned Single Judge held that the Education Officer has jurisdiction only to determine the issue of seniority under Rule 12 and it was not open to the Education Officer to revoke the promotion of the petitioner no. 1 and to direct, as a consequence, the recovery of salary already paid to the petitioner no.1 during the period when the petitioner no.1 worked as a Head Master. The three directions contained in the operative clause nos.(1), (4) 3 and (5) of the order of the Education Officer namely (i) to revoke the appointment of the petitioner as Assistant Teacher; (ii) to revoke the approval granted to the appointment of the petitioner with effect from 15th June, 1992 and (iii) to revoke the appointment of the petitioner as a Head Master with effect from 1st April, 1996 came to be set aside. Liberty was given to the present respondent no.1 to take recourse to remedy of substantive appeal under Section 9(1) of the Maharashtra Employees of Private School (Conditions of Service Regulation) Act, 1977 to challenge the promotion of the present petitioner no.1. 4. Thereafter, respondent no.1 preferred appeal before the School Tribunal which came to be partly allowed in favour of respondent no.1 and the appointment of the petitioner no.1 as Head Mistress with effect from 8th May, 1995 came to be set aside and directions were issued to promote, appoint and approve the appointment of respondent no.1 as incharge Head Master from 8th May, 1995 till 26th February, 1997 and from 22nd June, 1997 onwards as Head Master with full back wages and continuity in service with effect from 8th May, 1995. 5. The learned counsel for the petitioners submitted that the petitioner no.1 was appointed on 15th June, 1992 and the petitioner no.2 came to be appointed on 9th September, 1991 whereas the appointment of respondent no.1 is dated 22nd June, 1992 which clearly shows that petitioners are senior to Respondent No.1. Though, it is the case of the petitioners that they were appointed on 15th June, 1992 and 9th September, 1991 respectively, no 4 appointment letters have been produced by them in support of their claim and they have only placed reliance on the muster roll to show that petitioner no.1 has signed the muster roll from 15th June, 1992 and petitioner no.2 has signed the muster roll from 16th September, 1991. In support of their contention that they were appointed on 15th June, 1992 and 16th September, 1991, reliance is also placed on the orders granting approval to their appointments as Assistant Teacher. Order granting approval to the appointment of petitioner no.1 is dated 6th May, 1999 which states that approval is granted to the appointment of the petitioner no.1 as Assistant Teacher with effect from 15th June 1992. Order granting approval to the appointment of petitioner no.2 as Assistant Teacher is dated 22nd February, 2004 and it is stated therein that approval is granted to the appointment of petitioner no.2 as Assistant Teacher with effect from 16th September, 1991. The learned counsel for the petitioners submits that in view of the approval orders and the muster roll, it is clear that both the petitioners were senior to respondent no.1 as their appointments were prior to respondent no.1. He submitted that hence, the petitioner no.1 who was senior most, came to be promoted as Head Mistress on 8th May, 1995 and approval was granted to the said promotion on 7th May, 1997. 6. The learned counsel for the Respondent no.1 has placed heavy reliance on the muster roll to show that the petitioner no.1 had joined on 15th June, 1992 and she had signed the muster from 15th June, 1992 to 30th June, 1992 whereas signatures of Respondent No.1 are seen on the muster roll from 5 22nd June, 1992. He has submitted that thus the petitioner no.1 is senior to respondent no.1. However, on perusal of the muster roll and the signatures thereon it is found that there were 14 working days and though there were 14 working days, the petitioner no.1 had signed on the muster roll 15 times. Obviously, if there were 14 working days from 15th June, 1992 till the end of the month, the petitioner no.1 could not have signed the muster roll 15 times to show his presence for 14 working days. This shows the record has been manipulated at a later date to show that the petitioner no.1 is senior to respondent no.1. 7. Mr.Apte submitted that this Court by order dated 3rd October, 2008 set aside the order of the Education Officer on three issues i.e. issue nos.1, 4 and 5 in relation to the seniority of the petitioner no.1 and hence, the Tribunal could not have gone into the issue of seniority. As far as this aspect is concerned, the order dated 3rd October, 2008 clearly shows that it was only the act of directing Management to revoke the appointment of petitioners as Assistant Teachers, approval granted to the said appointment, revocation of the approval to appointment of the petitioner no.1 as Head Mistress and order directing recovery was set aside. The other issue i.e. relating to seniority was not touched by this Court. By the said order, the learned Single Judge held that the Education Officer has jurisdiction only to determine the issue of seniority under Rule 12 and 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 6 petitioner worked as a Head Master. These three directions contained in the operative part of the order of the Education Officer namely (i) to revoke the appointment of the petitioner as Assistant Teacher; (ii) to revoke the approval granted to the appointment of the petitioner with effect from 15th June, 1992 and (iii) to revoke the appointment of the petitioner as a Head Master with effect from 1st April, 1996 came to be set aside. In fact, the learned Single Judge held that the Education Officer had every right to determine the issue of seniority and the part of the order of the Education Officer wherein it is stated that the respondent no.1 is senior most in the seniority list and stands at serial no.1, petitioner no.1 stands at serial no.2 and the petitioner no.2 stands at serial no.3, has not been set aside by this Court. Mr.Apte submitted that the Tribunal has passed the judgment based on clause 2 of the operative part of the order of the Education Officer, which fixes seniority of the petitioners and respondent no.1. He submitted that the Tribunal was precluded from doing so in view of the order in W.P.No. 5304 of 2007 dated 3rd October, 2008. On reading the order dated 3rd October, 2008, it is clear that this clause has not been set aside by the High Court. Thus, I find no merit in this submission. 8. Thereafter, Mr.Apte submitted that there was inordinate delay by respondent no.1 in preferring the appeal before the Tribunal and the said appeal would be barred by limitation, hence, the Tribunal was in error in entertaining the appeal. He submitted that the petitioner no.1 was appointed as Head Mistress on 8th May, 1995. He submitted that if the grievance of the 7 respondent no.1 was that he was superseded by the petitioners and as respondent no.1 was senior to petitioner no.1, he ought to have been appointed as Head Master then, in such case, respondent no.1 ought to have filed appeal immediately after the appointment of petitioner no.1 on 8th May, 1995. However, the appeal has been filed by him in the year 2008. I do not find any merit in this submission because the respondent no.1 was appointed on 22nd June, 1992. He was terminated on 1st May, 1994. He preferred appeal against the said termination order. His appeal came to be allowed on 4th March, 1997 and he came to be reinstated on 1st August, 1997. Thereafter, the Management challenged the said decision by filing Writ Petition No.2634 of 1997. The said Writ Petition came to be dismissed on 9th July, 2007. The petitioner no.1 also filed writ petition No.5304 of 2007 in which this Court by order dated 3rd October, 2008, allowed the appellant to file appeal before the School Tribunal challenging the promotion of the respondent no.2 therein i.e. present petitioner no.1 under Section 9 of the M.E.P.S.Act, 1977 on the ground of his supersession. Soon after the order dated 3rd October, 2008, appeal was preferred by the respondent no.1. Hence, it cannot be said that there was any delay in preferring appeal before the Tribunal. 9. Mr.Apte thereafter submitted that the Tribunal has not correctly applied its mind to the aspect of seniority. In the order dated 3rd October, 2008 the High Court did not set aside the entire order of the Education Officer on the ground that it was wrong and illegal but it only set aside the part of the order holding 8 that the Education Officer did not have the jurisdiction to pass the order revoking the appointment, approval, and directing recovery of salary. On the aspect of seniority, on perusal of the order of the School Tribunal, it is seen that the Tribunal after hearing the parties and considering the material before the Tribunal, has come to the conclusion that the order of Education Officer on the point of seniority is correct. 10.As to whether the decision of the Education Officer that respondent no.1 was senior to the petitioner no.1 is correct, one needs to see the material on record. The Education Officer while fixing seniority of the petitioners and respondent no.1 has elaborately discussed all the aspects and come to the conclusion that the respondent no.1 is senior to the petitioners and hence, directed the Management to correct the seniority list. 11.Petitioner no.1 claims that she was initially appointed on 10th June, 1992. Petitioner No.2 was appointed on 16th September, 1991. Before the Education Officer the petitioners and the Management admitted that no appointment orders were issued in writing to them till 1995. However, before the Tribunal, they surprisingly produced appointment orders Exhs. 36/1, Exh. 38/1, Exh.44/2 and Exh.44/3 which itself raises serious doubts about the genuineness of these appointment orders. 12.The Education Officer is a quasi judicial authority for the purposes of deciding the interse seniority amongst the employees of the private Schools. The Education Officer (Secondary) Zilla Parishad Sangli by his decision (Exh. 3/6) dated 9th May, 2007 held that the appellant (respondent no.1) is senior 9 than the petitioner nos.1 and 2 as he was working since 22nd June, 1992. He has observed that the school has started from 15th June, 1992 and the petitioner no.1 has not signed the muster register from 15th June, 1992 to 21st June, 1992. He also pointed out that petitioner no.2 Smt.K.N.Joshi is shown to be appointed from 9th September, 1991 but in fact the school itself started from 16th September, 1991. Therefore, it is clear that petitioner no.2 is shown to be appointed when the school itself was not in existence. When the school has not started functioning in 1991, obviously, petitioner no.2 could not have been appointed on that date. Hence, obviously the appointment of respondent no.1 is falsely shown in the seniority list (Exh.3/3) with a malafide intention to supersede the legal claim of the respondent no.1. It is pertinent to note that the appointment order at Exh.36/1 dated 10th June, 1992 relating to petitioner no.1 shows that there is no outward number written thereon. So also, the appointment order of petitioner no.2 at Exh.-38/1 dated 9th September, 1991 does not bear any outward number. 13.As far as petitioner no.1 is concerned, there are two appointment orders dated 10th June, 1992 i.e. Exh.44/3 and 44/4. Exh.44/3 shows that she was appointed on probation with effect from 15th June, 1992 in the scale of 1400-2600 whereas the appointment order Exh.44/4 of the same date, shows that petitioner no.1 was appointed temporarily on fixed salary of Rs.1000/- with effect from 15th June, 1992. Obviously, there cannot be two appointment orders issued by the Management on the same date pertaining to the same employee. From these two documents, it becomes clear that the 10 Management in collusion with the petitioner no.1 has prepared documents with intention that the respondent no.1 would be superseded. 14.It is surprising to note that there are two approval orders in respect of the appointment of petitioner no.1 as Assistant Teacher. The first order of approval to the appointment of petitioner no.1 is dated 14th February, 1996. It shows that petitioner no.1 is appointed as Assistant Teacher on 12th June, 1995. There is a second approval order regarding the very same post. This approval order is dated 6th May, 1999 and approval is granted to the appointment of petitioner no.1 from 15th June, 1992. This is pursuant to letter sent by Management dated 23rd July, 1999. It is pertinent to note that when the appointment of petitioner no.1 as Assistant Teacher had already been granted approval as per order dated 14th February, 1996, there was absolutely no question of the Management sending another letter requesting for approval to the appointment of petitioner no.1 to the said post. However, the Management has sent another letter for approval to appointment of petitioner no.1 wherein they have shown date of appointment as 15th June, 1992. This has clearly been done by the Management with the motive that Respondent no.1 should be superseded. This has clearly been done in order to create a record to show that the petitioner no.1 was appointed on 15th June, 1992 so that petitioner no.1 could claim seniority over respondent no.1. 15.In the above circumstances, the Tribunal was right in observing that the decision of the Education Officer dated 9th May, 2007 (Exh.3/6) is given after 11 giving fullest opportunity to the appellant and respondent nos.2 and 3. They have also taken active part while defending their cases and after filing their written statements and the documentary evidence before the Education Officer (Secondary) Zilla Parishad, Sangli. 16.As far as petitioner no.2 is concerned, as per the appointment order relied upon by her it shows that she is appointed on 9th September, 1991, however, infact the school itself started to function from 16th September, 1991. In such case, obviously her appointment cannot be prior to starting of the school. When the school started from 16th September, 1991, it cannot be understood as to how the petitioner no.2 came to be appointed prior to the date that the school started functioning. Thus, it is rightly observed that the appointment order relied upon by the petitioner no.2 is also not genuine. Reference has also been made to the joining letter of petitioner no.1. It is dated 3rd April, 1995. In this letter it is stated that as per orders, she had joined the post of Assistant Teacher from 3rd April, 1995. The joining letter of petitioner no.2 shows that she has joined as subject Teacher from 12th June, 1995. Thus, all these documents show that petitioner nos.1 and 2 had infact joined in the year 1995 whereas respondent no.1 had joined in the year 1992 which shows respondent no.1 is senior to her. 17.Thereafter, Mr.Apte stated that to be appointed Head Master, it is necessary to have five years teaching experience. He submitted that admittedly, Respondent no.1 was appointed on 22nd June, 1992 and was terminated from service w.e.f. 1st May, 1994 and thereafter, he was reinstated on 1st 12 August, 1997, thus, on 1st August, 1997, when he was reinstated pursuant to directions by the Tribunal dated 4th March, 1997, Respondent no.1 did not have five years teaching experience which was required to be appointed as Head Master, hence, he could not have been appointed Head Master. As far as this aspect is concerned, it is seen that after termination, Respondent No. 1 had preferred appeal No.134 of 1994 before the Tribunal which was decided on 4th March, 1997 in his favour. Therefore, the respondent Management filed Writ petition No.2634 of 1997 before the High Court, Mumbai. Said writ petition came to be dismissed on 9th March, 2007 (Exh. 3/2). However, since the High Court declined to stay the order of the Tribunal, the respondent Management allowed the respondent no.1 to resume duty on 1st August, 1997. The petitioner no.1 came to be promoted on 8th May, 1995. Therefore, then respondent no.1 had no teaching experience of five years to entitle him to be promoted as Head Master. On 8th May, 1995 when the petitioner no.1 was promoted neither the respondent no.1 nor the petitioner nos.1 and 2 had five years teaching experience. Therefore, the petitioners as well as the respondent no.1 were not eligible to be promoted as Head of the school. From the material on record, it is seen that the petitioners were appointed as full time teachers in the year 1995 only. As pointed out earlier, the respondent no.1 was eligible to be promoted as Head Master on 22nd June, 1997, he could not be appointed as a Head Master on 8th May, 1995 as claimed by him as he did not have the necessary experience of five years. However, considering the fact of seniority of 13 respondent no.1, the Tribunal has rightly observed that the Management ought to have appointed respondent no.1 as Incharge Head Master on 8th May,1995 instead of petitioner no.1 and ought to have regularized appointment of respondent no.1 as Head of the School w.e.f. 22nd June, 1997 i.e. after gaining five years teaching experience. However, the Management did not adopt this course for reasons best known to it and appointed petitioner no.2 as a head of the school who was Junior to the respondent no.1. 18.The learned counsel for the petitioners placed reliance on the decision of this Court in the case of Somsingh Chandrasingh Thakur Vs. Head Master, Captain R.M.Oak School, Kalyan (W) Dist.Thane and others, reported in 2005(4) ALL MR 610. He submitted that in the said case, the teacher therein was promoted as Assistant Head Master and after about eight years, he was promoted as Head Master and thus, he worked on the post of Assistant Head Master and Head Master for a period of ten years. This Court has held that it would not be proper and justified to disturb him from the post of Head Master which he occupied for such a long time. I have perused the said decision. In the said decision, it is specifically observed that the Assistant Teacher who was from reserved category, was promoted to the post of Assistant Head Master in an isolated post in 1984 and thereafter he was promoted as Head Master in 1992. Thereafter, in view of the reservation policy, he was reduced to the post of Assistant Teacher. Moreover, the Court has observed that nobody including the Respondent Management or Education Officer objected 14 to his promotion. In the said matter, the petitioner had challenged his reversion from the post of Head Master to that of Assistant Head Master and it was in these circumstances specially looking to the fact that nobody had objected to his promotion that the observations came to be made that it would not be proper and justified to disturb him after such a long time. Facts in the aforesaid decision and facts in the present case are entirely different and hence the said decision would not apply to the facts of the present case. 19.The Tribunal has taken all the aspects into consideration and the Tribunal has rightly held that respondent no.1 has proved that petitioners are junior to the respondent no.1 in service and they are promoted by superseding his legal right of promotion as Head Master. In view of the above facts, no interference is called for. Writ petition is dismissed. 20.At this stage, the learned counsel for the petitioners seeks stay of the order dated 2nd March, 2009 for a period of four weeks from today as he wishes to challenge the order passed today. The learned counsel for the respondent no.1 has objected to the grant of stay. However, in the interest of justice, I am inclined to grant stay for a period of four weeks from today. Accordingly, stay of the order dated 2nd March, 2009, is granted for a period of four weeks from today. [ SMT.V.K.TAHILRAMANI,J.]