1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1880 OF 2008 Sharda Hemant Joshi ..Petitioner. Vs. The Chaitanya Education Society and others ..Respondents. .... Mr. Suresh S. Pakale for the Petitioner. Mr. M.S. Topkar for Respondent No.1. Mr. P.P. Kakade, AGP for Respondent No.2. .... CORAM: DR. D.Y. CHANDRACHUD, J. 18th June, 2008. P.C. : 1. The First Respondent conducts and manages an educational institution by the name of New English School at Miraj. The school has three wings including a primary and secondary wing and receives grant-in-aid from the State Government. The Petitioner was appointed as an Assistant Teacher in the Secondary Section with effect from 11th July, 1979. At the time of her first appointment the Petitioner held the M.A and B. Ed. qualifications. On completion of the probationary period, the Petitioner became a permanent employee. Between 31st May, 1991 and 1st November, 1994 the Petitioner was appointed as an Acting Headmistress of 2 the secondary school. On 15th June, 1996 the Petitioner came to be appointed as a Supervisor and her appointment was approved by the Education Officer (Secondary) of the Zilla Parishad, Sangli. On 1st August, 2001 the Petitioner was appointed as Headmistress in a substantive capacity. The resolution of the management took note of the fact that the Petitioner was the senior most employee. The Education Officer approved the appointment of the Petitioner as Headmistress by a communication dated 16th January, 2002. According to the Petitioner there were internal disputes within the management since the year 1988 resulting in victimization of the staff by different groups in the management. Some time in December 2006 a social worker filed a complaint before the Education Officer in respect of the seniority accorded to the Petitioner. The Education Officer by an order dated 2nd December, 2006 informed the management that the seniority list did not appear to be in accordance with Rule 12 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and that the approval granted to the appointment of the Petitioner as Headmistress was being revoked. The management was directed to prepare a fresh seniority list and to submit a fresh proposal. On the basis of the order passed by the 3 Education Officer, the management informed the Petitioner by a letter dated 7th December, 2006 that in terms of the order of the Education Officer approval to her appointment was revoked and that she was consequently reverted to the post of Assistant Teacher. The Petitioner thereupon moved the Education Officer. On 19th December, 2006 the Education Officer withdrew his earlier communication and revoked his earlier direction dated 2nd January, 2006. The management was directed to present a fresh seniority list as on the date on which the Petitioner was promoted as Headmistress. The case of the Petitioner is that on 20th December, 2006 she met the President of the First Respondent when she was orally informed that her services were no longer required and were terminated. The Petitioner thereupon moved the School Tribunal in an appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. The First Respondent moved an application for framing a preliminary issue with regard to the maintainability of the appeal. The School Tribunal was of the view that the preliminary issue as to the maintainability of the appeal went to the root of the matter since it was the case of the management that the Petitioner had not been terminated from service. The case of the management, it appears 4 was that the Petitioner had been reverted from the post of Headmistress to the post of Assistant Teacher. The Presiding Officer dismissed the appeal, holding that the appeal which was against an alleged order of termination was not maintainable. The case of the management that there was no termination of service was accepted. 2. These proceedings were instituted in order to challenge the order of the School Tribunal. On 24th March, 2008 a Learned Single Judge of this Court issued interim directions directing the Education Officer to finalize the seniority of all the Assistant Teachers in the Secondary Section of New English School after hearing the First Respondent as well as all the teachers concerned including the Petitioner. In pursuance of the interim directions issued by this Court, an order has been passed by the Education Officer on 31st May, 2008 determining the issue of seniority. It is an undisputed position before the Court that the Petitioner has been shown as the senior most teacher. 3. In the meantime, during the pendency of these proceedings an order has been passed by the management 5 suspending the Petitioner pending allegations into misconduct for which a disciplinary proceeding has been convened. 4. On behalf of the Petitioner it has been submitted that the entire basis on which the management decided to revert her from the post of Headmistress which she had held since August 2001 was a communication of the Education Officer dated 2nd December, 2006. That communication, it was urged, was issued on the strength of a complaint by a social worker and without hearing the Petitioner. The Petitioner thereupon produced all the necessary papers before the Education Officer who revoked his earlier communication on 19th December, 2006. The grievance of the Petitioner in the appeal before the Tribunal was that thereafter when the Petitioner attempted to contact the President of the First Respondent, with a request to allow her to discharge her duties as Headmistress, she was informed that her services were no longer required and would stand terminated. The School Tribunal, it was urged, has failed to take into account the aforesaid circumstances of the case and proceeded to dismiss the appeal on the ground that there was no termination from service, but an order of reversion from the post of Headmistress to the post of Assistant 6 Teacher. 5. During the course of the proceedings, counsel appearing for the management fairly stated that though the management was not heard by the Education Officer before he withdrew the order dated 2nd December, 2006, the management has taken no steps to challenge the further communication of 19th December, 2006 recalling the direction by which the approval of the Petitioner to the post of Headmistress was revoked. Learned counsel further stated that at this stage the management has not taken any steps to challenge the determination made by the Education Officer on 29th May, 2008. A Letters Patent Appeal is pending against the interim directions issued by the Learned Single Judge on 24th March, 2008. This Court has been informed that in pursuance of the interim directions issued by the Court, the Petitioner had been paid her salary in the post of Headmistress with effect from 1st April, 2008. At this stage, it would be necessary to take note of the fact that two appeals viz. Appeal 12 of 2002 and Appeal 97 of 2002 are pending before the School Tribunal. The appellants in those proceedings are respectively one Shri S. R. Kadam and Smt. S.G. Sagare. The appointment of the Petitioner to the post of 7 Headmistress in 2001 is in issue in the aforesaid appeals. In the present proceedings, it would be necessary to clarify that since the two appeals are still pending before the School Tribunal and the appellants in those appeals are not parties to these proceedings, nothing contained in the present order shall amount to the expression of any opinion by the Court on the merits of the rival contentions between the aggrieved teachers in regard to the seniority of the Petitioner. Similarly, insofar as the determination made by the Education Officer on 29th May, 2008 is concerned, it would be only appropriate and proper to clarify that the correctness of that determination would not appropriately fall for consideration in the present proceedings and the teachers affected and/or the management if aggrieved by the determination would be at liberty to pursue appropriate proceedings in accordance with law for challenging the determination. The only question which survives in the present proceedings is as regards the validity of the order of the management dated 7th December, 2006 reverting the Petitioner from the post of Headmistress to the post of Assistant Teacher. From a bare reading of the order of the management dated 7th December, 2006 it is evident that the reversion was founded exclusively on the communication issued by the Education 8 Officer on 2nd December, 2006. The Education Officer since withdrew his revocation on 19th December, 2006. The consequence of the communication dated 19th December, 2006 is clearly that the approval granted by the Education Officer to the appointment of the Petitioner to the post of Headmistress would continue to operate. In that view of the matter, the basis and foundation of the order of reversion does not exist. The School Tribunal has erroneously taken a rather technical view of the matter in rejecting the appeal on the ground that there was no termination of service but only a reversion of the Petitioner from the post of Headmistress to the post of Assistant Teacher. In either of these eventualities, it is the School Tribunal which would have to entertain the appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. Since the basis on which the order of reversion was passed no longer survives and since the management has in the meantime paid the salary of the Petitioner in the post of Headmistress with effect from 1st April, 2008, no further directions are necessary to be issued, save and except to observe that the appeal filed by the Petitioner before the School Tribunal shall stand disposed of in terms of the following directions: 9 i) The order of reversion passed by the management reverting the Petitioner from the post of Headmistress to the post of Assistant Teacher on 7th December, 2006 shall stand quashed and set aside and the Petitioner would be entitled to consequential benefits; ii) The legality of the order of appointment of the Petitioner to the post of Headmistress shall, however, not stand concluded by the present proceedings. The Tribunal shall be at liberty to decide the issue in Appeals 12 of 2002 and 97 of 2002 pending before it. All the rights and contentions of the parties in that regard are kept open; iii) Any aggrieved teacher or, as the case may be, the management would be at liberty to challenge the determination made by the Education Officer on 29th May, 2008 in the matter of inter se seniority by instituting appropriate proceedings in that behalf ; iv) Since in the meantime, the Petitioner has been 10 suspended pending an allegation into a charge of misconduct, it is clarified that nothing contained in this order shall amount to any expression of opinion on the merits or legality of the order of suspension. The Petitioner would be at liberty to adopt such remedies as she may be advised to pursue. The Petition shall stand disposed of accordingly. There shall be no order as to costs. ****