WP/5860/1998 & WP/1275/1999 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5860 OF 1998 Mangala Jivraj Takalikar ... Petitioner V/s. Chief Executive Officer/Secretary, Shikshan Prasarak Mandali, Pune & Ors. ... Respondents ALONG WITH WRIT PETITION NO.1275 OF 1999 The Secretary, Shikshan Prasarak Mandali, Pune ... Petitioner V/s. Nagnath Nimbaji Kamble & Ors. ... Respondents Mr. S.G. Kudle for the Petitioner in WP/5860/1998 and for the Respondent No.3 in WP/1275/1999. Mr. S.N. Bhosale, AGP, for Respondent Nos.2 and 3 in WP/5860/1998. Smt. Meena Doshi for Respondent No.1 in WP/5860/1998 and for the Petitioner in WP/1275/1999. Smt. Anita Agarwal for Respondent No.4 in WP/5860/1998 and for the Respondent No.1 in WP/1275/1999. Mr. A.S. Desai with Mr. M.V. Joshi h/f. Mr. S.N. Khaire for Respondent No.5 in WP/5860/1998 and for Respondent No.2 in WP/1275/1999. CORAM : SMT. NISHITA MHATRE, J. DATE : 3 RD DECEMBER, 2010. WP/5860/1998 & WP/1275/1999 2 ORAL JUDGEMENT : 1. These Writ Petitions have been preferred against the decision of the School Tribunal, Pune dated 8th October, 1998 in Appeal No.77 of 1992. Writ Petition No.5860 of 1998 has been filed by an aggrieved employee, while Writ Petition No. 1275 of 1999 has been filed by the Management of the School in which the petitioner in Writ Petition No.5860 of 1998 is employed. For the purposes of convenience, the petitioner in Writ Petition No.5860 of 1998, who is respondent No.3 in the Writ Petition No.1275 of 1999, will be referred to as “the petitioner” and the petitioner in Writ Petition No.1275 of 1999, which is the respondent No.1 in Writ Petition No.5860 of 1998, will be referred to as “the Management”. 2. One Nagnath Limbaji Kamble was appointed as an “Assistant Teacher” on 10th July, 1978 in the School run by the Management. He is respondent No.1 in Writ Petition No.1275 of 1999 and Respondent No.4 in Writ Petition No.5860 of 1998. One Nanda P. Mane was appointed as an “Assistant Teacher” on 12th June, 1978. She is respondent No.2 in Writ Petition No.1275 of 1999 and respondent No.5 in Writ Petition No.5860 of 1998. The post of “Head Master” in N.M.V. Marathi School, Solapur fell vacant because the incumbent Head Master retired w.e.f. 1st September, 1987. Nanda Mane, though senior to Nagnath Kamble, was not promoted as “Head Master” by the School. She, therefore, filed a representation before the Education Officer alleging that the Management had WP/5860/1998 & WP/1275/1999 3 failed to prepare a proper seniority list in accordance with the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules, 1981 framed thereunder, (for short “the MEPS Act”). The Education Officer found that her grievance was justified and, therefore, declared that she was the senior most teacher in the School. Accordingly, Nanda Mane was appointed as the Head of the School by the Management. Nagnath Kamble, who was earlier appointed, was consequently reverted as an “Assistant Teacher”. The Education Officer had issued an order on 8th June, 1992. 3. Aggrieved by that order, Nagnath Kamble preferred Appeal No.77 of 1992 on 3rd June, 1992 contending that he had been illegally and wrongfully reverted as an “Assistant Teacher” from the post of “Head Master”. 4. It appears that Nanda Mane opted to be transferred to a School run by the Management in Pune and was appointed as the Head of the School in Pune. Thus, a vacancy arose in the School in Solapur where the petitioner, Nanda Mane and Nagnath Kamble were working. Once the vacancy arose in 1992, instead of appointing Nagnath Kamble, the Management appointed the petitioner as the Head of the School, apparently on the ground that the post which was vacant was for a reserved candidate belonging to the Schedule Tribes, whereas the earlier vacancy which was created in 1987 was for a Scheduled Caste candidate against which Nanda Mane was entitled to be appointed. WP/5860/1998 & WP/1275/1999 4 5. Initially the petitioner was not party before the School Tribunal as Nagnath Kamble had filed the Appeal only against the Management and Nanda Mane. On an application made by the petitioner, she was impleaded as party-respondent to the Appeal. The main contention of the appellant, i.e. Nagnath Kamble, was that he had been wrongfully reverted or reduced in rank by an order of the Education Officer although he was qualified and belonged to the Schedule Caste category. Nanda Mane contended in her written statement that the Appeal was not maintainable. She then contended that since she was qualified for the post of Head Mistress, she was wrongfully denied the position by the Management due to which she had to approach the Education Officer for deciding the interse seniority between herself and Nagnath Kamble. She contended that she had joined the service on 12th June, 1978, whereas Nagnath Kamble had joined almost a month later and, therefore, she was senior to him and therefore entitled to the post of Head of the School. The petitioner contended in her written statement that she was entitled to the post once Nanda Mane did not accept the posting in Solapur and was transferred to Pune. According to the petitioner, being a Scheduled Tribe candidate, she was entitled to the post which had fallen vacant. 6. The Management in its written statement contended that it had merely acted on the orders of the Education Officer and had rectified the error committed by appointing Nagnath Kamble to the post of Head Master although he was junior to Nanda Mane. WP/5860/1998 & WP/1275/1999 5 7. The School Tribunal has allowed the Appeal and directed that Nagnath Kamble be restored to the post of Head of the School since the order dated 8th June, 1992 reducing him in rank was illegal. All benefits have also been granted to Nagnath Kamble as Head of the School. Aggrieved by this order, the petitioner and the Management had preferred these two Writ Petitions. 8. While considering the Petitions, a factor which has to be borne in mind is that the certificate issued to the petitioner that she belonged to the Scheduled Tribe has not been validated by the Caste Scrutiny Committee. In fact, a certificate has now been issued by the Deputy Collector and the Competent Authority on 1st August, 2005 certifying that the petitioner belongs to the Special Backward Classes. 9. The School Tribunal, while considering the Appeal, in my opinion, has committed a serious error on concluding that the Education Officer has no jurisdiction to decide the interse seniority between Assistant Teachers in order to ascertain who should be appointed as the Head of the School. The School Tribunal is incorrect in its finding that the seniority can be decided only under Section 9 of the MEPS Act. Moreover, the School Tribunal while considering the claims of the Teachers before it has not referred to the claim of the petitioner at all. It has not noticed the contentions raised by the petitioner. As a result of this, the criticism of the order by the learned Advocate for the petitioner is well founded. WP/5860/1998 & WP/1275/1999 6 10. Furthermore, while considering whether the second vacancy which arose on account of the transfer of Nanda Mane, the issue whether the vacancy was available for a Scheduled Caste candidate or for a candidate belonging to any other reserved category or for the open category also has not been decided by the School Tribunal. In my opinion, before the School Tribunal could have arrived at any conclusion as to whether Nagnath Kamble was entitled to the post of Head Master, it was necessary for it to not only consider the claim of the petitioner but also to ascertain whether the vacancy which had arisen was for a reserved category candidate or was an open and clear vacancy. 11. Mr. Kudle, the learned Advocate appearing for the petitioner submits that in view of the G.R. dated 15th June, 1995, the petitioner would be entitled to continue in the post as a “Head Mistress” despite the fact that she belongs to the Special Backward Classes and not the Scheduled Tribe category. Be that as it may, it would be necessary for the School Tribunal to consider the effect, if any, of the invalidation of the Caste Certificate produced by the petitioner to the effect that she belonged to the Scheduled Tribes. The School Tribunal will have to then consider whether the aforesaid G.R. would be of any assistance to the petitioner in order to justify her claim to the post of “Head” of the School. 12. The Writ Petitions are, therefore, allowed. WP/5860/1998 & WP/1275/1999 7 13. Rule made absolute. 14. The Appeal No.77 of 1992 is remanded to the School Tribunal, Pune Region, Solapur. The School Tribunal, Solapur will decide the Appeal No.77 of 1992 as expeditiously as possible and in any event within a period of six months from today. 15. In the meantime, during the pendency of the Appeal No.77 of 1992, the status-quo as of today will continue with respect to the post of the “Head Master” in the Solapur School of the Management. 16. All contentions of all the parties are left open before the School Tribunal, Solapur. 17. Parties may also file any additional documents or pleadings, if found necessary.