Girish Suresh Jambhalikar v. The State of Maharashtra

7. A bare perusal of the said Rule clearly indicates that the management is obliged to prepare and maintain a seniority list of teaching staff including the headmaster and Assistant headmaster and also of non teaching staff in the school in accordance with the finding laid down in Schedule ‘F’. The seniority list so prepared is required to be circulated amongst the members of staff concerned and their signatures having received a copy of the list is to be obtained. In the present case there is no dispute with regard to the fact that the seniority list in compliance of this rule was duly prepared and published and signatures of all concerned staff are obtained thereon. This is not the case wherein any subsequent change has been made in the seniority list in order to notify the said change to the staff members concerned. Though, Sub Rule 2 requires the management to take into consideration to the objections to the seniority list, however, as it appears from the record no specific objection was raised by the respondent No.5 to the seniority list in order to consider the same. Sub Rule 3 provides that dispute if any in the matter of inter se seniority shall be referred to the Education Officer for his decision. This however does not create an embargo on employees to raise such dispute to Education Officer nor casts obligation on the management to refer such dispute for the decision to the Education Officer. It is always open for the member of the staff teaching / non teaching to raise such dispute before the Education Officer. Thus, merely because the respondent management has not referred the dispute to the Education Officer, respondent No.5 was never prevented from taking up this dispute before Education Officer for decision.

8. Admittedly, after the publication of seniority list, Petitioner was granted promotion of Supervisor on 26.07.2022 and Assistant Headmaster on 25.08.2022. Later on owing to code of conduct appointment of petitioner is made Incharge Head Master. These proposals have received due approval from the Education Officer. It is thereafter on 15.03.2024 an application was moved seeking direction to the management for appointment of respondent No.5 as Headmaster. Though it is sought to be argued on behalf of respondent No.5 that the application was mainly for raising challenge to the seniority list, it was open for the Education Officer to decide incidental issue of promotion. In this regard, it is relevant to take note of the applications moved by respondent No.5 before the Education Officer. It would be relevant to reproduce the contents of the application dated 15.03.2024, which reads thus: “eh ojhy fu;ekuqlkj T;s”B vlwu lq)k laLFksus ekÖ;kis{kk lsosus dfu”B vlysys v/;kid Jh- lrh’k t;oarjko Hkkslys ¼[kqyk izoxZ½;kaph fn- 01/07/2022 jksth eq[;k/;kid inkoj use.kwd dsyh- R;keqGs ukbZyktkus eyk es- fiBklu vf/kdkjh ‘kkGk U;k;kf/kdj.k] dksYgkiwj;kapsdMs [kVyk nk[ky djkok ykxyk- gk [kVyk vn~;ki izyafcr vkgs-;kuarj 01/08/2023 jksth ek>s izfroknh vlysys Jh- /kuat; foðy csnjs (ST);kauk mPp U;k;ky;kdMwu dkLV OgWfyMhVh lfVZfQdsV feGkys- rsOgkgh ek>s izeks’ku Mkoywu uwru ejkBh fon~;ky; gk;Ldwy e/;s R;kauk eq[;k/;kid in ns.;kr vkys-;kaurj ekÖ;kis{kk lsosus dfu”B vlysys v/;kid Jh- Ogh- ds- f’kans;kauk fn- 01/01/24 jksth vkiY;k ekQZr lquko.kh gksÅu] vkiY;k fu.kZ;kuqlkj eq[;k/;kid in ns.;kr vkys- lnj loZ f’k{kdkaph laLFksrhy use.kwd ekÖ;k uarjph vkgs] R;keqGs rs loZt.k ekÖ;kis{kk dfu”B vkgsrl/;k fnukad 01/04/2024 jksth izk;OgsV gk;Ldwye/;s eq[;k/;kid in fjDr gks.kkj vkgsojhy lanHkkZuqlkj] eh lokZr lsokts”B vlwu rlsp okjaokj laLFksdMwu nqyZf{kr gksÅu ek>soj okjaokj vU;k; >kysyk vkgs- d`i;k laLFksph lsok ts”Brk;knh vn~;kor dj.;kps vkns’k vkiY;k dk;kZy;kdMwu;kosr- rlsp ekÖ;k vtkZpk fopkj gksÅu vkiY;kdMwu lquko.kh ?ks.;kr;koh o eyk U;k; feGkok- gh fouarh-”

9. One more application is filed on 01.04.2024 before Education Officer, the relevant portion of which is reproduced below: “fnukad 01/04/2024 jksth izk;OgsV gk;Ldwye/;s eq[;k/;kid in fjDr >kys vkgsojhy fu;ekuqlkj lnj inklkBh oS/kfjR;k ehp ik= o;ksX; vkgs- gs in eykp feGkys ikfgts ijarq lnj inklkBh laLFksus Jh- th-,l- tkaHkGhdj;kaph voS/kfjR;k izHkkjh eq[;k/;kid inh fuoM dsyh vkgs- izHkkjh eq[;k/;kid inkP;k ekU;rslkBh th lsok ts”Brk;knh tksMysyh vkgs- rh iw.kZ pqdhph vkgs- R;keqGs izHkkjh eq[;k/;kid inkP;k eatqjhlkBh ek>h gjdr vkgs- ‘kkGsrhy deZpk&;kaps osru Fkkacw u;s;klkBh izHkkjh eq[;k/;kid inkP;k eatqjhlkBh vkiY;k dk;kZy;kdMs izLrko lknj >kY;kl R;kl d`i;k eatqjh nsÅ u;s ek- lapkyd f’k{k.k foHkkx] egkjk”Vª ‘kklu;kaP;k i=kuqlkj izFke laLFksl uohu lsok ts”Brk;knh r;kj dj.;kl vkiY;k dk;kZy;kdMwu vkns’k n~;kosr- rlsp lnj inklanHkkZr lquko.kh ?ksÅu eyk U;k; n~;kok gh vki.kkl dGdGhph fouarh vkgs-” Perusal of these applications made to Education Officer clearly show that respondent No.5 has raised objection to the grant of promotion of petitioner to the post of Incharge Head Master and it is further prayed that no approval be granted to such proposal, if received. Undeniably, there is an approval granted by Education Department to the appointment of petitioner as Incharge Head Master and only thereafter application was entertained and decided by Education Officer, by passing impugned order. Similarly, it appears from text of impugned order that respondent No.5 had filed appeal before School Tribunal, which was withdrawn subsequently. This appeal was filed under Section 9(b) of the Act, which deals with the dispute with regard to supersession by management making an appointment to the post by promotion and filing of such such dispute presupposes that respondent No.5 being aggrieved by his supersession had filed the said appeal.

10. With regard to the power of the Education Officer to decide the dispute about seniority and as to whether such power can be exercised after act of supersession. This Court in the case of Salim GulabMulla Vs. State of Maharashtra and others, reported in 2016(6) Mh.L.J. relying upon judgment of Division Bench has held in paragraph No.51 as under:

While passing above judgment, Court has taken into consideration judgments in case of: (1) Bhagwant Sheshrao Borale Vs. Education Officer, (Secondary), Zilla Parishad, Buldhana and Ors., 2009(6) Mh.L. J. 478 (2) Vidyalata Nilkanth Patil vs. Chairman/Secretary, Shikshan Prasarak Samiti, Badapokharan and ors. (3) St. Ulai High School and Anr. vs. Devendraprasad Jagannath Singh, 2007(1) Mh.L.J. (F.B.) 597 (4) Anjali Jayant Khati vs. Bal Mandir Sanstha and ors. 2008 Mh.L.J. Online 2 = 2009(1) Bom.C.R. 206 (5) Sumangala w/o Manoharrao Sakharkar vs. State of Maharashtra and ors., 2010(1) Mh.L.J. 63 (6) Umesh B. Vispute vs. State of Maharashtra and others, 2000(4) Mh.L.J. 564

11. The Division Bench of this Court has referred to judgment in the case of Saroj Pujari vs. Education Officer, Nagpur in W.P. No. 546 of 1989 was taken into account. In the said Judgment it is held that the question of seniority will have to be decided by the Tribunal for rendering a finding as to whether the petitioner has been superseded or not by the appointment of respondent No.4. Thus, it is in no uncertain terms held that Tribunal has jurisdiction to decide the question of seniority incidentally.

12. It would be relevant to take into consideration the judgment of Co-ordinate Bench in the case of Krishna Mahadu Gasti (supra). In the said case there was a challenge before the School Tribunal of the order of promotion dated 01.06.2018 passed by the Management and the said order of promotion was set aside and the Management was directed to promote respondent No.1 therein as Headmaster w.e.f. 01.06.2018. After considering the facts of the relevant provisions of the Act, it is held in paragraph No. 20 of judgment which reads thus;

20. So far as the scope and jurisdiction of Section 9 of the MEPS Act is concerned, learned senior counsel for the petitioners has relied upon the decision of the full bench of this Court which deals with the scope of Section 9. A perusal of the said decision indicates that the issue regarding challenge to inter se seniority under Section 9 is held to be within the scope of Section 9 as an incidental issue provided consequential action is taken by the management based on the dispute adjudicated by the Education Officer under Rule 12 of the MEPS Rules and the same is under challenge under Section 9. Thereafter considering the Rule 12, it is held in paragraph Nos. 24 and 25 as under:

24. Thus, in view of the aforesaid decision it is clear that the School Tribunal under Section 9 can examine the issue of inter se seniority in the event there is an adjudication made by the Education Officer under Rule 12 of the MEPS Rules and the management passes an order based on the said adjudication. Thus, an employee aggrieved by the consequential action by the management can raise a dispute on the decision of the Education Officer on the inter se seniority as an incidental issue while challenging the consequential action of the management before the School Tribunal.

25. In the present case admittedly, there is no adjudication made by the Education Officer under Rule 12 of the MEPS Rules. Though as per the undisputed seniority list maintained by the management under Rule 12 of the MEPS Rules, the management passed the order of promotion of petitioner no. 1, the School Tribunal has held that respondent no. 1 was entitled to be promoted as he entered Category ‘C’ right from the inception. The School Tribunal has further held that petitioner no. 1 would not be entitled to enter Category ‘C’ without completing 10 years of service in view of the fourth entry of Category ‘C’ of Schedule ‘F’ of the MEPS Rules. Thus, an adjudication by the School Tribunal on the inter se seniority is beyond the scope of Section 9 of the MEPS Act. Since there was no decision by the Education Officer under Rule 12 on the inter se seniority, the tribunal had limited jurisdiction under Section 9 as provided by the statute. The issue of inter se seniority is vested with the Education Officer under Rule 12 of the MEPS Rules. Thus, the findings recorded by the Tribunal on inter se seniority while dealing with an appeal under Section 9 would be beyond the scope and jurisdiction of Section 9. It is relevant to note that the Judgment of the Division Bench of this Court was not brought to the notice of the learned Single Judge while passing the said order. Perusal of the judgment of the Division Bench clearly indicates that it is within the jurisdiction of the Tribunal to decide the question of seniority for rendering a finding as to whether the person has been superseded or not by the appointment of another person, as incidental issue.

13. At this stage, it would be relevant to take into consideration provisions of Section 9 of MEPS Act which reads thus:

14. This provision starts with non obstante clause and as such this provision would take precedence over any law including the rules framed under this act itself. Pertinently non obstante clause does not say any other law, meaning thereby this provision supersedes even any contrary provision in the instant Act. It is thus clear that the powers of the School Tribunal in order to decide the dispute in respect of supersession by the management while making appointment to any post by promotion is notwithstanding anything contained in law or contract for the time being in force. The jurisdiction of Tribunal is wide enough to decide the issue of seniority as incidental issue. Thus it does not stand to any reason to hold that Rule 12 will supersede the powers of School Tribunal to decide the issue of seniority which involved in a case wherein the supersession by way of promotion has been challenged by filing appeal under Section 9. Thus it does not stand to reason to hold that the Tribunal would not get a jurisdiction at the first instance to decide issue of seniority and it can only be done after the Education Officer decides the same.

15. As against this, Rule 12 clearly indicates that the jurisdiction of the Education Officer being strictly limited to the dispute in the matter of inter-se seniority between the employees, by no stretch of imagination, it can be said that the Education Officer posses powers to pass any order in respect of the claim of any employee about his supersession being done by the management even incidentally.

16. Thus permitting an employee after the promotion has been granted on the basis of seniority list, to take exception to the seniority list under Rule 12 before the Education Officer will lead to a situation of permitting him to challenge the grant of promotion may be incidentally. However, by doing there would be enlargement of scope of Rule 12, wherein issue about the supersession cannot be decided even incidentally. It is never contemplated by the statute and in no circumstances even indirectly the Education Officer can be said to have jurisdiction to decide the issue of the promotion granted by the management. Conversely, there is no such embargo in Section 9 for Tribunal to decide the said issue. Since the issue has been squarely covered by the Judgment of the Division Bench of this Court, this Court is unable to agree with the view taken in the Judgment of Krishna Gasti (supra).

17. The above discussion clearly indicates that in the instant case the Education Officer has entertained the application under Rule 12 for objection to the seniority for the purpose of challenge to the promotion of petitioner as in-charge headmaster. The application made by the respondent No.5 as well as order impugned clearly indicate the application was not even simplicitor to take exception to seniority list only. Thus, Education Officer has exceeded his jurisdiction. Having regard to the aforestated facts, the order passed by Education Officer cannot sustain and as such is hereby set aside.

18. However, liberty is granted to the respondent No.5 to take exception to the seniority list as well as his supersession by filing an appeal under Section 9 of the Act before School Tribunal. If such appeal is filed within a period of four week from today, issue of limitation shall not be raised. Needless to say that School Tribunal on filing of such appeal is expected to decide the appeal on merits without getting influenced by the observations of this Court.

19. Writ Petition is allowed in aforestated terms. ( R. M. JOSHI, J.)