Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12578 OF 2019
JUDGMENT
1. Ulhas Shikshan Sanstha Classic Heights, Balaji Nagar Pune 411 043 Through its President/Secretary
2. Shri Shankar Ankush Dhumal Head Master, New English School At.Post Warve, Taluka Bhor District Pune 412 206 ….. Petitioners/ Original Respondent Nos. 1 and 2
VERSUS
1. Laxman Dagdu Mhaske Age: 48 years, Occ: Service Office Add: Mata Kurunjai and Y. P. Shilimkar Vidyalaya, Kurungvadi, Tal: Bhor, Dist: Pune ….. Respondent No.1/Org. Appellant
2. The Education Officer (Secondary) Pune Zilla Parishad Pune-411 001 ….. Respondent No. 2 Ms. Swati Chheda i/b. M. P. Vashi and Associates for the Petitioners. Mr. Himanshu Kade for the Respondents. Mr. B. B. Dahiphale, AGP for Respondent No. 2. rrpillai CORAM: GAURI GODSE, J. DATE: 10th MAY 2024 ORAL JUDGMENT
1. This petition takes an exception to the order passed by the School Tribunal in an appeal filed by respondent no. 1 [“respondent”] under Section 9 of The Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1977 [“MEPS Act”]. By the impugned order, the appeal preferred by the respondent is allowed, and the order of reduction in rank of the appellant passed by the petitioners on 29th July 2017 is declared illegal, and the same is quashed and set aside. The School Tribunal directed the petitioners to appoint the respondent to his original post of Head Master with full back wages and pay all consequential benefits. Being aggrieved by the said directions, the petitioners, i.e. the Management and the School, have filed this petition invoking writ jurisdiction under Articles 226 and 227 of the Constitution of India.
2. Respondent was appointed as Assistant Teacher on 1st December 1993 and was made permanent on 30th November 1995. May 2015, a resolution was passed to appoint the respondent as Head Master of petitioner no.2 – School. By order dated 26th May 2015 respondent was appointed as Head Master. Respondent joined the post of Head Master on 15th June 2015. Petitioner no.1 submitted a proposal with respondent no. 2 (‘Education Officer”) for approval of the respondent’s appointment to the promoted post of Head Master. On 1st July 2015, the respondent’s statement was recorded by the Education Officer stating that he was giving up his promotional post of Head Master of his own will. In view of the said statement, petitioner no. 1 addressed a letter dated 28th July 2015 to the Education Officer requesting to treat the proposal for the respondent’s appointment to the post of Head Master as cancelled. Though the respondent’s statement was recorded on 1st July 2015, he continued on the post of Head Master.
3. By letter dated 8th August 2015, the Education Officer granted permission to the respondent to sign the salary slips as he was appointed to the post of Head Master, but his appointment was not yet approved. Thereafter, on 29th July 2017, the petitioner no. 1 issued a letter of transfer to the respondent, transferring him to another school on the post of Assistant Teacher. On the same day another letter of appointment was issued appointing some other teacher as Head Master of petitioner no. 2 – school. Being aggrieved by the order of transfer, the respondent filed an appeal before the School Tribunal on the ground that the said order of transfer to the post of Assistant Teacher amounts to a reduction in rank. The School Tribunal, by the impugned order, has set aside the order of transfer amounting to a reduction in rank and directed the petitioners to appoint the respondent to his original post of Head Master. Hence, the present writ petition is filed.
4. Learned counsel for the petitioners submitted that the statement recorded by the respondent before the Education Officer would amount to resigning from the post of Head Master. Hence, though the respondent was permitted to continue as In-charge Head Master, in view of the statement he had made, he was treated as resigned from the post of Head Master. In support of her submissions, learned counsel for the petitioners relied upon Rule 3 of The Maharashtra Employees of Private Schools (Conditions of Services) Rules, 1981 [“MEPS Rules”]. She submitted that the senior most teacher who is proposed to be appointed to the post of Head Master is required to submit his willingness to accept the post within fifteen days from the date of proposal to appoint him as Head Master. She submits that after the proposal for approval of the respondent’s appointment to the post of Head Master was submitted before the Education Officer on 24th June 2015, the respondent recorded his statement of unwillingness to accept the post of Head Master before the Education Officer on 1st July 2015, i.e. within fifteen days. Hence, in view of the Explanation to Rule 3 of the MEPS Rules, the respondent is deemed to have given up his claim to the appointment to the post of Head Master. Hence, the original order appointing him as Head Master is rendered redundant. Hence, the petitioners are justified in transferring the respondent to another school on the post of Assistant Teacher. She further submitted that the petitioners have already appointed the senior most teacher as Head Master, and hence, now there is no post available to appoint respondent to the post of Head Master.
5. In support of her submissions, the learned counsel for the petitioners relied upon the decision of this court in the case of Vidhayak Samiti Pimpalner’s Late N. S. Patil Secondary and Higher Secondary School, Pimpalner and Another vs. State of Maharashtra and Others[1]. Learned counsel for the petitioners submitted that in similarly situated facts this court in Vidhayak Samiti’s case held that once a teacher resigns from the post of Head Master, he is not entitled to claim a promotion on the said post in view of the Explanation to Rule 3 of the MEPS Rules. She submitted that this Court has taken a view that once a teacher voluntarily gives up the claim, it amounts to the acquiescence of his right to continue as Head Master and hence cannot be permitted to reclaim the said post at the cost of the incumbent Head Master who is subsequently appointed. Hence, she submitted that in the present case, also the respondent has given up his claim to the post of Head Master by recording his statement before the Education Officer. Hence, once the respondent has voluntarily given up the post of Head Master, he cannot insist on continuing on the said post. Hence, the Tribunal has wrongly treated the order of transfer as an order amounting to a reduction in rank and erroneously directed reinstatement of the respondent to the post of Head Master.
6. Learned counsel for the respondent submitted that the 2021 SCC Online Bom 13961 respondent in the appeal before the Tribunal has explained the circumstances under which his statement was recorded before the Education Officer. He submitted that the respondent does not deny the recording of the statement before the Education Officer, however, the respondent has never resigned from the post of Head Master. He submitted that after following the necessary procedure, an appointment order was issued in favour of the respondent, promoting him to the post of Head Master. In view of the order of appointment, the respondent joined the service to the post of Head Master and was continuously working on the said post. He submitted that though the respondent was shown as In-charge Headmaster, he worked on the post of Head Master, discharging all the duties of a Head Master for almost two years after the date of appointment and even prior to the date of appointment, he was working as In-charge Head Master for almost four years from the year 2011 to 2015.
7. Learned counsel submitted that Rule 3 of the MEPS Rules relied upon by the petitioners is not applicable in the present case as the respondent was already appointed to the post of Head Master. He submitted that the issue of submitting the willingness or unwillingness for appointment to the vacant post of Head Master would arise only prior to the order of appointment. He submitted that there is no substance in the ground raised by the petitioners that within fifteen days of the date of submitting a proposal to the Education Officer, the respondent had shown his unwillingness, which would amount to giving up the post. He submitted that the issue regarding approval by the Education Officer is a lis between the management and the Government with regard to releasing payment. He submitted that in a given case if such a proposal is not approved, it would not invalidate the original order of appointment. He submitted that the order appointing the respondent to the post of Headmaster passed after following due procedure is admittedly never cancelled. Hence, the respondent’s statement recorded before the Education Officer after the order of appointment would not invalidate the order of appointment. Thus, the respondent is entitled to continue on the post of Head Master. He, therefore, submitted that the Tribunal has rightly allowed the appeal by setting aside the order issued by the petitioners, which amounts to a reduction in the rank of the respondent.
8. To support the submissions made by the learned counsel for the respondent that the issue regarding approval is a lis between Management and the Government, he relied upon the decision of the full bench of this Court in the case of St. Ulai High School and Another vs. Devendraprasad Jagannath Singh and Another[2]. He submitted that the full bench of this Court in the said case has held that disbursal of grant-in-aid or any dispute in regard to breach of condition of aid by the management constitutes a lis between the management and the Government. Hence, non-approval of the proposal submitted by the management would not invalidate the order of appointment. Hence, the respondent’s statement recorded before the Education Officer after the submission of the proposal for approval of the respondent’s appointment to the post of Head Master would have no effect on the Order of appointment. He further submitted that neither the order of appointment was ever cancelled nor the respondent resigned from the post of Head Master. Hence, the order transferring the respondent to the post of Assistant Teacher when the respondent was validly working on the post of Head Master amounts to a reduction in rank. Hence, no fault can be found in the reasons recorded by the Tribunal. Hence, he submitted that it is not a fit case 2007 (1) Mh.LJ 597 to invoke the powers under Articles 226 or 227 of the Constitution of India.
9. I have considered the submissions. Perused the papers. There is no dispute on the order of appointment of the respondent to the post of Head Master and the date of his joining as Head Master. It is also not disputed that even prior to the date of appointment, the respondent was working as In-charge Head Master in petitioner no. 2 – school. The respondent’s statement recorded before the Education Officer within the time span of fifteen days from the date of submission of the proposal for approval cannot be read to mean that it is a statement of willingness or unwillingness as contemplated in the Explanation under Rule 3 of the MEPS Rules. It is a well-established principle of law that issues regarding approval or non-approval of the Education Department would not invalidate the order of appointment made after following the due procedure under the MEPS Act and MEPS Rules framed thereunder. The result of the proposal for approval would not affect the validity of the order of appointment. Hence, I do not find any substance in the argument of the petitioners that the respondent’s statement recorded within fifteen days of the date of submission of the proposal to the Education Department would mean unwillingness, as contemplated in the Explanation under Rule 3 of the MEPS Rules.
10. Even after the statement was recorded, the Education Officer, on 8th August 2015, permitted the respondent to sign the salary slips as he was appointed to the post of Head Master, but his appointment was not yet approved. Thus, though the respondent’s statement was recorded by the Education Officer, the order of appointment of the respondent to the post of Head Master was never cancelled. He had joined the post as per the appointment order and continued to work on the post of Head Master. Even if he was shown working as In-charge Head Master on papers, the same would not make the original order of appointment ineffective.
11. There is no dispute that the respondent was a permanent employee of the petitioners appointed after following due procedure. His appointment as Assistant Teacher was also approved by the Education Department. Thereafter, after following the necessary procedure petitioner no.1 passed a resolution for promoting the respondent to the post of Head Master. Accordingly, the order of appointment to the post of Head Master was issued in the prescribed format. Respondent was permitted to join the post of Head Master on 15th June 2015. Thus, as contemplated under Rule 3 of the MEPS Rules, the respondent was found fit and qualified for the appointment to the post of Head Master. It appears that since petitioner no. 2 is an aided institution, a proposal for approval of the respondent’s appointment to the post of Head Master was submitted before the Education Department. After the said proposal was submitted, the respondent’s statement was recorded before the Education Officer that he was unwilling to work on the said post and on his own will, he is giving up the said post. Thereafter, petitioner no. 1 addressed a letter to the Education Officer requesting to treat the earlier proposal for approval as cancelled. Despite the said letter, the respondent admittedly continued on the post of Head Master and discharged all his duties as Head Master for two years. Thus, the respondent’s statement recorded before the Education Officer was never acted upon except for writing a letter to the Education Officer that the proposal for approval of the respondent’s appointment to the post of Head Master be treated as cancelled.
12. It is a well-settled principle of law, as established by the Full Bench of this Court in the case of St. Ulai High School, that the approval by the Education Officer is not a condition precedent to a valid order of appointment. The approval, in fact, relates to only the disbursal of grant-in-aid by the State Government to the management. Therefore, the want of approval will not invalidate the order of appointment. This legal principle is applicable to the facts of the present case.
13. Thus, the respondent’s appointment to the post of Head Master is made after following due procedure; and admittedly, it is neither cancelled nor is his service been terminated or has he resigned. Even otherwise, the power to terminate services or an order reducing in rank is provided under Rule 38, read with Rules 36 and 37 of the MEPS Rules. Admittedly, no such procedure has been followed. Hence, the order of the respondent’s appointment to the post of Head Master is a valid order and cannot be said to be invalidated only on the ground of the statement recorded before the Education Officer. It is not the case of the petitioners that the procedure prescribed under Rule 40, the MEPS Rules, was followed for tendering valid resignation. There is no substance in the argument on behalf of the petitioners that the respondent's statement recorded before the Education Officer would amount to resignation. In the decision of this Court in the case of Vidhayak Samiti the issue involved was claim for promotion of a teacher to the post of Head Master, who had resigned from the post of teacher. Hence, the legal principles in the said decision are of no assistance to the arguments raised by the learned counsel for the petitioners.
14. Reliance placed by the petitioners on the Explanation to Rule 3 of the MEPS Rules is not applicable to the facts of the present case. The said Explanation would be applicable before the order of appointment is issued. The Explanation to Rule 3 permits the proposed appointee to submit willingness for appointment to the post within fifteen days from the date of receipt of the communication by the management about the occurrence of vacancies of the Head to the senior most qualified teacher. Thus, the said Explanation permits the proposed appointee to give up the claim by recording a statement in writing to the Education Officer regarding voluntary relinquishment to the claim of the post. The said Explanation further provides that such unwillingness if recorded, shall not debar the proposed appointee from being considered for subsequent vacancies as and when they occur. Thus, the said Explanation is applicable to the pre-appointment stage and cannot be said to be any absolute rule to invalidate the order of appointment already made after following the due procedure.
15. Thus, the Tribunal correctly examined the facts and, after referring to the relevant provisions under the MEPS Act and the Rules, recorded reasons for holding the order of transfer as an order of illegal reduction in rank.
16. Thus, the submission of a proposal for approval of the respondent’s appointment to the post of Head Master was part of the duty of the petitioners to get the appointment approved only for the purpose of a salary grant. Once the petitioners issued a valid appointment order and allowed the respondent to continue on the post of Head Master, they cannot, after two years, be permitted to turn around and say that the respondent has lost the post of Head Master in view of the statement recorded before the Education Officer. After permitting the respondent to join the said post and continue on the said post, the petitioners cannot deprive the respondent of the post of Head Master by relying upon the Explanation to Rule 3 of the MEPS Rules, which is applicable prior to the issuance of the appointment order.
17. A perusal of the reasons recorded by the Tribunal indicates that the Tribunal has taken into consideration relevant provisions of the MEPS Act and Rules framed thereunder. The Tribunal has also examined the issue regarding the statement of the respondent recorded before the Education Officer. There is no error or any illegality in the reasons recorded in the impugned order by the Tribunal warranting invocation of the powers under Articles 226 or 227 of the Constitution of India.
18. The petition is thus devoid of any merits. For the reasons recorded above, the petition is dismissed.
19. At this stage, learned counsel for the petitioners requests an extension of the ad-interim stay granted by this Court. The ad-interim stay already granted is extended for six weeks from the date of uploading this order. [GAURI GODSE, J.]