NILDHWAJ MOTIRAMJI KAMBLE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) RULE. Rule made returnable forthwith and heard the learned counsel for the parties.

(2.) The petitioner and the respondent no.4 are serving as Headmaster and Assistant Teacher respectively at the school run by the respondent no.3. The petitioner was appointed on the post of Assistant Teacher on 9/9/1985 while the respondent no.4 was appointed as Assistant Teacher on 11/12/2002. Their appointments were duly approved by the Education Officer (Secondary). The petitioner was shown to be senior than the respondent no.4 in the seniority list that was prepared for the years 2017-18 and 2018-19. In the seniority list for the year 2018-19, the petitioner was shown at Serial Number 1 while the respondent no.4 was shown at Serial Number 6. On 30/4/2018 the Management passed a resolution promoting the petitioner to the post of Headmaster from 1/5/2018. The petitioner accordingly took charge of the post of Headmaster from 1/5/2018 and his appointment as such was approved by the Education Officer (Secondary) on 17/5/2018. It is the case of the respondent no.4 that his placement in the seniority list for the year 2018-19 was improper and he ought to be shown to be senior to the petitioner. Hence, on 31/7/2018 the respondent no.4 made a representation to the Management seeking appropriate placement in the seniority list. A copy of that representation was also addressed to the Education Officer (Secondary). It appears that the Education Officer (Secondary) in exercise of powers conferred by Rule 12 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short, 'the said Rules ') passed an order on 12/6/2019 holding that in view of Government Circular dtd. 3/5/2019 as well as a communication from the Office of the Director of Secondary and Higher Education dtd. 27/5/2019, the respondent no.4 was senior to the petitioner. On the same day, the Education Officer (Secondary) directed the Management to submit a proposal showing the respondent no.4 as Headmaster for necessary approval. The petitioner protested against such direction through his communications dtd. 3/7/2019 and 4/7/2019. On finding that there was no response to the same from the Office of the Education Officer (Secondary) the petitioner has filed this writ petition under Article 226 of the Constitution of India challenging the communications dtd. 12/6/2019 by which the Education Officer (Secondary) has held the respondent no.4 to be senior to the petitioner as well as the direction issued to the Management to send a proposal indicating the respondent no.4 to be the Headmaster.

(3.) Shri Prashant Thakare, learned counsel for the petitioner submits that the Education Officer (Secondary) had no jurisdiction to entertain any grievance relating to the seniority list of the year 2018-19 under Rule 12 of the said Rules after the Management had on the basis of such seniority list promoted the petitioner. According to him the jurisdiction to entertain any grievance/dispute in the matter of inter se seniority is available with the Education Officer (Secondary) only till such time the Management has not acted upon the same and effected any promotion. On an order of promotion being issued by the Management the person aggrieved by the same is required to challenge such order of promotion by filing an appeal under Sec. 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, 'the said Act '). Since the Education Officer (Secondary) had chosen to adjudicate the dispute as regards inter se seniority between the petitioner and the respondent no.4 despite the fact that prior thereto the petitioner had been promoted to the post of Headmaster it was clear that the Education Officer (Secondary) exceeded the jurisdiction conferred on him by Rule 12 of the said Rules. In support of this contention, the learned counsel placed reliance on the decisions in Umesh Balkrishna Vispute Versus State of Maharashtra and Others [2000(4) Mh.L.J. 564], St.Ulai High School and Another Versus Devendraprasad Jagannath Singh and Another [2007(1) Mh.L.J. 597], Bhagwant Sheshrao Borale Versus Education Officer, (Secondary), Zilla Parishad, Buldana and Others [2009(6) Mh.L.J. 478] and Salim Gulab Mulla Versus State of Maharashtra and Others [2016(6) Mh.L.J. 617]. On merits of the adjudication, it was submitted that the petitioner was rightly shown to be senior to the respondent no.4 since 2017-18 and the claim as sought to be made by the respondent no.4 was not liable to be accepted. It was thus submitted that the impugned communications dtd. 12/6/2019 were liable to be set aside.