Bombay High Court
Rural Education Societies Through Its ... vs The State Of Maharashtra And Others on 4 May, 2018
Author: A. M. Dhavale
Bench: S. V. Gangapurwala, A. M. Dhavale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
WRIT PETITION NO. 1847 OF 2017
Dilip S/o Dattatraya Pathak,
Age : 54 years, Occu. Service,
At Present working as Vice-Principal of
Janata Vidya Mandir, Madhyamik Va
Uccha Madhyamik Vidyalaya,
Murud, Tq. & Dist. Latur. ... Petitioner
VERSUS
1] The State of Maharashtra,
Through its Secretary,
School Education and Sports Department,
Mantralaya, Mumbai-32.
2] The Deputy Director of Education,
Latur Division, Latur, Tq. & Dist. Latur.
3] The Education Officer (Secondary),
Zilla Parishad, Latur,
Tq. & Dist. Latur.
4] Rural Education Societies,
Janata Vidya Mandir, Madhyamik Va
Uccha Madhyamik Vidyalaya,
Murud, Tq. & Dist. Latur.
Through its Secretary / President
5] Rural Education Societies,
Janata Vidya Mandir, Madhyamik Va
Uccha Madhyamik Vidyalaya,
Murud, Tq. & Dist. Latur.
Through its Principal
6] Sudhir S/o. Kishanrao Kanase,
Age : 51 years, Occu. Service,
R/o. A/P. Murud, Tq. & Dist. Latur. ... Respondents
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..........
Shri. Bhausaheb B. Bhise, Advocate for the petitioner
Shri. S. G. Karlekar, AGP for respondents No. 1 to 3
Shri. V. V. Deshmukh, Advocate for respondents No. 4 and 5
Shri. S. S. Thombre, Advocate for respondent No. 6
.............
WITH
WRIT PETITION NO. 14807 OF 2017
Sudhir S/o Kisanrao Kanse,
Age : 52 years, Occu. Service as Vice-Principal,
R/o. Murud, Tal & District Latur. ... Petitioner
VERSUS
1] The State of Maharashtra,
Through its Principal Secretary,
School Education Department,
Mantralaya, Mumbai.
2] The Director of Education,
Maharashtra State, Pune.
3] The Deputy Director of Education,
Latur Division, Latur.
4] The Education Officer (Secondary),
Zilla Parishad, Latur.
5] The Headmaster,
Janata Vidya Mandir Secondary and
Higher Secondary School, Murud,
Tal. & District Latur.
6] Rural Education Society,
Murud, Tal. & District Latur,
Through its Secretary.
7] Dilip S/o Dattatraya Pathak,
Age : 53 years, Occu. Service,
R/o. Murud, Tal. & District Latur.
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8] Namdeo S/o Balasaheb Pawar,
Age : 58 years, Occ. Retired,
R/o. Murud, Tal. & Dist. Latur. ... Respondents
..........
Shri. S. S. Thombre, Advocate for the petitioner
Shri. S. G. Karlekar, AGP for respondents/State
Shri. V. V. Deshmukh, Advocate for respondent No. 5
.............
WITH
WRIT PETITION NO. 742 OF 2017
1] Rural Education Societies,
Janata Vidya Mandir Madhyamik Va
Uccha Madhyamik Vidyalaya,
Murud, Tq. & Dist. Latur,
Through its Secretary / President.
2] Rural Education Societies,
Janata Vidya Mandir Madhyamik Va
Uccha Madhyamik Vidyalaya,
Murud, Tq. & Dist. Latur,
Through its Principal ... Petitioners
VERSUS
1] The State of Maharashtra,
Through its Secretary,
School Education and Sports Department,
Mantralaya, Mumbai-32.
2] The Deputy Director of Education,
Latur Division, Latur, Tq. & Dist. Latur.
3] The Education Officer (Secondary),
Zilla Parishad, Latur,
Tq. & Dist. Latur.
4] Sudhir Kishanrao Kanase,
Age : 51 years, Occu. Service,
R/o. A/P. Murud, Tq. & Dist. Latur. ... Respondents
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..........
Shri. V. V. Deshmukh, Advocate for the petitioner
Shri. S. G. Karlekar, AGP for respondents No. 1 to 3
Shri. S. S. Thombre, Advocate for respondent No. 4
.............
CORAM : S. V. GANGAPURWALA &
A. M. DHAVALE, JJ.
DATE OF RESERVING THE JUDGMENT : 23.04.2018
DATE OF PRONOUNCING THE JUDGMENT : 04.05.2018
JUDGMENT [PER A. M. DHAVALE, J.] :-
1. These three writ petitions involve common questions of law
and facts. These petitions are commonly heard and are disposed of
by this common judgment.
2. The issue is about seniority between Sudhir Kanse & Dilip
Pathak relevant for the promotion to the post of Vice-Principal in the
Higher Secondary School at Murud, Dist. Latur (R-5). We have heard
Shri. B. B. Bhise, learned counsel for Dilip Pathak, Shri. S. S.
Thombre, learned counsel for Sudhir Kanse, Shri. S. G. Karlekar,
learned Assistant Government Pleader for Director & Dy. Director of
Education and Shri. V. V. Deshmukh, learned counsel for Zilla
Parishad and respondent No. 5 - High School. Since the parties have
different status in different petitions, for the sake of convenience they
are hereinafter referred to as per their names/posts.
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3. Writ Petition No. 742 of 2017 is filed by the management -
Rural Education Society for quashing of order dt. 10.01.2017 passed
by Deputy Director of Education, Latur, granting approval in favour
of Sudhir Kanse and a writ of mandamus to grant approval to the
proposal sent by the petitioner-Society dt. 20.12.2016 for approval to
the appointment of Dilip Pathak as Vice-Principal of the Janata Vidya
Mandir Madhyamik Va Uccha Madhyamik Vidyalaya.
4. Writ Petition No. 1847 of 2017 is filed by Dilip Pathak
challenging the order of Dy. Director of Education of granting
approval to Shri. Kanse as Vice-Principal of the Janata Vidya Mandir
Madhyamik Va Uccha Madhyamik Vidyalaya run by Rural Education
Society dt. 10.01.2017 and he seeks quashing of the same and writ of
mandamus for direction to Dy. Director of Education to grant
approval to the proposal dt. 20.12.2016 forwarded by respondent No.
5 for grant of approval to his promotion as Vice-Principal.
5. In Writ Petition No. 14807 of 2017, Sudhir Kanse as the
petitioner, by issue of writ of certiorari, seeks quashing of order
dt.30.12.2016 of Education Officer (R-3) declaring Dilip Pathak as
senior to him and claims declaration that the petitioner is senior to
Mr. Pathak.
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6. The factual matrix relevant for determining the controversy
may be stated as follows:
6.1 Rural Education Society is running High School - Janata
Vidya Mandir Madhyamik Va Uccha Madhyamik Vidyalaya,
Murud, Dist. Latur. By common order dt. 14.07.1988,
Shri. Pathak & Shri. Kanse were appointed as teachers in
the Higher Secondary School. Admittedly, Shri. Kanse
joined duties on 15.07.1988. The dispute is about date of
joining of Mr. Pathak. As per earlier record, he joined
duties on 18.07.1988. Since the seniority was to be counted
from the date of joining, Mr. Kanse was shown as senior to
Mr. Pathak. This position showing Shri. Kanse senior to
Shri. Pathak continued till October - 2015. On 20.10.2015,
Shri. Pathak filed an application for correction of his date of
joining. He claimed that he had joined his duties on
15.07.1988 but the date of joining was wrongly shown as
18.07.1988 and same should be corrected in the records.
The issue was referred to the Education Officer, who by
order dt. 13.12.2016 held that, since Shri. Pathak was
given salary from 15.07.1988, he had joined duties on
15.07.1988. Mr Pathak was senior to Shri. Kanse, who
joined duties on 17.07.1988. (Actually Mr. Kanse has
joined duties on 15.07.1988 and Mr Pathak and the
Management were claiming that he was senior as he was
born earlier to Mr. Kanse.) This change of date of joining of
Mr. Pathak affecting the seniority inter se between Mr.
Pathak and Mr. Kanse, led to the dispute regarding the
appointment to the post of Vice-Principal.
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6.2 In August-2013, Mr Kanse was appointed as Vice-Principal
and proposal for his approval on the same was forwarded
to Dy. Director of Education on 19.09.2013. Since the
performance of Mr Kanse was not found satisfactory, the
Education Committee passed a resolution and cancelled the
promotion and wrote a letter to Dy. Director regarding
withdrawal of earlier proposal of Mr. Kanse. It is relevant
to note here that, one Pisal and one Kadam were senior,
but they had refused to accept the post of Vice-Principal.
Then proposal of Mr. P. S. Mundhe for promotion as Vice-
Principal was forwarded on 28.1.2015. Though Mr Mundhe
was junior, he was belonging to NT category. The post of
Vice-Principal was not having separate pay scale nor it was
referred to in Bindu Namavali. The Dy. Director gave
hearing wherein Mr. Kanse denied the management's
contention that his educational performance was not
satisfactory. The Dy. Director of Education accepted the
right of management to recommend for approval the names
of eligible teacher as Vice-Principal as per 1981 rules. The
proposal of Mr. Kanse & Mr Mundhe for promotion to the
post of Vice-Principal was temporarily rejected on the
ground of seniority. Mr Kanse preferred Writ Petition
No.7386 of 2016 before this Court challenging the said
order. Thereafter, Mr Kanse as Headmaster (respondent
No. 4) without any authority from the management again
sent his another proposal for the post of Vice-Principal. The
management had preferred an application before the Dy.
Director of Education requesting not to accord any approval
disclosing to him that the order of Dy. Director was under
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challenge before this Court. Besides the certification of the
employees was also pending before the Education Officer.
Meanwhile, Mr Pathak contended that, he and Mr Kanse
had joined on the same day and he being senior in age, he
was entitled to seniority. The Education Officer had
accepted the contention of Mr. Pathak and allowed to
correct the record to show that he had joined services on
15.07.1988 and was senior to Mr Kanse. After correction of
the service record, the High School forwarded proposal of
Mr Pathak to the Education Officer to determine the
seniority and on 13.12.2016, Mr Pathak was declared
senior to Mr. Kanse. On 15.12.2016, the management
decided to appoint Mr.Pathak as Vice-Principal on the basis
of his seniority and passed promotional order accordingly.
By appointment order dt. 19.12.2016, Mr Pathak joined
duties on 20.12.2016 as Vice-Principal. The said proposal
was forwarded for approval to the Dy. Director of
Education. On 10.01.2017, the Dy. Director of Education
without considering the proposal of Mr. Pathak for
promotion and though Mr Kanse's earlier proposal was
rejected and was under judicial scrutiny of the High Court,
granted approval in favour of Mr Kanse on 10.01.2017. (i)
According to Management, the said order was illegal as Dy.
Director of Education had no authority to review his own
order. It was earlier rejected on merits. (ii) There was no
subsequent proposal for appointment of Mr. Kanse. (iii)
After getting the seniority fixed from the competent
authority, the management had forwarded the proposal of
Mr Pathak for approval which was not considered. The Dy.
Director acted in excess of his jurisdiction and not bona
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fide. Therefore, the management as petitioner sought
quashing of the order dt. 10.01.2017 and grant of approval
in favour of Mr.Pathak by Writ Petition No. 742 of 2017.
6.3 Mr Pathak has filed Writ Petition No. 1847 of 2018 for
similar reliefs in his favour and the factual pleadings are
similar to the writ petition by the management.
7. Mr Kanse filed Writ Petition No. 14807 of 2016. He
claimed that, he joined the duties on 15.07.1988 while Mr Pathak
joined the duties on 18.07.1988 and since then, no dispute regarding
the seniority of Mr Kanse was raised by Mr Pathak or by the
management. He claimed that on the basis of his seniority, he was
appointed as Vice-Principal on 29.08.2013 and his services were
approved by Dy. Director of Education on 10.01.2017. He claimed
that, respondent No. 8 - Namdeo Pawar (Ex-Principal) has
manipulated the record during his regime in 2016 and the Education
Officer passed the order dt. 30.12.2016 on the basis of said
manipulated record. The petitioner has filed criminal prosecution
against Mr. Namdeo Pawar & Mr Dilip Pathak in the court of Judicial
Magistrate First Class, Latur. After manipulation of record, incorrect
seniority list was published so as to alter the long standing seniority
of Mr. Kanse over Mr. Pathak. The Dy. Director of Education by
order dt. 10.01.2017 had granted approval to the appointment of
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Kanse as Vice-Principal from 29.08.2013. Mr Pathak had not joined
on 15.07.1988 but had joined on 18.07.1988. The copy of
attendance sheet discloses that, Mr Kanse had joined on 15.07.1988
and Pathak had joined on 18.07.1988 while 17.07.1988 was Sunday.
In order dt. 31.08.1989, the Dy. Director had held that, Mr Pathak
joined on 18.07.1988. The approval order dt. 31.08.1989 was not
challenged and had attained finality. On 20.08.2013, Mr Kanse was
held as senior most teacher and appointed as Vice-Principal and the
proposal for his appointment was also sent. Mr Kanse had taken
charge of his post on the said date i.e. 29.08.2013. Even while
granting the scale of senior teachers, the date of appointments as
shown above of Mr Kanse and Mr Pathak, were maintained. The Dy.
Director of Education had granted approval to the promotion of Mr
Kanse to the post of Vice-Principal subject to withdrawal of Writ
Petition No. 7386 of 2016 filed before this Court. The amended
seniority list is bogus. Mr Kanse has recorded his remark as 'not
accepted' the same. Hence, he prayed for quashing of order of
Education Officer dt. 13.12.2016 and seeking declaration that he is
senior to Mr. Pathak.
8. Shri. V. V. Deshmukh, learned counsel for the Management
and Shri. Bhise, learned counsel for Mr Pathak submitted that the
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appointment of Vice-Principal was the right of the management and
Dy. Director of Education was only supposed to grant approval to the
proposal submitted by the management. In the present case, though
under bona fide belief the Management sent proposal of Mr Kanse in
the year 2013, the same was withdrawn by the management. The
Education Officer on the application of Mr Pathak gave a finding
dt.13.12.2016 that Mr Pathak was senior to Mr Kanse. Thereafter,
the Management by resolution dt. 15.12.2016 permitted Mr Pathak
to the post of Vice-Principal as he was senior most teacher. He had
joined duties on 20.12.2016 and on the same day the proposal for
approval of his promotion was also sent to the Dy. Director of
Education. In the circumstances, the Dy. Director had no authority to
consider the proposal sent by Mr Kanse himself and to grant the
approval to his previous appointment as from 29.08.2013. His
proposal was already withdrawn by the Management. The same was
rejected by respondent No. 2 on 21.07.2015. The Dy. Director had
no authority to review his own orders and, therefore, the impugned
order of Dy. Director dt. 10.01.2017 approving the appointment of
Mr Kanse from 29.08.2013 is illegal and bad in law and deserves to
be quashed and set aside. It is also argued that, Mr Pathak is
working as Vice-Principal and is the senior most teacher. His
proposal could not have been rejected by the Dy. Director. The Dy.
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Director has been suspended for his acts. Mr. V. V. Deshmukh, the
learned counsel argued that the Writ Petition No. 742 of 2017 be
allowed.
9. Mr Bhise, learned advocate for Mr Pathak in Writ Petition
No. 1847 of 2017 has argued on similar line. He argued that, the
date of joining of Mr Pathak was wrongly recorded in the office
record. After enquiry, the Education Officer has given a finding that
Mr Pathak had joined the duties on 15.07.1988 whereas; Mr Kanse
joined the duties on 17.07.1988. Thus, Mr Pathak was held to be
senior to Mr Kanse. The performance of Mr Kanse was not
satisfactory. The Management has given due consideration to these
facts and has appointed Mr Pathak as Vice-Principal and had sent the
proposal. He had joined the duties as Vice-Principal. The said
proposal ought to have been allowed. The Dy. Director had no
jurisdiction to grant approval on the basis of proposal of Mr Kanse
sent by himself.
10. Per contra, Shri. S. S. Thombre, the learned counsel for
Mr Kanse, submits that Mr Kanse has joined on 15.07.1988 whereas;
Mr Pathak had joined the duties on 18.07.1988. Accordingly,
Mr Kanse was shown as senior to Mr Pathak in the High School
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record right from 1988 till 2016. Meanwhile, approval to the
appointment of Mr Kanse was granted from 18.07.1988. Muster and
service book shows that, Mr Pathak had joined on 18.07.1988. There
was subsequent alterations in the service record. Selection grade and
benefit of 12 years were also given to Mr Pathak assuming his date of
joining as 18.07.1988. Mr Kanse was appointed as Vice-Principal on
29.08.2013 which was not challenged by Mr Pathak. Subsequently,
the record was manipulated for which Mr Kanse has filed FIR at the
Police Station against Mr. Pawar (Ex-Principal) and Mr Pathak. The
seniority of Mr Kanse was exiting for a long period and Mr Pathak
never challenged the same for 27 years. Challenge at such a late
stage is not maintainable and the Education Officer erred in taking
the cognizance of the challenge to the seniority at such a late stage.
Mr Thombre also argued that, even on facts Mr Kanse was senior to
Mr Pathak and there is documentary evidence to support this fact.
The Management has no right to send the proposal of Mr Pathak as
Vice-Principal and Dy. Director of Education has rightly accepted the
previous proposal of the Headmaster in respect of Mr Kanse. The
order of Education Officer holding Mr Pathak as senior should be
quashed. He relied on the judgment of the Apex Court in the case of
Ramchandra Shankar Deodhar and otehrs Vs. State of
Maharashtra and others reported in AIR 1974 SC 259, wherein it is
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laid down that the writ petition is liable to be dismissed on the
ground of latches if the concerned aggrieved person had not
challenged the decision for two decades. There are following rulings
taking similar view.
(i) Akshya Bisoi v. AIIMS reported in 2018(3) SCC 391.
(ii) Vijay Kumar Kaul v Union of India reported in 2012 (7)
SCC 610.
11. In reply, Mr Bhise & Mr V. V. Deshmukh, learned advocates
for Mr Pathak and the Management argued that, though there was
delay in challenge, the petitioner had filed applications before the
Management from time to time claiming that his date of birth is
wrongly recorded in the office record. Besides, during 1988-2013, the
issue of seniority was not relevant as there was no issue of promotion
on the basis of seniority. When the issue of promotion was raised,
Mr Pathak filed applications to claim his seniority and the Education
Officer has conducted proper enquiry, gave proper opportunity and
thereafter decided the seniority of Mr Pathak. It is also argued on
behalf of Mr Pathak and the Management that the issues raised
herein should have been agitated by Mr Kanse before the School
Tribunal. The school Tribunal has jurisdiction u/s 9(1)(b) not only
to decide the issue of supersession but also the issue of seniority. The
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rulings cited by the parties will be discussed at the appropriate stage.
Sr.No. Point Finding
1 Whether the writ petitions are In the negative.
maintainable when the petitioners
had alternate remedy of
approaching to the School
Tribunal?
2 Whether the issue of seniority To be determined by
could have been decided at such a School Tribunal.
belated stage?
3 Whether Mr Pathak is senior to To be determined by
Mr Kanse? School Tribunal.
4 What Order? The petitions are
dismissed as per final
order.
REASONS
12. After carefully considering the arguments advanced before
us, we find that there is a serious issue of seniority between
Mr Pathak and Mr Kanse.
13. Admittedly, Mr Kanse and Mr Pathak were appointed in a
common process by orders dt. 14.07.1988. According to Mr. Kanse,
he joined duties on 15.07.1988 whereas, Mr Pathak had joined duties
on 18.07.1988. In support, he has produced following documents.
(i) His report of joining (P. 55).
(ii) Copy of Muster Roll (P. 61)
(iii) Copy of order of approval (P. 66)
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(iv) He also relied on service book of Mr Pathak showing
alteration of date 18.07.1988 to 15.07.1988 (P. 32).
(v) Grant of Time Bound Promotion from 18.07.1988 to
Mr Pathak (P. 34).
(vi) Grant of Selection Grade to Mr. Pathak on 18.07.2012
(P.35)
(vii) He has also produced his appointment order as Vice-
Principal dt. 26.08.2013 (P. 67).
(ix) Report of his joining dt. 29.08.2013 (P. 69).
(x) The seniority list of 2015-16 (Exh. 71).
(xi) Grant of selection grade to Mr Kanse from 15.07.2000 (P.
72).
(xii) Letters addressed to Mr Kanse showing him as Vice-
Principal for period from 2013-14 (P. 45-48, 51-52 and
53).
14. It appears that, Mr Kanse has joined the service on
15.07.1988 but his date of joining is wrongly shown as 17.07.1988.
In fact, 17.07.1988 was Sunday. Mr Pathak and the Management
have come up with a case that Mr Kanse had joined the service on
17.07.1988. According to their case, both Mr Pathak and Mr Kanse
joined on 15.07.1988.
15. Mr Pathak has relied on the report of Education Officer to
the effect that the salary record was produced before him showing
that Mr Pathak has joined on 15.07.1988. Besides, he relied on the
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order of approval showing his date of joining as 15.07.1988. He has
relied on his applications of July-1992, August-1998 and July-2006
mentioned in Writ Petition No. 14807 of 2017 whereby he had
claimed correction of his service record.
16. Considering the nature of dispute, it is relevant to refer to
the case law on the subject in Umesh Balkrishna Vispute Vs. State
of Maharashtra & Others reported in [2000(4) Mh.L.J. 564]. The
Division Bench of this Court has held as follows :
A) Finality of seniority list under Rule 12 by the
Education Officer is not final and conclusive.
B) The School Tribunal has jurisdiction to decide the
issue of supersession u/s 9(1)(b) of the Maharashtra
Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 and at the time of deciding this
issue the School Tribunal has authority to decide the
incidental issue of seniority notwithstanding the
finding recorded by the Education Officer under Rule
12. It is also laid down in this case that, question of
inter se seniority always involve disputed questions of
fact cannot be adjudicated by the High Court in writ
jurisdiction under Article 226 of the Constitution. In
this regard, reliance was placed on the judgment of
the Hon'ble Apex Court in the case of Rashid Ahmed
v. The Municipal Board, Kairana reported in AIR
1950 SC 163.
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C) In the case of St. Ulai High School v
Devendraprasad Jagannath reported in 2007(1)
Mh.L.J. 597, the issue before full Bench of this Court
was whether the jurisdiction of Civil Court u/s 9 of
CPC was barred in view of Section 9 of MEPS Act and
Rule 12 of the MEPS Rules to the extent of matters set
out therein. It was held that, (i) the jurisdiction of the
Civil Court is impliedly barred u/s 9 in respect of
matters upon which the appeal lies to the Tribunal.
(ii) The employee aggrieved by the action of the
Management cannot file a suit. (iii) Neither MEPS Act
nor the rules framed therein mandate grant of
approval by the Education Officer as condition
precedent to a valid order of appointment. The
requirement of approval which relates to the disbursal
of grant in aid is a matter between the management
and the State and want of approval will not invalidate
an order of appointment. Submission that, appeal is
not maintainable before the Tribunal at the behest of
an employee whose appointment has not been
approved do not reflect the correct position in law and
are overruled. It is also held that, the Tribunal would
have the jurisdiction, while deciding the lawfulness of
the action of the management to adjudicate upon the
correctness of the determination of the Education
Officer under Rule 12 as an incidental question.
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17.
In Smt.Pushpanjali Subodha Shenvi Vs Nagrik
Seva
Mandal & Ors. reported in 2016 (7) Mh.L.J. 856, the Single Judge of
this Court in similar question involved regarding appointment of
Headmistress observed that, raising of seniority issue at late stage is
not fatal. It was observed that, the petitioner Asst. Teacher on few
occasions has not disputed the seniority list showing the position of
the respondent no.4 as senior to the petitioner, since no effect to the
seniority list was given by the management by giving any promotion
to the respondent no.4 or otherwise till there was vacancy in the post
of Head Mistress. It was held that, the petitioner was not precluded
from raising such issue of seniority when the petitioner was sought to
be superseded by the management by promoting the respondent.
18. In Y. Ramamohan and others vs. Government of India &
Ors. reported in (2001) 10 SCC 537, R. Prabha Devi and others vs.
Govt. of India and others reported in AIR 1988 SC 902, P. S.
Sadasivaswamy vs. State of T. N. reported in AIR 1974 SC 2271 and
Karanataka Power Corporation Ltd. And Anr. vs. K. Thangappan
and Anr. reported in AIR 2006 SC 1581, delay and latches has been
held to be fatal for entertaining any challenge to the order of the
seniority.
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19. On careful consideration, we find that, both Mr Pathak and
Mr Kanse are claiming that they were senior to each other and they
were superseded. The issue of seniority is integral part of their claim
of supersession. As held in Umesh Balkrishna Vispute (supra) and
full Bench judgment of this court in St. Ulai High School's (supra),
the jurisdiction to challenge the supersession is vested with the
School Tribunal and fixing of seniority under Rule 12 is not final and
conclusive and can be reconsidered by the School Tribunal. We find
that the facts discussed herein above disclose disputed facts with
regard to issue of seniority and it is well settled that this court in
exercise of inherent jurisdiction under Article 226 of the Constitution
of India shall not entertain a claim on disputed questions of facts. In
the facts and circumstances of the case, it is necessary that the issue
of supersession and seniority should be considered by the School
Tribunal. The issue whether the challenge to the seniority at such a
late stage by Mr Pathak should be entertained or not should also be
left open to be decided by the School Tribunal. As held in Shioraj
Education Society Vs Presiding Officer, School Tribunal reported in
2000(2) Mh.L.J. 752, there is no period of limitation for challenging
the supersession before the School Tribunal. However, such an
appeal should be filed within reasonable time.
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21 WP1847.2017&Ors
20. No doubt, the validity of order of appointment of Mr Kanse
by Dy. Director dt. 29.03.2016 is also challenged on the ground of
lack of jurisdiction to review and lack of following proper procedure.
Nonetheless, the issue relates to supersession. Hence, we find that,
these writ petitions deserve to be dismissed with liberty to the parties
to approach the School Tribunal. Hence, we pass the following
order.
ORDER
(i) All the writ petitions are dismissed on the ground that, the issues raised before this Court should have been agitated by the parties before the School Tribunal. In view of this fact, liberty is granted to the parties to raise issue of supersession and seniority and other challenges before the School Tribunal.
(ii) It is further directed that if the parties herein file appeals challenging earlier orders within four weeks from the date of this order, the School Tribunal shall entertain the appeals without raising the issue of limitation and decide the appeals as expeditiously as possible, preferably within six months from the date of presentation of appeals ::: Uploaded on - 05/05/2018 ::: Downloaded on - 06/05/2018 01:35:34 ::: 22 WP1847.2017&Ors
(iii) The parties shall cooperate the Presiding Officer of the Tribunal in expeditious disposal of the appeals.
21. Rule is discharged. No order as to costs.
[ A. M. DHAVALE ] [ S. V. GANGAPURWALA ]
JUDGE JUDGE
Punde
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