C. L. PANGARKAR, J. ( 1 ) BY this writ petition the petitioner a teacher challenges the order passed by the Education Officer holding respondents 4 and 5 to be senior to the petitioner. ( 2 ) THE facts are as follows: petitioner was appointed as a Assistant Teacher in the school run by respondent no. 2 for the academic session 1995-96 vide order dated 14. 1. 1996. The Education Officer had sanctioned one additional section each for Standard 5 to 7. As per the staff approval sanctioned by the Education Officer, there were in all 6 classes of Standard 5 to 7 in the school run by respondent No. 2. Petitioner submits that as per Government policy, teachers at ratio 1 : 3 are admissible for one class of Standard 5 to 7. Taking into account the ratio of the admissible teachers in these classes Education Officer had sanctioned 8 lower division teachers for Standard 5 to 7. By Order dated 9. 10. 1996 the education Officer granted approval for the academic sessions 1996-97. In fact two posts of trained graduate teachers in 25% quota are admissible for standard 5 to 7 as can be conveniently gathered from the said approval. The total number of graduate under graduate teachers admissible to the classes of standard 5 to 7 has to be in ratio of 25:75 meaning thereby that 25% teachers are to be trained graduate teachers and 75% teachers are to be under graduates. Respondent no. 2 School therefore issued an advertisement on 28. 12. 1998 inviting applications for the 4 posts of Assistant Teachers. As per the advertisement two posts from open category were to be filled in from 25% quota reserved for the trained graduates and as such applications were invited from persons possessing educational qualification of B. A. B. Ed. Pursuant to the said advertisement the petitioner had applied for the post of teacher and he was appointed on the 25% quota reserved for the open category. Even though the appointment of petitioner was in 25% quota (in trained graduate pay scales) still the petitioner was paid salary in the grade of Rx. 1200-2040 instead of Rs. 1400-2600. The said discrepancy was brought to the notice of the Management and considering the entitlement the management passed a resolution on 3. 5. 1996 to grant pay scale of 1400-2600 to the petitioner. 1200-2040 instead of Rs. 1400-2600. The said discrepancy was brought to the notice of the Management and considering the entitlement the management passed a resolution on 3. 5. 1996 to grant pay scale of 1400-2600 to the petitioner. The Head Master of the school accordingly recommended to the education Officer to grant petitioner the scale of 1400-2600. Thereafter petitioner was appointed as assistant Teacher in upper division on standard 8th to 10th vide Order dated dated 7. 4. 1998 and even approval was granted. It is the contention of the petitioner that he possessed the requisite educational qualification and training qualification on the initial date of his appointment. Petitioner submits that he held such educational qualification the day on which he was appointed. He fell in category 'c' of Schedule F. Petitioner submits that respondent No. 3 was appointed as Assistant Teacher on 23. 12. 1996 so also respondent No. 4. Both of them were trained graduates and they also fell from that date in category C. It is contended that in the seniority list maintained by the respondent No. 2 the petitioner was always shown as senior to respondents 3 and 4. Petitioner was promoted as Head Master from 1. 12. 2008, thereafter respondent No. 3 approached the Education Officer agitating his grievance. The Education Officer vide his letter dated 12. 12. 2008 invited the petitioner and others for hearing on the question of seniority and held the respondent No. 3 to be senior to the petitioner and petitioner is aggrieved thereby. The petitioner submits that the only remedy that was in fact available to the respondents 3 and 4 was to file an appeal under section 9 to the School Tribunal and they could not have approached the Education Officer. Education Officer could not have refixed the seniority. ( 3 ) THE respondent No. 3 alone has filed a return and has contended that the petitioner was never senior to respondent. Education officer has rightly held the respondent No. 3 to be senior to the petitioner and it is the education Officer alone who has a right to determine the question of seniority. ( 4 ) I have heard the learned Counsel for the petitioner and the respondents. The undisputed facts would reduce the scope of the controversy. Education officer has rightly held the respondent No. 3 to be senior to the petitioner and it is the education Officer alone who has a right to determine the question of seniority. ( 4 ) I have heard the learned Counsel for the petitioner and the respondents. The undisputed facts would reduce the scope of the controversy. They are as follows: in the year 1994-95 the Education officer had sanctioned one section each for standard 5 to 7. As such 4 Assistant Teachers could be appointed. One post out of it which could be reserved for 25% for graduate trained teachers was not however filled. In 1995-96 six sections were again sanctioned for 5 to 7 Standard. Education Officer sanctioned strength of 8 teachers. Out of 8 posts two posts were for trained graduate teachers. Rule 66 of the School Code contemplates reservation of 75 % quota for non graduate teachers and 25% quota for graduate trained teachers. The petitioner had applied in pursuant to the advertisement in category of trained graduate teachers against 25% quota. He was temporarily appointed by Order dated 14. 1. 1996 in 25% quota. However, he was initially granted pay in lower scale upon undertaking furnished by the petitioner himself. Subsequently he was granted higher pay scale. The petitioner was appointed from 1. 1. 1998 as teacher in higher grade in scale of 1400-2600. Both respondents 4 and 5 were appointed as Assistant teachers on 23. 12. 1996 and they too were appointed as trained graduates. Seniority list is being maintained by the School. In the seniority list of 2002-03 and 2003-04 petitioner is shown above respondent Nos. 3 and 4. Petitioner was appointed on 1. 12. 2008 as head Master. Respondent No. 3 on 2. 12. 2008 made an application to the Education Officer to handover the charge of the Head master to him being senior in service and complained that inspite of his objection the management has appointed the petitioner as head Master. Education Officer upon this complaint called the petitioner respondent and management for hearing on question of seniority and he held respondent No. 3 senior to the petitioner. With these admitted facts we have to determine the controversy now. ( 5 ) MATERIAL thing that needs consideration is whether the Education Officer could have refixed the seniority once the petitioner was already promoted and hold that respondent No. 3 was senior. With these admitted facts we have to determine the controversy now. ( 5 ) MATERIAL thing that needs consideration is whether the Education Officer could have refixed the seniority once the petitioner was already promoted and hold that respondent No. 3 was senior. Shri B. S. Deshpande learned Counsel for respondent No. 3 submits that Education Officer alone has a right to decide the dispute with regard to seniority. There cannot be a doubt that when school prepares seniority list and invites objection and there is a dispute with regard to seniority such objections and disputes need to be referred to the Education Officer under Rule 12. It seems from the Seniority list filed on record for the year 2002-03, 2003-04 that the petitioner was shown senior in both the lists and the respondent until 2008 did not raise any objection to the placement at all. Had the objection been raised in 2003-04 the education Officer could have considered it and could have refixed the seniority. The respondent did not choose to challenge them. The challenge was made for the first time on 2. 12. 2008 only after the petitioner was promoted on 1. 12. 2008. If the respondent feels that he has been superseded by such appointment of petitioner, only remedy that is available to respondent is to prefer an appeal under section 9 of the Maharashtra employees of Private Schools (Conditions of service) Regulation Act, 1977. Section 9 permits a teacher to challenge the supersession. This Court in a decision in (Umesh Balkrishna vispute Vs. State of Maharashtra and others), 2001 (2) Bom. C. R. 145 : 2000 (4) Mh. L. J. 564 held as follows: 19. "we may at once state that the question involved in this petition was not res integra in view of two unreported judgments of Nagpur bench in the matter of (Sou Saroj Yashweant deopujari Vs. Education Officer) in Writ Petition No. 546 of 1989 decided on 31st March, 1989 (Deshpande and Deswar, JJ.) and (Ramchandra Narayan Jamkar Vs. Sou Saroj yeshwant Deopujari), in Writ petition No. 1309 of 1991 decided on 19th June, 1991 (V. A. Mohta and M. B. Ghodeswar, JJ.) which were not brought the notice of the learned single Judge of this Court when the judgment in (Burondi K. Lodghar Vs. Vilasrao M. Desai), 1999 (4) Bom. C. R. 294 : 1999 (2)Mh. L. J. 779 (supra) was passed. Vilasrao M. Desai), 1999 (4) Bom. C. R. 294 : 1999 (2)Mh. L. J. 779 (supra) was passed. The Division Bench of this Court in Sou Saroj yashwant Deopujari Vs. Education Officer (supra) has said:-". . . It is clear that this order was passed before the present writ petition was filed and since the main contention in this petition is with regard to the petitioner's eligibility to the appointment on the basis of her seniority, the matter would clearly fall within section 9 (1) (b) of the Maharashtra Employees of private Schools (Conditions of Service) Regulation Act, 1977 which authorises the Tribunal to consider the grievance of an employee who is superseded by the Management while making an appointment to any post by promotion. . . . . It is not necessary to go into that question at this stage because here the appointment of the respondent No. 4 has already been made as Assistant Head Master and if the petitioner has a grievance that she has been superseded because she was senior to the respondent No. 4, the question of seniority will have to be decided by the Tribunal for reaching a finding as to whether the petitioner has been superseded or not by the appointment of the respondent No. 4. We made it clear that all question is which would be required to be determined for considering whether the petitioner has been superseded by the appointment of the respondent No. 4 would fall for consideration before the tribunal for determining. Whether the respondent No. 4 has superseded the petitioner or not and the Tribunal would have the jurisdiction to decide these and incidental questions which might arise. " (emphasis supplied)The perusal of the aforesaid findings of the Division Bench clearly lay down that Clause (b)of section 9 (10) of the Act empowers the Tribunal to entertain the appeal against the order of supersession while making appointment by promotion and while adjudicating the validity of the order of supersession passed by the management, the validity of the seniority list of objection to it can also be considered as an incidental question. 20. The second judgment in the matter of ramchandra Narayan Jamkar Vs. Sau. Saroj yeshwant Deopujari (supra) also clearl;y lays down that the determination of the dispute under Rule 12 of the Rules is not made final. Section 1 of the Act has overriding effect. 20. The second judgment in the matter of ramchandra Narayan Jamkar Vs. Sau. Saroj yeshwant Deopujari (supra) also clearl;y lays down that the determination of the dispute under Rule 12 of the Rules is not made final. Section 1 of the Act has overriding effect. The division Bench while dealing with this aspect of the matter has observed as under:-"it is next contended that the order of the Education Officer in the matter of finalisation of seniority list in terms of Rule 12 of the maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (the rules) had become final and conclusive and was binding on the School Tribunal. We do not see any substance in this point either. Section 9 of the Act is an overriding provision as is clear from the non obstante clause with which it beings. It confers jurisdiction to adjudicate upon validity of order of supressions by the management while making appointment to any post of promotion. For the final decision of that point, adjudication on the validity of seniority list is sometimes inevitable as it is an incidental question. The proviso to section 9 no doubt makes certain exceptions but those relate to the question which are either already decided by a "court" of competent jurisdiction or are pending before it. By no stretch of imagination the Education Officer can be said to be a Court a term not denied under the Act it is also pertinent to notice that the determination of the dispute under Rule 12 of the Rules is not made final. " (emphasis supplied)We, after having heard the parties at length and after having considered the aforesaid judgments, are of the considered view that fmalisation of the seniority list in terms of Rule 12 of the Rules is not final and conclusive and not binding on the Tribunal and section 9 (1)of the Act has overriding effect as it opens with non obstante clause and the dispute relating to seniority list can also be considered by the Tribunal as an incidental question while deciding the controversy in regards to the supersession. The dispute relating to supersession in the matter of promotion squarely lies within the jurisdiction of the tribunal. The view taken by the learned Single Judge of this Court in Burondi K. Lodghar vs. Vilasrao M. Desai, 1999 (4) Bom. C. R. 294 : 1999 (2) Mh. The dispute relating to supersession in the matter of promotion squarely lies within the jurisdiction of the tribunal. The view taken by the learned Single Judge of this Court in Burondi K. Lodghar vs. Vilasrao M. Desai, 1999 (4) Bom. C. R. 294 : 1999 (2) Mh. L. J 779 (supra) cannot be said to be a good law. We, therefore, have no difficulty in upholding the jurisdiction of the Tribunal to go into the question of seniority of the teachers. The Tribunal can also go into the question of supressions by the management while making promotion. " ( 6 ) THUS it is very clear that the question of seniority, once promotion is granted and appointment is made is to be decided by the tribunal. Education Officer will have no jurisdiction to fix the seniority and thus demote a person already promoted. Here in the instant case Education Officer could not have entertained a complaint about the seniority and decide to refix the seniority once petitioner was already appointed on a promotionary post. Scheme of the Act itself is such that a person who feels that he has been superseded has to approach the School tribunal under section 9. Rule 12 in such cases does not come into play. Education officer as already observed, can enter into arena where only seniority list is prepared and if there are objections and disputes and no promotion is made on the basis of it. Shri b. S. Deshpande learned Counsel for the respondent had relied on a decision reported in Burondi Kaqrajgaon Lodghar Panchkroshi shikshan Sanstha and Others Vs. Vilasrao maruti Desai and others, 1999 (4) Bom. C. R. 294 : 1999 (2) Mh. L. J. 779. This decision is no more good law since the said decision has been overruled by decision in Umesh's case cited supra. I do not propose to enter into the question as to who is senior amongst petitioner and the respondents. That question can be determined by the School Tribunal if at all the the respondents approach the School Tribunal. In this petition the petitioner has only challenged the Authority of the Education Officer to decide the seniority after he was promoted and I find that that decision of the Education Officer is patently illegal. In the circumstances the petition is allowed. The order passed by the Education Officer on 29. 12. In this petition the petitioner has only challenged the Authority of the Education Officer to decide the seniority after he was promoted and I find that that decision of the Education Officer is patently illegal. In the circumstances the petition is allowed. The order passed by the Education Officer on 29. 12. 2008 is quashed and set aside. No order as to costs. Petition allowed.