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2019 DIGILAW 804 (BOM)

HANSRAO DIWAN PATIL v. CHIEF EXECUTIVE OFFICER

2019-03-20

M.S.KARNIK

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JUDGMENT : M. S. Karnik, J. Rule. Rule is made returnable forthwith by consent of the parties and heard finally. 2. The challenge in this petition under Article 226 of the Constitution of India is to an order dated 3/12/2016 passed by the Presiding Officer, School Tribunal, Mumbai in Appeal No. 31 of 2015. 3. The petitioner was appointed as an Assistant Teacher with the respondent No.1 educational institution. Before the School Tribunal a grievance was raised by the petitioner that he has been superseded in the matter of promotion to the post of Assistant Headmaster. According to the learned Counsel for the petitioner, the respondent Nos. 7 to 10 are junior to the petitioner. Learned Counsel for the petitioner submits that he was illegally superseded in the matter of promotion. According to him, his supersession is on the purported ground that there are some adverse remarks against him. 4. Learned Counsel would submit that the Tribunal has dismissed the appeal on a very technical ground. In the submission of learned Counsel Shri Deshpande, the Tribunal has dismissed the appeal only on the ground that the petitioner has not furnished particulars in the appeal memo about the date of appointments of respondent Nos. 7 to 10 and further details regarding respective position in the seniority list vis-a-vis the petitioner. Shri Deshpande invited my attention to page 82 of the paper-book and pointed out that on 25/11/2014 the petitioner filed a representation to the Education Inspector, in which he has set out all the details of respondent Nos. 7 to 10. According to him, the said representation is very much part and parcel of the annexures to the appeal memo. The representation contained all material particulars, and hence according to him, the Tribunal was not justified in dismissing the Appeal only because these details do not find place in the Appeal Memo. Shri Deshpande relying on the decision of the Full Bench of this Court in the case of St. Ula High School and Another Vs. Shri Devendraprasad Jagannath Singh and another, (2007) 2 AllMR 1 would contend that the Tribunal while deciding the legality of an order of supersession, is entitled to decide as an incidental question about the correctness of a determination made by the Education Officer on a question of seniority. Ula High School and Another Vs. Shri Devendraprasad Jagannath Singh and another, (2007) 2 AllMR 1 would contend that the Tribunal while deciding the legality of an order of supersession, is entitled to decide as an incidental question about the correctness of a determination made by the Education Officer on a question of seniority. According to Shri Deshpande, he had made representation to the Education Inspector against the adverse remarks which representation was not entertained by the Education Inspector on the ground that he does not have jurisdiction. In such eventuality, Shri Deshpande would submit that it was the School Tribunal, which should have gone into the question of correctness of decision of Education Inspector and as to whether the adverse remarks made against the petitioner deserved to be expunged. Learned Counsel Shri Deshpande therefore would submit that the petitioner should at least be given an opportunity to go back to the Tribunal, so as to enable him to make an application for amending the Appeal Memo and plead his case afresh in the interest of justice. 5. The impugned order of School Tribunal is dated 03/12/2016. There are certain developments, which are necessary to brought on record and as pointed by Shri Deshpande. After the impugned order dated 03/12/2016 was passed by the Tribunal, the petitioner filed a fresh comprehensive appeal before the School Tribunal in March 2017 furnishing all particulars in respect of the supersession. The said appeal came to be dismissed by the School Tribunal on the ground of delay. The petitioner's challenge to the order passed by the Tribunal was rejected by this Court. Thereafter, the petitioner filed SLP before the Hon'ble Supreme Court. Shri Deshpande invited my attention to the order passed by the Hon'ble Supreme Court, which is at page 25 of the paper-book, which reads thus ; "Upon hearing the counsel the Court made the following ORDER : Learned counsel for the petitioner submits that the petitioner intends to challenge the order in Appeal No.31/2015 which was decided on 3.12.2016 wherein the petitioner was aggrieved by the promotion of his juniors. Post after three months." 6. In these circumstances, the petitioner has approached this Court by filing the present writ petition challenging the order passed by the School Tribunal dated 3/12/2016. 7. On the other hand, Shri Kothari, learned Counsel appearing for respondent Nos. Post after three months." 6. In these circumstances, the petitioner has approached this Court by filing the present writ petition challenging the order passed by the School Tribunal dated 3/12/2016. 7. On the other hand, Shri Kothari, learned Counsel appearing for respondent Nos. 1 to 3 submits that the present petition now filed against the order dated 3/12/2016 of the Tribunal is not tenable. According to him, pursuant to the order dated 3/12/2016, the petitioner having filed substantive appeal before the Tribunal, has virtually accepted the order passed by the Tribunal on 3/12/2016 and which has now attained finality. The conduct of the petitioner dis-entitles him to challenge the School Tribunal's order at this belated stage. In the submission of the learned Counsel, the Hon'ble Apex Court has recorded the statement of the petitioner that he intends to challenge the order dated 03/12/2016. Learned Counsel would therefore submit that there is no reason for this Court now to entertain the present petition against the order dated 03/12/2016 at such a belated juncture and more so when a substantive Appeal was preferred by the petitioner pursuant to the observations made by the Tribunal. 8. Even on merits, learned Counsel would submit that the Tribunal was justified in observing that the petitioner did not furnish any particulars of respondent Nos. 7 to 10 to make out a case of super-session. Learned Counsel invited my attention to the appeal memo wherein no details as regards the qualifications and the date of appointment of respondent Nos. 7 to 10 are mentioned. Learned Counsel would further contend that, apart from not furnishing the particulars of respondent Nos. 7 to 10, even the petitioner was not eligible for promotion in view of the adverse remarks made against him. He relied upon Rule 3(3) of the Maharashtra Employees of Private Schools (Condition of Service) Rules, 1981 ('Rules' for short). Relying on this Rule he submits that if the service record of the teaching staff is not satisfactory, then such teacher is not eligible for promotion as Assistant Headmaster. He also relied upon the explanation to Rule 3 in support of his contention. 9. Learned Counsel submits that as against the adverse remarks, the petitioner had initially approached the Education Inspector. An objection was raised by the respondents that the Education Inspector does not have jurisdiction to decide the representation against adverse remarks. He also relied upon the explanation to Rule 3 in support of his contention. 9. Learned Counsel submits that as against the adverse remarks, the petitioner had initially approached the Education Inspector. An objection was raised by the respondents that the Education Inspector does not have jurisdiction to decide the representation against adverse remarks. In fact, under Rule 15(4), it is the School Committee which has power to decide the representation against the adverse remarks. The petitioner had in fact approached the School Committee vide representation dated 25/08/2014 against the adverse remarks. Learned Counsel relied upon the compilation of documents and also at page 40 of the petition, by this communication the representation of the petitioner against the adverse remarks has been rejected by the School Committee. The said communication dated 18/09/2014 rejecting the representation was never challenged by the petitioner and therefore the decision of the School Committee has attained finality. On all these grounds learned Counsel would submit that the order passed by the School Tribunal does not call for any interference. 10. I have heard Shri Deshpande, learned Counsel for the petitioner and Shri Kothari, learned Counsel for respondent nos. 1 to 3. I have also gone through the petition and the exhibits. 11. I find substance in the submission of learned Counsel for the respondents that the present Petition is not tenable as the petitioner filed a substantive Appeal pursuant to the order dated 3/12/2016 of the Tribunal which is impugned in this Petition. In the light of what is observed by the Tribunal in the order dated 3/12/2016, not only the petitioner opted to file a substantive Appeal before the School Tribunal upon curing the defects in the earlier Appeal, but even against the order of the School Tribunal rejecting the appeal, approached this Court. The challenge to the order of the Tribunal failed in the Writ Petition filed in this Court. The petitioner has now approached the Hon'ble Supreme Court where the Special Leave Petition is pending. In my opinion, therefore the challenge to the order dated 3/12/2016 of the Tribunal by way of present Petition is not tenable. Having taken recourse to filing a substantive Appeal pursuant to the order dated 3/12/2016, it is recourse to this remedy which will now have to be taken to the logical end by the petitioner. In my opinion, therefore the challenge to the order dated 3/12/2016 of the Tribunal by way of present Petition is not tenable. Having taken recourse to filing a substantive Appeal pursuant to the order dated 3/12/2016, it is recourse to this remedy which will now have to be taken to the logical end by the petitioner. In any case, I proceed to deal with the challenge of the petitioner on merits to the impugned order dated 3/12/2016 of the Tribunal. 12. Perusal of the appeal memo clearly reveals that there are no material particulars furnished by the petitioner about the qualifications, date of appointment, seniority details etc. of respondent Nos. 7 to 10 vis-a-vis the petitioner so as to make out a case challenging his supersession. In my opinion, based on the pleadings in the appeal memo, if the School Tribunal has come to the conclusion that the appeal memo lacks particulars to consider the claim of the petitioner, such an approach of the Tribunal cannot be said to be perverse or erroneous. The petitioner has annexed a representation made to the Education inspector setting out some details regarding the date of appointments of respondent nos. 7 to 10. However, for the respondents to effectively deal with the contentions of the petitioner, it was necessary for the petitioner to have set out all these details in the appeal memo. 13. The Tribunal while dismissing the appeal found the service record of the petitioner was not satisfactory. There is no dispute that there were adverse remarks made against the petitioner during the academic year 2013-2014. In fact, against the said adverse remarks the petitioner had approached the Education Inspector who rejected the representation saying that he has no jurisdiction. The petitioner therefore approached the School Committee. The decision of School Committee was not challenged by the petitioner. There is no dispute that there were adverse remarks made against the petitioner during the academic year 2013-2014. In fact, against the said adverse remarks the petitioner had approached the Education Inspector who rejected the representation saying that he has no jurisdiction. The petitioner therefore approached the School Committee. The decision of School Committee was not challenged by the petitioner. In this context it would be material to refer to Rule 3(3) and the explanation to Rule 3 of the said Rules, which reads thus; "3(3)The Management of a school including a night school shall fill up the post of the Head by appointing the senior most member of the teaching staff (in accordance with the guidelines laid down in Schedule "F" from amongst those employed in a school (if it is the only school run by the Management) or schools [if there are more than one school (excluding night school) conducted by it] who fulfills the conditions laid down in sub-rule (1) and who has a satisfactory record of service." (emphasis supplied) Explanation - For the purposes of this rule the record of service shall be deemed to be satisfactory if there is nothing adverse in the annual confidential reports of the teacher concerned during the previous five years. Adverse remarks not duly communicated in writing to the teacher concerned, shall be disregarded for this purpose. 14. The explanation to Rule 3 makes it clear that the record of service shall be deemed to be satisfactory if there is nothing adverse in the annual confidential reports of the teacher concerned during the previous five years. Adverse remarks not duly communicated in writing to the teacher concerned, shall be disregarded for this purpose. 15. There is no dispute that there were adverse remarks against the petitioner duly communicated of the year 2013-2014. Against the said adverse remarks the petitioner had approached the School Committee as per the Rule 15(4) which reads thus; "15(4). Representation, if any, from an employee against the adverse remarks communicated to him in accordance with sub-rule (3) above shall be decided by the School Committee. Similar representation, if any, from the Head shall be decided by the Managing Committee." 16. The representation made against the adverse remark was rejected by the School Committee on 18/09/2014. There is no challenge to this communication dated 18/09/2014 and thus, the same has attained finality. Similar representation, if any, from the Head shall be decided by the Managing Committee." 16. The representation made against the adverse remark was rejected by the School Committee on 18/09/2014. There is no challenge to this communication dated 18/09/2014 and thus, the same has attained finality. Undoubtedly, as per the law laid down by this Court in the case of Shri Devendraprasad Jagannath Singh (supra) the Tribunal while deciding the legality of the order of supersession is entitled to decide incidental questions. In the instant case the petitioner approached the School Committee against the adverse remarks as contemplated by Rule 15(4) of the said Rules. The representation against the adverse remarks was rejected on 18/09/2014. Admittedly this order of rejection is not challenged. There is not even a faint reference to the order of the School Committee in the appeal memo nor are there any grounds of challenge raised. When the petitioner never called upon the Tribunal to deal with the decision of the School Committee, in my opinion, it would not be open for the petitioner to now contend that the Tribunal should have decided the challenge to adverse remarks as an incidental question. After the Education Officer held that he had no jurisdiction to deal with a representation against Adverse Remarks, the petitioner approached the School Committee under Section 15(4) which is a remedy provided by the Rules to question the 'adverse remarks'. In view of the adverse remarks, the action of the Management in denying promotion to the petitioner for want of satisfactory record of service cannot be said to be unlawful. 17. Having gone through the order of the Tribunal, I do not find the view of the Tribunal as perverse or erroneous so as to warrant interference in the exercise of writ jurisdiction under Article 226 of the Constitution of India. The writ petition is therefore dismissed. Rule is discharged with no order as to costs.