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2022 DIGILAW 1517 (BOM)

Mo. Sayeed Ab. Rashid v. State of Maharashtra

2022-06-16

A.S.CHANDURKAR, URMILA JOSHI-PHALKE

body2022
JUDGMENT 1. Since common issues arise in these writ petitions, they are being decided by this common judgment. 2. Rule. Rule made returnable forthwith and heard the learned counsel for the parties. 3. In Writ Petition No. 860 of 2018, the petitioner is aggrieved by the order dtd. 20/1/2018 passed by the Education Officer (Secondary), Zilla Parishad, Washim thereby refusing to approve the promotion of the petitioner on the post of Head Master on the ground that the petitioner in Writ Petition No. 1575 of 2018 is senior to him. 4. The facts relevant for considering the challenge as raised are that initially on 9/3/2016, the Special Body of Municipal Council, Washim had passed a resolution resolving to grant promotion to the petitioner in Writ Petition No. 860 of 2018 on the post of Head Master since he was found to be more suitable than the petitioner in Writ Petition No. 1575 of 2018. After this resolution was passed, an order of promotion dtd. 15/3/2016 in favour of the petitioner in Writ Petition No. 860 of 2018 was issued by the Chief Officer, Municipal Council, Washim. The said petitioner took charge of the post of Head Master and on 16/3/2016 a proposal was forwarded to the Education Officer (Secondary) for granting approval to the said petitioner's promotion. On 16/6/2016, the Education Officer refused to grant that proposal. In that backdrop the Municipal Council on 3/9/2016 passed another resolution granting administrative powers to the petitioner in Writ Petition No. 1575 of 2018. Being aggrieved, the said petitioner filed Writ Petition No.4046 of 2016 and by the order dtd. 4/8/2017, this Court set aside the order dtd. 16/6/2016 since it did not contain any reason. The Education Officer was directed to reconsider the matter after hearing all the concerned parties. It is thereafter that the Education Officer on 20/1/2018 heard the contesting parties and found that the petitioner in Writ Petition No. 1575 of 2018 was placed at Serial No.2 in the Seniority List whilst the petitioner in Writ Petition No. 860 of 2018 was placed at Serial No. 12 in the said Seniority List. By observing that the Assistant Teacher at serial No. 2 was being deprived of promotion, the Education Officer on 20/1/2018 held that he being senior to the Assistant Teacher at Serial No. 12, proposal of the senior most teacher should be sent. Being aggrieved, this order dtd. By observing that the Assistant Teacher at serial No. 2 was being deprived of promotion, the Education Officer on 20/1/2018 held that he being senior to the Assistant Teacher at Serial No. 12, proposal of the senior most teacher should be sent. Being aggrieved, this order dtd. 20/1/2018 has been challenged in Writ Petition No. 860 of 2018. 5. The Assistant Teacher who is at serial no.2 in the Seniority List has preferred Writ Petition No. 1575 of 2018 seeking implementation of subsequent Resolution dtd. 3/9/2016 passed by the Municipal Council by which the Municipal Council had granted administrative powers to the said petitioner in view of pendency of Writ Petition No. 4046 of 2016. It was also resolved that after obtaining legal opinion, a proposal for appointing a regular Head Master would be forwarded. It is the case of the petitioner that despite such Resolution having been passed by the Municipal Council, no further steps were being taken and the said Resolution was not being taken to its logical end. The said petitioner, therefore, seeks a direction to be issued to the Municipal Council to implement Resolution No 37 dtd. 3/9/2016. 6. Shri R. L. Khapre, learned Senior Advocate for the Assistant Teacher who is at Serial No.12 in the Seniority List, submits that the Resolution passed by the Municipal Council on 9/3/2016 resolving to promote the said petitioner on the post of Head Master has not been subjected to challenge by any aggrieved party. Though the Assistant Teacher at Serial No.2 had initiated proceedings under Sec. 308 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (for short, the Act of 1965) those proceedings were dismissed. Similarly, the Civil Suit filed by the Assistant Teacher at Serial No.2 in the Seniority List was also withdrawn. In absence of any challenge being raised to the Resolution dtd. 9/3/2016 passed by the Municipal Council, the Education Officer had no jurisdiction to go into the aspect of validity or correctness of such Resolution. The jurisdiction in this regard was vested with the authorities under the Act of 1965. The Education Officer was merely concerned with the eligibility of the employee whose appointment/promotion was sought to be approved. 9/3/2016 passed by the Municipal Council, the Education Officer had no jurisdiction to go into the aspect of validity or correctness of such Resolution. The jurisdiction in this regard was vested with the authorities under the Act of 1965. The Education Officer was merely concerned with the eligibility of the employee whose appointment/promotion was sought to be approved. In absence of any jurisdiction to go into the question of suitability of the employee who had been promoted, the impugned order refusing to grant approval was without jurisdiction and thus liable to be set aside. He further submitted that the subsequent Resolution dtd. 3/9/2016 merely confers administrative powers on the Assistant Teacher at Serial No.2 and it has been passed as the order dtd. 16/6/2016 was under challenge. If the Resolution dtd. 9/3/2016 operates, nothing much would turn on subsequent Resolution dtd. 3/9/2016 and hence, the petitioner's promotion as Head Master ought to be approved by the Education Officer. 7. Shri N. S. Khubalkar, learned counsel for the Assistant Teacher who is at Serial No.2 in the Seniority List, on the other hand submits that the Municipal Council having passed the Resolution dtd. 3/9/2016, it was duty bound to have implemented the same by forwarding a proposal for appointing the senior most Assistant Teacher. The said Resolution dtd. 3/9/2016 was not being implemented for no justifiable reasons. As regards the jurisdiction of the Education Officer to determine the suitability of Assistant Teacher entitled for promotion, it was submitted that there was no dispute that the petitioner in Writ Petition No. 1575 of 2018 was senior to the petitioner in the other writ petition. Despite being senior, the said petitioner was deprived of benefit of promotion. The Education Officer, therefore, rightly intervened in the matter and directed the Municipal Council to send the proposal of the senior most teacher. He, therefore, submitted that the writ petition preferred by the Assistant Teacher at Senior No. 12 is liable to be dismissed and the prayers made in Writ Petition No. 1575 of 2018 are liable to be granted. 8. Shri O. A. Ghare, learned counsel for the Municipal Council submitted that the Resolution dtd. 9/3/2016 had not been challenged by any aggrieved party. The Resolution dtd. 8. Shri O. A. Ghare, learned counsel for the Municipal Council submitted that the Resolution dtd. 9/3/2016 had not been challenged by any aggrieved party. The Resolution dtd. 3/9/2016 was clear and it was only with a view to make a working arrangement in view of pendency of Writ Petition No. 4046 of 2016 that administrative powers were given to the senior Assistant Teacher. He submitted that the proposal as forwarded by the Municipal Council on 15/6/2016 was liable to be granted since the Resolution dtd. 9/3/2016 was still holding the field. Smt. K. R. Deshpande, learned Assistant Government Pleader supported the impugned order dtd. 20/1/2018. She submitted that considering the admitted position that the Assistant Teacher who was at Serial No.2 was not promoted, the Education Officer had refused to approve the promotion granted to the Assistant Teacher who was at Serial No.12. By refusing to grant such an approval, the Education Officer has merely cured the illegality and he was empowered to do so. 9. Civil Application (CAW) No. 2066 of 2021 has been filed by four applicants to contend that they are senior to the Assistant Teacher at Serial No.12. Shri V. B. Gawali, learned counsel submitted that though all the affected parties were directed to be heard while disposing of Writ Petition No. 4046 of 2016, the Education Officer refused to grant an opportunity of hearing to the applicants. They being senior than the Assistant Teacher at Serial No.12, they were also aggrieved by the Resolution dtd. 9/3/2016. It was thus submitted that appropriate relief ought to be granted to the applicants. 10. In the light of the aforesaid rival submissions, the question to be considered is whether the Education Officer (Secondary) could have examined the rival claims of the Assistant Teachers at Serial Nos. 2 and 12 and thereafter could have adjudicated upon the proposal for grant of approval by applying the principle of seniority ? 11. Before answering the said question certain undisputed facts are required to be referred to. By Resolution dtd. 9/3/2016 the Assistant Teacher at Serial No.12 was promoted on the post of Head Master after considering the claim of the Assistant Teacher at Serial No.2. This resolution was initially challenged by the Assistant Teacher at Serial No.2 by filing a civil suit in the Civil Court at Washim which was subsequently withdrawn. By Resolution dtd. 9/3/2016 the Assistant Teacher at Serial No.12 was promoted on the post of Head Master after considering the claim of the Assistant Teacher at Serial No.2. This resolution was initially challenged by the Assistant Teacher at Serial No.2 by filing a civil suit in the Civil Court at Washim which was subsequently withdrawn. Thereafter the proceedings initiated under Sec. 308 of the Act of 1965 by the said Assistant Teacher were also dismissed on 27/5/2016. Admittedly, said Resolution dtd. 9/3/2016 has not been subjected to any further challenge thereafter. The proposal to grant approval to the appointment of the Head Master who was promoted pursuant to the Resolution dtd. 9/3/2016 came to be rejected on 16/6/2016. That unreasoned order was set aside by this Court in Writ Petition No. 4046 of 2016 and as a consequence of the matter being remanded to the Education Officer, the impugned order dtd. 20/1/2018 has been passed. It is also seen from the record that on account of pendency of the aforesaid litigation, the Resolution dtd. 3/9/2016 was passed by the Municipal Council with a view to grant administrative powers to the Assistant Teacher at Serial No.2. The said was a stopgap arrangement as stated therein. 12. It is to be noted that the Assistant Teachers in question are serving at the school run by the Municipal Council. The Municipal Council is a "local authority" as defined by Sec. 2(11) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, the Act of 1977). Sec. 2(20) of the Act of 1977 which defines a "private school" excludes a school established or administered by a local authority. In view thereof the provisions of the Act of 1977 are not applicable to such schools and reference in that regard can be made to the judgment of the Division Bench in Kondiba D. Mirashe .vs. State of Mahashtra, 2003(2) Mh.L.J. 432 . Any resolution passed by the Municipal Council can be subjected to challenge under the provisions of Sec. 308 or Sec. 318 of the Act of 1965. In the present case, the proceedings filed under Sec. 308 of the Act of 1965 by the Assistant Teacher at Serial No.2 have been dismissed and no proceedings under Sec. 318 of the said Act have been thereafter filed. Perusal of the impugned order dtd. In the present case, the proceedings filed under Sec. 308 of the Act of 1965 by the Assistant Teacher at Serial No.2 have been dismissed and no proceedings under Sec. 318 of the said Act have been thereafter filed. Perusal of the impugned order dtd. 20/1/2018 indicates that the Education Officer has taken into consideration the factors relevant while determining a dispute pertaining to inter se seniority. Such disputes can be resolved under Rule 12 of the Maharashtra Employees of Private Schools Rules, 1981 framed under the Act of 1977. As a result of such adjudication by the Education Officer (Secondary), the Resolution passed by the Municipal Council on 9/3/2016 has been impliedly set aside. 13. We find that a statutory modality has been prescribed under the Act of 1965 for raising challenge to a Resolution passed by the Municipal Council. It would not be open for the Education Officer (Secondary) to go into the merits of such Resolution passed by the Municipal Council, adjudicate the rival claims and arrive at a conclusion which is contrary to the Resolution as passed. Permitting such course would result in bypassing the statutory remedy as provided and conferring jurisdiction on the Education Officer (Secondary) which has not been statutorily conferred. In such situation, the Education Officer (Secondary) would be more concerned with the eligibility of the Assistant Teacher/Head Master seeking approval. It would not be open for the Education Officer (Secondary) in such matter to examine the suitability of the Head Master who has been promoted by the Municipal Council by passing a Resolution. As long as such Resolution operates, it would be binding on the parties as well as the Education Officer and it would not be open for the Education Officer (Secondary) to refuse to abide by such Resolution on the ground that the Assistant Teacher promoted has been wrongly promoted. If the Head Master whose approval is sought is otherwise duly qualified and eligible to be promoted notwithstanding the fact that such promotion has been made after considering the claim of an Assistant Teacher who is senior to him, that aspect cannot be examined by the Education Officer (Secondary) at least when the school in question is a municipal school run by the Municipal Council. The Secondary Schools Code does not confer such jurisdiction on the Education Officer (Secondary) to enable him to examine the suitability of the Head Master whose proposal for promotion is to be approved. Hence, for these reasons we find that by passing the impugned order on 20/1/2018, the Education Officer (Secondary) has exceeded jurisdiction while examining the suitability of Assistant Teachers at Serial Nos.2 and 12 for being promoted. On this count the impugned order dtd. 20/1/2018 is liable to be set aside. 14. Coming to the grievance raised by the Assistant Teacher at Serial No.2 based on the Resolution dtd. 3/9/2016, we find that this Resolution does not create any right in favour of the said Assistant Teacher. While passing that Resolution, the General Body noted that Writ Petition No. 4046 of 2016 was pending and till it was decided it was necessary to confer administrative powers on the senior most Assistant Teacher. On that basis such administrative powers were granted to the Assistant Teacher at Serial No.2. It is also stated therein that after obtaining legal advise, a decision of appointing a regular Head Master would be taken. It is thus clear from reading of the said Resolution that it has been passed as a stopgap measure in view of pending litigation. 15. Admittedly there is no further Resolution passed thereafter either considering the claim of the Assistant Teacher at Serial No.2 or appointing some other Assistant Teacher as Head Master. The position continues to be governed by the initial Resolution dtd. 9/3/2016. In these facts therefore the prayer made by Assistant Teacher at Serial No.2 that a direction be issued to the Municipal Council to implement the Resolution dtd. 3/9/2016 cannot be granted. As long as the Resolution dtd. 9/3/2016 resolving to promote the Assistant Teacher at Serial No.12 operates, no relief can be granted to the Assistant Teacher at Serial No.2 unless that Resolution is set aside. In that view of the matter, the prayers as made in Writ Petition No. 1575 of 2016 cannot be granted. 16. Insofar as the intervenors who claim to be Assistant Teachers at Serial Nos.3 to 11 are concerned, they too have not challenged the Resolution dtd. 9/3/2016. In that view of the matter, the prayers as made in Writ Petition No. 1575 of 2016 cannot be granted. 16. Insofar as the intervenors who claim to be Assistant Teachers at Serial Nos.3 to 11 are concerned, they too have not challenged the Resolution dtd. 9/3/2016. If anyone of them is aggrieved by the said Resolution pursuant to which the Assistant Teacher at Serial No.12 has been promoted, it would be open for them to take legal redress in that regard. 17. Hence, for the aforesaid reasons, the question as framed is answered in the negative. Writ Petition No. 860 of 2018 is allowed by setting aside the order dtd. 20/1/2018. The Education Officer (Secondary), Zilla Parishad, Washim is directed to re-consider the proposal dtd. 15/3/2016 forwarded by Municipal Council, Washim seeking approval to the appointment of the petitioner in this writ petition. The proposal shall be considered in accordance with law in the light of the observations made in the judgment within a period of four weeks from receipt of copy of this judgment. 18. Consequently, no relief can be granted to the petitioner in Writ Petition No. 1575 of 2018. This writ petition is accordingly dismissed. 19. It is clarified that any party aggrieved by the Resolution dtd. 9/3/2016 is free to challenge the same in accordance with law by availing the remedy as available. 20. Rule accordingly. No order as to costs.