JUDGMENT
C.K. Thakker, C.J.
1. Rule. Mr. R.D. Rane, learned Additional Government Pleader, on behalf of respondent No. 4, 5 and 6, and Mr. M.S. Lagu, learned Counsel, on behalf of respondent No. 7, appear and waive service of notice of rule. In the facts and circumstances, the matter is taken up for final hearing today.
2. This petition is filed by the petitioner for an appropriate writ, direction or order quashing and setting aside an order dated May 23, 2003 passed by the Education Officer (Secondary), Zilla Parishad, Thane, respondent No. 4 herein, and to allow the petitioner to continue to work in Dnyandeep Vidyalaya, respondent No. 3 herein, as Head Master and to draw salary in accordance with law.
3. The case of the petitioner before this Court is that he was appointed on June 16, 1987 as Assistant Teacher of respondent No. 3-school. Respondent No. 7 was appointed as Assistant Teacher in the same school on June 16, 1986. Thus, considering the initial appointment as Assistant Teacher, respondent No. 7 was senior to the petitioner. It is, however, the case of the petitioner that in 1991, he had completed B.Ed., and, hence, he was placed in Category ‘C’. So far as respondent No. 7 is concerned, he was at that time in Category ‘F-G’. As respondent No. 7 completed B.P.Ed. in 1992, he was placed in Category ‘C’ only in 1992. According to the petitioner, therefore, the petitioner ought to have been considered for promotion as Head Master before respondent No. 7.
4. It is not in dispute that the services of the petitioner were terminated, but the appeal filed by him was allowed, and he was reinstated in service. The effect of the said order, according to the learned counsel for the petitioner, was that he continued to be in service with effect from the date of his initial appointment in 1987.
5. By the impugned order passed by respondent No. 4, respondent No. 7 was considered senior to the petitioner. The following conclusions have been recorded by respondent No. 4;-
“1. The management had not prepared the seniority list as per the provisions of Rule 12(1) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act and Rules of 1981. There is no signature of teachers on the seniority list. Hence the promotion given to Shri Paste as Head Master is not according to the Rules.
2. Shri Sashe Atmaram Mahadeo’s first date of appointment is 16.6.1986 and that the first date of appointment of Shri Paste is 16.6.1987. At the time of appointment, both the teachers were untrained. By taking into consideration the entire service period, it is observed that Shri Sashe is senior to Shri Paste.
3. Shri Paste Atmaram Mahadeo had worked from 14.6.1993 till 3.9.1997 as full time Asstt. Teacher and Head Master at Gopalrao Patil Educational Sanstha’s Kalwa, New Pimproli High School, Pimproli, Taluka Ambernath, Dist. Thane. Thus, his service is breaked(sic) in Dnyandeep Vidayalaya, Gegaon Nandval, Tal. Shahapur. Hence to show him senior in the seniority list is not as per the Rules.”
6. A direction was, therefore, issued by respondent No. 4 that respondent No. 7 be appointed on the post of Head Master from 1.6.2002 and to send his proposal for approval as per the prescribed Rules.”
7. The learned counsel for the petitioner contended that the order passed and direction issued by respondent No. 4 is illegal and contrary to law. He submitted that the law laid down by this court in Saramma Varghese v. Secretary / President, S.I.C.E.S. Society and Ors., 1989 MhLJ 951, has not been followed by respondent No. 4. It was urged that once the order of termination was set aside, and the petitioner was ordered to be reinstated in service, the fact that the petitioner had worked somewhere was totally irrelevant and extraneous for fixing seniority. The said fact may be relevant for the purpose of granting other reliefs, such as payment of back wages. Admittedly, the petitioner cleared his B.Ed. before the equivalent qualification acquired by respondent No. 7. What was required to be considered for the purpose of appointment as Head Master was the said qualification, and the order passed by respondent No. 4, therefore, deserves to be quashed and set aside.
8. The learned counsel for respondent No. 7, on the other hand, submitted that the order passed by respondent No. 4 is legal, valid and in accordance with law. It was also submitted that if the petitioner is aggrieved by the said action, it is open to him to take appropriate proceedings by filing an appeal before the Tribunal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, 1977 (hereinafter referred to as “the Act”). As statutory remedy is available to an aggrieved party, this Court may not exercise extraordinary jurisdiction under Article 226 of the Constitution. It was also submitted that all relevant facts and circumstances have been considered and seniority has been fixed, and the petitioner has no right to make grievance against it.
9. Finally, it was submitted that in the facts and circumstances, even the final direction issued by respondent No. 4 directing the management to appoint respondent No. 7 to the post of Head Master under order dated May 23, 2003 cannot be objected. Reliance in that connection was placed on a decision of this Court in Mohanlal Dipchand Bhansali v. State of Maharashtra and Ors., (2003) 3 All MR 612.
10. The Additional Government Pleader, appearing for respondents No. 4 to 6, also supported the stand taken by respondent No. 7, and submitted that the order does not deserve interference.
11. So far as preliminary objection regarding maintainability of petition is concerned, we see no substance in the said argument. Section 9 of the Act is clear, and require an employee in private school to approach the Tribunal by filing an appeal if he is dismissed, removed or his service is terminated or he is reduced in rank by an order passed by the Management or he is superseded by the Management.
12. In the instant case, the order which is impugned in the present petition is not passed by the Management but by respondent No. 4. It is true that in pursuance of the said order, a consequential action can be taken by the Management and if the petitioner is aggrieved by that action, he can invoke the provisions of Section 9 of the Act and file an appeal. That, however, does not mean that the petitioner cannot make grievance against the order passed by respondent No. 4, impugned in the present petition. Once we hold that the order, which is impugned in the present petition, is passed by respondent No. 4, we have to hold that the petitioner cannot approach the Tribunal by invoking the provisions of Section 9 of the Act. The petition is, therefore, maintainable.
13. In Saramma Varghese, it was held by Division Bench of this Court that a person aggrieved by an order passed by Education Officer may approach this Court by invoking Article 227 of the Constitution, as such officer can be said to be ‘Tribunal’ within he meaning of the said Article and, hence, is subject to supervisory jurisdiction of this Court.
14. On merits, we are satisfied that the order could not have been passed by respondent No. 4 in the facts and circumstances of the case. It is true that he has held that respondent No. 7 was senior to the petitioner. If initial appointment is to be seen, it is factually correct and is not disputed by the learned counsel for the petitioner. According to him, however, whereas the petitioner cleared B.Ed. in 1991, respondent No. 7 acquired equivalent qualification in 1992. For the purpose of appointment as Head Master, that fact was relevant and required to be considered, contended the petitioner. If it is so, obviously, the order passed by respondent No. 4 cannot be held legal and valid. The same, therefore, deserves to be quashed and set aside.
15. Hence, the order dated May 23, 2003 is quashed and set aside and a direction is issued to respondent No. 4 to consider the matter afresh, and pass an appropriate order in accordance with law. Since the matter affects the appointment to the post of Head Master, let such decision be taken by respondent No. 4 as expeditiously as possible, preferably within eight weeks from today. Let the position as of today be continued, meanwhile.
16. Petition is accordingly disposed of. Rule is made absolute to the above extent. In the facts and circumstances, however, there shall be no order as to costs.
17. All contentions of all parties are kept open.
18. Parties be given copies of this order duly authenticated by the Sheristedar/Private Secretary.