JUDGMENT
A.H. Joshi, J.
Page 0219
1. When this petition was called out, Court had indicated to the learned Advocate for the petitioners that as the appeal is still pending, it would be better if the petition is not pressed and petitioners defend the appeal. The hearing was adjourned at the request of learned Advocate Mr. P.B. Patil to ascertain if this course could be paved. In the afternoon session, learned Advocate Mr. P.B. Patil prayed that the petition be heard and decided.
2. Rule. Rule is made returnable forthwith and is heard.
3. Learned Advocate Mr. P.B. Patil took this Court through Exh.16, order below it, Sections 9 to 11 of the Maharashtra Employees of Private Schools [Conditions of Service] Regulation Act, 1977, and the Rules made thereunder, and through reported judgment of Apex Court in case of Ramakant Shripad Sinai Advalpalkar v. Union of India and Ors. .
4. This Court has perused the record and gave consideration to various aspects of the case. F A C T S
5. Petitioners run a recognized school availing and run totally on grant-in-aid.
6. Shri L.K. Naik, who was working as Assistant Headmaster, became due for retirement on 30th June, 2005 due to attaining age of superannuation and post of Asstt. Headmaster was to become vacant on 1st July, 2005.
7. The respondent No. 1 is the qualified senior Assistant Teacher appointed in the employment of the petitioners since 16th August, 1979. Respondent No. 1’s status is an admitted fact. Admittedly, respondent No. 3 is junior to the respondent No. 1.
8. It is seen that willingness of senior teacher/teachers to work as Asstt. Headmaster was not sought by following the procedure prescribed in Explanation to Sub-rule (3) of Rule 3 which applies by virtue of Sub-rule (2) of Rule 5 of the MEPS Rules. It is not the case of Management that Senior Teachers have relinquished their claim/refused to accept the post of Assistant Headmaster.
9. By a Resolution by Circulation, the petitioners-Management resolved to direct/appoint the respondent No. 3 ‘to act’ or look after the duties of Assistant Headmaster with effect from 1st July, 2005.
10. It is not the case of petitioners that though the posts of Headmaster and Assistant Headmaster are liable to be filled in based on the strict observance of rule of seniority-cum-fitness, due to lack of fitness on the part of senior Page 0220 teachers, a junior person like the respondent No. 3 is being preferred “to be in-charge” or for “acting” on the post of Assistant Headmaster.
11. According to the respondent No. 1, this arrangement amounts to his supersession. He has, therefore, preferred appeal before the School Tribunal on 13th July, 2005. The appeal has been admitted for final hearing.
12. Petitioners herein have on appearance filed application on 16th August, 2005 [Exh.16] objecting maintainability and seeking dismissal of appeal on preliminary point. Gist of objection to maintainability reads as follows:
1] That, a bare perusal of impugned notice dated 1/7/2005 at page 42 would clearly reveal that the respondent No. 3, B.S. Jambhule is given charge of the post of Assistant Head Master and instructed to work as Incharge Assistant Head Master. Thus, there is no supersession therefore in view of provisions of Section 9(1) (b) of M.E.P.S. Act the instant appeal is not maintainable and needs to be dismissed.
2] The answering respondents are filing herewith copy of resolution by circulation of managing committee of Nagpur Shikshan Mandal dated 27/6/2005 as well as the copy of order dated 29/6/2005 issued in favour of Respondent No. 3 instructing him to act as Incharge Assistant Head Master until further orders.
5] In view of of aforesaid position, in respectful submission of this respondents, the appeal is liable to be dismissed under Section 11 (1) of the M.E.P.S. Act, which may kindly be dismissed.
[quoted from pages 48 and 49 of the paper-book of Writ Petition].
13. The School Tribunal has heard and decided application [Exh.16] and rejected it. Petitioners are taking exception to this order.
14. It is seen from order impugned that for reasons stated in paras 7 and 8 [at pages 62 and 63], the Tribunal did not find favour with Exh.16 and rejected the same.
GROUNDS OF CHALLENGE
15. The Order of School Tribunal is challenged in this Writ Petition. The grounds of challenge, as urged in Writ Petition and as orally addressed before this Court, are:
[a] The arrangement challenged before the Tribunal is ad hoc arrangement.
[b] Respondent No. 3 has not been promoted.
[c] Appointment to “act” or to “perform duties” is not a promotion as held by Apex Court in case of Ramakant Shripad Sinai Advalpalkar v. Union of India .
[d] As Respondent No. 3 is not promoted, there is no supersession.
[e] Statutory remedy of appeal under Section 9 is available only if an employee is “superseded”. Therefore, appeal under Section 9 is without cause of action and hence is not maintainable.
[f] Scheme of Sections 9, 10 and 11 of the Act contemplates scheme of dismissal of appeal, if it is not maintainable, and, therefore, application Page 0221 raising preliminary objection was maintainable and was liable to be allowed.
[g] Tribunal has committed grave error of law and of jurisdiction in dismissing Exh.16 and by allowing Writ Petition and issue of Writ of Certiorari, the Exh.16 deserves to be allowed.
ANALYSIS OF FACTS, FINDINGS, OBSERVATIONS & REASONS
16. This Court has given peaceful consideration to rival submissions. Upon analysis of facts, what this Court finds is as follows:
[a] The Resolution by Circulation is moved and passed by Management on 27th June, 2005.
[b] The post of Asstt. Headmaster had become vacant with effect from 1st July, 2005 on 30th June, 2005.
[c] The reason of vacancy is retirement due to superannuation of Shri L.K. Naik, and not any unforseen reason or sudden occurrence.
[d] According to Management “IT IS NOT NECESSARY TO FILL IN THE POST OF ASSTT. HEADMASTER” and Respondent No. 3 – Mr. B.S. Jambhule can be given the charge of the post of Assistant Headmaster.
[e] Mr. B.S. Jambhule has given consent ‘to act’, which was asked for.
17. It is seen that Management of every private school has following obligations under Maharashtra Employees of Private Schools [Conditions of Service] Regulation Act and Rules:
5. Certain obligations of Management of private schools : (1) The Management shall, as soon as possible, fill in, in the manner prescribed, every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy:
Provided that unless such vacancy is to be filled in by promotion, the Management shall, before proceeding to fill such vacancy ascertain from the Educational Inspector, Greater Bombay [the Education Officer, Zilla Parishad or, as the case may be, the Director or the Officer designated by the Director in respect of schools imparting technical, vocational, art or special education,] whether there is any suitable person available on the list of surplus persons maintained by him, for absorption in other schools; and in the event of such person being available, the Management shall appoint that person in such vacancy.]
(2) Every person appointed to fill a permanent vacancy shall be on probation for a period of two years. Subject to the provisions of Sub-sections (3) and (4), he shall, on completion of this probation period of two years, be deemed to have been confirmed.
Sub-rules (3) and (5) of Rule 3, as well Rule 5 of the said Rules read as under:
3. Qualifications and appointment of Head.
(1) …
(2) …
(3) The Management of a school including a night school shall fill up the post of the Head by appointing the seniormost member of Page 0222 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. [Explanation. -For the purpose of this rule, the Management shall communicate the occurrence of vacancy of the Head to the senior-most qualified teacher having satisfactory record of service and ask him to submit his willingness for appointment to the post within a period of fifteen days from the date of receipt of the communication. The claim of the senior-most qualified teacher having satisfactory record of service, for appointment to the post of Head, may be disregarded only if he, of his own free will, gives a statement in writing to the Education Officer that he has voluntarily relinquished his claim to the post. This shall not debar him from being considered for subsequent vacancies as and when they occur. Such a teacher shall record his statement in his own handwriting before the Education Officer within a period of fifteen days from the date of receipt of the communication as aforesaid and the Education Officer shall endorse it as having been recorded in his presence. A statement once duly made by such teacher before the Education Officer shall not be allowed to be withdrawn. In the event of the teacher failing to submit his willingness for appointment to the post or to give a statement to the Education Officer within a period of fifteen days, it shall be assumed that he has relinquished his claim on the said post:
Provided that, where an unforseen vacancy of Head occurs owning to reasons like resignation without giving due notice, death, termination of services, reduction in rank or otherwise, the senior-most teacher desirous of relinquishing his claim for appointment to the post shall, within seven days from the date of receipt of a communication by him of occurrence of such vacancy from the Management, communicate to the Management in writing about the same so as to enable the Management to finalise the appointment. Such a teacher shall thereafter as soon as possible and in any case within a period of fifteen days from the date of receipt of the communication as aforesaid record his final statement before the Education Officer to enable him to approve the appointment, or as the case may be, to disapprove the appointment if such teacher states in his statement before the Education Officer that the communication sent by him in writing to the Management was obtained from him by the Management under duress. In the event of the teacher failing to record a final statement within a period of fifteen days as aforesaid it shall be assumed that he has relinquished his claim on the said post;]
(4) …
(5) (a) If a suitable teacher possessing qualifications laid down in the foregoing provisions of this rule is not available to fill in the Page 0223 post of Head of a school, the Management shall, with the prior permission of the Education Officer in case of primary schools, or of the Deputy Director in the case of other schools, advertise the post and select and appoint a person possessing the requisite qualifications and experience.
(b) The application for permission to advertise the post shall be made at least two months in advance. The period of two months may be relaxed by the Education Officer or the Deputy Director, as the case may be, in the case of new schools or in emergency cases wherein the vacancy could not have been anticipated. The advertisement shall be given after the permission of the Deputy Director or the Education Officer is received. Management shall ensure that the advertisement appears in at least two daily newspapers, one of which shall be a Marathi newspaper, having wide circulation in the region wherein the primary schools or secondary school or Junior College of Education is located.
4. …
5. Qualifications and Appointment of Assistant Head and Supervisor.
(1) Management of secondary school with more than twenty classes shall appoint an Assistant Head to assist the Head in his organizational administrative and supervisory duties. Provided that, where in accordance with the rules in force before the commencement of the Maharashtra Employees of Private Schools [Conditions of Service] Rules, 1981 the Management has appointed a Supervisor instead of an Assistant Head, then
(i) on the commencement of the Maharashtra Employees of Private Schools [Conditions of Service] [Amendment] Rules, 1984 the Supervisor so appointed shall be appointed as Assistant Head if he is the senior-most teacher eligible for being appointed as Assistant Head:
or
(ii) if the Supervisor so appointed is not the senior-most teacher and his of appointment as such Supervisor is to expire after the commencement of the Maharashtra Employees of Private Schools [Conditions of Service] [Amendment] Rules, 1984 the Management shall appoint the senior-most teacher eligible for being appointed as an Assistant Head under these rules, as the Assistant head immediately after expiry of the term of appointment of such Supervisor.
(2) Subject to the provisions of Sub-rule (5) the provisions of Rule 3 relating to qualifications and appointment of Head shall mutatis mutandis apply to the post of an Assistant Head and Supervisor.
Provisions of law as applicable and analysis thereof:
18. Petitioners are duty bound to observe all statutory obligations which follow by virtue of recognition, and the provisions of Maharashtra Employees of Private Schools [Conditions of Service] Regulation Act, 1977 and Rules made thereunder.
19. The petitioners, however, are seen to carry a feeling that they are not bound by statutory obligations under Section 5(1) of the Maharashtra Employees of Private Schools [Conditions of Service] Regulation Act, 1977 Page 0224 and the MEPS Rules of its statutory duty, and hence have resolved not to fill in the post, and decided to make arrangement for “acting” only. This approach is, on its very face, ‘malafide in law’, and is atrocious, autocratic and obnoxious.
20. This Court finds that in service jurisprudence, obligation or duty to fill in a post would ordinarily be a strange preposition, however, law which governs the field gives a mandate to the Management of private school to fill in the post, corresponding obligation whereof is prima facie disregarded stubbornly and with least respect to law. The mandate of law is being overcome by adopting circuitous procedure which is ingeniously devised.
21. The petitioners have by their own act proved their intentions of oppressing, denying and superseding the claim of respondent No. 1 to the post of Asstt. Headmaster.
22. Present vacancy of the post of Asstt. Headmaster is not a sudden or accidentally occurred vacancy. It was actually and duly forseen. Date of retirement on superannuation is a fact well within the knowledge of employer. Sub-rule (3) of Rule 3 connotes commencement of procedure of designating the Headmaster as 15 days’ time is needed for ascertaining willingness. Considering the possibilities of declinement by some candidates, this procedure needs to be initiated much before. It also contemplates possibility of meeting emergent situation as prescribed in proviso to the Explanation to Sub-rule (3) of Rule 3. Sub-rule (2) of Rule 5 provides that Sub-rule (5) of Rule 3 shall apply mutatis mutandis to the filling of vacancy of the post of Asstt. Headmaster.
23. Knowing fully well what situation is arising, and knowing fully well as to what is the scheme of law and rules, the Management has resolved “not to fill in the post”, and direct the Respondent No. 3, a junior in rank, to ‘act’, and has put him in authority next to Headmaster, and over Supervisor and also over all other teachers. The approach of the Management is prima facie of playing a fraud on law, and deprivation of eligible employees, therefore, is colourable exercise of power and hence bound to fall within the classification “supersession.” For visualizing what is the real intention of Management, even lifting the veil is not necessary.
24. All these facts and law seen together demonstrate that the Management knowing fully of ensuing vacancy designed to appoint Respondent No. 3 ‘to act’, sought his consent well in advance and by essential fallout thereof, eliminated eligible candidates from entering the fray of selection. Thus, in a very calculated way, the petitioners superseded the respondent No. 1 [the appellant] and camouflaged it in a very articulated manner to look as if what is done in purely ad hoc, with full presumption and determination of pre-planned design.
25. Reliance of learned Advocate for the petitioners on the case of Ramakant Advalpalkar [supra], the judgment of Hon’ble Apex Court, is wholly misplaced. It was a case where while claiming equation upon absorption in services of Union Territories from the employment of Portugese Govt. of Goa, the petitioner, who was asked to “perform the duties of Treasurer” due to demise of incumbent holding said post, was found not entitled to Page 0225 equation, as said “performance of the duties” was not considered to be promotion. This Judgment is totally off the context. Neither facts or law is similar.
26. There exists one more limb of argument in opposition to the petition that on facts of case, since present vacancy is not unforseen, even the said procedure under the proviso to the Explanation to Sub-rule (3) of Rule 3 has no application. It seems that by necessary implication, ordering an “acting” or ad hoc arrangement in absence of emergency, therefore, has the resemblance of exercise of power without any emergency and justification of higher degree or intensity. Though power to make ad hoc arrangement could be held to exist, by very power to fill in vacancy, recourse to such power, when vacancy is not unforseen, is unavailable, though otherwise provided by rules. This aspect, however, need not be ruled, and is not ruled in this Judgment in view that substantive appeal is pending.
27. This Court, therefore, perceives that the articulation by the petitioners does not help the petitioners to tilt the balance either of law or equity in their favour. This Court, therefore, finds that petition has no merits, and deserves dismissal. Rule is discharged with costs.
28. This Judgment not to affect merits of pending appeal:
It is clarified that the Tribunal shall consider the appeal by present respondent No. 1 on facts of case and law as may be argued, and need not get impressed due to observations contained in this judgment. Detailed reasons become necessary due to emphasis and fervence found in the submissions while the petition was required to be heard as narrated in opening para.