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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2092 OF 1998
Shri Sampat Dattu Bhosale ... Petitioner
v/s
1. Sou Archana Chandrakant Shinde
2. The Education Officer (Secondary)
Zilla Parishad, Sangli.
3. The Chairman/Secretary,
Shri Chhatrapati Shikshan Sanstha,
Agran Dhulgaon, Tal.Kavathe Mahankal,
Dist.Sangli.
4. The Dy. Director of Education,
Kolhapur Region, Kolhapur.
5. Kum. Anusaya Rama Sapkal
6. The Presiding Officer,
School Tribunal, Kolhapur. ... Respondents
Mr.N.V.Bandiwadekar for the petitioner.
Mr.Umesh Mankapure for the Respondent No.1.
Mr.C.R.Sonawane, A.G.P. for the Respondent No.4.
CORAM: SMT.NISHITA MHATRE, J.
DATED: 5TH SEPTEMBER, 2008
ORAL JUDGMENT:
JUDGMENT
1. The petition is challenging the order of the School
Tribunal passed in Appeal No.53 of 1995. The petition
has been filed by an employee who is directly recruited
as Head Master pursuant to an advertisement issued by
the institution. Writ Petition No.2142 of 1998 has been
filed by the institution contending that the appellant
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before the School Tribunal did not deserve any relief
from the Tribunal.
2. The petitioner worked as an Assistant Teacher from
1.9.1977 to 31.5.1990 in a school run by the Khanapur
Shikshan Prasarak Mandal. An advertisement was issued
on 16.5.1990 in a local newspaper for filling the post
of Head Master in the school run by respondent No.3
institution. Interviews were held and although
respondent No.1 applied for the post pursuant to the
advertisement, she did not appear for the interview.
The petitioner was selected and appointed as Head Master
from 1.6.1990 on probation for two years. The Education
Officer approved this appointment by an order dated
21.2.1995, retrospectively from 1.6.1990. The
institution had appointed respondent No.1 as an
Assistant Teacher on probation for two years w.e.f.
11.6.1990. Prior to that, she was appointed as
Assistant Teacher in each year from 1985 to 1989-1990.
Thus, the respondent No.1 has worked as an Assistant
Teacher for 5 years prior to 1990. However, the
appointment was for a limited period of one year on each
occasion and the appointment was on a temporary basis.
Undisputedly, she was not appointed as a permanent
teacher. By an order dated 7.6.1990, she was appointed
as an Assistant Teacher on probation w.e.f. 11.6.1990.
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3. The petitioner after being selected, assumed office
on 20.5.1990. Undisputedly, the respondent No.1
completed five years of service, assuming they are to be
treated as continuous, only on 12.6.1990.
4. The petitioner continued to work in the school after
his appointment in 1990. Respondent No.1 filed an
appeal before the School Tribunal on 24.4.1995
contending that, (i) her seniority was wrongly fixed and
that she was in fact senior to another teacher who is
respondent No.5
ig in the petition; (ii) that she was
entitled to be appointed to the post of head of the
school and that she had been superseded by the
petitioner who was an outsider in the school. The
appeal was heard and finally disposed of by an order
dated 3.4.1998. The Tribunal has held that respondent
No.1 was entitled to the post of Head Mistress of the
school w.e.f. 24.4.1995 i.e. the date of filing of the
appeal. The Tribunal set aside the order appointing the
petitioner as Head Master. The Tribunal has also
declared that the approval granted to the appointment of
the petitioner as a Head Master was illegal, ineffective
and void ab initio. Respondent No.2 i.e. the Education
Officer was directed to take steps to recover the salary
from respondent Nos.1 and 3 i.e. the petitioner and
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respondent No.3 herein. The institution was directed to
pay respondent No.1 the salary in the cadre of Head
Master from 24.4.1995.
5. Mr.Bandiwadekar for the petitioner submits that the
appeal itself is not maintainable. He points out that
what is contemplated under Section 9 sub-section (1)(b)
of the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977
(hereinafter referred to as the M.E.P.S. Act), is
supersession by the management while making an
appointment
to a post by promotion. He further submits
that the present case is not one of supersession as
there is no question of the management having appointed
the petitioner by way of promotion, superseding the
claim of the respondent No.1. The petitioner has been
appointed directly and, therefore, the question of
superseding the claim of the respondent No.1 does not
arise. He then submits that the Tribunal has not taken
into consideration the delay in filing the appeal. He
concedes that an appeal to the Tribunal against an order
of supersession need not be filed within the period of
limitation mentioned in Section 9 sub-section (2).
However, he submits, it nevertheless must be filed
within a reasonable time. He points out that the
present appeal has been filed five years after the
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appointment of the petitioner and, therefore, that
period cannot be considered to be a reasonable period.
The learned advocate then argued on merits that the
respondent No.1 had not completed five years continuous
service to be appointed as the head of the school. He
draws my attention to Rule 3 of the Maharashtra
Employees of Private Schools (Conditions of Service)
Rules, 1981 (hereinafter referred to as the M.E.P.S.
Rules), which provides the qualifications and
appointment as the Head of the School. A person to be
appointed as head of the school must have put in not
less
than five years service. He points out that this
service must be continuous and on a permanent basis. He
contends that the respondent No.1 in any event could not
have been appointed to the post of Head of the School as
she did not have the requisite qualifications.
6. Reliance is placed by the learned advocate on the
judgment in the case of Secretary, Shri Jamnadas Adukia
Charity Trust, Bombay & ors. v/s Chintamani Birjaprasad
Dubey & ors., reported in 2000 II C.L.R. 142, where a
learned Single Judge of this Court has held that there
can be no supersession of a person in service in case a
person is appointed as a direct recruit. He also draws
my attention to the judgment of the Supreme Court in the
case of Union Public Service Commission v/s Hiranyalal
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Dev & ors., reported in A.I.R. 1988 S.C. 1069, in
support of his contention that supersession is possible
only in case of promotion and not of selection. He
submits that, if the appeal itself is not maintainable,
then the question of granting any relief to the
respondent No.1 does not arise.
7. Mr.Joshi, appearing for the institution i.e.
respondent No.3 herein, supports the submission advanced
by Mr.Bandiwadekar. He further contends that assuming
the appointment of the petitioner is irregular inasmuch
as no permission was obtained from the Education Officer
prior to advertising the post of Head Master, the
respondent No.1 would not automatically be entitled to
the post of Head Mistress. He further contends that the
petitioner has been in service with the school for 18
long years and this fact should be considered by this
Court while passing the final order in the petition.
The learned advocate also submits that respondent No.1
ought to have challenged the issuance of the
advertisement itself as the rights of respondent No.1
were crystlized when the advertisement was issued.
Therefore, he submits, the delay in filing the appeal
would be a hurdle for the respondent No.1 to cross
before any reliefs can be granted to her.
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8. Mr.Mankapure, the learned advocate for respondent
No.1, submits that the appeal is maintainable as any
order of supersession can be challenged in the School
Tribunal. He submits that supersession means
replacement, by relying on the dictionary meaning of
“supersession” and, therefore, any order replacing the
respondent No.1, who was acting as a Head Mistress,
amounts to supersession. He places reliance on the
judgment of a learned Single Judge of this Court in the
case of Nagpur Shikshan Mandal & anr. v/s Haribhau
Nathuji Mohod & ors., reported in 2008(3) All MR 171
another judgment
ig between the same parties reported in
2007(2) Bom.C.R. 50. He submits that the petitioner
was appointed pursuant to an advertisement issued by the
institution although the latter was well aware of the
fact that respondent No.1 had completed five years in
service and, therefore, would be entitled to the post of
Head of the School. He submits, therefore, that the
appeal is maintainable as held by the School Tribunal.
As regards the question of limitation, the learned
advocate submits that right from 1989, the respondent
No.1 was corresponding with both, the school and the
Education Department, contending that her seniority had
been wrongly fixed. According to him, had the seniority
of respondent No.1 been fixed correctly, she would have
been shown senior to respondent No.1 and, would have
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automatically been eligible to be appointed as head of
the School. The learned advocate then submits that in
any event the appointment of the petitioner is illegal,
because no permission was obtained from the Education
Department prior to advertising the post of Head of the
School. He submits, while placing reliance on the
judgment of the Division Bench of this Court in the case
of Tara Ramesh Tupkar v/s Pramod Shikshan Sanstha,
reported in 1999 (Supp.) Bom.C.R. 119, in support of
this contention, that the management of a school can
advertise a post of head of the school only after
obtaining
permission from the Education Officer/Deputy
Director. He urges that sub-rule 5(b) of Rule 3 has
been breached by the institution, as admittedly, prior
permission was not sought while advertising the post of
Head of the School.
9. The first issue which will have to be decided is
whether the appeal itself is maintainable. The meaning
of the verb “supersede” in the Conscise Oxford
Dictionary is – “(a) “adopt” or appoint another person
or thing in place of. (b) set aside; cease to employ.”
The meaning assigned to the word “supersede” in the
Black’s Law Dictionary (Eighth Edition) is – “1. To
annul, make void, or repeal by taking the place of; 2.
To invoke or make applicable the right of supersedeas
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against.” Therefore, the term “supersession” means
replacing a person or thing.
10. In the case of Union Public Service Commission v/s
Hiranyalal Dev & ors., reported in A.I.R. 1988 SC 1069,
the Supreme Court has considered whether a direct
recruit could supersede persons who were already in
service. A Selection Committee had been appointed and
the Committee selected a person in preference to
another. The Supreme Court has observed that this could
not amount to supersession of a junior by a senior. It
also held that the concept of “supersession” is relevant
in the context of promotion and not in the context of
selection. Similarly, in the case of Secy. Shri
Jamnadas Adukia Charity Trust v/s Chintamani Birjaprasad
Dubey & ors., reported in 2000 II C.L.R. 142, a learned
Single Judge of this Court has held that a direct
appointee to a post could not supersede a person who was
already in service. Supersession, it was observed,
takes place only when a junior employee is promoted to a
higher post, overriding the claim of a senior employee
in his cadre.
11. I am in respectful agreement with the view taken by
the learned Single Judge of this Court in Secy. Shri
Jamnadas Adukia Charity Trust (supra). When there is a
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case of supersession it presupposes that a person who is
junior in rank overrides the claim of a person who is
senior to him and is appointed instead of his senior.
Section 9 of the M.E.P.S. Act clearly stipulates that
an appeal is maintainable by a person who is superseded
by the management while making an appointment to any
post by promotion. Obviously some meaning would have to
be assigned to the expression “by promotion” used in the
section. In my opinion, there can be no supersession by
a direct recruit. The submission of Mr.Mankapure that
any replacement of a person by whatever means i.e.
whether
by overriding the claim of a senior by a junior
or by overriding a claim by appointing an outsider can
be challenged before the School Tribunal. The
submission is unsustainable because the School Tribunal
is not competent to decide disputes between a direct
recruit and a person in service as there is no
supersession in fact. Assuming Mr.Mankapure is right in
submitting that a supersession means replacement of a
person, the expression “by promotion” used in Section
9(1)(b) of the M.E.P.S. Act cannot be ignored and must
be given effect. Thus, only the replacement of a person
by promotion can be challenged before the School
Tribunal. The appeal itself filed by respondent No.1
was not competent and the Tribunal had no jurisdiction
to decide the same. The Tribunal ought to have
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therefore dismissed the appeal.
12. Turning now to the issue of limitation, it is no
doubt true that a supersession can be challenged under
Section 9(1)(b) before the Tribunal at any time and
there is no fixed period of limitation. However, it
would not give a licence to a person to challenge the
order passed in favour of another who she claims has
superseded her after an inordinate delay. In the
present case, respondent No.1 has contended that she was
pursuing other remedies of corresponding with the
authorities
in order to redress her grievance.
Admittedly, the respondent No.1 has not filed any
application for condoning the delay in filing her
appeal. Instead, it was only after the management in
its written statement contended that there was no
application filed for condoning the delay and that
therefore the appeal should be dismissed, that an
application for condoning the delay was filed by the
respondent No.1. That application was opposed by the
petitioner by filing his reply. However, the Tribunal
chose not to pass any order on that application and
instead decided all issues together. The Tribunal was
of the opinion that there was no delay on the part of
the respondent No.1 in filing the appeal.
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13. It is now trite that merely engaging in
correspondence for redressal of one’s grievance over a
long period of time is not sufficient to explain the
delay in filing an appeal. In the present case, the
respondent No.1 was aware that the advertisement was
issued on 16.5.1990. She chose not to challenge the
issuance of the advertisement and instead applied for
the post of Head of the School. Thus, she was aware of
the advertisement having been issued on 16.5.1990
itself. She was also aware that the petitioner was
appointed on 28.5.1990 as she was working in the same
school.
If the petitioner’s contention that she was in
continuous service is accepted, she completed five years
on 12.6.1990. Therefore, according to her, she should
have been appointed on that date as Head of the School.
However, she chose to remain silent even on completion
of five years. She continued her correspondence and
claims that the Education Officer had assured her that
approval could not be granted to the appointment of the
petitioner to the post of Head Master and, therefore,
she did not challenge his appointment. It was only
after the approval was accorded that she decided to
challenge the appointment of the petitioner. This
submission again cannot be accepted. The requirement of
approval of the appointment of a person to a particular
post, if not met, does not necessarily lead to the
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inference that the appointment is illegal. As held by
the Full Bench of our Court in the case of St.Ullai High
School & anr. v/s Devendra Prasad Jagannath Singh,
reported in 2007 (1) Mh.L.J. 597,
597 the rejection of
approval for an appointment would not necessarily mean
that the management can terminate the services of an
employee automatically; nor would it mean that the
services would automatically come to an end after the
approval was refused. Thus, assuming no approval was
granted, the petitioner was entitled to continue on the
post at the risk of the management. Respondent No.1
ought
to have filed the appeal within a reasonable time
and, in my opinion, a period of five years is certainly
not a reasonable time in the facts of the present case.
14. On merits, there can be no dispute that the
advertisement which was issued for appointment of the
Head of the School had not been issued in compliance
with Rule 3(5)(a) of the M.E.P.S. Rules. Prior
permission of the Education Officer/Deputy Director for
advertising the post is mandatory. Admittedly, the
management has not obtained this permission as required
under Rule 3(5)(a). The Division Bench of this Court
has observed in the judgment of Tara Ramesh Tupkar v/s
Pramod Shikshan Sanstha & ors. (supra), that an
appointment which is in violation of sub-rule 5(a) of
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Rule 3, must be quashed. However, these observations
were made in the matter where the appeal filed by the
employee was maintainable. Post facto approval has
undoubtedly been given to the appointment of the
petitioner. His appointment has been approved on
21.2.1995 with effect from 1.6.1990. However, it must
be borne in mind that the grant-in-aid was extended to
the school by the order of the Education Department
dated 4.6.1990. Thus, when the advertisement was issued
on 16.6.1990, the School was not getting any
grant-in-aid and, therefore, in my opinion, no approval
was necessary from
ig the Education Department prior to
issuance of the advertisement.
15. In my view, the Tribunal has erred in granting
relief to the respondent No.1 when the appeal itself was
not maintainable and had been filed after an inordinate
delay of five years. The petition must succeed.
16. The impugned order is set aside. Writ petition
allowed.
17. Rule made absolute. No order as to costs.
18. Respondent No.1 may approach any other forum for
redressal of her grievance. If any litigation is filed
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by respondent No.1 in respect of the subject matter of
this petition, the appropriate forum will take into
account the pendency of this petition in this Court
while deciding whether the application or any other
litigation filed by the respondent No.1 has been filed
within the period of limitation.
19. Civil Application No.1768 of 2008 also stands
disposed of accordingly.
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