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Sayyad Yousuf and Another Vs. The State of Maharashtra, through the Secretary, Secondary Education Department and Others - Court Judgment

LegalCrystal Citation
CourtMumbai Aurangabad High Court
Decided On
Case NumberWrit Petition Nos. 6794 of 2012 & 7246 of 2012
Judge
AppellantSayyad Yousuf and Another
RespondentThe State of Maharashtra, through the Secretary, Secondary Education Department and Others
Excerpt:
maharashtra employees of private schools (condition of service) regulation act, 1977 section 3(2) entitlement to seniority respondent no.3 filed petition before high court seeking direction to decide dispute about seniority direction was issued by this court to education officer to decide seniority of petitioner and respondent no.3 education officer held that petitioner was senior to respondent no.3 respondent no.3, thereafter, filed appeal before tribunal and tribunal, allowed appeal filed by respondent no.3. court held tribunal has manifestly erred in considering case of respondent no.3 after long lapse of time and without considering relevant circumstances tribunal has impliedly set aside appointment of the petitioner on post of head master after he has worked on said.....1. heard. rule. rule made returnable and heard forthwith with the consent of the learned counsel for the parties. 2. writ petition no.6794/2012 is filed against the judgment and order dated 4th of august, 2012, passed by the school tribunal at latur in appeal no.14 of 2011. petitioner was respondent no.3 in the appeal before the school tribunal. the aforesaid appeal was filed by present respondent no.3 challenging promotion of the present petitioner on the post of headmaster with a consequential relief to promote him on the post of headmaster from 1.1.2003 by setting aside the promotion of the present appellant as headmaster. 3. it was the contention of the present respondent no.3 in the aforesaid appeal that the present appellant was junior to him and could not have been appointed on the.....
Judgment:

1. Heard. Rule. Rule made returnable and heard forthwith with the consent of the learned Counsel for the parties.

2. Writ Petition No.6794/2012 is filed against the judgment and order dated 4th of August, 2012, passed by the School Tribunal at Latur in Appeal No.14 of 2011. Petitioner was respondent no.3 in the Appeal before the School Tribunal. The aforesaid appeal was filed by present respondent no.3 challenging promotion of the present petitioner on the post of Headmaster with a consequential relief to promote him on the post of Headmaster from 1.1.2003 by setting aside the promotion of the present appellant as Headmaster.

3. It was the contention of the present respondent no.3 in the aforesaid appeal that the present appellant was junior to him and could not have been appointed on the post of Headmaster, superseding his claim. As against it, it was the contention of the present petitioner before the School Tribunal that the appeal filed by respondent no.3 was hopelessly barred by limitation and was not entertainable. According to the petitioner, he was appointed on the post of Headmaster w.e.f. 1.1.2003 but till 2011, respondent no.3 did not raise any challenge to his appointment. According to the petitioner, even otherwise, respondent no.3 was not eligible to be appointed as the Headmaster since he was not holding the requisite qualification for such appointment. The School Tribunal, however, has allowed the appeal filed by respondent no.3 and vide the impugned order has directed the school management to appoint respondent no.3 on the post of Headmaster of the School w.e.f. 1.1.2003. Aggrieved thereby, the petitioner has filed the present petition.

4. Challenging the same order passed by the School Tribunal in Appeal No.14/2011, the School Management through its President has filed Writ Petition No.7246 of 2012. In view of the fact that exhaustive arguments were heard in Writ Petition No.6794/2012, majority facts and the arguments are referred to of the said matter, and parties are referred to in accordance with their status in the said writ petition.

5. Before adverting to the legal issues raised in the petition, it is necessary to note down the facts of the case in brief which are thus:

Petitioner possesses the qualification as B.A., B.Ed. He was appointed as Assistant Teacher in the secondary school run by respondent no.2 Education society w.e.f. 1.2.1993 and since then is in continuous employment of respondent no.2. Respondent no.3 possesses the qualification as B.Com., B.P.Ed. and was initially appointed in the school run by respondent no.2 w.e.f. 11.6.1990 for a short period and was re-appointed w.e.f. 15.7.1991. His appointment was specifically for the Standards Vth to VIIth. As per the averments in the petition, the seniority lists were time to time published wherein respondent no.3 was shown junior to the petitioner. As further averred in the petition, respondent no.3 did not raise any grievance in respect of the seniority lists so published. Shri Abdul Rauf was appointed as Headmaster in the year 1998 and he worked on the said post till the year 2002. Respondent no.3 though had joined the services prior to said Shri Abdul Rauf, did not make any grievance against the appointment made of said Shri Abdul Rauf on the post of Headmaster. With effect from 1.1.2003, the petitioner was appointed as Headmaster and his appointment was duly approved by the Education Department. Respondent no.3, however, did not raise any challenge to the appointment of the petitioner. Respondent no.3 also did not challenge the approval granted by the Education Officer to the appointment of the petitioner on the post of Headmaster.

6. In the year 2008, the School management terminated the services of the petitioner. According to the petitioner, his services were illegally terminated with a oblique motive to appoint respondent no.3 on his post who is the nephew of the then Secretary of the school management. The termination was challenged by the petitioner by filing an appeal before the School Tribunal which set aside the termination and directed reinstatement of the petitioner. The order passed by the School Tribunal was challenged by the school management before the High Court and the interim stay was also sought by the school management. The High Court, however, refused to grant interim relief. The refusal of the interim relief was challenged by the School management in the Honourable Apex Court, however, the Apex Court did not grant any relief. Despite, the School management did not get the petitioner joined. The petitioner, therefore, filed a contempt petition and only thereafter the petitioner was reinstated.

7. In the meanwhile, the School management published the seniority list showing respondent no.3 as the seniormost employee in the teaching staff. Respondent no.3, thereafter, filed Writ Petition bearing No.1040/2010 before the High Court seeking direction to decide the dispute about the seniority. In the aforesaid writ petition, a direction was issued by this Court to the Education Officer to decide the seniority of the petitioner and respondent no.3. The Education Officer vide its order dated 25.5.2010 held that the petitioner was senior to respondent no.3. Respondent no.3 challenged the said order passed by the Education Officer by filing Writ Petition No.5619/2010. The High Court disposed of the aforesaid petition vide order passed on 28th February, 2011, granting liberty to respondent no.3 to challenge his supersession before the School Tribunal. Respondent no.3, thereafter, filed an appeal before the School Tribunal at Latur, bearing Appeal No.14/2011. As stated hereinabove, the School Tribunal, Latur, allowed the appeal filed by respondent no.3 vide the impugned order.

8. The Writ Petition No.6794/2012 was filed on 13th of August, 2012. On 16th August, 2012, this Court has passed an order thereby directing the parties to maintain status quo as on the said date. During the course of the arguments, it was informed by the parties that, in view of the order so passed by this Court, the petitioner continued to work on the post of Headmaster.

9. The petitioner has challenged the judgment and order passed by the School Tribunal on various grounds. Shri Mantri, learned Counsel appearing for the petitioner, submitted that the Tribunal was not having any jurisdiction to entertain the appeal in respect of the dispute of seniority. Learned Counsel further contended that the Tribunal has failed in considering the fact that respondent no.3 was appointed specifically in the Primary Section as a Graduate Teacher and not as a Trained Graduate Teacher and he was all along posted in the Primary Section and was not even eligible to be appointed as Assistant Teacher and, consequently, was not eligible to be appointed on the post of Headmaster. Learned Counsel further submitted that the School Tribunal had failed in appreciating that cause of action for raising a dispute by respondent no.3 had in fact had arisen in the year 1998 when Abdul Rauf was promoted to the post of Headmaster, however, admittedly, respondent no.3 did not make any grievance at that time. Learned Counsel further submitted that thereafter the petitioner was appointed on the post of Headmaster w.e.f. 1.1.2003 and his appointment was also duly approved by the Education Department. Learned Counsel submitted that up till seven years thereafter, respondent no.3 kept quiet and did not make any grievance against the appointment made of the petitioner on the post of Headmaster. Learned Counsel submitted that the Tribunal must have considered the aforesaid facts. Learned Counsel further submitted that by remaining silent for long seven years after the appointment of the petitioner on the post of Headmaster, respondent no.3 has impliedly waived his right to be appointed to the said post and / or has acquiesced for the said appointment. According to the learned counsel, in the aforesaid circumstances, only on the point of delay, the Tribunal must have rejected the appeal filed by respondent no.3. Learned counsel further submitted that the Tribunal has grossly erred in arriving at a conclusion that respondent no.3 was consistently making the grievance as about his seniority and that he has time to time submitted the representations in the period 1992 to 2011. Learned Counsel further submitted that the Tribunal has also erred in observing that the seniority lists which were published from 2000 to 2009-2010 were not in accordance with the M.E.P.S. Rules since the same were published under the signature of the Headmaster and not by the respondent management. Learned Counsel further submitted that the Tribunal has also erred in not appreciating that seniority lists published in the year 2000-2001 to 2009-2010 were duly signed by respondent no.3 and as such, he was quite aware at which place he was placed in the ladder of seniority. Learned Counsel submitted that since respondent no.3 did not raise any dispute about the seniority lists so published, is estopped from raising any dispute after long ten years. Learned Counsel further submitted that the Tribunal has also failed in not considering the fact that Shri Sayyad Shamsuddin Sayyad Kasim, who was the Secretary at the relevant time is the real maternal uncle of respondent no.3 and he helped respondent no.3 to create a concocted record. Learned counsel further submitted that the Tribunal also did not appreciate that the general rules of seniority could not have been applied to the appointments and promotions in the minority institution. In support of the contention so raised, learned Counsel for the petitioner relied upon certain judgments, which are referred in the further discussion.

10. Shri Rajendra S.Deshmukh, learned Counsel appearing for respondent no.3, resisted the submissions advanced on behalf of the petitioner. Learned Counsel supported the impugned judgment. Learned Counsel submitted that the School Tribunal is competent to entertain the dispute as regards to the seniority also. Learned Counsel further submitted that the copies of the representations submitted by respondent no.3 are placed on record. Learned Counsel submitted that all these applications bear the endorsement of the Secretary of the School management evidencing receipt of the said representations. Learned Counsel further submitted that mere delay in raising a dispute cannot defeat the right which accrued in favour of respondent no.3. Learned Counsel further submitted that no period of limitation is prescribed for preferring an appeal in the matter of supersession. Learned Counsel further submitted that the Tribunal has rightly considered the issues and has passed the well reasoned order. Learned Counsel submitted that respondent no.3 possesses the required qualification to be appointed as an Assistant Teacher as well as to be promoted to the post of Headmaster. Learned Counsel submitted that respondent no.3 was a Trained Graduate Teacher since his inception in service. Learned Counsel further submitted that respondent no.3 is well versed with the Urdu language and his S.S.C. certificate evinces the said fact. Learned Counsel further submitted that Gulam Kutubjani Gulam Gilani who has filed Writ Petition No.7246/2012 has no authority to file such petition. Learned Counsel, in support of his contentions, has relied upon the following judgments which referred to at the appropriate place.

11. Shri Deshpande, learned Counsel appearing for respondent no.4, adopted the argument advanced by Shri R.S.Deshmukh, learned Counsel for respondent no.3.

12. Shri H.I.Pathan, learned Counsel appearing for respondent no.2 supported the case of the petitioner. Learned Counsel submitted that the appointment made of the petitioner on the post of Headmaster w.e.f. 1.1.2003, was not liable to be challenged in an appeal before the School Tribunal adhering to the general rules of seniority considering the fact that respondent no.2 is a minority institution. Learned Counsel placed on record the circular issued by the Government of Maharashtra on 21st of September, 1982, to urge that, reading of Section 3(2) of the M.E.P.S.Act shows that the Act does not apply to the recruitment, etc. of the head of the minority school and it is not necessary that his name should be notified by the management to the Deputy Director. Learned Counsel further submitted that since respondent no.3 has taken all his education in Marathi Medium was, in fact, not eligible to be appointed as an Assistant Teacher in respondent no.2 school. Learned Counsel relied upon the judgment of the Division Bench of this Court in Writ Petition No.5180/2000 and in Writ Petition No.6073/2005, delivered on 22.9.2005. Learned Counsel prayed for quashment of the judgment of the School Tribunal.

13. I have carefully considered the submissions advanced by the learned Counsel for the respective parties. I have also perused the impugned judgment and the other material placed on record by the parties. I deem it appropriate to deal with the objections raised in exception to the impugned judgment in the same chronology as they are raised.

14. As noted hereinabove, the first objection which has been raised on behalf of the petitioner is that respondent no.3 was not eligible to be appointed even as an Assistant Teacher since he was not holding the requisite qualification i.e. degree of B.Ed. and was holding a degree of B.P.Ed. However, I do not see any substance in the objection so raised. As held by Division Bench of this Court, in the case of Laxman Khanderao Ekhande vs The State Of Maharashtra (2007 (1) Mh.L.J. 860), there can be no discrimination between the Graduate Teachers with the B.Ed. qualification and the Graduate Teachers with B.P.Ed. qualification for any purpose.

15. The another objection raised by the petitioner that the School Tribunal was not having jurisdiction to entertain the dispute of seniority also does not hold any water in view of the judgment of this Court in the case of U.B.Vispute Vs. State of Maharashtra (2001) 1 Mh.L.J. 486). As held by this Court in the aforesaid judgment, the dispute relating to seniority list can also be considered by the Tribunal as an incidental question while deciding the issue of supersession.

16. The objection raised by the present respondent no.2 i.e. the present School management, that the appointment of respondent no.3 itself was illegal in the Urdu school run by it since respondent no.3 has completed his education through Marathi medium and he does not have any knowledge or he is not conversant with Urdu language also does not deserve any consideration in view of the material placed on record by respondent no.3 showing that he was well versed with the Urdu language and that Urdu language was his special subject for the examination of S.S.C. Further, though respondent no.3 is serving as an Assistant Teacher in respondent no.2 school since last several years, no such objection is ever raised that he is incapable of teaching the subjects allotted to him in Urdu. The School Management is thus estopped from raising any objection that respondent no.3 does not have due qualification to teach in Urdu school.

17. The further objection that as because the appointment of respondent no.3 since beginning was in Primary Section of the school to teach the students to 5th to 7th Standards, and as the order of appointment issued in favour of respondent no.3 categorically reflects the said fact, and therefore he cannot be said to be eligible to be appointed as the Headmaster of the secondary school as he does not have any requisite experience to teach in the secondary school also has not impressed me much. Dr.Iqbal Urdu Model High School is, admittedly, a secondary school having 5th to 10th Standards. Considering the definition of the `Secondary School' as provided in the Secondary Schools Code, 5th to 7th Standards also form part of Secondary School.

18. The further two grounds raised by the petitioners in both the writ petitions, however, certainly, deserve to be considered; one is about the delay committed by respondent no.3 in challenging the appointment of the petitioner, and the other is right of the minority institution as enumerated in Section 3(2) of the M.E.P.S.Act, to appoint a person of their choice on the post of Headmaster of the school and the bar provided to challenge such orders.

19. Respondent No.3 had filed an appeal under Section 9(1)(b) of the M.E.P.S.Act, 1977 before the School Tribunal at Latur alleging that the school management had illegally appointed the present petitioner on the post of headmaster of Dr.Iqbal Urdu Model High School,. Ardhapur, superseding his claim to the said post The contents of Appeal No.14/2011 so filed by respondent no.3 reveal that respondent no.3 has been making written representations start from 15.7.1992 and onwards, requesting the school management to take steps so as to maintain proper seniority list in accordance with the provisions of law so that his claim of seniority and promotion is not affected. From the plea so raised by respondent no.3 in appeal filed by him before the School Tribunal, it is quite evident that since 1992, it was the grievance of respondent no.3 that seniority list has not been properly maintained by the school management and that because of such improper maintenance of the seniority list, his chances of promotion were likely to be affected.

20. Respondent no.3 along with his reply to the present petition has annexed copies of the representations allegedly submitted by him to the school management time to time. Though there is a serious dispute about the fact whether, in fact, such representations were sent by respondent no.3 or such concocted record is subsequently prepared by respondent no.3; assuming that such representations were, in fact, submitted by respondent no.3, from such representations of which the representation allegedly submitted by respondent no.3 on 8.11.1992 reveals that respondent no.3 had requested for his appointment to the post of Headmaster. When such application was made by respondent no.3, it is obvious that he was claiming himself to be the seniormost teacher in the school. The question arises, when respondent no.3 became aware of the fact that in the seniority lists maintained by the school management, his seniority has not been properly maintained, what action was taken by him to redress his said grievance. Rule 12 of the M.E.P.S.Rules relates to maintenance of seniority lists of the teaching staff, including Headmaster and Assistant Headmaster and non teaching staff in the school in accordance with the guidelines in Schedule F of the said Rules. Sub-clause (2) of Rule 12 provides that the objection, if any, to the seniority list or changes therein shall be duly taken into consideration by the management. Sub-clause (3) of the said Rule prescribes that disputes, if any, in the matter of inter se seniority shall be referred to the Education Officer for his decision. At the relevant time, respondent no.4 in the present writ petition, namely, Mr. Sayyad Shamsuddin Sayyad Kasim was the Secretary of the school management. All the representations, allegedly submitted by respondent no.3, raising dispute about or making complaints about improper maintenance of the seniority lists are shown to have been received by said respondent no.4. The further question arises as to what action was taken by respondent no.4 on the objections so received to him from respondent no.3 about the seniority lists. The question also arises as to what action was taken by respondent no.3 when, admittedly, no action was taken on the said representations for years together.

21. It is true that no limitation is provided for filing an appeal by an aggrieved person under Section 9(1) (b) of the Act as is prescribed for filing the appeals from the order of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be. However, in no case it can be accepted that since no limitation is provided, an appeal by an employee, who claims to be superceded by the management while making any appointment to a post by promotion, can file an appeal after a huge delay of years together without providing any just and sufficient explanation therefor. There are catena of judgments delivered by the Honourable Apex Court as well as by different High Courts holding that if a Statute does not prescribe time limit for exercise of revisional or appellate powers, it must be exercised within a reasonable time frame. In the instant matter, the material on record reveals that respondent no.3 claims himself to be a seniormost teacher in Dr.Iqbal Urdu Model High School, Ardhapur. It is also the matter of record that through one Shri Abdul Rauf Abdul Latif, who joined the services on 15.6.1992 i.e. after respondent no.3 had joined the services, respondent no.3 did not raise any objection or take any step to challenge the order whereby said Abdul Rauf was promoted to the post of Headmaster in the year 1998. Said Abdul Rauf worked on the said post of Headmaster from the year 1998 to 2002. In whole of the said period, respondent no.3 did not raise any objection or lodge any protest against the appointment so made or seek cancellation of the promotion so made with consequent relief for his appointment to the said post. It is also the matter of record that the present petitioner came to be appointed on the post of Headmaster w.e.f. 1.1.2003. However, respondent no.3 challenged the promotion so given to the present petitioner only in the year 2011 by filing an appeal before the School Tribunal bearing Appeal No.14/2011.

22. In the aforesaid appeal filed by respondent no.3, it is the contention of respondent no.3 in para 8 of the said appeal that though he had raised objection since beginning i.e. since the year 1992, however, cause of action cannot be said to have arisen until fixation of the seniority list which was done by the management finally vide publication of the seniority list on 25.11.2009. The contention so raised is wholly illogical. As per the said version, it appears that according to respondent no.3, appointment of Abdul Rauf on the post of Headmaster w.e.f. 1998 and, thereafter, the appointment of the present petitioner on the said post w.e.f. 1.1.2003 did not provide respondent no.3 any cause of action and the same arose only after fixation of seniority by management in the year 2009-2010. If the aforesaid proposition is to be accepted, a further inference needs to be drawn that had the management not carried out the task of preparation and fixation of seniority, even until the year 2016-2017, perhaps, respondent no.3 would not have initiated any action for want of cause of action. The plea so taken by respondent no.2 must be rejected for the reason that according to case of respondent no.3 himself, he was superseded in the year 1992 when Sayyad Zakir Ali Sayyad Sadat Ali was appointed on the post of Headmaster. Even if it is assumed that Sayyad Zakir Ali may be held senior to respondent no.3, since he joined the services on 10th of July, 2991, whereas respondent no.3 joined on 15.7.1991 when in the year 1998 Shaikh Abdul Rauf was appointed on the post of Headmaster, the cause of action had certainly arisen for respondent no.3 to challenge the said promotion when respondent no.3 was claiming to be senior than said Abdul Rauf.

23. Respondent no.3 cannot deny that in the year 1998 when Abdul Rauf was appointed as a Headmaster, he had become aware that he has been superseded. There is therefore no sense in the argument made on behalf of respondent no.3 that since the seniority list was not published by the school management in accordance with, and in the manner as provided under the provisions of the M.E.P.S. Rules till the year 2009, he did not initiate any legal action. The employees are very sensitive about the seniority list obviously for the reason that further promotions depend upon the position at which name of the concerned employee is shown in the seniority list. However, the moment a junior person is promoted to a higher post the employee concerned gets a cause of action to challenge the promotion of the said junior employee though there may not be any seniority list in existance. The law now stands settled that the issue of seniority can very well be decided by the School Tribunal in an appeal filed by an employee alleging his supersession. Thus, there seems no justification in the contention raised by respondent no.3 that, since the seniority list was not published till the year 2009, there was no cause of action for him to challenge the promotion of the present petitioner, or earlier to that, of Abdul Rauf. In no case it can be accepted that respondent no.3 was not aware of the date of joining of the present petitioner, or that of Abdul Rauf, and for the said reason, he was waiting for the publication of seniority list by the school management.

24. As per his own version, respondent no.3 had first raised an objection in the year 1992 that seniority list is not being properly maintained and that he has not been shown at proper place in the said seniority list which may have adverse effect on the right of his promotion. It is the further contention of respondent no.3 that he was not silent on his rights but has been making various representations raising the grievance about the list of seniority and his right of promotion. In an appeal filed by respondent no.3, in para no.2 thereof, respondent no.3 has provided the particulars as about the representations made by him which reveal that first of such representation was made by respondent no.3 on 15th of July, 1992, and thereafter on 8.11.1992, 20th of September, 1998, 5th of December, 2002, 10th of December, 2002, 28th December, 2002, 7th of January, 2003, 20th of March, 2003, 25th of July, 2003, 10th of January, 2004, and 5th of February, 2005.

25. The question is: whether mere making of such representations, but not taking any further action available in law, was sufficient for respondent no.3 and can the delay which has been caused in ultimately filing an appeal by him before the School Tribunal for the said reason can be justified and can be condoned.

26. The Honourable Apex Court, in number of cases, has ruled that mere representations would not be adequate explanation to take care of delay. In the case of K.V. Rajalakshmi Shetty and Anr. v. State of Mysore and Ors. (AIR 1967 SC 993), it was first stated by the Honourable Apex Court that there is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation, making of another representation on similar lines will not explain the delay. In the case of State Of Orissa vs Pyarimohan Samantaray and Ors ((1977) 3 SCC 396), the Honourable Apex Court held that making of repeated representations cannot be regarded as satisfactory explanation of the delay. In the said case the petition was dismissed by the Honourable Apex Court on the point of delay alone. In the case of State of Orissa and others Vs. Shri ArunKumar Patnaik and others ((1976) 3 SCC 579), the High Court of Orissa had entertained a petition challenging the appointment and seniority of the respondent in the said petition, 11 years after the order of his appointment and had set aside the said appointment. In an appeal by the State, the Honourable Apex Court set aside the order passed by the High Court observing that the writ petitioners were guilty of laches and had brought to the Court a grievance too stale to merit redress. The Honourable Apex Court further expressed its grave concern that an extraordinary jurisdiction was exercised in such an abject disregard of consequences and in favour of the persons who were unmindful of their so called rights for many long years.

27. The principle laid down by the Honourable Apex Court in the afore mentioned judgments that representations would not be adequate explanation to take care of delay has been reiterated by the Honourable Apex Court in the case of Rabindranath Bose Vs. Union of India ((1970) 1 SCC 84) and thereafter in the case of Karnataka Power Corporation Ltd. vs K. Thangappan and Anr (2006) 4 SCC 322) and also in the case of Shiv Das Vs. Union of India and others ((2007) 9 SCC 274).

28. In the instant matter, the learned School Tribunal has accepted the justification provided by respondent no.3 for the delay which was caused in filing the appeal by him observing that respondent no.3 had time and again raised grievance about the seniority list. The observation so made and the finding so recorded by the Tribunal cannot be sustained in view of the principles laid down by the Honourable Apex Court in the judgments referred to hereinabove.

29. Moreover, from the material on record, it is difficult to believe that respondent no.3 was making representations from the year 1992. Copies of all such representations are filed on record by respondent no.3 along with his affidavit in reply. All such applications / representations bear the signature of present respondent no.4 acknowledging the receipt of the said representations. It is not in dispute that respondent no.3 is the nephew of respondent no.4. It is the specific allegation of the petitioner that respondent no.3 with the help of respondent no.4 prepared the aforesaid concocted record. The allegation so made by the petitioner is difficult to be brushed aside for many reasons. It is nowhere explained by respondent no.3 as to why he did not submit such representations in the office of the society, or the school. It is further not explained by respondent no.3 as to why he did not send copies of the representations submitted by him to the Education Office. Respondent no.3 also has not made any attempt to bring on record the relevant Inward Register maintained in the office of the Education Society or the school so as to demonstrate the fact of submission of his applications time to time. It was also pointed out by the learned Counsel for the petitioner that respondent no.3 did not file copies of such representations in his earlier two writ petitions filed in this Court. The record supports the contention of the petitioner. In the said writ petitions filed by respondent no.3, copies of such representations are in fact, not filed on record by him though, no doubt, in one of such writ petitions respondent no.3 has contended that though he has been making representations from the year 1992, copies of such representations were not available with him at the time of filing of the said writ petition. The contention so raised and the explanation so given by respondent no.3 cannot be accepted considering the overall circumstances involved in the case. I reiterate that the allegation made by the petitioner that respondent no.3 prepared a concocted record as about the submission of the representations by him from 1992, and continuously thereafter, is difficult to be ruled out. Moreover, as elaborately discussed by him hereinabove, mere submission of representations for quite a long period was not enough on the part of respondent no.3 and that cannot be a justification for the delay caused by respondent no.3 in approaching the School Tribunal. It appears that the School Tribunal has utterly failed in appreciating this aspect and has recorded certain unsustainable findings in that regard.

30. Further, as I have noted earlier, the cause of action had arisen for respondent no.3 on the date on which Shri Abdul Rauf was appointed on the post of Headmaster in the year 1998. It subsequently arose on 1.1.2003 when the present petitioner was appointed on the said post of Headmaster. It is incredible that the service horoscopes of Abdul Rauf and the present petitioner were not known to respondent no.3, for want of publication of the seniority list by the school management when respondent no.3 was aspiring for the said post.

31. The factual position, as noted above, clearly shows that for nearly eighteen years respondent no.3 had remained silent on his rights. The question arises, in such circumstances and situation, whether the impugned order passed by the School Tribunal would sustain. From the discussion made in the impugned judgment, it appears that while discarding the objections raised by the present petitioner as about delay and laches on the part of respondent no.3, in approaching the School Tribunal, the weighing factor in the mind of the School Tribunal was that there is no limitation provided in the M.E.P.S.Act for filing of an appeal against the order of supersession. It is evident that the learned School Tribunal failed in appreciating that in catena of judgment, the Honourable Apex Court has consistently held that even if a Statute does not prescribe time limit for exercise of revisional or appellate powers, it must be exercised within a reasonable time frame and further, there must be a reasonable explanation by the aggrieved party justifying the period of delay.

32. In the instant case, as has been elaborately discussed by me here-in-above, though the cause of action for filing an appeal by respondent no.3 had arisen in the year 1998, he has failed in providing any cogent and sufficient explanation therefor. On the contrary, from the facts which have come on record and looking to the conduct of respondent no.3, it can be reasonably inferred that respondent no.3 had acquiesced for appointment of Abdul Rauf on the post of Headmaster in the year 1998 and, thereafter, to the appointment of the present petitioner on the said post w.e.f. 1.1.2003. For a moment, even if the theory of acquiescence is kept aside, by not raising any objection to the aforesaid appointment within reasonable time, respondent no.3 shall be deemed to have waived his right for appointment to the said post. Delay or laches is one of the factors to be borne in mind by the Courts or the Tribunals when they exercise their powers under the Statute. No doubt, in appropriate cases, the Courts may and must exercise such powers, however, if the inordinate delay on the part of the petitioner, applicant or appellant is not satisfactorily explained, the Court shall decline to intervene and grant any relief to such a person by exercising the jurisdiction vested in it.

33. As laid down by the Hon'ble Apex Court in the case of Shiv Dass vs Union Of India and others (2007) 9 SCC 274), negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party, and in such circumstances writ petition has to be dismissed.

34. In the aforesaid case, the Apex Court has reproduced the observations made by Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurd etc., (1874) 5 P.C. 221. I deem it appropriate to reproduce hereinbelow the said observations, which are thus:

"7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurd etc., (1874) 5 P.C. 221 at page 239 was approved by this Court in The Moon Mills Ltd. v. M.R. Meher, President, Industrial Court, Bombay and Ors. (AIR 1967 SC 1450) and Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati and Ors. (AIR 1969 SC 329), Sir Barnes had stated:

"Now the doctrine of laches in Courts of Equity is ot an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."

35. In the case of State of M.P. v. Nandlal Jaiswal ((1986) 4 SCC 566 ) also, it was laid down by the Honourable Apex Court that the Court shall not ordinarily assist tardy and the indolent or the acquiescent and the lethargic. The Honourable Supreme Court has further observed in the said matter that if there is inordinate delay on the part of the petitioner and such delay is not satisfactory explained, the Court may decline to intervene and grant relief in exercise of its power.

36. In the case of M.S. Mudhol And Anr. vs S.D. Halegkar And Ors. (1993 (3) SCC 591), the controversy before the Honourable Apex Court was relating to the eligibility of the first respondent therein to occupy the post of Principal of Delhi Kannada Senior Secondary School. It was the contention of the petitioners that respondent was lacking two essential qualifications and, as such, was not eligible to be appointed on the post of Headmaster. The High Court of Delhi had dismissed the petition on the ground of laches and hence the Special Leave Petition was filed before the Honourable Apex Court. The Honourable Apex Court did not interfere in the order passed by the High Court and consequently declined to interfere with the appointment of the first respondent mainly on the ground of delay and laches on the part of petitioners in approaching the Court and in taking objection to the appointment of respondent No.1 on the post of Principal of the College. The Honourable Apex Court dismissed the Special Leave Petition observing that it was not proper to disturb the appointment of the said respondent at the late stage when he has been discharging his functions continuously for over a long period of 9 years when the Court was moved and about 13 years when the petition was being heard by the Apex Court.

37. In the case of Gian Singh Mann Vs. High Court of Punjab and Haryana and another ( 1984 (4) SCC 266), the Honourable Apex Court dismissed the petition for delay and laches on the part of the petitioner in filing the petition. The writ petition was filed before the Honourable Apex Court about 11 years after the dates from which the promotions were claimed. The petitioner therein had taken a plea that he was making successive representations to the Department and that was the reason he did not file the petition at the earlier stage. The Honourable Apex Court rejected the plea so raised by the petitioner observing that making successive representations by the petitioner can hardly justify the inordinate delay of 11 years caused in filing the petition by the petitioner.

38. In the case of Vijay Kumar Kaul and others vs. Union of India and others (2012 AIR (SCW) 3277), the Honourable Apex Court has ruled that a litigant who invokes the jurisdiction of the Court for claiming seniority, it is obligatory on his part to come to the Court at the earliest or at least within a reasonable span of time. The Honourable Apex Court has further observed that the belated approach is impermissible as in the meantime interests of third parties gets ripened and further interference after enormous delay is likely to usher in a state of anarchy. The Honourable Apex Court has further observed that it is a matter of great significance that at one point of time the equity that existed in favour of one melts into total insignificance and paves the path of extinction with the passage of time.

39. In the case of Balwant Singh (Dead) v. Jagdish Singh and others (AIR 2010 SUPREME COURT 3043), the Hon'ble Apex Court has held that liberal approach in matters of condonation of delay and in construing the word "sufficient cause" does not mean doing injustice to opposite party. Time and again the Honourable Apex Court has ruled that though there may not be any limitation provided in the Statute for approaching the Court for redressal of any grievance under the said Statute, the aggrieved person has to ventillate his grievance and knock the doors of the Court within a reasonable period. Concept of reasonableness is explained by the Honourable Apex Court in the case of Balwant Singh (Dead) v. Jagdish Singh and others (cited supra). The Honourable Apex Court has said that,

"Even if the term `sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of `reasonableness' as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly."

40. In the case of Joint Collector Ranga Reddy District and another vs. D.Narsing Rao and others ((2015) 3 SCC 695), the Honourable Apex Court has reiterated that where no limitation period is prescribed under the Statute, powers should be exercised by the authorities / Courts within reasonable period.

41. In the instant case, as has been elaborately discussed by me, hereinabove, the cause of action for initiating an action by respondent no.3 had arisen in the year 1998, but he made a grievance about it for the first time in the year 2010 and approached the School Tribunal in 2011 i.e. after lapse of about 13 years. As noted earlier, the justification given by respondent no.3 for not approaching the appropriate authorities / Tribunal is not at all convincing. As noted earlier, mere filing of representations would not be an adequate explanation to take care of delay. In the circumstances, it appears to me that the School Tribunal has manifestly erred in considering the case of respondent no.3 after long lapse of time and without considering the relevant circumstances. Vide the impugned order, the School Tribunal has impliedly set aside the appointment of the petitioner on the post of Head Master after he has worked on the said post for long 9 years.

42. In view of the law laid down by the Honourable Apex Court in the case of Shiv Das Vs. Union of India and others (cited supra), the School Tribunal ought not have entertained the grievance of respondent no.3 and should not have passed the impugned order which has resulted in causing severe prejudice to the present petitioner. The School Tribunal has utterly failed in appreciating that when Respondent No.3 did not take any effective step and remained silent for about 13 years, he shall be deemed to have waived his right to be appointed on the post of Headmaster. There is every reason to believe that respondent no.3 had acquiesced the appointment of the petitioner on the post of Headmaster. Having regard to such conduct of respondent no.3 and in absence of any satisfactory explanation from respondent no.3 of the inordinate delay, the appeal filed by respondent no.3 ought to have been rejected by the School Tribunal solely on the ground of delay and laches.

43. The observations made by the School Tribunal in paragraph no.21 of the impugned judgment that since there was no seniority list published by respondent management, when the present petitioner was promoted to the post of Headmaster, is wholly erroneous and unsustainable. The Tribunal has failed in appreciating that the seniority lists published under the signature of the Headmaster of the School were throughout signed by respondent no.3 from the year 2000-2001 and onwards till 2009-2010 without raising any objection or lodging any protest about the correctness of the said seniority lists. Though an attempt has been made to bring on record that respondent no.3 was making representations during the said period complaining that his name has not been properly shown in the seniority lists, and his juniors are shown above him, the entire said evidence is not at all trustworthy and it appears that a concocted record has been prepared by respondent no.3 in that regard.

44. Shri Manohar Dhondibarao Patil, serving then as Deputy Education Officer, Zilla Parishad, Nanded, has filed affidavit in reply in both the Writ Petitions on behalf of respondent no.1. In the said affidavit in reply, in paragraph no.14 thereof, it is expressly alleged that respondent no.3 has prepared a false and fabricated record showing that respondent no.3 has made 11 representations between 1992 to 2005. It is further averred that none of the said 11 representations was forwarded to the Education Office.

45. Moreover, merely because the seniority list was not published by the respondent management, in no case it can be a ground for not initiating an action by respondent for his alleged supersession. The moment a junior was appointed on the post of Headmaster, the cause of action had accrued for respondent no.3 to challenge the said promotion and file an appeal against the order whereby he was superseded. It is well settled that the dispute relating to seniority list can also be considered by the Tribunal as an incidental question while deciding the controversy in regards to the supersession. Thus, that could not have been a reason for not filing an appeal by respondent no.3 for the period of more than 13 years. Cause of action had accrued for respondent no.3 the moment a person junior to him was appointed on the post of Headmaster. Whether the seniority list was in existence at the relevant time, whether it was published by the respondent's school management or it was published under the signature of the Headmaster of the School, were all immaterial issues and the same cannot provide an excuse for respondent no.3 for not filing an appeal immediately or within a reasonable period thereafter. Respondent no.3 was well aware of the service-horoscopes of Abdul Rauf and the present petitioner. Thus, the alleged non existence of the seniority lists or non existence of the proper seniority lists according to law, could not have precluded respondent no.3 from filing an appeal. I reiterate that having regard to the inordinate delay committed by respondent no.3 in approaching the School Tribunal, to assert his right on the post of Headmaster, and when the delay has not at all been satisfactorily explained by respondent no.3 and when from the circumstances on record reasonable inference can be drawn that respondent no.3 had acquiesced the appointment of the present petitioner on the post of Headmaster by remaining silent for a long period, the School Tribunal ought to have dismissed the appeal filed by respondent no.3. The Tribunal has grossly erred in not doing so. The order passed by the Tribunal, therefore, cannot be sustained.

46. One more ground is pressed by the petitioners in both the writ petitions that Ardhapur Education society being a minority institution, provisions of the M.E.P.S.Act and the Rules do not apply to the recruitment of a Head of minority school and other persons not exceeding three, who are employed in such school and whose names are notified by the management to the Director or, as the case may be, the Deputy Director for this purpose. Learned Counsel for the petitioners in both the Writ Petitions, in support of their aforesaid contention have relied upon two Division Bench judgments of this Court; one in the case of Hakimsingh Ram Sumer Singh Yadav vs. Vardhman Sthanakwasi Jain Shrevak Sangh and others ( 2004 (4) Mh.L.J. 626) and the other in the case of Hussain Khan vs. Shah Babu education Society, Patur ( 2006 (4) Mh.L.J. 553).

47. In the case of Hakimsingh Ram Sumer Singh Yadav (cited supra), the petitioner had challenged the appointment of respondent no.3 in the said writ petition on the ground that in the list of seniority, he was senior to said respondent no.3 and, as such, was entitled to be appointed on the post of Headmaster. The Division Bench, while rejecting the said contention has held that the provisions of the M.E.P.S.Act do not apply to the recruitment of Head of minority school. In the said judgment, the Division Bench has referred to the earlier Division Bench judgment of this Court in the case of Gunwantlal K.Khamar Vs. State of Maharashtra and others (1993 (1) CLR 295). In the case of Gunwantlal K.Khamar the Division Bench has referred to number of judgments of the Hon'ble Supreme Court as well as the judgment of the Full Bench of the Kerala High Court and in the concluding paragraph has observed thus:

"The importance of the post of the Head of the institution has thus been reiterated in several decisions and considered as a right to administer the institution and protected by Article 30(1) of the Constitution. It is, therefore, not possible to accede to the submission of Shri Vashi that sub-section (2) of section 3 confers arbitrary powers upon the minority institutions. The apprehension that there is likelihood of misuse is not sufficient to strike down the sub-section as violative of Article 16. Indeed the departure from the general rule in respect of the recruitment of a head of minority school is protected by Article 30(1) of the Constitution. The contention that the right reserved to recruit head of the minority institution without complying with the provisions of the Act had no nexus to the object to be achieved by Article 30 cannot be accepted. The excellence of the education provided by an institution would depend directly on the excellence of the head of the school. Even while recruiting the head of a minority school, it is not permissible to bypass conditions of service pertaining to the minimum qualifications, but once the appointee is found to be eligible, then the choice cannot be questioned on the ground that the appointee was not a senior most teacher. To insist that only the senior most eligible teacher should be appointed to the post of a head of the school would amount to denial of right guaranteed by Article 30(10 of the Constitution. It was contended that sub-section (2) of section 3 of the Act would lead to oppression and discontentment amongst the senior teachers as the chance of promotion to the head of the school would be in jeopardy. A teacher entering service in a minority institution knows fully well that the right to be posted as head master does not depend upon the seniority but on the selection to be made by the management. In our judgment, the challenge to the validity of sub-section (2) of section 3 of the Act is without any merit and the appeal must fail."

48. The principles as laid down in the case of Gunwantlal K.Khamar ( cited supra), are reiterated in the subsequent decision in the case of Hussain Khan vs. Shah Babu Education Society, Patur ( cited supra). The Division Bench, in the said case has held that,

"The scheme of appointment / promotion to the post of Head is composite in section 3(1) and 3(2) of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. Section 3(2) operates as a mandatory proviso in the nature of exception or a non obstante clause by virtue of language employed therein to the rule of law incorporated in section 3(1). Therefore, section 3 has to be read in entirety and as a complete scheme and not by intersecting these two sub-sections i.e. (1) and (2) therein. While on plain reading of section 3(1), it reveals that the rule of law as to the appointment to the post of Head is by seniority as a general rule of law. Section 3(2) provides that the rule of seniority shall not apply to the School run by the minority institution. "

In view of the law laid down as above, it has to be held that since the recruitment to the post of Headmaster in the minority institution is excluded from the purview of the M.E.P.S.Act in view of the protection granted under Article 30(2) of the Constitution, the appointment of the petitioner was not liable to be challenged by respondent no.3. The School Tribunal has committed an error in impliedly setting aside the order of appointment of the petitioner on the post of Headmaster by directing the appointment of respondent no.3 on the said post.

49. In Writ Petition No.7246/2012 the copy of the resolution passed in the meeting of the Education society held on 23rd December, 2002, is placed on record. In the said meeting vide Resolution No.3 it was unanimously resolved to appoint the present petitioner on the post of Headmaster of the School. The contents of the Resolution in that regard reveal that the subject of appointment of the present petitioner on the post of Headmaster of the School was thoroughly discussed in the said meeting and considering the merits of the petitioner and his administrative capacity, a decision was taken to appoint the petitioner on the post of Headmaster. The material on record further reveal that the appointment so made in pursuance to the aforesaid Resolution was duly approved by the Education Department in the year 2003 itself and respondent No.3 did not challenge the same till the year 2011. Under Section 3(2) of the M.E.P.S.Act, it was well within the discretion of the management of the minority institution to appoint a person of their confidence on the post of Headmaster of the School and the provisions in the M.E.P.S.Act and the Rules as about the seniority, etc. were not applicable for the appointment of the Head of the minority school. It is thus evident that the appointment of respondent no.3 was not liable to be challenged on the ground of seniority.

50. Admittedly, in the appeal before the School Tribunal no such plea was raised by the School management that it is a minority school and, as such, the provisions of the M.E.P.S. Act, in so far as the appointment of the head of the school is concerned, are not applicable. The material on record reveals that in the appeal before the School Tribunal, the school management has supported respondent no.3. However, the plea so raised in the Writ Petition being a legal plea can very well be considered though the same was not raised before the School Tribunal. Respondent no.4 has not disputed that the Ardhapur Education Society is a minority institution. However, it is the contention of respondent no.4 that in order to claim the privileges being a minority institution, the names are required to be sent to the Deputy Director of Education and his approval is required to be obtained to claim such benefit. It is further stated that in absence of such approval being accorded by the Deputy Director, no institution can claim privilege in the matter of appointment to the post of Headmaster notwithstanding seniority. In view of he circular dated 21st September, 1982, placed on record by the writ petitioner in Writ Petition No.7246/2012, the contention so raised by respondent no.4 is liable to be rejected. As provided in the said circular, the requirement of notifying the names with the Deputy Director is applicable for the appointment of the three employees other than the head of the school. The aforesaid Government circular clearly lays down that the name of the Head of the School need not be notified.

51. In view of the specific provision under Section 3(2) of the M.E.P.S. Act and the clarification provided by the Government circular dated 21st of September, 1982, the appointment of the present petitioner was in fact not liable to be challenged or questioned on the ground of seniority. It was the prerogative of the management of the minority institution to appoint a person of their confidence on the post of Headmaster of the school. As stated earlier, vide Resolution passed in the meeting of the Education Society held on 23rd December, 2002, the petitioner was appointed on the post of Headmaster of the School. Nothing has been brought on record to show that the said Resolution has been subsequently cancelled or set aside. Thus, the appointment of the present petitioner was not liable to be challenged by respondent no.3 on the ground of seniority. The order passed by the School Tribunal therefore cannot be sustained.

52. In the result, the following order:

ORDER

1. Both the Writ Petitions are allowed.

2. The order passed by the School Tribunal, Latur, in Appeal No.14/2011, dated 4th of August, 2012, is quashed and set aside.

3. No order as to costs.

4. Pending Civil Applications, if any, stand disposed of.

5. Rule made absolute in above terms.


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