Surendra Manohar Deshmukh vs Akola Education Society, Akola & Ors.

. Heard.

Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsels for the parties at the stage of admission.

By this petition, the petitioner challenges the order dated 07.02.2019 passed in Appeal No.34 of 2015 by the learned School Tribunal, Amravati, whereby the appeal filed by the present respondent No.5 – original appellant came to be allowed and Tribunal directed the Management to treat the original appellant as deemed to have been promoted as Headmaster on 01.04.2015 till the date of his superannuation. It further directed the respondents to take necessary entries of the said notional promotion and deemed date in the service book which will also be applicable for pensionary benefits as Headmaster. The Tribunal also directed the respondents to pay all the salary and other emolument difference/arrears to the original appellant as well as pensionary benefits as per the said order and directed the entire amount to be paid within three months from the date of impugned order.

Dr. Renuka Sirpurkar, learned counsel for the petitioner submits that as the petitioner possessed the qualification of B.Com and B.Ed and was appointed as an Assistant Teacher on 13.08.1990 by the respondents – Management. Whereas, the respondent No.5 was appointed on 29.08.1988, possessed the qualification of B.A., B.P.Ed. It is contended that the respondent No.5 was not qualified to be appointed as Headmaster, as he did not have qualification of B.A. and B.Ed. She further submits that Rule 3 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as, “MEPS Rules, 1981), prescribes qualification for the post of Headmaster. Therefore, although respondent No.5 was appointed prior to the petitioner, i.e., on 29.08.1988, he did not possess the required qualification for promotion. She further submits that respondent No.5 did not have any teaching experience. Although, this fact was specifically denied in a written statement, the learned School Tribunal recorded findings only to support the claim of respondent No.5 by referring to Rule 3 of the MEPS Rules, 1981.

She also submits that the Tribunal relied upon the judgment of this Court in in the matter of Laxman Khanderao Ekhande v. State of Maharashtra and Others, reported in 2007(1) Mh.L.J. 860. However, she points out that in that case, the appointments were admittedly made prior to the coming into force of the 1981 Rules, and therefore, the said judgment is not applicable to the present case. She further submits that the learned Tribunal relied upon a Government Resolution to hold that respondent No.5 was senior since he possessed a B.A. degree. However, the Rules and the Schedule appended thereto have not been amended, and hence, the Government Resolution cannot override the specific provisions of the Rules. As the Rules do not permit respondent No.5 to be promoted as Headmaster, the learned Tribunal erred in relying solely upon the Government Resolution while allowing the appeal.

Per contra, Mr. Rajesh S. Phadnaik, learned counsel for the respondent No.5 submits that the respondent No.5 – original appellant possessed the prescribed qualifications for promotion to the post of Headmaster. However, although the petitioner was junior to respondent No.5, he was promoted, and therefore, the petitioner was compelled to approach the learned School Tribunal. He further submits that in the appeal, respondent No.5 has specifically averred that in addition to his qualifications, he possessed teaching experience in economics and history and therefore, his case squarely falls within the scope of the Government Resolution. He also submits that this Court, in Writ Petition No.1121 of 2013, in the matter of Pandit s/o. Rajaram Wankhade vs. The State of Maharashtra and Others decided on 11.06.2019, has considered a similar set of facts, whereas the judgment of Laxman Khanderao Ekhande (supra) relied upon by the petitioner has been overruled.

I have considered the rival submissions advanced by both the parties. To decide the issue involved, it is necessary to mention Rule 3(1) of the MEPS Rules, 1981 :

It was the case of respondent No.5 before the learned School Tribunal that he possessed teaching experience in addition to possessing the qualification of B.P.Ed., and that he was senior to the petitioner. He was appointed in service on 29.08.1988. However, despite his seniority, the management appointed the petitioner as Headmaster. In addition, respondent No.5 had specifically averred in the appeal memo before the learned School Tribunal that he possessed teaching experience also. Upon perusal of the written statement filed on behalf of the petitioner, it reveals that there is no specific denial to that effect. The learned School Tribunal, which noted that respondent No.5 was senior to the petitioner, possessed the requisite qualification of B.A., B.P.Ed., and also had teaching experience. The learned Tribunal recorded findings that, considering the Government Resolution, respondent No.5 satisfied the essential conditions of Rule 3(b). Therefore, it held that the Management had wrongly denied him promotion, thereby causing injustice to respondent No.5. After considering the facts, as well as the material placed on record, the learned School Tribunal concluded that respondent No.5 was entitled to promotion.

Therefore, after considering the grounds of petition, averments of respective counsels and findings recorded by the learned Tribunal, I find no reason to interfere with the order dated 07.02.2019 passed in Appeal No.34 of 2015 by the learned School Tribunal, Amravati, under Article 227 of the Constitution. Hence, I proceed to pass the following order :

Rule is discharged accordingly.