Bombay High Court
Ashok Daduji Dongare vs Adarsha Shikshan Pracharsabha Thr. ... on 3 April, 2018
Author: R.K. Deshpande
Bench: R.K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.1964 OF 2016
1. Ashok Daduji Dongare,
Aged about 55 years.
Occupation - Assistant Teacher,
R/o Hariram Bhoot Adarsha High School,
Pulgaon,
R/o Shiwaji Colony,
Panchadhara Road, Pulgaon,
Tah. Pulgaon, Dist. Wardha. ... Petitioner
Versus
1. Adarsha Shikshan Prachar Sabha,
through its Secretary,
Shri Prakash Chandra Bhoot,
Rayali Plots,
Jaswant Chowk, Amravati,
Tahsil and District - Amravati.
2. Head Master,
Hariram Bhoot Adarsha High School,
Pulgaon, Tahsil Pulgaon,
District Wardha.
3. Sunil Vasantrao Dumpalwar,
Asstt. Head Master,
Hariram Bhoot Adarsha High School,
Pulgaon,
Tahsil Pulgaon, District Wardha.
4. The Education Officer (Sec.),
Zilla Parishad, Wardha. ... Respondents
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Shri Prashant P. Thakare, Advocate for Petitioner.
Ms Smita S. Deshputre, Advocate for Respondent No.1.
Ms H.N. Jaipurkar, Assistant Government Pleader for Respondent
No.4.
CORAM : R.K. DESHPANDE, J.
DATE OF RESERVING THE JUDGMENT : 27th MARCH, 2018
DATE OF PRONOUNCING THE JUDGMENT : 3rd APRIL, 2018
JUDGMENT :
1. Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.
2. The controversy involved in the present petition pertains to inter se seniority between the petitioner - Ashok Daduji Dongare and the respondent No.3 - Sunil Vasantrao Dumpalwar in the post of Assistant Teacher in a Private School, governed by the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules framed thereunder (for short, "the MEPS Act" and "the MEPS Rules"). ::: Uploaded on - 03/04/2018 ::: Downloaded on - 04/04/2018 01:41:51 ::: 3
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3. The facts relating to the case are as under :
(I) The petitioner was initially appointed as Assistant Teacher on 16-7-1982, and at that time, he was possessing the qualifications of H.S.C. and D.Ed. According to the Management, the appointment of the petitioner was in Category 'E' of the Teachers under Schedule 'F' of the MEPS Rules, whereas the stand of the Education Officer, competent to determine the seniority, is that the appointment of the petitioner was in Category 'D'. The petitioner improved his qualifications by obtaining a bachelor's degree in Arts in the year 1986, and a bachelor's degree in Education in the year 1993. He was promoted on 1-8-1991 in the category of Graduate Teachers, and on 1-8-2000 as Assistant Teacher in the High School. The petitioner has retired from service from the month of October, 2017.
(II) The respondent No.3 was appointed as Assistant Teacher on 1-7-1987 in Category 'C' of Teachers under Schedule-F of the MEPS Rules, and at that time, he was possessing the qualifications of B.Sc. And B.Ed. - obtained in the year 1985 and 1987 ::: Uploaded on - 03/04/2018 ::: Downloaded on - 04/04/2018 01:41:51 ::: 4 wp1964.16.odt respectively. The respondent No.3 was promoted to the post of Supervisor on 1-7-2009 and thereafter as Assistant Head Master on 1-8-2010, and as Head Master on 1-5-2012.
(III) The petitioner filed S.T.C. Appeal No.15 of 2011 under Section 9 of the MEPS Act challenging the promotion of the respondent No.3 to the post of Assistant Head Master with effect from 1-8-2010 on the ground that the petitioner was senior to the respondent No.3 in service, and in supersession of the claim of the petitioner, the Management appointed the respondent No.3 to the post of Assistant Head Master. The School Tribunal, by its judgment and order dated 14-8-2014, has dismissed the appeal, holding that on the date of his appointment on 1-7-1987 the respondent No.3 was in Category 'C' of Teachers under Schedule 'F' of the MEPS Rules and rightly shown as senior to the petitioner.
This is the subject-matter of challenge in this petition.
4. The stand of the Management in para 14 of its written statement before the School Tribunal is reproduced below : ::: Uploaded on - 03/04/2018 ::: Downloaded on - 04/04/2018 01:41:51 ::: 5
wp1964.16.odt "14. That, the appellant has been appointed in the middle school in the year 1982 as an Assistant Teacher as he was having a qualification of HSC, D.Ed. Accordingly, the appellant was in 'E' category at the time of his appointment. However, the respondent No.3 who was and is having qualification B.Sc. B.Ed. appointed as an Assistant Teacher in the year 1987 in the High School. Thus, at the time of appointment the respondent No.3 came into 'C' category. That, the appellant has completed his graduation in Arts in the year 1986. Therefore, he came into 'D' category in the year 1986. That, after getting qualification of degree in education in summer 1993, the appellant came into 'C' category. Thus, since 01.09.1993 the appellant came into 'C' category looking to his qualification.
However, the seniority list which was prepared in the year 1992-93 according to the date of appointment of employees of the school by the management. This seniority list is not according to rules prescribed under M.E.P.S. Act and Rules 1981. However, the present appellant by taking undue advantage of this list time to time put his objection to the seniority list which was prepared by the management according to law as per its category."
5. The question of qualifications for appointment and determination of seniority of the Assistant Teachers in Private ::: Uploaded on - 03/04/2018 ::: Downloaded on - 04/04/2018 01:41:51 ::: 6 wp1964.16.odt Schools for the purposes of promotion to the post of Head Master is governed by Rules 3 and 6 read with Schedule 'B', and Rule 12 read with Schedule 'F' under the MEPS Rules. Schedule 'F' divides Assistant Teachers in Categories 'C' to 'H' on the basis of their qualifications. These categories represent the ladder of seniority and are mentioned in descending order. All these provisions are considered by the Apex Court in the case of Viman Vaman Awale v. Gangadhar Makhriya Charitable Trust and others, reported in (2014) 13 SCC 219. It was a case where the appellant and the respondent No.4 before the Apex Court were appointed as Assistant Teachers in Category 'D' under Schedule 'F'. The appellant joined the service on 24-8-1979, whereas the respondent No.4 joined the same post in the same School on 1-9-1980. At the time of joining, the appellant had not completed her graduation, though she fulfilled the requisite qualifications for appointment as Assistant Teacher. She completed her B.A. in the year 1984, and B.Ed. on 20-5-1986. She also improved her qualification of M.A. in the year 1997. The respondent No.4 was already B.A. at the time of joining the service as Assistant Teacher and he did B.Ed. on 1-11-1984. The School Tribunal as well as the High Court accepted the position that the respondent No.4 having obtained B.Ed. ::: Uploaded on - 03/04/2018 ::: Downloaded on - 04/04/2018 01:41:51 ::: 7
wp1964.16.odt qualification prior in point of time than the appellant, was senior to the appellant, as the seniority is to be counted from the date of acquisition of training qualification. The Apex Court set aside the decision of the High Court.
6. In para 22 of the decision in Viman Vaman Awale's case, it is held as under :
"22. That apart, we find that in the case at hand there is a specific rule, namely, Rule 12 of the Rules, which deals with seniority. The clear and unambiguous criterion for determining seniority is the continuous officiation counted from the date of acquiring the educational qualification as prescribed under Schedule 'B'. It is stated at the cost of repetition that since the appellant was holding the requisite qualifications i.e. DEd for appointment to the post of Assistant Teacher in Primary School as prescribed under Schedule 'B' to the Rules, her seniority was to be counted on the basis of continuous officiation. Since she joined the post of Assistant Teacher on 24-8-1979 and Respondent 4 came to be appointed subsequently i.e. on 1-9-1980. The appellant would naturally be senior to Respondent 4."
The Court holds that the clear and unambiguous criteria ::: Uploaded on - 03/04/2018 ::: Downloaded on - 04/04/2018 01:41:51 ::: 8 wp1964.16.odt for determining seniority is the continuous officiation counted from the date of acquiring the educational qualification, as prescribed under Schedule 'B'. It is held that since the appellant was holding the requisite qualification of D.Ed. for appointment to the post of Assistant Teacher in Primary School, as prescribed in Schedule 'B' to the Rules, her seniority was to be counted on the basis of continuous officiation in the post of Assistant Teacher from 24-8-1979. The respondent No.4 was appointed subsequently on 1-9-1980 and, therefore, the appellant would naturally be senior to the respondent No.4.
7. The criteria for determining seniority is the continuous officiation in the category of appointment counted from the date of acquiring the educational qualification, as prescribed under Schedule 'B', as laid down by the Apex Court, is required to be applied and followed. Before applying this principle, the Court has to answer the questions - (i) In which categories of Assistant Teachers 'C' to 'H' under Schedule 'F', the initial appointment was made?, and (ii) The date of acquiring the qualification mentioned in Schedule 'B' for appointment in such category. If an Assistant Teacher was possessing the qualifications for appointment specified ::: Uploaded on - 03/04/2018 ::: Downloaded on - 04/04/2018 01:41:51 ::: 9 wp1964.16.odt in Schedule 'B' on the date of appointment, his seniority is to be counted from the date of his appointment in the category of his initial appointment. If the essential qualifications in terms of Schedule 'B' are acquired after the appointment, then the seniority is to be counted from the date of acquisition of such qualifications. There has to be a common category-wise seniority of the Assistant Teachers prepared on the basis of the principle laid down by the Apex Court. There cannot be different principles for counting seniority in different categories of Assistant Teachers 'C' to 'H' in Schedule 'F' of the Rules.
8. In the present case, the petitioner was qualified for being appointed to the post of Assistant Teacher either in Category 'D' or Category 'E' on the date of his initial appointment on 16-7-1982 and, therefore, his seniority has to be counted from the said date. Though the respondent No.3 was appointed in Category 'C' of Teachers under Schedule 'F', his appointment was on 1-7-1987, i.e. subsequent to the appointment of the petitioner, and though he was possessing the requisite qualifications for being appointed in Category 'C', he would not climb above the petitioner in the seniority list. The petitioner was obviously, therefore, senior to the ::: Uploaded on - 03/04/2018 ::: Downloaded on - 04/04/2018 01:41:51 ::: 10 wp1964.16.odt respondent No.3 in service, and the decision of the Tribunal holding otherwise along with such a decision taken by the Management or the Education Officer, cannot be sustained.
9. The reliance was placed upon the decision of the Division Bench of this Court delivered in Writ Petition No.6242 of 2017 [Rajendra s/o Bhuraji Masram v. State of Maharashtra and others] on 25-9-2017, and it being a short, is reproduced below :
" Judgment of Hon'ble Apex Court in the case of Viman Vaman Awale .vs. Gangadhar Makhriya Charitable Trust & others (Civil Appeal No.7699 of 2014 arising out of S.L.P. (Civil) No.29696/13) decided on 31.8.2014 has obviously no application because here seniority list to be prepared is of teachers falling in Category 'C'. Teachers cannot enter Category 'C' unless and until he is graduate and holds training qualification.
Contention that, therefore, date of acquiring B.Ed. Degree cannot be relevant for deciding seniority is erroneous.
No case is made out. Petition is rejected."::: Uploaded on - 03/04/2018 ::: Downloaded on - 04/04/2018 01:41:51 ::: 11
wp1964.16.odt The aforesaid case was dismissed in motion-hearing and it does not constitute a ratio. Be that as it may, the decision does not run contrary to the view which I have taken. What the Division Bench has said is probably in respect of two teachers, who were appointed in Category 'C', and probably it was not a case where one person was appointed in Category 'C' and the other person was appointed either in Category 'D' or Category 'E' under Schedule 'F' of the MEPS Rules. In this background, the Court has rejected the contention that the date of acquiring B.Ed. degree cannot be relevant for deciding seniority and, therefore, the said decision does not run contrary to what has been held in the present case.
10. In the result, this petition is allowed. It is declared that the petitioner was senior to the respondent No.3 and was entitled to be promoted to the post of Assistant Head Master with effect from 1-8-2010, and consequently to the post of Head Master on 1-5-2012. Since the petitioner has retired from service, the promotion granted to the respondent No.3 is notionally set aside. However, there shall be no recovery of payment, if any, made in excess from the respondent No.3. The petitioner would be entitled to the notional benefit and ultimate fixation of pension on the post ::: Uploaded on - 03/04/2018 ::: Downloaded on - 04/04/2018 01:41:51 ::: 12 wp1964.16.odt of Assistant Head Master from 1-8-2010, and on the post of Head Master from 1-5-2012. The petitioner would not be entitled to any arrears, though retiral benefits shall be calculated accordingly.
11. Rule is made absolute in the aforesaid terms. There shall be no order as to costs.
JUDGE.
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