Bombay High Court
R/O Kalika Nagar vs Nutan Mahila Sarvodaya Balvikas on 11 December, 2008
Author: B.R. Gavai
Bench: B.R. Gavai
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.1572 OF 2003
Alka Rameshrao Patil
R/o Kalika Nagar, Pachora
Dist. Jalgaon.
.... PETITIONER.
VERSUS
01-
Nutan Mahila Sarvodaya Balvikas
Sanstha, Pachora, Through its
Secretary.
02- Education Officer [Secondary]
Zilla Parishad, Jalgaon.
03- Minakshi Kashinath Baviskar
R/o C/o Nirmalatai Tawre
Kanya Madhyamik Vidyalaya
Pachora.
.... RESPONDENTS
RESPONDENT
...
Shri M.S.Deshmukh, Advocate for the petitioner
Shri P.R.Deshmukh, Advocate for Respondent no.1
Shri V.H.Dighe, AGP for the State.
Shri S.R.Barlinge, Advocate for respondent no.3
...
CORAM: B.R. GAVAI, J.
DATE : 11TH DEC., 2008.
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JUDGMENT:
01- By way of present petition, the petitioner challenges the judgment and order dated 07th April 2003 in JAL-50/97 passed by the learned Presiding Officer, School Tribunal, Nashik, thereby allowing the appeal filed by the respondent no.3.
02- Both
petitioner and respondent no.3 were
appointed as Assistant Teacher in the Dalit Mitra
Sau. Nirmalatai Dattatraya Tawre Kanya Madhyamik
Vidyalaya at Pachora [herein after referred to as
the "said school" for the sake of brevity] which
is run by the respondent no.1 Society.
03- It was the contention of respondent no.3 that though she was senior to the petitioner, the Management in collusion with the petitioner, had manipulated the record and shown that the petitioner was appointed as Head Mistress in June 1993. It was the contention of the respondent no.3 that the respondent no.2 Education Officer had illegally granted approval to the appointment ::: Downloaded on - 09/06/2013 14:08:29 ::: 3 of the petitioner.
04- It was the case of the petitioner that before joining the said school run by the respondent management, she was working with one Jagruti Vidyalaya, Pachora from 12-06-1986 till 11-06-1988. It was her case that during the academic year 1988-1989 she had completed her B.Ed. with prior permission of the Management and thereafter she ig again worked in the said school from 14-06-1989 to 13-06-1991 and thereafter she joined the said school run by the respondent no.1 on 05-07-1991. It was further the case of the petitioner that the petitioner was duly qualified to be appointed as Head Mistress.
05- The learned Tribunal vide the order impugned,allowed the appeal of the respondent no.3 holding that since the present petitioner did not have B.Ed. qualification till 1989, she was not trained teacher. The learned Tribunal further held that the appointment of the petitioner from 05-07-1991 was required to be considered as fresh one. The learned Tribunal held that only from ::: Downloaded on - 09/06/2013 14:08:29 ::: 4 12-06-1989 she was trained Assistant Teacher and therefore it cannot be said that she completes five years experience to qualify to be appointed as Head Mistress. The learned Tribunal further held that there was a break in service of the petitioner from 13-06-1991 to 08-07-1991. The break was not condoned and as such the petitioner was not entitled to be appointed as Head Mistress.
06- Shri Deshmukh learned counsel appearing on behalf of the petitioner submits that the learned Tribunal has grossly erred in allowing the appeal.
He submits that taking into consideration the fact that the petitioner had worked for four years in earlier schools, it can clearly be seen that on the date on which the petitioner was appointed as Head Mistress, she duly completed the requirement under Rule 3 of the Maharashtra Employees of Private Schools [ Conditions of Service] Regulation Act [hereinafter referred to as the "Act"]. He further submits that on the date of appointment of the petitioner, the respondent no.3 was not qualified. He further submits that the learned Tribunal has grossly erred in allowing the appeal of the respondent no.3 on the ground that ::: Downloaded on - 09/06/2013 14:08:29 ::: 5 the petitioner did not complet five years service and the break in her service was not condoned.
07- As against this, Shri Barlinge, learned counsel appearing on behalf of respondent no.3 on the contrary submits that the appointment of petitioner is totally in disregard to the provision of Rule 3 of the Act. He submits that if Sub Rule 2 of Rule 3 of the Act if perused in proper perspective, it would reveal that a junior person cannot be promoted unless the person eligible relinquishes his claim for the post of Head. He submits that since the petitioner was not holding the necessary qualification as mentioned in Clause [b] of Sub Rule 1 of Rule 3 of the Act, unless the Deputy Director, relaxes the requirement, the appointment could not have been made.
08- Shri Barlinge further submits that in so far as the case regarding the petitioner not being promoted but selected as Head Mistress is concerned, the reliance on the advertisement is of ::: Downloaded on - 09/06/2013 14:08:29 ::: 6 not much assistance. He submits that the advertisement which is required to be published, is to be published with the prior permission of the Deputy Director. He submits that since admittedly the advertisement is not published with the prior permission of the Deputy Director, the advertisement is not of much assistance to the case of the petitioner.
09- The learned counsel for the respondent no.3 relies on the judgment of this Court in the cases of;
01- Bhikku Mahapanth Vs. Deputy Director of
Education, Nagpur, reported in 2006 [3]
Mh.L.J. 599,
599
02- Tara w/o Ramesh Tupkar Vs. Pramod Shikshan
Sansthan and others, reported in 2000 [2]
Mh.L.J.798
03- Sukhdeo Ragho Deore Vs. Chairman Gram
Shikshan Samiti Umrane, Dist. Nashik and
others reported in 2002 [1] Mh.L.J. 885
04- Malati Appu Pachore Vs. State of
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Maharashtra & ors. reported in Bom. C.R.
551.
551
05- Umesh Balkrishna Vispute Vs. The State of
Maharashtra, reported in 2000 [4] Mh.L.J.
564
10- For considering the controversy in the
petition it will be necessary to refer to Rule 3
of the Act which reads thus-
3. Qualification and appointment of
Head - [1] A person to be appointed as
the Head -
[a][i] of a primary school having an enrolment
of students above 200 or having
Standards I to VII shall be the senior most trained teacher who has put in not less than five years' service; and [ii] of any other primary school shall be the senior most teacher in the school;
[b] Of a secondary school including night school or a Junior College of Education shall be a graduate possessing Bachelor's degree in teaching or education of a statutory University or any other qualification recognised by Government as equivalent thereto and possessing not less than five years' total full-time teaching experience after graduation in a secondary school or a Junior college of Education out of ::: Downloaded on - 09/06/2013 14:08:29 ::: 8 which at least two years' experience shall be after acquiring Bachelor's degree in teaching or education:
Provided that, in the case of a person to be appointed as the Head of a night secondary school -
[i] He shall not be the one who is holding the post of the Head or Assistant Head of a day school, and [ii] The experience laid down in clause [b] of sub rule [1] may be as a part-time teacher.
[2] In the case of appointment to the post of Head of a secondary school including night school or a Junior College of Education if there is no person with the teaching experience mentioned in Clause [b] of sub-rule [1] available on the staff of the school or if the qualified persons, though available and eligible, relinquish their claims for the post of Head and if a Management desires to appoint a person, from the teaching staff of the school who does not possess the requisite teaching experience mentioned in clause [b] of sub rule [1], it shall apply to the Deputy Director for relaxing the requirement. The Deputy Director may, after recording reasons in writing, grant or refuse such relaxation. In such cases, the appointment shall not be made without obtaining the previous approval of the Deputy Director.
Note: In the case of a graduate teacher already in service in a secondary school or Junior college of Education for more than fifteen years on the 1st June 1963, the Deputy Director shall relax the requisite qualifications for appointment of such teacher as a Head.::: Downloaded on - 09/06/2013 14:08:29 ::: 9
[3] The management of a school including a night school shall fill up the post of the Head by appointing the seniormost member of the teaching staff [in accordance with the guide-lines laid down in Schedule "F" from amongst those employed in a school [if it is the only school run by the management] or schools [if there are more than one school {excluding nigh school} conducted by it] who fulfils the conditions laid down in sub-rule [1] and who has a satisfactory record of service.
[Explanation - For the purpose of this rule, the Management shall communicate any occurrence of vacancy of the Head to the senior-most qualified teacher having satisfactory record of service and ask him to submit his willingness for appointment to the post within a period of fifteen days from the date of receipt of the communication. the claim of the senior-most qualified teacher having satisfactory record of service, for appointment to the post of Head, may be disregarded only if he, of his own free will, gives a statement in writing to the Education Officer that he has voluntarily relinquished his claim to the post. This shall not debar him from being considered for subsequent vacancies as and when they occur. Such a teacher shall record his statement in his own handwriting before the Education Officer within a period of fifteen days from the date of receipt of communication as aforesaid and the Education Officer shall endorse it as having been recorded in his presence. A statement once duly made by such teacher before the Education Officer shall not be allowed to be withdrawn. In the event of the teacher failing to submit his willingness for appointment to the ::: Downloaded on - 09/06/2013 14:08:29 ::: 10 post or to give a statement to the Education Officer within a period of fifteen days, it shall be assumed that he has relinquished his claim on the said post;
Provided that, where an unforeseen vacancy to Head occurs owing to reasons like resignation without giving due notice, death, termination of services, reduction in rank or otherwise, the senior-most teacher desirous of relinquishing his claim for appointment to the post shall, within seven days from the date of receipt of a communication by him of occurrence of such vacancy from the Management, communicate to the Management in writing about the same so as to enable the Management to finalise the appointment. Such a teacher shall thereafter as soon as possible and in any case within a period of fifteen days from the date of receipt of the communication as aforesaid record his final statement before the Education Officer to enable him to approve the appointment, or as the case may be, to disapprove the appointment if such a teacher states in his statement before the Education officer that the communication sent by him in writing to the Management was obtained from him by the Management under duress. In the event of the teacher failing to record a final statement within a period of fifteen days as aforesaid it shall be assumed that he has relinquished his claim on the said post;] [4] In the case of a girls' secondary school or Junior college of Education for Women, the senior most lady teacher fulfilling the conditions laid down in clause [b] of sub-rule [1] and having satisfactory record of service, shall be appointed as the Head of that school ::: Downloaded on - 09/06/2013 14:08:29 ::: 11 irrespective of her seniority vis-a-vis the male teachers.
[5] [a] If a suitable reacher possessing qualifications laid down in the foregoing provisions of this rule is not available to fill in the post of a Head of a school, the Management shall, with the prior permission of the Education Officer in case of a primary schools, or of the Deputy Director in the case of other schools, advertise the post and select and appoint a person possessing the requisite qualification sand experience.
[b] The application for permission to advertise the post shall be made at least two months in advance. The period of two months may be relaxed by the Education Officer or the Deputy Director, as the case may be, in the case of new schools or in emergency cases wherein the vacancy could not have been anticipated. The advertisement shall be given after the permission of the Deputy Director or the Education Officer is received. Management shall ensure that the advertisement appears in at least two daily newspapers, one of which shall be a marathi news paper, having wide circulation in the region wherein the primary schools or secondary schools or Junior college of Education is located.
[6] The Education Officer or the Deputy Director shall direct the management to cancel the appointment made without following the procedure laid down in this rule.
Explanation - for the purpose of this rule the record of service shall be deemed to be satisfactory if there is ::: Downloaded on - 09/06/2013 14:08:29 ::: 12 nothing adverse in the annual confidential reports of the teacher concerned during the previous five years. Adverse remarks not duly communicated in writing to the teacher concerned shall be disregarded for this purpose.
11- Perusal of Sub Rule [1] [b] of Rule 3 would show that for being appointed as a Head of secondary school a person must possess following qualification;
01- A bachelor's degree in teaching or education of a statutory University or any other qualification recognized by Government as equivalent thereto 02- possessing not less than five years' total full-time teaching experience after graduation in a secondary school or junior college of Education.
03- Two years experience after acquiring bachelor's degree in teaching or education.::: Downloaded on - 09/06/2013 14:08:29 ::: 13
12- In this background it will be necessary to compare the qualifications of the petitioner viz-a-viz the respondent.
13- The petitioner was appointed as a full-time teacher in Jagruti Vidyalaya, Pachora after passing M.A. Degree on 12-0601986. She has worked in the said school from 12-06-1986 to 11-06-1988. During the academic year 1988-1989 the petitioner was prosecuting her B.Ed. studies with prior permission of the Management and secured B.Ed. Degree in the month of April 1989.
After completion of B.Ed. she continued in the said Jagruti Vidayalaya from 14th June 1989 to 13th June 1991. The services of the petitioner in the Jagruti Vidayalaya from 12th June 1986 to ending of the academic year 1991 have been duly approved by the competent authority. The petitioner was appointed by the respondent no.1 in the said school run by it with effect from 08th July 1991. The petitioner was also appointed as In Charge Head Mistress with effect from the said date. The petitioner continued to work as an Assistant Teacher and In Charge Head Mistress till ::: Downloaded on - 09/06/2013 14:08:30 ::: 14 14th July 1993 i.e., the date on which she was appointed as regular Head Mistress.
14- As against this the respondent no.3 on completion of her B.Ed. claims to have been appointed on 14th August 1990 with effect from 15th August 1990. Though there is some dispute as to whether the respondent no.3 was discontinued on 30th April 1991, since the respondent no.3 has been continued for the academic year 1991-1992, for the purpose of the present petition, it is not necessary to go into said dispute and it is being assumed that the respondent no.3 is in continuous service from 14th August 1990.
15- It could thus be seen that on 14th June 1993 the petitioner had a teaching experience of six years. Out of the said experience, the experience after obtaining B.Ed. Degree is of three years. As such the petitioner was duly qualified to be appointed as Head Mistress on the said date.
16- As against this, assuming that the appointment of the respondent no.3 is continuous ::: Downloaded on - 09/06/2013 14:08:30 ::: 15 with effect from 14th August 1990, she had a teaching experience of two years and nine months.
As could be seen from perusal of Sub Rule [1][b] of Rule 3 a person to be eligible to be appointed as Head is required to have total five years teaching experience after graduation out of which two years is required to be after acquiring Bachelor's Degree in teaching or education.
Admittedly the respondent no.3 did not have five years total teaching experience at the relevant time.
17- I am of the considered view that the aspect of the continuation or break in service on which the learned Tribunal has given much stress is also not of much importance in asmuch as what is required under the aforesaid Rule 3[1][b] of the Act is a total full-time teaching experience after graduation of five years out of which two years is required to be after acquiring Bachelor's degree.
The Rule does not provide that the said experience has to be continuous. As such I find that if there is any break or not, would not be of much relevance while computing the total experience.::: Downloaded on - 09/06/2013 14:08:30 ::: 16
18- In so far as the reliance placed by the learned counsel for the respondent on Sub Rule [2] of Rule 3 of Act regarding obtaining the prior permission of the Deputy Director for relaxing the requirement is concerned, the same would not be of much relevance in asmuch as the said application for relaxation would be required only when there is no person with the teaching experience mentioned in Clause [b] of Sub Rule [1] of Rule 3 of the Act, available on the staff of the school or if the qualified person though available and eligible relinquishes his claim for the post of Head. As already held hereinabove in my considered view, the petitioner was answering the requirement of Sub Rule [1][b] of Rule 3 and as such the said Rule shall not at all applicable to the facts of the present case.
19- The reliance placed on the provision of Sub Rule [5] [a] and [b] of Rule 3, also for the same reason would not be applicable in the present case in asmuch as the said requirement would also come into play when a suitable teacher possessing the qualification is not available to fill up the post.::: Downloaded on - 09/06/2013 14:08:30 ::: 17
20- Since I have taken a view that the petitioner was eligible for being appointed as a Head on 14th June 1993 and since she was from the teaching staff of the said school, there was no requirement to advertise the post and as such the question of prior permission or ex-post-facto sanction which has been in fact granted by the Deputy Director on 02nd July 1997 would not be of much relevance for the adjudication of the present petition.
21- One more fact that requires to be stated is that the petitioner has made a categorical statement in para no.9 of the petition that in the academic year 1993 the respondent no.1 had prepared seniority list and it was circulated amongst the teachers. However, the respondent no.3 did not object to the said seniority list, though the petitioner was shown above her. Said fact has not been controverted to by the respondent no.3, though an affidavit in reply has been filed.
22- In so far as reliance placed on the case of ::: Downloaded on - 09/06/2013 14:08:30 ::: 18 Bhikku Mahapanth Vs. Deputy Director of Education, Nagpur [cited supra] is concerned it would be seen from the facts of the said case that the person who was appointed as Head Master was not from the establishment of the school. The person who was appointed was from some other school. The Division Bench of this Court has held that when no person with the teaching experience is available in the school as required under Clause [b] of Rule 3[1], it was incumbent upon the Management to seek prior approval from the Deputy Director as required under Sub Rule 2 & 5 of said Rule. Admittedly in the present case, the petitioner was working on the establishment of the school and as such the provisions of Sub Rule 2 & 5 as held in above case were not applicable to the facts of the present case.
23- In so far as the judgment of the Division Bench in the case of Umesh Balkrishna Vispute Vs. State of Maharashtra [cited supra] is concerned it has been held that while deciding the issue of supersession, the dispute regarding seniority list can also be gone into. No doubt that while considering the question of supersession, the ::: Downloaded on - 09/06/2013 14:08:30 ::: 19 learned Tribunal would be entitled to go into the question of inter-se seniority, but however in the facts of the present case, the dispute is not regarding seniority but the qualification of the petitioner or the respondent no.3 on the relevant date to hold the office of the Head Mistress. As such the reliance placed on the judgment of Umesh Balkrishna Vispute Vs. State of Maharashtra [ cited supra] is also of not much assistance to the petitioner.
24- In so far as the judgment in the case of Tara w/o Ramesh Tupkar Vs. Pramod Shikshan Sansthan and others, [cited supra] is concerned the said judgment instead of supporting the case of the respondent, supports the case of the petitioner. The Division Bench in the said case has held that Sub Rule [3] of Rule 3 of the Act contemplates that the Management is entitled to appoint only the senior most staff. It has further been held that in case, this option is not available, i.e., if there is no qualified or eligible candidates available amongst the member of the teaching staff, then only the Management can take resort to Sub Rule [5][a] of the said ::: Downloaded on - 09/06/2013 14:08:30 ::: 20 Rule. A bare perusal of Sub Rule [3] of the Act would reveal that the post of the Head is required to be filled by appointing the senior most member of the teaching staff who fulfils the conditions laid down in Sub Rule [1] of Rule 3 and who has satisfactory record of service. As already discussed hereinabove, the respondent no.3 does not answer the requirement of Sub Rule [1] [b] of Rule 3 of the Act and it is only the petitioner who qualifies in accordance with Sub Rule [1][b] of Rule 3 of the Act.
25- The reliance on the judgment of the Division Bench in case of Sukhdeo Ragho Deore Vs. Chairman Gram Shikshan Samiti Umrane, Dist.
Nashik and others also would be of no assistance to the case of respondent no.3 in asmuch as she does not possess necessary qualification on the date of appointment of the petitioner.
26- In sofar as the judgment in case of Malati Appu Pachore Vs. State of Maharashtra & ors. is concerned the learned Single Judge of this Court on facts found that the petitioner therein had worked in the school from 1978-1980 and then from ::: Downloaded on - 09/06/2013 14:08:30 ::: 21 1984-1985. It was therefore found by this Court that on the date on which the respondent no.3 therein was appointed as Head Mistress, the petitioner had already completed five years service in the school in question and as such in view of Sub Rule [4] of Rule 3 of the Act she was senior and as such entitled to be appointed as Head Mistress. Such is not the case here. On the relevant date, respondent no.3 does not complete the requisite experience of five years and as such is not entitled to be appointed as Head Mistress.
27- In that view of the matter I find that the learned Tribunal has erred in allowing the appeal.
The learned Tribunal has further erred in directing the appointment of respondent no.3 as Head Mistress on the ground that on the date on which the appeal is allowed she fulfils the necessary qualification. The learned Tribunal ignored in taking into consideration that the relevant date would be date of promotion and not the date of allowing the appeal.
28- In that view of the matter Rule is made absolute in terms of prayer clause [B].
::: Downloaded on - 09/06/2013 14:08:30 ::: 2229- At this stage, Shri Barlinge, learned counsel appearing on behalf of the respondent no.3 prays for stay of the order passed by this Court.
The prayer is vehemently opposed by the learned counsel for the petitioner.
30- When Rule was granted by this Court on 21st April 2003, this court had granted interim relief in terms of prayer clause [C], thereby granting stay to the order passed by the learned Tribunal.
Right from 2003, the petitioner was continuously working as Head Mistress. From the record, it appears that in the meantime, the petition came to be dismissed fro non-removal of office objection.
31- Noticing that the matter was dismissed for non-removal of office-objection, the respondent no.3 herein, immediately approached the management. The management accordingly on 16/09/2003, passed a resolution thereby resolving to appoint the respondent no.3 on the post of Head Mistress. Accordingly, the respondent no.3 was appointed on the post of Head Mistress on 16th September, 2003.
::: Downloaded on - 09/06/2013 14:08:30 ::: 2332 On being noticed, the petitioner immediately filed a Civil Application for restoration of the petition. The said Civil Application was allowed restoring the petition to its file. However, it was disputed as to who was, in fact, holding the charge of the office of the Head Master. The petitioner, so also, the respondent no.3, claimed to be working as Head Master. This situation created various complications, as a result of which, the salary of the staff working in the school also could not be sanctioned for a considerable length of time. As such, the Court was required to pass an order on 08th December 2008 thereby clarifying that the respondent Education Officer, should not withhold the salary of the staff of the school. This Court further clarified that the Education Officer would overlook whether the bills are signed by the petitioner or the respondent no.3. This Court further directed that the salary of the employees shall not be stalled on technical grounds.
33- It can thus be seen that the petitioner has been continuously working as Head Mistress right ::: Downloaded on - 09/06/2013 14:08:30 ::: 24 from 1993 and even after 2003 under the orders of the Court. Only on account of dismissal of the petition for default, the further complications arose. I, therefore, find that if the prayer of the respondent no.3 is granted, it would lead to further complications. In that view of the matter, the prayer for stay of the order passed today is rejected.
Date:11/12/2008.
ig [B.R.GAVAI]
JUDGE.
/aejaz/1208/
wp1572.03
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