Bombay High Court
Bharatiya Shikshan Mandal Through Its ... vs Shri Milind S/O Namdeorao Kamble And ... on 25 July, 2018
Author: Prasanna B. Varale
Bench: Prasanna B. Varale
1277.15wp
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR
WRIT PETITION NO.1277 OF 2015
1. Bharatiya Shikshan Mandal,
Through its Secretary,
C/o Pt. Bachharaj Vyas Vidyalaya,
Rajabaxa, Nagpur
2. Sau. Madhuri w/o Ramesh Sulekar,
Head Mistress, Navyug Vidyalaya,
Mahal, Nagpur ..PETITIONERS
VERSUS
1. Shri Milind s/o Namdeorao Kamble,
Aged: Major,
Occupation : Assistant Head Master,
R/o. C/o. Pt. Bachharaj Vyas Vidyalaya
and Junior College, Rajabaxa,
Nagpur
2. Education Officer (Secondary),
Zilla Parishad, Nagpur ..RESPONDENTS
Mr Mr A. D. Mohgaonkar and Mr R. R. Pimpalkhute, Advocates for
petitioners;
Mr D. Duvvuri, Advocate for respondent No.1;
Mrs A. R. Taiwade, A.G.P. for respondent No.2
CORAM: PRASANNA B. VARALE, J.
Reserved on: 1st October, 2016
Pronounced on: 25th July, 2018
ORDER:
Heard Mr Mohgaonkar, learned Counsel appearing with Mr Pimpalkhute, learned Counsel on behalf of the petitioners, Mr Duvvuri, learned Counsel appearing on behalf of respondent No.1 and Mrs. A. R. Taiwade, learned A.G.P. appearing on behalf of respondent No.2. ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 :::
1277.15wp (2)
2. Being aggrieved by the judgment and order dated 6 th February, 2015, passed by learned Presiding Officer, School Tribunal, Nagpur, in Appeal No. STN-109 of 2012, the petitioners are before this Court.
3. Petitioner No.1 is a Society and is active in the field of education and imparting education to students through schools and junior colleges. Petitioner No.2 is the senior most teacher, working with petitioner No.1 - society.
4. Mr Mohgaonkar, learned Counsel appearing on behalf of the petitioners submitted that petitioner No.1 - society is established in the year 1937 and registered under the Bombay Public Trust Act, 1950 and the Societies Registration Act, 1960. He further submitted that petitioner No.1
- society started the schools, namely, Navy Vidyalaya, Mahal area, Nagpur in the year 1937 and Pt. Bachharaj Vyas High School and Junior College in the year 1956. The petitioner - society also run schools, namely, Navyug Primary School, Mahal and Navyug Primary School, Rajabaxa in Nagpur city. It is further submitted by Mr Mohgaonkar, learned Counsel for petitioners that it is not in dispute that all the schools being run by petitioner No.1 - society are recognized and admitted to the grants of State of Maharashtra. He then submitted that the petitioner No.1 - society is running its schools by strictly applying the provisions of the Maharashtra Employees ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (3) of Private Schools (Conditions of Service) Regulation Act, 1977 and the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as "the MEPS Act and the Rules" for the sake of brevity). It is then submitted that insofar as the secondary school being run by petitioner No.1 - society is concerned, there are two posts of Head Master and one post of Assistant Head Master are sanctioned by the State of Maharashtra. It is then submitted that the promotions to these posts are effected by following provisions of Rule 3 (3) of the MEPS Act and the Rules and Schedule 'F' of the said Rules.
5. Mr Mohgaonkar, learned Counsel for petitioners then submitted that prior to 2002, there were two posts of Assistant Head Master and though no reservations could have been applied to these posts, the Education Officer under an assumption and upon erroneous presumption, directed petitioner No.1 to reserve one post for the candidate belonging to reserved category and at the instance of the Education Officer, respondent No.1 was promoted as a Assistant Head Master in the year 2002. He then submitted that in view of the judicial pronouncements by the judgment of the Full Bench of this Court, in the matter of New English High School Association, Nagpur Vs. Baldev s/o Fakira Ade & anr., reported in 2006 (6) Mh.L.J. 882, 24% reservation was prescribed and it was held by this Court that unless there are four sanctioned posts of Head Master or Assistant Head Master, the provisions of reservation shall not applied. He then submitted that in view ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (4) of subsequent judgment of this Court, 33% reservation was carved out for the posts of Head Master and Assistant Head Master but while doing so, this Court held that the pre-requisite in complying 33% reservation to the posts of Head Master or Assistant Head Master, the school must have three posts of Head Master or Assistant Head Master. It is then submitted that in the school run by the petitioner No.1 - society, only one post of Assistant Head Master is in existence.
6. Mr Mohgaonkar, learned Counsel for petitioners then submitted that being aggrieved by the promotion of respondent No.1 in view of the judicial pronouncements, some of the senior teachers approached the School Tribunal, Nagpur, by preferring an Appeal bearing STN No.41 of 2011. It is submitted that the learned Presiding Officer of the School Tribunal, Nagpur, was pleased to set aside the promotion granted to respondent No.1, by an order dated 2nd May, 2002. The judgment and order dated passed by the School Tribunal is challenged before this Court at the instance of respondent No.1 by filing Writ Petition No.2019 of 2009 and in view of interim order passed in the said writ petition, respondent No.1 is working as a Head Master in Pt. Bachhraj Vyas Vidyalaya.
7. Mr Mohgaonkar, learned Counsel then vehemently submitted that as per the prevailing staff position with petitioner No.1 - society, two posts of Head Master are available in the schools run by petitioner No.1. He then ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (5) submitted that in such a situation, no reservation of the post could have been made applicable for the post of Head Master and the post of Head Master is to be filled in on the basis of seniority maintained in the school by petitioner No.1 - society. He then by inviting my attention to the seniority list placed on record at Annexure No.1, submitted that as per the seniority list, the senior most teachers were appointed as Head Master/Head Mistress, namely, Mr D. S. Surve, Mrs. P. P. Deolwadkar, Mr. N. H. Kanhere, Mrs. S. M. Agnihotri, Mrs. M. R. Sulekar and presently Mrs A. A. Joshi are promoted as a Head Mistress. He then submitted that on earlier occasions when petitioner No.1 - society granted promotions to the senior most teachers and sought for approval from the Education Officer, the Education Officer refused to grant approval. Such approval was subject matter of the writ petitions filed in this Court and in most of such writ petitions filed by petitioner No.1 - society, respondent No.1 was a party and this Court, considering the judicial pronouncements, allowed the petitions filed by petitioner No.1 - society, thereby confirming the promotions granted to the senior most teachers of petitioner No.1 - society.
8. Mr Mohgaonkar, learned Counsel for the petitioners then submitted that in a common judgment and order dated 21st September, 2010, in Writ Petition Nos.3017/2010, and 2056/2010, this Court categorically held that all those senior most teachers, who are promoted by petitioner No.1 - society were senior to respondent No.1. It is then submitted that petitioner ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (6) No.2 was promoted being senior most teacher and when the proposal for approval was forwarded to the Education Officer, the Education Officer again refused to grant approval, as such, petitioner No.2 approached this Court by filing Writ Petition No.3511 of 2011. The said petition was also decided by this Court. Copy of the same is placed on record.
9. It is further submitted by Mr Mohgaonkar, learned Counsel for petitioners that respondent No.1 challenged the promotion of Mrs. P. P. Deolwadkar and Mrs S. M. Agnihotri, by preferring an appeal before the learned Presiding Officer, School Tribunal, Nagpur and the learned Presiding Officer of the School Tribunal, by judgment and order dated 13 th December, 2013, dismissed the said appeal filed by respondent No.1.
10. Mr Mohgaonkar, learned Counsel for petitioners then submitted that though respondent No.1 was time and again taking a stand that he ought to have been promoted being a candidate belonging to reserved category and though petitioner No.1 - society, by way of detailed reply opposed the contentions raised by respondent No.1 and though the very Presiding Officer, in earlier litigation, accepted the contentions of petitioner No.1 - society, in the subsequent appeal the Presiding Officer took a contrary stand and allowed the appeal by judgment and order dated 6 th February, 2015. He then submitted that the judgment and order passed by the Presiding Officer, which is on erroneous assumptions and presumptions, is unsustainable and as such, the same be quashed and set aside.
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1277.15wp (7)
11. Mr Mohgaonkar, learned Counsel for petitioners then submitted that an appeal bearing No. STN-36 of 2007 was filed by the senior most teachers against respondent No.1, challenging his appointment as Assistant Head Master and by relying on the Full Bench's judgment in the matter of New English High School Association (referred supra), it was submitted that the appointment order in favour of respondent No.1 as a Assistant Head Master is unsustainable. Learned Presiding Officer of School Tribunal allowed the appeal by an order dated 17th April, 2009. Respondent No.1, being aggrieved, preferred Writ Petition No.2019 of 2009 and the same is pending in this Court.
12. Mr Mohgaonkar, learned Counsel for petitioners then submitted that the appellants in Appeal No.36 of 2007, namely, Mr S. S. Borgaonkar and Mr D. S. Sarve stood retired at the time of effecting the promotions and the other appellant in the said appeal Mrs P. P. Deolwadkar, being senior most teacher was promoted and subsequently Mrs S. M. Agnihotri was promoted to the post of Head Mistress, being the senior most teachers. He then submitted that respondent No.1 raised objection before the Education Officer stating that he was already promoted to the post of Assistant Head Master and in view of the objection raised by him, the Education Officer refused to grant approval to the promotion of the teachers by petitioner No.1
- society to the post of Head Master.
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1277.15wp (8)
13. The action of the Education Officer refusing the grant of approval to the promotions of Mrs. Deolwadkar and other teachers was challenged by filing writ petition before this Court. He then submitted that respondent No.1 was party in the said writ petition filed at the instance of Mrs. Deolwadkar and the petitioner No.1 - society herein. My attention was invited to the order of the Division Bench of this Court, dated 21st September 2010. The copy of the order is placed on record at Annexure No.2. It may be useful to refer to certain observations of the Division Bench.
"3. In support of writ petitions, learned counsel for the petitioner in both the writ petitions argued that there are two posts of Head Mistress/Head Master available in the two schools run by the management. Respondent no.4 Milind Namdeorao Kamble is Assistant Head Master belonging to Scheduled Caste category. The claim for reservation for the post of Head Master/Head Mistress by the reserved category candidates is wholly untenable in the wake of Full Bench decision of this Court in New English High School Association v. Baldeo Fakira Aade - 2006(6) Mh.L.J. 882 wherein it has been held that there should be minimum four posts of Head Master available in order to have a reservation. According to the learned counsel for the petitioner, there are only two posts available and therefore the reservation will exceed the permissible limit. The counsel therefore argued that insistence of Education Officer to appoint respondent ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (9) no.4 as Head Master as Scheduled Caste candidate is wholly unjustified, as appointing him to the post of Head Master would amount to reservation above permissible limit and contrary to the law laid down by the Full Bench of this Court. The petitioner in W.P. No. 3017/10 and respondent no.6 in W.P. 2056/10 are admittedly senior to respondent no.4-Milind Namdeorao Kamble which is evident from the common seniority list placed on record and which fact is not dispute by anybody. The counsel for the petitioners therefore urged this Court to quash the communication impugned in these writ petitions."
5. Per contra, learned counsel for the respondents and in particular respondent no.4 in both the writ petitions opposed both the writ petitions and argued that there is amendment to the Rule regarding reservation, namely sub-rule (10)(b) of Rule 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 which provides for reservation total to the extent of 52% and consequently respondent no.4 being the only reserved category candidate from Scheduled Caste is required to be promoted to the post of Head Master. He then argued that respondent no.4 is admittedly working as Assistant Head Master and benefit of reservation must go to him though in the common seniority list he is not senior to the other two contestants."
14. On considering the rival contentions of the parties, the Division Bench was pleased to observe thus :-
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1277.15wp (10) "9. There is no dispute that respondent no.4 is junior to both respondent no.5 Smt. Pratima Pamod Deulwadar and respondent no.6 Smt. Sushma Mohan Agnihotri as per common seniority list. We therefore find that respondent Nos.
5 and 6 are entitled to be promoted to the posts in question as per seniority and hence we find that W.P. No. 2056 of 2010 relating to both the posts will have to be allowed. As discussed herein, respondent no.4 shall be at liberty to take the remedy of appeal under Section 9 of the Act if he so desires; and the time spent in these writ petitions shall be given due consideration............." (Emphasis supplied)
15. Mr Mohgaonkar, learned Counsel for the petitioners then submitted that in view of liberty granted to respondent No.1 herein (respondent No.4 in Writ Petition Nos.3017/2010 and 2056/2010), preferred an appeal before the School Tribunal, Nagpur. The copy of the order of School Tribunal is placed on record at Annexure No.4. Respondent No.1, who was appellant before the School Tribunal for challenging the promotion order dated 21st April, 2009 and 1st May, 2009, submitted that :-
"i) That, appellant is belonging to Scheduled Caste.
ii) That, he is possessing qualification as M.A. M.Ed.
iii) That, he was appointed as Assistant Head Master by way of promotion w.e.f. 01/05/2002.::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 :::
1277.15wp (11)
iv) That, Respondent No.2 has granted approval to his promotion.
v) That, Respondent No.1 has ignored provisions of M.E.P.S. Act and Reservation Act.
vi) That, management has not followed government circular and provisions while giving promotion as Head Mistress to Respondent Nos.3 and 4.
vii) That, procedure contemplated under Rule 61.2 (a) is mandatory in nature and must be complied with strictly."
16. Reliance was also placed on certain provisions of the MEPS Act and on certain judgments. Learned Presiding Officer of the School Tribunal, Nagpur, by assigning reasons, recorded negative findings on the issues framed by him and resultantly, the appeal filed by respondent No.1 was dismissed by an order dated 30th December, 2013.
17. Mr Mohgaonkar, learned Counsel then submitted that the vacancy for promotion to post of Head Master was created in the year 2010 and as per the seniority list maintained by the petitioner No.1 - society, one Mrs M. R. Sulekar i.e. petitioner No.2 was promoted being the senior most teacher in category 'C'. Again the Education Officer withhold the approval to Mrs Sulekar, as such, Mrs Sulekar filed Writ Petition No.3511 of 2011. Respondent No.1 again filed an appeal against promotion of Mrs Sulekar. It was submitted by Mr Mohgaonkar, learned Counsel for the petitioners that when the earlier appeal of respondent No.1 was dismissed by the learned ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (12) Presiding Officer of the School Tribunal, respondent No.1 ought not to have filed second appeal, entertained by the School Tribunal as the appeal was hit by principles of res judicata.
18. Mr Mohgaonkar then submitted that respondent No.1 had preferred review application against the order passed by the Division Bench of this Court and by an order dated 15th October, 2010, the review application was dismissed. He then submitted that subsequently one Mr N. H. Kanhere was promoted by an order dated 12th January, 2010, being the senior most teacher. Respondent No.1, without challenging the order promoting Mr Kanhere, only raised an objection by way of an additional ground in the appeal, whereas a challenge was raised to the promotion of Mrs Sulekar. He then submitted that though respondent No.1 was granted liberty to file appeal by way of an order of this Court, dated 21st September, 2010, respondent No.1 filed an appeal in the year 2012. He then by inviting my attention to the copy of the seniority list at Annexure No.1, submitted that respondent No.1 is placed in the seniority list in category 'B'. He then submitted that as per the provisions of the MEPS Act and Rules, the seniority in case of teachers reckons from acquiring the requisite qualification. He then by inviting my attention to the copy of application submitted by respondent No.1 before learned Presiding Officer of the School Tribunal i.e. at Annexure No.7, submitted that respondent No.1 himself admits that he was appointed on 1st August, 1983, having ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (13) qualification of SSC, D.Ed. and he passed B.A. examination in 1988 and B.Ed in the year 1992. Then, he by referring Schedule 'F' of the MEPS Act and Rules, submitted that as the respondent No.1, at the time of his appointment was possessing qualification of SSC, D.Ed., he was placed under category 'E'. As he then passed B.A. examination in 1988, he was placed in category 'D' and as he subsequently passed B.Ed. examination in 1992, he entered in the category 'C' of the teachers in the year 1992 for the first time.
19. Mr Mohgaonkar, learned Counsel then submitted that as against this, Mrs Sulekar, who was appointed in the year 1985 was having requisite qualification of B.Sc. B.Ed, as such, she was placed in category 'C' and this position is not disputed by respondent No.1. Learned Counsel for the petitioners then submitted that merely because respondent No.1 is a candidate belonging to reserved category, he cannot claim promotion by over turning the promotions of other teachers and thus, promotions are effected by the petitioner - society, by following due procedure and in view of the judgment of Full Bench of this Court.
20. Mr Mohgaonkar, learned Counsel placed heavy reliance on the judgment of this Court in the matter of Chalisgaon Education Society & anr. Vs. State of Maharashtra & ors., reported in 2006 (6) MH.L.J. 696 and the judgments in the matter of New English High School Association, ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (14) Nagpur Vs. Baldev s/o Fakira Ade & anr., reported in 2006 (6) Mh.L.J. 882 and in the matter of Ashok Laxmanrao Gadge Vs. Pratima Deodatta Karmarkar & ors, reported in 2009 (5) Mh.L.J. 664.
21. Mr Duvvuri, learned Counsel appearing on behalf of respondent No.1 opposes the petition. He submitted that in the year 1999-2000, four posts, namely, two posts of Head Master and two posts of Assistant Head Master were available with the society. He admitted that Writ Petition No.2019 of 2009 was filed by respondent No.1, challenging the order passed by learned Presiding Officer in an Appeal No.36 of 2007 and the same is pending in this Court. He then submitted that the Education Officer has rightly refused to grant approval to the promotion of Mrs. Deolwadkar. It was the further submission of Mr Duvvuri, learned Counsel that respondent No.1 ought to have been considered for promotion to the post of Head Master as he was rightly promoted to the post of Assistant Head Master. Then he submitted that while promoting Mrs Sulekar as Head Mistress, the petitioner No.1 - society failed to follow the provisions of the MEPS Act and Rules and more particularly Rule 3 thereof.
22. As per the submission of Mr Duvvuri, learned counsel for respondent No.1, the compliance of Rule 3(3) is mandatory and petitioner No.1 - society was duty bound to seek willingness of senior most teachers while effecting promotions to the post of Head Master. He then submitted that the ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (15) petitioner No.1 - society, while effecting promotions considered seniority list of the year 2010-2011 and not the earlier seniority list of the year 2009- 2010.
23. Though learned Counsel for respondent No.1 submitted that the petitioner - society effected the promotions as per the seniority list of 2010- 2011 and not as per the earlier seniority list, Mr Mohgaonkar, learned Counsel for the petitioners immediately countered the submission by submitting that respondent No.1 had never challenged the seniority list of the year 2006-2007, which was the basic seniority list for considering the promotions.
24. Learned Counsel for respondent No.1 then submitted that though the appointment of respondent No.1 on the post of Assistant Head Master was quashed by the Presiding Officer of the School Tribunal in an appeal, his placement with the society as a Assistant Head Master was maintained. Thus, learned Counsel for respondent No.1 submitted that respondent No.1 is the senior most teacher in the school and he is in continuous employment with petitioner No.1 - society. He then submitted that learned Presiding Officer of the School Tribunal has rightly considered the placement of respondent No.1, whose appointment was in the year 1983 and who acquired the qualifications of M.A., B.Ed. and M.Ed. in the year 1990, 1992 and 2000, respectively and was placed in category 'B', whereas Mrs Sulekar ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (16) was appointed in the year 1985 and was placed in category 'C' and acquired qualification of M.Ed. in the year 2002 and allowed the appeal filed by respondent No.1. He then submitted that no error is committed by learned Presiding Officer of the School Tribunal. He relied on the judgments in the matter of Prafulla Kumar Pallai Vs. State of Orissa & ors., reported in 1999 SCC (L&S) 777, Londhe Prakash Bhagwan Vs. Dattatraya Eknath Mane & ors., reported in 2014 (2) Mh.L.J. 21, in the matter of Nandkishor s/o Damodhar Wadgaonkar vs. Gajanan s/o Uttamrao Pede, reported in 2014 (1) Mh.L.J. 343, in the matter of Umesh Balkrishna Vispute vs. State of Maharashtra & ors., reported in 2000 (4) Mh.L.J. 564 and in the matter of Sukhdeo Ragho Deore vs. Chairman, Gram Shikshan Samiti, Umrane, Dist Nasik & ors., reported in 2002 (1) Mh.L.J. 885. A heavy reliance was placed by the learned counsel for respondent No.1 on the unreported judgment of the Hon'ble the Apex Court in the matter of Viman Vaman Awale Vs. Gangadhar Makhriya Charitable Trust & ors.
25. With the assistance of both the learned Counsel appearing on behalf of the respective contesting parties, I have gone through the material placed on record. It may be useful to refer to the judgment and order passed by the learned Presiding Officer of the School Tribunal, Nagpur, impugned in the present petition firstly. Learned Presiding Officer referred to the facts reflected from the record produced before him. By referring to the record ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (17) and the factual aspects in Appeal No.36 of 2007 presented before him, learned Presiding Officer observed that as per the seniority list, the name of respondent No.1 appears at Sr. No.1 in category 'B'. The names of Mrs Deolwadkar, Mr. Kanhere and Mrs Agnihotri and petitioner No.2 Mrs Madhuri Sulekar (in appeal before the School Tribunal) as Assistant Teachers appearing at Sr. Nos. 4, 5, 7 and 12, respectively, in the common seniority list. Then by referring to the contention raised in the appeal by respondent No.1, learned Presiding Officer observed that it was the submission of the respondent No.1 that, in view of the fact that Mr Kanhere stood retired on attaining the age of superannuation, the post of the Head Master had fallen vacant and available on 1st December, 2010. It was also then submitted by respondent No.1 that petitioner No.1 Society ought to have reserved 33% of the total number of posts of Head Master and Assistant Head Master for members of scheduled castes and the society failed to follow the Government Circular to that effect and the promotion of petitioner No.2 is illegal and contrary to law.
26. Then it was observed by learned Presiding Officer that the contentions raised by respondent No.1 were opposed by respondents therein by appearing in the matter and filing their written statements. It was then observed that respondent No.1 herein at the time of his entry in the service, was having qualification of SSC, D.Ed. Date of appointment of the appellant was 1st August, 1983 and subsequently he acquired the ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (18) qualification of B.A. in the year 1988 and training qualification B.Ed. in the year 1992 respectively. Then it was observed that petitioner No.2 herein had already acquired the qualification as B.Sc., B.Ed in the year 1971 and 1985, respectively and with this academic qualification and the training qualification, petitioner No.2 was appointed on 8th July, 1985. Then as it was submitted that the appointment of respondent No.1 to the post of Assistant Head Master has been already set aside by the Tribunal in an Appeal Nos. 33 of 2007 and 36 of 2007 and the petition challenging the said order is pending before this Court, the contention of respondent No.1 that the right is created in his favour to the post of Head Master is unacceptable. It was also submitted before learned Presiding Officer that the Circular, on which respondent No.1 is placing reliance and claiming his right being a candidate of reserved category is not applicable in view of the judgment of this Court. Learned Presiding Officer framed the issues and recorded affirmative finding on the issue that "whether appellant has proved that, he has been superseded while making an appointment by promotion?".
27. Learned Presiding Officer further observed that :
"6. .......................There are only two posts in the cadre of Head Master. Provisions of Rule 9(10) of MEPS Act and MSPS Reservation Act are not applicable to him. Management has maintained seniority list and they have given promotions as per Rules. Respondent No.1 has legally given promotion as ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (19) Head Mistress to Respondent No.3. Respondent No.2 has granted approval to her promotion. Now it has to be seen as to whether appellant has proved that, he has been superseded while making an appointment by promotion and an impugned promotion order dated 29/11/2010 is illegal and contrary to law."
28. Learned Presiding Officer also referred to the points raised by the learned Counsel for respondent No.1 and the points raised by the learned Counsel appearing on behalf of petitioner No.2 herein :
"7. Learned Advocate for Appellant has stated as under.
i) That, appellant is belonging to Schedule Caste Category.
ii) That, he was initially possessing qualification as S.S.C. D.Ed.
ii) That, on 01/08/1983 he was appointed as Assistant Teacher on permanent vacancy.
iv) That, he has acquired qualification as B.A., M.A. B.Ed. and M.Ed. In 1988, 1990, 1992 and 2000.
v) That, he is senior to Respondent No.3.
vi) That, he is possessing requisite qualification to the post
of Head Master.
vii) That, management has not followed provisions while
giving promotion as Head Mistress to Respondent No.3.
viii) That, an impugned promotion order dated 29/11/2010 is illegal an contrary to law.::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 :::
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8. Learned Advocate for Respondent Nos.1 and 3 has submitted as under.
i) That, appellant is junior to Respondent No.3
ii) That, his appointment to the post of Assistant Head Master has been set aside by this Tribunal in Appeal No. STN- 36/2007 and matter is pending before Hon'ble High Court.
iii) That, two posts of Head Master and one post of Assistant Head Master are sanctioned posts in the school and applicability of the reservation policy would depend upon the number of posts in a cadre and the percentage of reservation.
iv) That, reservation of 24 percent of the total number of posts of Heads and Assistant Heads can be enforced only when there are 4 or more such posts available with the management of the school.
v) That, provisions of Rule 9(10) of MEPS Act and MSPS Reservation Act are not applicable to appellant.
vi) That, Respondent No. 1 has legally given promotion as Head Mistress to Respondent No.3.
vii) That, Respondent No.2 has granted approval to her promotion.
viii) That, an impugned promotion order dated 29/11/2010 is proper."
29. Then learned Presiding Officer, by referring to the judgment of this Court and the submissions of the appellant, observed thus : ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 :::
1277.15wp (21) "10. Appellant has stated that, Respondent No.1 has ignored provisions of M.E.P.S. Act and Reservation Act. Management shall reserved 33 percent of the total number of posts (or vacancies) of Head and Assistant Heads for the members of Scheduled Caste. Two posts of Head Master are sanctioned post in school. Second post of Head Master has to be filled by a reserved candidate as per roster. Respondent Nos.1 and 3 have submitted that, two posts of Head Master and one post of Assistant Head Master are sanctioned posts in the school. It is not necessary to maintain roster with regard to these posts. It has been observed in citation reported in 2009(5) Mh.L.J. 664, Ashok Laxmanrao Gadge vs. Pratima Deodatta Karmarkar and others that, "Reservation of 24 percent of the total number of posts of Heads and Assistant Heads, can be enforced only when there are 4 or more such posts available with the management of the school.
11. Moreover, it has been held in 2006 (6) Mh.L.J. 882, New English High School Association, Nagpur and another vs. Baldeo s/o. Fakira Ade and another that, "Plain reading of Rule 9(10) of Maharashtra Employees of Private Schools (Conditions of Service) Rules as well as the Government Resolution dated 17-9-1980, it is apparent that in relation to the posts of Head Masters and Assistant Head Masters, the statutory reservation is to the extent of 24% which is divided into 13% in favour of the Scheduled Castes, 7% in favour of the Scheduled Tribes and 4% in favour of the Denotified and Nomadic Tribes. The Constitution mandates implementation of reservation policy. However, at the same time, it assures opportunities to all the open class category candidates. The implementation of the reservation policy should not lead to ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (22) absurd result. The application of reservation percentage has to be with reference to the number of posts. It is always to be remembered that the reservation percentage is to be applied and the 50 point roster is to be followed taking into consideration the total number of posts in a cadre and at the same time care has to be taken that other category candidates are not prejudiced in the sense that the statutorily recognized reservation percentage does not exceed while implementing the reservation policy. Undisputedly, the relevant rule requires 24% of reservation out of which 13% for the S.C., 7% for the S.T. and 4% for the D.T./N.T. Considering the 24% reservation, if one applies the 50 point roster, it would result in reservation in excess of the statutorily specified percentage. In a cadre comprising of three posts with 24% reservation rule, if one applies the 50 point roster, then the reservation even in respect of one post would exceed 24% reservation. One-third cannot be equated to 24%. It is settled law that the reservation cannot be allowed to exceed the percentage prescribed for reservation as it would result in injustice to the candidates falling outside the reservation category. Considering the same, 24% reservation can be applicable only in cases where there are minimum of four posts in a cadre and not otherwise. In case the cadre consists of three or less number of posts and the total percentage of reservation is 24%, there cannot be any reservation in such a case and it would be only in case of four posts that one of those will have to be filled in by the reserved category candidate. The applicability of the reservation policy would depend upon the number of posts in a cadre and the percentage of reservation. The 50 point roster can be made applicable only when the applicability thereof would not result in implementation of reservation policy in excess of the ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (23) percentage statutorily prescribed for the reserved category candidates."
30. On Assessment of the claim of petitioner, on the backdrop of the judgment of this Court, learned Presiding Officer then arrived at a conclusion and same reads thus:
"12. It appears that, two posts of Head Master and one post of Assistant Head Master are sanctioned posts in the school.
Reservation cannot be enforced. His claim for promotion to the post of Head Master on the basis of reservation is dismissed in Appeal No.STN-41/2011. In present Appeal he is claiming promotion to the post of Head Master on the ground of supersession under section 9 (1)(b) of the Act."
(Emphasis supplied)
31. Learned Presiding Officer then observed that :
"15. ......... Name of appellant is shown at Serial No.1 in category "B". His appointment date is 01/08/1983. He has acquired professional qualification as M.Ed. In 2000. Name of Respondent No.3 Sau. M.R. Sulekar is shown at Serial No.12 in category "C". Her appointment date is 08/07/1985. She is not possessing professional qualification as M.Ed. He is senior to Respondent No.3. In such circumstance I do not find substance in contentions raised by Respondent Nos.1 and 3 and their advocate."::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 :::
1277.15wp (24)
16. In view of aforesaid discussion it appears that, appellant has proved that, he has been superseded while making an appointment by promotion and an impugned promotion order dated 29/11/2010 is illegal and contrary to law..................."
32. The findings of the learned Presiding Officer of the School Tribunal that petitioner No.2 herein Mrs Sulekar had not acquired professional qualification of M.Ed. and the appellant had acquired the qualification of M.Ed. in the year 2000, as such, the appellant was senior to petitioner No.2 and he has been superseded while making an appointment by promotion are clearly only on assumptions and presumptions.
33. Mr Mohgaonkar, learned Counsel for the petitioners was justified in submitting that such an erroneous findings without there being any support of the provisions of law is clearly unsustainable.
34. As it is the continuous insistence of respondent No.1 that he is a candidate belonging to the reserved category and one post of the Head Master had fallen vacant and the appellant ought to have been promoted to that post, is clearly unacceptable. It will be useful to refer to the judgment of the Full Bench of this Court which is heavily relied on by Mr Mohgaonkar, learned Counsel for the petitioners: ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 :::
1277.15wp (25) "2. The points for consideration which arise in these references are whether the rule of 50 point roster will apply to the cases where total number of posts in a cadre are three or less and the total reservation is 24 percent and what should be the minimum strength of cadre for the applicability of 50 point roster?"
"26. If out of two posts, one post is reserved by applying the roster, it would obviously exceed 24%. Besides, the reservation is not 24% in favour of any one particular category. The maximum reservation is in favour of the Scheduled Castes which is to the extent of 13%;, whereas the minimum is 4% in case of the Denotified and the Nomadic Tribes. As rightly submitted by the learned Advocate Shri A.D. Mohgaonkar, if the reservation in the categories of Denotified and Nomadic Tribes is considered as one unit, it would consist of 4% i.e. 8 out of 100. If there are only two posts, and one of them is specified for reservation in favour of the Denotified Tribes or the Nomadic Tribes, who are entitled for reservation to the extent of only 8 out of 100, it would virtually amount to granting reservation by 42% in excess of the statutory entitlement in favour of the said category, which is not permissible and it would be in excess of the reservation under the statutory provision. Similar is the case in relation to the Scheduled Castes which is entitled for 13% reservation. In other words, 26 out of 100 and even reservation of one post would be in excess of total reservation of 24%."
27. Undoubtedly, the Constitution mandates implementation of reservation policy. However, at the same time, it assures ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (26) opportunities to all the open class category candidates. The implementation of the reservation policy should not lead to absurd result. The application of reservation percentage has to be with reference to the number of posts. It is always to be remembered that the reservation percentage is to be applied and the 50 point roster is to be followed taking into consideration the total number of posts in a cadre and at the same time care has to be taken that other category candidates are not prejudiced in the sense that the statutorily recognised reservation percentage does not exceed while implementing the reservation policy. Undisputedly, the relevant rule requires 24% of reservation out of which 13% for the S.C., 7% for the S.T. and 4% for the D.T./N.T. Considering the 24% reservation, if one applies the 50 point roster, it would result in reservation in excess of the statutorily specified percentage. In a cadre comprising of three posts with 24% reservation rule, if one applies the 50 point roster, then the reservation even in respect of one post would exceed 24% reservation. One-third cannot be equated to 24%. It is settled law that the reservation cannot be allowed to exceed the percentage prescribed for reservation as it would result in injustice to the candidates falling outside the reservation category. Considering the same, we are in respectful ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (27) agreement with the view expressed by the Division Bench in Somsingh's case that 24% reservation can be applicable only in cases where there are minimum of four posts in a cadre and not otherwise." (Emphasis supplied)
35. Learned Single Judge of this Court, in the matter of Ashok Gadge vs. Pratima Karmarkar (referred supra), while referring to the judgment of the Full Bench of this observed that the judgment of the Full Bench of this Court attained finality and operation of the judgment would be retrospective. The relevant observations are thus:-
"As can be seen from the decision in Baldev Ade's case it is clear that Bench itself does not say whether the judgment is prospective or retrospective. In the absence of such specific directions it must be held in view of the above decisions that the decision in Baldev Ade's case operates retrospectively. If it is to operate retrospectively no fault can be found with the judgment of the School Tribunal. In the circumstances there is no substance in the Writ Petitions. They are dismissed. No order as to costs."
36. The contention was raised before the learned Presiding Officer by respondent No.1 that the judgment of the Full Bench would operate prospectively and not retrospectively. Learned Presiding Officer, in view of the judgment of the Hon'ble the Apex Court in the matter of P.V. Jorge & ors. Vs. State of Kerala & ors., reported in (2007) 3 Supreme Court Cases 557, rejected the contention of the respondent No.1, which reads thus:
::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 :::
1277.15wp (28) "19. It is argued on behalf of the Respondent No.3 that, the observations of Their Lordships in the above cited ruling can not be a retrospective effect. As against this, it is submitted by the Advocate for the appellants law declared by a Court will have a retrospective effect if not otherwise stated to be so specifically.
In support of his contention, the Advocate for the appellants relied upon the judgment in the case of P.V.George and others.. versus.. State of Kerala and others is reported in (2007) 2 Supreme Court Cases 557 in which it is held that, "Precedents-- Prospective overruling- Doctrine of-- Applicability of, in instant case involving service matter-- Question as to-- Held, law declared by a court will have a retrospective effect if not otherwise stated to be so specifically-- Thus, there is no prospective overruling unless it is so indicated expressly and in clearest possible terms."
Thus, in view of the observations of Their Lordships in the above cited ruling, there is no substance in the grievances raised by the respondent no.3. As a result, the promotion given to the respondent no.3 on the post of Assistant Head Master in the year 2002 is prima facie contrary to the law and it is illegal........."
37. Mr Mohgaonkar, learned Counsel for petitioners also relied on the judgments of the Apex Court in the matters of Ajit Singh Januja & ors. vs. State of Punjab & ors., reported in (1996) 2 Supreme Court Cases 715, Jagdish Lal & ors. Vs. State of Haryana & ors., reported in (1997) 6 Supreme Court Cases 538, Rajendra Pratap Singh Yadav & ors. Vs. ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (29) State of Uttar Pradesh & ors., reported in (2011) 7 Supreme Court Cases 743 and S. Panneer Selvam & ors. Vs. State of Tamil Nadu & ors., reported in (2015) 10 Supreme Court Cases 292. In support of his contentions and also to submit that the judgment of the Full Bench would operate retrospectively. It may not be necessary to refer to all these judgments as already the relevant judgment on which reliance was placed by the learned Single Judge of this Court and the learned Presiding officer is referred to above.
38. Mr Duvvuri, learned Counsel for respondent No.1 also placed heavy reliance on the judgment of the Hon'ble Apex Court in the matter of Viman Vaman Awale (referred supra), as such, it would be necessary to refer to certain observations made in the said judgment and the same read thus:
"2. Dispute in this appeal pertains to the seniority of the appellant vis-a-vis respondent No.4. Both the appellant as well as respondent No.4 are working as teachers in Seth Gangadhar Makhriya High School, Mahabaleshwar, District Satara in Maharashtra. It is not in dispute that the appellant had joined the said school as Assistant Teacher before respondent No.4 and was senior to him in the post of Assistant Teacher. However, respondent No.4 had acquired B.Ed. degree prior to the appellant and on that basis he is treated senior to the appellant in the category of 'Trained Graduate Teachers'. Whether this consequence follows as a result of the rules is the matter of examination in the present case.::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 :::
1277.15wp (30)
6. Feeling aggrieved by the promotion of respondent No.4, the appellant approached the School Tribunal by filing an appeal bearing No. 5/2010 seeking quashing of the orders of the authorities appointing respondent No.4. as the Headmaster of the School. This appeal was contested by the School authorities as well as the Education Officer taking the position that respondent No.4 was senior to the appellant. The School Tribunal, after hearing the matter, passed orders dated 26.09.2012 dismissing the appeal preferred by the appellant. The appellant challenged that order by filing the writ petition in the High Court of Bombay. This writ petition has also been dismissed by the High Court vide orders dated 25.02.2013. Undettered by two unsuccessful attempts, the appellant has approached this Court maintaining the posture that she is senior to respondent No.4 and rightful claimant to the post of Headmistress, as per the extant Rules.
7. The aforesaid, thus, is the brief narration of the background in which the dispute has arise, viz. whether it is the appellant who is senior to respondent No.4 or it is respondent No.4 who is senior to the appellant.
8. The reason given by the School Tribunal in accepting the claim of respondent No.4 is that at the time of entry of both these persons as Assistant Teachers in the School, both of them were not having B.Ed. qualification but were only D.Ed. Therefore, they were placed in Category- D of Schedule 'F'. Further, as far as B.Ed. qualification was concerned, the same was acquired by the appellant in the year 1986, whereas respondent No.4 got this qualification on 31.05.1984. According to the School Tribunal, seniority is to ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (31) be considered from the date of acquisition of this professional qualification, that is being the 'Trained Teacher'. In this context, the School Tribunal took note of the fact that respondent No.3 School is a Secondary School, having classes of V to X and as such, as per Rule 3(1)(b), the required qualification must be graduate teacher possessing bachelor's degree in teaching and five years teaching experience and out of this two years experience shall be after acquiring bachelor's degree. Further, Schedule-B of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as the 'Rules') provides the degree qualification for secondary teacher as Graduate plus B.Ed. On that reckoning, the date of acquiring the professional qualification becomes relevant, which was B.Ed., and since it is respondent No.4 who stole the march over the appellant by acquiring this qualification earlier in point of time, he was to be treated as senior to the appellant. The School Tribunal, in support of this conclusion that the date of acquisition of professional qualification would be the date of determining the seniority, relied upon a Full Bench judgment of the Bombay High Court in the case of Shri Vaijanath s/o. Tatyarao Shinde v. The Secretary, Marathwada Shikshan Prasarak Mandal (Writ Petition No. 4907 of 2002 decided on 15.11.2006)."
39. Thus, I am unable to accept the submission of the learned Counsel appearing on behalf of respondent No.1 that respondent No.1, who was appointed in the year 1983 but subsequently acquired requisite qualification of training was senior to petitioner No.2, who already acquired requisite training qualification i.e. B.Ed. at the time of her entry in the service. ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 :::
1277.15wp (32)
40. Mr Duvvuri, learned Counsel for respondent No.1. placed heavy reliance on the following judgments, to submit that the order of the learned Presiding Officer in favour of respondent No.1 was effected in the year 2010 and the petitioner Society by inordinate delay, filed petition in this court in the year 2015, as such, on the ground of delay and laches, the petition of the petitioners be rejected and in support of this submission, reliance was placed on judgments of Prafulla Kumar Pallai and Nandkishor Wadgaokar (referred supra)
41. I am unable to accept the submission of learned Counsel for respondent No.1, for the reason that the petitioner Society was continuously taking a stand that the promotion effected to the other persons was a just and proper as those persons were senior to respondent No.1. It was also the consistent stand of the petitioners by way of certain petitions before this court and in the appeal which were preferred before the learned Presiding Officer that when the society effected the promotion to the rightful claimants, the Education Officer, only on the insistence of respondent No.1 that he is belonging to reserved category, refused to grant approval to the promotions of these persons and when learned Presiding Officer, in an earlier appeal recorded a finding that the persons in whose favour promotion was effected were senior and in the appeal filed by respondent No.1, a diagonally opposite finding is recorded by learned Presiding Officer, as ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (33) such, the petitioners are before this Court, challenging the order of learned Presiding Officer. It was rightly submitted by Mr Mohgaonkar, learned Counsel for petitioners that the petition is filed in the year 2015 challenging the order of learned Presiding Officer, dated 6th February, 2015, as such, there is no delay on the part of petitioners in approaching this Court.
42. As Mr Duvvuri, learned Counsel for respondent No.1 placed heavy reliance on the judgment of the Hon'ble the Apex Court in case of Viman Vaman Awale (referred supra) and though in the earlier part of the judgment I have referred to the observations of the Division Bench of this Court in an unreported judgment, it would be useful to refer to certain facts, namely, the issue before the Hon'ble Apex Court in case of Viman Vaman Awale (referred supra) was of grant of promotion to the person, who was entered in the service as a primary teacher and it is clear from the reference to the relevant Rules by the Hon'ble the Apex Court. The Hon'ble the Apex Court had referred to Schedule 'B' and the title of Schedule 'B' reads thus:
"Schedule 'B' I. Qualifications for Primary Teachers:
Appointment to the posts of Primary school teachers (other than special teachers-Drawing teachers) shall be made by nomination from amongst candidates who have passed S.S.C. examination or Matriculation examination or Lokshala ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (34) examination or any other examination recognised as such by Government and the Primary Teachers Certificate examination or Diploma in Education examination, or a Diploma in Education (pre-primary of two years' duration)."
43. It is not in dispute that in the present matter, it is the case of the seniority between the teachers, who are appointed as secondary teachers. It will not be out of place to refer to the relevant provisions and the same read thus:
"Rule 3. Qualifications and appointment of Head:
"(3) The Management of a school including a night school shall fill up the post of the Head by appointing the senior most member of the teaching staff (in accordance with the guidelines 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 night 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 ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (35) 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 the 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 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 of 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 teacher states in his statement before the Education Officer that the communication sent by him in ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (36) 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;]"
"Rule 12 Seniority List:
"Every Management shall prepare and maintain seniority list of the teaching staff including Head Master and Assistant Head Master and non-teaching staff in the School in accordance with the guidelines laid down in Schedule "F". The seniority list so prepared shall be circulated amongst the members of the staff concerned and their signatures for having received a copy of the list shall be obtained. Any subsequent change made in the seniority list from time to time shall also be brought to the notice of the members of the staff concerned and their signatures for having noted the change shall be obtained. (2) Objections, if any, to the seniority list or to the changes therein shall be duly taken into consideration by the Management. (3) Disputes, if any, in the matter of inter se seniority shall be referred to the Education Officer for his decision."
"Schedule 'F' Note 1 : For the purpose of categories C, D, and E teachers with S. T. C., T. D., Jr. P. T. C. Dip, T., Dip. Ed. (post S.S.C. one year course) qualifications appointed on or after 1st October 1970 shall be considered as untrained and their seniority shall be fixed in the 'F' or 'G' category of untrained teachers as the case may be.::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 :::
1277.15wp (37) Note 2 : The following training qualifications which can be secured two years after S.S.C. Examination shall be considered as training qualification for the purpose of seniority even after 1st October 1970 -
(1) D. Ed. (2 years).
(2) T. D. (Bombay University).
(3) Dip. Ed. (Nagpur University).
Note 3 : In the case of teachers whose date of continuous appointment in one and the same category is common, the teacher who is senior by age will be treated as senior. Note 4 : The categories mentioned above represent the ladder of seniority and have been mentioned in descending order. Note 8 : Where a Management runs one or more secondary schools and a Junior College of Education, then notwithstanding the fact that trained graduate teachers in Junior College of Education are in a higher scale of pay, a combined seniority list of all teachers, in both the types of Institutions shall be maintained in such schools and Junior College of Education in accordance with the guidelines laid down in paragraph 2 of this schedule. This seniority list shall form the basis for purpose of promotion to the posts of Head Masters and Assistant Head Masters in secondary school (s) and Principal (s) of Junior College of Education."
44. As stated above, petitioner No.1 society has placed on record the relevant material in the form of seniority list maintained by it and the placement of the teachers qua the placement of respondent No.1 and as it is observed by this Court in the earlier proceedings as well as by learned ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 ::: 1277.15wp (38) Presiding Officer in Appeal No.36 of 2007 that respondent No.1 acquired the training qualification so as to make him entitled for promotion subsequent to thee other members who were senior by acquiring their training qualifications at the time of entry level itself, I am unable to accept the contentions of respondent No.1; either on the ground of reservation that he is a candidate from reserved category and he ought to have been promoted or on the ground that he was superseded by appointing the junior members to him. As I find merit in the submissions of Mr Mohgaonkar, learned Counsel for petitioners, for the reasons stated above, the petition needs to be allowed.
45. Resultantly, the petition is allowed and the judgment and order dated 6th February, 2015 impugned in the present petition, passed by the learned Presiding Officer of the School Tribunal, Nagpur, is hereby quashed and set aside.
(PRASANNA B. VARALE, J.) sjk ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:32:47 :::