Bombay High Court
Vasant Babanrao Palkandwar vs Vishuddha Vidyalaya on 12 July, 2010
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 3895 OF 2008
Vasant Babanrao Palkandwar,
aged 52 years, occupation -
Service, r/o Plot No. 3,
Radhika layout, Arvi Road,
Yavatmal ... PETITIONER
Versus
1. Vishuddha Vidyalaya,
Yavatmal, through its
Secretary, Shri S.D. Shinde,
Near Saw Mill, Umarsara
Road, Yavatmal.
2. Vivekanand Vidyalaya,
through its Head Master,
Shivaji Nagar, Yavatmal.
3. Nitin Tukaram Kharche,
r/o 15, Vishwas Nagar,
Arvi Road, Yavatmal.
4. The Education Officer
(Secondary), Zilla Parishad,
Yavatmal.
5. State of Maharashtra
through its Secretary,
Department of School
Education, Mantralaya,
Mumbai 400 032. ... RESPONDENTS
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2
Shri Nilesh Adbe, Advocate for the petitioner.
Shri A.S. Kilor, Advocate for respondents No. 1 & 2.
Smt. N.S. Jog, Advocate for respondent No. 3.
Shri J.B. Jaiswal, AGP for respondents No. 4 & 5.
.....
CORAM : B.P. DHARMADHIKARI, J.
DATE OF RESERVING THE JUDGMENT : JUNE 30, 2010.
DATE OF PRONOUNCING THE JUDGMENT: JULY 12, 2010.
JUDGMENT :
By this writ petition, the petitioner questions the judgment of School Tribunal dated 27.08.2008 by which appeal filed by him vide Appeal No. 29 of 2008 came to be dismissed and Appeal No. 46 of 2008 filed by Respondent No. 3 came to be allowed. The dispute pertains to determination of seniority inter se between the petitioner and Respondent No.3.
2. The petitioner was initially appointed as a Assistant Teacher on 01.09.1982 and at that time his qualifications were S.S.C. D.Ed. (2 years course). He improved his qualification and obtained Graduation B.A. on 14.01.1985. He improved his training qualification and obtained B.Ed. Degree in 1987. As ::: Downloaded on - 09/06/2013 16:08:09 ::: 3 against this, Respondent No. 3 joined same school on 10.10.1985 and at that time he was B.Sc., M.Sc. & B.Ed.
3. The petitioner was working as Assistant Head Master and by order dated 08.05.2008, he was sought to be reverted as a Assistant Teacher. He challenged that reversion in Appeal No. 29 of 2008. Respondent No. 3 filed Appeal No. 46 of 2008 questioning the promotion given to the petitioner on 17.03.2008 as Assistant Head Master. School Tribunal in impugned judgment has found that Respondent No. 3 who was Graduate with B.Ed. qualification at the time of his recruitment on 10.10.1985 senior to the petitioner who obtained B.Ed. in 1987.
If qualification of B.Ed. is ignored, then in order to come in category "C" of Schedule - F of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, the petitioner has to put in 10 years of service after 01.09.1982.
Thus after such 10 years post D.Ed. service he enters the zone of consideration for promotion.
::: Downloaded on - 09/06/2013 16:08:09 ::: 44. Shri Adbe, learned counsel for the petitioner contends that there is no need of putting such 10 years service as D.Ed.
qualification obtained by the petitioner after S.S.C. is of 2 years duration and hence the petitioner needs to be treated as possessing necessary training qualification from 01.09.1982 itself. He obtained Graduate degree on 14.01.1985 and, therefore, since that date he must be treated as trained Graduate, hence, the petitioner is senior to Respondent No. 3.
His contention is, the judgment of Division Bench of this Court in the case of Pandurang Atmaramji vs. State of Maharashtra, reported at 1997 (3) Mh. L.J. 578 does not lay down any law in this respect and one stray observation appearing in para 14 thereof has been mechanically acted upon by other Hon. Benches. He, therefore, states that other Division Bench judgments in the case of Pramod vs. State of Maharashtra, reported at 2006 (5) Mh.L.J. 110; Bhagwat vs. Education Officer (Secondary) Z.P., reported at 2007 (6) Mh. L.J. 415 and Ashok Sathe vs. Education Officer (Secondary), Z.P., 2007 (4) Mh. L.J. 358 also does not lay down any law in this regard.
::: Downloaded on - 09/06/2013 16:08:09 ::: 55. He has invited attention to the fact that on 01.03.2006, the management published seniority list in which name of the petitioner appeared at Sr. No. 11 and name of Respondent No. 3 was shown at Sr. No. 5. The petitioner raised objection and in later seniority list published on 15.03.2007, name of the petitioner was mentioned at Sr. No. 1 while name of Respondent No. 3 appeared at Sr. No. 2.
6. In this background, he has invited attention to Government Resolution dated 30.05.1968 to urge that the qualifications like S.T.C., T.D or Dip. T. (1 year), Dip. Ed. (1 year) which could be obtained after S.S.C. have been continued to be recognized as training qualifications till 01.06.1970 only and not thereafter. By subsequent Notification dated 01.10.1970 such teachers recruited prior to 30.09.1970 were given protection and they could not be regarded as untrained. He has also invited attention to later Notification dated 13.09.1971 to show that said Notification clearly stipulated that the course which required period of two years after S.S.C. does not come ::: Downloaded on - 09/06/2013 16:08:09 ::: 6 within the purview of D.O. letter dated 30.05.1968 and 21.06.1969. It is his contention that Diploma in Education course cleared by the petitioner was not in existence in 1971 and said clarification or earlier Notifications (D.Os.) cannot be viewed as laying down that the same cannot be treated as training qualification. He further states that all these three D.Os.
are prior to coming into force of MEPS Act or Rules framed thereunder.
7. In this light, he has invited attention to entries contained in Schedule F of MEPS Rules particularly Note 2 appearing in its Part 2 to urge that D.Ed. two years course is mentioned & recognised as training qualification therein. He has also invited attention to Annexure 45 of Secondary Schools Code, particularly category D therein and its Note 2 to urge that the said provision also existed prior to coming into force of MEPS Act and Rules. His contention is, the requirement of putting in 10 years Post Training service mentioned in last entry of category "C" of Schedule - F is not applicable in case of D.Ed. (2 ::: Downloaded on - 09/06/2013 16:08:09 ::: 7 years) course. He has also attempted to demonstrate that Annexure 45 of Secondary Schools Code or category D in Schedule - F of MEPS Rules has become obsolete due to passage of time of more than 10 years.
8. Shri Kilor, learned counsel for respondents No. 1 & 2 has invited attention to the manner in which Schedule F has been arranged and has stated that wherever necessary, the words "or its equivalent" are used in category "C". The absence of those words in third entry in category "C" clearly show that D.Ed. (2 years) course cannot be included in that entry. He further states that D.Ed. (2 years) course was introduced in 1971 and in 1981 when Schedule F was added vide MEPS Rules, the rule making authority could have added that course also specifically in 3rd entry in Schedule F. His contention is, because of Note 2, the words D.Ed. one year course in entry 4 in category "C" gets substituted by words D.Ed. (2 years) course. He argues that the Government D.O. mentioned above cannot be interpreted to equate said D.Ed. with Diploma in Teaching . He, ::: Downloaded on - 09/06/2013 16:08:09 ::: 8 therefore, argues that the petitioner was in category "D" at the relevant time when promotion order was issued.
9. Smt. Jog, learned counsel for respondent No. 3 has relied upon Division Bench judgment in the case of Bhagwat vs. Education Officer (Secondary), supra, to argue that said Division Bench clearly lays down the law on the issue and it is binding on this Court. She has invited attention to Rule 2(k) which defines Trained Teacher together with relevant entries in Schedule B and her argument is Schedule - F is to be read in the light of said entries in Schedule - B. Therefore, Note 2 on which the petitioner is placing reliance is applicable only to Part - I of Schedule - B. She, therefore, prayed for dismissal of writ petition.
10. In reply, Shri Adbe, learned counsel for the petitioner, has stated that notes at the end of Schedule - F apply to respective parts in which they appear and hence Note 2 has got no bearing on qualifications prescribed in Schedule B. He points ::: Downloaded on - 09/06/2013 16:08:09 ::: 9 out that the law cannot be said to be settled in Pandurang Atmaramji vs. State of Maharashtra (supra). He has placed reliance upon the judgment of this Court in the case of Shakuntalabai vs. State, reported at 1986 Mh.L.J. 669, particularly para 17 and in Vijay Narayan Thatte vs. State of Maharashtra, reported at AIR (2009) 9 SCC 92, particularly paras 21 and 27 for this purpose & to urge that requirement of 10 years service read into category C for D.Ed. (2 years course) is per incuriam.
11. The question in short, therefore, is whether the requirement of putting in 10 years of service can be made applicable to the petitioner who possessed S.S.C., D.Ed. (2 years) qualification on 01.09.1982. It is to be noted that he became Graduate in training for the first time in 1987. Respondent No. 3 was also trained graduate on 10.10.1985 and, therefore, senior to him insofar as this qualification is concerned. Petitioner got graduate degree in 1985 prior to Respondent 3 joining the service. Hence, if requirement of 10 years Post D.Ed. service is ::: Downloaded on - 09/06/2013 16:08:09 ::: 10 not there, then only the petitioner can become senior to Respondent No. 3. Otherwise on the strength of his S.S.C., D.Ed.
qualification, he steps in category "C" on 01.09.1992.
12. The judgment of Division Bench of this Court in the case of Shakuntalabai vs. State, (supra), in para 17, considers the issue when a Bench of equal strength finds itself unable to agree with the view of coordinate Bench. The Division Bench has noted the decision of Court of Appeal in Young vs. Bristol Aeroplane Co. Ltd., reported at (1944 - 1KB 718) and found that the Court is not bound to follow a decision of its own if it is satisfied that decision was given per incuriam e.g. whether a statute or a rule having statutory effect which would have affected the decision was not brought to the attention of the earlier Bench. The Hon'ble Apex Court in Vijay Narayan Thatte vs. State of Maharashtra, (supra), in para 27 found that a decision given is per incuriam when the Court has acted in ignorance of a previous decision of its own or of court of coordinate jurisdiction which covered the case before it or when ::: Downloaded on - 09/06/2013 16:08:09 ::: 11 the decision is given in ignorance of terms of a statute or a rule having statutory force. It is, therefore, obvious that one has to find out whether earlier Division Benches have laid down any law on the point.
13. Shri Kilor, learned counsel has pointed out the judgment of the Hon'ble Apex Court in the case of Union of India vs. Deoki Nandan Aggarwal, (supra), particularly its para 14. He has rightly urged that the Court cannot rewrite, re-caste, re-
frame the legislation for some good reason that it has no power to legislate. The Courts cannot either enlarge the scope of legislation or intention of the Legislature when the language of the provision is plain and unambiguous.
14. The relevant observation made in para 14 by Division Bench of this Court in Pandurang Atmaramji vs. State of Maharashtra, (supra) fell for consideration of subsequent Division Bench in Bhagwat vs. Education Officer (Secondary), (supra). The sentence in this para on 10 years post D.Ed. Service ::: Downloaded on - 09/06/2013 16:08:09 ::: 12 is not the "law" as per petitioner. In this later judgment reported in 2007, the question which has arisen now before this Court also arose. There also the petitioner had taken recourse to note 2 in Schedule F. The other side contended that there is no equivalence given to holders of D.Ed. qualification with Bachelors Degree in Education. Note 2 of Schedule F simply declared them as trained as against untrained teachers and, therefore, upgrades him in that Schedule. The controversy is considered by Division Bench in para 12 and the Division Bench noticed the above mentioned para 14 in Pandurang Atmaramji vs. State of Maharashtra (supra). This later Division Bench judgment has highlighted the requirement of additional condition of 10 years experience to fall in category "C" and found reliance by the petitioner also upon that judgment misconceived. In para 13, Division Bench found that teacher holding Diploma in Education with a Graduate qualification needed 10 years service after obtaining D.Ed. to qualify to be a trained teacher to come in category "C". Therefore, though Shri Adbe, learned counsel may be contending that the requirement ::: Downloaded on - 09/06/2013 16:08:09 ::: 13 to satisfy additional condition of 10 years service as read by earlier Division Bench in para 14 is without mentioning the provision from which it springs, the said argument is not valid when Bhagwat vs. Education Officer (Secondary), (supra) is looked into. There, the question had specifically arisen and Division Bench has accepted need of 10 years Post D.Ed. service to come in category "C" of Schedule - F. The Division Bench has applied its mind to the facts before it and thereafter has considered Note 2 in the light of Schedule - F and arrived at a finding. This finding can not be read as obiter. I, therefore, find myself unable to hold that said consideration by later Division Bench is per incuriam. That consideration is binding on this Court.
15. The perusal of Note 2 in Schedule F only shows that D.Ed. (2 years) qualification continues to be recognized as training qualification even after 01.10.1970 and teachers who had obtained that qualification continued to be recognized as trained in spite of above mentioned D.Os. Those who obtained ::: Downloaded on - 09/06/2013 16:08:09 ::: 14 those qualifications later on, therefore, can also be treated as trained teachers. The question is whether because of this recognition they can be placed in category "C". Note 4 in Schedule F mentions that categories mentioned in part 2 represent the ladder of seniority in descending order. In category C, Post Graduate Teachers with degree in training "or its equivalent" are placed in entry 1. Graduate teachers with graduate qualification in training "or its equivalent" are in entry
2. Third entry deals with Graduates with Diploma in Teaching.
This Diploma in Teaching is qualified by words "old two years course". The words "or its equivalent" are not employed by rule making authority in Entry No. 3. Entry No. 4 deals with Graduates with training qualification like S.T.C., Dip. Ed., T.D., Dip. T. (one year course). However, this entry No. 4 is then further qualified by imposing requirement of 10 years Post training service. Thus, because of absence of words "or its equivalent", it is clear that D.Ed. 2 years qualification obtained by the petitioner cannot be read in Entry No. 3 of Category - C. It also cannot be read in Entry No. 4 because it speaks of a ::: Downloaded on - 09/06/2013 16:08:09 ::: 15 Graduate with Training qualification which is of one year. It again does not use words "or its equivalent". In this situation, D.Ed. qualification obtained by the petitioner can be treated at the most as training qualification but that does not give him birth in category "C" automatically.
16. In any case, it was necessary for the petitioner to demonstrate equivalence of his D.Ed. course with Dip. T (old two years course) to qualify to come in Entry No. 3 of Category - C. That has not been done in this matter. Therefore, only entry left is last entry i.e. entry No. 4 and that entry requires 10 years Post Training service. 2007 (supra) judgment of this Court has considered this situation. The said judgment of Hon'ble Division Bench is binding on this Court. On the basis of arguments advanced, this Court cannot add to or subtract from entries in category C. Respondent No. 3 has argued that Schedule F needs to be understood in the light of Schedule B. The contention is, Note 2 in Part 2 of Schedule F is referable to Part 1 of Schedule B. Part 1 of schedule B prescribes qualification for primary ::: Downloaded on - 09/06/2013 16:08:09 ::: 16 teachers and Part 2 thereof deals with qualification for trained teachers. Part 2 in Schedule F gives guidelines for fixation of seniority of teachers in Secondary Schools, Junior Colleges of Education and Junior College classes attached to Secondary Schools and senior colleges. Part 3 of Schedule F gives guidelines of fixing of seniority of non teaching staff. It also contains Note 1 and Note 2 at its end. It is, therefore, obvious that wherever found necessary, rule making authority has placed notes at the end of respective part in Schedule F. Note 2, therefore, cannot be restricted to or correlated with Part I in Schedule F which deals with seniority of teachers in primary schools.
17. In view of this, I do not find that insofar as use of Note 2 in Part 2 of Schedule F is concerned, any help can be taken from Schedule B of MEPS Rules to understand it. Petitioner could have succeeded only by pointing out how his D.Ed. 2 years training course is equal to training course stipulated in 3rd entry in category F i.e. with Dip. T (old two years course). There is no ::: Downloaded on - 09/06/2013 16:08:09 ::: 17 such attempt. Therefore, it is apparent that Respondent No. 3 was senior and trained and already in category "C" when he joined the service. Petitioner entered that category in 1987 when he procured B.Ed. degree. There is no merit in the contention that D.Ed. qualification of two years duration obtained after S.S.C. by the petitioner entitles him to placement in category "C"
directly and he need not complete 10 years Post training service.
Writ Petition is, therefore, dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
JUDGE ******* *GS.
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