Bombay High Court
Mahapalika Madhyamik Shikshak Sangh vs Municipal Corporation Of Greater ... on 10 February, 2017
Author: B. P. Colabawalla
Bench: S.C. Dharmadhikari, B. P. Colabawalla
writ petition 2275.13.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2275 OF 2013
Mahapalika Madhyamik Shikshak Sangh ..Petitioner
Vs.
Municipal Corporation of Greater
Mumbai and Others ..Respondents
ig ALONG WITH
CHAMBER SUMMONS NO. 39 OF 2014
IN
WRIT PETITION NO.2275 OF 2013
Babare Tanaji Sadanand
and Another ..Intervenors/Applicants
IN THE MATTER BETWEEN
Mahanagar Palika Shikshak Sangh ..Petitioner
Vs.
Municipal Corporation of Greater
Mumbai and Others ..Respondents
-----------------------------------------
M r. A. S. D esai, for the Petitioner.
M s. Pooja Yadav, for the R espondent N os.1 to 3-B. M . C.
M s. Jyoti Jadhav, Asst Govt. Pleader, for R espondent N o.4 - State.
M r. R . S. Ghadge, for the R espondent N os.5 to 11.
M r. D inesh Bhosale, for the R espondent N os.12 to 18.
M r. R ushikesh H . Salkar i/b M s D hanuka Partners, for the Applicant in
CH SW .39/14.
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writ petition 2275.13.doc
CORAM :- S.C. DHARMADHIKARI &
B.P.COLABAWALLA, JJ.
Reserved On :- February 3, 2017.
Pronounced On :- February 10, 2017.
JUDGMENT :- [ Per B. P. Colabawalla, J ]
1. By this Writ Petition filed under Article 226 of the Constitution of India, the Petitioner - Trade Union seeks a writ to quash and set aside the language-wise seniority list (Exhibit-G to the Petition) and issue mandatory directions to the Respondents to implement the common seniority list. The Petitioner claims to be a registered Trade Union formed by the Teachers working in the Municipal Secondary Schools in Mumbai. Respondent No.1 is the Municipal Corporation of Greater Mumbai and Respondent Nos.2 and 3 are the Education Officers and Superintendent of Secondary Schools run by Respondent No.1.
2. It is the case of the Petitioner that in or about 1965, the 1st Respondent passed a Resolution resolving to start Secondary Schools in Mumbai. Accordingly, the 1st Respondent Aswale 2/10 ::: Uploaded on - 10/02/2017 ::: Downloaded on - 11/02/2017 01:08:44 ::: writ petition 2275.13.doc has started about 52 Secondary Schools in the city of Greater Mumbai and out of these, 28 Secondary Schools are Multi Medium Schools and the remaining are single language / Medium schools.
Out of the total number of 52 secondary schools, it is stated that four Secondary Schools have been shut down due to want of students, and therefore, as on today, there are only 48 secondary schools. The details of the language-wise teachers working in these 48 schools have been set out in paragraph 5 of the Petition.
3. It is the case of the Petitioner that on / about 1996, the 1st Respondent published a language-wise seniority list of secondary school teachers. After publication of this language-wise seniority list, the 1st Respondent started giving promotion on the basis of language-wise seniority list without considering the fact that there are only 20 single Medium schools and the remaining are Multi Medium schools. It is thereafter stated that several representations were made to the 1st Respondent to prepare a common seniority list but the same were of no avail.
4. The Petitioner states that thereafter and due to the further representations of the Petitioner, the Additional Aswale 3/10 ::: Uploaded on - 10/02/2017 ::: Downloaded on - 11/02/2017 01:08:44 ::: writ petition 2275.13.doc Commissioner of the 1st Respondent conveyed a joint meeting on 29th March, 2011 for discussing the issue of seniority list of secondary school teachers. In the said meeting, the Additional Commissioner directed Respondent No.2 to prepare a common seniority list dated 31st October, 2012 and publish the same. It is the case of the Petitioner that though the Respondents prepared this common seniority list, it did not take the steps to give promotion on the basis of the same and instead published a language-wise seniority list on 6th July, 2013 (Exh 'G' to the Petition).
5. In this factual backdrop Mr. Desai, learned counsel appearing on behalf of the Petitioner, submitted that the impugned seniority list dated 6th July, 2013 prepared by Respondent No.3 is totally illegal and improper. Mr. Desai submitted that the Respondents have totally erred in not considering that they are running secondary schools in the Greater Mumbai and the provisions of the Secondary Schools Code are strictly applicable, and therefore, it was totally illegal on the part of the Respondents to prepare a language-wise seniority list, which according to Mr. Desai, was contrary to the provisions of the Secondary Schools Aswale 4/10 ::: Uploaded on - 10/02/2017 ::: Downloaded on - 11/02/2017 01:08:44 ::: writ petition 2275.13.doc Code. Mr. Desai contended that since the Secondary Schools Code was applicable, it was mandatory and binding on the Respondents to prepare the seniority list strictly as per Rule 61 of the Secondary Schools Code, 2011. By preparing a language-wise seniority list, it was clearly in violation of the said Code, was the submission.
6. Mr. Desai, learned counsel submitted that by creating this anomaly (having a seniority list language-wise rather than a common seniority list), the teachers who were junior have got promotion and have stolen a march over the other teachers who were senior and were serving as teachers for a longer period of time. Looking to all these facts, Mr. Desai submitted that the language-wise seniority list (Exhibit 'G' to the Petition) ought to be struck down by us and further direct the Respondents to give promotions to the trained teachers as per the common seniority list dated 31st October, 2012 (Exhibit 'F' to the Petition).
7. On the other hand Ms. Yadav, learned counsel appearing on behalf of the Respondents, submitted that the Municipal Corporation of Greater Mumbai (MCGM) conducts 49 Aswale 5/10 ::: Uploaded on - 10/02/2017 ::: Downloaded on - 11/02/2017 01:08:44 ::: writ petition 2275.13.doc aided secondary schools in seven different Mediums / languages in the city of Greater Mumbai. These seven Mediums are Marathi, Hindi, Urdu, Gujarati, Telugu, Kannada and English. Ms. Yadav submitted that the Assistant Municipal Commissioner-AMC (City) had called for a meeting in April, 2011 where he had given oral directions that in 2011-2012 the promotion of Head Master and Assistant Head Master is to be done as per the common seniority list and not as per the language-wise list. In accordance with this direction, a proposal was put up for verification of reservation quota to Backward Classes Cell (B. C. Cell). The B. C. Cell endorsed their remark that since prior to this, promotion was done by the language-wise list and now the proposal for promotion was to be done in consonance with the common seniority list, a clarification was sought as to what was to be followed. In the light of this, the Education Officer put up a proposal to A. M. C. (City) wherein it was pointed out that MCGM had multi-medium schools as well as single medium schools. Hence, medium-wise seniority for promotion of Head Master / Assistant Head Master would be more appropriate. Thereafter, AMC (City) directed that the legal department be consulted who also confirmed that promotions to Head Master / Assistant Head Master must be done on the basis of Aswale 6/10 ::: Uploaded on - 10/02/2017 ::: Downloaded on - 11/02/2017 01:08:44 ::: writ petition 2275.13.doc the language-wise seniority list.
8. Ms. Yadav further submitted that this apart, in a Writ Petition filed in this Court in the case of Supriya w/o Bhimrao Nalavade V/s Bapusaheb Kallappa Chougule and Others1, this Court categorically directed the Municipal Corporation to prepare a language/medium wise seniority list. Therefore, the counsel submitted that the language-wise seniority list was prepared and keeping in consonance with the decision of this Court in Writ Petition No.679 of 1980. Ms Yadav submitted that, therefore, there was no violation of any of the Rules of Secondary Schools Code as sought to be contended by the Petitioner. She submitted that nowhere the Secondary Schools Code or the Rules framed thereunder, mandate the creation of only a common seniority list or prohibit the preparation of a language-wise seniority list. For all the aforesaid reasons, she submitted that there was no merit in the said Writ Petition and the same be dismissed with costs.
9. We have heard the learned counsel for the parties at length and have carefully perused the papers and proceedings in the Writ Petition along with the Annexures thereto. We find 1 Writ Petition No.679 of 1980 decided on 28th February, 1984 Aswale 7/10 ::: Uploaded on - 10/02/2017 ::: Downloaded on - 11/02/2017 01:08:44 ::: writ petition 2275.13.doc considerable force in the argument canvassed by Ms. Yadav, appearing on behalf of the Respondents. We find that the reliance placed by Ms. Yadav on the judgment and order of this Court dated 28th February, 1984 in Writ Petition No.679 of 1980 is well founded. In that case, a common question that arose before this Court was the extent to which the Secondary Schools Code is applicable to and govern the conditions of service of teachers employed by the Municipal Corporation of Greater Bombay in its secondary schools. In this decision, after all detailed discussions, this Court directed as under:-
"The Corporation is, accordingly, directed to prepare fresh seniority lists of teachers in its secondary schools. The lists shall be prepared language medium wise. The lists shall be prepared strictly according to the provisions contained in Rule 61 and Annexure (45) of the Secondary Schools Code. The Corporation shall, based upon such lists, rearrange promotions to the posts of Head-Master, Assistant Head-Masters and Supervisors made after 3rd June, 1977 in its secondary schools. Those who have been promoted to the posts subsequent to 3rd June 1977 and do not become entitled thereto on the basis of the fresh seniority lists shall be reverted. Those who become entitled to the posts on the basis of the fresh seniority lists shall be so promoted. The Corporation shall carry out the aforesaid directions in full on or before 15th July 1984.
Rule accordingly in all the petitions. No order as to costs."
10. On a perusal of this decision, we find that this Court in Aswale 8/10 ::: Uploaded on - 10/02/2017 ::: Downloaded on - 11/02/2017 01:08:44 ::: writ petition 2275.13.doc fact considered the very same arguments with reference to the Rules, which are at that time were almost identical to the ones presently in force. It is only after considering all these Rules that this Court directed that the seniority list of teachers in secondary schools be prepared language/medium-wise. We, therefore, do not find any infirmity in the action of the Respondents in preparing a language-wise seniority list. Even otherwise, we have independently gone through the Secondary Schools Code and the Rules framed there under and do not find any prohibition therein that a seniority list cannot be created language-wise / medium-
wise. This also stands to reason because it would be ridiculous to promote a teacher who does not know a particular language as the Head-Master / Assistant Head-Master of that particular school. If one were to go by what the Petitioner contends, it would very well create a situation whereby an English medium teacher would become the Head-Master or Head-Mistress of an Urdu medium school and who may not know the said language. This would lead to an anomalous result whereby the teacher would be a principal of a school teaching in a language of which she knows nothing about. This certainly cannot be the intention.
11. In view of the foregoing discussions, we find no Aswale 9/10 ::: Uploaded on - 10/02/2017 ::: Downloaded on - 11/02/2017 01:08:44 ::: writ petition 2275.13.doc infirmity in the actions of the Respondents in preparing a language-wise seniority list. Hence, we find no merit in this Writ Petition and the same is dismissed. However, in the facts and circumstances of the case, we leave the parties to bear their own costs.
12. In view of disposal of the Writ Petition, nothing survives in the above Chamber Summons and the same is disposed off accordingly.
(B. P. COLABAWALLA, J.) (S. C. DHARMADHIKARI, J.) Aswale 10/10 ::: Uploaded on - 10/02/2017 ::: Downloaded on - 11/02/2017 01:08:44 :::