Bombay High Court
Mrs. Geetha Ganesh Assi. Teacher vs State Of Maharashtra The Dept. Of ... on 12 December, 2022
Bench: Nitin W. Sambre, Sharmila U. Deshmukh
1/9 11wp85-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 85 OF 2021
Mrs. Geetha Ganesh, Assistant Teacher ... Petitioner.
Versus
State of Maharashtra and Others. ... Respondents.
----
Mr. Yashodeep Deshmukh, i/by Akshay Kapadia, for the Petitioner.
Smt. S.S. Bhende, AGP for the Respondent Nos.1 to 3.
Mr. Prabhat J. Dubey, for the Respondent No.5.
----
CORAM : NITIN W. SAMBRE &
SHARMILA U. DESHMUKH, JJ.
DATE : December 12, 2022.
P. C. : (Per Sharmila U. Deshmukh, J):
1. By this petition, the Petitioner seeks inclusion of two years
of initial temporary service as an Assistant Teacher (English) rendered
during the academic year 1997-1998 as part of her service and all
consequential benefits as regards Career Advancement Scheme
Benefits/Time Bound Promotion Scheme and re-fixation of pay.
2. Heard Mr.Yashodeep Deshmukh, Learned Counsel
appearing for the Petitioner, Smt. S.S.Bhende, Assistant Government
Digitally
Pleader for Respondent Nos.1 to 3 and Mr. Prabhat J. Dubey for
signed by
SANJAY
SANJAY
ASARAM
ASARAM
MANDAWGAD
MANDAWGAD Date:
Respondent No.5-College.
2022.12.14
14:20:27
+0530
3. The Petitioner was initially appointed on the temporary
sanjay_mandawgad
2/9 11wp85-2021.doc
basis as an Assistant Teacher in English subject , against an advertised
post which was for reserved category, with effect from 20 th November,
1997 in Respondent No.5 - C D Barfiwala Junior College, which
appointment was duly approved by the Deputy Director of Education.
The renewed appointment of the Petitioner as Assistant Teacher with
effect from 16th June, 1998 in the same college for the academic year
1998-1999 was also approved by the Deputy Direction of Education. It
is the case of the Petitioner that as the post was meant for reserved
category, although the services of the Petitioner was continued on the
said post, the Petitioner was at the relevant time being fully qualified
and eligible to be appointed as an Assistant Teacher on regular basis
was not appointed.
4. In the year 1999, the Respondent No.4-Tolani College of
Commerce issued advertisement for the post of teacher in English
subject, which was a sanctioned / vacant post meant for open category.
The Petitioner applied and was appointed in the Respondent N0 4
College with effect from 16th June, 1999 on probation, the appointment
being approved by the Deputy Director of Education by communication
dated 29th February, 1999. In the interregnum, while leaving C D
Barfiwala Junior College and joining Tolani College of Commerce, there
was a summer vacation from 2nd May, 1999 to 15th June, 1999. The
issue in the present case revolves around this period of summer
vacation.
5. It is the case of the Petitioner that the Senior Auditor has
approved the Petitioner's pay, according to the fifth pay with two
sanjay_mandawgad
3/9 11wp85-2021.doc
increments after taking into account the Petitioner's service in C D
Barfiwala Junior College. However, subsequently, it was pointed that
there was a mistake in the earlier pay fixation and the date of next
increment should have been 1st November, 2019 instead of 1st
November, 2000, which was required to be corrected in the service-
book of the Petitioner. As the correction in the earlier pay-fixation
required the permission of the Task Force, the concerned college was
required to send the proposal for correction to the Senior Auditor,
which would be recommended by the Senior Auditor to the Task Force.
Accordingly, Tolani College of Commerce sent the proposal for
correction in the date of increment in service-book from 1 st November,
2000 to 1st November, 1999. By a communication of 29 th June, 2017,
the Task Force convened the decision that as the Petitioner's service in
C D Barfiwala Junior College was terminated, she was not entitled for
increment. After receipt of the communication, the proposal was sent
once again to the Task Force for review and reconsideration stating that
the Petitioners services was wrongly shown as terminated from 2 nd May,
1999, and the Petitioner is entitled for two increments, as per the
applicable Government Resolutions and circulars. By the
communication of 11th July, 2019, the Task Force convened their final
decision holding that upon leaving first college and joining other
college, if there is a break in service, the concerned college has to
forward the proposal for condonation of break in service within a
period of one year and as the same has not been done in the present
case, the request is rejected.
6. The issue in the present case is whether the summer
sanjay_mandawgad
4/9 11wp85-2021.doc
vacation period from 2nd May, 1999 to 15th June, 1999 is to be treated
as a service period or break in a service for which necessary proposal
for condonation of break in service has to be forwarded by the
concerned college within a period of one year.
7. Learned counsel for Petitioner submits that considering the
payment of the vacation salary to the Petitioner by State Government
for the period from 2nd May, 1999 to 15th June, 1999, it cannot be said
that there is any break in service and the vacation period is to be
construed as part of the service period. He further submits that that
being the position in law, the Petitioner is entitled to a revised pay-scale
with effect from 1st January, 1996 and also grant of Time bound
promotion benefits on completion of 12 years with effect from the year
2000 by counting her initial temporary service and payment of arrears
alongwith interest at the rate of 12% p.a.
8. In support of his contention, learned counsel for the
Petitioner relied upon the following judgments:
(i) Sumangala vs. The State of Maharashtra and Ors. , in
Writ Petition Petition No.601 of 2005, decided on
12.10.2009, by this Court (Nagpur Bench);
(ii) Yuvraj Nathuji Rodye vs. Chairman, Maharashtra State
Electricity Board, Bombay and Others; reported in 2008
(6) Mh.L.J. 384;
(iii) State of Andhra Pradesh and Another vs. Dinavahi
Lakshmi Kameswari; reported in (2021) 11 SCC 543.
9. Learned Assistant Government Pleader appearing for the
sanjay_mandawgad
5/9 11wp85-2021.doc
State has opposed the relief sought on the ground that the Petitioner
was initially appointed in the C D Barfiwala Junior College on purely
temporary basis and there was a break in the service. She further
contends that the relief sought by the Petitioner of inclusion of previous
temporary service in Respondent No.5-College cannot be considered on
account of failure to follow the procedure prescribed for condoning the
said break in accordance with the Government Resolutions dated 10 th
May, 1989 and 12th November, 1996.
10. We have considered the rival submissions of the parties.
There is no dispute as far as the factual matrix of the matter is
concerned. It is an admitted position that the Petitioner was working as
an Assistant Teacher in C D Barfiwala Junior College for the academic
year 1997-1998, and came to be appointed in Tolani College of
Commerce from 16th June, 1999. The period from 2 nd May, 1999 to 15th
June, 1999 was the summer vacation and for this period of summer
vacation, the salary was paid by the State Government. At this
juncture, it would be appropriate to reproduce Rule 13 of the
Maharashtra Employees of Private Schools (Conditions of Service)
Rules, 1981,(MEPS Rules) which deals with the vacation and vacation
pay, which reads under:
"13. Vacation and Vacation Pay :
(1) Subject to the provisions of this rule, all the
employees on the teaching staff including Head
Masters, Laboratory Assistants and Laboratory
Attendants in a school be entitled to vacations as
follows, namely:
sanjay_mandawgad
6/9 11wp85-2021.doc
(i) a short vacation which may either
commence in a month of October or November
every year generally to cover Diwali Festival;
(ii) a Summer vacation which may ordinarily
commence in the month of May, every year.
The dates of commencement and the periods of
vacations shall be notified by the Educational Inspector,
or as the case may be, the Education Officer in Zilla
Parishad.
(2) Non-permanent employee shall be entitled to the
salary for the period of vacation if he had served for a
major part of respective term and the temporary
vacancy such as vacancy on account of leave,
deputation or post created for a specific period, in
which he was originally appointed continues to exist
beyond the period of vacation and that the employee
continues to be in service after the vacation.
(3) If the Management terminates the services of a
non-permanent employee soon before the
commencement of Summer vacation, such non-
permanent employee shall also be entitled, in addition
to vacation salary, to pay and allowances for the gap
between the date of termination of his service and the
date of commencement of the vacation if the Education
Officer is satisfied that the termination of his service
was on the ground other than the possibility of
reduction in establishment.
(4) If a permanent employee after due notice, resigns
his post in the school on the last working day of the
term, he shall be entitled to the vacation salary.
(5) If a permanent employee after due notice, resigns
his post in the school in the middle of the term and if
the school is required to appoint a substitute who
would otherwise by entitled to vacation salary under
sub-rule (2), the permanent employee who has resigned
sanjay_mandawgad
7/9 11wp85-2021.doc
shall not be entitled to the vacation salary for the same
period.
(6) Untrained teachers appointed in the Secondary
Schools or Junior Colleges of Education during the
period from the 16th July, 1969 to 6th February, 1974
(both days inclusive) and allowed to get trained at their
own cost (by sanctioning leave for the entire period of
training) shall be entitled to the vacation salary during
the vacation immediately falling after their resuming
duties on completion of training."
11. A perusal of the aforesaid Rule of MEPS, shows that all the
employees of the teaching staff are entitled to summer vacation which
ordinarily commences in the month of May, and even non-permanent
employees are entitled for salary of period of vacation if the employees
have served a major part of respective term. Sub-Rule (3) of Rule 13,
provides that in the case of termination of service of non-permanent
employees before the commencement of vacation such non-permanent
employee shall be entitled, in addition to vacation salary, to pay and
allowances for the gap between the date of termination of service and
the date of commencement of the vacation subject to the satisfaction of
the Education Officer. Considering the Rule, in our opinion, if the
Petitioner was paid the vacation salary , it cannot be said that the
Petitioner was not in employment because payment of salary is a
condition of service and is payable only if the Petitioner was in
employment.
12. The reliance placed by the counsel for the Petitioner in
Sumangala (supra) is appropriate as the said decision deals with the
identical issue as to whether the discontinuation of the appointment of
sanjay_mandawgad
8/9 11wp85-2021.doc
the Petitioner at the end of the academic sessions and reappointment
amounted to breaks which was required to be condoned. This Court in
the said case Sumangala (Supra), has held that vacation is not a break
and if for this period, an employee is also paid salary under the Rules,
the employee would be considered to be in employment.
13. We agree with the proposition laid down in the decision of
Sumangala (supra). Considering the statutory provisions, in our
opinion, once the Petitioner has been paid salary for the period of
vacation, there is no break in her service and the appointment of the
Petitioner in Tolani College of Commerce immediately on the next date
of the end of the vacation would entitle the Petitioner to the inclusion
of two years of initial temporary services for claiming service related
benefits. The decision of the Task Force dated 29 th June, 2017 and 11th
July, 2019 is not in conformity with the statutory Rule 13 of MEPS and
decision of this Court in case of Sumangala (supra).
14. Considering the aforesaid, the following order is passed.
ORDER
(i) The services rendered by the Petitioner during the academic year 1997 to 1999 be counted for service related benefits;
(ii) The Respondents to grant the time bound promotional scheme benefits and to carry out revision of the pay by taking into consideration the initial temporary service for the academic year 1997 to 1999;
sanjay_mandawgad
9/9 11wp85-2021.doc
(iii) The Respondents to make the payment of the arrears due and payable after considering (i) and (ii) above, at the rate of 6% p.a., within a period of four months from today;
(iv) The Writ Petition is allowed in the above terms.
[Sharmila U. Deshmukh, J.] [Nitin W. Sambre, J.] sanjay_mandawgad