Bombay High Court
Chhannoolal Navin Vidya Bhavan Thru. ... vs State Of Maha. Thru. Secty. And 3 Ors on 8 April, 2020
Bench: A.S.Chandurkar, Vinay Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6436/2006
1] Chhannoolal Navin Vidya Bhavan Teachers Education Society
Gandhibagh, Nagpur through its Secretary-Tulsidas Bhaiyalal Verma.
2] Smt. Bharti Sudhir Pandey (Kum. Bharti Mishra),
Assistant Teacher,
Chhannoolal Navin Vidya Bhavan High School,
Gandhibagh, Nagpur. ..PETITIONERS
Versus
1] State of Maharashtra through its Secretary,
Education Department, Mantralaya,
Mumbai.
2] The Dy. Director of Education,
Nagpur Division, Near T Point, Sitabuldi,
Nagpur.
3] The Education (Secondary),
Zilla Parishad, Nagpur.
4] Shri Devendra s/o Tarachand Gharde,
Assistant Teacher, Chhannoolal Navin
Vidya Bhavan High School, Gandhibagh,
Nagpur. ..RESPONDENTS
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Shri Devdatta Deshpande, Advocate with Shri Anand Parchure, Advocate for petitioners.
Shri M.A.Kadu, Assistant Government Pleader for respondent nos. 1 to 3.
Shri H.A.Deshpande, Advocate for respondent no.4.
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CORAM : A.S.CHANDURKAR and VINAY JOSHI, JJ.
DATE ON WHICH THE ARGUMENTS WERE HEARD :05.03.2020 DATE ON WHICH THE JUDGMENT WAS PRONOUNCED :08.04.2020
1. The petitioners take exception to the order dated 10.11.2006 passed by the Education Officer (Secondary), thereby adjudicating the dispute pertaining to inter-se seniority between the petitioner no.2 and the respondent no.4. ::: Uploaded on - 08/04/2020 ::: Downloaded on - 09/04/2020 07:20:53 :::
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2. The facts relevant for deciding the challenges as raised are that the petitioner no.1-Education Society is running a school which imparts education to students from standards 5 th to 10th. On 28.07.1998 an advertisement was issued seeking to appoint Assistant Teachers. One post was earmarked for a Lower Division Teacher for standards 5th to 7th and one post earmarked for Upper Division Teacher for standards 8 th to 10th. The petitioner no.2 having qualifications of M.A., B.Ed came to be appointed on 01.08.1998 as Lower Division Teacher for teaching students of standards 5 th to 7th. On the same day, the respondent no.4 having qualifications of B.Sc, B.Ed. was appointed as Upper Division Teacher to impart education to students for standards 8 th to 10th.
In the combined seniority list the petitioner no.2 was shown as senior to the respondent no.4 though both of them were appointed on the same date for the reason that the petitioner no.2 was senior in age to the respondent no.4. After retirement of the Head Mistress, the petitioner no.2 on 01.08.2006 was appointed In-charge Head Mistress and approval was sought in that regard from the Education Officer (Secondary). The petitioner no.2 was granted administrative and financial powers vide communication dated 03.10.2006. A dispute arose between the petitioner no.2 and the respondent no.4 as regards their inter-se seniority. The Education Officer (Secondary) after hearing both sides passed an order on 10.11.2006 and held that the initial appointment of the petitioner no.2 in the primary section was as an untrained teacher. As the petitioner no.2 entered Category 'C' after the respondent no.4 entered the same, it was held that the respondent no.4 was senior in service than the petitioner no.2. Being aggrieved, the said order has been challenged in the present writ petition.
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3. Shri Devdatta Deshpande, learned counsel for the petitioners submitted that the Education Officer (Secondary) misdirected himself by treating the petitioner no.2 as an untrained teacher when she was initially appointed on 01.08.1998. The petitioner no.2 having acquired qualifications of M.A, B.Ed. while entering service and she being senior in age to the respondent no.4, she was rightly shown as senior to the respondent no.4 in Category 'C'. Government Resolution dated 25.06.1992 was wrongly relied upon by the Education Officer while passing the impugned order. Placing reliance on the decision in Lakhwinder Kaur Gurai Vs. Garison Children Education Society and others, 2006 (5) Mh.L.J.332 , it was submitted that the entitlement of the petitioner no.2 could not have been defeated by relying upon the said Government Resolution. He also placed reliance on the decision in Saramma Varghese Vs. Secretary/President 1989 Mh. L. J. 951 to submit that though the petitioner no.2 and the respondent no.4 were appointed on the same day, the petitioner no.2 being senior in age was rightly treated by the Management as being senior to the respondent no.4. He also referred to the judgment dated 28.11.2019 in Writ Petition No. 5168/2017 (Subhash Daulatrao Warkhokar Vs. Vishwas Education Society and others) as well as Circulars dated 11.11.2011 and 03.05.2019 to substantiate his contentions. He therefore submitted that on a proper consideration of the statutory provisions, it was clear that the petitioner no.2 was senior in service to the respondent no.4.
4. On the other hand, Shri H.A.Deshpande, learned counsel for the respondent no.4 supported the impugned order and submitted that as the petitioner no.2 was initially appointed for teaching classes 5 th to 7th the qualification required was D.Ed. and not B.Ed. Though the school was conducting classes from standards 5 th to 10th, that part ::: Uploaded on - 08/04/2020 ::: Downloaded on - 09/04/2020 07:20:53 ::: 4 wp6436.06(J) of the school with regard to classes 5 th to 7th was required to be considered as imparting primary education and the qualification of a teacher was to be applied in that context. The petitioner no.2 when appointed was thus untrained. Only when the petitioner no.2 was appointed as Upper Division Teacher in March 1999, she entered in Category 'C' of Schedule F attached to the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short, 'the said Rules'). He then submitted that in fact the up- gradation of the petitioner no.2 in the secondary school for classes 8 th to 10th was contrary to law inasmuch as the petitioner no.2 when appointed had crossed the maximum age limit that was prescribed for appointment of an assistant teacher. He referred to Rule 9(4) of the said Rules in that regard. It was also urged that for the purpose of determining the seniority in the context of Category 'C' the date on which the concerned teacher entered that category was relevant. Since the petitioner was an untrained teacher when she was initially appointed on 01.08.1998 she had to be treated as being junior in service to the respondent no.4 who had entered Category 'C' on 01.08.1998 itself. Placing reliance on the decisions in Jayashree Sunil Chavan Vs. State of Maharashtra and others 2000 (3) Mh.L.J. 605, Kondiba s/o Dattarao Mirashe Vs. State of Maharashtra and others 2003 (2) Mh.L.J.432, State of Maharashtra and others Vs. Tukaram Tryambak Chaudhari & Ors. 2007 (2) All MR 933, Vaijanath s/o Tatyarao Shinde Vs. Secretary, Marathwada Shikshan Prasarak Mandal and others, 2006 (6) Mh.L.J. 682, Shitala Prasad Shukla Vs. State of U.P. and others, AIR 1986 SC 1859, Viman Vaman Awale Vs. Gangadhar Makhriya Charitable Trust and others, (2014)13 SCC 219, Nehru Shikshan Sanstha, Pune and another Vs. Smt. Shobha Karve and others 2009 (2) Mh. L.J.195, Chairman/Secretary, Institute of Shri Acharya Ratna Deshbhushan Shikshan Prasarak Mandal, Kolhapur and another Vs. Bhujgonda B. Patil, 2003 (3) ::: Uploaded on - 08/04/2020 ::: Downloaded on - 09/04/2020 07:20:53 ::: 5 wp6436.06(J) Mh.L.J.602, L.P.A.No.202/2010 (F.F.Korde Vs. Education Officer(Sec.) and others) decided on 16.11.2017, Review Petition (St) No. 16115/2018 in WP.No.1679/2017 (Mamta P.Nimje Vs. State and others) decided on 13.07.2018 , Writ Petition No.14242/2018 (Mrs. Gaur Pratibha and others Vs. State of Maharashtra and others) with connected writ petitions, decided on 09.04.2019, and in Writ Petition No.1850/2009 (Sou.Sunita C.Nagotkar Vs. State of Maharashtra and others) decided on 10.12.2009, it was submitted that as the Education Officer (Secondary) rightly found the respondent no.4 to be senior in service than the petitioner no.2 the said order did not call for any interference.
Shri M.A.Kadu, learned Assistant Government Pleader for the respondent nos. 1 to 3 also supported the impugned order.
5. We have heard the learned counsel for the parties and we have given due consideration to the rival contentions. The facts with regard to the initial appointment of the petitioner no.2 and the respondent no.4 on 01.08.1998 as well as their respective qualifications are not in dispute. It is seen that the school in question is a secondary school in which education for standards 5 th to 10th is being imparted. It is also a high school as per clause (4) of Chapter I of the Secondary Schools Code. The Education Officer (Secondary) is the Authority concerned as per Rule 2(e)(iii) of the said Rules. competent in that regard. As per provisions of Rule 12 of the said Rules read with Schedule F thereto, the petitioner no.2 as well as the respondent no.4 since their initial appointment entered category 'C'. The fact that the petitioner no.2 was initially appointed as Lower Division Assistant Teacher and the respondent no.4 was appointed as Upper Division Assistant Teacher would not be of much relevance in view of the fact that both of them entered category 'C' by virtue of being duly qualified on 01.08.1998. The ::: Uploaded on - 08/04/2020 ::: Downloaded on - 09/04/2020 07:20:53 ::: 6 wp6436.06(J) effect of higher pay being drawn by a Assistant Teacher on the question of seniority has been considered by the Division Bench in Saramma Varghese (supra). It has been held that what is of relevance is the date of entry in category 'C' and not the aspect of receiving higher scale of pay. In paragraphs 23 and 24 of the said judgment the following observations have been made :
"23. The provisions of the Act, Rules and the Code when analysed reduce themselves to the following principles :
Firstly, the Act and the Rules clearly stipulated that all teachers having B.A., B.Ed, or B.Sc. B.Ed rank together for the purposes of fixation of seniority (Note 1 Paragraph 2 Scheduled F to the Rules).
Secondly, the Act, Rules or the Code make no distinction based on the Division of the School in which a teacher teaches. The only distinction made is between permanent and temporary teachers (Rule 10-Categories of Employees, Rule 68.1 Chapter III Section II of the Code).
Thirdly, the Rules and the Code reject the relevance of pay scale for the purpose of seniority. That is why Note 8 quoted at foot-note 26, enjoins the school to prepare a combined seniority list of teachers, notwithstanding the fact that trained graduate teachers in Junior Colleges draw higher scale of pay (Note 8 Paragraph 2 Schedule F to the Rules).
Fourthly, for the purpose of appointment of Head Masters and Supervisors in the S.S.C. level Schools, the trained teachers with M.A/M.Sc./M.Com. are considered equal to trained teachers with B.A./BSc./B.Com. degree. Therefore, a higher academic qualification too is not relevant for fixations of seniority of trained teachers (Note 3 Annexure 45 of the Code).
Fifthly, the only criterion for fixation of seniority of trained graduate teachers is the continuous officiation in such post of teacher (Notes 1, 2 and 3 below paragraph 2 of Schedule F to the Rules), depending upon their position on the ladder.
24. The Act, the Rules and the Code have made the petitioner and the respondent no.5 equal in all respects for the purpose of fixation of seniority for the simple reason that they fall in the same category-graduate teachers with B.Ed. There is a clear statutory rejection of the respondents contention that the respondent no.5 is senior to the petitioner because she draw a higher pay. Similarly, the Act, Rules and the Code do not admit of any distinction based on the division in which the petitioner and ::: Uploaded on - 08/04/2020 ::: Downloaded on - 09/04/2020 07:20:53 :::
7 wp6436.06(J) the respondent no.5 teaches. This immediately negatives the claim of the respondents that the respondent no.5 is senior to the petitioner because the former teaches in what the respondents call the Higher Division. Such distinction is alien to the Rules and the Act. Once a person is a graduate teacher with B.Ed. degree, she ranks in seniority according to the date of continuous officiation. The legislature and the authors of the Code have so strongly asserted the equality of the petitioner and the respondent no.5 that they thought it necessary to declare that the appointment in a higher scale of pay or possession of post graduate degree is not relevant. We have no doubt that the petitioner is senior to the respondent no.5."
6. It is thus found that merely because the petitioner no.2 imparted instructions as Lower Division Assistant Teacher from 01.08.1998 till 01.03.1999 she would not be deprived of the advantage of entering category 'C' on 01.08.1998. The ratio of the aforesaid decision therefore assists the case of the petitioners herein.
7. Much emphasis was laid on behalf of the respondent no.4 on the fact that the requisite qualification for teaching classes 5 th to 7th was D.Ed. and that the petitioner no.2 had qualifications of M.A. B.Ed. While there cannot be any dispute with regard to requisite qualifications required for teaching classes 5 th to 7, it cannot be lost sight of the fact that on 01.08.1998 when the petitioner no.2 was appointed she was duly qualified to teach in the secondary school. Merely because she was asked to impart instructions for classes 5th to 7th and was drawing salary in a pay-scale lower than the respondent no.4, the same would not affect her seniority after having entered category 'C' on 01.08.1998. For the same reason the question raised by the respondent no.4 to the alleged illegal entry of the petitioner no.2 in service is also not relevant while determining the inter-se seniority between the petitioner no.2 and the respondent no.4 . While there can be no dispute with regard to the ratio of the various decisions relied ::: Uploaded on - 08/04/2020 ::: Downloaded on - 09/04/2020 07:20:53 ::: 8 wp6436.06(J) upon by the learned counsel for the respondent no.4, in the facts of the present case the same cannot be made applicable. The Full Bench in Vaijanath Tatyarao Shinde (supra) dealt with the question of seniority for the purpose of promotion to the post of Head Master of a primary school with which we are not concerned. Same is the position with regard to the decision in Viman Vaman Awale (supra) which also dealt with seniority in a primary school as observed in paragraph 22 thereof. The observations of the Division Bench in Gaur Pratibha (supra) in the context of secondary teachers supports the stand of the respondent no.4.
Thus, the only relevant aspect would be the date of entry into category 'C' and as noted above, the petitioner no.2 and the respondent no.4 entered category 'C' on 01.08.1998. It is an admitted position that the petitioner no.2 is senior in age to the respondent no.4 and hence as per Note 3 of Schedule F, a teacher who is senior in age will be entitled to be treated as senior.
8. As regards reliance placed by the Education Officer on the Circular dated 25.06.1992, it is to be noted that a learned Single Judge in Lakhwinder Kaur Gurai (supra) has considered the very same Circular and has observed that since the field with regard to requisite qualifications is covered by the said Rules, the Government Resolution dated 25.06.1992 would not have any legal effect. The Education Officer (Secondary) while passing the impugned order has ignored the fact that the petitioner no.2 entered category 'C' on 01.08.1998 along with the respondent no.4 and being elder in age, she was entitled to be treated as senior in service. The impugned order therefore is unsustainable in law.
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9. Hence for the aforesaid reasons, the order dated 10.11.2006 passed by the Education Officer(Secondary) is quashed and set aside. It is held that the petitioner no.2 is senior in service to the respondent no.4. She is entitled to all benefits in that regard. Rule is made absolute in aforesaid terms leaving the parties to bear their own costs.
This judgment shall be acted upon after expiry of period of eight weeks from today.
JUDGE JUDGE
Andurkar..
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