Bombay High Court
Subhash Daulatrao Warkhokar vs Vishwas Education Society, Thr. ... on 28 November, 2019
Author: A.S.Chandurkar
Bench: A.S.Chandurkar
1 WP5188.17(j)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5188/2017
Subhash Daulatrao Warkhokar,
Aged about 52 years, Occ. Service as the Headmaster of
Vishwas Madhamik Vidyalaya & Jr. College,
Shrikrushna Nagar, Ring Road, Wathoda Layout,
Nagpur-09.
....... PETITIONER
...V E R S U S...
1] Vishwas Education Society,
Through its Secretary,
C/o. Vishwas Madhyamik Vidyalaya and Jr.College,
Shrikrushna Nagar, Ring Road, Wathoda Layout,
Nagpur-09.
2] Shri Nilkanth Dhonduji Gohtekar,
Age 52 years, Occ. Teacher.
R/o. 138-B, Gadgenagar,
Near Ramna Maruthi Road, Nagpur.
3] The Education Officer (Secondary),
Zilla Parishad, Nagpur. ....... RESPONDENTS
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Shri P.P.Thakare, Advocate for petitioner.
Shri B.G.Kulkarni, Advocate for respondent no.1.
Shri P.N.Shende, Advocate for respondent no.2.
Mrs. Harshada Prabhu, Assistant Government Pleader for respondent no.3.
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CORAM : A.S.CHANDURKAR, J.
DATED : 28.11.2019
ORAL JUDGMENT
The facts in brief are that the respondent no.2 was appointed as an untrained teacher in the School run by the respondent no.1-Society. His date of appointment as an untrained teacher is 24.06.1985. The respondent no.2 acquired ::: Uploaded on - 02/12/2019 ::: Downloaded on - 25/04/2020 00:58:19 ::: 2 WP5188.17(j) D. Ed qualification in July, 1985 and qualification of B.A. in October, 1988. He thereafter on 12.09.1992 acquired qualification of B.Ed. The petitioner who was also appointed as Assistant Teacher in the said school possessed qualifications of B.Sc. B.Ed. on 01.07.1991 when he entered in service. According to the respondent no.2, since he was appointed prior to the petitioner, he was entitled to be treated as senior on entering Category C of Schedule F under the provisions of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. The respondent no.2 being aggrieved by the order of promotion that was granted to the petitioner on 21.09.2015 approached the School Tribunal by filing an appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977 (for short, 'the said Act'). By the impugned judgment the learned Presiding Officer has allowed the appeal preferred by the respondent no.2 and has set aside the order of promotion granted to the petitioner. The respondent no.2 has been directed to be appointed as Head Master. That judgment is challenged in the present writ petition.
2. Shri P.P.Thakare, learned counsel for the petitioner along with Shri B.G.Kulkarni, learned counsel for the respondent no.1 jointly submit that in view of the judgment of the Hon'ble Supreme Court in Civil Appeal No. 11934/2014 (Ku.Bhawana Vs. State of Maharashtra and Ors. ) decided on 04.01.2019 which has been followed by the Division Bench of this Court in Writ Petition No. 14242/2018 with connected petitions ( Mrs. Gaur Pratibha and Ors. Vs. State of Maharashtra and Ors.) decided on 09.04.2019, it is clear that insofar as a secondary school teacher is concerned, the seniority has to be reckoned on the basis of entry in ::: Uploaded on - 02/12/2019 ::: Downloaded on - 25/04/2020 00:58:19 ::: 3 WP5188.17(j) Category C and the initial date of appointment in service is not relevant for determining such seniority. They submit that in the light of this clear position, the State of Maharashtra has after accepting the aforesaid decisions issued Government Resolution on 03.05.2019 stating therein that insofar as secondary school teachers are concerned, their seniority should be reckoned from the date they enter Category C. It is submitted that though the finding has been recorded in the impugned judgment that the petitioner entered Category C prior to the respondent no.2, the learned Presiding Officer has given importance to the initial date of appointment of the respondent no.2. It is therefore submitted that the judgment of the School Tribunal being contrary to the aforesaid decisions is liable to be set aside.
3. Shri P.N.Shende, learned counsel for the respondent no.2 supported the impugned judgment. He submitted that the decision of the Hon'ble Supreme Court in Viman Waman Awale Vs. Gangadhar Makhriya Charitable Trust & Ors. 2014(9) SCALE 389 did not relate to primary school teachers but the assistant teachers who had approached the Hon'ble Supreme Court were infact secondary school teachers. The distinction is carved out in paragraph 92 of the judgment of the Division Bench in Mrs. Gaur Pratibha (supra) is without considering this aspect and therefore the law as laid down in Viman Waman Awale (supra) ought to be followed on that premise. Since the respondent no.2 entered service prior to the petitioner, he was senior in service. Hence there was no reason to interfere with the judgment of the School Tribunal which has rightly accepted the seniority of respondent no.2.
Mrs. Harshada Prabhu, learned Assistant Government Pleader for the respondent no.3 submitted that pursuant to the decisions referred to hereinabove, ::: Uploaded on - 02/12/2019 ::: Downloaded on - 25/04/2020 00:58:19 ::: 4 WP5188.17(j) the State Government has issued Government Resolution dated 03.05.2019.
4. Heard learned counsel for the parties and perused the documents on record. The date on which the parties acquired their respective qualifications are not in dispute. The learned Presiding Officer in paragraph 15 of the judgment has recorded a finding that while the petitioner entered Category C on the date of his initial appointment on 01.07.1991 since he was a trained teacher, the respondent no.2 entered Category C on 12.09.1992 when he acquired training qualifications. In Ku.Bhawna (supra) it was noted in the facts of that case that the initial entry of the appellant in service was as an untrained teacher while the fifth respondent at the time of entry in service was a trained teacher. The said appellant acquired training qualifications after the fifth respondent entered services. On that premise, it was held that since the fifth respondent was a member of Category C from the date of his appointment and the appellant entered Category C thereafter, the fifth respondent was senior in service. This decision has been considered by the Division Bench in Gaur Pratibha (supra). The Division Bench has after referring to earlier decision in Viman Waman Awale and Ku. Bhawana (supra) observed that both the decisions operated in different fields. The earlier judgment pertained to primary school teachers while the later judgment considered the case of secondary school teachers. This finding is recorded in paragraph 92 of the said judgment. Though Shri Shende learned counsel for the respondent no.2 sought to urge that this distinction has been drawn without referring to the relevant facts, the said judgment of the Division Bench binds this Court and the attempt of the learned counsel for respondent no.2 as sought to be urged cannot be undertaken.
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5 WP5188.17(j)
5. The Division Bench after following the decision in Ku.Bhawana (supra) has held in clear terms that insofar as secondary school teachers are concerned, seniority must be reckoned from the date they enter in Category C on acquiring necessary qualifications and not from the date of entry in service. It is thus seen that the findings recorded by the learned Presiding Officer are contrary to the ratio of these decisions. Moreover, the State Government has clarified this position by issuing Government Resolution dated 03.05.2019. Hence the only conclusion that can be drawn is that the judgment of the School Tribunal dated 27.06.2017 cannot be sustained.
6. Accordingly, the judgment of the School Tribunal in Appeal STN No.01/2016 dated 27.06.2017 is set aside. The appeal preferred by the respondent no.2 stands dismissed. The order of promotion granted to the petitioner dated 21.09.2015 stands restored. The writ petition is allowed. Rule is made absolute in aforesaid terms with no orders as to costs.
JUDGE Andurkar..
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