JUDGMENT A.H. Joshi, J.
1. Rule. Rule is made returnable forthwith. Heard finally by consent of parties. As affidavit is already filed and there are no reasons to postpone final disposal particularly when the question involved can be summarily decided.
2. Heard Mr. P.V. Kaslikar, learned Advocate for petitioner; Mr. A. Parihar, learned AGP for respondent No. 1 and Mr. S.K. Mishra, learned Advocate for respondents No. 2 to 4.
3. Petitioner is in employment of respondent No. 2. He was appointed as Primary Teacher on 12-7-1971 and is in continuous employment of the respondent No. 2, without any break in service.
4. Petitioner had acquired qualification of B.A. and B.Ed. in 1985. On the basis of existing policy of the State and qualification acquired by the petitioner, he was awarded pay-scale of Rs. 1400-2600 with effect from 1-7-1995, by order dated 10-11-1995 by posting of the petitioner in the said pay-scale in the category of teachers who can be awarded higher grade scale to the extent of 25% strength of Primary Teachers in Middle School. This action of the respondent Nos. 1 to 3 was also approved by the Education Officer.
5. On account of administrative reasons, the petitioner was again posted as Primary Teacher by order dated 28-2-2002. It is admitted that the petitioner had accepted his being brought down as Primary Teacher and it is also admitted fact that the respondents have protected his pay.
6. After the petitioner was brought to the post of Primary Teacher, he was liable to be brought in the Seniority List of Primary Teachers in the employment of respondent No. 2. It is seen that after his redrafting he was put in the seniority list at Sr. No. 275 showing his date of appointment to be 28-2-2002.
7. Petitioner represented to the respondents against this positioning and prayed for giving him correct position according to the date of initial appointment. Petitioner's representation was rejected by the respondent No. 2 by communication dated 23-8-2004 stating that his seniority in service has been fixed from the date of his re-entry in the Primary Teacher cadre.
Aggrieved by the action of respondents 2 to 4, petitioner has approached this Court praying that respondents No. 2 to 4 be directed to correct seniority list of the Primary Teachers by showing date of appointment of petitioner as 12-7-1971instead of 28-2-2002.
8. In the affidavit in reply, the respondents No. 2 and 3 have reiterated their stand as contained in letter dated 23-8-2004. It is admitted in the reply that for the purpose of retirement, petitioner will be deemed to be in employment with effect from 12-7-1971 and will be entitled to all benefits since then, however, maintained that the placement of petitioner in Seniority List at Sr. No. 275 was correct and no indulgence was called for. According to the respondents, since the petitioner was transferred from Primary Teachers cadre to Middle School Teachers cadre, his re-entry as a Primary School Teacher would be the date crucial to fixation of his seniority.
9. Respondents were called upon to state before the Court the rule of law on the basis of which seniority of petitioner was fixed. On behalf of respondents, one Dilip Bapurao Dahikar, Dy. Commissioner of respondent No. 2-Corporation has filed affidavit contents whereof read as under:
That Seniority list of primary teachers was prepared as per the Maharashtra Civil Services (Regulation of Seniority) Rules, 1982, and in pursuance of which the petitioner was placed in seniority list. Hence this affidavit.
On perusal of the relevant provisions of the Maharashtra Civil Services (Regulation of Seniority) Rules, 1982, it is seen that Rule 4(1) thereof governs the situation. Said Rule 4(1) reads as follows:
4. General principles of seniority.- (1) subject to the other provisions of these rules, the seniority of a Government servant in any post, cadre or service shall ordinarily be determined on the length of his continuous service therein.
Provisos to the said rule are not quoted as they are not relevant.
10. It is clear from Rule 4(1) quoted above that date of entry in the cadre is the factor determining the seniority. Admittedly, the petitioner has entered the cadre on 12-7-1971. After granting higher pay-scale, petitioner continued to be a Primary Teacher and he was granted graduate pay-scale on the basis of his seniority and qualification. When on account of administrative grounds he was required to be sent to his original cadre, it is gravely illogical and unsupported by rule of law to hold that his length of service as Primary Teacher rendered by him earlier would get forfeited.
11. Moreover, admittedly, there is no break in service of the petitioner and giving higher pay-scale and his transfer were all administrative acts. In the circumstances, this Court is satisfied that the act of respondents No. 2 to 4 in assigning to the petitioner the date of entry in the cadre as Primary Teacher to be 28-2-2002 is totally erroneous and is not supported by Rule 4(1) of the MCS (Regulation of Seniority) Rules, 1982.
12. This Court, therefore, finds that the petitioner shall be entitled to be placed in the Seniority List based on the date of his appointment as Primary Teacher which is 12-7-1971 to the original position which he had immediately before he was posted as Middle School Teacher or Graduate Scale Teacher.
13. The stand taken by the respondents No. 2 to 4 was found to be absolutely illogical and contrary to the express provisions of Rule 4(1) of the MCS (Regulation of Seniority) Rules, 1982. Respondents No. 2 to 4 are responsible for dragging the petitioner to this Court. These respondents are, therefore, liable to be saddled with costs. This Court quantifies the costs to a sum of Rs. 5000/- and directs that the amount of costs shall be paid to the petitioner within three months from the date of this order.
14. Rule made absolute in terms of paragraphs 12 and 13 above.