Mohanlal S/O Dipchand Bhansali vs State Of Maharashtra And Ors.
2002 Latest Caselaw 1266 Bom

JUDGMENT

R. G. Deshpande, J.

1. Petitioner has approached this Court challenging the Order No. ZP/Madhya/C/C2A.178/88 dated January 14, 1988 whereby the petitioner is removed from the post of Head Master and in his place respondent No. 5 Mr. Damodar Madhavrao Mathane is ordered to be promoted in view of the decision of the High Court in Writ Petition No. 2034/81 decided on December 18, 1987. He has also challenged the Order dated January 22, 1988, whereby the petitioner has been directed to hand over the charge to Shri Damodar Madhavrao Mathane and further that the approval which was granted to the appointment of the petitioner as Head Master has been withdrawn by the Department. The contention of the petitioner is that in fact he happened to be senior to respondent No. 5 as he was shown senior to respondent No. 5 in the seniority 1st which was then in existence on December 31, 1965. This contention is based on the ground that the petitioner happened to be an employee of old Madhya Pradesh State and his seniority as was shown on December 31, 1965 should have been maintained in accordance with the rules and regulations as applicable to the facts of the present case.

2. The relevant facts which are just necessary for the present decision, in short, are as under :

The petitioner after having obtained his Bachelor Degree in Arts, also obtained Master Degree from the Nagpur University in the year 1958. He obtained degree of Bachelor of Education in the year 1968 and also holds LL.B. Degree in his favour. He was appointed on July 1, 1958, as lecturer in Rashtriya Higher Secondary School run by respondent No. 4. i.e. Public Welfare Society where he continued to work as lecturer. According to the petitioner, the petitioner officiated as Head Master with effect from 2-6-1978 in view of the retirement of the earlier Head Master Mr. Surana. The petitioner was again given officiating appointment as Head Master on December 17, 1978, though in fact, he was already holding the post as officiating Head Master from June 2, 1978, itself. Respondent No. 2 also for the convenience of the Management, approved this appointment of the petitioner, however, strictly for the purpose for sending pay bills etc. This was by an order dated January 8, 1979. According to the petitioner, it was, for the first time, on April 27, 1982, he was given regular promotion to the post of Head Master and that order was to take effect from April 1, 1982.

3. Petitioner's contention is that he held the post of Head Master till the date he was served with an order dated January 14, 1988, whereby the Education Officer, according to the petitioner, upset his number in the seniority list and promotion was directed to be given to respondent No. 5 as Head Master. This direction was issued strictly in pursuance of the Resolution dated June 30, 1981, by the Management. This is exactly the order by which petitioner is offended.

4. Appropriate it would be at this stage to refer the relevant Bio-data of respondent No. 5. Respondent No. 5 was appointed as a High School Teacher on July 10, 1953. He had then obtained his Degree of Bachelor of Commerce which he had passed in Second Division. He completed his Bachelor of Teaching Degree in the year 1959. Respondent No. 5, after having obtained Bachelor of Teaching Degree in 1959, was raised to the post of lecturer on July 1, 1960. It is necessary to note here that at the time of initial appointment of petitioner in the year 1958 itself since the petitioner had already obtained Master Degree though in third division, was appointed as a lecturer whereas respondent No. 5 was brought in that category of lecturer in the year 1960. Necessary seniority list was drawn on February 24, 1965, in which the petitioner was shown at Sr. No. 1 whereas respondent No. 5 was shown at Sr. No. 2 indicating that the petitioner was senior to respondent No. 5. It is not disputed before us that this seniority list was also approved by the Education Officer. This seniority list, for the first time, was disturbed because of the representation made by respondent No. 5 and having realized that the contentions of respondent No. 5 are correct, and claim of respondent No. 5 to the post of Head Master was also justified, an order dated January 14, 1988, was issued by the Education officer thereby withdrawing the promotion of the petitioner to the post of Head Master and directing to promote respondent No. 5 in the post of the petitioner.

5. The contention of the petitioner is that the petitioner happened to be a confirmed teacher in the category of lecturer in the non-Government Higher Secondary School and his services were then governed by the provisions of Madhya Pradesh Secondary Education Act, 1951. The School in which the petitioner as well as respondent No. 5 were working is situated in Achalpur of Amravati District. This area of Vidarbha Region which initially was part and parcel of the old Madhya Pradesh State, therefore, was governed by the rules and regulations as applicable in that State and the services of the employees were also governed in pursuance thereof. This Vidarbha Region, which now is part and parcel of the Maharashtra State, was at the time of first re-organization State brought into the Bombay State and thereafter in the year 1960 in the Maharashtra State.

6. After formation of the State of Maharashtra, the education pattern then prevailing in the State of Madhya Pradesh underwent a considerable change and also in respect of the service conditions of the employees and their status in various categories. Certain circulars in that respect and Government Directions were issued. However, we are concerned only with the relevant circulars concerning the present subject. On July 15, 1955 in the erstwhile Madhya Pradesh State certain posts of lecturers were created and at that time the lecturers were given overriding seniority over other two categories in that Branch i.e. Upper Division and Lower Division Teachers. This was precisely because those who were having Master Degree and were appointed as Teachers were generally treated as lecturers or appointed as lecturers. At the relevant time, there was 3 tier system i.e. Lecturers, Secondary School Teachers and Middle School Teachers.

7. After the reorganization of the State in 1960, in the year 1971 Integration Committee was appointed by the respondent State and in pursuance of the directions of this Committee, common School Code for recognition and grant-in-aid to the non-Government Secondary School was introduced in the State. In pursuance thereof necessary directions were issued to all the Heads of the Secondary Schools to draw necessary seniority list of the teachers which was to be given in the categorised classification as 'A, B and C' and the seniority was to be shown in the said list on that basis. It is not in dispute that for the purpose of indicating the seniority of the teachers, the continuous service rendered by the concerned teachers in the same school or even in the other schools run by the same Management, was to be definitely taken into consideration. Yet, another Circular was issued in this respect which is dated September 2, 1968, that so far as regards the position in relation to the Circular issued on July 22, 1966, was there with the seniority of the teachers working in the Secondary School in the Vidarbha Region was directed to be fixed prior to 31st December 1965 in accordance with the erstwhile Act, 1951 and thereafter the seniority fixed prior to 31st December 1965 for the teachers who were permanent on that day was directed not to be disturbed or changed in any manner. This position as regards the seniority of 31st December, 1965 was again reiterated by subsequent Government Circular dated May 11, 1971. Thus, the position as was obtained on the record was that the seniority as shown on 31st December 1965 was supposed to be final seniority of so far as the employees of the erstwhile Madhya Pradesh State was concerned and it was supposed to be not changed in any manner.

8. The respondent Government, however, was again prompted to issue yet another Government Circular dated June 30, 1981. However, this Circular dated June 30, 1981, could not be straightway said to be an independent Circular. However, it was virtually in the nature of clarification of the earlier Circular which was issued on May 11, 1971 as also the other two Circulars issued in August, 1975 and May, 1979.

9. On the basis of this Circular of 1981 referred to above, respondent Government did issue certain directions such as the orders issued in pursuance of the Government Resolutions in its Education employment and new service departments on May 28, 1979 vide G. R. No. SSH/8678/722/XXX-XXXVII were to be treated as cancelled and that the directions as given in the Government Resolution dated August 25, 1975, should be followed in the matter of fixation of Pay Scales and also in the matter of promotions to the post of Assistant Head Masters/Head Masters in the non-Government Secondary Schools. Same was also supposed to be followed in the cases of promotions to the post of Supervisors and which was expected to be regulated strictly on the basis of the seniority of the employees concerned. However, a care was taken while issuing this Circular, that those cases as regards seniority and promotion which were already concluded by the Departmental Authorities were not supposed to be reopened. However, the cases which were pending on the date of coming into force of this Government Resolution they were to be strictly decided in accordance with the directions of the Government Resolution.

10. In pursuance of the above said Government Resolution while drawing the seniority list of the teachers of non-Government Secondary Schools and to be precisely in Vidarbha Region, the teachers who were permanent on 31st December, 1965, were directed to be categorized in two divisions only i.e. Upper Division Teachers and Lower Division Teachers. This clearly means that the third category which was there in the erstwhile State i.e. lecturer was done away with. It is also further directed through this Government Resolution, the seniority was to be in accordance with the directions given in Annexure 45 of the Secondary School Code which was in the field of operation at the relevant time. In pursuance of this direction, it was natural that Lower Division teachers were to be shown below the Upper Division Teachers in the list of seniority. It was further specifically directed that if anybody improves his position by obtaining required qualifications, then such a person was directed to be included in the Upper Division Category. It is also pertinent to note that this seniority was to be strictly drawn on the basis of length of service of the concerned employee.

11. At this stage again passing reference has been made to the facts that so far as regards the length of service was concerned, respondent No. 5 happened to be an employee of 1953 whereas the petitioner is an employee of 1958, which would clearly indicate that respondent No. 5 was having longer length of service than the petitioner.

12. Since the petitioner was dissatisfied with this decision of the respondent State, he was compelled to approach this Court through Writ Petition No. 2034/81 challenging the said Government Resolution which came to be dismissed by the Division Bench of this Court on December 18, 1987. The said petition came to be dismissed strictly in pursuance of the decision of this Court in Writ Petition No. 142/79 and other connected petitions which was decided on March 23 and 24, 1987. Suffice it would be to narrate here that the Government Resolution which happened to be the subject matter of challenge in Writ Petition No. 2330/81 at the instance of the petitioner i.e. Government Resolution of 1981 to which reference is made above, validity thereof has been upheld by the Division Bench of this Court in Writ Petition No. 142/79 and other connected petitions and that there was no further scope to decide anything as Second Division Bench did not find it necessary to differ with the Judgment of the earlier Division Bench.

13. In view of the decision of the High Court, it had become easier for the respondent Department to re-fix the seniority of the concerned employees and since length of service was to be given due weightage, it was but natural for the respondent State and the concerned Education Department to have placed respondent No. 5 in the seniority list even before the present petitioner who earlier was no doubt holding first position in the seniority list.

14. While drawing the above said seniority list, all concerned appeared to have been heard and as is clear from the record, the arguments and contentions of all the aggrieved persons were taken into consideration before refixing the seniority.

15. Shri Agnihotri, learned advocate appearing on behalf of the petitioner in this petition vehemently contended that it was not permissible for the respondents to have changed the position as in the seniority list as it was obtained on 31st December, 1965. He contended that since he was appointed as a lecturer in the old Higher Secondary Pattern even before 31st December, 1965, even though subsequently respondent No. 5 had better qualification, it was not permissible for the respondents to have effected any change in the seniority list as he had a overriding rise in the seniority over the trained graduate teachers so far as regards it relates to the question of promotion to the post of Head Master, Assistant Head Master or even for posting as Supervisor. Shri Agnihotri further contended that in accordance with the Madhya Pradesh School Code which was framed under the Madhya Pradesh Education Code, 1951, was made applicable to the non-Government Secondary Schools. Clause 7 thereof deals with the service conditions of the teachers and Clause 10(1) thereof strictly pertains to the seniority of the teachers. This clause as it was read as under:

"For all purposes, including application of time- scale, the period of service of a teacher shall, in the case of new entrants, be calculated from the date of first appointment in the School, if there is no break of service during the period proceeding the permanent appointment."

In response to this, it was the contention of Shri Agnihotri that even though respondent No. 5 happened to be an employee of 1953, however, so far as regards the seniority was concerned, since at the very initial appointment, the petitioner was appointed as a lecturer he naturally happened to be senior to respondent No. 5 and that is why according to Shri Agnihotri in the list which was prepared in the year 1965, the name of the petitioner appeared at Sr. No. 1. Shri Agnihotri further invited our attention to the fact that even after first reorganization of State, till the year 1965 the Vidarbha Region was yet governed by the Madhya Pradesh School Code, and till it was repealed by the Maharashtra Secondary School Code, Clauses 61 and 63 of the Madhya Pradesh School Code were dealing with the point of appointment and the duties of the Heads of the Schools and appointment of the supervisors. Annexure 45 thereof specifically dealt with the question of seniority inter se and this Annexure 45 through it Clause 5 specifically directed as under : "The seniority of non-Government secondary school teachers in Nagpur Region (now Nagpur and Amaravati Regions) who were permanent on 31st December 1965 should not be disturbed. Their seniority should continue to be determined as per statutory provisions contained in the M. P. Secondary Education Act, 1951 and the rules made thereunder. If any of such teachers, however, improves his qualifications and goes to the higher category, these revised guidelines of seniority will apply so far as the determination of his seniority in the higher category is concerned."

16. Shri Agnihotri, learned advocate heavily relied on this specific provisions of Clause 5 of Annexure 45 of the Madhya Pradesh School Code. Shri Agnihotri off and again contended that seniority list of 31st December 1965, by no stretch of imagination could be touched by anyone even though subsequent rules and regulations were introduced even after coming into force of Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, 1977. Per se this argument of Shri Agnihotri though appears to be appealing, however, we find it difficult at this stage immediately to express our opinion thereon as later part of the very same provision, in our view, cannot be said to be of any assistance or help to Shri Agnihotri's client. The words as are used in the said clause are; "if any of such teachers, however, improves his qualifications and goes to the higher category, these revised guidelines of seniority will apply so far as the determination of his seniority in the higher category is concerned."

17. Shri Madkholkar, learned advocate brought to our notice as to how word "such" has to be read and as to how it could be interpreted. In our opinion, Mr. Madkholkar is right when he invited our attention to a decision in the matter of Central Bank of India v. Ravindra and Ors., reported in 2001 AIR SCW 4468 wherein in para 43 thereof Lordships of the Supreme Court while dealing with this particular aspect sought assistance from the Webster Dictionary and which gives meaning of the word "such" as "having the particular quality or character specified; certain, representing the object as already particularized in terms which are not mentioned. In New Webster's Dictionary and Thesaurus, meaning of "such" is given as "of a kind previously or about to be mentioned or implied; of the same quality as something just mentioned (used to avoid the repetition of one word twice in a sentence); of a degree or quantity stated or implicit; the same as something just mentioned (used to avoid repetition of one word twice in a sentence); that part of something just stated or about to be stated." Thus, generally speaking, the use of the word "such" as an adjective prefixed to a noun is indicative of the draftsman's intention that he is assigning the same meaning or characteristic to the noun as has been previously indicated or that he is referring to something which has been said before. This principle has all the more vigorous application when the two places employing the same expression, at earlier place the expression having been defined or characterised and at the latter place having been qualified by use of the word "such" are situated in close proximity."

18. In view of this, we are of the opinion that in case a teacher improves his qualifications and goes to the higher category then seniority which in fact has to be seen is in that category wherein the teacher would enter by improving his qualifications as we have seen in the present case though the petitioner was initially appointed as a lecturer as he had already obtained Master Degree and though respondent No. 5 was only a graduate but who subsequently bettered his qualifications by obtaining Bachelor in Teaching Degree, was to be treated as a trained teacher even before the petitioner could obtain that Degree and could be addressed as a trained teacher.

19. Feeble attempts are made by Shri Agnihotri to prove his case by resting his arguments on the Judgment of this Court in Writ Petition No. 123/88 decided by this Court on July 11, 1988 Manohar Ramchandra Zamre and Ors. v. State of Maharashtra and Ors. Relying on this Judgment, Shri Agnihotri tried to contend that since the petitioner was officiating in the post of Head Master for approximately 4 years, Shri Agnihotri wanted to contend that he should have been deemed to have been confirmed on the post of Head Master under the provisions of the School Code and he, therefore, contended that it was not possible for the respondents to have removed the petitioner from the post of Head Master. Hollowness of his arguments is, it is an admitted fact that the petitioner was simply officiating and he was never promoted in the said post either on regular basis or by issuing a specific order of his regularization in the said post. In our opinion, this type of argument is nothing but an attempt to reach the summit with the help of spiders web. We are not in a position to accept this argument of Shri Agnihotri.

20. Shri Madkholkar, learned advocate appearing for respondent No. 5 argued and in our opinion rightly that the category to which reference is made in Annexure 45 of the Secondary School Code precisely shows that category mentioned in the said annexure refers to the rider of seniority. Inter se seniority of the teachers falling in any single category will have to be determined on the basis of their length of continuous service in that specified category, may be in the single school or any other schools run by the Management. In view of this arguments of Mr. Madkholkar and keeping in view that the Division Bench of this Court in Writ Petition No. 142/79 which is reported in 1957 LAB 1611, Yeshwant v. Director of Education, Government of Maharashtra, Pune and Ors., we find it not difficult at all to observe that the efforts of Shri Agnihotri are again to rest his claim on the said similar old Government Resolution of 1979 whereby he wanted to retain his seniority over respondent No. 5 and precisely resting his claim on Note 10(1) of the Act which deals with seniority contending that the petitioner was definitely senior to the respondent No. 5 in category "C". This argument of Shri Agnihotri is advanced specifically because according to the facts of the case at the relevant time both the petitioner as well as respondent No. 5 were in category "C". Since in our opinion the said Government Resolution of 1979, dated 28-5-1979 has already been done away with in view of the subsequent Government Resolution of 1981, we find that it would not be appropriate for the petitioner to rest his claim again on the same Circular as there is hardly any scope now for this Court to again interpret the said Circular once it having been under challenge and validity of the subsequent Circular having been uphold there hardly remains any point which would need any detailed adjudication again.

21. In spite of the above said facts, the Management by its Resolution dated December 17, 1978 promoted the petitioner to the post of Head Master though prior to that from 2-6-1978 he was officiating as Head Master. The facts disclose that till 1982 the petitioner was working as officiating Head Master whereafter he was served with the promotion order whereas, in fact it was the claim of respondent No. 5 who could not be treated to be junior to the petitioner and respondent No. 5 was definitely deprived of his rightly claim of his promotion.

22. This is what exactly prompted to the Education Officer, Zilla Parishad, Amravati to observe that though petitioner was junior to the respondent No. 5, he was working as a Head Master and legitimate claim of respondent No. 5 was denied. In our opinion therefore, the Education Officer was justified in issuing an order January 14, 1988 whereby respondent No. 5 has been directed to be promoted to the post of Head Master by withdrawing the promotion of the petitioner.

23. We see no error committed by the authority concerned. The order dated January 22, 1988, is subsequent in pursuance to the order dated January 14, 1988. We, therefore, see no substance in the petition. The petition stands dismissed. However, in the circumstances, there would be no order as to costs.