Narhar Anant Deshpande vs State Of Maharashtra, Deputy ...
2002 Latest Caselaw 172 Bom

JUDGMENT

Marlapalle, J.

1. This petition, under Articles 226 and 227 of the Constitution, involves an issue regarding the post of Assistant Head Master/Head Master, which is an isolated post, on the basis of the law laid down by the Apex Court in the case Dr. Chakradhar Paswan v. State of Bihar and others .

2. The petitioner passed his B.A. degree in 1959, completed Diploma in Education in 1961 and M.A. degree in 1970. He has completed Diploma in Education at Graduates Basic Training Centre Dhulia conducted by the Education Department of the Government of Maharashtra. He came to be appointed as an Assistant Teacher in Sardar G.G. High School and Junior College with effect from 10th of June 1963. From 1976 onwards he was teaching to the higher secondary classes upto 1980-81. One Shri. M.K. Lohar was Head Master of the said High School and Junior College since August 1979 and on his retirement on 31st May 1981, Shri. V.B. Dixit, who was appointed as Assistant Head Master, came to be promoted to the post of Head Master from 1st June 1981 and in the post of Assistant Head Master one Shri. P.D. Tadvi was promoted. The petitioner alleges that he was superseded by Shri Tadvi and only because he belongs to Scheduled Tribes category. Shri Tadvi retired voluntarily as per resolution dated 1st July 1985 and on 6th July 1985 the petitioner came to be promoted to the post of Assistant Head Master. However, the said appointment was not approved by the respondent No.3 vide order dated 7th of October 1985. The Management therefore passed a fresh resolution on 17th October 1985 and promoted respondent No.5 to the post of Assistant Head Master with effect from 21st October 1985. Consequently the petitioner came to be reverted to the post of Supervisor with effect from 21st October 1985.

3. On 30th of December 1986 the respondent No.3 directed the management to reappoint Shri. Tadvi in the post of Assistant Head Master and accordingly a resolution came to be passed and Shri Tadvi was appointed as Assistant Head Master with effect from 5th of January 1987. As a result, respondent No.5 came to be reverted to the post of Assistant Teacher. On or about 30th of April 1987 Shri Dixit, Head Master retired and on 25th of April 1987 Shri Tadvi came to be promoted to the said post. The petitioner, in turn, was reappointed in the post of Assistant Head Master with effect from 1st May 1987. Thus, the post of Head Master was occupied by a candidate belonging to Scheduled Tribes and the post of Assistant Head Master came to be occupied by a person from open category. The petitioner claims that he was senior to Shri. Tadvi and he ought to have been appointed to the post of Head Master, which cannot be reservd as it was an isolated post. However, the petitioner could not be continued even in the post of Assistant Head Master and the respondent No.3 by his letter dated 10th February 1988 directed the Head Master to fill the post of Assistant Head Master as per clause (b) of sub-rule (10) of rule 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981 (hereinafter called as "the MEPS Rules,1981"). It is also admitted that subsequently by an order dated 25th of April 1989 the respondent No.3 approved the appointment of the petitioner as Assistant Head Master and he continued in the same post till 31st of March 1990 and he was promoted to the post of Head Master on 1-4-1990. On reaching the age of superannuation he retired with effect from 31-10-1995.

4. On his retirement from service we are required to consider the reliefs prayed for in prayer clauses (b), (c) and 4A. There is no dispute that respondent No.4 society runs two different schools, namely Sardar G.G. High School & Junior College at Raver and Sow. Kamlabai S. Agrawal Girls High School at Raver, District Jalgaon. When the petitioner approached us the Junior College had in all 34 classes with a student strength of 2030. The classes from V to X were exclusively of the boys whereas the Junior College was coeducation. In view of the strength of the school it had one post of Master and one post of Assistant Head Master as approved and sanctioned by respondent Nos.2 and 3. Whereas in the Girlss High School there was only one post of Head Master and there was no post of Assistant Head Master.

5. The management had maintained a common seniority list of all the teachers. The name of the petitioner appeared at Sr.No.1 in category B in the seniority list as on 30-6-1987 whereas, the name of Shri Tadvi appeared at Sr. No.2 in the category A. The initial date of joining of the petitioner is shown as 10-6-1963 whereas that of Shri Tadvi was shown as 15-6-1964. If the initial date of appointment is considered it is evident that, the petitioner was senior to Shri. Tadvi. Shri. Tadvi had completed his B.Ed. in 1962 whereas, the petitioner had completed D.Ed. in 1961 from the Graduates Basic Training Centre. We need not look into the petitioners grievance prior to 1st May 1987 as the petitioner himself has not challenged the reversion order dated 21-10-1985. The petitioners amended prayer is for the benefits available to the post of Assistant Head Master with effect from 1-5-1987 to 31-3-1990 and arrears in payment to the post of Head Master from 1-4-1990 to 31-10-1995.

6. There is no dispute that the post of Assistant Head Master under the Sardar G.G. High School & Junior College was an isolated post and in view of the decision of the Apex Court in the case of Dr. Chakradhar Paswan (supra) as confirmed by the Constitution Bench in the case of Post Graduate Institute of Medical Education and Research Chandigarh v. Faculty of Association and others , the roster of reservation was not applicable to the said post. Nevertheless we were required to consider the petitioners eligibility for appointment to the post of Asstt. Head Master. Rule 5(1) of the MEPS Rules 1981 states that, the Management of secondary school with more than twenty classes shall appoint Assistant Head to assist the Head in his organizational administrative and supervisory duties and sub rule (2) of the said rule further provides that subject to the provisions of sub-rule (5) the provisions of rule 3 relating to qualifications and appointment of Head shall mutatis mutandis apply to the post of an Assistant Head and Supervisor. Rule 3 deals with the qualifications and appointment of Head. Sub-rule (3) of rule 3 states that the Management of a school including a night school shall fill up the post of the Head by appointing the seniormost member of the teaching staff from amongst those employed in a school who fulfils the conditions laid down in sub-rule (1) and who has a satisfactory record of service. Sub-rule (1) of rule 3 lays down the conditions regarding qualifications. Explanation below sub-rule (3) of rule 3 states that the claim of the seniormost qualified teacher having satisfactory record of service, for appointment to the post of Head, may be disregarded only if he, of his own free will, gives a statement in writing to the Education Officer that he has voluntarily relinquished his claim to the post and this shall not debar him from being considered for subsequent vacancies as and when they occur. Sub-rule (4) of rule 3 provides that in the case of a girls secondary school or Junior College of Education for Women, the senior-most lady teacher fulfilling the conditions laid down in clause (b) of sub-rule (1) and having satisfactory record of service, shall be appointed as the Head of that school irrespective of her seniority vis-a-vis the male teachers.

7. The Deputy Education Officer (Secondary) Zilla Parishad Jalgaon has filed Return before us and stated that the petitioner was qualified for appointment to the post of Head as per the qualifications laid down in rule 3(1) of the MEPS Rules 1981 and, therefore, his appointment to the post of Assistant Head made with effect from 1-5-1987 was required to be approved by the Education Officer while rejecting the proposal of the management to appoint the petitioner in the said post. The Education Officer did not give proper reasons and by a subsequent communication dated 12-10-1989 such approval was granted perhaps on account of the fact that Shri Savkare, who belongs to the reserved category, had retired and on the reversion of the petitioner, the said Shri Savkare was appointed in the post of Assistant Head Master. The action of the Education Officer in declining to approve the appointment of the petitioner to the post of Assistant Head Master with effect from 1-5-1987 was per se illegal.

8. The next question that calls for our consideration is regarding relief to be granted to the petitioner. There is no dispute that the subject school was receiving 100 per cent grants from the State Government and Shri Savkare came to be appointed as Assistant Head Master by the management on account of directions given by the Education Officer and consequently the petitioner came to be reverted. From the date of the petitioners reversion till Shri. Savkare retired, it would not be expedient for us to grant the salary for the post of Assistant Head Master to the petitioner. The said period cannot be taken as break in the service of the petitioner and that too in the post of Assistant Head Master and his appointment in the said post shall be treated uninterruptedly from 1-5-1987 to 31-3-1990 notionally. His salary in the promoted post of Head Master shall ultimately be fixed on the basis that he was occupying the post of Assistant Head with effect from 1-5-1987 uninterruptedly and the arrears is payable in the said post of Head Master shall be payable to the petitioner.

9. In the result, we allow the petition and make Rule absolute in terms of prayer clauses (b),

(c)(1) & (2) and (D) A. The petitioner shall not be entitled for arrears in salary in the post of Assistant Head Master and his salary in the post of Head Master as on 1-4-1990 shall be fixed on the basis that he was occupying the post of Assistant Head Master with effect from 1-5-1987 uninterruptedly. The arrears so payable shall be disbursed within a period of three months from today. The consequent pensionary benefits shall be recomputed on the basis of the revision in the salary of the petitioner to the post of Head Master. No order as to costs.