Bombay High Court
Rajhans Narayanrao Shahapure vs Prabhavati Vithalrao Kamble And ... on 18 February, 2003
Author: B Marlapalle
Bench: B Marlapalle, V Munshi
JUDGMENT
B.H. Marlapalle, J.
1. Admit.
2. Shri R.R. Suryawanshi, Advocate waives service for respondent No. 1, Shri Chowkidar, Advocate holding for Shri G.G. Suryawanshi, Advocate waives service for respondent Nos. 2 and 3 and Shri V.S. Panpatte, Advocate waives service for respondent No. 4.
3. All the respondents have filed affidavit in reply and hence the appeal is taken up. for final hearing forthwith.
4. The respondent Nos. 2 and 3 are running a primary school at Kandhar in Nanded district and the Appellant came to be appointed in the said school as an Assistant Teacher on 20th of November, 1987. He passed his D.Ed. examination in January, 1992 and by order dated 16th of January, 1995 he came to be appointed as Head Master with effect from 5th January, 1995 for the said school. The said appointment was approved by the respondent No. 4, as is clear from the order dated 16th of September, 1999. However, the respondent No. 1, who had passed her B.A. in March, 1986, was appointed as an Assistant Teacher with effect from 10th June, 1986 in the same school and it appears that for some intervening period in the academic year 1996-97 she claimed to have been occupying the post of Incharge Head Master. She obtained the D.Ed. qualifications only in March, 1997 and it is obvious that till then she was not qualified to be appointed as an Assistant Teacher in a primary school even though she was holding the degree of Bachelor of Arts. She was issued an order of termination on 31st May, 1997 and being aggrieved by the same she filed Appeal No. 52 of 1998, though belatedly. Delay condonation application, filed separately, was allowed and finally the said appeal was decided in her favour by judgment and order dated 12th of September, 2001. Strangely, while setting aside the order dated 31st May, 1997 the respondent No. 1 was reinstated in the post of Headmistress by the School Tribunal. The present Appellant, therefore, challenged the said order in Writ Petition No. 4387 of 2001 and the same has been admitted but prayer for interim relief was rejected by observing that the continuation of respondent No. 1 as Headmistress would be subject to the result of the petition, by this Court, by order dated 7th January, 2002. Hence, this Letters Patent Appeal by the original petitioner in writ petition No. 4387 of 2001.
5. The only issue, which falls for consideration is, whether the Appellant-petitioner deserves to be continued in the post of Head Master while implementing the order of reinstatement granted in favour of respondent No. 1 by the School Tribunal.
The respondent No. 4 has filed an affidavit in reply and adjudicated the claim of inter se seniority between the Appellant and the respondent No. 1 by his order dated 4th February, 2003. The said respondent has held that the Appellant is senior to the respondent No. 1 as an Assistant Teacher in a primary school and, therefore, the Appellant being the senior most Assistant Teacher he was rightfully entitled to be continued as the Head Master and more so when his appointment to the said post has been approved by order dated 16th of September, 1999. The inter se seniority was tried to be disputed by the learned counsel for the respondent No. 1 on the ground that the initial date of joining of the respondent No. 1 is 10th June, 1986 whereas the Appellant has joined on 20th November, 1987. There is no doubt that for the purpose of seniority the initial date of appointment is required to be considered but for teachers who fulfilled the required qualifications for such appointments. In the instant case, respondent No. 1 was not qualified to be appointed as an Assistant Teacher in a primary school till 5th March, 1997 if regards be had to the provisions of Schedule-B and if the said provisions are read with Schedule-F of the M.E.P.S. Act it is clear that the present Appellant is senior to respondent No. 1 as an Assistant Teacher and as submitted by the Education Officer (respondent No. 4) he is the senior most teacher entitled for being continued as Head Master.
6. We, therefore, allow this appeal and direct that the appellant-respondent shall be continued in the post of Head Master by the respondent Nos. 2 and 3 even though the respondent No. 1 has been reinstated in service as an Assistant Teacher by the School Tribunal vide its order dated 12th September, 2001 which is the subject matter of challenge in Writ Petition No. 4387 of 2001. The continuation of respondent No. 1, as an Assistant Teacher, undoubtedly will be subject to the final outcome in the pending petition.
7. Costs in cause.
