Shri Maruti Kamanna Patil vs Chairman, Nav Maharashtra ...
2003 Latest Caselaw 609 Bom

JUDGMENT

H.L. Gokhale, J.

1. This Petition under Articles 226 and 227 of the Constitution of India by an Assistant Teacher seeks to challenge his transfer from one school to another vide school management's letter dated 29.1.1990, whereby he was consequently denied the position of a Head master. It also seeks to challenge the order dated 22nd August, 1991 passed by the School Tribunal, Pune in Appeal No. 30 of 1990, filed by him invoking Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short "M.E.P.S. Act). The Petitioner has contended int hat proceeding that this transfer and thereby denial of the position of the Head Master amounted to his reduction in rank which submission was rejected by the Tribunal under the impugned order.

2. Respondent Nos. 1 and 2 to this Petition are Chairman and Secretary of the school management known as "Nav Maharashtra Shikshan Mandal" functioning in district Kolhapur. Respondent Nos. 3 and 4 are two teachers working in other schools of the same management, who are admittedly senior the Petitioner. Respondent No. 5 is the Presiding Officer of the School Tribunal and Respondent No. 6 in the Education Officer of Zilla Parishad.

3. The Petition is opposed by the school management through an affidavit in reply filed by Respondent No. 1. Respondent No. 6 has also filed an affidavit in reply. He has however, supported the submissions of the Petitioner on interpretation of the Government Resolution dated 16.2.1990 on which reliance is placed by the Petitioner.

4. The facts leading to the Petition are as follow:-

It is the case of the Petitioner that this Nav Maharashtra Shikshan mandal started a school some time from June, 1981 in a village viz. Halkarni in Tq.Chandagad of District Kolhapur. It is his further case that he joined this school right from its inception i.e. from 13th June, 1981 and that he functioned as Head Master of that school since then, though the formal appointment letter as such came to be issued later i.e. on 12th June, 1983. The Petitioner relies upon a chart prepared by the school management showing seniority of the staff in this school at Halkarni and which chart is maintained as per the requirements of the aforesaid M.E.P.S. Act. It is further case of the Petitioner that this school was initially not an aided one and from time to time it went on receiving enhanced aid from the State government. It finally became 100% aided school from the academic year 1989-90. It is at that point of time that the Petitioner was transferred on 29.1.1990 to a school of the same management situated in another village by named Nittur in the same taluka and in his place Respondent No. 3 herein was brought in as Head Master.

5. Being aggrieved by the aforesaid transfer the Petitioner contended that he was functioning as Head Master of the school at Halkarni and that this transfer and thereafter his posting as an Assistant Teacher in the school at Nittur amounted to a reduction in rank. He therefore, preferred an Appeal against that decision under Section 9 of the aforesaid M.E.P.S. Act before the School Tribunal at Pune. Respondent Nos. 4 and 5 to the present proceedings also filed a reply in that proceeding pointed out that they were senior to the Petitioner. The school management led evidence and it produced appointment order dated 16th May, 1981 which clearly stated that the Petitioner was appointed as Incharge Head Master of the school at Halkarni and not a full-fledged Head Master. It was contended on behalf of Respondent Nos. 1 and 2 that the Petitioner was not qualified and eligible to be appointed as the regular Head Master in the year 1981 and therefore, he was appointed as Incharge Head Master. He continued as such and ultimately when the school at Halkarni became fully aided school, a teacher senior to the Petitioner as per common seniority list of the teachers of the first Respondent was brought over to the school at Halkarni. It was submitted that this was as per the common seniority list which was fully justified and correct. The learned Presiding Officer of the School Tribunal raised necessary issues and after evidence and arguments held that the Petitioner was not appointed at the outset as the regular Head Master, and that there was no reduction in rank. The learned Judge thereafter dismissed the Appeal. As stated above, this Petition is filed to challenge the transfer order as well as the order of the School Tribunal.

6. Mr. Pakale, the leaned counsel appearing for the Petitioner submitted that the Petitioner had worked in the school at Halkarni when it was not an aided school. This was from the year 1981 until January, 1990 when he was ultimately transferred. He had worked when the salary was less since the school was not an aided one and when the school ultimately gained the necessary aided status, he was being sent out and this was not fair. he submitted that this amounted to some kind of mal-practice on the part of the school management and it is therefore, to curb these practices that the Education Officer (Secondary) Zilla Parishad, Kohapur had issued a circular dated 16.2.1990. he led emphasis on the provisions of this circular. This circular is in Marathi. The first two paragraphs of this circular when translated into English read as follows:-

"Education Department,             

Zilla Parishad, Kolhapaur.

16.2.1990.                            

To,

The Head Master,

All non-government

unaided and partially aided

Secondary Schools of Kolhapur district.

Subject:- Appointment of Head Masters.

This office has noticed that the Assistant Teachers working in the unaided and partially aided (with 25%, 50%, and 75% aid) secondary schools are not being appointed on the post of Head masters inspite of fulfilling the requirements of Rule 3(1) of the Service Rules of 1981, Written instructions have been issued to the concerned schools when they seek approval for promotion to the appointment of the teachers, According, it is necessary for the school managements to give appointment as Head Masters to the senior and eligible teachers and to obtain permission of this office or to obtain necessary concession as per Rule 3(2) or Rule 3(5)(b) of Service Rules from the Deputy Director (Education).

It is seen that instead of doing so in some places such teachers are sent to work as incharge head masters until the school becomes eligible for 100% grant and thereafter either they are removed or are transferred as Assistant Teachers to other schools and in that place other teachers are appointed. It is not proper and in violation of the relevant provisions."

7. Mr. Pakala states that the Petitioner had necessary qualifications and he had done his M.A. and B.Ed. (Bachelor of Education). That being so, he fulfilled the requirement of becoming head Master under Rule 3(1) of the M.E.P.S. Rules, 1981 which requires concerned person to possess a graduation and bachelor's decree in teaching (i.e. B.Ed.) and to possess not less than five years total full time teaching experience after graduation in a secondary school or two years experience after acquiring bachelor's decree in teaching (.e. B.Ed.). Mr. Pakale submits that assuming that the Petitioner did not have teaching experience prior to 1981, he completed five years in June, 1986 and therefore, when the school became 100% aided school in June, 1989, the Petitioner had to be regularised as per the above circular. Mr. Pakale also drew support from the affidavit filed by Respondent No. 6 - Deputy Education Officer. This affidavit accepts the aforesaid interpretation of Mr. Pakale and states in paragraph 4 that to avoid injustice in such situation to such teachers that circular dated 16.2.1990 had been issued by Respondent Nos. 1 and 2 have done great injustice to the Petitioner by not giving him appointment as Head Master.

8. Mr. Hushing, the learned counsel for Respondent Nos. 1 on the other hand submitted that the aforesaid government circular will have to be read as it is. The circular states that the same is issued to see that no injustice is done to the teachers working in any aided or partially aided school. If such teacher is having necessary qualifications under Rule 3(1) of the aforesaid M.E.P.S. Rules, he should not be denied his opportunity to become a Head Master. Mr. Hushing submits that this circular cannot over-ride common seniority which the school management is otherwise required to maintain under M.P.E.S. Rules, 1981. The State Government has framed salutatory rules under Section 16 of the Aforesaid Act known as "The Maharashtra Employees Of Private Schools (Conditions of Service) Rules 1981. Rule 12 of these rules mandates that every management shall prepare and maintain seniority list of the teaching staff and non-teaching staff in accordance with the guidelines laid down in Schedule "F". The seniority list so prepared is to be circulated amongst the teaching staff. Any subsequent change made in this list is to be brought to the notice of the members concerned. Thereafter objections, if any, are to be considered by the management and disputes, if any, inter-se on seniority are referable to the Education Officer. Schedule "F" to these Rules lays down the guidelines of fixation of seniority of the teachers in the school.

Note 5 of Schedule "F" reads as under:-

"Note 5 - Where a management runs more than one schools and where Junior College classes are or are not attached to any one or more of such schools, the seniority list for a particular cadre shall be a combined seniority list of all persons in that cadre working in all the schools (excluding night schools, if any), or Junior College classes attached to schools of the Management. The total continuous service rendered by the persons in a particular cadre in any school or Junior College class shall be taken into consideration for the purpose of seniority and for the purpose of promotion".

Mr. Hushing states that this note clearly lays down that a common seniority list is to be prepared by the management of all the persons who are teaching in its schools and total continuous service rendered by the persons in the particular cadre has to be taken into consideration for the purposes of seniority and for the purpose of promotion. This note being very fair and being a note to statutory rule cannot in any manner be whittled down by this circular.

9. We have considered these submissions of both the counsel and in our understanding the provision of note 5 to Schedule "F" is very clear which in turn lays down that there has to be a common seniority of all the teachers of the schools run by the management and as per seniority one becomes eligible to promotion. In the instant case we are concerned with the promotion. In the instant case we are concerned with the promotion to the post of Head Master. Two Assistant Teachers viz. Respondent Nos. 3 and 4 are admittedly senior to the Petitioner though they were working in other schools of the same management. It is only when the school at Halkarni became 100% aided school that the teachers in other schools would be interested in coming over there as Head Master. There is nothing wrong on their part in that. The fact that the Petitioner was working earlier in the school at Halkarni when it was unaided school cannot be pressed into service by him to the prejudice of the teachers who are otherwise senior to him. The management has seen to it that the doesn't suffer in any manner in terms of salary and he has been transferred as Assistant Teachers to another aided school of the same management. They have also led evidence before the Tribunal, Pune and placed on record his appointment letter which showed that he was appointed as an incharge Head Master, and was not qualified and eligible to be appointed as Head Master in the year 1981. This being the position, in our view, no fault can be found if the management decided to transfer him and it cannot amount to in any manner to reversion.

10. The circular dated 16.2.1990 if read in the manner in which it is suggested by Mr. Pakala, will create a separate class of unaided schools. The management will be required to maintain separate seniority list of the teachers in such school because he is pressing for the post of Head Master only on the basis of service rendered in this unaided school. This will amount to amendment of note 5 of Schedule "F" to the statutory post. If that was the intention, it would have been so specifically provided and in any case could not have been done by issuing a circular. The circular therefore will have to be read to mean that no injustice should be done to the Assistant Teachers in unaided school when they are having qualifications to become Head Master. That however, cannot mean that they can over-ride the seniority of others who are otherwise senior.

11. In this view of the matter, we do not find any error in the transfer order or in the order of the Tribunal. The order of the Tribunal is correct. The Petition stands dismissed though without any order as to costs.