Pundlik Mahadeorao Belsare vs Deputy Director Of Education And ...
2006 Latest Caselaw 62 Bom

JUDGMENT

Sinha D.D., J.

1. Rule returnable forthwith. Heard finally by consent of Shri Pardhy, learned Counsel for the petitioner, Shri Patel, learned Assistant Government Pleader for the respondent Nos. 1, 2 and 4, and Shri Malokar, learned Counsel for the respondent No. 3.

2. Shri Pardhy, learned Counsel for the petitioner, states that the claim of the petitioner to the post of Head Master, which was accrued on 1-7-2001, has been denied by the respondent No. 3 Management without any justification and the action of the respondent No. 3 Management is also inconsistent with Sub-rule (3) of Rule 3 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. It is submitted that Shri Dethe, the then Head Master of the School, retired on 30-6-2001 and at the relevant time, the petitioner was the seniormost Teacher in the School run by the respondent Management. The letter dated 18-5-2001 issued by the Education Officer to the respondent Management, which was addressed to the Head Master of the School, clearly demonstrates that the petitioner was the seniormost Teacher after retirement of Shri Dethe and the then Head Master was directed to hand over the charge of the post of Head Master to the petitioner. It is further contended that the Education Officer once again considered the issue and after hearing the petitioner and Management vide communication dated 7-1-2003 held that as per the seniority list, the petitioner was the seniormost teacher and, therefore, the Management was asked to submit the proposal for appointment/promotion of the petitioner to the post of Head Master of the School to the Education Officer.

3. Learned Counsel Shri Pardhy further submits that till this date, the respondent Management has not initiated any departmental enquiry for any misconduct against the petitioner and no adverse remarks at any point of time were communicated to the petitioner before his retirement on superannuation from service. It is further contended that in spite of these facts and directions issued by the Education Officer, the respondent Management denied the claim of the petitioner to the post of Head Master with effect from 1-7-2001 without any justification and the conduct of the Management is also inconsistent with Sub-rule (3) of Rule 3 of the M.E.P.S. Rules and, therefore, though the petitioner stands superannuated from 31-10-2004, the petitioner may be appointed notionally in the post of Head Master with effect from 1-7-2001 and direction may be issued to the respondent Management to give him all consequential benefits accrued to the said post.

4. Shri Patel, learned Assistant Government Pleader for the respondent Nos. 1, 2 and 4, does not dispute the letter dated 18-5-2001 issued by the Education Officer as well as communication dated 7-1-2003 referred to hereinabove. In that view of the matter, it is evident that petitioner was the seniormost Teacher after retirement of Shri Dethe. Sub-rule (3) of Rule 3 of the M.E.P.S. Rules contemplates that Management of the School shall fill up the post of Head by appointing the seniormost member of the teaching staff, who fulfills the conditions laid down in Sub-rule (1) and who has satisfactory record of service. It is not in dispute that the petitioner was the seniormost Teacher after retirement of Shri Dethe and had fulfilled the conditions laid down in Sub-rule (1) of Rule 3 and there is nothing on record to show that service record of the petitioner was not satisfactory and, therefore, as per scheme of Sub-rule (3) of Rule 3 of the M.E.P.S. Rules coupled with communications issued by the Education Officer referred to hereinabove, it is evident that petitioner was entitled to be considered for the post of Head Master with effect from 1-7-2001.

5. It is also not in dispute that till the time petitioner was in service and even after retirement of the petitioner, no departmental enquiry of any kind was initiated against the petitioner nor the petitioner was punished for any misconduct. The learned Counsel for the Management is not in a position to place on record any document to demonstrate that the petitioner was punished for any misconduct alleged to have been committed by him either during tenure of his service or any enquiry was initiated after retirement of the petitioner.

6. In the backdrop of the above undisputed facts, we are of the view that petitioner, after retirement of Shri Dethe, was the seniormost Teacher as on 1-7-2001 and was fulfilling the conditions laid down in Sub-rule (1) of Rule 3 of the M.E.P.S. Rules and had satisfactory record of service and, therefore, was eligible to be appointed in the post of Head Master with effect from 1-7-2001. However, the claim of the petitioner was given gobye without any justification by the respondent Management. The petitioner is, therefore, notionally appointed as Head Master with effect from 1-7-2001. The respondent Management is directed to give all consequential benefits accrued to the petitioner as Head Master with effect from 1-7-2001 including pensionary benefits, if any.

7. The rule is made absolute in the above terms. No order as to costs.