Bombay High Court

Pandurang Mahadeorao Ghongde vs The Education Officer (Secondary on 22 December, 2009

Bench: C. L. Pangarkar

    W.P.No.1380.99                1

    IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                             
                  NAGPUR BENCH AT NAGPUR.




                                                     
                   WRIT PETITION NO.1380 OF 1999.


    PETITIONER :           Pandurang Mahadeorao Ghongde,




                                                    
                           aged 47 years, Occu: Service, resident
                           of Navegaon Khairi, Tq. Parshioni, Distt.
                           Nagpur.        




                                          
                                 VERSUS
                            
    RESPONDENTS:  1. The Education Officer (Secondary),
                       Zilla Parishad, Nagpur.
                           
                         2. Rashtriya Adarsha Vidyalaya
                             Shikshan Mandal, through its President
                             Shri Anandrao Ramji Deshmukh, resident
                             of Ramtek, Tq.Ramtek, Distt.Nagpur.
          


                       3. Shri F.F.Korde, C/o Rashtriya Adarsha
       



                           Vidyalaya, Navegaon Khairi, Tq.Parshioni,
                           Distt.Nagpur.

                       4. Shri R.B.Ambepawar,





                       5. Shri W.S.Sathaone,

                       6. Smt.S.B.Kimmatkar,





                           residents 4 to 6, C/o Rashtriya
                           Adarsha Vidyalaya, Ramtek, Tq.Ramtek,
                           Distt.Nagpur.

    =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-=-=-=-=-=-=
    Mr.H.A.Deshpande, Advocate for the petitioner.
    Mr.T.R.Kankale, AGP for respondent no.1.
    Mr.M.V.Raut, Advocate for respondent no.2.
    =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=


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     W.P.No.1380.99                    2

                           CORAM :    C.L.PANGARKAR,J.

                           DATED:     22nd DECEMBER, 2009.




                                                           
    ORAL JUDGMENT:

1. This writ petition is filed by the teacher serving with

respondent no.2 and challenges the order passed by the Education

Officer on 16/3/1999.

2. The facts giving rise to this writ petition are as follows -

Respondent no.2 is a Public Trust and a Society registered

under the Societies Registration Act and administers and manages

three secondary schools. All three schools are recognized school

and are, therefore, governed by the Maharashtra Employees of

Private Schools (Conditions of Service) Regulations Act, 1977. The

petitioner holds qualification H.S.C., D.Ed. and Dip.Ed. The

petitioner joined the service with respondent no.2 on 1/8/1975 as

a Middle School teacher and as an Assistant Teacher. Subsequent

to the joining the petitioner improved his educational qualification

and obtained a Degree in Arts i.e. B.A. in 1984 and B.Ed. in 1989.

Respondent no.3 was also appointed as an Assistant Teacher

(subject teacher) on 1/7/1985. At the time of initial appointment,

he was holding qualification M.A. H.D.Ed. The petitioner submits

that since beginning he was shown senior to respondent nos.3 to 6.

Respondent nos.4 to 6, however, never raised any dispute with

regard to the seniority of the petitioner. Ignoring this seniority, it is

alleged that respondent no.2 granted higher scale of pay to

respondent no.3 by placing him in 25% quota of the Middle School

teacher. Respondent no.3 was, therefore, upgraded as High School

teacher. Feeling aggrieved by the said action of respondent no.2,

the petitioner raised a dispute before the Education Officer with

regard to his seniority vis a vis respondent no.3. The Education

Officer, after hearing the petitioner and respondent no.3 and the

Headmaster, held the petitioner senior to respondent no.3 and

directed petitioner's upgradation and also directed respondent no.3

to be reduced in rank. Pursuant to the decision of the Education

Officer, dated 7/9/1994, the petitioner was put above respondent

no.3 in seniority list and was promoted as Upper Division Teacher.

The petitioner submits that after such seniority was fixed, the

petitioner was even promoted as a Supervisor on 1/7/1997.

Respondent no.3 moved the Education Officer challenging the

seniority granted to the petitioner by making a representation.

Respondent no.1 - the Education Officer without issuing notice to

the petitioner held that respondent no.3 was senior and directed

respondent no.2 to refix the seniority granted by letter dated

16/3/1999. It is this direction, which is under challenge.

3. It is the contention of the petitioner that the Education

Officer had no right to review the order passed by the Education

Officer on 7/9/1994 whereby the seniority of petitioner vis a vis

respondent no.3 was also fixed. Further, according to the petitioner,

respondent no.3 did not hold requisite qualification for

appointment as an Assistant Teacher in Middle School. According

to the petitioner, he was entitled to be put in 'C' category upon

completion of ten years of service and this has been ignored by the

Education Officer.

4. Respondent no.3 filed submissions and contended that he had

completed post-graduation in Marathi in 1984. He had obtained a

diploma in Education in 1983 and he was appointed on 15/7/1985

as an Assistant Teacher in Middle School. He also states that next

year he was absorbed in 25% quota in secondary school. According

to the respondent, he fell in higher category on the day he was

appointed as Assistant Teacher and therefore, his seniority was

rightly fixed by the Education Officer. The respondent relies on the

Government Resolution dated 14/5/1987, which says that the

services of Physical Education Teachers would be regularized as

secondary teachers. Pursuant to that G.R., he submits that he was

given status of a subject teacher and his pay was increased. The

respondent, therefore, contended that the petition is liable to be

dismissed.

5. The Education Officer supports the case of respondent no.3.

6. I have heard the learned counsel for the petitioner as well as

the respondents.

7. Following few are the undisputed facts -

The petitioner came to be appointed as an Assistant Teacher

in the Middle School on 1/8/1975. On the day he was appointed,

he held qualification HSC D.Ed. and Dip.Ed. He acquired degree

in 1984 and B.Ed. in 1989. Respondent no.3 was appointed as

Assistant Teacher on 1/7/1985 as subject teacher. His qualification

on the date of appointment was M.A.H. D.Ed. Respondent no.2 -

Management placed respondent no.3 in 25% quota of Middle

School and he was upgraded as Higher High School Teacher

treating him to be a senior. The petitioner, feeling aggrieved by

this, made representation to the Education Officer under Rule 12.

The Education Officer, after hearing the parties, passed an order

on 7/9/1994 and directed the upgradation of the petitioner as

Upper Division Teacher and the Upper Division Teacher status as

given to respondent was withdrawn. Respondent no.3 seems to

have sent representation to the Education Officer in 1997 about

seniority. The Education Officer without hearing the petitioner and

ignoring the order dated 7/9/1994 restored the position prior to

the order of 1994 and put the petitioner below.

8. Learned counsel for the petitioner raises three grounds to

challenge the order of petitioner being put below. (1) Once the

Education Officer has determined seniority by order dated

7/9/1994, he had no authority to ignore the earlier decision and

pass fresh order and thus review the earlier order. (2) Respondent

no.3 was not eligible for being appointed to middle school since he

did not possess necessary qualification, as H.D.Ed. qualification is

not qualification for the purpose of appointment in the Middle

School and (3) the G.R. of 1987 is against rules and is therefore of

no use.

9. Shri H.A.Deshpande, learned counsel for the petitioner,

submits that since the Education Officer has determined the

seniority in 1994 he could not have ignored the said position of

1994 in 1999 and could not have refixed the seniority. The

petitioner places on record the copy of the decision dated

7/9/1994. The order at Annexure I shows that the petitioner,

respondent no.3 and the Headmaster of the school were present at

the time of hearing and all were heard. It is after hearing the

concerned that the Education Officer had fixed the seniority in

1994 and held the petitioner to be senior. Annexure II is the copy

of the order-cum-letter of Education Officer dated 16/3/1999

which is under challenge. It does not disclose that the petitioner

was heard at all. It is precisely the defence of the petitioner that he

was not given copy of the representation of respondent no.3 nor

was he heard by the Education Officer before passing the second

order. For this reason, I think second order of 1999, in fact, needs

to be set aside. The strange part of the second order is that it does

not make a reference to the first order and does not say why the

first order needs to be recalled. The Education Officer has certainly

no right to overrule the seniority fixed by his predecessor. Only

course open to the parties would be to challenge the same in the

court of law. If the Education Officer is allowed to change the

seniority every now and then, there would be no end to it.

Therefore, where once such seniority is fixed, the party feeling

aggrieved is left with no alternative to approach the court of law.

For these reasons, the order passed on 16/3/1999 cannot stand.

10. This takes me to consider the legality of the second order

irrespective of the above reasons. The petitioner was H.S.C. D.Ed.,

Dip.Ed. on the day he was appointed. He fell in category 'E' of

Schedule 'F'. On the date of his appointment on 1/8/1975 he was

a trained graduate teacher. He obtained B.A. degree in 1984 and

therefore, rose to category 'D' in 1984. Later, in 1989, he obtained

B.Ed. degree but it appears to me that he entered category 'C' on

1/8/1985 itself. A teacher with a B.A. Degree and Dip.Ed. can

enter category 'C' upon completion of ten years service irrespective

of fact whether he is B.Ed. or B.T. Therefore, the petitioner

certainly entered category 'C' on 1/8/1985 and not in 1989, as is

contended by the respondents.

11. Respondent no.3 was holding a post-graduate Degree in

Arts i.e. M.A. He was holding qualification of H.D.Ed on the date

of appointment. The question that needs consideration is whether

respondent no.3 could be said to be a trained teacher on the date

he was appointed in the Middle School. Annexure R-3 with the

petition is a letter written by respondent no.3 to the Education

Officer on 28/9/1998. In this letter, the petitioner himself writes

that he was appointed as ordinary teacher i.e. the subject teacher in

the Middle School on 15/7/1985. Shri Deshpande, learned counsel

for the petitioner, submits that respondent no.3 was not eligible for

being appointed as Assistant Teacher itself in the Middle School

and could not be absorbed in 25% quota in 1986. Shri Deshpande

submits that respondent no.3 was brought in quota of 25% a year

after appointment, treating him as a trained graduate in secondary

Section. There is no dispute that qualification H.D.Ed. is treated at

par with B.Ed. Thus, he his treated as a trained graduate teacher.

He was, in fact, so on the day he was appointed. Thus, respondent

no.3 was holding the same qualification in 1996 as he held at the

time of appointment. Since respondent no.3 was appointed in a

Middle School Section in 1985, he could not be treated to be a

trained teacher in 1985. It is only a person holding a qualification

of D.Ed. or Dip.Ed. that could be treated as person qualified for

being appointed as a trained teacher in the Middle School Section.

The question is, therefore, whether one year's period i.e. from 1985

to 1986 which respondent no.3 spent as Assistant Teacher in

Middle School could be taken into consideration to treat him as

Senior; that is whether his appointment as a secondary school

teacher could relate back to the date of his initial appointment on

15/7/1985. My attention is invited to G.R.dated 14/5/1987 by

Shri Deshpande to which the reference is made by respondent no.3

in his submissions. Para no.3 of the said G.R. reads as follows -

3.3 The appointments of the Teachers having qualification H.DEd./B.P.Ed./B.Ed./Physical Education/ Training made till the end of year 1985-86 as General Teachers instead of Physical Education teachers should

be regularized as physical Education Teachers during

this period as per the formulae prescribed above at

Sr.Nos.1 and 2 and their appointments should be treated as regular from the dates of their first appointment.

12. The G.R. says that the appointment of such physical training

teacher would relate back to the initial date of appointment. The

G.R. seems to be against the Rules framed under M.E.P.S.Act.

Schedule B to the said rules gives out qualification as required by

rule 6. Respondent no.3 was indisputably appointed in secondary

Section in 1985. For the secondary Section, the qualification

should be S.S.C. D.Ed. Dip.Ed. Respondent no.3 was holding

H.D.Ed. which is considered equivalent to B.Ed. physical. This

court in a decision reported in 2000(3) Mh.L.J. 605 (Jayhashree

Sunilo Chavan ..vs.. State of Mah. and others) has held that the

D.Ed. is the requisite qualification for the primary teacher and

B.Ed. is not. Respondent no.3 was not, therefore, eligible for being

appointed as primary teacher at the time of his initial appointment.

In any case, therefore, the services of respondent no.3 cannot relate

back to the initial date of appointment. Further, if the G.R. referred

to above is read, it directs the concerned to take steps to amend the

concerned Acts and the Rules. I reproduce here the relevant

portion of the G.R.

3.3 The appointments of the Teachers having qualification H.DEd./B.P.Ed./B.Ed./Physical Education /

Training made till the end of year 1985-86 as General Teachers instead of Physical Education teachers should be regularized as physical Education Teachers during

this period as per the formulae prescribed above at

Sr.Nos.1 and 2 and their appointments should be treated as regular from the dates of their first appointment.

3.4. ..........

The necessary proposal be submitted to the Director of Education, Maharashtra State, Pune for

inclusion of the above order in secondary School Grant-

in-aid Code, Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and Rules 1981 for issuing necessary corrigendum at the proper

place.

13. The Government has not as yet amended the rule and the

Schedule B and F. Such rules cannot be overridden by issuing a

G.R. The Rule actually needs to be amended. The amendment not

having been carried in the Act and the Rules, the G.R. cannot take

effect. Respondent no.3, therefore, cannot be held to be senior to

the petitioner. The petitioner had in fact entered category 'C' on

1/8/1985. The petitioner's appointment in 1985 was invalid as he

was not qualified for being appointed in the secondary school

category. Therefore, the Education Officer was right in holding the

petitioner to be senior by order dated 1994. The subsequent order

passed by the Education Officer of 1999 which is under challenge