Bombay High Court
Chandrakant Baburao Gondhali vs Dy. Director Of Social Welfare ... on 9 December, 2014
Bench: Naresh H. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4359 OF 1998
Chandrakant Baburao Gondhali,
adult, Occ. Special Teacher, residing
at 12, Jaybhavani Housing Society,
in front of T.V.Centre,
near Ujani Nagar, Solapur. ... Petitioner.
V/s.
1. Dy.Director of Social Welfare,
(Handicapped Division),
Maharashtra State, Pune.
2. District Social Welfare Officer,
Solapur, District Solapur.
3. The State of Maharashtra.
4. President, National Association for
the Blinds, Gala No.41,
Park Chowk, Solapur.
5. Dattatray Babruvahan Tambe,
adult, Occ. Special Teacher,
residing at Sihansan Nivas,
Near Vinay Grihavastu Bhandar,
Twin Solapur, infront of Water Tank,
Solapur. ... Respondents.
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Mr. S.G.Kudle, Advocate, for the Petitioner.
Mr. Vikas Mali, AGP for Respondent Nos.1 to 3.
Mr. Subhash Langote, Advocate for Respondent Nos.4 and 5.
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CORAM : NARESH H. PATIL AND
A.P. BHANGALE, JJ.
RESERVED ON : 04th DECEMBER, 2014.
PRONOUNCED ON : 09th DECEMBER, 2014.
JUDGMENT : (PER A.P.BHANGALE, J.)
1 Heard submissions at the bar. Perused affidavit on
record. The Petitioner questions the legality and propriety of
the order dated 04-05-1998 passed by the Dy Director of the
Social welfare (Handicapped Division), Pune on behalf of the
State on the ground that the Petitioner did not complete the
training within five years and was not eligible for promotion as
trained special teacher and that Respondent No.5 Shri Tambe
was senior as trained graduate teacher, the Petitioner was
refused the promotional post as trained graduate special
teacher.
2 Facts pleaded for the Petitioner are :-
The Petitioner having educational qualification as
graduate at the relevant time of his appointment, was
appointed on 01-10-1987 as 'Special Teacher'. According to the
Petitioner the training course for the visually handicapped
teachers was introduced by the State of Maharashtra in the
year 1990-91. The Petitioner completed the Diploma course in
teaching the visually handicapped during the period between
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01-07-1992 to 31-03-1993.The Pay scale of the Petitioner was
fixed at Rs.1350/- with effect from 19-06-1993, by the
Accounts Officer. The District social officer directed the
President of the school for visually handicapped, in question to
decide the Petitioner's seniority from the date of his initial
appointment. The District Social welfare officer, Solapur on 16-
12 1997 was pleased to hold the Petitioner as senior most
special teacher amongst the teachers working in the Rajiv
Gandhi Memorial School for the Blinds at Solapur. The said
order was set aside by Dy. Director of Social welfare by the
impugned order dated 04-05-1998 and Respondent no. 5
Tambe was held as Senior most Teacher on account of having
drawn higher pay scale than that of the Petitioner. Shri Tambe
was appointed on 01-08-1990 in the pay scale as trained
graduate teacher. According to the learned Advocate for the
Petitioner the Petitioner is Gondhali, nomadic tribe.
3 The question posed before us is as to whether
claim of the Petitioner to the promotional post of Special
teacher on the basis of the trained graduate Special teacher
was overlooked by the respondent no.1. Our answer is in the
negative for following reasons. It is contended on behalf of the
Petitioner that the Petitioner was entitled to claim the seniority
with effect from 01-10-1987 than the Respondent no.5 Shri
Tambe. Learned Advocate for the Petitioner argued that the
Petitioner was belonging to the scheduled tribe hence ought
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to have been promoted ahead of the respondent no.5 according
to him long absence of the Petitioner during the duty period
from 01-08-1990 to 31-05-1991 as pleaded by the respondents
was condonable as extraordinary leave.
4 The respondent State has opposed the Petition
defending the order under challenge on the ground that the
respondent no. 5 was educationally qualified as trained
graduate teacher ('special teacher') at the relevant time when
post of special teacher was to be filled in and was thus found
senior in service than the Petitioner. It is contended that
Petitioner was ineligible, not possessing the requisite
educational qualification as trained graduate teacher with one
year Diploma required for secondary school teacher of visually
handicapped. Petitioner not holding the Diploma could not
have been treated as trained graduate teacher. Furthermore he
was not in continuous employment as he was absent from duty
during the period between 01-08-1990 to 31-05-1991 and
breaks recorded in the service book of the Petitioner. Learned
counsel for the respondent State submitted that the categories
of A, B, C, D are of the trained teachers according to rules
while the untrained teachers came in the categories 'E' and 'F',
hence the Petitioner could not have jumped in to category of 'C'
in which the respondent no.5 as trained teacher already was at
the time of promotion to the higher scale as 'Special teacher'.
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5 On behalf of the Petitioner it is argued that the
Petitioner was on extraordinary leave during the aforesaid
period of absence between 01-08-1990 to 31-05-1991.
However we do not find material placed before us to believe
that the Petitioner was accorded sanction of extraordinary
leave by the competent authority as claimed on behalf of the
Petitioner. There is reason to believe that absence of the
Petitioner from the duty as teacher was without any acceptable
reason.
6 The policy of the respondent State, consistent with
the rules, indicates that the teacher who acquire the
educational qualification as trained graduate teacher first; will
have to be considered on priority in the higher scale as 'Special
teacher' as per seniority in the same category. Untrained
graduate teacher minus post graduate diploma could not have
been considered on par with the category of trained graduate
teacher so as to be promoted in higher scale as special teacher.
Respondent no.5 was already a trained graduate teacher in the
year 1989 and was appointed as such on 01-08-1990. The
Petitioner was appointed as graduate teacher on 01-10-1987
but he was untrained though appeared senior in age. The
Petitioner could not have jumped in to the category 'C' from the
category 'E' or 'F' of the untrained teachers in which he was
placed as untrained graduate teacher. The Petitioner did not
possess the requisite educational qualification i.e. diploma in
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training of the visually handicapped students in addition to his
graduate degree. On the other hand, the respondent no 5
possessed the necessary educational qualification as B.A. With
additional diploma to train the visually handicapped students.
In this peculiar fact situation, in our view the Petitioner and the
respondent no. 5 were not similarly circumstanced for both of
them to be considered on par for prospects of promotion in
service as trained graduate teacher. Petitioner was not entitled
to claim the right of promotion over and above the claim of
the respondent no.5. Even otherwise the petitioner can not
claim promotion merely on the ground that he belonged to the
scheduled caste or tribe in the facts of the case. The Petitioner
had no legal right to claim seniority and promotion over the
claim of the respondent no. 5-Shri Tambe in the facts and
circumstances of the case. Even assuming that the Petitioner
had right to be considered for promotion the impugned order
of promoting the respondent no.5 was absolutely faultless, free
from any arbitrariness. It is well reasoned, just and proper
under the circumstances. Untrained teacher cannot be
considered as senior to the trained teacher. They belonged to
different categories. The impugned decision was taken by the
Dy. Director, Social Welfare Division, (handicapped Division),
Pune after grant of opportunity of hearing to the rival
claimants and having observed the principles of natural justice.
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7 For all the reasons stated above and bearing in
mind the well accepted dictum from the service law
jurisprudence that an employee can not as a matter of right
claim promotion though he has right to be considered for
promotion. Hence we do not feel it essential in the facts and
circumstances of this case to disturb the impugned order in
exercise of extraordinary writ jurisdiction. No interference is
warranted in the well reasoned impugned order in the facts
and circumstances of the case.
8 The Petition is, therefore, dismissed with costs.
Rule is discharged accordingly.
(A.P.BHANGALE, J.) (NARESH H. PATIL, J.)
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