Bombay High Court
Vijayalaxmi Raising Patil vs Chalisgaon Education Society ... on 2 August, 2016
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2633 OF 2016
Sau. Vijaya w/o. Jyotirao Jadhav,
Age 56 Years, Occu-Service,
R/o.Shashtrinagar, Deogad Corner,
Near Icchapurti Ganesh Temple,
Chalisgaon, Dist. Jalgaon. PETITIONER
VERSUS
1.
The State of Maharashtra
Through the Secretary
of Higher Education,
Mantralaya, Mumbai
2. The Education Officer,
Secondary, Jalgaon,
(Copy to be served on G.P.
High Court, Aurangabad)
3. The Chalisgaon Education Society,
Chalisgaon, Dist-Jalgaon,
Through its Secretary
4. Anandibai Bankat Girl High School,
Chalisgaon, Dist-Jalgaon.
Through Assistant Headmistress
5. Sau-Vijayalaxmi w/o. Raising Patil,
Age-55 years, Occu. Service
Anandibai Bankat Girl High School,
Chalisgaon, Dist-Jalgaon RESPONDENTS
...
Mr.B.L.Sagar, Advocate h/f. Mr.
M.B.Sandanshiv, Advocate for the petitioner
Mr.S.D.Kaldate, AGP for Respondent - State
Respondent Nos.3 to 5 served
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2
WITH
WRIT PETITION NO.1807 OF 2016
Smt. Vijayalaxmi Raising Patil,
Age 55 Years, Occu. Service
As Head Misterss with A.B.
High School, Chalisgaon
Tq. Chalisgaon, District Jalgaon PETITIONER
VERSUS
1. Chalisgaon Education Society
Chalisgaon District Jalgaon
Through its Chairman / Secretary
A.B. High School Compound
Station, Chalisgaon District
Jalgaon
2. The Education Officer (S)
Zilla Parishad, Jalgaon
3. Smt. Vijaya Jyotirao Jadhav
Age years, Occu. Service
R/o. Shastrinagar Deogad Corner
Near Icchapurti Ganesh Temple
Chalisgaon, Dist. Jalgaon
4. The State of Maharashtra
Through Secretary
Education and Sports Department
Mantralaya, Mumbai-32. RESPONDENTS
...
Mr.Arvind S.Deshmukh, Advocate for petitioner
Mr.S.D.Kaldate, AGP for Respondent - State
Mr.B.L.Sagar, Advocate h/f. Mr.
M.B.Sandanshiv, Advocate for respondent no.3
Mr.R.J.Godbole, Advocate for respondent no.1
...
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3
CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 14.07.2016
Pronounced on : 02.08.2016
JUDGMENT: (Per S.S.Shinde, J.):
Heard.
2. Rule. Rule made returnable
forthwith, and heard finally with the consent
of the parties.
3. The petitioner in Writ Petition
No.2633/2016 viz. Vijaya Jadhav earlier had
filed Writ Petition No.5891/2015 before this
Court. The said Writ Petition was disposed of
by the Division Bench on 20.11.2015 and a
direction was given to the Education Officer
(Secondary), Zilla Parishad, Jalgaon, to hear
the parties, allow them to place on record
the documents and take a decision about the
issue of appointment of a full-time Head
Mistress/Headmaster on regular basis in the
respondent school, keeping in view the
provisions of the Maharashtra Employees of
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Private Schools (Condition of Service) Rules,
1981 (for short 'the Rules of 1981). In
pursuance of the said directions, respondent
no.2 Education Officer (Secondary) heard the
parties so as to take decision about who is
entitled for the appointment as full time
Headmistress. Upon perusal of the impugned
order, it appears that the parties were
heard, the necessary record was perused by
respondent no.2 and thereafter, in the light
of the provisions of the MEPS Rules,
respondent no.2 had taken a decision on
08.02.2016 that the petitioner in Writ
Petition No.2633/2016 Vijaya Jadhav is senior
to the petitioner in Writ Petition No.
1807/2016, viz. Vijayalaxmi Patil, incharge
Headmistress, and therefore, Smt. Vijaya
Jadhav, is eligible for appointment to the
post of Headmistress. The relevant portion
from the impugned communication dated
08.02.2016 in Writ Petition No.1807/2016,
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between the Education Officer (Secondary),
Zilla Parishad, Jalgaon and respondent no.1
reads as under:
fn- [email protected]@2016 jksth loZ lacaf/krkaph lquko.kh ?ks.;kr vkyh-
lquko.kh njE;ku izkeq[;kus lnjP;k ckch izkIr dkxni=kaP;k
vk/kkjs o egkjk"Vª [kktxh 'kkGkarhy deZpkjh ¼lsosP;k 'krhZ½
fu;ekoyh 1981 e/;s vlysY;k rjrqnh uqlkj fun'kZukl vkysY;k
vkgsr- R;k [kkyhy izek.ks uewn dj.;kr ;sr vkgsr-
1½ lkS-fot;k T;ksrhjko tk/ko] mif'kf{kdk o lkS-fot;ky{eh
jk;flax ikVhy ;kaph ewG use.kwd rkjh[k 22-06-1983 vkgs-
2½ eq[;k/;kfidk gs ,dkdh in vlY;kus vuq'ks"k o
jks"Vj ;k ckchapk laca/k ;sr ukgh-
3½ Jherh tk/ko o lkS-fo-jk-ikVhy ;kaP;k ckcr lkE; vkgs-
4½ lkS-fot;k tk/ko ;kaph tUerkjh[k 23-02-1959 vlwu lkS-
fot;ky{eh jk;flax ikVhy ;kaph tUerkjh[k gh 11-05-1960
v'kh vkgs-
5½ lkS-fot;k T;ksrhjko tk/ko o lkS-fot;ky{eh jk;flax
ikVhy ;kaP;kr lsokT;s"Brs fo"k;h okn vlY;kus egkjk"Vª [kktxh
'kkGkarhy deZpkjh ¼ lsosP;k 'krhZ ½ fu;ekoyhrhy fu;e dzekad
12 ¼ 3 ½ vUo;s fu.kZ; ?ks.;kl f'k{k.kkf/kdkjh ¼ ek/; ½ ftYgk
ifj"kn] tGxko gs l{ke izkf/kdj.k vkgs- R;keqGs ek-mPp
2633.2016WP+.odt
U;k;ky; eqacbZP;k vkSjaxkckn [kaMihBkr ;kfpdk dzekad
[email protected] e/;s fnukad 20-11-2015 jksth >kysY;k fu.kZ;kuqlkj
l{ke izkf/kdj.k Eg.kwu [kkyhy izek.ks fu.kZ; nsr vkgs-
fu.kZ;
lkS-fot;k T;ksrhjko tk/ko] mif'kf{kdk] vk-ca-xYlZ
gk;Ldqy] pkGhlxko ;k egkjk"Vª [kktxh deZpkjh ¼lsosP;k
'krhZ½ fu;e dzekad 12 ¼3½ o ¼4½ uqlkj lkS-fot;ky{eh jk;flax
ikVhy] izHkkjh eq[;k/;kfidk ;kaP;kis{kk lsors T;s"B vkgsr- lcc
lkS-fot;k T;ksrhjko tk/ko] mif'kf{kdk ;k vk-c-xYlZ gk;Ldwy
pkGhlxkao ;k ek/;fed 'kkGsr eq[;k/;kfidk ;k inh use.kqdhl
ik= vkgsr- R;keqGs ;k dk;kZy;kus fuxZfer dsysyk vkns'k fnukad
28-07-2014 o fnukad 26-05-2015 gs jnn dj.;kr ;sr vkgsr-
4. Writ Petition No.2633/2016 is filed
seeking enforcement and implementation of the
decision taken by the Education Officer,
Jalgaon. Writ Petition no.1807/2016 takes
exception to the order dated 08.02.2016
passed by the Education Officer (Secondary),
Zilla Parishad, Jalgaon. Therefore, both the
Petitions are heard together and being
disposed off by this common judgment.
5. Both the Writ Petitions were heard
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together on 05.05.2016. Upon perusal of the
impugned order/communication and after
hearing the learned counsel for the parties,
it was noticed that though the Education
Officer considered the provisions of Rule 12
of the MEPS Rules and Schedule-F thereunder,
he did not express his opinion about the
categories mentioned under Schedule-F,
clause-2. Therefore, respondent no.2 was
directed to hear the parties, confined to
Schedule-F, clause-2 of the MEPS Rules and
then prepare report and sent it to this
Court. Accordingly, the learned AGP has
tendered across the Bar copies of the report
prepared by the Education Officer, the same
is taken on record. It appears that during
the pendency of the Writ Petitions, the name
of Vijaya Jadhav has been included as Deputy
Headmistress in "B" category on 03.05.2016.
Respondent no.1 has placed on record
seniority list as on 01.06.2016. Therefore,
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both the petitioners are placed in "B"
category. However, the name of the petitioner
Vijayalaxmi Patil stands at serial no.1 and
the name of the petitioner Vijaya Jadhav
stands at serial no.2 of "B" category.
6. The learned counsel for Vijayalaxmi
Patil submits that she has been promoted to
the post of Assistant Headmistress earlier in
point of time and has entered in category-B
earlier to that of Vijaya Jadhav. Therefore,
she is required to be considered as senior to
that of Vijaya Jadhav. In support of the said
contention, the learned Advocate
Mr.Arvind Deshmukh relying on the reported
judgment of the Bombay High Court Bench at
Nagpur in the case of Madhav Govindrao Budhe
vs. Education Officer, Zilla Parishad, Nagpur
and others1 submits that the inter se
seniority of the teachers falling in any
single category should be determined on the
1 1994 (1) Mh.L.J. 42
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basis of their length of continuous service
in that category.
7. On the other hand, the learned
counsel for Vijaya Jadhav submits that Vijaya
Jadhav is senior to the Vijayalaxmi Patil. He
submits that though both the petitioners have
been appointed on the same date, Vijaya
Jadhav is senior by age and therefore, in
view of the Rule 3 (1) (b) of the MEPS Rules,
she is entitled for appointment to the post
of Headmistress. The learned counsel further
submits that merely because Vijayalaxmi
Patil is placed under "B" category prior to
that of Vijaya Jadhav, cannot be a ground to
ignore the seniority of Vijaya Jadhav. He
submits that the similar issue/controversy
was considered by the Division Bench of this
Court in the case of Chalisgaon Education
Society and another Vs. State of Maharashtra
and others in Writ Petition No.126/2001
decided on 15.09.2006, wherein Vijayalaxmi
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Patil was respondent no.3. He submits that in
that case, Vijayalaxmi Patil was appointed as
Assistant Headmistress in "B" category in the
year 1992 and the petitioner no.2 therein was
promoted as Assistant Head Master in "B"
category in the year 2000, the Division Bench
has taken a view that the petitioner no.2
therein will have to be considered as senior
taking into consideration his initial date of
appointment as Assistant Teacher.
8. The learned counsel for respondent
Education Society submits that both the
petitioners are placed in "B" category. The
petitioner Vijaya Jadhav is senior by age and
therefore, the Education Officer has held
that she is entitled for the appointment to
the post of Headmistress. Therefore, he
submits that this Court may pass appropriate
orders.
9. The learned AGP appearing for the
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respondent - State relying upon the averments
in affidavit-in-reply filed on behalf of
respondent State and State Authorities
submits that the impugned order passed by the
Education Officer is in consonance with the
provisions of MEPS Rules, and therefore, this
Court may pass appropriate orders.
10. We have considered the submissions
of the learned counsel appearing for the
petitioners and the learned counsel appearing
for the respective respondents. With their
able assistance, perused the pleadings in the
petition, annexures thereto, replies filed by
the respondents. Admittedly, both the
petitioners have been appointed on the same
date. However, the petitioner Vijaya Jadhav
is senior by age as it is evident from the
documents placed on record. It appears that
both the petitioners were appointed on
22.06.1983. However, the date of birth of
Smt.Vijaya Jyotirao Jadhav is 23.02.1959 and
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that of Vijayalaxmi Patil is 11.05.1960.
Therefore, as provided under the MEPS Rules,
Vijaya Jadhav is considered as senior to
Vijayalaxmi Patil.
11. The contention of Vijayalaxmi Patil
is that she has been promoted to the post of
Assistant Headmistress earlier in point of
time and has entered in category "B" earlier
to that of the Vijaya Jadhav, and therefore,
she is entitled to be appointed to the post
of Headmistress, cannot be accepted in view
of the exposition of law in the case of
Chalisgaon Education Society (supra). The
Division Bench, after considering the
arguments of the parties and in particular
the contention of Vijayalaxmi Patil, who was
respondent no.3 in the said Writ Petition,
that she had been appointed as Assistant
Headmistress earlier in point of time and had
entered into the category "B" earlier to that
of the petitioner therein and therefore she
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was entitled for appointment to the post of
Headmaster had been negatived, with the
following observations in para 5 and 6, which
read as under:
5. Rule 3 of the Maharashtra
Employees of Private Schools
Conditions of Service Rules, 1981
relates to qualifications and
appointment of Head. As per Rule 3
(1) (b) a person to be appointed as
the Head of a Secondary school shall
be a graduate possessing Bachelor's
degree in teaching or eduction of a
statutory University or any other
qualification recognised by
Government as equivalent thereto and
possessing not less than five years'
total full-time teaching experience
after graduation in a secondary
school or a Junior College of
Education out of which at least two
years' experience shall be after
acquiring Bachelor's degree in
teaching or education. Sub rule (3)
of Rule 3 provides that the
management of the school shall fill
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up the post of Head by appointing
the senior most member of teaching
staff in accordance with guidelines
laid down in Schedule-F from amongst
those employed in a school or
schools who fulfill the conditions
laid down in sub rule (1) and who
has a satisfactory record of
service.
6. It is revealed from the perusal
of seniority list at Exhibit-G that
the Petitioner No.2 is placed at
Serial No.1 in category-B whereas
the Respondent No.3 is at serial No.
2. The Petitioner No.2, obviously,
will have to be considered as
senior, taking into considering his
date of appointment. Merely because
the Respondent No.3 has been
promoted to the post of Assistant
Head Master before Petition No.2,
she cannot be considered as senior
to that of the petitioner No.2. One
of the questions, considered in Ajit
Singh's case (supra) was (i) can the
roaster point promotees (reserved
category) count their seniority in
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the promoted category from the date
of their continuous officiation vis-
a-vis the general candidates who
were senior to them in the lower
category and who were later promoted
to the same level. While answering
the said point, the Apex Court
concluded in para 77:
ig 77. We, therefore, hold that
the roaster-point promotees
(reserved category) cannot
count their seniority in the
promoted category from the date
of their continuous officiation
in the promoted post, - vis-a-
vis the general candidates who
were senior to them in the
lower category and who were
later promoted. On the other
hand, the senior general
candidate at the lower level,
if he reaches the promotional
level later but before the
further promotion of the
reserved candidate - he will
have to be treated as senior,
at the promotional level, to
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the reserved candidate even if
the reserved candidate was
earlier promoted to that level.
We shall explain this further
under Point 3. We also hold
that Virpal (Union of India V/s
Virpal Singh, (1995) 6 SCC 684)
and Ajit Singh (Ajit Singh
ig Januja V/s. State of Punjab,
(1996) 2 SCC 715) have been
correctly decided and that
Jagish Lal (Jagdish Lal V/s.
State of Haryana, (1997) 6 SCC
538) is not correctly decided.
Points 1 and 2 are decided
accordingly.
In view of the observations,
quoted above, it will have to be
concluded that the Petitioner No.2
is required to be held as senior to
that of the Respondent No.3. The
respondent No.1 management was,
therefore, not in error in promoting
Petitioner No.2 to the post of Head,
vide order dated 1st October, 2000.
The impugned communication issued by
the Respondent No.2, dated 14th
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December, 2000 is illegal and runs
counter to the settled legal
position enumerated above and,
therefore, the same is required to
be quashed.
12. Upon careful perusal of the
observations in para 5 and 6, it is
abundantly clear that, in the aforesaid case
also, petitioner no.2 therein was appointed
as Assistant Teacher prior to Vijayalaxmi
Patil. She was promoted to the post of
Assistant Headmaster earlier in point of time
and had entered in the category "B" prior to
that of petitioner no.2. However, the
Division Bench held that Rule 3 of the
Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981, mandates
that for reckoning of the seniority for the
purpose of appointment to the post of Head
Master the initial date of appointment is
material and not seniority in a particular
category. It appears from the perusal of the
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facts in the case of Chalisgaon Education
Society (supra) Vijayalaxmi Patil was
promoted to the post of Assistant Head Master
prior to petitioner no.2 therein.
13. In the facts of the present case, as
already observed, the petitioner Vijaya
Jadhav is senior by age to the petitioner
Vijayalaxmi Patil, though both are appointed
on the same date. At present, both the
petitioners are placed in category-B.
14. In the light of the discussion in
the foregoing paragraphs, and for the same
reasons, which are assigned by the Division
Bench in para 4 to 6 in the case of
Chalisgaon Education Society (supra), we are
of the considered view that as per seniority,
Vijaya Jadhav is entitled for appointment to
the post of Headmistress. In that view of the
matter, we pass the following order:
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ORDER
i) The impugned decision taken by the
Education Officer stands confirmed.
ii) Writ Petition No.2633/2016 is
allowed in terms of prayer clause-B
and same stands disposed of.
iii) The rule is made absolute in the
above terms.
iv) The Writ Petition No.1807/2016
stands dismissed. Rule stands
discharged.
v) No costs.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
At this stage, the learned counsel
appearing for the petitioner in Writ Petition
No.1807 of 2016 and respondent no.6 in Writ
Petition No.2633 of 2016 prays for
continuation of the interim relief which was
in force during the pendency of the Writ
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Petition No.1807 of 2016. The prayer is
vehemently opposed by the learned Counsel for
the petitioner in Writ Petition No.2633 of
2016.
2. Since we have held that the
petitioner in Writ Petition No.2633 of 2016
is the senior most teacher, further delay for
promotion / appointment on the post of Head
Master cannot be considered.
3. In that view of the matter, we
decline to entertain the prayer of the
petitioner in Writ Petition No.1807 of 2016
for continuation of the interim relief for
further six weeks.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
DDC
