Bombay High Court
Samaj Shikshan Mandal, Bhatpure ... vs The State Of Maharashtra And ... on 5 August, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9744 OF 2013
1 Samaj Shikshan Mandal,
Bhatpure, Tq.Shirpur,
Dist.Dhule.
Through its Secretary -
Balwant s/o Shivdas Patil,
Age : 56 years, Occupation : Social Work,
R/o Bhatpure, Tq.Shirpur,
District : Dhule.
2 Tanaji Daulatrao Patil Vidyalaya,
Bhatpure, Tq.Shirpur,
Dist.Dhule.
Through it's Headmaster.
...PETITIONERS
-Versus-
1 The State of Maharashtra.
Through its Principal Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2 The Director of Education,
Maharashtra State, Pune.
3 The Education Officer (Secondary),
Zilla Parishad, Dhule,
District Dhule.
4 Smt.Meena d/o Amrut Patil,
Age : 47 years, Occupation : Service
as Assistant Teacher,
R/o Bhatpure, Tq.Shirpur,
District Dhule.
...RESPONDENTS
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WITH
WRIT PETITION NO.173 OF 2015
Meena d/o Amrut Patil,
Age : 49 years, Occupation : Service
as Assistant Teacher,
R/o Bhatpure, Tq.Shirpur,
District Dhule.
...PETITIONER
-Versus-
1
The State of Maharashtra.
Through its Principal Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2 The Director of Education,
Maharashtra State, Pune.
3 The Deputy Director of Education,
Nashik Division, Nashik,
District Nashik.
4 The Education Officer (Secondary),
Zilla Parishad, Dhule,
District Dhule.
5 Tanaji Daulatrao Patil Vidyalaya,
Bhatpure, Tq.Shirpur,
Dist.Dhule.
Through it's Headmaster.
6 Samaj Shikshan Mandal,
Bhatpure, Tq.Shirpur,
Dist.Dhule.
Through its Secretary.
...RESPONDENTS
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.......
Shri V.D.Sapkal, Advocate, for the Management.
Shri N.T.Bhagat, AGP, for the Respondents/ State.
Shri P.R.Patil, Advocate, for the Employee-Meena.
........
CORAM : RAVINDRA V. GHUGE, J.
Reserved on : 19th July, 2016
Pronounced on : 05th August, 2016
Judgment :
Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 The Petitioner in the first petition is the Educational
Institution. Respondent No.4 is the Employee of the said Educational
Institution, working as an Assistant Teacher. The second petition has been
preferred by the same Employee against the same Educational Institution/
Employer. As such, for the sake of brevity, the litigating sides in these two
petitions will be referred to as "the Management" and "the Employee-
Meena".
3 The learned Advocates for the respective sides have
contended that both these petitions are interconnected and be taken up
for decision together.
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4 The Management in its petition has prayed in prayer clause
(B) as under:-
"(B) To quash and set aside the impugned order dated
12.11.2013 annexed at Exhibit I, passed by the
Education Officer (Secondary), Zilla Parishad, Dhule
by issuing appropriate writ, order or directions, as the
case may be.
In the alternative,
To quash and set aside the impugned order dated
12.11.2013 to the extent of Para B of the operative
part of the order annexed at Exhibit I, passed by the
Education Officer (Secondary), Zilla Parishad, Dhule
by issuing appropriate writ, order or directions, as the
case may be."
5 The Employee-Meena in her petition has prayed in prayer
clauses (A) and (B) as under:-
"(A) By a writ of certiorari, orders or directions in the
nature of certiorari, impugned order dated
06.11.2013 issued by the respondent No.4 Education
Officer (Secondary), Zilla Parishad, Dhule (Exhibit A,
page 17) be quashed and set to the extent of granting
pay-scale from 15.10.2001 and it be further directed
that the petitioner be granted trained graduate pay
scale from 05.06.1989.
(B) Pending hearing and final disposal of this petition,
respondent No.5 and respondent No.6 be directed to
deposit the arrears of pay from 15.10.2001 to
30.10.2013 within a period of four weeks."
6 The Employee-Meena has wrongly mentioned the impugned
order as dated 06.11.2013 in her prayer clause (A). The impugned order,
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as has been rightly stated by the Management in its petition, is dated
12.11.2013. In short, the Management as well as the Employee-Meena
have challenged the same order passed by the Education Officer
(Secondary) dated 12.11.2013.
7 By the impugned order, the Employee-Meena has been
granted all benefits as a Trained Graduate Teacher and has been placed in
Category-C under the Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981 (for short "the MEPS Rules, 1981")
w.e.f. 15.10.2001. The monetary benefits, however, have been granted
w.e.f. 01.11.2013 as there was no vacancy of a Trained Graduate Teacher
in between 15.10.2001 and October, 2013.
8 For the sake of brevity, the operative part of the impugned
order is reproduced as under:-
"fu.kZ;
1- Jherh ikVhy ;kauk fnukad 15-10-2001 iklqu izf'kf{kr
inoh/kj osruJs.kh o d izoxkZr lsok ts "Brk eatqj
dj.;kr ;sr vkgs-
2- 'kkGsus osGksosGh eatqj dsysY;k inkaizek.ks osGksosGh fu;qDr
deZpk&;kaP;k use.kqdhl fu;ekuqlkj ekU;rk ?ksrysyh
vkgs- ;k deZpk&;kapk use.kqd o use.kqd ekU;rk vkns'kkr
cny dj.ks ;ksX; Bj.kkj ukgh- R;keqGs uohu
U;k;ky;hu izdj.ks mn~Hkorhy R;keqGs Jherh ikVhy ;kaph
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fnukad 15-10-2001 iklqu iz-inoh/kj osruJs.khr
osrufuf'prh d:u R;kauk izR;{k osruvuqnkukpk Qk;nk
fnukad 01-11-2013 iklwu ,d iz-inoh/kj f'k{kd
ekU;rk ulY;keqGs ns.;kr ;kok-
3- Jherh ikVhy ;kaP;k fnukad 15-10-2001 rs 31-10-
2013 v[ksjP;k osrukpk Qjd O;oLFkkiukus fu;ekuqlkj
dk;Zokgh dsysyh ulY;keqGs O;oLFkkiukP;k fu/khrqu
O;oLFkkiukus vnk djkok-
4- Jherh ikVhy ;kaph lsokts"Brk d izoxkZr fnukad 15-10-
2001 iklqu fuf'pr dj.;kr ;koh-
mijksDr izek.ks Jherh ikVhy ;kaps fnukad 03-04-2013
jksthps fuosnu vafrer% fudkyh dk<.;kr ;sr vkgs-"
9 The contentions of Shri Sapkal, learned Advocate for the
Management, can be summarized as under:-
(a) The Employee-Meena has acquired qualifications of B.A.,
B.Ed. in Geography and has been granted the scale of D.Ed..
(b) She was appointed on the D.Ed. scale to impart education to
the students studying in the 5th to 7th standards.
(c) As there was one post in D.Ed. scale vacant, she was so
appointed by order dated 15.07.1988.
(d) There was no vacancy in the trained graduate category at the
relevant time.
(e) The Employee-Meena accepted the D.Ed. scale appointment
and started discharging her duties.
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(f) The approval was granted to her appointment by the
Education Officer on 19.02.1990.
(g) The Management is aggrieved only to the extent of grant of
benefits to the Employee-Meena to be paid by the
Management though the School is grant-in-aid.
(h) The Management cannot be faulted for not granting the
trained graduate scale to the Employee-Meena since at the
relevant time, there was no vacancy available in the trained
graduate category and in the absence of such vacancy, the
Employee-Meena could not have been appointed.
(i) The staffing schedule/ pattern dated 13.10.1989 indicates
that the school was imparting education from 05 th to 12th
standards and there was no vacancy of a trained graduate
teacher.
(j) As the Employee-Meena accepted her appointment order by
which she was granted D.Ed. scale, she is precluded from
raising any dispute and much less after about two decades.
(k) The Government Resolution dated 11.11.2011 applies to the
teachers working in schools which impart education from 1 st
to 7th standards.
(l) The Employee-Meena herein is not covered by the said
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Government Resolution as the school imparts education from
5th to 12th standards and is, therefore, a secondary and higher
secondary school.
(m) Subsequently the Management followed the staffing
schedule/ pattern and placed the Employee-Meena in the
trained graduate scale only after the post in the said category
was available.
(n) The Government Resolution dated 11.11.2011 cannot be
granted a retrospective effect and by virtue of clause (2) of
the said Government, a teacher having B.A. B.Ed.
qualifications and teaching in a primary school, would be
considered as a trained graduate teacher.
(o) By the said Government Resolution, those graduate teachers,
who have acquired B.Ed. qualification and are still teaching
the primary school students from 1 st to 7th standards for
which D.Ed. qualification is prescribed, would be treated as
trained graduate teachers and would be entitled for the pay
scale for the said category.
(p) As the school operated by the Management is upto 12 th
standards, by no stretch of imagination could it be contended
that the said school is primary school. Therefore, the
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Government Resolution dated 11.11.2011 would not be
applicable.
(q) This is not an adversarial litigation in between the
Management and the Employee-Meena, though the
Management is aggrieved by the direction of the Education
Officer that the benefits of the trained graduate teachers pay
scale should be paid from the coffers of the Management.
In support of his above contentions, Shri Sapkal has relied
upon the following judgments:-
(a) Ashok Venkatrao Bajgir vs. The State of Maharashtra, 2016(4)
ALL MR 391.
(b) Ramrao Jaimal Bacchav and others vs. The State of
Maharashtra, in Writ Petition No.478/2011 (Aurangabad
th
Bench) dated 11 October, 2012
.
(c) Sunil Kisanrao Jadhav vs. The State of Maharashtra, in Writ
th
Petition No.5997/2014 (Aurangabad Bench) dated 17
December, 2015.
11 The contentions of Shri Patil, learned Advocate for the
Employee-Meena, can be summarized as under:-
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(a) The Employee-Meena is aggrieved by the direction of the
Education Officer to give effect of the trained graduate
teachers pay scale from 15.10.2001, when the same ought to
have been given to the Employee-Meena from 05.06.1989.
(b) A reference has been made to paragraphs 3 and 4 of the
order of the learned Division Bench of this Court dated
07.03.2013 passed in Writ Petition No.8818/2011 which was
filed by the Employee-Meena.
(c) A reference is also made to the seniority list which indicates
that the Employee-Meena is placed at Sr.No.13.
(d) Though the Employee-Meena is paid proper scale as per
clause (b) of the Government Resolution dated 11.11.2011,
the same is to be given effect to from 05.06.1989.
(e) The Management has wrongly appointed the Employee-
Meena in the D.Ed. scale.
(f) Since Mr.Vinayak Yashwant Patil was not B.P.Ed. qualified
when he was appointed on 25.07.1987, the Employee-
Meena needs to be placed higher in seniority list than
Mr.Vinayak Yashwant Patil.
(g) Since other employees like Mr.J.B.Jain and Mr.A.B.Bagal have
been given the trained graduate scale, the Education Officer
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has rightly ordered that the Employee-Meena should be
placed in C-Category and she deserves to be paid her trained
graduate pay scale.
(h) The learned Division Bench of this Court, by order dated
07.03.2013 in Writ Petition No.8818/2011 filed by the
Employee-Meena, had directed the Education Officer to
decide the claim of seniority of the Employee-Meena as well
as her entitlement to receive the trained graduate pay scale.
(i) Though the Education Officer has allowed the claim of the
Employee-Meena, he has wrongly granted benefits w.e.f.
15.10.2001 instead of applying the pay scale from
05.06.1989 when the Employee-Meena had joined the
employment.
(j) The Employee-Meena was appointed as an Assistant Teacher
in D.Ed. scale on 14.09.1987, when she actually was B.A.
B.Ed. and hence, she is legally entitled for a trained graduate
pay scale.
(k) Even if it is assumed that the Management did not have a
vacancy on 14.09.1987 in the trained graduate pay scale, the
Employee-Meena was entitled to such scale immediately after
the vacancy in the said pay scale was available.
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(l) Mr.Vinayak Yashwant Patil was appointed on 05.06.1989 and
other employees mentioned above were appointed in
between 2001 to 2011.
(m) The law laid down in the matter of Ms.Lakhwinder Kaur
Gurai vs. Garison Children Education Society and others,
(2006) 5 BCR 612 and in the matter of the State of
Maharashtra vs. Tukaram Trimbak Choudhari, (2007) 9 SCC
201, would become squarely applicable to the case of the
Employee-Meena.
(n) Though the Employee-Meena was initially teaching the
students in 5th to 7th standards for which the D.Ed. scale is
applicable, considering the effect of the Government
Resolution dated 11.11.2011, the Employee-Meena would be
entitled for the pay scale of a trained graduate category.
(o) The affidavit filed by the Education Officer is of no assistance
and the same deserves to be ignored.
12 The learned AGP appearing on behalf of the State Authorities
has defended the impugned order. On the basis of the affidavit filed by the
Education Officer, it is contended that though the Employee-Meena was
holding B.A., B.Ed. qualification, she accepted the appointment in D.Ed.
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scale as there was no vacancy in the trained graduate category. After she
voluntarily accepted her appointment in the D.Ed. scale, she continued as
such. Mr.Vinayak Yashwant Patil, though was initially appointed as an
untrained teacher, he was given the trained graduate scale in 1989 as he
had acquired the specialized qualification of B.P.Ed. and one post for
trained graduate teacher in Physical Education was available. Hence, he
was appointed in a completely different category.
The learned AGP further submitted that the Employee-Meena
would stand entitled for the trained graduate pay scale from 15.10.2001
when Mr.J.B.Jain was appointed for the first time on 15.10.2001 in the
trained graduate category pay scale. Considering the seniority of the
Employee-Meena, she should have been first accommodated in the
trained graduate scale on 15.10.2001 when two employees, namely,
Mr.J.B.Jain and Mr.A.B.Bagal were appointed for the first time in the
trained graduate pay scale. Since the Employee-Meena was not
accommodated in the said scale, though she was entitled to the said scale
by natural growth of the school and a vacancy in the trained graduate pay
scale was available, the Education Officer has rightly directed the
Management to pay the benefits of the trained graduate pay scale to the
Employee-Meena.
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14 The learned AGP further submitted that had the Management
rightly assessed the situation and would have done justice to the
Employee-Meena, this situation and this dispute would not have arisen.
Since on account of the unlawful act of the Management the Employee-
Meena is made to suffer, the Education Officer has directed the
Management to pay the difference in the pay scale from their own pockets
as the State exchequer should not be unnecessarily taxed on account of
illegalities committed by the Management. The Management cannot be
permitted to get away with this illegality and the State exchequer should
not be made to suffer the burden of payment of the difference in the pay
scale, though the Management shall have to shoulder the said burden.
15 I have considered the submissions of the learned Advocates
as have been recorded herein above.
16 The service details of the Employee-Meena and all other
employees at issue, are not in dispute. The issues before this Court are
with regard to : (A) Whether, the Employee-Meena is justified in seeking
benefits of the trained graduate pay scale from the date of her joining
05.06.1989? (B) Whether, the Education Officer has rightly granted the
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Employee-Meena the benefits of the trained graduate pay scale from
15.10.2001? and Whether, the Management is required to shoulder the
burden of payment of difference in the pay scale?
17 It is an undisputed position that the Employee-Meena was
appointed in the untrained teachers category despite being a trained
graduate teacher right from the date of her first appointment, as the post
of a trained graduate teacher was not available. The said post, principally
could be said to be available only on 05.06.1989 when Mr.Vinayak
Yashwant Patil, B.A. B.P.Ed. was appointed in the trained graduate
category. However, this would not cause any legal injury to the Employee-
Meena as she was a teacher in the general category and Mr.Vinayak
Yashwant Patil, who had the degree of B.P.Ed. was appointed against the
available vacancy in Physical Education. The Employee-Meena, therefore,
could not have been appointed to a post for which a trained graduate in
Physical Education was required. The first issue framed by me as above,
therefore, stands answered. The Employee-Meena, therefore, cannot be
held to be entitled for the trained graduate pay scale from 05.06.1989
when Mr.Vinayak Yashwant Patil was appointed.
18 It is not in dispute that other employees, namely, J.B.Jain
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(15.10.2001), A.B.Bagal (15.10.2001), B.N.Patil (18.06.2009), M.H.Mali
(03.08.2010) and R.S.Rathod (01.08.2011) were all teachers in general
category and were appointed in the trained graduate pay scale. It cannot
be accepted that the Management could have lost sight of the Employee-
Meena, who was senior to the immediate junior employee Mr.J.B.Jain by
about 14 years.
19 There can be no dispute that the Employee-Meena accepted
her appointment for the first time on 14.09.1987 as an Assistant Teacher
in the D.Ed. pay scale since there was no vacancy available in the trained
graduate pay scale. This, therefore, would not mean that she deserved to
be continued in the D.Ed. scale in perpetuity. The Management has
specifically come forward with the case that as there was no vacancy in
the trained graduate pay scale, the Employee-Meena was appointed in the
D.Ed. scale. This argument could be sustained only till the first vacancy
arose on 15.10.2001 when, instead of accommodating the Employee-
Meena, the Management chose to appoint Mr.J.B.Jain in the trained
graduate pay scale. I, therefore, answer the second issue by concluding
that the Employee-Meena was entitled to the trained graduate pay scale
from 15.10.2001.
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20 In the above backdrop, it is apparent that it was the
handiwork of the Management in recruiting fresh employees in the
trained graduate pay scale, by completely ignoring the legal right of the
Employee-Meena. As concluded above, her acceptance of the D.Ed. pay
scale was out of compulsion, both for the Management as well as for
herself, as there was no vacancy in the trained graduate pay scale at the
time of her appointment. In my view, the Management, therefore, should
have absorbed the Employee-Meena in the trained graduate pay scale at
the first available opportunity which was on 15.10.2001 when the
Management engaged two fresh teachers, namely, Mr.J.B.Jain and
Mr.A.B.Bagal. This illegality committed by the Management and injustice
caused to the Employee-Meena, deserves to be undone by ensuring that
the Employee-Meena gets her legal dues. The Education Officer has,
therefore, rightly held that she was entitled to the Trained Graduate Pay
Scale from 15.10.2001.
21 In the above backdrop, the issue is as to whether, the State
exchequer should be penalized by making the State pay the difference in
the pay scale to which the Employee-Meena is entitled to from
15.10.2001. The Management is a grant-in-aid institution. If the State
exchequer is unduly taxed for the unlawful act committed by the
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Management, it would amount to allowing the Management to get away
with the illegality that it has committed. It is necessary that the entity
which commits an illegality deserves to be penalized and must realize the
effect of it's unlawful act. As such, in my view, the Education Officer has
rightly concluded that the Management shall pay the difference in the pay
scale from it's own coffers.
22 Insofar as the Government Resolution dated 11.11.2011 is
concerned, I do not think that this case could be vexed with the effect of
the said Government Resolution. Firstly, the Government Resolution will
have to be given effect to prospectively and not retrospectively as it is
likely to disturb the seniority of hundreds of teachers in hundreds of
schools. Secondly, the said Government Resolution is applicable to
primary schools. Admittedly, the Management school at issue is upto 12 th
standard and therefore, is a secondary and higher secondary school.
Hence, the said Government Resolution would not be applicable to this
case.
23 As such, I do not find that the impugned order of the
Education Officer dated 12.11.2013 could be termed as being perverse or
erroneous. The Honourable Apex Court has settled the law in the matters
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of Syed Yakoob v/s K.S.Radhakrishnan, AIR 1964 SC 477 and Surya Dev
Rai v/s Ram Chander Rai, AIR 2003 SC 3044 that merely because a
second view is possible, the impugned order ought not to be set aside.
Unless the impugned order appears to be perverse, erroneous and likely
to cause grave injustice, no interference is called for.
24 In the light of the above, both these Writ Petitions are
dismissed. Rule is discharged.
25 No costs.
(RAVINDRA V. GHUGE, J.)
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