Bombay High Court
Smt. Mehfooza Afroz Ansari vs The Regional Director, Municipal ... on 14 December, 2017
Bench: B.P. Dharmadhikari
Judgment wp1555.02
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 1555 OF 2002.
Smt. Mehfooza Afroz Ansari,
Aged about 45 years,
R/o.-Shivam-Kunj, Plot No.86, Barde Nagar,
Gorewada Road, Nagpur. ...PETITIONER
VERSUS
1] The Regional Director, Municipal Administration,
Nagpur.
2] The Chief Executive Officer, Nagar Parishad,
Narkhed, District-Nagpur.
3] The Education Officer (Secondary), Zilla Parishad,
Nagpur.
4] Uttam Hiramandev Tagade,
Aged about 52 years, Occ.-Head Master,
Nagar Parishad High School, Narkhed,
Dist.-Nagpur. ....RESPONDENTS
.
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Mr. A.D. Mohgaonkar, Advocate for Petitioner.
Mr. H.R. Dhumale, Asstt. Govt. Pleader for Respondent Nos.1 and 3.
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CORAM : B. P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED : DECEMBER 14, 2017.
Judgment wp1555.02
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
Petitioner challenges promotion given to respondent no.4 as
Headmaster and claims that she being senior, should have been promoted
vide order dated 11.10.1996. The order dated 19.04.1999, passed by
respondent no.2 rejecting her representation in this respect, and pointing out
that she has been regularized from 01.07.1988, has also been questioned in
the present matter.
2. We have accordingly heard Shri A.D. Mohgaonkar, learned
Counsel for the petitioner and Shri H.R. Dhumale, learned A.G.P. for
respondent nos. 1 and 3. None is present for respondent nos. 2 or 4.
3. Short submission of Shri Mohgaonkar, learned counsel is both
petitioner and respondent no.4 joined services as fully qualified teachers
with respondent no.2 Municipal Council. Petitioner joined on 05.08.1985
and is in continuous employment since then. While, respondent no.4 joined
on 01.07.1986, and therefore, for all purpose he is junior to her.
4. When there was temporary vacancy for the post of Headmaster,
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petitioner refused to shoulder that responsibility and therefore, charge was
given to respondent no.4. However, thereafter, by the impugned order of
promotion dated 11.10.1996, said respondent has been promoted against a
clear vacant post in supercession of seniority/ claim of petitioner.
Respondent no.3 Education Officer has also granted approval to it on
30.11.1999.
5. Petitioner then moved a representation on 01.09.1998 and staked
her claim. That representation was erroneously rejected by respondent no.2
on 19.04.1999. Petitioner wrote back to said respondent and then also
forwarded an appeal to the Chief Executive Officer of Zilla Parishad
erroneously. She then approached the Regional Director of Municipal
Administration (respondent no.1) in appeal and on 06.10.2000, said appeal
came to be rejected, as it was belated.
6. Inviting attention to the provisions of Regulation 61.2 of
Secondary School Code, learned counsel for petitioner submits that refusal
to accept additional charge of a post of Headmaster by petitioner was never
verified by the Education Officer as required and in any case, said refusal
could not have been used while filling in the vacancy on permanent basis.
To substantiate his contention, he has drawn support from paragraph no.6 of
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the submissions filed by respondent no.3 Education Officer.
7. Shri Dhumale, learned A.G.P. submits that as the appeal tendered
by petitioner was belated, and there was no prayer to condone the delay, the
appeal was rightly not entertained on 06.10.2000 by respondent no.1.
This, order therefore, does not call for any intervention. He further states
that in so far as respondent no.3 Education Officer is concerned, he granted
approval to the promotion made after proposal was received and at that
stage he could find a document of no objection given by the petitioner on
record. The document is dated 01.10.1996.
8. With the assistance of learned counsel for the parties present
before the Court, we have perused the record. Seniority list circulated by
the headmaster of respondent no.2 School at Annexure-2 is not in dispute.
It shows that at the relevant time one Shri J.R. Patel, was the headmaster.
Name of petitioner appears below his name, and name of respondent no.4 is
at Sr.No.3. Petitioner has been appointed on 05.08.1985 as mentioned
therein, while respondent no.3 is appointed on 01.07.1986.
9. The order of promotion nof respondent no.4 dated 11.10.1996
mentions that as per resolution of Standing Committee dated 05.10.1996,
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respondent no.4 has been promoted as Headmaster from 11.10.1996
against clear vacant post. Respondent no.3 Education Officer has granted
approval to it on 30.11.1999.
10. Representations made by petitioner have been turned down and in
order dated 15.07.1999, respondent no.2 Chief Officer has mentioned that
in 1998-99, a provisional seniority list was published and objections were
invited. Objections were raised by petitioner, one Gedam and one Bharal,
within time. Those objections were rejected on 19.04.1999. Seniority list
was approved by the Standing Committee vide resolution No.14, dated
25.05.1999. In this seniority list date of continuous employment of
respondent no.3 is mentioned as 01.07.1988, and he is mentioned as
Headmaster. Thereafter, there is separate seniority list of teachers and in it
name of petitioner appears at Sr.No.1. Her date of continuous employment
is also shown as 01.07.1988.
11. After this publication on 15.07.1999, petitioner has not raised any
objection to it within time.
12. Her entire case is on the basis of submission that she is in
continuous employment since 05.08.1985, while respondent no.4 joined the
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employment on 01.07.1986.
13. In the present facts, we find that though the order of Chief Officer
dated 15-07-1999, finally publishing seniority list of year 1998-1999, has
not been expressly challenged, the petitioner has questioned the promotion
given to respondent no.4 stating that she is senior. On 24-08-2017, prayer
clause (i)(a) has been added and it assails order dated 19-04-1999. By
that order, the very same officer has informed the petitioner that the
continuous service rendered by her from 01-07-1988 only has been looked
into and as respondent no.4 has entered in service on very same date and
he is born prior to her, he has been treated as senior. In earlier part of this
order, he has mentioned that B.Ed post graduate and B.Ed degree have
same status and what is the exact meaning or implication thereof is not
clear to us.
14. We find that even after this communication on 07-05-1999, the
petitioner has reiterated that she joined employment prior to respondent
no.4 and in her service book the date of entry has been recorded as
05-08-1985. She has also mentioned that the increments are also released
to her from 05-08-1985 onwards. In this situation, the absence of express
prayer to quash the order of Chief Officer dated 15-07-1999 cannot be held
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as fatal.
15. The material on record shows that the petitioner joined on
05-08-1985 and respondent no.4 has joined on 01-07-1986. Even if, it is
presumed that initially the appointment was on probation, she has
completed her period of probation of two years prior to respondent no.4.
The respondent no.4 can complete period of his probation on 01-07-1988
while the petitioner would be completing it on 05-08-1987. In this situation,
merely because respondent no.2- Chief Officer has given same date to both
of them, respondent no.4 cannot become senior to the petitioner. The
respondent no.4 or then respondent no.2- Chief Officer has not produced on
record any material to urge that on 05-08-1985, the vacancy for appointing
the petitioner was not available. On the contrary, learned Advocate
Shri Mohgaonkar has attempted to urge that the petitioner is appointed
after her selection by the Regional Subordinate Selection Board. The order
of appointment dated 01-08-1985 supports the submission and it contains
the reference to the Selection Board.
16. The petitioner, therefore, is senior to respondent no.4.
17. The petitioner has in her petition in paragraph 3 pointed out that
Judgment wp1555.02
she refused to hold the post of Headmistress when it was not a clear
vacancy, as such respondent no.4 was appointed at that juncture. These
facts are again not in dispute. She has claimed that when the vacancy was
sought to be filled in on permanent basis, she has not waived her right and
her seniority and claim therefore needed to be considered again. There is
no explanation for this by any of the respondents. Respondent no.3-
Education Officer has in paragraph 6 submitted that when after promotion
of respondent no.4 by order dated 11-10-1996, the papers were received by
him for grant of approval, at that point of time, he found a letter dated
01-10-1996 by the petitioner which puts on record her inability to hold the
post of Headmistress. Copy of this letter is not produced by any of the
respondents or by the Education Officer. The order of promotion has been
issued within period of 10 days thereafter and in it, it is mentioned that
respondent no.4 has been promoted against the vacant post of Headmaster
and approval to this promotion was sought by submitting the proposal by
Municipal Council on 12-12-1997 i.e. after more than one year. The order
of approval given by the Education Officer on 30-11-1999 does not specify
the date from which the approval commences.
18. All these facts, therefore, show that while effecting promotion to
fill in the vacancy on permanent basis, in terms of Regulation 61.2(a) of the
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Secondary Schools Code, respondent no.3- Education Officer ought to have
been proposed. The said provision shows that the claim of senior teacher
can be disregarded, if of his own free will such teacher gives a statement in
writing to the Education Officer/Educational Inspector that voluntarily the
claim to the post of Headmaster is relinquished. Such statement of
concerned teacher is to be recorded in the hand of teacher himself before the
Education Officer/Educational Inspector and the latter Authority has to
attest it accordingly, and it thereafter becomes irrevocable. Here, letter
dated 01-10-1996 looked into by respondent no.3-Education Officer is not
addressed to him and has not been verified as required by this regulation.
19. On all these counts, we find promotion given to respondent no.4
by respondent no.2 unsustainable.
20. Accordingly, the order of promotion dated 11-10-1996 is quashed
and set aside. It is not in dispute that both respondent no.4 and the
petitioner have now superannuated.
21. In this situation, we direct respondent nos.2 and 3 to treat the
petitioner as promoted w.e.f. 11-10-1996 as Headmistress and to fix her
wages accordingly till her superannuation. It appears that after
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superannuation of respondent no.4 in 2008, the petitioner must have
worked as Headmistress till her superannuation. Hence, 50% of the arrears
thus worked out shall be made over to her by respondent no.2. However,
her last pay shall be revised accordingly for the purposes of computing her
terminal/retiral benefits including pension. Arrears resulting therefrom
shall be also released to her by respondent nos. 1 to 3.
22. As respondent no.4 has already worked and superannuated, we
are not inclined to permit the respondents to recover any amount from the
wages paid to him.
23. The calculations as directed above shall be completed within
period of four months from today and resulting arrears shall be paid to the
petitioner within next two months.
24. Writ Petition is, thus, partly allowed and disposed of. No costs.
JUDGE JUDGE
Rgd./Deshmukh
