Bombay High Court
Sau. Urmila Ram Tonpe vs Education Officer,Z.P.Nagpur & 3 ... on 28 July, 2017
Bench: Ravi K. Deshpande
wp.2733.00
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2733/2000
* Sau. Urmila Ram Tonpe
Aged about 40 years
R/o Ayodhya Nagar, Plot No.2
Behind Bus Stop
Nagpur - 440 024. ..PETITIONER
VERSUS
1) The Education Officer (Secondary)
Zilla Parishad, Nagpur.
2) The Secretary
Progressive Education Society
C/o Nav Bharat Vidyalaya,
Tulsibagh Road, Mahal, Nagpur.
3) The Headmaster,
Nav Bharat Vidyalaya
Tulsibag Road, Mahal, Nagpur.
4) Shri D.R. Deshmukh
Aged about 50 years
Education Officer (Secondary)
Zilla Parishad, Nagpur. ..RESPONDENTS
.
...................................................................................................................
Mr. A.D. Mohgaonkar, Advocate for petitioner
Mr. V.P. Maldhure, Assistant Government Pleader for respondent No.1
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CORAM : R.K. DESHPANDE &
MRS.SWAPNA JOSHI, JJ.
DATED : 28 th
July, 2017
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ORAL JUDGMENT: (Per R.K.DESHPANDE, J.)
The the petitioner was appointed as an Assistant Teacher in
middle School, by an order dated 29.6.1981. At the time of his
appointment, the petitioner was possessing the qualifications of B.A.,
B.Ed. The petitioner submitted an application on 9.11.1992 for her
placement in the 25% quota of graduate teachers in the middle School,
as a result of occurrence of vacancy. The petitioner was pursuing the
matter with the School authorities as well as with the Education Officer
(Secondary) Zilla Parishad, Nagpur. On 6.2.1998, the Education Officer
informed the Management to place the petitioner in 25% graduate scale
in the vacancy which occurred and to immediately submit the proposal.
The petitioner was, however, ultimately granted the graduate scale of
Rs.1400 - 2600 with effect from 1.10.1991 by an order dated 10.8.1998.
The petitioner filed this Writ Petition on 12.6.2000 claiming placement
in the scale of graduate teacher from the date of appointment of one
Smt. Bhapakar in the year 1983 in the middle School in 25% quota of
graduate teachers.
2. On the question of delay in filing the petition, the
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explanation furnished is that the petitioner was terminated from service
in the month of April,1982. She approached the School Tribunal which
granted her reinstatement in service with back-wages on 29.9.1983.
The said decision was confirmed by this Court in Writ Petition on
28.8.1980 and ultimately the petitioner got continuity in service from
1.7.1981. The petitioner attained the age of superannuation on 30th
November, 2015.
3. As per Rule 12 of the Maharashtra Employees of Private
Schools (Conditions of Service) Rules, 1981 and the guidelines for
fixation of seniority under Schedule 'F', the petitioner being a trained
graduate teacher appointed in the middle School on 1.7.1981 falls in
category 'C' of the teachers. It is the stand taken by the respondent-
Education Officer in response to this petition, that the provisions of 25%
promotion is only for the middle School teachers who obtained their
degrees while within service with the prior permission of the
Management and only such lower division teachers are eligible for
promotion in the trained graduate teachers' scale in 25% quota.
4. On 11th July 2017, we passed an order directing the
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respondent-Education Officer as to why the petitioner cannot be placed
in category 'C' of the seniority list particularly when the petitioner was
a trained graduate teacher on the date of his initial appointment. We
directed the Education Officer to produce on record the Government
Resolution dated 25.6.1992 and state the justification and propriety
for issuance of the communications insisting upon the Management to
place the petitioner in 25% quota in accordance with the said
Government Resolution.
5. The Education Officer has filed before us an affidavit dated
27th July 2017, in which the stand is taken that even if the teacher is
having a qualification that is prescribed under Schedule 'F' category 'C',
such teachers would not be considered in category 'C' for the purposes
of seniority. Reliance is placed upon the Government Resolution dated
25.6.1992. The affidavit also reiterates the same stand that the petitioner
was at the time of her initial appointment itself a trained graduate
teacher and hence the benefit of placement in the 25% quota of trained
graduate teacher does not at all arise.
6. The affidavit filed nowhere explains the communication
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dated 6.2.1998 issued by the Education Officer asking the Management
to submit the proposal for placement of the petitioner in the scale of
graduate teacher in 25%. The question as to whether the petitioner was
entitled to be included in Category 'C' for the purposes of counting
seniority, is concluded by the decision of this Court in the case of
Lakhwinder Kaur Gurai vs. Garison Chjildren Education Society, reported
in 2006 (5) Mh.L.J. 328, wherein it has been held that the Government
Resolution dated 25th June, 1992 cannot run contrary to the provisions
of Schedule 'F' under Rule 12 of the MEPS Rules, 1981. In view of this
it has to be held that the petitioner has to be treated as a trained
graduate teacher covered by category 'C' under Schedule 'F'.
7. The vacancy in the 25% quota arose in the year 1983 in
the middle School which was filled in by appointment of Smt. Bhapkar.
An averment is made in the petition that Smt.Bhapkar was the daughter
of the then Education Officer and upon his insistence, her appointment
was made. It is not possible to accept the stand of the respondents that
placement in 25% scale of graduate teacher is available only to such
middle School teachers who obtained their degrees while within service
with the prior permission of the Management. We are unable to get any
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such rule to support the proposition. Merely because the petitioner was
a trained graduate teacher at the time of initial appointment she cannot
be denied the benefit of placement in the graduate teacher. If according
to the Education Officer the petitioner was not eligible then we fail to
understand as to how there was insistence on 6.2.1998 for placement of
the petitioner by the Education Officer in the graduate scale and further
granting her placement w.e.f. 1.10.1991. The petitioner was working in
the scale of Rs.1200 - 2040 of undergraduate trained teacher and upon
her placement in the scale of graduate teacher she would be entitled to
pay scale of Rs. 1400 - 2600. The respondents should have therefore,
made such a pay-scale applicable to the petitioner from the date of
appointment of the Smt.Bhapkar in the said post.
8. In view of the above, this Writ Petition is allowed. The
respondents are directed to implement the order dated 6.2.1998 passed
by the Education Officer to place the petitioner in the scale of graduate
teacher from the date of appointment of Smt.Bhapkar and to pay her the
difference in the salary till 1.10.1991. The arrears be calculated
accordingly and be paid to the petitioner by the respondents within a
period of three months from today.
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9. Rule is made absolute in these terms. No order as to costs.
JUDGE JUDGE
sahare
