Ramkrishna S/O Shriram Bhoyar And ... vs State Of Mah. Thr. Its Secty. And ...
2017 Latest Caselaw 2942 Bom

WP  6146/11                                       1                         Judgment

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR.
                       WRIT PETITION No. 6146/2011
1.    Ramkrishna S/o Shriram Bhoyar,
      Aged about 57 years, Occu : Service,
      R/o Aakshapur, Tah. Brahmapuri,
      Distt. Chandrapur.

2.    Digambar S/o Ramchandra Umre,
      Aged about 57 years, Occu : Service,
      R/o Chunabhatti, Ward No.8, Rajura,
      Tahsil Rajura, District - Chandrapur.

3.    Kashinath S/o Shankar Rahate,
      Aged about 56 years, Occu : Service,
      R/o Sister Colony, Bhadrawati,
      Distt. Chandrapur.

4.    Yogaji S/o Raghunath Donadkar,
      Aged about 54 years, Occu : Service,
      R/o Haveli Garden, Chaknimbala,
      Tahsil and District - Chandrapur.

5.    Premdas S/o Laxman Ramteke,
      Aged about 54 years, Occu : Service,
      R/o Mahatma Fule Chowk, 
      Naginabagh, Chandrapur.

6.    Lataru S/o Arjun Butle,
      aged about 55 years, Occu : Service,
      R/o Kanhalgaon, Tahsil - Korpana,
      Distt. Chandrapur.

7.    Raman S/o Sadashiv Gujjanwar,
      Aged about 55 years, Occu : Service,
      R/o Nandgaon, Tah. Mul, Dist. Chandrapur.

8.    Kewalram S/o Dinaji Bagmare,
      Aged about 56 years, Occu : Service,
      R/o Pathri, Tahsil - Sawli, 
      District - Chandrapur.

9.    Prakash S/o Rajeshwarrao Kasarlewar,
      Aged about 56 years, Occu : Service,
      R/o Old Ninave Hospital, Kasturga
      Road, Chandrapur.

10.   Shamrao s/o Baliram Sukhdeve,
      Aged about 57 years, Occu : Service,
      R/o Gunjewahi, Tahsil - Sindewahi,
      Distt. Chandrapur.                                              PETITIONERS


                                   .....VERSUS.....


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 WP  6146/11                                             2                           Judgment

1.     State of Maharashtra,
       Through its Secretary,
       Department of School Education & Sports,
       Mantralaya, Mumbai-32.
2.     The Director of Education,
       Secondary and Higher Secondary Education,
       Maharashtra State, Pune.
3.     The Chief Executive Officer,
       Zilla Parishad, Chandrapur.
4.     Prakash S/o Rambhau Shende.
5.     Mohd. Jilani Mohd. Sherif.
6.     Smt.Harshada Ganesh Kherkar.
Nos.4 to 6 residents of Care of the Office of
Education Officer, Zilla Parishad, Chandrapur.
7.     Janardhan S/o Marotrao Darve,
       The Block Development Officer,
       Panchayat Samitee, Sawali,
       Dist. Chandrapur.
8.     Ashok S/o Ganpat Sawarkar,
       Block Education Officer, Panchayat
       Samitee, Pomburna, Distt. Chandrapur.
9.     Smt.Asha Padmakar Manekar,
       Resident of Care of O/o Education 
       Officer Primary, Chandrapur.
10.    V.H. Misar,
       R/o Care of Panchayat Samiti, Ballarpur,
       Dist. Chandrapur.
11.    Sanjay S/o Vasant Goghate,
       Resident of C/o Zilla Parishad School 
       at Rajura, Distt. Chandrapur.
12.    Bhaskar S/o Dewaji Pimpare,
       Resident of C/o Panchayat Samiti, 
       Chimur, Distt. Chandrapur.

13.    Shambhaji S/o Shrawan Tajne,
       Resident of C/o Panchayat Samiti,
       Korpana, Distt. Chandrapur.                                              RESPONDENTS

                       Shri M.I. Dhatrak, counsel for the petitioners.
      Shri I.J. Damle, Assistant Government Pleader for the respondent nos.1 and 2.
                          Shri M.M. Sudame, counsel for the R-3.

                                      CORAM :SMT.VASANTI  A  NAIK AND
                                                    A.D. UPADHYE, JJ.                  

                                                              8                  JUNE,     2017.
                                       DATE        :            TH





 WP  6146/11                                         3                          Judgment

ORAL JUDGMENT (PER : SMT.VASANTI  A  NAIK, J.)

By this writ petition, the petitioners challenge the resolution

of the State Government as also the seniority list prepared by the

respondent no.3-Zilla Parishad, dated 01.01.2010 that places the

petitioners below the teachers that were appointed after the petitioner

was appointed, solely because they had secured the training qualification

before the petitioners had secured the same.

2. The petitioners were appointed as Assistant Teachers in Zilla

Parishad schools and all the petitioners possess the requisite training

qualification for appointment as Assistant Teachers. A seniority list was

prepared by the respondent no.3.-Zilla Parishad on 01.01.2010 placing

some of the Assistant Teachers that were appointed after the appointment

of the petitioners above the petitioners in the seniority list. According to

the petitioners, the seniority of a teacher is to be reckoned from the date

of the appointment if the concerned teacher possesses the training

qualification. It is submitted that for considering the claim of the Assistant

Teachers for Group-B services-Deputy Education Officer, it would only be

necessary for the Assistant Teachers to possess the training qualification.

According to the petitioners, since all the petitioners were graduates and

possessed the training qualification, their names ought to have been

placed in the seniority list on the basis of their date of appointment and

not from the date on which they secured the training qualification. It is

WP 6146/11 4 Judgment

submitted that the very question that is involved in this writ petition fell

for consideration before the Hon'ble Supreme Court in a matter arising

out of the provisions of the Maharashtra Employees Private Schools

(Conditions of Service) Regulation Act, 1977 and the Hon'ble Supreme

Court has held that the seniority of the teachers should be reckoned from

the date of their appointment if they possess the training qualification on

the date on which the seniority list is prepared. It is submitted that by

following the said judgment of the Hon'ble Supreme Court reported in

(2014) 13 SCC 219 (Viman Vaman Awale Versus Gangadhar Makhriya

Charitable Trust & others), this Court has decided a bunch of writ

petitions filed by the Zilla Parishad employees like the petitioners, bearing

Writ Petition Nos.2280 of 1997 and others and by the judgment dated

28.07.2016, this Court has allowed the claim of the petitioner in those

writ petitions. It is stated that by relying on the judgment of the Hon'ble

Supreme Court, this Court has held that if the teachers are fully qualified

at the time of the preparation of the seniority list, the primary teacher

who has joined first will rank the seniormost though he / she may be the

last one to secure the B.Ed. Qualification. It is stated that in view of the

ratio laid down in the judgment dated 28.07.2016 in Writ Petition

No.2280 of 1997 and others, this writ petition also needs to be allowed.

It is, however, stated that the petitioners have retired from service and,

hence, appropriate relief may be granted.

WP 6146/11 5 Judgment

3. On a perusal of the judgment of the Hon'ble Supreme Court

reported in (2014) 13 SCC 219 (Viman Vaman Awale Versus Gangadhar

Makhriya Charitable Trust & others) and the judgment dated 28.07.2016

in Writ Petition Nos.2280 of 1997 and others, we find that the seniority

list was not properly prepared. It appears that the seniority list was not

prepared by the respondent no.3-Zilla Parishad as per the law laid down

by the Hon'ble Supreme Court. As per the judgment of the Hon'ble

Supreme Court that is followed by this Court, it was necessary for the

Zilla Parishad to reckon the seniority of the qualified teachers from the

date of their joining of the service irrespective of the fact that some of the

teachers had secured the training qualification at a subsequent point of

time than the other teachers.

4. Though we find that the seniority list prepared by the

respondent no.3-Zilla Parishad is flawed and the same is liable to be set

aside, in the circumstances of the case, since the petitioners have retired

from service and promotion to the post of Deputy Education Officer

cannot be based solely on seniority, as merit, i.e. the confidential reports

and other aspects are also to be considered while granting promotion, we

are not inclined to grant further relief in favour of the petitioners. At this

stage, it would not be proper, specially when all the petitioners have

retired from service on attaining the age of superannuation to ask the

respondent no.3-Zilla Parishad to constitute a departmental promotion

WP 6146/11 6 Judgment

committee and consider whether the petitioners were otherwise fit for

promotion to the post of Deputy Education Officer at the relevant time.

In the circumstances of the case, though the petitioners are entitled to

succeed on the first prayer in regard to the quashing and setting aside of

the seniority list, they would not be entitled to additional pensionery and

other benefits solely because they could be placed above some of the

others in the seniority list.

5. Hence, for the reasons aforesaid, the writ petition is partly

allowed. The seniority list prepared by the respondent no.3-Zilla Parishad

is hereby set aside. It is needless to mention that the respondent no.3-

Zilla Parishad should prepare a seniority list in accordance with the

judgment of the Hon'ble Supreme Court reported in (2014) 13 SCC 219

(Viman Vaman Awale Versus Gangadhar Makhriya Charitable

Trust and others) and the judgment of this Court dated 28.07.2016 in

Writ Petition No.2280 of 1997 and others. Steps in that regard should be

taken at the earliest.

Rule is made absolute in the aforesaid terms with no order as

to costs.

              JUDGE                                           JUDGE

APTE