Bombay High Court
Devdas Dawan Dhawale vs Education Officer (Second) & 3 Ors on 29 June, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO.150 OF 2008
IN
WRIT PETITION NO.4645 OF 2007
Devdas s/o Dawan Dhawale,
Aged - Major, Occu. - Service,
Harihar Vidyalaya, Parsheoni,
District - Nagpur. .... APPELLANT
VERSUS
1) Education Officer (Secondary),
Zilla Parishad, Nagpur.
2) Rural Education Society,
through its Secretary,
Parsoeoni, District Nagpur.
3) Shri B.S. Ledade,
Acting Head Master,
Harihar Vidyalaya, Parsheoni,
District Nagpur.
4) Harihar Vidyalaya,
through its Head Master,
Parsheoni, District Nagpur. .... RESPONDENTS
______________________________________________________________
Ms. Muley, Advocate holding for Shri S.P. Bhandarkar, Advocate for
the appellant,
Ms. Ritu Kaliya, AGP for respondent No.1
Shri Anand Parchure, Advocate with Shri D. Deshpande, Advocate for
respondent Nos.2 to 4
______________________________________________________________
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CORAM : B.P. DHARMADHIKARI AND
ROHIT B. DEO, JJ.
DATED : 29-06-2017
ORAL JUDGMENT : (PER : B.P. DHARMADHIKARI, J.)
1. Heard Advocate Ms. Muley holding for Advocate Shri
S.P. Bhandarkar for the appellant/original petitioner, Assistant
Government Pleader Ms. Ritu Kaliya for respondent No.1 and Advocate
Shri Anand Parchure with Advocate Shri Deshpande for respondent
Nos. 2 to 4.
2. Question is whether service put in by respondent No.3
from 01-07-1985 till his appointment on probation on 02-07-1988 has
been correctly clubbed with his service after that date and therefore, he
has been correctly fixed in seniority over the petitioner. Petitioner has
joined as a probationer on 13-11-1986. Thus ignoring previous service
rendered by respondent No.3 makes him junior to petitioner. Records
show that for the first time on 08-05-2001 petitioner raised objection
and claimed seniority over respondent No.3 when seniority list for year
2000-01 was published. He has repeated the same again on
26-09-2002.
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3. The representation again has been made on 21-11-2005.
Education Officer under Rule 12 of the Maharashtra Employees of
Private Schools (Conditions of Service) Rules, 1981 (in short "MEPS
Rules") has looked into this grievance on 18/19-07-2007. Said order
observes that break in service of respondent No.3 was condoned by
management and he was given date of joining service as 01-08-1985.
4. This order of Education Officer formed subject matter of
Writ Petition No.4645/2007 before the learned Single Judge. Learned
Single Judge has, at the stage of motion hearing, looked into provisions
of Rule 13 of the Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981, to note that in case of such
successive appointments, salary for summer vacation cannot be denied
to incumbent. From it, an analogy of employment being continuously
has been drawn. The petition, therefore, came to be dismissed.
5. Advocate Ms. Mule has submitted that Rule 13 of the
MEPS Rules lays down entitlement of such incumbent to salary during
vacation period and it does not lay down any principle regulating
seniority. As respondent No.3 was appointed on probation for the first
time on 02-07-1988, he can be treated as holding the post from that
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date only and accordingly his seniority ought to have been determined
and fixed. The petitioner was appointed on probation prior to him i.e.
from 13-11-1986 and as such petitioner ranked above respondent
No.3.
6. She points out that the Education Officer did not conduct
complete enquiry and has accepted statement of management that
break in service of respondent No.3 has been condoned. She submits
that when respondent No.3 was not holding post before 1988, there
was no question of condoning the break during said tenure. She has
placed reliance upon the judgments of the Hon'ble Apex Court to which
he will make reference little latter.
7. Advocate Shri Parchure, on the other hand, submits that
Section 5 of the Maharashtra Employees of Private Schools (Conditions
of Service) Regulation Act, 1977 obliges respondent No.2-employer to
fill in permanent vacancy immediately on permanent basis. In the
wake of this provision, earlier service put in by respondent No.3 has
been looked into and counted as continuous one. He heavily relies
upon observation of Education Officer that break was already
condoned by management and seniority lists were being published
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from time to time. He contends that for the first time objection to
seniority lists was raised on 08-05-2001 by way of after thought. He
relied upon the judgment in the case of Sumangala w/o Manoharrao
Sakharkar vs. State of Maharashtra and others reported at 2010(1)
Mh.L.J. 63, to urge that the condonation of breaks in present situation
by taking recourse of Rule 13 of the MEPS Rules results in making
respondent No.3 senior to appellant.
8. Assistant Government Pleader adopts arguments of
respondent Nos.2 to 4 and supports the order of Education Officer.
9. The first judgment relied upon by Advocate Ms. Muley is
in the case of State of Haryana vs. Haryana Veterinary and AHTS
Association and another reported at (2000) 8 SCC 4. There the
Hon'ble Apex Court has pointed out difference between regular service
and continuous service. Twelve years regular service entitles Engineers
to selection grade. Hon'ble Apex Court found that High Court was in
error in construing said expression as continuous service. Here we are
not concerned with grant of any such benefit. The question to be
looked into is about seniority and continuous officiation entitling
incumbent to claim seniority from the day he was employed.
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10. Other judgment relied upon by her is in the case of State
of Punjab and another vs. Ashwini Kumar and others reported at
(2008) 12 SCC 572. There provisions of Rules 8 of Punjab Civil
Services (General and Common Conditions of Service) Rules, 1994
prescribed that seniority of persons appointed on purely provisional
basis or on ad hoc basis would be determined as and when they are
regularly appointed keeping in view date of such regular appointment.
Thus the observations of Hon'ble Apex Court are in the light of this
legal provision.
11. Third judgment relied upon is in the case of Central
Council for Research in Homeopathy vs. Bipin Chandra Lakhera
and others reported at (2011) 15 SCC 563. There the Hon'ble Apex
Court has reversed the judgment of the High Court and in the process,
in paragraph 5, has observed that post of Research Assistant was
advertised in 1986, respondent No.1 had applied for that post,
appeared before Selection Committee, but was not found suitable. He
was continued on ad hoc basis because of interim orders passed by
High Court. The post was re-advertised in 1995 and he was then
selected. Thus in these facts, the Hon'ble Apex Court has found that
his service before regularisation from 05-01-1996 could not be added
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for the purpose of counting his seniority. Facts at hand are different.
12. In the judgment reported at Sumangala w/o Manoharrao
Sakharkar vs. State of Maharashtra and others (supra), the learned
Single Judge has found that discontinuation of employee during
vacation does not constitute break in service. It is in this background
that provisions of Rule 12 of the MEPS Rules are interpreted and it is
observed that it is for management to condone the breaks in service for
the purpose of computation of seniority. It has been clarified that
condonation of breaks for the purposes of pension and for counting of
seniority do not stand on same pedestall.
13. In the present matter, perusal of order passed by
Education Officer dated 18/19-07-2007 shows that while finding out
how service earlier rendered by respondent No.3 has been treated, the
Education Officer has in first three paragraph after recording
attendance, noted facts or contentions. Management could not explain
to him why respondent No.3 was appointed only for one session in
1985-86, 1986-87 and 1987-88, respondent No.3 himself also could
not explain, but claimed that break was for reasons beyond his control.
Secretary of society pointed out that break was already condoned. The
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statement made by Secretary that break had been condoned was
accepted and date 01-07-1985 has been given effect to and therefore,
fixed as the date of seniority of respondent No.3. This order does not
show perusal of decision of management to condone break or then the
date on which such decision was taken.
14. Learned Advocate for respondent No.3 has urged that
seniority lists were published from time to time and were not objected
too. We tried to find out when after 1988, seniority list was published.
The order of Education Officer does not contend any reference to it.
Even present respondent No.3 has not specifically pointed out that
every year lists were being circulated and in all those lists, he was
shown senior to present appellant.
15. It is in this background that matter came before the
learned Single judge in writ petition. Before Education Officer present
appellant had claimed that earlier two appointments of respondent
No.3 were against backlog. This contention does not find mention
anywhere in the order of Education Officer. It has not been raised as a
ground before the learned Single Judge in writ petition. Learned
Single Judge has applied his mind in this backdrop and noted
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provisions of Rule 13 of the MEPS Rules. Perusal of Rule 13 shows
that a teacher in service before closure of school for summer vacation,
if reappointed after summer vacation, automatically becomes entitled
vacation wages. Thus, though he has not worked, he becomes entitled
to vacation salary. If defence of appellant as raised before Education
Officer that earlier two appointments of respondent No.3 were against
backlog vacancy is correct, two successive appointments against such
reserved post, may enable respondent No.3 only to claim vacation
salary. It will not enable him to claim seniority from the initial date of
his appointment against such reserved post. We, therefore, find
recourse to Rule 13 of the MEPS Rules for the purposes of
understanding the concept of seniority unsustainable.
16. We are not obvious of the fact that appointments were
made sometime in 1985 or 1986 and present appellant and respondent
No.3 have already put in service in excess of thirty-one years. They
may, therefore, be now nearing the age of superannuation.
17. However, controversy raised has not been properly
approached. As rightly pointed out by learned Advocate appearing for
respondent No.3, if vacancy was of permanent nature, mandate of
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Section 5 obliges respondent No.2 to fill in that vacancy on permanent
basis. If as claimed by present appellant in his objection before
Education officer, it was a backlog vacancy, respondent No.3 could not
have claimed any right because of that appointment. In that event,
question of condoning the break itself will not arise. All these disputed
questions have remained unanswered at the hands of Education Officer
and then learned Single Judge. Perusal of advertisement with
reference to which respondent No.3 was selected was essential. If the
advertisement itself was for a temporary vacancy, the incumbent
selected in pursuance thereof could not have claimed continuation
after regular selection. As advertisement is not looked into and
ultimately, it appears that in 1988 respondent No.3 has been selected
against clear vacancy and was appointed on probation, we are avoiding
to record a binding finding on any of these issues. We feel that when
issue was being agitated since long, the authorities were duty bound to
address it appropriately.
18. We, therefore, quash and set aside the order of Education
Officer dated 18/19-07-2007. The objection raised by petitioner as
also other pleadings in relation thereto are restored back to the file of
respondent No.1. Respondent No.1 shall give a fresh look to
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controversy after calling for necessary records from respondent Nos. 2
and 4. Present appellant as also respondent No.3 shall be given due
opportunity to place their case.
19. In view of these directions, it is apparent that the
judgment delivered by learned Single Judge also cannot stand.
20. We direct appellant as also respondent No.3 to appear
before respondent No.1-Education Officer on 20-07-2017 and to abide
by his further instructions in the matter. That authority shall call for
records, permit parties to inspect it and grant them leave to file
additional affidavits, if they so desire. After this formalities are over,
effort shall be made to decide the controversy at the earliest and in any
case by 30-12-2017.
21. With these directions, we partly allow this letters patent
appeal and dispose it of. No costs.
JUDGE JUDGE
adgokar
