Bombay High Court
Shri. F.F. Korde vs The Education Officer (Sec), Zp, ... on 16 November, 2017
Bench: B.P. Dharmadhikari
Judgment lpa202.10
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO. 202/2010
IN WRIT PETITION NO. 1380/1999
Shri F.F. Korde,
C/o. Rashtriya Adarsha Vidyalaya,
Navegaon Khairi, Tahsil Parshioni,
District Nagpur. ....APPELLANT
.
VERSUS
1. The Education Officer (Secondary)
Zilla Parishad, Nagpur.
2. Rashtriya Adarsha Vidyalaya,
Shikshan Mandal, through its President
Shri Anandrao Ramaji Deshmukh
r/o. Ramtek, Tahsil Ramtek,
District Nagpur.
3. Shri Pandurang s/o Mahadeorao Ghongde,
Aged about 50- years, Occ - Service,
resident of Navegaon Khairi,
Tahsil Parshioni, District Nagpur.
4. Shri R.B. Ambepawar,
5. Shri W.S. Sathone,
6. Smt. S.B. Kimmatkar
Respondent Nos. 4 to 6 residents of
c/o. Rashtriya Adarsha Vidyalaya,
Ramtek, Tah. Ramtek, District Nagpur. ....RESPONDENTS
.
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Judgment lpa202.10
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Mr. M.N. Thengre, Advocate for the Appellant.
Asstt. Govt. Pleader for Respondent No.1.
Mr. S.W. Sambre, Advocate for Respondent No.2.
Mr. H.A. Deshpande, Advocate for Respondent No.3.
None for respondent nos. 4 to 6.
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CORAM : B. P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED : NOVEMBER 16, 2017.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
Matter is part heard and today again we have heard learned
counsel Shri Thengre, learned counsel for the appellant, learned A.G.P. for
respondent no.1, Shri Sambre, learned Counsel for respondent no.2 and Shri
Deshpande, learned Counsel for respondent no.3.
2. By inviting our attention to various judgments, learned counsel for
the appellant submits that Rule 12 of the Maharashtra Employees of Private
Schools (Conditions of Service) Rules, 1981 empowers the Education Officer
to decide the dispute inter-se amongst teachers about seniority and such
decision has been reached on 16.03.1999. That decision was never
questioned and therefore, became final. It was acted upon in 2008, when
Judgment lpa202.10
respondent no.3 was promoted as Headmaster on 01.02.2008. Respondent
no.3 Headmaster retired on superannuation on 30.06.1999, and thereafter,
the appellant came to be promoted and retired in due course. Shri Thengre,
learned counsel points out that because of this position, respondent no.3 did
not receive salary as Headmaster.
3. He submits that having entered in service on 01.07.1985 with due
qualifications, the appellant ought to have been treated as in Category "C" of
Schedule-F of 1981 Rules from that day only. Respondent no.3 completes
10 years of Post Diploma in Education service on 01.08.1985 i.e. after
appellant and enters Category "C" on said date. Therefore, he is junior to
appellant. He reads out the impugned judgment delivered by the learned
Single Judge holding respondent no.3 to be senior to submit that, facts have
not been properly appreciated and qualifications of appellants which places
it in Category "C", right from 01.07.1985 has been ignored. He has invited
our attention to judgment of Division Bench of this Court reported at 1989
Mh.L.J. 951 (Saramma Varghese .vrs. Secretary/President SICES Society
and others); judgments reported at 2016 (6) Mh.L.J. 576 (Sunil
Gopalrao Pande and others .vrs. Amravati Zilla Parishad and others);
2013 (4) Mh.L.J. 657 (Pramod V. Ambatkar and another .vrs. Dy.
Director of Education, Amravati ); and a un-reported judgment in Letters
Judgment lpa202.10
Patent Appeal Nos. 70/1999 and 71/1999, decided on 20.06.2012.
4. Against this Shri Deshpande, learned counsel appearing on behalf
of respondent no.3 submits that appellant has actually joined on 15.07.1985
and on that date, though he was holding training qualification on physical
education side, namely H.D.Ed., he lacked essential qualification of D.Ed.
and hence, was not holding any post in middle school. With the result his
services thereafter till 25.09.1986 cannot be looked into. For the first time
on 25.09.1986, he is placed in 25% category post meant for a graduate
trained teacher and hence, at the most his seniority after 25.09.1986 in
Category "C" becomes relevant. He points out that since there is no dispute
about inclusion of respondent no.3 in Category "C" from 01.08.1985, the
learned Single Judge has rightly applied the law. He states that Diploma in
Education is the essential, as held by this Court in 2000 (3) Mh.L.J. 605
(Jayashree Sunil Chavan .vrs. State of Maharashtra and others) and
thereafter in later judgments. In this background he also relies upon
Division Bench judgment in case of Sunil Gopalrao Pande and others .vrs.
Amravati Zilla Parishad and others (supra), and other judgment in case of
Saramma Varghese .vrs. Secretary/President SICES Society and others
(supra). According to him, insistence of appellant to treat him as senior in
this backdrop, is erroneous.
Judgment lpa202.10
5. Without prejudice, he submits that dispute regarding seniority
between respondent no.3 and appellant was decided on 07.09.1994 by the
Education Officer, after hearing both of them and in it the respondent no.3
was accepted as Senior. Later Education Officer on 16.03.1999 could not
have therefore passed another order militating with said finding. This order
is also passed without hearing respondent no.3 and therefore, it is
unsustainable. He contends that in this situation, later order dated
16.03.1999 was ignored and earlier order dated 07.09.1994 was given effect
to on 01.02.2008. Respondent no.3 was promoted as Headmaster. He
therefore, seeks dismissal of Letters Patent Appeal and release of necessary
benefits in favour of respondent no.3 for period from 01.02.2008 till
30.06.2009 with other consequential reliefs after superannuation.
6. Learned A.G.P. as also learned counsel for respondent no.1 submit
that the dispute essentially is between the appellant and respondent no.3.
7. Various judgments to which our attention has been invited show a
consistent stand that teacher in order to be qualified for computation of his
seniority must be holding a post. If he is so eligible, he can be said to holding
the post, and then his seniority can be counted from that date. Here, facts
Judgment lpa202.10
show that appellant was appointed in a middle school by order dated
01.07.1985, and he joined duties on 15.07.1985. At that time he was M.A.
with H.D. Ed. This H. D.Ed. is training qualification on physical education
side recognized and equivalent to B.Ed. The recruitment Rules need
qualification of Diploma in Education, and as such appellant was not duly
qualified on 15.07.1985 for holding any post in middle school. 25% post in
Graduate Quota is given to him on 25.09.1986. The post is in graduate
quota, and hence the appellant has been accepted as qualified only to work
against it. In other words, he can demand for counting his services from
25.09.1986 only. His services rendered prior thereto cannot be reckoned for
that purpose.
8. As against this, respondent no.3 was H.Sc., D.Ed. with Diploma in
Education, LDT on 01.08.1975, when he joined services. Thus, he was fully
qualified to hold the post in middle school on that date. He has obtained
graduate qualification in 1984 and training qualification D.Ed. In 1989.
Because of his training qualification on 01.08.1975, as per stipulation in
entry no.4 in Category "C" on Schedule-F of 1981 Rules, after putting in 10
years of service, he enters Category "C" on 01.08.1985. Thus, he enters
Category "C" before present appellant.
Judgment lpa202.10
9. In the impugned judgment, learned Single Judge has looked into
all this niceties, as also relevant case law and then found respondent no.3 to
be senior. The order of Education Officer passed earlier on 07.09.1994,
therefore has been maintained and adverse orders passed on 16.03.1999
has been quashed and set aside.
10. No case is therefore made out warranting intervention. Letters
Patent Appeal is therefore, dismissed.
11. Needless to mention that respondent no.3 is therefore, entitled to
emoluments as Headmaster from 01.02.2008 to 30.06.1999, and his last
pay for the purpose of computation of retiremental benefits and other
terminal benefits, shall also be corrected accordingly. This exercise shall be
completed within a period of four months.
12. With these directions, we dispose of the present Letters Patent
Appeal. No costs.
JUDGE JUDGE
Rgd.
