Bombay High Court
Ram Inder Sharma vs State Of Maharashtra And 3 Ors on 17 November, 2017
Bench: S.C. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.727 OF 2006
Ram Inder Sharma,
Son of Ramlochan Sharma,
Residing at B-11,
Asha Co-op. Hsg. Society,
Adharwadi Road, Kalyan (West),
District - Thane - 421 301. .. Petitioner
V/s.
1) State of Maharashtra
(Through the Principal Secretary,
Dept. of Education - School
Education - and Employment),
Mantralaya, Bombay - 400 032;
2) Deputy Director of Education,
Bombay Region, Jawahar Bal
Bhavan, Charni Road,
Mumbai - 400 004;
3) Education Inspector (South Zone)
Topiwala Lane Municipal School Bldg.,
Mumbai - 400 007;
4) School of the Sacred Heard,
Sunderdas Terrace,
Sankli Stree, Byculla,
Bombay - 400 008. .. Respondents
......
Mr.Sainand Chougule, Advocate for the Petitioner.
Mr.Milind More, Addl. G.P. for Respondent No.1.
......
CORAM : S.C. DHARMADHIKARI AND
PRAKASH D. NAIK, JJ.
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JUDGMENT RESERVED ON : SEPTEMBER 14, 2017
JUDGMENT PRONOUNCED ON : NOVEMBER, 17 2017
JUDGMENT (PER PRAKASH D. NAIK, J.) :
This petition is preferred under Article 226 of the
Constitution of India and petitioner seeks issuance of writ of
certiorari or a writ of mandamus or any other appropriate writ,
order or directions, declaring that the respondents to count the
services of the petitioner from 1980 instead of 1984 onwards for
the purpose of grant of selection grade. It is also prayed that the
respondents may be directed to fix the petitioner's pay scale from
the date of the first appointment of 1980 as mentioned in the
service book of the petitioner and order and direct the
respondents to pay the salary as per the selection grade from
June 2004. The petitioner also seeks injunction of this Court from
preventing the respondents from recoveries being made at the
instance of the petitioner.
2 The factual matrix as contended by petitioner, for
considering the issues involved in this petition is as follows:
(a) The petitioner is a teacher. He joined St.George School,
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Malad, Mumbai on undergraduate scale for a period of one
year during the year 1979-1980. Thereafter, from the year
1980 to 1984 for a period of four years, the petitioner
worked on the basis of trained graduate scale in the same
School. According to the petitioner, there was no break in
his service when the petitioner joined the 4 th respondent
school in the year 1984, as an Assistant Teacher.
(b) The petitioner contends that he completed 12 years of
service in the 4th respondent school in 1992. For the
purpose of counting 12 years, four years service in
St.George School was also considered. On the basis of the
said computation the petitioner was given the senior scale
in the year 1992. He was due for the selection grade in the
year 2004, but it was denied on the ground that four years
service in the unaided school is not required to be counted.
When the petitioner pointed out that he was already given
the senior scale in the year 1992 on the basis of the said
four years of service in St.George School, Malad, Mumbai,
the Education Department had contended that the same
was given by mistake .
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(c) The petitioner wrote letter dated 6 th April, 2005, addressed
to the 3rd respondent, Educational Inspector, placing the
facts on record. In the said letter, it was contended that
after devoting 20 years of continuous service, he was
entitled for the selection grade. The Education Department
contended that the senior scale was given to the petitioner
by mistake and the recoveries will have to be made. In the
said letter the petitioner had contended that he was
entitled to the selection grade vide circular dated 9 th
December, 2004.
(d) The respondent no.2, by letter dated 18 th October, 2005,
informed the petitioner that his pay will have to be refixed
in accordance with the 5th pay commission report and the
pay revision be made. It was also stated that such a
decision was arrived at by the working group in its meeting
held on 26th September, 2005. The accounts Officer
(Education) was directed to take necessary action. It was
stated that the petitioner's service in the unaided school
cannot be taken into consideration for grant of senior scale.
(e) The petitioner then sent an advocate's notice dated 24 th
December, 2005, which was addressed to respondent nos.2
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and 3. In the said notice, it was stated that the grievance of
the petitioner may be dealt with or else the petitioner will
be constrained to initiate the legal proceedings.
3 The learned counsel for the petitioner submitted that
the petitioner was rightly given the senior scale in 1992 on the
basis of 12 years of service counting his four years of service
rendered in the previous school. It is submitted that the
petitioner relies upon the circular dated 26 th July, 1973, wherein it
is mentioned that the past service in an unaided school is to be
counted for the purpose of seniority and for the purpose of pay
fixation. It is a settled principle of law that for all purposes the
date of joining of service in a school is to be considered for the
purpose of fixation of pay, grant of senior scale etc. The petitioner
having been given the senior scale in 1992, it is not open to the
respondents to contend that for the selection grade the same
principle will not be applied. The counsel further submitted that
the impugned decision communicated vide letter dated 18 th
October, 2005 is contrary to the well established principles of law.
It is submitted that in the service book of the petitioner, there is a
mention of four years of service in St.George School, Malad,
Mumbai. According to service book there is no break in service
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and, hence, the petitioner is perfectly justified in contending that
the pay fixation should be based on the first date of appointment
in the St.George school, though, it was an unaided school. It is
submitted that what is to be considered is that the said school
was recognized but unaided. Whether the school is aided or
unaided is totally immaterial if the concerned school is
recognized by the Government. Looking from any angle the four
years service in St.George school cannot be excluded for the
purpose of counting the service for pay fixation. It is also
submitted that the respondents be prevented from claiming any
amount by way of difference for having paid the salary as per the
senior scale. The respondents have no right to refix the pay or
seniority or make recoveries from the petitioner. It is submitted
that the petitioner is entitled to the salary according to the
selection grade from June 2004. Inspite of the repeated request
the salary has not been fixed after giving him the selection grade.
4 The respondent no.1 has opposed the grant of any
reliefs to the petitioner. The affidavit filed by Smt.Smita Dighe,
Superintendent (Secondary) is on record. In the said affidavit it
has been stated that the respondent no.4 school is 100 percent
private aided English Medium School receiving grant in aid from
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the State Government for V to X standard classes. The petitioner
is B.Sc.B.Ed. qualified Teacher and was appointed on 13 th June,
1984 in respondent no.4 school by School Trust, as an Assistant
Teacher with effect from 13th June, 1984 in the scale of Rs.365/-
to 750/-. It is stated that the petitioner was earlier working in the
school which is permanently unaided school. The petitioner is
appointed in the respondent no.4 school only from 13th June,
1984, which is recognized and 100 percent aided school. As per
the provisions in paragraph no.10 in Government Resolution
dated 6th May, 2014, the service rendered in permanent unaided
school and junior colleges will not be considered for the sanction
of senior scale and selection grade. It is further stated in the said
resolution that if any duly qualified teaching staff working in the
permanent unaided primary, secondary or junior college, and, if
afterwards he has been appointed in unaided school of the same
management or any other management, the said appointment will
be treated as new appointment and the services will be
considered from the date of approval for his appointment by the
competent authority.
5 In the said affidavit-in-reply, it is further stated that
the petitioner has been appointed in respondent no.4 school with
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effect from 13th June, 1984 (which is the aided school). St.George
School, Malad, Mumbai, is permanently unaided school. The
petitioner is not eligible to be considered for selection grade after
counting the service rendered in permanent unaided school for
the period from 1980 to 1984. As per the provisions in the
government resolution dated 6th May, 2014, the petitioner is
eligible for senior scale in the year 1996 after completing 12
years from 1984 i.e. from the date of appointment in respondent
no.4 school and for selection grade in the year 2008 after
completing 24 years. It is also stated that the petitioner's prayer
for getting benefit of selection grade from the year 2004, cannot
be considered. In fact, the wrongly approved senior scale with
effect from 1992 will be revoked and will be made legible for
senior scale from 1996. Therefore, it would necessary to recover
the amount paid to the petitioner by wrongly sanctioning senior
scale for the period from 1992 to 1996. It is also stated that as
per the G.R. Dated 28th November, 2006 and 6th May, 2014, the
services of the petitioner will be calculated with effect from 13 th
June, 1984 i.e. from the date of appointment in respondent no.4
school for senior scale and selection grade and, accordingly, the
revised pay fixation will be done by the department.
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6 The learned counsel for the petitioner had relied upon
the decisions of this Court delivered in writ petition no.2185 of
2000 in the case of Mrs.Vivenne Choudhari & Ors. Vs. Deputy
Director of Education and another decision delivered in writ
petition no.989 of 2006 in the case of Dattatrya Eknath
Mahadik and Ors. Vs. Deputy Director of Education and
Ors.
7 We have perused the documents on record. The
petitioner had rendered his services as Assistant Teacher in the
year 1979 to 1980 in St. George School Malad, Mumbai on
undergraduate scale. Thereafter, he rendered his services as a
teacher in the year 1980-1984 for a period of four years in
St.George School at Malad, Mumbai. The petitioner then joined
the respondent no.4 school in the year 1984. It is pertinent to
note that St.George School where the petitioner was employed as
a teacher for the period of 1980 to 1984 is a permanently unaided
school. The petitioner is relying upon the period of four years
wherein the petitioner had rendered his services as a teacher in
St.George School, Malad, Mumbai for calculating the period to
claim the reliefs as prayed in this petition. It is the case of
the petitioner that he was given the senior scale in the year
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1992 and he was entitled for selection grade in the year 2004.
The said relief was denied to him on the ground that the four
years service which was rendered by the petitioner in another
school was the school which is unaided school and the same
cannot be counted. The petitioner's contention is that he was
already given senior scale in the year 1992 on the basis of the
four years of service which he had rendered in St.George School,
Malad, Mumbai. The Education Department, therefore, cannot
turn around and deny the relief to the petitioner. The second
respondent however, categorically stated vide communication
dated 18th October, 2005 that the pay of the petitioner will have
to be refixed in accordance with the 5 th pay commission's report.
It was also stated that a decision was arrived at by the working
group in the meeting held on 26th September, 2005. The
petitioner's service in the unaided school cannot be taken into
consideration for the grant of senior scale.
8 It would be relevant to note that the respondent no.4
school is 100 percent private aided English Medium School
receiving grant in aid from the State Government. The petitioner
was appointed in the said school on 13 th June, 1984 as Assistant
Teacher. The petitioner's contention that the earlier services
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rendered in permanent unaided school namely St.George School,
Malad cannot be considered since the said school was
permanently unaided school. It is true that vide G.R. dated 28th
November, 2006, the services rendered in recognized private
unaided school in the State of Maharashtra were being
considered for the sanction of senior scale and selection grade.
However, in view of the clarificatary Government resolution dated
6th May, 2014, the service rendered in permanent unaided school
and junior colleges will not be considered for the sanction of
senior scale and selection grade. The earlier school of the
petitioner was permanently unaided school and, therefore, the
said period of four years cannot be considered for calculating the
selection grade or senior pay scale. Clause 11 of the said
resolution also makes it clear that if any duly qualified teaching
or non-teaching staff working in permanent unaided primary,
secondary or junior college and if subsequently he has been
appointed in unaided school of same management or any other
management, the said appointment will be treated as new
appointment and the said service will be considered from the
date of approval for his appointment by competent authority. The
petitioner is, therefore, not eligible to be considered for selection
grade after counting the service rendered in permanent unaided
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school i.e. St.George School, Malad, Mumbai from the period
from 1980 to 1984.
9 In the decision in the case of Vivenne Choudhary &
Ors. (Supra) delivered in writ petition no.2186 of 2000, the
Division Bench of this Court had considered the issue whether the
period during which the college was unaided is to be considered
for the purpose of counting the period of 12 years of service.
In the said case, the petitioners-teachers were employed as
teachers with the concerned college which is recognized by the
State of Maharashtra. In the said case, the institute where the
petitioners were working were not aided upto a particular period.
It was contended on behalf of the State that unaided period is
not to be counted for higher placement. The State relied on G.R.
Dated 13th September, 1990. The petitioners challenged the
explanation in the said G.R. which stated that if an employee had
worked for two or more schools in one and the same pay scale
continuously for 12 years and if all such schools are aided then
entire period of service should be taken up for consideration and
if there is break due to transfer then the period of break should
be excluded from 12 years. The Court relied upon the earlier
decision of this Court in the case of Dattatraya Eknath
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Mahadik (Supra) and allowed the said petition. It was observed
that the ratio of the judgment in the case of Dattatraya Mahadik
will apply to the facts of the said case. The question which fell for
consideration before the Division Bench of this Court in
Dattatraya Mahadik case was whether the employees of private
schools after completing 12 years of qualifying service in the
same school which was initially unaided and subsequently aided
are eligible for senior scale/time bound promotion scale and
thereafter selection grade and whether once the senior scale time
bound scale is granted, is it open to the respondent authorities to
withdraw the same and order recovery. From the facts of that
case, it is apparent that the concerned school has recognized
school and has been receiving grant with effect from 1st October,
1988. The petitioners therein were employed prior to 1 st October,
1988. The question before the Court was whether the services in
the same school which was recognized but unaided has to be
computed for the purpose of calculating the completion of 12
years or is the service on the school receiving grant to be counted
for the purpose of computing 12 years of service of recognized
school covered by the provisions of the MEPS Act. The Court,
therefore, observed that whether the school is aided or not the
school has to pay same pay scales to their staff whether it is
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teaching and non-teaching staff. Once that be the case whether
the school receives grant in aid or not would be immaterial as
long as the teachers have been appointed and their appointments
have been approved. What would be relevant would be the first
date of initial regular appointment. The services prior to receipt
of grant in aid has to be counted.
10 It is thus seen that the facts in the aforesaid decisions
were distinct and the ratio laid down therein is not applicable in
the present case. It is also pertinent to note that in view of the
Government resolution dated 6th May, 2014 which is not the
subject matter of the aforesaid decisions, the services rendered in
permanent unaided school cannot be considered for the sanction
of senior scale and selection grade. The petitioner has not
challenged the validity of G.R. dated 6th May, 2014. As far as the
other submission of the petitioner that the authorities are trying
to recover the dues which were purportedly wrongly paid to the
petitioner, we have noticed that although in the letter issued by
the respondents, it was mentioned that the grant of senior scale
was by mistake and the differential payment will be recovered
from the petitioner, we do not find that the authorities has
thereafter proceeded further to recover the said amount from the
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petitioner. There is nothing on record to show that the
respondents have proceeded to take any steps for such
recoveries. The petition is pending before this Court since 2006.
11 For the reasons stated herein above we do not find
any substance in the contentions of the petitioner and the relief
sought by him in this petition cannot be granted.
12 We therefore, pass the following order:
:: O R D E R ::
(i) Writ Petition No.727 of 2006 is dismissed;
(ii) No order as to costs.
(PRAKASH D. NAIK, J.) (S.C. DHARMADHIKARI, J.)
