Pandurang Rangnath Kurhe vs The State Of Maharashtra And ...
2022 Latest Caselaw 1808 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                        WRIT PETITION NO.1953 OF 2019

Pandurang S/o Rangnath Kurhe
Age : 57 years, Occu. Service as Assistant Teacher
R/o. Jalke Khurd,
Tq. Newasa, Dist. Ahmednagar                       ...Petitioner

         Versus

1.       The State of Maharashtra
         Through it's Secretary,
         Education Department, Mantralaya,
         Mumbai-32.

2.       The Education Officer (Secondary)
         Zilla Parishad, Ahmednagar.

3.       The President
         Samta Shikshan Prasarak Mandal,
         At Post Kharwandi Tq. Newasa,
         Dist. Ahmednagar.

4.     The Secretary
       Samta Shikshan Prasarak Mandal,
       At Post Kharwandi Tq. Newasa,
       Dist. Ahmednagar.                           ...Respondents
                                  ...

Mr. Vaibhav B. Dhage, Advocate for the Petitioner. Mr. S.B. Pulkundwar, AGP for the Respondent/State. Dr. R.J. Godbole, Advocate for Respondent No.3. Mr. S.R. Kedar, Advocate for Respondent No.4.

WITH WRIT PETITION NO.674 OF 2019

Namdeo S/o. Vishnu Sase, Age : 57 years, Occu. Service R/o. Jalke, Ta. Newasa, Dist. Ahmednagar ...Petitioner

Versus

1. The State of Maharashtra

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Through its Secretary, School and Education Department, Mantralaya, Mumbai-32.

2. The Education Officer (Secondary) Zilla Parishad, Ahmednagar.

3. Samta Shikshan Prasarak Mandal, Kharwandi Ta. Newasa, Dist. Ahmednagar.

Through its President.

4. Shri Pandurang Rangnath Kurhe Age : 57 years, Occu. Service R/o. Jalke Khurd, Ta. Newasa, Dist. Ahmednagar ...Respondents ...

Mr. Adinath B. Jagtap, Advocate for the Petitioner. Mr. S.B. Pulkundwar, AGP for the Respondent/State. Mr. V.B. Dhage, Advocate for Respondent No.4.

...

CORAM : A.S. GADKARI & S.G. MEHARE, J.J.

RESERVED ON : 08th FEBRUARY, 2022 PRONOUNCED ON : 23rd FEBRUARY, 2022

JUDGMENT (PER S.G. MEHARE, J).:-

1. Rule. Rule made returnable forthwith and heard finally with

consent of the parties.

Heard the respective counsels.

2. The issues involved in both the writ petitions are interlinked,

hence, taken up for disposal together.

3. The questions of inter se seniority and appointment as Head of

the School have been raised in these petitions.

4. To appreciate the lis between the parties, it will be appropriate

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to refer to the relevant facts of petitions for consideration conjointly

as under:-

Both the petitioners will be referred to by their names hereinafter

for convenience.

Petitioner Shri Sase has impugned the Order of respondent

no.2/Education Officer dated 05.01.2019, holding petitioner Shri

Kurhe senior to him. Petitioner Shri Kurhe has impugned the Order

of the same Education Officer dated 21.01.2019, declining approval

to his appointment as Head of the School. In view of the directions

issued by this Court in W.P. No.10346/2018, the seniority dispute of

both Petitioners was decided by respondent no.2 by his Order dated

05.01.2019. By Order dated 05.09.2018, respondent no.2, had

accorded sanction in favour of Shri Sase to look after the day to day

affairs of the School and sign the pay bills. Petitioner Shri Sase had

filed a W.P. No.6442/2021 before the Division Bench of this Court.

The Coordinate Bench of this Court had issued directions to the

Director of Education Pune, to consider all the earlier Orders passed

before and take the decision afresh expeditiously. Accordingly, The

Deputy Director decided the dispute on 03.01.2022 and cancelled the

promotion granted to Shri Sase as Head Master. Shri Sase again

challenged the said Order in W.P. no.1018/2022. Once again, the

Division Bench of this Court, by its Order dated 19.01.2022, granted

an opportunity to Shri Sase and the school management to submit all

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documents. This Court had directed the Deputy Director of Education

to take a decision afresh regarding the approval of his appointment as

Head Master, preferably before 20.02.2022.

5. It is not disputed that Shri Sase was appointed as a Special

teacher on 30.06.1987, and he was S.S.C. A.T.D. Shri Kurhe was

appointed as an Assistant teacher on 13.06.1986, and he was M.A.

B.Ed.

Shri Sase has no objection that Shri Kurhe was appointed

earlier to him, however, as there was a break in his service, hence he

could not be held senior to him. He claimed that he is the senior-

most employee in the School. Under the Order of respondent no.2

dated 05.09.2018, he was looking after the day-to-day affairs of the

School and was signing the pay bills. Respondent no. 2 erred in law in

not considering the break in service of Shri Kurhe.

6. Shri Dhage, the learned counsel for the Petitioner Shri Kurhe

vehemently argued that the Petitioner was not only appointed earlier

to the appointment of Shri. Sase, but also a trained teacher holding

M.A., B.Ed degree. Shri Kurhe was the only candidate qualified and

eligible for the appointment as Head Master. As usual, the dispute in

the Management made him a scapegoat and put him at a great loss to

enjoy the post of Head Master. Shri Sase was not qualified and eligible

to be appointed as Head Master, but only due to the favourable

management he was appointed on the said post. Unfortunately,

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respondent no.2, the same Education Officer, granted approval to his

appointment in contravention of the M.E.P.S. Rules and Regulations.

The other rival group of Management successfully deprived the

Petitioner of the post of Head Master till he retired on superannuation

on 31.05.2019. Though the Petitioner is retired on superannuation,

his right to claim the seniority benefit as Head Master still survives.

In the circumstance of the case and having regard to the conduct of

the Management and Shri Sase, heavy cost may be imposed on them.

7. Per contra learned counsel Shri Jagtap for petitioner Shri Sase

would argue that the respondent/Education Officer has not

considered the roster dated 26.12.1990, which shows the date of

approval to the appointments. He further submitted that while

determining the seniority, respondent no.2/Education Officer did not

consider the break-in service of Shri Kurhe. The date of seniority

would be the date of approval for the appointment, and a break in

service would not be considered. Petitioner was the senior-most in

the institution. Hence, respondent no.2 had correctly given him a

charge of Head Master. The impugned Order determining seniority

and holding Shri Kurhe senior to him dated 05.01.2019 violates the

M.E.P.S. Rules and Regulations and hence it is liable to be quashed

and set aside.

8. The group rivalry in the Management is apparently seen from

the support extended by respondents no.3 and 4 to the petitioners,

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respectively.

9. Before we advert to the factual matrix, it would be appropriate

to consider relevant provisions of The Maharashtra Employees of

Private Schools (Conditions of Service) Regulation Act 1977 and

Rules 1981 (M.E.P.S. Act and Rules 1981 for short). Rule 3 of the

Rules 1981 pertains to the qualification and appointment of Head,

which reads thus:

"3. Qualifications and appointment of Head.

(1) A person to be appointed as the Head-

a) (i) ....

(ii) .....

(b) of a secondary school including night school or a Junior College of Education shall be a graduate possessing Bachelor's degree in teaching or education of a statutory University or any other qualification recognised by Government as equivalent thereto and possessing not less than five years' total full-time teaching experience after graduation in a secondary school or a Junior College of Education out of which at least two years' experience shall be after acquiring Bachelor's degree in teaching or education :

Provided that, in the case of a person to be appointed as the Head of a night secondary school -

(i) he shall not be the one who is holding the post of the Head or Assistant Head of a day school, and

(ii) the experience laid down in clause (b) of sub-rule (1) may be as a part-time teacher.

(2) In the case of appointment to the post of Head of a secondary school including night school or a Junior College of Education if

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there is no person with the teaching experience mentioned in clause (b) of sub-rule (1) available on the staff of the school or if the qualified persons though available and eligible, relinquish their claims for the post of Head and if a Management desires to appoint a person, from the teaching staff of the school who does not possess the requisite teaching experience mentioned in clause

(b) of sub-rule (1), it shall apply to the Deputy Director for relaxing the requirement. The Deputy Director may, after recording reasons in writing, grant or refuse such relaxation. In such cases, the appointment shall not be made without obtaining the previous approval of the Deputy Director.

Note: In the case of a graduate teacher already in service in a secondary school or Junior College of Education for more than fifteen years on the 1st June 1963, the Deputy Director shall relax I he requisite qualifications for appointment of such teacher as a Head.

(3) The Management of a school including a night school shall fill up the post of the Head by appointing the seniormost member of the teaching staff (in accordance with the guidelines laid down in Schedule "F" from amongst those employed in a school (if it is the only school run by the Management) or schools [if there are more than one school (excluding night school) conducted by it] who fulfills the conditions laid down in sub-rule (1) and who has a satisfactory record of service.

[Explanation - For the purpose of this rule, the Management shall communicate any occurrence of vacancy of the Head to the senior-most qualified teacher having satisfactory record of service and ask him to submit his willingness for appointment to the post within a period of fifteen days from the date of receipt of the communication. The claim of the senior-most qualified teacher having satisfactory record of service, for appointment to the post of Head, may be disregarded only if he, of his own free will, gives

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a statement in writing to the Education Officer that he has voluntarily relinquished his claim to the post. This shall not debar him from being considered for subsequent vacancies as and when they occur. Such a teacher shall record his statement in his own handwriting before the Education Officer within a period of fifteen days from the date of receipt of the communication as aforesaid and the Education Officer shall endorse it as having been recorded in his presence. A statement once duly made by such teacher before the Education Officer shall not be allowed to be withdrawn. In the event of the teacher failing to submit his willingness for appointment to the post or to give a statement to the Education Officer within a period of fifteen days, it shall be assumed that he has relinquished his claim on the said post :

Provided that, where an unforeseen vacancy of Head occurs owing to reasons like resignation without giving due notice, death, termination of services, reduction in rank or otherwise, the senior-most teacher desirous of relinquishing his claim for appointment to the post shall, within seven days from the date of receipt of a communication by him of occurrence of such vacancy from the Management, communicate to the Management in writing about the same so as to enable the Management to finalise the appointment. Such a teacher shall thereafter as soon as possible and in any case within a period of fifteen days from the date of receipt of the communication as aforesaid record his final statement before the Education Officer to enable him to approve the appointment, or as the case may be, to disapprove the appointment if such teacher states in his statement before the Education Officer that the communication sent by him in writing to the Management was obtained from him by the Management under duress. In the event of the teacher failing to record a final statement within a period of fifteen days as aforesaid it shall be assumed that he has relinquished his claim on the said post;]"

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10. It is crystal clear from the above Rule that the Management has

to appoint the senior-most member of teaching staff following the

guidelines laid down in schedule F, provided such member should

have a satisfactory service record. He must fulfill the conditions laid

down in sub-rule (1) of Section 3.

11. The seniority of the teaching staff shall be maintained as

provided under Rule 12 of the Rules of 1981. The said Rule imposes a

responsibility and duty on the Management to maintain the seniority

list of teaching staff, including Head Master and Assistant Head

Master in accordance with the guidelines prescribed in Schedule F.

Such seniority list is required to be circulated amongst the members

concerned and to have a record, their signatures on such list are to be

obtained. Any subsequent change made from time to time in such a

seniority list shall also be brought to the notice of the concerned staff

members. Objections, if any, raised against the seniority list or to the

changes made therein from time to time shall be duly considered by

the Management. However, the disputes about the seniority shall be

referred to the Education Officer for his decision. So, while

maintaining the seniority list, the Management must consider Rule 12

and the guidelines prescribed in Schedule F together.

12. Clause 2 of Schedule F deals with the categories for the fixation

of seniority of the teaching staff in the Secondary Schools and Junior

Colleges. The teaching staff has been divided into A to H categories.

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Category 'A' and 'B' speak of the seniority of the teachers from the date

of their appointment based on the strength of students and the

number of Divisions. Category 'C' deals with the teachers holding the

educational Qualifications with stipulated years of posts in a few

cases. Category 'D' deals with the holders of graduate degrees and

S.T.C./Dip. Ed. (one-year course) or its equivalent. Untrained

graduates or holding equivalent qualifications fall in category 'F'.

Untrained matriculates or equivalent qualification holders are in

category 'G'. All teachers other than those mentioned in categories 'A'

to 'G' have been kept in category 'H'.

13. It has also been mentioned in Note 5 in Schedule F that, where

a Management runs more than one School, and where Junior College

classes are or are not attached to any one or more of such schools, the

seniority list for a particular cadre shall be a combined list of all

persons in that cadre working in all the schools (excluding night

school, if any), or Junior College classes attached to schools of the

Management. The total continuous service rendered by the persons in

a particular cadre in any school or Junior College class shall be taken

into consideration for the purpose of seniority and for the purpose of

promotion.

14. Petitioner Shri Kurhe was M.A. B.Ed on 13.06.1986, i.e. the

date of his appointment as Assistant teacher. Hence, he falls in

category 'C'. However, the Management did not obtain approval for

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his appointment till 01.03.1990. The approval was granted to him

from the end of the year 1990 and 27.03.1992 with back wages

protection.

15. As regards the category of Shri Sase, considering his

educational qualification on the date of his appointment, he falls in

category 'E". It is not disputed that he secured his 'A. M.' degree in

due course of his service. He claimed it to be equivalent to B.Ed. His

approval order dated 13.11.2007 reveals that from 01.11.2007, he

was placed in the pay scale of B.Ed from D.Ed. This document is

against the claim of Shri Sase that on the day of his appointment, he

possessed the educational qualification equivalent to Shri Kurhe. In

no case, on the date of his appointment, he was in category 'C'. The

Rule is crystal clear that educational qualification determines the

category of the teachers. A teacher falls in category 'C" only on

securing a professional degree of B.Ed.

16. The effect of possessing and non-possessing professional

qualification has been elaborated by the Division Bench of this Court

at Nagpur Bench, in the case of Anjali Jayanti Khati vs Bal Mandir

Sanstha, 2009 (1) Bom. C. R. 206 in para no. 11, which reads as

under :

"11. Date of continuous appointment is not the only criteria for fixation of the seniority. Seniority has to be fixed according to Rules laid down in Schedule 'F' to the Maharashtra Employees of Private Schools Rules. The present petitioners fall in

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Category 'C" since all of them as on the date of fixation of seniority in 1992 were trained teachers. However, while fixing the seniority the date of acquisition of B.Ed. Qualification would also become material. Unless one acquires or possesses such qualification as B.Ed. or professional qualification one cannot go up in the ladder. If a teacher is a graduate but does not hold training or professional qualification he cannot fall in Category 'C'. He may enter 'C' category the day he acquires training or professional qualification. The ladder is in descending Order. Here it must be borne in mind that a trained teacher would be put above untrained teacher though length of service wise the untrained teacher may senior. Education Officer seems to have not followed the instructions contained in Schedule 'F'. The seniority is to be fixed mainly on three criteria i.e. length of continuous service, the acquisition of professional qualification and the age, if two or more candidates or teachers are appointed on the same day........ "

17. The law on the seniority of teachers and the various categories

has been crystallized once again by the Division Bench of this Court at

Principal Seat at Bombay in W.P. No. 14242 of 2018 with other writ

petitions decided on 09.04.2019 and the concluding paragraphs

no.115 to 117 reads as under :

Conclusion:

"115. This Court's series of judicial pronouncements, as cited above, with the final cap by the Supreme Court's Vimam Vaman Awale and Bhawna, unmistakably lays down the law: Among Primary Teachers, the seniority is counted from the date of teacher's joining service. On the other hand, among the Secondary Teachers, the seniority is counted based on when the teachers had been placed in a particular category- for their

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seniority stands graded and categorized by the date of their very joining. The categorization is qualification-dependent. Placed in the descending Order of category, the teachers rise in ranks of seniority with their additionally acquired qualifications under Guideline (2) of Schedule F, appended to Rule 12 of MEPS Rules.

"116. Once a few teachers reach a common category, equal they may have all been in rank, but their seniority depends on who entered the specific category first. And this entry depends on the date of teacher's acquiring qualification, not on the date of his or her joining service."

117. Thus, a teacher who is a member of a lower category can in no manner rank senior to the teacher who is already a member of a higher category. Such a claim could be based neither on his continuous service nor on his acquiring the qualification and reaching the higher category. To be specific a teacher, for example, in category D, E, or F, on later migration to Category C, cannot steal a march over a teacher already ensconced in that higher category. That teacher's seniority by length of service and by his or her later acquiring the requisite, additional, or even superior qualifications does not defeat the right of teachers already found placed in Category C. What applies to Primary Teachers cannot apply to Secondary Teachers, for the Rules do keep these two streams of teachers unmixed."

18. In the case at hand, at the time of his appointment, Shri Sase

did not possess qualification equivalent to B.Ed. He acquired it in the

year 2007. Hence, no question arises to consider him in Category 'C'

from the date of his appointment. So far as the seniority list

maintained by the Management under the signature of the President

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(undated) relied upon by Shri Sase is concerned (Exh. A in his

petition), it does not bear the signature of Shri Kurhe. The said list is

against the mandate of Rule 12 of the Rules 1981. Having regard to

the dispute in Management, we have serious doubt about its

genuineness as possibility of creating the said list subsequently cannot

be ruled out.

19. Now, we turn to the ground of removal/termination of Shri

Kurhe from service and consider whether there was any such

removal/termination and if yes, what is its effect on seniority?

20. The learned counsel for Shri Sase would argue that Shri Kurhe

was removed/terminated from service by Order dated 25.03.1991 as

he was appointed for a academic year. He had challenged his

termination before the School Tribunal, but the petition was

dismissed. Again, at the mercy of the Management he was appointed

on 27.03.1992. Termination of service is a break in service, and the

Management has not condoned his break in service. Hence, he

cannot claim continuity in service from 13.06.1986.

21. Section 25-A and 26 of M.E.P.S Regulation Act, 1977 provides

for the termination of the services of the staff on account of abolition

of posts. Rule 25-A attracts in case of closure of the School, whereas

Rule 26 pertains to retrenchment of permanent employees in the

situation of reduction of establishment owing to reduction in the

number of classes or division; fall in the number of pupils resulting in

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reduction of establishment; change in the curriculum affecting the

number of certain category of employees; closure of course of studies;

and any other bona fide reason of similar nature. Under Section 28,

the services of a temporary employee other than on probation may be

terminated by the Management at any time without assigning any

reason after giving one calendar month's notice or by paying one

month's salary in lieu of notice as well as by way of penalty for

misconduct.

A break in service is discontinuation in service. Such break may

be physical where the employee concerned does not perform his

duties on account of various reasons. For seniority, the employee shall

be permanent in service. A candidate appointed against the reserved

post as contemplated in Rule 9 (7) of the Rules 1981 shall be

temporary on year to year basis. The Rules regarding

termination/removal from service are very specific, as discussed

above.

22. The record reveals that the School Tribunal, Pune, in its Order

dated 17.12.1991 in Appeal No. 45/91, held that Shri Kurhe was a

permanent employee from 13.06.1986 and turned down termination

order dated 25.03.1991 and declared his continuity in service. One

more Order of the same School Tribunal dated 12.12.1997 passed in

Appeal no. 133/1992 reveals that the termination of Shri Kurhe by

the Management by its Order dated 13.06.1992 was turned down and

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the Management was directed to reinstate him from 13.06.1992 with

back wages. These factums are more than sufficient to believe that

Shri Kurhe never had a break in his service. Since he was terminated

illegally, no question of a break in service arises.

23. On the contrary, Shri Sase was placed first time in Category "C"

on securing a degree of A.M. in 2007. He had no comparison with

petitioner Shri Kurhe for considering the seniority till 2007. He was

in a different category. His seniority claim against Shri Kurhe has no

legal basis and is unfounded.

24. In view of the above, we are of the opinion that the Order

determining the seniority by respondent no.2 impugned before us is

free from any legal infirmity and does not warrant interference.

25. Now, we turn to the next question of declining the appointment

of Shri Kurhe as Head Master. We have discussed the Rules of

seniority in detail while dealing with the question of seniority.

Seniority and educational qualification, particularly a Bachelor's

degree, a graduation degree of any branch with five years full time

teaching experience, is a sine qua non for the appointment as Head of

the School as provided under Rule 3 of the Rules 1981. Having

regard to the legal demand for the post of Head of the School, Shri

Kurhe had the requisite qualifications and seniority and was eligible

to be posted as Head of the school. No one has a case that the service

record of Petitioner Shri Kurhe was unsatisfactory nor any adverse

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material is placed on record. There was no ground at all to deny him

the appointment of the Head of the School. Surprisingly the same

Education Officer/respondent no.2 who has held that Shri Kurhe was

the senior-most in the School conveniently turned a blind eye to take

a conscious decision approving his appointment as the Head of School

on extraneous and unfounded grounds.

26. It is miserable that the School Managements nowadays are

more interested in appointing a man of their choice on various posts

legally unfit and unsuitable than paying attention towards the quality

of education and the future of the innocent students. It is

experienced from various cases that School Managements are

frustrating the very purpose of the Regulations of 1977 and Rules

1981. The competence of suitable candidates is deliberately avoided.

Depriving legitimate right of a teacher to hold and enjoy a post of a

Head of the School would not only demoralise him but also

discourage many competent and eligible teachers. Such practices are

depreciable. The case in hand is an example of its kind keeping the

two teachers fighting in the Court of law for years together. No one

has a thought in his mind wh.at the message they are passing to the

parents, pupils and society. We are of the opinion that the School is

not a battlefield. However, unfortunately, the Managements are seen

using the Schools as battlefields of discrimination and instigation. The

facts and circumstances of the the case reveals that the teachers have

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been made puppets in the hands of the Management. We have every

reason to form the above opinion. Shri Sase has filed three writ

petitions in this Court, and one litigation is pending before the Deputy

Director of Education Pune. He forced Shri Kurhe to contest the said

petitions and engaged him in litigation till he retired on

superannuation and successfully deprived him of holding and

enjoying the post of Head Master though he was legitimately qualified

and entitled. One may assess how much time and money he might

have spent in the Court of Law and on litigation which time was more

valuable for the students. It seems not possible for a teacher to

litigate to such an extent without the active support from the

Management or a rival group of the Management. We have come

across many cases of similar nature. Hence, we have put the above

remarks with the hope that the teachers should not waste the valuable

time to be utilized for students in future.

27. For the reasons recorded above, we are of the opinion that this

is a fit case to saddle exemplary costs on the rival groups of the

Management particularly, the President and the Secretary. We make it

clear that we are not against bonafide litigation if the right of any

person is violated.

28. For the above reasons, we pass the following Order :

ORDER

1) The Writ Petition No.1953/2019 is allowed, and the Writ

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Petition No. 674/2019 stands dismissed.

2) The Order refusing the approval to the appointment of

petitioner Shri Pandurang Rangnath Kurhe dated 21.01.2019

by respondent no.2 is quashed and set aside.

3) Respondent no.2/Education Officer (Secondary), Zilla Parishad,

Ahmednagar, is directed to grant approval to the appointment

of Shri Pandurang Rangnath Kurhe, as Head Master from July

2018 and release his entire salary as Head Master on

submitting bills by the Head Master of the School.

4) The Head Master or any incharge Head Master of Gurudas

Bhaskargiri Maharaj Madhyamik Vidyalaya Jalke, Tq. Newasa,

District Ahmednagar is directed to submit the entire salary

bills, as Assistant teacher, if any, due and as Head Master from

July 2018 and also submit the necessary papers of pension and

other retiral benefits of Shri Pandurang Rangnath Kurhe if not

yet submitted to the Education Officer within one month from

the receipt of this Order. On receipt of such bills and pension

papers, respondent no.2/Education Officer (Secondary)

Ahmednagar shall clear it within a fortnight from its receipt.

5) Shri Sase is imposed with costs and shall pay a cost of Rs.

25,000/- (twenty-five thousand) within a month from the date

of this Order to Petitioner Shri Pandurang Rangnath Kurhe.

6) The respondent nos.3 and 4, i.e. the President and Secretary

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(who were holding the said posts at the beginning of these

litigations) shall deposit cost of Rs. 50,000/- (fifty thousand)

each with the Registry of this Court within a month from the

date of this Order. The Registrar (Judicial) to place a note for

approval from this Court for Orders donating the said amount

to the orphanage or any other suitable social organization

working for children in the jurisdiction of this Court.

7) In the above terms, the Rule is made absolute in W.P. No.

1953/2019 and Rule is discharged in W.P. No 674/2019.

  (S.G. MEHARE. J.)                                 (A.S. GADKARI, J.)




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