Bombay High Court
Sahakar Vidya Prasarak Mandal ... vs Dinesh Karbhari Kute And Anr on 11 April, 2023
Bench: N. J. Jamadar
2023:BHC-AS:10830
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Sayali Upasani
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1221 OF 2022
1. Sahakar Vidya Prasarak Mandal
C/o. Sahakar Vidya Prasarak
Mandal's Secondary School,
Old Mumbai-Pune Road,
Kalwa, Dist. Thane,
Through its President/Secretary.
2. Sahakar Vidya Prasarak
Mandal's Secondary School,
Old Mumbai-Pune Road,
Kalwa, Dist. Thane,
Through its Head Master.
3. Tanaji S. Birambole,
Age- 57 Years, Occ. Head Master,
Sahakar Vidya Prasarak Mandal's
Secondary School,
Old Mumbai-Pune Road,
Kalwa, Dist. Thane.
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4. Ramdas H. Sonar,
Age-Adult, Occ.-Retired as Supervisor,
Sahakar Vidya Prasarak Mandal's
Secondary School,
Old Mumbai-Pune Road,
Kalwa, Dist. Thane.
5. Smt. Rema H. Gavit,
Age-Adult, Occ-Assistant Teacher,
Sahakar Vidya Prasarak Mandal's
Secondary School,
Old Mumbai-Pune Road,
Kalwa, Dist. Thane. .... PETITIONERS.
VERSUS
1. Dinesh Karbhari Kute,
Age-55 Years, Occ. Service
R/o- 12, S.P. Society,
Station Road, Near Sahakar Bazar,
Kalwa, Thane- 400 605.
2. The Education Officer,
[Secondary], Zilla Parishad, Thane. ....RESPONDENTS
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Mr. N.V. Bandiwadekar, Senior Counsel i/b Mrs. A.N.
Bandiwadekar, for Petitioners.
Mrs. Anupama B. Shah, for Respondent No. 1.
Mr. S.D. Rayrikar, AGP for State- Respondent No. 2.
CORAM:- N. J. JAMADAR, J.
RESERVED ON:- 28th MARCH, 2023
PRONOUNCED ON:- 11th APRIL, 2023
JUDGMENT:-
1) Rule. Rule made returnable forthwith and with the
consent of the learned Counsel for the parties heard finally.
2) The challenge in this Petition is to a judgment and order
dated 21st December, 2021, passed by the learned Presiding
Officer Additional School Tribunal, Navi Mumbai in Appeal No.
12 of 2020, whereby the Appeal preferred by the respondent
No. 1 came to be allowed and the petitioner No. 1 was directed
to appoint the respondent No. 1 as a Supervisor in the
petitioner No. 2- School with effect from 1 st September, 2019, in
the place of petitioner No. 4.
3) Shorn of unnecessary details, the background facts
leading to this Petition can be stated as under:-
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(a) Sahakar Vidya Prasarak Mandal, the petitioner No. 1 is a
Trust registered under Maharashtra Public Trusts Act, 1950.
The petitioner No. 1 runs Sahakar Vidya Prasarak Mandal's
Secondary School at Kalwa, Dist. Thane, the petitioner No. 2, a
Government recognized Secondary School.
(b) The respondent No. 1 was appointed as an Assistant
Teacher in the petitioner No. 2- School on 26 th August, 1987. The
respondent No. 1 then had S.C.C., D.Ed. qualification. The
petitioner No. 3 was appointed as an Assistant Teacher on 11 th
June, 1990. The petitioner No. 3 was then having qualification
of B.A, B.Ed. The petitioner No. 3, thus, entered Category "C"
under the guidelines for fixation of seniority of teachers in the
Secondary Schools (Schedule 'F') appended to the Maharashtra
Employees of Private Schools (Conditions of Services) Rules,
1981 ("the Rules, 1981"). The petitioner No. 4, who was having
the qualification of B.SC. B.Ed and was appointed as Trained
Graduate Teacher on 19th June, 1991. The petitioner No. 4 was
also placed in Category "C" on the date of appointment. The
petitioner No. 5, who was B.A. B.Ed joined the petitioner No. 2-
School as an Assistant Teacher on 14th June, 1993, and was also
placed in Category "C".
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(c) In contrast, the respondent No. 1 acquired the qualification
of B.A. in 1990 and B.Ed in April, 1996, and thereby became a
Trained Graduate Teacher and thus entered Category "C" in the
year 1996. Upto that point the respondent No. 1 was, according
to the petitioners, in Category "D" comprising of Trained
Undergraduate Teachers.
4) The above being the position, according to petitioners, the
petitioner Nos. 3 to 5 were shown senior to the respondent No. 1
in the seniority list maintained by the petitioner No. 1.
5) On 1st June, 2015, Mr. Pravin Patil, who was appointed as
an Assistant Teacher on 12th June, 1989, with qualification of
B.A., B.Ed on the date of appointment itself, came to be
promoted as Supervisor. Respondent No. 1 filed an Appeal being
Appeal No. 56 of 2015, assailing the order of promotion of Mr.
Patil, before the learned Presiding Officer, Additional School
Tribunal claiming seniority over Mr. Patil on the ground he was
appointed as an Assistant Teacher much prior to Mr. Patil i.e. on
15th June, 1987.
6) By a judgment and order dated 24 th June, 2016, the
learned Presiding Officer, Additional School Tribunal dismissed
the Appeal recording a categorical finding that Mr. Patil was
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senior to respondent No. 1 as he entered Category "C" on the
date of appointment itself, whereas the respondent No. 1 was
rightly placed in Category "D" of Schedule 'F'. The said order
attained finality.
7) On 1st September, 2019, the petitioner No. 3, who was then
working as a Supervisor came to be promoted to the post of
Head Master. Whereas the petitioner No. 4, who was next in the
line of seniority, was promoted to the post of Supervisor.
Education Officer - respondent No. 2 gave approval to the
promotions.
8) Respondent No. 1 preferred an Appeal being Appeal No. 12
of 2020, before the School Tribunal asserting, inter alia, that he
had acquired qualification of B.A. prior in point of time to the
appointment of petitioner Nos. 3 and 4 and, therefore, was
senior to petitioner Nos. 3 and 4. The Appeal was resisted by the
petitioners as well as respondent No. 2- Education Officer.
9) By the impugned order dated 21stDecember,2021, the
learned Presiding Officer School Tribunal was persuaded to
partly allow the Appeal. The learned Presiding Officer School
Tribunal quashed and set aside the order dated 1 stSeptember,
2019, promoting petitioner No.4 to the post of Supervisor. The
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School Tribunal further directed that the respondent No. 1 be
appointed as a Supervisor in place of petitioner No. 4 with effect
from 1st September, 2019.
10) Being aggrieved the Management and petitioner Nos. 3
to 5, the affected parties, have invoked the writ jurisdiction of
this Court.
11) I have heard Mr. Bandiwadekar, the learned Senior
Counsel for the petitioners, Mrs. Anupama B. Shah, the learned
Counsel for the respondent No. 1 and Mr. Rayrikar, the learned
AGP for respondent No. 2.
12) The learned Counsel took the Court through the pleadings
before the School Tribunal, impugned order, the order passed in
Appeal No. 56 of 2015 and the material on record.
13) Mr. Bandiwadekar submitted that the impugned order is
ex facie infirm. The learned Presiding Officer School Tribunal,
on the one hand, recorded a clear and categorical finding that
the petitioner No. 3 was senior to respondent No. 1 and, yet, in
the operative portion even the promotion order in respect of
petitioner No. 3 was quashed and set aside. The final order
thus runs contrary to the findings recorded in the impugned
order.
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14) Secondly, the learned Presiding Officer School Tribunal
committed a manifest error in recording a finding that a
judgment and order in Appeal No. 56 of 2015, wherein a
categorical finding was recorded that the respondent No. 1
became a Trained Graduate Teacher eligible to be placed in
Category "C" in the year 1996 only, does not bind the Tribunal.
Since the respondent No. 1 had not challenged the judgment
and order in Appeal No. 56 of 2015, it was not open to the
respondent No. 1 to again assail the order of promotion of
petitioner Nos. 3 and 4 on the very same ground. In any event,
the said finding, if not as res judicata, operated as a bar on the
principles analogous to res judicata.
15) Thirdly, the learned Presiding Officer, School Tribunal,
according to Mr. Bandiwadekar, constructed a totally new case
that D.Ed (2 years course) was equivalent to Dip.T.(old two years
course) in the third entry of Category "C", which was never
pleaded by the respondent No. 1.
16) Mr. Bandiwadekar would urge that the aforesaid view of
the learned Presiding Officer School Tribunal is otherwise also
erroneous. Since the respondent No.1 acquired B.Ed
qualification in the year 1996, he could not have been granted
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seniority over that of petitioner No. 4, who was appointed as an
Assistant Teacher on 19th June, 1991. The impugned judgment
and order, therefore, deserves to be interfered with, submitted
Mr. Bandiwadekar.
17) Per contra, Mrs. Shah, stoutly submitted that none of the
grounds sought to be urged on behalf of the petitioners are
worthy of countenance. Inviting the attention of the Court to
provisions contained in Note 2 in Schedule 'F' which provides
that D.Ed ( 2 years course) shall be considered as qualification
for the purpose of seniority, Mrs. Shah urged that once the
respondent No. 1 acquired B.A. qualification in the year 1990,
he entered third entry in Category "C". Since petitioner No. 4
was appointed in the year 1991, the learned Presiding Officer
School Tribunal committed no error in holding that the
respondent No. 1 was senior to petitioner No. 4.
18) The ground of the judgment in Appeal No. 56 of 2015
operating as a bar to the prosecution of the instant Appeal was
stated to be equally untenable. Ms. Shah would further urge
that apart from respondent No. 1, Smt. Ghag had assailed the
very same order of promotion of Mr. Patil in Appeal No. 57 of
2015. Whilst the Appeal preferred by respondent No. 1 i.e.
Appeal No. 56 of 2015 was dismissed, that of Ms. Ghag was
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allowed and the said order came to be confirmed upto the
Supreme Court. Therefore, since the order of Mr. Patil was set
aside in another Appeal by a co-employee, the respondent No. 1
had not challenged the judgment and order in Appeal No. 56 of
2015. Thus it can not be urged that the said judgment and order
attained finality.
19) Ms. Shah further urged that the case of the respondent
No. 1 was covered by the third entry of Category "C" as the
respondent No. 1 had acquired qualification of D.Ed (two years
course) at the date of the appointment. Therefore, no
interference is warranted in the impugned judgment and order.
20) I have given anxious consideration to the rival
submissions. Evidently, the controversy between the parties
revolves around the date at which the respondent No.1 got
entered into the third entry in Category "C" of Schedule 'F'.
21) To appreciate the controversy in a correct perspective, it
may be advantageous to note the relevant dates of initial
appointment, acquisition of qualification and entry into the
respective categories and the position of the contesting parties
in the seniority list. The learned Presiding Officer School
Tribunal has culled out the information in a tabular form below
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paragraph No.13.4. The said table is extracted below with
necessary additions. The parties in the table are referred to in
the capacity in which they were arrayed before the School
Tribunal. It reads as under:-
Sr. Parties Degree The Date of The Date of Sr.
No. Appointment Entry in C No
category in
the
List
Appellant D.Ed.(1986) (As Assistant
(Responden B.Ed. (1996) Teacher)
t No.1)
No. 3 B.Ed.(March (As Assistant
(Petitioner 1988) Teacher) 1st
No.3) September
2019 (As Head
Master)
3. Respondent B.Sc. (April 19/06/1991 19/06/1991 5
No. 4 1987) (As Assistant
(Petitioner B.Ed (May Teacher) 1st
No.4) 1991) September,
2019 (As
Supervisor)
No. 5 (Oct.1990) 1993 (As 1993
(Petitioner B.Ed. (April Assistant
No.5) 1992) Teacher)
Impugned Promotion order dt.01/09/2019 promoting
Respondent No. 3 as HM and Respondent No. 4 as a Supervisor
(Italicized portion added by this Court)
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22) In the light of the aforesaid factual position, it may be
apposite to consider the governing provisions of the Rules, 1981.
Under Rule 2 (1) (j), "trained graduate" means a person
possessing qualifications mentioned in Sub-Section (i) to (vi) of
Clause (1) of Item II in the Schedule "B". Rule 6 (1) provides that
the minimum qualifications for the posts of teachers and the
non-teaching staff in the primary schools, secondary schools,
higher secondary schools, junior colleges and junior colleges of
education shall be as specified in Schedule "B". Item II of
Schedule "B" provides qualification for trained Teachers in
Secondary Schools and Junior Colleges of Education. Clause (i)
provides qualification for graduate teachers and Clause (ii) for
under graduate teachers.
23) In the case at hand, it is indisputable that the petitioner
No. 2 is a Secondary School. There is not much controversy over
the fact that the respondent No. 1 was holding S.C.C., D.Ed
qualification at the date of his initial appointment i.e. 15 th June,
1987. The learned Presiding Officer School Tribunal has
recorded a finding that the respondent No. 1 has acquired B.A
degree on 18th August, 1990. The said finding is not seriously
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contested. In the backdrop of these facts, the question of
seniority warrants determination.
24) At this juncture, of necessity, recourse to the provisions
contained in the Rules in the matter of determination of inter se
seniority becomes necessary. Rule 12 mandates that every
management shall prepare and maintain seniority list of the
teaching staff including Head Master and Assistant Head Master
and non teaching staff in the School in accordance with the
guidelines laid down in Schedule "F".
25) Guideline '2' contained in Schedule "F" with which we are
primarily concerned in the case at hand, reads as under:-
"2. Guidelines for fixation of seniority of
teachers in the secondary schools Junior Colleges of
Education and Junior College classes attached to
secondary schools and Senior Colleges. -
For the purpose of fixation of seniority of
teachers in the secondary schools. Junior Colleges of
Education and Junior College classes attached to
Secondary Schools the teachers should be
categorised as follows :
Category A:-.......
Category B:-.......
Category C:- Holders of -
M. A. /M. Sc./M. Com., B.T./B. Ed., or its equivalent;
or
B. A./B. Sc./B. Com., B. T./B. Ed., or its equivalent;
or
B. A./B. Sc./B. Com. Dip. T. (old two years course); or
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[B. A./B. Sc./B. Com., S. T. C. /Dip. Ed./Dip. T. (one
year course) with 10 years post-S. T. C. etc. service.
[B. A. or its equivalent plus Senior Hindi Shikshak
Sanad with five years service; or Junior Hindi
Shikshak with ten years service 3[after obtaining both
academic and training qualifications.]]
Category D :......
Category E : ......
Category F : Untrained Graduates or holders of
equivalent qualification.
Category G :......
Category H : ......
Note 1 : For the purpose of categories C, D, and E
teachers with S. T. C., T. D., Jr. P. T. C. Dip, T., Dip.
Ed. (post S.S.C. one year course) qualifications
appointed on or after 1st October 1970 shall be
considered as untrained and their seniority shall be
fixed in the 'F' or 'G' category of untrained teachers as
the case may be.
Note 2 : The following training qualifications which can
be secured two years after S.S.C. Examination shall be
considered as training qualification for the purpose of
seniority even after 1st October 1970 -
(1) D. Ed. (2 years).
(2) T. D. (Bombay University).
(3) Dip. Ed. (Nagpur University).
Note 3 : In the case of teachers whose date of
continuous appointment in one and the same category
is common, the teacher who is senior by age will be
treated as senior.
Note 4 : The categories mentioned above represent the
ladder of seniority and have been mentioned in
descending order.........."
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26) The controversy between the parties revolves around the
question as to whether the respondent No. 1's case, for the
purpose of seniority, would fall within the third entry or the
fourth entry after he acquired the qualification of B.A in the
month of August, 1990. In the opinion of the learned Presiding
Officer School Tribunal since the respondent No. 1 had S.C.C.,
D.Ed (two years course), the respondent No. 1 entered the third
entry after he acquired the qualification of B.A. in August, 1990,
and, therefore, the petitioner No. 4, who was appointed as an
Assistant Teacher in the year 1991, was junior to respondent No.
1.
27) Mr. Bandiwadekar strenuously submitted the aforesaid
approach of the learned Presiding Officer School Tribunal is
incorrect. It was nobodies case that Dip.T (old two years course)
was equivalent to D.Ed (two years course). Mr. Bandiwadekar
further submitted that the learned Presiding Officer School
Tribunal also lost sight of the fact that in first two entries of
category "C" the expression, "or its equivalent" has been used
and which is conspicuous by its absence in the third entry.
Thus the learned School Tribunal committed a manifest error in
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equating D.Ed. (two years course) with Dip.T (old two years
course) .
28) The guidelines contained in Schedule "F" are required to
be read as whole. Construing the entries in a particular
category in isolation may lead to anomalous consequences. The
Notes appended bill the categories further elucidate the intent
of the entries in the guidelines. The contrast between Note 1 and
Note 2 is unmistakable. Note 1 declares that for the purpose of
category C, D and E teachers with S.T.C., T.D., Jr. P.T.C Dip., T.,
Dip. Ed. (post S.S.C. one year course) qualifications appointed
on or after 1st October, 1970 shall be considered as untrained
and their seniority shall be fixed in the "F" or "G" category of
untrained teachers, as the case may be. In contrast under Note
2, the training qualification of, (1)- D.Ed. (two years course), (2)-
T.D. (Bombay University) and (3)-Dip. Ed. (Nagpur University),
which can be secured two years after S.C.C. examination, shall
be considered as training qualification for the purpose of
seniority even after 1st October, 1970.
29) A conjoint reading of Notes 1 and 2 would indicate that
the training qualifications described under Note 2 constitute a
class by themselves and are required be reckoned for the
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purpose of seniority even if they are acquired post 1 st October,
1970. Secondly, such interpretation is required to be given
which gives play to operate both Note 1 and Note 2.
30) This position becomes more clear if the training
qualifications subsumed in the third entry are considered. It
contains the qualification B.A / B.Sc. / B.Com. Dip.T (old two
years course) whereas the forth entry contains post graduate
training qualifications of S.T.C./Dip.Ed./Dip.T. (One year
course). Again the distinction between two years training
qualification course and one year course is maintained and
treated differently by putting those qualifications in the
succeeding entries. Note 4, thus, ordains that the categories
mentioned under guideline 2 represent the ladder of seniority
and have been mentioned in descending order.
31) If the entries within Category "C" are considered in
juxtaposition with Note 1 and 2, the view taken by the learned
Presiding Officer School Tribunal that after acquisition of B.A
qualification, the respondent No. 2, with two years D.Ed.
Course, catapulted himself to the third entry in Category "C"
from Category "F" (of untrained graduate teachers) becomes
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justifiable. Any other view would render D.Ed. (two years course)
not covered by any of the entries in Category "C".
32) The absence of the expression, "or its equivalent" in third
entry in Category "C", pressed into service by Mr.
Bandiwadekar, in my view, is not of determinative significance.
Note 2 removes the ambiguity. It expressly provides that the
three specified training qualifications including D.Ed. (two years
course) shall be considered as training qualifications for the
purpose of seniority even after 1st October, 1970. Omission of
these three qualifications in Note 1 which subsumes in its fold
all the training qualifications (post S.C.C. 1 year course) also
indicates that they were to be treated at a higher pedestal. I am
therefore persuaded to hold that the learned Presiding Officer
School Tribunal was justified in reckoning the case of
respondent No. 1 as falling within the ambit of the third entry.
33) The submission of Mr. Bandiwadekar that operative order
runs contrary to the findings recorded by learned School
Tribunal, does not carry the matter any further as it is, at best,
a case of unrefined articulation. While setting aside the order of
promotion dated 1st September, 2019, whereby the petitioner No.
3 was promoted as the Head Master and petitioner No. 4 as the
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Supervisor, the learned Presiding Officer took care to clarify that
the said order is set aside only to the extent of appointment of
petitioner No. 4 as the Supervisor. The operative order could
have been worded in a more refined manner. However, that does
not detract materially from the merits of the findings and
ultimate order passed by the learned Presiding Officer School
Tribunal.
34) This takes me to the challenge to the impugned order
based on the order in Appeal No. 56 of 2015 on the count that it
operated as a bar. The learned Presiding Officer School Tribunal
was of the view that the Tribunal was not bound by its own
findings though they may have persuasive value.
35) Mr. Bandiwadekar would submit that the aforesaid
approach is in teeth of the provisions contained in Section 12 of
the Maharashtra Employees of Private Schools (Conditions of
Services) Regulation Act, 1977, under which finality is given to
the decision of the Tribunal. Section 12 provides that
notwithstanding anything contained in any law or contract for
the time being in force, the decision of the Tribunal on an
appeal entertained and disposed of by it shall be final and
binding on the employee and the Management and no suit,
appeal or other legal proceeding shall lie in any Court, or before
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any other Tribunal or authority, in respect of the matters
decided by the Tribunal. At the first blush the submission of
Mr. Bandiwadekar, in the context of the provisions contained in
Section 12, which incorporates a non-obstante clause appears
to be attractive. However, on close scrutiny the challenge does
not pass judicial muster.
36) First and foremost, in Appeal No. 56 of 2015 the contest
was between the respondent No. 1 and Mr. Patil. In a dispute of
inter se seniority, the questions that arise for consideration are
essentially qua relative position of the contesting parties.
37) I have perused the judgment in Appeal No. 56 of 2015. The
learned Presiding Officer School Tribunal in that case, had
found that on the date of appointment i.e on 12 th June, 1989
itself, Mr. Patil was a trained graduate teacher, with
qualification of B.A., B.Ed. Indisputably on the date Mr. Patil
was appointed, respondent No. 1 had not yet acquired B.A.
qualification. The contest between respondent No. 1 and Mr.
Patil thus stood resolved with the very finding that on 12 th June,
1989 itself, Mr. Patil entered Category "C". Respondent No. 1
was in Category "F" at that point of time.
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38) The learned Presiding Officer School Tribunal, however,
went on to record a finding that the Appellant
therein-respondent No. 1 herein entered Category "C" after he
acquired requisite qualification in the year 1996. Such an
observation without the School tribunal having been called
upon to delve into the question as to when the respondent No. 1
entered Category "C", can not be construed as a bar to agitate
the said issue in a different proceeding where the seniority of
other co-employees is questioned.
39) I am thus persuaded to hold that finding in the order in
Appeal No. 56 of 2015 did not operate as a bar to consider and
determine the issue of seniority raised by the respondent No. 1.
40) The upshot of aforesaid consideration is that the
impugned judgment does not warrant interference in exercise of
extraordinary writ jurisdiction. The Petition, therefore, deserves
to be dismissed.
Hence, the following order.
-:ORDER:-
(i) The petition stands dismissed with costs.
(ii) Rule discharged.
[N. J. JAMADAR, J.]
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41) At this stage, Mr. Bandiwadekar, learned senior advocate
for the petitioners seeks stay to the execution and operation of
this order.
42) Since this Court has interpreted the import of the
provisions of Schedule- "F" of the Rules, 1981, the execution and
operation of this order is stayed for a period of four weeks.
(N. J. JAMADAR, J.)
