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2000 DIGILAW 569 (BOM)

B. D. Bhagat v. Presiding Officer and others

2000-08-04

D.D.SINHA

body2000
JUDGMENT - D.D. SINHA, J.:---Heard Ms. Tahiliani, (sic Tilwani) learned Counsel for the petitioner, Shri Deshpande, learned Counsel for respondent No. 3 and Shri Deopujari, learned AGP for respondent No. 4. 2.The writ petition is directed against the order dated 11-8-1988 passed by the Presiding Officer, School Tribunal, Amravati and Aurangabad Division, Aurangabad in Appeal No. 108 of 1987, whereby the appeal preferred by respondent No. 3 was allowed. 3.The petitioner has challenged the judgment and order on the following grounds : On 1-6-1987, there were two vacancies occurred in the cadre of Head Master in two different schools run by the management and the petitioner being the senior-most Assistant Teacher from the Scheduled Caste category, was entitled to be promoted for the post of Head Master in view of Clauses (v) and (xii) of the Government Resolution dated 17-9-1980. It is contended on behalf of the petitioner that Clauses (v) and (xii) of the above referred Government Resolution reads thus : "(v) The Managements should find out for themselves on the basis of the model roster and with reference to the total number of vacancies filled in by promotion on or after 3-6-1977 in the cadre of Head Master/Assistant Head Masters in schools run by them as also the total number of vacancies in the cadre of Head Master/Assistant Head Masters occurring/occurred on or after the date of issue of these orders falling under the categories "reserved" or "open". They should ensure that every appointment on or after the said date is made according to reservation in 50 point roster, appended to this Resolution." 4.It is contended that in the instant case, there were two vacancies occurred in the year 1987 and were filled in by the management without following the criteria given under Clause (v) of the above referred Government Resolution. It is contended that in the instant case, though the vacancy for the post of Head Master for the first time occurred in the year 1975, however, in view of instructions issued by the Government from time to time in this regard, the initial recruitment year contemplated under Clause (xii) would be the year of first appointment of the Head Master/Assistant Head Masters to be effected after 3-6-1977, is required to be treated as initial year of recruitment. It is further contended that in view of Clause (v) of the above referred Government Resolution, the management is required to be find out on the basis of model roster and with reference to the total number of vacancies filled in by promotion on or after 3-6-1977 in the cadre of Head Masters/Assistant Head Master in schools run by the management and also the total number of vacancies in the cadre of Head Master/Assistant Head Master occurring/occurred on or after 3-6-1977, falling under the categories "reserved" or "open". Such appointment on or after the said date is required to be made according to reservation in 50 point roster as per Government Resolution dated 17-9-1980. The learned Counsel, therefore, contended that in the present case, there were two vacancies occurred in the year 1987 for the post of Head Master in two different schools run by the management and the petitioner being the senior-most employee in the cadre of the Scheduled Caste category, ought to have been promoted to the post of the Head Master in view of 50 point roster which was made applicable from 17-9-1980, instead of promoting respondent No. 3 and, therefore, the Presiding Officer, School Tribunal, failed to consider these vital aspects. Consequently, the order is not sustainable in law. 5.Heard Shri Deshpande, learned Counsel for respondent No. 3. It is contended that the vacancy in the post of Head Master, in one of the schools run by the management, occurred in the year 1975. As per the rules of promotion then existed and were applicable, respondent No. 3 being the senior-most teacher, was eligible and entitled to be considered for the post of Head Master. However, because of the inaction on the part of the management, the post could not be filled in till 1987. It is further contended that the Government Resolution has come into existance on 17-9-1980, whereby for the first time 50 point roster was made applicable in this regard and, therefore, procedure contemplated by the Government Resolution dated 17-9-1980 as well as 50 point roster cannot be applied in the case of respondent No. 3, since the same was not in existence when the vacancy occurred to the post of Head Master in the year 1975. 6.It is contended by Shri Deshpande, that the procedure in respect of promotion of respondent No. 3 to the post of Head Master is governed by the rules existed and applicable in respect of such promotion in the year 1975 and the relevant rule which was then in existence and applicable in this regard was Rule 61.2 of the Secondary School Code. It is further contended that respondent No. 3 was the only eligible candidate for promotion to the post of Head Master on 1-7-1975, being the senior-most teacher and in view of old rules prevailing in Vidarbha Region, which was a part of erstwhile Madhya Pradesh. In order to substantiate the contentions, the reliance is placed by the learned Counsel on the judgments of the Apex Court in the case of (Y.V. Rangaiah v. J. Sreenivasa Rao)1, reported in A.I.R. 1983 S.C. 852. 7.Considered the contentions raised by the learned Counsel for the respective parties and perused the impugned order, Government Resolution dated 17-9-1980 as well as the above referred judgments of the Apex Court. The question involved is whether the procedure contemplated in Government Resolution dated 17-9-1980, particularly carved out in Clauses (iii), (v) and (xii), is applicable in the case of promotion of respondent No. 3 to the post of Head Master on 1-6-1987 or it is governed by the then rules prevalent and applicable in this regard on 1-7-1975. 8.Before I consider above referred legal aspect, it would be appropriate to consider some undisputed facts, those are : (i) The vacancy in the post of Head Master in one of the schools run by the management occurred on 1-7-1975. (ii) Respondent No. 3, at the relevant time was, the senior-most teacher and as per Rule 61.2 of the Secondary School Code, respondent No. 3 was eligible and entitled to be considered for the said post. (iii) The Government Resolution came into existence on 17-9-1980 whereby 50 point roster was, for the first time, made applicable. (iv) The petitioner, undoubtedly was much junior to respondent No. 3 and his claim, at the relevant time, could not have been considered to the post of Head Master. 9.On the backdrop of the above referred facts and in view of the rules existed then and were applicable for the promotion to the post of Head Master on 1-7-1975. Respondent No. 3, being the senior-most teacher, undoubtedly was the eligible candidate. 9.On the backdrop of the above referred facts and in view of the rules existed then and were applicable for the promotion to the post of Head Master on 1-7-1975. Respondent No. 3, being the senior-most teacher, undoubtedly was the eligible candidate. However, the promotion to the post of Head Master was effected on 1-6-1987 i.e. admittedly after the Government Resolution dated 17-9-1980 came into existence. Let us consider whether the management is required to effect promotion as per the old procedure and rules existed then in the year 1975 or as per new procedure in respect of the reservation policy, in view of 50 point roster as per Government Resolution dated 17-9-1980. Rule 61.2(a) of the Secondary School Code contemplates that the Management of a school shall fill up the post of the Head of the school by appointing the senior-most teacher from among those employed in the school, if it is the only school run by the management, or schools conducted by it, who fulfils the conditions laid down in Rule 61.1(a) and who has a satisfactory record of service. Rule 61.1(a) contemplates that the person to be appointed as the Head of a school shall be a graduate possessing prescribed training qualifications with at least five years of total teaching experience, after graduation, in a recognised secondary school or schools, out of which, experience of at least two years should be post-training experience. 10.In the instant case, it is not in dispute that respondent No. 3, in the year 1975, was the senior-most teacher with requisite qualifications prescribed in Rule 61.1(a) of the Secondary School Code with satisfactory record of service. The vacancy in the post of Head Master occurred on 1-7-1975 and, therefore, in view of above referred rules then existed and applicable, respondent No. 3 was eligible and entitled to be considered for the post of Head Master of the School. Merely because of inaction on the part of management to fill up the post till 1-6-1987, in my opinion, does not take away the rights of respondent No. 3 to be considered for the post of Head Master, which flows from the Secondary School Code, merely because the Government Resolution came into existence on 17-9-1980. Merely because of inaction on the part of management to fill up the post till 1-6-1987, in my opinion, does not take away the rights of respondent No. 3 to be considered for the post of Head Master, which flows from the Secondary School Code, merely because the Government Resolution came into existence on 17-9-1980. The rights accrued to respondent No. 3, are on the basis of the Secondary School Code, to be considered for the post of Head Master in the year 1975, cannot said to be destroyed in view of Government Resolution dated 17-9-1980 merely because the promotion is effected by the management on 1-6-1987. 11.It will be appropriate at this stage to consider the ratio laid down by the Apex Court in the case of Y.V. Rangaiah v. J. Sreenivasa Rao (supra). In the above referred case, the Apex Court was considering the similar controversy and in para 9, the Apex Court has held thus : "The vacancies which occurred prior to amended rules would be governed by old rules and not by new rules." It is further observed in the same para that : "We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules." 12.In view of the above referred ratio laid down by the Apex Court, it is inevitable for me to hold that the case of respondent No. 3, for promotion to the post of Head Master pursuant to the vacancy occurred in the said post on 1-7-1975, will be governed by the provisions of Secondary School Code and not by the Government Resolution dated 17-9-1980. 13.Similarly, another vacancy occurred on 31-5-1987 in the post of Head Master in another school run by the management, admittedly, at the relevant time, the Government Resolution dated 17-9-1980 and 50 point roster was in existence and, therefore, the management was required to fill in the post of Head Master as per the criteria laid down in the above referred Government Resolution, particularly in view of Clause (xii) of the said Government Resolution, it reads thus : "(xii) In the case of small cadres and isolated posts, if only one vacancy occurs, in the initial recruitment year and the corresponding roster point happens to be 'reserved' for any of the backward classes, it should be treated as "un-reserved" and filled in accordingly and the reservation carried forward to subsequent recruitment year (s), but in the subsequent recruitment year (s) even if there be one vacancy, it should be reserved against the carried forward reservation from the initial recruitment year and should be filled in by the candidate belonging to backward class for whom the carried forward vacancy was reserved. Similar procedure should be followed in respect of subsequent vacancy and reservation for various sections of backward classes should be made strictly in accordance with the roster point by rotation. It is only when two or more vacancies occur at a time and if there are any carried forward vacancies, the principle of not more than 50% reservation shall apply and the balance of the carried forward and/or current reservation will be further carried forward to subsequent three years." 14.In view of the above referred facts and circumstances of the case, the vacancy occurred in the year 1987 was the first vacancy and was only one and in view of Clause (xii) of the Government Resolution, the same was required to be treated as "un-reserved" and was required to be filled in accordingly. The management, therefore, promoted N.T. Kharghe as Head Master on 1-6-1987 by treating the said post as "un-reserved" since the vacancy occurred was only one. 15.In the context of the above referred facts, the contention raised by the learned Counsel for the petitioner that there were two vacancies occurred in the year 1987, cannot be accepted and the contention in this regard, therefore, must fail. 15.In the context of the above referred facts, the contention raised by the learned Counsel for the petitioner that there were two vacancies occurred in the year 1987, cannot be accepted and the contention in this regard, therefore, must fail. It will not be appropriate to hold, merely on the basis of the order of promotion issued by the management on 1-6-1987 in respect of respondent No. 3, that the vacancy occurred not in the year 1975 but in the year 1987. Since the vacancy undisputedly occurred in the year 1975 in the post of Head Master, it will have to be treated as the vacancy for the relevant year and passing of the order of promotion on 1-6-1987 does not change the year of the vacancy, which admittedly occurred in the year 1975 i.e. much prior to 17-9-1980. 16.For the reasons stated hereinabove, the contentions raised by the learned Counsel for the petitioner must fail and the impugned order, in my opinion, is just and proper, does not require any interference at the hands of this Court. 17.In the result, therefore, the writ petition is dismissed with no order as to costs. Writ petition dismissed. -----