Research › Search › Judgment

Bombay High Court · body

2013 DIGILAW 2026 (BOM)

Smita Dilip Amonkar v. State of Goa

2013-09-30

F.M.REIS, NARESH H.PATIL

body2013
JUDGMENT Naresh H. Patil, J. 1. Heard. 2. The Petitioner challenges the legality and propriety of the selection and promotion of the Respondent no.4 - Mrs. Sunia Bhandare, to the post of trained Graduate Teacher and prays for other consequential reliefs. 3. It is the contention of the Petitioner that in the month of October,1976, she appeared for the Secondary School Certificate examination of the Goa, Daman and Diu Board of Secondary and Higher Secondary. She was declared to have successfully passed the said examination on 01/03/1977. The Petitioner was awarded a Diploma in Education by the Directorate of Education, Government of Goa, Daman and Diu (as it was then) after being declared successful in examination of the Diploma in Education (D. Ed.) held in the month of April, 1979. The Petitioner was appointed by the Respondent no.3 vide Order of Appointment dated 09/11/1979 against the post of Trained Arts Undergraduate Teacher in the Sarvodaya High School run by the Respondent no.3. The Petitioner has rendered services of more than 26 years successfully. The Respondent no.3 is an aided school. 4. It is contended that in August 1996, the Petitioner sought permission of the Respondent no.3 to pursue higher studies i.e. Bachelor of Arts (B.A.) degree course at the Yashwantrao Chavan Mukta Vidhyapith, Kolhapur as an external candidate. The said permission was granted and the Petitioner was awarded B.A. degree in the month of May, 2001. 5. On 01/12/1992, the Respondent no.4 was appointed as untrained Undergraduate Teacher in the school according to the Goa School Education Rules, 1986 (for short, 1986 Rules). The Respondent no.4 ought to have secured admission to a recognized training course, i.e. a degree or diploma course in teaching / education within a period of 5 years from her date of appointment, and at the least completed the same within the period extended by one year at a time upto 7 years from her date of appointment as untrained undergraduate Teacher, failing which her service against the said post was to be terminated. 6. The Petitioner contended that the Respondent no.4 did not acquire the training qualification within 5 years from her appointment nor secured admission to the said course in a recognized institution within a period of 5 years from the date of appointment. Her services ought to have been terminated in accordance with the rule 83 of the 1986 Rules. 6. The Petitioner contended that the Respondent no.4 did not acquire the training qualification within 5 years from her appointment nor secured admission to the said course in a recognized institution within a period of 5 years from the date of appointment. Her services ought to have been terminated in accordance with the rule 83 of the 1986 Rules. The Respondent no.4 was allowed to continue in the said post beyond the period till 2002 by order of extension. 7. The Petitioner contends that sometime in September, 2005, a vacancy arose in the post of Assistant Teacher (Trained Graduate Teacher). The Respondent no.4 was selected for appointment by promotion against the vacancy. Approval order was conveyed by the Respondent no.2 to the Respondent no.3 vide letter dated 14/11/2005 and accordingly she was appointed / promoted by the Respondent no.2 against the said post. 8. The Petitioner addressed an application to the Respondent no. 2 under the Right to Information Act. The Respondent no.2 informed the Petitioner that the Respondent no.4 had been granted extension from 1999 to 2001 on 'humanitarian grounds'. The Petitioner submits that she was continuously agitating her case before the Respondent no.2, several representations were addressed to the concerned Authorities. The Petitioner, therefore, contends that the Respondent Authorities were not entitled to grant extension to the Respondent no.4 on 'humanitarian ground' by arbitrarily granting extension for the period from December, 1997 to December, 1999 and thereafter from 1999 to 2002 and allowed her to continue in service against the post held by her almost 10 years despite not completing any training in education which was an essential requirement under 1986 Rules. Under 1986 Rules clearly required that the Respondent nos. 2 and 3 terminate services of such an employee. 9. This Writ Petition was filed in the year 2007. Consequent to the notice issued to the Respondent no.4, the Respondent no.4 filed affidavit-in-reply. In paragraph no.16 of the reply, the Respondent no.4 contends that after her appointment for first five years due to her health problems the respondent no.4 could not join Training College. In the month of April, 1996, she took admission in Forebels College, at Panaji for B. Ed. Course. Thereafter, the Respondent no.2 informed her that the Degree of the said college is not valid and would not be acceptable by the Government. Therefore, the Respondent no.4 could not continue with the said Course. In the month of April, 1996, she took admission in Forebels College, at Panaji for B. Ed. Course. Thereafter, the Respondent no.2 informed her that the Degree of the said college is not valid and would not be acceptable by the Government. Therefore, the Respondent no.4 could not continue with the said Course. Thereafter, she took admission in Annamalay University for B. Ed. Course in May, 1996. The said University closed its Correspondence External Courses, as a result of which she could not complete the said course. In the year 1998, she took admission in Shivaji University, Kolhapur for B.Ed. Course. The said Course is of two years duration. She was due to answer the Examination in April, 2000, in respect of the said course, during that time, she met with a severe accident. She had to undergo three major operations to her right hand. She could not write and answer the Exam Paper completely. She appeared for the examination in March, 2002 after she get completely recovered. Accordingly, she completed the course in April, 2002. Due to these unavoidable circumstances, the Respondent nos. 2 and 3 according to the deponent granted extension to her for completing the Course. It is contended by the Respondent no.4 that the Petitioner was very well aware of the facts as both the Petitioner and the Respondent no.4 were teaching in the same school. The Petitioner did not react at the relevant time. It is only in the year 2007 the Petitioner woke up and sought to challenge extensions granted by the Respondent nos. 2 and 3 to the Respondent no. 4. 10. In respect of the qualification of the Petitioner, the Respondent no.4 submits that the Petitioner is not eligible for the post of Assistant Teacher (Trained Graduate Teacher) as she is not a graduate. The Bachelor of Arts Degree obtained by the Petitioner is not equivalent to a Graduation, as the Petitioner has not completed even XII standard course. The Petitioner does not possess Certificate of Education passing H.S.S.C. Examination. The Petitioner does not possess five years experience after possessing Bachelor of Arts Degree. The Bachelor of Arts Degree produced by the petitioners does not correspond to a Bachelor's Degree as contemplated in rule 78 of 1986 Rules. 11. It is contended by the Respondent no.4 that the first representation was made by the Petitioner on 25/11/2005. The Petitioner does not possess five years experience after possessing Bachelor of Arts Degree. The Bachelor of Arts Degree produced by the petitioners does not correspond to a Bachelor's Degree as contemplated in rule 78 of 1986 Rules. 11. It is contended by the Respondent no.4 that the first representation was made by the Petitioner on 25/11/2005. Whereas, the extensions were granted to the Respondent no.4 from the year 1997 onwards and she completed her B. Ed. Course in the year 2002. The Petitioner slept over her rights and consequently could not be permitted to turn around and challenge the extensions now. The Respondent no.4 contends that the extension granted in the year 1997 cannot be challenged by the Petitioner in the year 2007. The prayer to terminate her services with effect from 1999 on the ground that she failed to acquire training qualification is hit by delay and laches. The Petitioner has no locus to raise challenge to her appointment, extensions and her promotion in service. 12. The Respondent no.3 filed affidavit in reply through the Chairman, in paragraph no.4 it is contended as under: “4. I say that the Departmental Promotion Committee met and after considering the availability of the candidate having a Degree from a recognized University and a Degree in Education from a recognized University, recommended the Respondent no.4 for the promotion to the post of assistant teacher. At the relevant time the Petitioner was not having the necessary qualifications being a holder of Diploma in Education and not Degree in Education.” 13. The Petitioner filed affidavit-in-rejoinder consequent to the filing of the affidavit-in-reply of the respondent no.3. 14. The learned Counsel for the Petitioner submitted that the Respondent no.4 was not qualified to be appointed and promoted as Assistant Teacher (Trained Graduate Teacher). The approval of such an appointment and promotion by the Director was contrary to the provisions of Act and rules framed thereunder the Goa School Education Act, 1984 and 1986 Rules. The grant of extension on 'humanitarian ground' by the authorities in favour of the Respondent no.4 was contrary to the mandatory rules. Therefore, the Respondent no.4 ought to have been terminated at the relevant time. As the Respondent no.4. was not competent and not entitled for promotion, promotion granted to the Respondent no.4 be quashed and set aside. The grant of extension on 'humanitarian ground' by the authorities in favour of the Respondent no.4 was contrary to the mandatory rules. Therefore, the Respondent no.4 ought to have been terminated at the relevant time. As the Respondent no.4. was not competent and not entitled for promotion, promotion granted to the Respondent no.4 be quashed and set aside. The learned counsel refer to the provisions of Act and provisions of Rule 78, 83 and 87 in support of the submissions. The learned Counsel submits that as Respondent no.4 was wrongly and illegally appointed and promoted, the Petitioner has been deprived of the service benefits to which she was entitled to. 15. The learned Counsel appearing for the Respondent no.4 submits that the Petitioner herself was not qualified for appointment as she did not complete 12th standard Course but straightaway passed graduation examination. The certificate obtained by the Petitioner showing her passing of graduation course itself is questionable. The Petitioner's locus is under cloud. There are serious laches on the part of the Petitioner to approach this Court in the year 2002. The learned counsel submitted that the Petitioner has no right to challenge the appointment of the Respondent no.4 in view of lapse of so many years and the fact that the Petitioner has choose to approach this Court belatedly vested rights are created in favour of the Respondent no.4. It is submitted that if the prayer in the petition is granted, the same would amount to termination of the Respondent no.4 which would be unreasonable, arbitrary and improper exercise of jurisdiction. The learned counsel referred to the case of “Retd. Armed Forces Medical Association and others V/s. Union of India and others” [ (2006) 11 SCC 731 ]. 16. The learned Counsel for the State has supported the averments raised by the learned counsel for the Respondent no.4. The learned counsel appearing for the Respondent no.3 submitted that the Petitioner was not qualified on the date on which she was appointed. The submissions advanced by the learned Counsel for the Respondent no. 4 and the State is adopted by the Counsel for the Respondent no.3. 17. We have perused the record, considered the submissions advanced and perused the relevant provisions of law prescribed in the Goa School Education Act, 1984 and Rules of 1986 Rules. The submissions advanced by the learned Counsel for the Respondent no. 4 and the State is adopted by the Counsel for the Respondent no.3. 17. We have perused the record, considered the submissions advanced and perused the relevant provisions of law prescribed in the Goa School Education Act, 1984 and Rules of 1986 Rules. Rule 78 provides for minimum qualification for the appointment of teaching staff, Rule 83 provides for probation period and Rule 87 refers to seniority of employees. The Petitioner approached this Court by filing the present petition raising challenge to the extension granted by the Respondent no.2 in the year 1998 in favour of the Respondent no.4. We have perused the communication made by the Director (Administration) dated 30/10/2006 addressed to the Petitioner. There is substance in the contentions of the respondents that there is nothing placed on record to show that the Petitioner passed 12th Standard Examination. The Petitioner produced a certificate showing that she had passed Bachelor of Arts Degree and the said certificate was awarded by Yashwantrao Chavan Maharashtra Open University Nashik. But in the facts of the case now we may not be investigating for the said issue so as to ascertain as to whether the Petitioner was rightly appointed or not. 18. In the fact of the case, we find that there is delay and serious laches on the part of the Petitioner in approaching this Court in the year 2007 seeking to reopen issue settled before many years. The Petitioner raised challenge in the petition regarding the extension granted to the Respondent no.4 from 1997 to 2002. The learned Counsel for the Petitioner submitted that though the Petitioner was aware of the fact that the Respondent no.4 was not competent in to hold the post nor the Director was entitled to grant extension on 'humanitarian ground' at the relevant time the Petitioner could not have preferred the petition as the same would have been held to be non-maintainable. The Petitioner filed representation to the authorities concerned but preferred not to approach this Court. We are not convinced by the submissions advanced by the learned Counsel for the Petitioner that she has been prevented from raising the very issue at the relevant time. The delay in approaching this Court would certainly amounts to abnormal delay as the Respondent no.4 got settled in the employment. 19. We are not convinced by the submissions advanced by the learned Counsel for the Petitioner that she has been prevented from raising the very issue at the relevant time. The delay in approaching this Court would certainly amounts to abnormal delay as the Respondent no.4 got settled in the employment. 19. Inspite of the Respondent no.4 coming out with the reasons in respect of the circumstance which prevented her from completing the course within prescribed time under Rule, 1986. Considering the strict interpretation of the rules, the Petitioner is justified in saying so and submitting that the Respondent no.4 did not complete the training course within a prescribed time. In the facts and circumstance of the case, we find that it could be unreasonable now to take up the issue of the year 1997 and hold that the Respondent no.4 did not complete the course within a prescribed time. The Respondent no.3, Management of the School has supported the case of the Respondent no.4. The learned Counsel for the State and the Director submitted that in the facts of the case the issue which was already concluded need not be opened at the behest of the Petitioner whose qualification was already questioned by the Respondent no. 3. 20. In the facts of the case, we find that allowing prayer of the Petitioner would consequently terminate the services of the Respondent no.4. In the light of peculiar facts of the case, we find that in exercise of jurisdiction of the Article 226 no interference is warranted at the behest of the petitioner. 21. The department had certainly treated the case of the Respondent no.4 as a special case in the light of the reasons given by Authorities. 22. We have perused the judgment cited supra. 23. After considering the entire factual background and the relevant provisions of law, we are of the view that no interference is warranted in the petition. 24. The petition is dismissed. Rule discharged. No order as to costs.