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2016 DIGILAW 1352 (BOM)

Sau. Vijaya v. State of Maharashtra

2016-08-02

S.S.SHINDE, SANGITRAO S.PATIL

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JUDGMENT: S.S. Shinde, J. Heard. 2. Rule. Rule made returnable forthwith, and heard finally with the consent of the parties. 3. The petitioner in Writ Petition No.2633/2016 viz. Vijaya Jadhav earlier had filed Writ Petition No.5891/2015 before this Court. The said Writ Petition was disposed of by the Division Bench on 20.11.2015 and a direction was given to the Education Officer (Secondary), Zilla Parishad, Jalgaon, to hear the parties, allow them to place on record the documents and take a decision about the issue of appointment of a fulltime Head Mistress/Headmaster on regular basis in the respondent school, keeping in view the provisions of the Maharashtra Employees of Private Schools (Condition of Service) Rules, 1981 (for short ‘the Rules of 1981). In pursuance of the said directions, respondent no.2 Education Officer (Secondary) heard the parties so as to take decision about who is entitled for the appointment as full time Headmistress. Upon perusal of the impugned order, it appears that the parties were heard, the necessary record was perused by respondent no.2 and thereafter, in the light of the provisions of the MEPS Rules, respondent no.2 had taken a decision on 08.02.2016 that the petitioner in Writ Petition No.2633/2016 Vijaya Jadhav is senior to the petitioner in Writ Petition No. 1807/2016, viz. Vijayalaxmi Patil, incharge Headmistress, and therefore, Smt. Vijaya Jadhav, is eligible for appointment to the post of Headmistress. The relevant portion from the impugned communication dated 08.02.2016 in Writ Petition No.1807/2016, between the Education Officer (Secondary), Zilla Parishad, Jalgaon and respondent no.1 reads as under: xxx xxx xxx 4. Writ Petition No.2633/2016 is filed seeking enforcement and implementation of the decision taken by the Education Officer, Jalgaon. Writ Petition no.1807/2016 takes exception to the order dated 08.02.2016 passed by the Education Officer (Secondary), Zilla Parishad, Jalgaon. Therefore, both the Petitions are heard together and being disposed off by this common judgment. 5. Both the Writ Petitions were heard together on 05.05.2016. Upon perusal of the impugned order/communication and after hearing the learned counsel for the parties, it was noticed that though the Education Officer considered the provisions of Rule 12 of the MEPS Rules and Schedule-F there under, he did not express his opinion about the categories mentioned under Schedule-F, clause2. Therefore, respondent no.2 was directed to hear the parties, confined to Schedule-F, clause2 of the MEPS Rules and then prepare report and sent it to this Court. Therefore, respondent no.2 was directed to hear the parties, confined to Schedule-F, clause2 of the MEPS Rules and then prepare report and sent it to this Court. Accordingly, the learned AGP has tendered across the Bar copies of the report prepared by the Education Officer, the same is taken on record. It appears that during the pendency of the Writ Petitions, the name of Vijaya Jadhav has been included as Deputy Headmistress in “B” category on 03.05.2016. Respondent no.1 has placed on record seniority list as on 01.06.2016. Therefore, both the petitioners are placed in “B” category. However, the name of the petitioner Vijayalaxmi Patil stands at serial no.1 and the name of the petitioner Vijaya Jadhav stands at serial no.2 of “B” category. 6. The learned counsel for Vijayalaxmi Patil submits that she has been promoted to the post of Assistant Headmistress earlier in point of time and has entered in category-B earlier to that of Vijaya Jadhav. Therefore, she is required to be considered as senior to that of Vijaya Jadhav. In support of the said contention, the learned Advocate Mr. Arvind Deshmukh relying on the reported judgment of the Bombay High Court Bench at Nagpur in the case of Madhav Govindrao Budhe vs. Education Officer, Zilla Parishad, Nagpur and others 1994 (1) Mh.L.J. 42 submits that the inter se seniority of the teachers falling in any single category should be determined on the basis of their length of continuous service in that category. 7. On the other hand, the learned counsel for Vijaya Jadhav submits that Vijaya Jadhav is senior to the Vijayalaxmi Patil. He submits that though both the petitioners have been appointed on the same date, Vijaya Jadhav is senior by age and therefore, in view of the Rule 3 (1) (b) of the MEPS Rules, she is entitled for appointment to the post of Headmistress. The learned counsel further submits that merely because Vijayalaxmi Patil is placed under “B” category prior to that of Vijaya Jadhav, cannot be a ground to ignore the seniority of Vijaya Jadhav. He submits that the similar issue/controversy was considered by the Division Bench of this Court in the case of Chalisgaon Education Society and another Vs. State of Maharashtra and others in Writ Petition No.126/2001 decided on 15.09.2006, wherein Vijayalaxmi Patil was respondent no.3. He submits that the similar issue/controversy was considered by the Division Bench of this Court in the case of Chalisgaon Education Society and another Vs. State of Maharashtra and others in Writ Petition No.126/2001 decided on 15.09.2006, wherein Vijayalaxmi Patil was respondent no.3. He submits that in that case, Vijayalaxmi Patil was appointed as Assistant Headmistress in “B” category in the year 1992 and the petitioner no.2 therein was promoted as Assistant Head Master in “B” category in the year 2000, the Division Bench has taken a view that the petitioner no.2 therein will have to be considered as senior taking into consideration his initial date of appointment as Assistant Teacher. 8. The learned counsel for respondent Education Society submits that both the petitioners are placed in “B” category. The petitioner Vijaya Jadhav is senior by age and therefore, the Education Officer has held that she is entitled for the appointment to the post of Headmistress. Therefore, he submits that this Court may pass appropriate orders. 9. The learned AGP appearing for the respondent – State relying upon the averments in affidavit in reply filed on behalf of respondent State and State Authorities submits that the impugned order passed by the Education Officer is in consonance with the provisions of MEPS Rules, and therefore, this Court may pass appropriate orders. 10. We have considered the submissions of the learned counsel appearing for the petitioners and the learned counsel appearing for the respective respondents. With their able assistance, perused the pleadings in the petition, annexures thereto, replies filed by the respondents. Admittedly, both the petitioners have been appointed on the same date. However, the petitioner Vijaya Jadhav is senior by age as it is evident from the documents placed on record. It appears that both the petitioners were appointed on 22.06.1983. However, the date of birth of Smt. Vijaya Jyotirao Jadhav is 23.02.1959 and that of Vijayalaxmi Patil is 11.05.1960. Therefore, as provided under the MEPS Rules, Vijaya Jadhav is considered as senior to Vijayalaxmi Patil. 11. It appears that both the petitioners were appointed on 22.06.1983. However, the date of birth of Smt. Vijaya Jyotirao Jadhav is 23.02.1959 and that of Vijayalaxmi Patil is 11.05.1960. Therefore, as provided under the MEPS Rules, Vijaya Jadhav is considered as senior to Vijayalaxmi Patil. 11. The contention of Vijayalaxmi Patil is that she has been promoted to the post of Assistant Headmistress earlier in point of time and has entered in category “B” earlier to that of the Vijaya Jadhav, and therefore, she is entitled to be appointed to the post of Headmistress, cannot be accepted in view of the exposition of law in the case of Chalisgaon Education Society (supra). The Division Bench, after considering the arguments of the parties and in particular the contention of Vijayalaxmi Patil, who was respondent no.3 in the said Writ Petition, that she had been appointed as Assistant Headmistress earlier in point of time and had entered into the category “B” earlier to that of the petitioner therein and therefore she was entitled for appointment to the post of Headmaster had been negatived, with the following observations in para 5 and 6, which read as under: 5. Rule 3 of the Maharashtra Employees of Private Schools Conditions of Service Rules, 1981 relates to qualifications and appointment of Head. As per Rule 3 (1) (b) a person to be appointed as the Head of a Secondary school shall be a graduate possessing Bachelor’s degree in teaching or education of a statutory University or any other qualification recognized by Government as equivalent thereto and possessing not less than five years’ total fulltime 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. Sub rule (3) of Rule 3 provides that the management of the school shall fill up the post of Head by appointing the senior most member of teaching staff in accordance with guidelines laid down in Schedule-F from amongst those employed in a school or schools who fulfill the conditions laid down in sub rule (1) and who has a satisfactory record of service. 6. It is revealed from the perusal of seniority list at Exhibit-G that the Petitioner No.2 is placed at Serial No.1 in category-B whereas the Respondent No.3 is at serial No. 2. 6. It is revealed from the perusal of seniority list at Exhibit-G that the Petitioner No.2 is placed at Serial No.1 in category-B whereas the Respondent No.3 is at serial No. 2. The Petitioner No.2, obviously, will have to be considered as senior, taking into considering his date of appointment. Merely because the Respondent No.3 has been promoted to the post of Assistant Head Master before Petition No.2, she cannot be considered as senior to that of the petitioner No.2. One of the questions, considered in Ajit Singh’s case (supra) was (i) can the roaster point promotees (reserved category) count their seniority in the promoted category from the date of their continuous officiation vis-a-vis the general candidates who were senior to them in the lower category and who were later promoted to the same level. While answering the said point, the Apex Court concluded in para 77: 77. We, therefore, hold that the roaster point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the promoted post, vis-a-vis the general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before the further promotion of the reserved candidate – he will have to be treated as senior, at the promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. We shall explain this further under Point 3. We also hold that Virpal (Union of India V/s Virpal Singh, (1995) 6 SCC 684 ) and Ajit Singh (Ajit Singh Januja V/s. State of Punjab, (1996) 2 SCC 715 ) have been correctly decided and that Jagish Lal (Jagdish Lal V/s. State of Haryana, (1997) 6 SCC 538 ) is not correctly decided. Points 1 and 2 are decided accordingly. In view of the observations, quoted above, it will have to be concluded that the Petitioner No.2 is required to be held as senior to that of the Respondent No.3. The respondent No.1 management was, therefore, not in error in promoting Petitioner No.2 to the post of Head, vide order dated 1st October, 2000. In view of the observations, quoted above, it will have to be concluded that the Petitioner No.2 is required to be held as senior to that of the Respondent No.3. The respondent No.1 management was, therefore, not in error in promoting Petitioner No.2 to the post of Head, vide order dated 1st October, 2000. The impugned communication issued by the Respondent No.2, dated 14th December, 2000 is illegal and runs counter to the settled legal position enumerated above and, therefore, the same is required to be quashed. 12. Upon careful perusal of the observations in para 5 and 6, it is abundantly clear that, in the aforesaid case also, petitioner no.2 therein was appointed as Assistant Teacher prior to Vijayalaxmi Patil. She was promoted to the post of Assistant Headmaster earlier in point of time and had entered in the category “B” prior to that of petitioner no.2. However, the Division Bench held that Rule 3 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, mandates that for reckoning of the seniority for the purpose of appointment to the post of Head Master the initial date of appointment is material and not seniority in a particular category. It appears from the perusal of the facts in the case of Chalisgaon Education Society (supra) Vijayalaxmi Patil was promoted to the post of Assistant Head Master prior to petitioner no.2 therein. 13. In the facts of the present case, as already observed, the petitioner Vijaya Jadhav is senior by age to the petitioner Vijayalaxmi Patil, though both are appointed on the same date. At present, both the petitioners are placed in category-B. 14. In the light of the discussion in the foregoing paragraphs, and for the same reasons, which are assigned by the Division Bench in para 4 to 6 in the case of Chalisgaon Education Society (supra), we are of the considered view that as per seniority, Vijaya Jadhav is entitled for appointment to the post of Headmistress. In that view of the matter, we pass the following order: ORDER (i) The impugned decision taken by the Education Officer stands confirmed. (ii) Writ Petition No.2633/2016 is allowed in terms of prayer clause-B and same stands disposed of. (iii) The rule is made absolute in the above terms. (iv) The Writ Petition No.1807/2016 stands dismissed. Rule stands discharged. (v) No costs. (ii) Writ Petition No.2633/2016 is allowed in terms of prayer clause-B and same stands disposed of. (iii) The rule is made absolute in the above terms. (iv) The Writ Petition No.1807/2016 stands dismissed. Rule stands discharged. (v) No costs. Sd/ [SANGITRAO S.PATIL] JUDGE At this stage, the learned counsel appearing for the petitioner in Writ Petition No.1807 of 2016 and respondent no.6 in Writ Petition No.2633 of 2016 prays for continuation of the interim relief which was in force during the pendency of the Writ Petition No.1807 of 2016. The prayer is vehemently opposed by the learned Counsel for the petitioner in Writ Petition No.2633 of2016. 2. Since we have held that the petitioner in Writ Petition No.2633 of 2016 is the senior most teacher, further delay for promotion / appointment on the post of Head Master cannot be considered. 3. In that view of the matter, we decline to entertain the prayer of the petitioner in Writ Petition No.1807 of 2016 for continuation of the interim relief for further six weeks.