High Court · 2024
Legal Reasoning
(5) wp-7890-2019.odtAct read with Rule 12 of M.E.P.S. Rules, 1981 and Schedule-F ruled outthat seniority has to be reckoned from the date the teacher eitherachieves the qualifications required or improves his/her qualificationsfor being a trained teacher. Applying the aforesaid ratio in the facts ofthe case, we find that petitioner as well as respondent no.5 wereappointed on 13.06.1994 with respondent no.4 school, the petitioneracquired his D.Ed. qualification on 03.05.2002, whereas respondent no.5acquired such qualification on 31.12.2002. Apparently, the petitionerwill have to be treated as senior on the basis of date of acquisition ofqualification prescribed under Rule 2 (k) of the M.E.P.S. Rules, 1981.Therefore the order dated 13.07.2022 passed by the Education Officerfixing seniority, which is placed before us along with affidavit-in-replyappears to be in consonance with the aforesaid provisions and same hasattained finality. 9.The next contention advanced on behalf of respondent no.5is that the petitioner lost his seniority because of break in serviceduring the academic year 1996-1997. However, the said contentionholds no water in view of the fact that the Competent Authority hasalready condoned the break in service of the petitioner vide order dated04.01.2017, which is placed before us during the course of hearing andnot controverted on behalf of respondent no.5. 10. So far as contention of respondent no.3 based on Circulardated 16.02.1995 it can be observed that the petitioner obtainedqualification of D.Ed. in pursuance of the examination conducted inMarch-2002, whereas respondent no.5 acquired similar qualification inpursuance of examination conducted in October-2002. Apparently, itcannot be inferred that both have acquired qualification in sameacademic year. Therefore instruction in circular would not supportrespondent No. 5 to carry forward his claim. The aforesaid discussion (6) wp-7890-2019.odtleads us to the conclusion that the petitioner is senior and entitled forconferment graduate teachers pay scale from the date of acquisition ofqualification or from the date of availability of the post in the said payscale with respondent no.4-School. Hence, we proceed to pass followingorder:-ORDER a.Writ Petition is partly allowed.b.The impugned orders dated 13.06.2019 and 19.08.2019 passed byrespondent no.2-Education Officer (Primary), Zilla Prishad, Latur arehereby quashed and set aside.c.The respondent nos.1 and 2 are directed to confer the pay scale ofprimary graduate teachers on petitioner in pursuance of the proposaldated 13.02.2019 submitted by the Management and releaseconsequential benefits and also issue appropriate approval in his favouras trained graduate teacher.d.Writ Petition is disposed of. e.Rule is made absolute in above terms.(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/February-2024
Arguments
(1) wp-7890-2019.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.7890 OF 2019Shaikh Jabbar S/o Bahadur,Age:- 50 years, Occ. Service,As an Assistant Teacher,R/o. Maharangal, Tq. Chakur,Dist. Latur...PetitionerVersus1.The State of Maharashtra,Through its Secretary,School Education and Sports Department,Mantralaya, Mumbai-32.2.The Education Officer (Primary),Zilla Parishad, Latur, Dist. Latur.3.Indira Memorial Education Society,Latur, Through its Secretary.4.Shankarrao Mane Primary School,Latur, through its Headmaster.5.Narising S/o Raghunath Shinde,Age: 51 years, Occu.: Service,R/o. Pratiksha Sadan, Behind Sent Meri English School, Gawali Nagar, Nanded Road, Latur...Respondents. …Mr. V. D. Gunale, Advocate for the Petitioner.Mr. S. K. Shirse, AGP for Respondent No.1.Mr. P. R. Tandale, Advocate for Respondent No.2.Mr. V. G. Kodale, Advocate for Respondent Nos.3 and 4.Mr. K. M. Nagarkar, Advocate for Respondent No.5. … CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.JUDGMENT RESERVED ON :- 07th FEBRUARY 2024.JUDGMENT PRONOUNCED ON :- 22nd FEBRUARY 2024. (2) wp-7890-2019.odtJUDGMENT (Per: S. G. Chapalgaonkar, J.):- 1.Rule. Rule made returnable forthwith. With the consent ofthe parties, matter is taken up for final hearing at the stage ofadmission.2.The petitioner approaches this Court under Article 226 ofthe Constitution of India thereby assailing orders dated 13.06.2019 and19.08.2019 passed by respondent no.2-Education Officer (Primary), ZillaParishad, Latur and seeks to issue Writ of Mandamus againstrespondent nos.1 and 2 to extend him benefit of pay scale of primarygraduate teacher from the date of his entitlement. 3.Mr. Gunale, learned Advocate appearing for the petitionersubmits that the petitioner was appointed vide order dated 13.06.1994against clear and vacant post with respondent no.4-School by followingdue process of law. He was continued in service during the subsequentacademic year. The petitioner acquired D.Ed. qualification on03.05.2002. His services were approved vide order dated 16.11.2002.4.It is further submitted that respondent no.5 is alsoappointed on 13.06.1994. However, he acquired D.Ed. qualification on31.12.2002. Considering the date of acquisition of qualification, thepetitioner is senior to respondent no.5. However, respondent no.5 wastreated as senior and he was granted graduate pay scale. Mr. Gunalewould submit that the respondent-management was under obligation tomaintain the seniority in terms of Rule 12 of the MaharashtraEmployees of Private Schools (Conditions of Service) Regulation Rules,1981 (for short ‘M.E.P.S. Rules, 1981’). However, respondent no.5 wasshown as senior to petitioner contrary to the provisions contained inSchedule-F. In the present case, the petitioner as well as respondentno.5 are appointed on 13.06.1994. Considering the date of birth of the (3) wp-7890-2019.odtpetitioner, he is senior to respondent no.5-Shri. Narsing RaghunathShinde. However, the respondent-management recommended for grantof pay scale of trained graduate teacher to respondent no.5 against solepost in that pay scale. The Education Officer also erroneouslyapproved the said proposal and conferred pay scale of trained graduatepost to respondent no.5. Later, on representation of the petitioner, thepay scale granted in favour of respondent no.5 came to be cancelled.However, the petitioner is not given consequential benefit.5.The petitioner had approached this Court by filing WritPetition No.12673/2018 seeking direction against respondent nos.2 to 4to extend benefit of pay scale of trained graduate teacher to him fromthe date of his appointment. This Court disposed of the writ petitiondirecting the petitioner to make fresh comprehensive representation tothe Education Officer, who shall decide entitlement of the petitioner toreceive higher pay scale within a period of four months. Consequentlythe petitioner approached Education officer with fresh representation.Hearing was conducted. However, no further orders have been passedgiving reason that already respondent no.5 is conferred with the payscale of trained graduate primary teacher and he is discharging hisduties. Consequently the claim of the petitioner is not considered.According to the petitioner, the Education Officer acted contrary to thedirections issued by this Court under order dated 10.01.2019. TheEducation Officer failed to decide the issue pending before himregarding entitlement of the petitioner for trained graduate teacherspay scale and passed impugned order dated 13.06.2019 as well asfurther order dated 19.08.2019.6.Mr. Nagarkar, learned Advocate appearing for respondentno.5 opposes the prayer in the petition. He would submit thatrespondent no.5 is senior most teacher. In fact, he was appointed in the (4) wp-7890-2019.odtyear 1992 and acquired D.Ed. qualification in the year 2002. Themanagement has rightly fixed his seniority and forwarded the proposalfor conferment graduate pay scale, which was approved by therespondent-Authority. Mr. Nagarkar would further submit that in factthere was break in service of the petitioner during academic year 1996-1997, as such, he lost his seniority. Mr. Nagarkar would further inviteattention of this Court to the Circular dated 16.02.1995, which laysdown guidelines for deciding seniority amongst the teachers whoacquired D.Ed. qualification during the service period. He wouldsubmit that when D.Ed. qualification is acquired by teachers during oneand the same Academic year, the seniority shall be decided on the basisof initial date of appointment and not as per date of acquisition ofqualification.7.We have considered submissions advanced by the learnedAdvocates appearing for the respective parties. It is the matter ofrecord that the issue as regards to the seniority of the petitioner vis-a-vis respondent no.5 was considered by the Education Officer and aftergiving opportunity of hearing it is concluded that the date ofappointment of respondent no.5 cannot be treated as 11.06.1992 asclaimed by him. It can be further observed that interse senioritybetween petitioner and respondent no.5 has been considered by theEducation Officer during the pendency of this petition and vide orderdated 13.02.2022, the Education Officer concluded that the petitionerhas to be treated as senior to respondent No. 5 considering respectivedates of acquisition of D.Ed. qualification. The aforesaid order is notsubjected to challenge by respondent no.5 and it has attained finality. 8.The Division Bench of this Court in case of AshokNarayan Sathe Vs. The Education Officer (Secondary), ZillaParishad and Ors.1 after considering relevant provision of M.E.P.S.12007 (4) Mh.L.J. 358.