High Court
Legal Reasoning
( 1 ) WP-13493-21IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.13493 OF 2021 1.Sangita Josef Shinde,Age-43 years, Occu.-Service,R/o. Purnwadnagar, ward No.7Shirampur, Tal. Shrirampur,District Ahmednagar...PETITIONER VERSUS1. The President, Laxminarayan Pratishtan, Shrishivajinagar, Rahuri, Tal. Rahuri, Dist. Ahmednagar.2. The Head Master, Shri.Sangamneshwar Madhyamik Vidyalaya, Wanjulpoi, Tq. Rahuri, District Ahmednagar.3. The Head Master, Shri. Sant Mauli Madhyamik Vidyalaya, Pathare, Tal. Rahuri, District Ahmednagar.4. Shri. Magar Santosh Bhausaheb Age Major, Occu: Service, C/o Shri. Sant Mauli Madhyamik Vidyalaya, Pathare, Tq. Rahudi, District Ahmednagar. ( 2 ) WP-13493-215. The Education Officer (Secondary), Zilla Parishad, Ahmednagar. Tal. And District Ahmednagar.6. The State of Maharashtra, Through its Jt. Director, Pune Region, Office of Joint Director Education, Pune Division, Pune-1....RESPONDENTSAdvocate for the petitioner : Mr. Uday S. Malte, Advocate for Respondent No.4 : Mr. R. R. Karpe, AGP for Respondent No. 6 : Mr. K. N. LokhandeCORAM:KISHORE C. SANT, J.RESERVED ON :21th JANUARY 2025PRONOUNCED ON: 05th MARCH 2025ORDER :-1.Heard the learned Advocate for the parties and taken up for finaldisposal by consent of the parties.2.This writ petition is by a teacher whose appeal before the SchoolTribunal came to be dismissed turning down her challenge to anappointment of respondent No.4 as Head Master to the School. It is thecase of the petitioner that she is superseded while giving appointment torespondent No.4 as Head Master to Respondent No.2-School. ( 3 ) WP-13493-213.The facts in short are that, the petitioner joined service is qualifiedas B.A., M.A., B.Ed. She belongs to Scheduled Cast. She joined theservice as assistant teacher on 13.06.2006 on a clear vacant postreserved for Scheduled Cast category. After completing probation period,she became permanent teacher. In 2015, she came to be transferred toanother school i.e. Respondent No.3 which was not receiving grant inaid. 4.When she was in service, Head Master retired on 31.05.2015, bythat time she had completed about 9 years of service. As per roaster, thepost of Head Master was reserved for Scheduled Caste person. She alsohappened to be senior most assistant teacher. She was therefore, entitledto be appointed as Head Mistress. The respondents, however, appointedrespondent No.4 as Head Master from 14.09.2016 at respondent No.2-School. The petitioner therefore approached the School Tribunal by filingan appeal.5.The respondent No.1 is the President of the Management. ( 4 ) WP-13493-21Respondent No. 2 is the Head Master of School where she works.Respondent No.3 is the Head Master of another School of the sameManagement. Respondent No.4 is the person who is appointed as HeadMaster to respondent No.3-School. Respondent No.5 is the EducationOfficer. 6.The respondents appeared in the appeal by filing the say. It is thecase of the respondents that the post was filled in by giving anadvertisement. Before giving an advertisement, the Education Officerand the Deputy director of Education had granted approval and noobjection. Pursuant to the advertisement, 11 persons applied. Thepetitioner was not having the experience of 5 years, as the EducationOfficer had granted approval to her service on 20.01.2016 from01.07.2015. She was working in respondent No.2 School which is nongranted and it is for this reason, she could not have been appointed asHead Mistress.7.The learned Presiding Officer, School Tribunal dismissed theappeal and therefore the petitioner is before this Court.
Legal Reasoning
( 5 ) WP-13493-218.Learned Advocate Mr. Malte vehemently argued that, it is anadmitted position that the petitioner was appointed as Assistant Teacherin 2006 in respondent No.3-School. Thereafter, without any reason, shewas transferred to respondent No.2-School which is non-grant school.She had worked for more than 5 years. Her appointment is alsoapproved and she was having sufficient experience. There is no disputeabout her qualification. When she was possessing requisite qualificationand requisite experience, she should have been promoted as HeadMistress. The act of the Management of issuing advertisement and to fillup the post by direct recruitment was against the rules. During thecourse of argument, the another ground taken is that, respondent No.4 ishaving three children and thus, was not entitled to be appointed asAssistant Teacher. The petitioner has specifically brought on record thenames of three children. It is the case that, the Management has failed tofollow Rule 12 of the Maharashtra Employees of Private Schools(Conditions of Service) Rules, 1981. The School Tribunal failed toappreciate all these facts in proper perspective. He further submits that, ( 6 ) WP-13493-21after an advertisement, the petitioner had raised an objection. She hadmade representation on 11.03.2016 itself to the Administrative officer ofthe Management praying for giving her promotion to the post of HeadMistress. She had also made detailed representation on 12.03.2016 tothe Joint Director (Education) Pune and Education Officer (Secondary)Z.P., Ahmednagar, on which the Joint Director (Education) Pune andEducation Officer (Secondary) Z.P,. Ahmednagar has made anendorsement that the appointment be made as per seniority list and asper roaster point. He thus submits that still the respondent-Managementwent on with the recruitment process. He relies upon the judgment inthe case of Salim Gulab Mulla vs. State of Maharashtra and othersreported in 2017 (1) Bom. Lc 180. 9.The learned Advocate Mr. Karpe for Respondent No.4 submits that,the Management had sought permission from the Deputy Director ofEducation. The Joint Director Education, Pune Division, Pune, on26.02.2016 granted permission to fill up the post of Head Master bycalling advertisement. Thereafter, an advertisement was issued and by ( 7 ) WP-13493-21following proper procedure, respondent No.4 came to be appointed.Now, the approval is granted on 19.08.2016. So far as the petitioner isconcerned, he submits that, she was transferred to respondent No.3School on 01.07.2015 which is unaided school. Approval to herappointment is granted on 20.01.2016. The petitioner did notparticipated in the appointment procedure. He thus justified the orderpassed by the learned Member School Tribunal. Learned Advocatesupports the judgment. He submits that, the authorities had approvedthe advertisement. The appointment is made pursuant to suchadvertisement. No interference is required.10.During the course of argument, reliance is placed on Rule 12 of theRules, 1981 which requires the Management to prepare and maintainseniority list of the teaching staff including Head Master and AssistantHead Master and Non-teaching staff in this school in accordance withthe guidelines laid down in Schedule F. Schedule F provides forguidelines for fixing assistant teachers in the primary school. It providesthat the seniority of primary school teachers in secondary school and ( 8 ) WP-13493-21junior colleges shall be based on continuous officiation counted fromfrom the date of joining service as prescribed under Schedule B ofsecondary school and junior colleges. The petitioner thus has to showthat she was senior most teacher in the Respondent-School.11.The petitioner relied upon the judgment in the case of Salim(supra), it is held that, when the question of seniority is to beconsidered, the same is to be settled by the Education Officer. TheEducation Officer in such cases has no jurisdiction to fix seniority anddelete the persons already promoted. This Court finds that, the judgmentis therefore not applicable. The only reliance of the petitioner on thejudgment is for the purpose to show that the seniority is to bedetermined on the basis of date of appointment and not on the basis ofdate of approval.12.On the basis of this judgment, this Court finds some substance inthe argument of the petitioner that the seniority is to be determined onthe basis of date of appointment. Whereas, the respondents have statedthat the approval was granted in 2016. The argument of the respondents ( 9 ) WP-13493-21is found to be against this judgment. Services need to be counted fromthe date of initial appointment rather than the date of approval. There isno dispute about the proposition that the services to be counted on thebasis of continuous officiation. There is no dispute about thequalification of the petitioner. The question in the present case is as tofrom which date the service of the petitioner is to be counted. The factremains that she did not object her transfer to the unaided school.13.Another question that requires consideration is as to whether thepetitioner, at any point of time, whether objected the advertisement orthe selection process to fill up the post of Head Master to respondentNo.2-school. There is nothing on record that the petitioner ever objectedthe advertisement and the proceedings. There is also nothing on recordto show that, she participated in the process of selection pursuant to theadvertisement. In both the cases, there was some scope for the petitionerto agitate these grounds. This Court finds substance in the argument ofMr. Karpe that the petitioner did not object to the selection process andallowed the selection process to go on. The judgment in the case of
Decision
( 10 ) WP-13493-21Salim (supra) in this fact would not help the petitioner. In the saidjudgment, this court had recorded that the seniority was counted on thebasis of the date of approval to the petitioner. In that case, it was held tobe perverse. In the present case, the petitioner was working inrespondent No.3 school, whereas the respondent No.4 is appointed torespondent No.2-school. It has also come on record that, the respondentNo.4 was having experience as in-charge Head Master since 2008. TheSchool Tribunal while recording the finding, has considered all theseaspects. Considering all above aspects, this Court finds that no case ismade out calling for interference at the hands of this Court.14.The petition therefore deserves to be dismissed and the same ishereby dismissed with no order as to costs. [KISHORE C. SANT, J.]PRW