Writ Petition No. 4832 of 2016. Case: Smt. Pushpanjali Subodha Shenvi Vs Nagrik Seva Mandal Through Chairman/Secretary and Ors.. High Court of Bombay (India)
| Case Number | Writ Petition No. 4832 of 2016 |
| Counsel | For Appellant: Mr. Narendra Bandiwadekar, Adv. and For Respondents: Mr. Sudhir Deshpande, Adv., Mr. A.R. Metkari, A.G.R., Ms. Swarna Munshi, Adv. |
| Judges | R. D. Dhanuka, J. |
| Issue | Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Sections 9(1)(b), 16; Constitution of India - Articles 226, 227, 162 |
| Judgement Date | July 28, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
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By this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for a writ of certiorari inter alia praying for quashing and setting aside the impugned order and judgment dated 4th March, 2016 passed by the learned Presiding Officer, School Tribunal, Navi Mumbai thereby dismissing the appeal filed by the petitioner under section 9(1) (b) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and Rules framed thereunder (for short the said MEPS Act and the said MEPS Rules). The petitioner herein had impugned the order of supersession dated 10th July, 2013 issued by the respondent no.1 management promoting the respondent no.4 to the post of the headmaster and had prayed for an order and direction against the management to promote the petitioner on the post of the head mistress w.e.f. 10th July, 2013 and to pay her all the salary as per scale, dues including back wages, emoluments, etc. attached to the said post since 10th July, 2013.
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Some of the facts for the purpose of deciding this writ petition are as under:-
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The respondent no.1 is an institution which runs an aided private secondary school known as Ganesh Vidya Mandir, Secondary School. The said school is having classes of standard 8 to 10.
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The petitioner had acquired her B.A.degree in the year 1991 and B.Ed.degree in the year 1993 and M.A.degree in the year 2006. On 11th June, 1993, the petitioner was appointed as an assistant teacher in the said school on clear vacancy and permanent post. It is the case of the petitioner that the said appointment was duly approved by the Education Officer (Secondary Section) Zilla Parishad, Thane. It is the case of the petitioner that when the petitioner was appointed to the said post as an assistant teacher on 11th June, 1993, the petitioner was already having qualification of B.A., B.Ed. and thus was a "Trained Graduate Teacher" and had thus entered category 'C' of Schedule 'F' of the said MEPS Rules framed under the provisions of the said MEPS Act.
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It is the case of the petitioner that the respondent no.4 was appointed as a teacher in the said school on 8th August, 1991. According to the petitioner, no documentary evidence whatsoever was produced by the respondent no.4 in support of the said claim such as appointment order, approval order etc. It is the case of the petitioner that from the documents on record, it appears that the respondent no.1 was appointed as assistant teacher in the said school on 14th June, 1993. On the date of such appointment as assistant teacher, the respondent no.4 was having qualification of S.C.C., A.T.D. (Arts Teachers' Diploma). It is the case of the petitioner that since respondent no.4 did not have the prescribed qualification for the post of the assistant teacher in the secondary school i.e. B.A., B.Ed. and therefore the appointment of the respondent no.4 on 14th June, 1993 was as an untrained teacher.
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Sometime in the year 1995, the respondent no.4 passed A.M.(Arts Master) and thereafter he passed B.A. in the year 2005. It is the case of the petitioner that even if the qualification of the Arts Master is treated equivalent to B.Ed., the respondent no.4 became trained graduate teacher in the year 2005 only when he passed B.A. and entered the Category 'C' of Schedule 'F' for the first time in the year 2005. It is the case of the petitioner that the petitioner thus was senior to the respondent no.4 since she entered the Category 'C' of Schedule 'F' first.
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Mrs.Kalpana Avinash Wadnere was working as a Head Mistress in the said school and resigned from the said post on 8th July, 2013. It is the case of the petitioner that since the petitioner was the next senior most teacher, she was entitled to be promoted to as headmistress in the said vacant post. The petitioner made an application dated 10th August, 2013 to the respondent no.1 and requested for her promotion to the said post of Head Mistress. On 24th October, 2013, the petitioner made a representation to the Education Officer and raised an objection to the seniority list submitted by the management. On 16th January, 2014, the petitioner submitted a reminder to the Education Officer.
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It is the case of the petitioner that on 24th March, 2014 the petitioner received copy of a caveat dated 19th March, 2014 filed by the management in this case. It was stated in the said caveat that the respondent no.4 had been appointed as Head Master on 10th July,2014 and an approval to the said appointment was granted by the Education Officer on 10th January, 2014. It is the case of the petitioner that the petitioner came to know about the illegal promotion of the respondent no.4 made by the management as headmaster in the said school in the vacancy having arisen due to the resignation of Mrs.Kalpana Avinash Wadnere after service of the caveat by the respondent no.1. The petitioner accordingly made an application on 25th March, 2014 to the Education Officer and pointed out that the petitioner was senior to the respondent no.4 and inspite of such seniority, the petitioner was superseded by promoting the respondent no.1.
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By his letter dated 3rd April 2014, the Education Officer directed the management to appear before the Education Officer on 9th April, 2014 along with approval orders, year-wise seniority lists, roster, appointment order and the other necessary documents. The Education Officer served a copy of the said notice also upon the petitioner. The petitioner appeared before the Education Officer on 9th April, 2014 and pointed out her seniority over the respondent no.4 and as to how the petitioner was entitled to be promoted to the post of the headmaster in the said school. The petitioner thereafter made a representation to the Education Officer on 11th April 2014, 26th April 2014 and to the Deputy Director of Education on 29th April 2014. There was however no response from the Education Officer or Deputy Director of Education to the said representation made by the petitioner.
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On 19th May, 2014, the petitioner herein filed an appeal (8 of 2014) before the school tribunal under section 9(1)(b) of the said MEPS Act against the respondents and prayed for setting aside the order of supersession dated 10th July, 2013 and applied for order and direction against the management to promote the petitioner as headmaster w.e.f.10th July, 2013 with all consequential service benefits. The said appeal was resisted by the management as well as by the respondent no.4.
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By an order and judgment dated 4th March, 2016, the learned presiding officer of the school tribunal dismissed the said appeal filed by the petitioner and holding that on the basis of the date of appointment, respondent no.4 was senior to the petitioner and therefore the promotion of the respondent no.4 to the said post of headmaster will not amount to supersession of the petitioner since the respondent no.4 was senior to the petitioner. This order and judgment of the school tribunal is impugned by the petitioner in this petition filed under Articles 226 and 227 of the Constitution of India.
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Mr. Bandiwadekar, learned counsel appearing for the petitioner invited my attention to the Rule 6 of M.E.P.S.Rules which provides for minimum qualification for the post of teacher and non-teaching staff in the primary schools, secondary schools, junior colleges of education and junior collage classes attached to secondary school and senior colleges as specified in Schedule 'B'. Reliance is placed on Item II which provides for qualification for a trained teacher for secondary schools and junior colleges of education. He submits that under clause (1) of Item II for a graduate teacher, the required qualification is a Bachelor's degree in teaching or education of any statutory University or a qualification recognized by Government as equivalent thereto. He submits that for an appointment of a assistant teacher for a secondary school, the candidate is required to be a trained graduate teacher who is holding B.A./B.Sc./B.Com.,B.T./B.Ed. or its equivalent qualification. He submits that when the petitioner was appointed as an assistant teacher on 11th June, 1993, the petitioner was already having the requisite qualification of B.A. and B.Ed. and was thus appointed as a trained graduate teacher. The petitioner also received a salary for the post of trained graduate teacher and the said salary was paid from the grant-in-aid released by the Education Officer in favour of the respondent no.2 school, since it being an aided school.
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It is submitted by the learned counsel for the petitioner that the respondent no.4 did not produce any documentary evidence such as appointment order etc. to show that he was appointed as a teacher in the respondent no.2 school on 8th August, 1991. He submits that in any event the record produced by the respondent no.4 on record of the school tribunal showed that when the respondent no.4 was appointed as an assistant teacher on 14th June, 1993, he was having qualification of S.S.C., A.T.D. He submits that on the date of appointment of respondent no.4 as an assistant teacher on 14th June, 1993, he did not have the prescribed qualification for the post of assistant teacher in the secondary school i.e. B.A./B.Sc./B.Com.,B.T./B.Ed. and other equivalent qualification. It is submitted that the appointment of the respondent no.4 on 14th June, 1993 thus was as an untrained teacher.
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It is submitted that the respondent no.4 has admittedly passed Arts Master only in the year 1995 which could be equivalent to B.Ed. The respondent no.4 admittedly passed B.A. only in the year 2005. He submits that since the respondent no.4 acquired the requisite qualification for the post of assistant teacher i.e. A.M.(Art Master's Diploma) in 1995 and the B.Ed. only in the year 2005, the respondent no.4 become a trained graduate teacher and entered the Category 'C' of Schedule 'F' only in the year...
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