Saramma Varghese vs Secretary/President, S. I. C. E. S. Society & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1989 Supreme(Bom) 254

IN THE HIGH COURT OF BOMBAY
V.S. Kotwal G.H. Guttal, JJ.
Saramma Varghese... Petitioner.
Versus
Secretary/president, S.I.C.E.S. Society others... Respondents.
Writ Petition No. 3578 of 1986, decided on 7-9-1989.
Advocates appeared :
M.M. Vashi, for petitioner.
S.H. Bohra for V.D. Govilkar, for respondent No. 1
H.G. Buch with Miss. N.D. Buch for respondent No. 2.
A.G. Joshi, for respondent No. 5.
M.F. Saldhana, A.G.P. for respondent No. 6.

Headnote:MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) RULES, 1981
       Rule 12 and Schedules B and F and Categories B and C-Fixation of seniority- Teachers of Secondary Schools-Classified in different categories Higher pay scale not relevant for fixation of seniority-Petitioner appointed earlier to Respondent No.5, both falling in same category, is senior irrespective of fact that Respondent No.5 draws higher scale of pay.
       The petitioner and the Respondents were appointed as Assistant Teachers in the same School run by the Respondent No. 1. Having regard to the Rules examined in the foregoing paragraphs, the petitioner, by virtue of her longer and continuous officiating in the post of Assistant Teacher, is senior to the Respondent No.5. This is so notwithstanding the fact that the Respondent No. 5 was appointed on a higher pay scale of Rs. 165-400 and actually taught in what the Respondents have, without any justification, characterised as the higher division of the School. The petitioner and the Respondent No.5 rank together for the purpose of determination of their inter se seniority.
       MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS CONDITIONS OF SERVICE REGULATION ACT, 1977.
       Section 3 _ Maharashtra Employees of Private Schools Conditions of Service Rules, 1981 Rule, 12- Seniority of teachers-Crtierion for fixation of Trained graduate teachers-Criteria is continuous officiation in such post of teacher-Division of School in which teacher is in not relevant-Pay scale also not relevant- Higher qualification is also not relevant except basic minimum qualification.

JUDGMENT - G.H. GUTTAL, J.:---The petitioner Mrs. Varghese and the respondent No. 5 Smt. Malati Bhide currently hold the offices of Assistant Teacher, and Assistant headmistress respectively in S.I.C.E.S. High School, Ambarnath. The respondent No. 1 is the Secretary of the S.I.C.E.S. Society who own the School known as 'the S.I.C.E.S. High School' Ambarnath. The respondent No. 2 Smt. Sabitadevi Menon is the Headmistress. The respondents Nos. 3 and 4 are, respectively, the Education Officer and the Chief Executive Officer of Zilla Parishad, District Thane. The State of Maharashtra is the respondent No. 6. The petitioner who claims to be the senior most teacher in the School impugns the validity of the decision of the respondent Nos. 1 and 2 to appoint the respondent No. 5 as the Assistant headmistress and seeks a writ of mandamus directing the respondents to appoint her as the Assistant Headmistress.

2. On the 1st June, 1973, the petitioner applied for a job as teacher in the School. On 5th June, 1983, she received the order of appointment signed by the Principal which reads :

"I have pleasure in informing you that you have been appointed as an Assistant Teacher on Rs. 120/- per month in the scale of Rs. 120-4-140-5-165-E8-5-190-6-220 with effect from 11-6-1973".

The appointment was unconditional without reference to the subject she was expected to teach or the division of the School. The petitioner accepted the appointment by her letter dated 10th June, 1973 and has been teaching mathematics in the School ever since. On 14th June, 1981, she was promoted to the position as Supervisor for which she received Rs. 40/- per month as Special Pay. On 23rd September, 1985, she was reversed to the position of Assistant Teacher, presumably, because the post was abolished. The Resolution of the Managing Committee appointing her as Supervisor is dated 27th June 1981. Meanwhile, on 1st June, 1974 Mrs.. Malati Bhide-respondent No. 5 was appointed as Assistant Teacher in the scale of pay Rs. 165-500. She has been teaching Marathi in the higher division.

3. The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, hereinafter referred to as "the Act" and the Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981, hereinafter referred to as "the rules", came into force, respectively, on 15th July ,1981 and 16th July, 1981. It became necessary for the respondents to act in accordance with the Act and the Rules.

4. Rule 12(1) enjoins every Management to prepare and maintain seniority list of the teachers. A seniority list of teachers styled as "seniority list as on 13-7-1982", hereinafter referred to as "the first list", was prepared and circulated by the respondent No. 2 on 13th July, 1982. The list was prepared on the instructions of the respondent No. 1 (Affidavit of Smt. Menon, the respondent No. 2 paragraph 6). The petitioner is shown at Sr. No. 4 and Mrs. Malati Bhide-respondent No. 5 at Sr. No. 5. The teachers at Sr. Nos. 1, 2, and 3 are not involved in the contest and therefore, it is not necessary to make a reference to their seniority. All the teachers including the respondent No. 5 accepted the seniority list without any objection (Affidavit of Smt. Menon, the respondent No. 2 paragraph 6) and affixed their signatures in token of acceptance. The seniority list prepared and circulated by the respondent No. 2 on 13th July, 1982 was accepted by the Management (Affidavit of Smt. Menon, the respondent No. 2 paragraph 10) the respondent No. 1.

The list was eventually submitted to the Secretary the respondent No. 1, soon after 13th July, 1982 in accordance with Rule 22(1). The respondent No. 1 submitted it to the respondent No. 3 the Education Officer for approval. The list has not yet been approved.

5. Meanwhile, it was found that the respondent No. 3 did not have in his office the first list prepared on 13-7-1982. Therefore, on the request of the respondent No. 3, the respondent No. 2-the Hea

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