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2006 Supreme(Bom) 950
IN THE HIGH COURT OF BOMBAY
(Dr. D. Y. Chandrachud, J.)
LAKHWINDER KAUR GURAl - Petitioner.
vs.
GARISON CHILDREN EDUCATION SOCIETY
and others - Respondents.
Advocates Appeared
For petitioner: Y. R. Mehta
For respondent No.2: Uday Warunjikar
For respondent No.3: Manoj Kadam holding for V. M. Thorat
Headnote:Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act (3 of 1978) - Section 9(1)(b) - Inter se seniority - School Tribunal’s jurisdiction - Claim rejected on grounds of not falling to proper category - Challenged - Contention - Petitioner could espouse her grievance before School Tribunal - Held - Under Section 9(1)(b) Tribunal empowered to on supersession by management while considering appointment by promotion - Seniority therefore can be considered by Tribunal. - When an employee who has been superseded on the basis of a seniority list challenges the decision of supersession, it is open to the Tribunal as an incidental question to determine as to whether the seniority list on the basis of which the supersession has taken place was valid or otherwise. The same view was reiterated by a learned Single Judge of the Court in Pratibha d/o Sahebrao Patil v. Presiding Officer, School Tribunal, Amravati, 2006 (1) Mh LJ 697 : 2006 (2) All MR 141. In the present case, there has been no supersession at all since both the petitioner and the third respondent continue as assistant teachers. Therefore as a matter of first principle, it would be futile to suggest that the petitioner must await an act of supersession and then move the School Tribunal for challenging or impugning the seniority list. That apart, the petition has been admitted in the year 1999 and there is no reason why the Court should relegate the petitioner to a remedy which in any event as noted above would not be available in the absence of supersession.
Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 - Rule 12, Schedule F, Category ’C’ - M.E.P.S. Act, Section 9(1)(b) - Jurisdiction of Tribunal. - School Tribunal has jurisdiction to entertain dispute relating to seniority list as an incidental question while deciding controversy in regard to supersession.
Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 - Rule 12, Schedule F, Category ’C’ - Inter se seniority disputed - Effective role of Government Resolutions on statutory provisions - Rejection of seniority claim by Education Officer - Services rendered so far not inclusive in Category-C - Government Resolution cannot supplant provisions of Rules and can only be read in area where Rules are quite silent. - The Rules have a statutory force and character. The Government Resolution cannot supplant the provisions of the rules. It can only be read in an area where the rules are silent. In the present case, in so far as the rules are concerned, Schedule-F makes the provisions expressly clear and Category-C defines those holders of stipulated qualifications who are entitled to inclusion therein. In the circumstances, the entitlement of the petitioner which flows out of the statutory rules cannot be defeated relying on a Government Resolution. Finally, it has been urged on behalf of the third respondent that there has been a delay on the part of the petitioner. There is no merit in the submission. The petitioner has taken recourse to the remedy of objecting to the seniority list before the Education Officer. Both the petitioner and the third respondent continue to act as Assistant Teacher. In a matter where there has been a clear breach of statutory rules, resulting in a miscarriage of justice, it is difficult to hold that the petition has been delayed. Having regard to the facts and circumstances of the case, there is no delay, much less delay of a nature that would disentitle the petitioner from seeking recourse to her due entitlements.
Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 - Rule 12, Schedule-F, Category ’C’ - Inter se seniority list disputed - Seniority denied on ground of grant of D.Ed. Scale - Challenge to finding that services rendered would not fall for classification ’C’ of Schedule-F to Rules - Held - Inclusion in Category ’C’ depending on whether teacher fulfils qualification and experience stipulated and grant of higher scale cannot be a relevant consideration for fixing seniority of teachers. - The Education Officer has proceeded on the basis that the petitioner was functioning in the B.Ed. pay scale (Category-C) whereas, the third respondent was functioning in the B.Ed. pay scale (Category-C). Plainly, the Education Officer confused between the entitlement of a teacher to be placed in Category-C with the grant of the B.Ed. pay scale. The entitlement of a teacher to be placed in one of the categories included in Category-C is dependent on whether the teacher fulfils the qualifications and experience stipulated in a particular sub-category included therein. The grant of a higher pay scale is not a relevant consideration. That has indeed been the position of law settled authoritatively in the decision of a Division Bench of the Court in Saram ma Varghese v. Secretary / President, S.I.C.E.S. Society, 1989 Mh LJ 951. The Division Bench specifically held that teachers in Category ’C’ even if they hold a graduate or post graduate degree but do not hold a B.Ed./B.T. qualification would rank as untrained teachers and their seniority would be fixed in a lower rung of the ladder. It has been held that a higher pay scale is not relevant for the purpose s of fixation of seniority of teachers. A teacher with a B.A. and B.Ed. wherever he teaches will take his place according to the date of appointment and continuous officiation. In view of the judgment of the Division Bench and the plain language contained in Schedule-F, it is evident that the petitioner is entitled to be place d in Category-C from the initial date of appointment since from the date of appointment she held the qualification required for placement in that category. Categorywise the third respondent obtained the B.Ed. qualification in 1989 and it is only thereafter that he would rank in Category-C. The Education Officer’s determination is clearly in the teeth of the statutory rules.
Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 - Rule 12, Schedule F, Category ’C’ - Seniority list. - Entitlement of teacher to be placed in one of categories included in Category ’C’ is dependent on whether teacher fulfilled qualification and experience stipulate d in category and grant of higher pay scale is not relevant consideration.
2. The petitioner joined the services of the institution on 4th August, 1988. The petitioner completed her B.Sc. in 1987 and her B.Ed. in 1988. (The petitioner has also completed her M.A. in 1992, but which is not material for the present purposes).
3. The third respondent joined the school earlier than the petitioner viz. on 22nd August, 1984. At the time of joining, the third respondent only had the B.Sc. Degree qualification. The third respondent completed the B.Ed. in 1989. Therefore, the admitted facts as they stand would demonstrate that the third respondent acquired a B.Ed. Degree after the petitioner.
4. Rule 12 of the Maharashtra Employees of Private Schools Rules, 1981 requires every management to prepare a seniority list of teaching and of non teaching staff in accordance with the guidelines laid down in Schedule F. Disputes in the matter of inter se seniority have to be referred to the Education Officer for his decision. In the present case, the Education Officer (Secondary) of the Zilla Parishad enquired into the complaint filed by the petitioner on 27th October, 1997 in regard to the third respondent having been given a higher position in the seniority list. The Education Officer held that though the petitioner had acquired her B.Ed. Degree qualification in 1988, that is to say prior to the third respondent, she was not entitled to rank higher in seniority on the ground that between 4th August, 1988 and 30th September, 1991 the petitioner had been granted the D. Ed pay scale. It is only on this ground that the Education Officer has ruled that the services rendered by the petitioner during the period 4th August, 1988 and 30th September, 1991 would not fall for classification in Category C of Schedule F to the Rules. It is the correctness of this decision that falls for determination in the present proceedings.
5. Schedule F inter alia lays down guidelines for the fixation of seniority of teachers in secondary schools and junior colleges of education. Category C is as follows:
"Category C : Holders of _
M.A. /M.Sc./M.Com., B.T./ B.Ed., on its equivalent; or BA.B.T./ B.Sc./B.Com., B.T./B.Ed., or its equivalent; or B.A./B.Sc./B.Com. Dip.T. (old two years course); or B.A./B.Sc./B.Com., S.T.C./Dip. Ed./Dip.T. (one year course) with 10 years post S.T.C. etc. service.
[B.A. or its equivalent plus Senior Hindi Shikshak Sanad with five years service: or Junior Hindi Shikshak with ten years service [after obtaining both academic and training qualifications.]"
6. The B.N B.Sc./ B. Com. Degree qualification together with the B.Ed. qualification falls in Category C. Note 4 lays down that the categories which are mentioned in Schedule F represent a ladder of seniority and have been mentioned in descending order. Insofar as the petitioner is concerned, on the date of her initial appointment, i.e. 4th August, 1988, she had both the B.Sc. and B.Ed. qualification. Consequently, immediately upon her appointment, the petitioner belonged to Category C. Insofar as the third respondent is concerned he was not on the date of his initial appointment qualified to fall in Category C in the absence of a B.Ed. qualification. The Education Officer has proceeded on the basis that the petitioner was functioning in the B.Ed. pay scale (Category C) from 1st October, 1991 whereas, the third respondent was functioning in the B.Ed. pay scale (Category C) from June, 1989. Plainly, the Education Officer confused between the entitlement of a teacher to be placed in Category C with the grant of the B.Ed. pay scale. The entitlement of a teacher to be placed in one of the categories included in Category C is dependan
