2009 Supreme(Bom) 1377

In the High Court of Bombay at Nagpur
THE HONOURABLE MR. JUSTICE R.C. CHAVAN
Mrs. Sumangala W/o. Manoharrao Sakharkar
Versus
The State of Maharashtra, through Department of Education & Others
Writ Petition No.601 of 2005
Decided on : 12-10-2009

Headnote:Maharashtra Educational Institution (Management) Act, 1976 - Sections 5 and 9 - M.E.P.S. Rules, 1981, Rules 12 and 13 - Seniority inter se - Writ petition - Challenging order of School Tribunal treating respondents 6, 7 and 8 as senior to petitioner - Petitioner qualified trained graduate appointed on 5.1.1981 - Respondents 6, 7 and 8 though appointed earlier acquired trained status on 5.6.1981 - Contention, breaks in service of petitioner - Discontinuity in services of petitioner - Held - Dispute between petitioner and respondents 6, 7 and 8 employed in private institution - Management empowered to decide seniority as per Rule - Petitioner, fully qualified on date of appointment - Respondents 6 to 8 decreed junior to petitioner - Impugned order not sustainable - Quashed and set aside - Petition allowed. - Court has carefully considered these contentions. It has to be noted that the petitioner is not serving a Government school but a private institution. The Government comes into picture only because it pays salary as well as pension to the teachers. Therefore where financial implications are involved it would be proper for the Government to control such action and to provide that the Deputy Director of Education alone would be entitled to condone the breaks for the purpose of pension. However such may not be the case in respect of condoning the breaks for the purpose of seniority. This does not have any financial implications and it is only a matter between different teachers who are serving under the same management. As an employer unless prevented from deciding the question of seniority of its teachers the management would be entitled to do so. Rule 12 of the MEPS Rules provides that the objections to seniority have to be considered by the management in the first place. It would be for the management to decide whether the breaks for the purpose of computation of seniority could be condoned by it. Sub-rule (3) of Rule 12 provides that the disputes in the matter of inter se seniority shall be referred to the Education officer for his decision. Therefore his concurrence in the condonation of breaks by the management should be conclusive of the matter thus the Education Officer gets the authority to approve condonation of break for seniority.

       At the cost of repetition let it be stated that condonation of breaks for the purpose of pension need not be mixed up for condonation of breaks for the purpose of seniority. Since in the former there is financial implications involved, the Government alone would be able to prescribe the authority which can condone the breaks for such purpose. However since no financial implication is involved in condonation of breaks for the purpose of seniority, it would be a matter between management and its employees, subject, however the resolution of the disputes by the Education Officer under Rule 12(3) of MEPS Rules.

       In the present case there can be no doubt that the petitioner was entitled to be placed in Category-C on 5.1.1981 itself when she was first appointed and from which date she is deemed to be continuously in employment. Respondents No. 6, 7 and 8 came in category C on 5.6.1981 i.e. five months after the petitioner. There was no warrant for considering the petitioner to have been appointed on 26.6.1983 the date on which she was actually given a continuous appointment, since vacation periods for which the petitioner was paid would not be treated as breaks and in any case, those breaks had been condoned by the management well as the Education Officer who had the power to condone the breaks for the purpose of computing seniority in view of the provisions of Rule 12 of the MEPS Rules the restriction for condonation of breaks by the Deputy Director alone being applicable only for the purpose of pension. The petitioner has thus to be held in continuous employment from 5.1.1981 in category C to which category respondent No. 6 to 8 joined on 5.6.1981 after the petitioner and therefore would rank junior to her.

       In view of this the impugned orders passed by the Education Officer (Secondary) Zila Parishad, Chandrapur on 30th June 2004 and 2nd February 2005 cannot be sustained and hence are quashed and set aside.