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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Smt. Pushpanjali Subodha Shenvi – Petitioner
Versus
Nagrik Seva Mandal – Respondent
Writ Petition No. 4832 of 2016
Decided On : 28-07-2016
MEPS ACT - SCHOOL TRIBUNAL - SENIORITY - PROMOTION - SUPERSESSION - QUALIFICATION - CATEGORY 'C' OF SCHEDULE 'F' - DATE OF APPOINTMENT - CONTINUOUS APPOINTMENT - ART TEACHER'S DIPLOMA - B.ED. QUALIFICATION - NO OBJECTION - ESTOPPEL - GOVERNMENT RESOLUTION - DATE OF BIRTH - SUPERVISOR - NOC - CAUSE OF ACTION - SCHOOL TRIBUNAL JURISDICTION - INTER SE SENIORITY - FINALITY - M.E.P.S. RULES - RULE 3(1)(B) - RULE 3(3) - RULE 5(5) - RULE 6 - RULE 12 - SCHEDULE 'B' - SCHEDULE 'F' - NOTE 4.
Fact of the Case:
The petitioner, an assistant teacher in a private secondary school, challenged the order of the school tribunal dismissing her appeal against the promotion of the respondent, another assistant teacher, to the post of headmaster. The petitioner claimed that she was senior to the respondent and should have been promoted instead. The respondent claimed that he was appointed as a drawing teacher in the school prior to the petitioner's appointment as an assistant teacher, and that his qualification as an art teacher's diploma was equivalent to a B.Ed. degree, which made him eligible for promotion to the post of headmaster.
Finding of the Court:
The court found that the respondent did not possess the requisite qualification for appointment as an assistant teacher on the date of his appointment, and that his qualification as an art teacher's diploma could not be considered as equivalent to a B.Ed. degree. The court also found that the petitioner had entered Category 'C' of Schedule 'F' of the MEPS Rules prior to the respondent, and that she was therefore senior to him. The court held that the school tribunal had erred in dismissing the petitioner's appeal, and allowed the petition.
Issues: 1. Whether the respondent was qualified as an assistant teacher on the date of his appointment. 2. Whether the respondent's qualification as an art teacher's diploma was equivalent to a B.Ed. degree. 3. Whether the petitioner was senior to the respondent. 4. Whether the school tribunal erred in dismissing the petitioner's appeal.
Ratio Decidendi: 1. The court held that the respondent did not possess the requisite qualification for appointment as an assistant teacher on the date of his appointment, as he did not have a B.Ed. degree or its equivalent qualification. 2. The court held that the respondent's qualification as an art teacher's diploma was not equivalent to a B.Ed. degree, as the two qualifications were distinct and had different requirements. 3. The court held that the petitioner was senior to the respondent, as she had entered Category 'C' of Schedule 'F' of the MEPS Rules prior to the respondent. 4. The court held that the school tribunal had erred in dismissing the petitioner's appeal, as the tribunal had failed to consider the relevant provisions of the MEPS Act and Rules, and had given undue weight to the respondent's date of appointment as a drawing teacher.
Final Decision: The court allowed the petition, set aside the order of the school tribunal, and directed the school management to promote the petitioner to the post of headmaster.
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 super-session 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.
2. Some of the facts for the purpose of deciding this writ petition are as under:-
3. 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.
4. 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.
5. 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.
6. 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.
7. 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
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