1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4677 OF 2009 Kamal Dagdu Patil } Age : 59 Years, Occ. : Pensioner, } R/o : Sawkheda, Tq. Amalner, } Dist. Jalgaon. } .... PETITIONER V E R S U S 1. The State of Maharashtra } Through Secretary } School Education Department } Mantralaya, Mumbai - 32. } 2. Education Officer } Zilla Parishad, Jalgaon. } 3. Kisan Vidya Prasarak Mandal } Through its President. } Sawkheda, Taluka : Amalner, } District : Jalgaon. } 4. Kisan Daji Patil High School, } Sawkheda, Taluka : Amalner, } District : Jalgaon. } .... RESPONDENTS Mr. S.P.Brahme, Advocate for Petitioner. Mr. S.K.Tambe , Assistant Govt. Pleader for State. Mr. Mukul Kulkarni, Advocate for respondent nos. 3 & 4. 2 CORAM : P.V.HARDAS, J. & S.V.GANGAPURWALA, J. JUDGMENT RESERVED ON: 18/03/2010 JUDGMENT PRONOUNCED ON: 05/04/2010 JUDGMENT : ( PER – S.V.GANGAPURWALA, J.) 1. Rule. Rule made returnable forthwith. With the consent of the parties, this petition is heard finally at the stage of admission. We have heard Mr. S.P.Brahme, learned counsel for the petitioner, Mr. S.K.Tambe, learned Assistant Govt. Pleader on behalf of State and Mr. Mukul Kulkarni, learned counsel for respondent nos. 3 and 4. 2. The petitioner has filed the present Writ Petition seeking relief against the respondents to confer higher grade scale to the petitioner w.e.f. 14/7/1979 along with all consequential benefits and to revise the pay fixation as well as pension. 3. It is the case of the petitioner that respondent no. 4 – School is recognized and aided school. The petitioner was appointed in the said school as an Assistant Teacher on 14/7/1979. She was holding the qualification of S.S.C., D.Ed. She was in the category of trained undergraduate. It is her further case that she continued to worked with the respondent no. 4 till her superannuation. The petitioner contended 3 that the respondent no. 1 was pleased to revise the pay scale of the school teachers vide Government Resolution dated 13/5/1999. The eligibility conditions for higher grade pay scale according to the said Resolution are, : (a) The teacher must have completed 12 years of service with training qualification ; (b) The teacher must have rendered the services satisfactorily; (c ) The teacher must have undergone at least 3 weeks in-service training. The petitioner contended that in the year 1993, she completed in-service training. A Certificate is issued to that effect on 14/7/1991 the petitioner completed 12 years of service and became eligible for the higher grade scale. It is the case of the petitioner that her performance was satisfactory. No adverse remarks were ever communicated to her nor they were entered in her service book. The petitioner received increments and other consequential benefits. She was given all benefits of permanency except higher grade scale. 4. The petitioner contended that she was entitled to the higher grade scale from 14/7/1991, though she made representation 4 from time to time, but no action was taken. The petitioner is deprived of the scale of Rs. 5,000/- - 8,000/-. She was given scale of Rs. 4,500/- - 7,000/-, which was the basic and she retired in the said scale and her pension was fixed on the basis of said scale. The petitioner has received the retiral benefits. However, her last drawn salary was in the basic scale and hence her retiral benefits are affected. The petitioner further contended that the notice was issued on 14/10/2008 which was replied by the respondent no. 4 on 21/11/2008. According to the respondent no. 4, the service tenure of the petitioner was not satisfactory and that the petitioner suppressed material facts. It was contended by the respondent no. 4 that she did not challenge fixation of pay scale. 5. Respondent nos. 3 and 4 have filed affidavit in reply, wherein it has been contended by them that the Writ Petition suffers from inordinate and inexplicable delay and latches. There is no explanation offered by the petitioner in approaching the Hon’ble Court after the delay of almost 18 years. It was further contended by respondent nos. 3 and 4 that the performance of the petitioner as Assistant Teacher was not satisfactory. The petitioner was served with memos time and again pointing the deficiencies in her work. The memos were issued in the year 1981, 1985, 1986 and 1987 and also on other occasions. The Management has taken note of the unsatisfactory performance of the petitioner in her confidential report also. It is 5 further contended by the respondents that petitioner was issued notice on 30/4/1991 in respect of unsatisfactory work and the same was served on the petitioner and she has replied the same on 30/4/1991. The Management considered her reply and decided that her work is unsatisfactory and she should not be considered for higher pay scale. The Resolution of the Management is dated 25/6/1991 and the same was also duly communicated to the petitioner. Respondent nos. 3 and 4 further contended that the Government Resolution dated 15/1/1990 provides that if a certificate is not issued by the Management to the concerned teacher in respect of satisfactory work, then the teacher has remedy for filing of Appeal before the Education Officer or the Director of the Education Department within one week. The said remedy is not availed by the petitioner despite of the fact that performance certificate was not issued to her. The respondents prayed for dismissal of the Writ Petition. 6. The contour of the argument of Mr. Brahme, learned counsel for the petitioner is that at no material point of time the petitioner was communicated the adverse remarks. The show cause notice dated 30/4/1991 was the only notice received by the petitioner, which was replied by the petitioner. The same was not communication of adverse remarks, but was a show cause notice. Her performance was unblemished and that is why she was given regular increments. No enquiry was ever conducted and she can not be denied higher grade 6 scale. On the other hand, Mr. Mukul Kulkarni, learned counsel for respondent nos. 3 and 4 vehemently contended that the petition deserves to be dismissed on the ground of delay and latches. The petitioner is claiming higher grade scale w.e.f. 1991 i.e. almost after 18 years. It is also contended by him that in the year 1991, show cause notice was issued, wherein it can be seen that she was communicated that her performance is not satisfactory. He further argued that even as per the Government Resolution of 1990, the petitioner has not taken any steps for non issuance of certificate of satisfactory performance nor she has filed any Appeal for non issuance of the said certificate. For all these reasons, he submitted that the Writ Petition deserves to be dismissed. 7. Learned counsel for the petitioner to buttress his contention that the adverse remarks which are not communicated to her, can not be taken into consideration relied on the Judgment of the Apex Court in case of “ Gurdial Singh Fijji V/s State of Punjab and others - reported in [ 1979 ] 3 SCR 518 ” and the Judgment of the Apex Court in case of “ Brij Mohan Singh Chopra V/s State of Punjab reported in AIR 1987 SC 948 ”, so also relied on Rule 15 of the Maharashtra Employees of Private Schools Rules, 1981 ( For short, ‘ the Rules ’ ). As per sub rule (5) of Rule 15 of the Rules, : “ ( 5 ) Failure to write and maintain 7 confidential reports and to communicate adverse remarks to the employees within the period prescribed in sub – rule (3) shall have the effect that the work of the employee concerned was satisfactory during the period under report ”. 8. On going through the contents of the petition, the affidavit in reply and on hearing the arguments of the learned counsel of the parties, it is clear that except the letter dated 30/4/1991 in the nature of show cause notice, there is absolutely nothing on record to even suggest that the petitioner at any material point of time was ever communicated adverse remarks. The petitioner has also filed a copy of the service book which has not been disputed by the respondents and in the said copy of the service book, nowhere adverse remarks have been entered. 9. Communication of adverse remarks is not merely an empty formality. Adverse remarks are to be communicated to the concerned employee with a view that the employee shall have an opportunity to make representation against the adverse remarks and then the said representation shall be decided by the school committee. At the fag end of the career of an employee, the respondents can not simply contend that the work of the petitioner was not satisfactory. 8 10. The Government Resolution by virtue of which the petitioner was entitled to the higher grade scale of the school teachers is dated 13/5/1999. The petitioner had made a representation to the respondents on 2/1/2002 but the said representation has not been replied nor considered by the respondents and thereafter another representation was made on 12/5/2008 i.e. just before she attained the age of superannuation, but that representation was also not considered. It is only after the petitioner issued a legal notice, the same was replied and for the first time the respondents vide their reply dated 27/11/2008, came with a case that the performance of the petitioner was not satisfactory. Though the Writ Petition is filed in June, 2009 i.e. after a lapse of considerable time and although it is a fact that the petitioner did not obtain the certificate of satisfactory performance nor had filed any Appeal before the Education Officer as contemplated in the Government Resolution dated 15/1/1990, still the same can not come in the way of the petitioner for the reason that if technical consideration and the cause of substantial justice are pitied against each other, then the cause of substantial justice should prevail. Judiciary is respected not because it can deny justice on technical grounds but it can sub serve the cause of substantial justice. 11. Rule 15 of the Maharashtra Employees of Private Schools Rules, 1981 lays down a mandate on the respondents to communicate adverse remarks to the employees within stipulated period i.e. before 9 the end of August every year and it further lays down the consequence that if the same are not communicated within the period as prescribed in Sub Rule (3) of Rule 15, then the same shall have the effect that the work of the concerned employee is satisfactory during the period under report. In this case, as observed earlier, nothing is on record to suggest that adverse remarks as claimed by the respondent no. 4 were communicated to the petitioner. As such by legal fiction, it will have to be presumed that the performance of the petitioner was satisfactory. 12. More over, while considering the condition for higher grade pay scale i.e. rendering of satisfactory services, the satisfactory services should be the objective satisfaction of the authorities and not merely subjective satisfaction. The objective satisfaction of the authorities would be based on the performance which can be reflected in the confidential reports and the adverse remarks. When no adverse remarks are on record, except the solitary instance of a show cause notice and not a communication of adverse remarks, then in such circumstances, it can not be presumed that the services of the petitioner were not satisfactory, on the contrary Rule 15 mandates that non communication of adverse remarks would give rise to presumption that performance was satisfactory. 13. In view of the aforesaid premise, the petition succeeds and the Rule is made absolute in terms of prayer clause ‘ C ’ and ‘ D ’. 10 There shall be no order as to costs. At this stage, the learned Advocate for the respondent nos. 3 and 4 Shri. Mukul Kulkarni makes a request to stay the Judgment for a period of six weeks. The prayer is accordingly allowed. The Judgment is stayed for a period of six weeks from today. [ S.V.GANGAPURWALA ] [ P.V.HARDAS ] JUDGE JUDGE knp/WP 4677.09 ( J )