- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.914 OF 2008 Lata P.Shinde, ) aged 47 years, residing at 2143, ) Gangabai Mansion, Keni Road, ) Bhoiwada, Parel, Mumbai-400 012. )..Petitioner Vs. 1. Swami Muktanand High School, ) Through the Principal, ) Subhashnagar, Chembur, ) Mumbai - 400 071. ) 2. The Management, ) Subhashnagar Education Society, ) Subhashnagar, Chembur, ) Mumbai - 400 071. ) 3. The Education Inspector, ) Greater Mumbai, North Zone, ) Government Building No.2, ) Second Floor, R.C.Marg, ) Chembur, Mumbai - 400 071. ) 4. Deputy Director of Education, ) Greater Mumbai Jawahar Bhawan, ) Marine Drive, Charni Road, ) Mumbai. ) 5. D.J.Pawar, ) Swami Muktanand High School, ) Through the Principal, ) Subhashnagar, Chembur, ) Mumbai - 400 071. )..Respondents -- Shri Alok Gupta i/b Mihir Desai for the Petitioner. None for the Respondent Nos.1 and 2. Ms S.M.Dandekar, AGP for Respondent Nos.3 and 4. Shri Sunil Dighe for the Respondent No.5. -- - 2 - CORAM : SRI R.M.S.KHANDEPARKAR & SRI A.A.SAYED, JJ DATED : 11TH AUGUST, 2008 JUDGMENT : ( PER SRI R.M.S.KHANDEPARKAR, J ) JUDGMENT : ( PER SRI R.M.S.KHANDEPARKAR, J ) JUDGMENT : ( PER SRI R.M.S.KHANDEPARKAR, J ) 1. Heard. Rule. By consent, the rule is made returnable forthwith. 2. The petitioner challenges the order dated 12th September, 2007 passed by the Respondent No.3 in relation to the seniority of the petitioner and the respondent No.5. The grievance of the petitioner is that all throughout since 1986, the petitioner was shown as senior to the respondent No.5 in "C" category. However, the said seniority is sought to be changed and the petitioner is sought to be downscaled by one rank below the respondent No.5 for the first time in September, 2007 and that too without hearing the petitioner and in contravention of the law relating to the seniority. 3. Few undisputed facts which are relevant for the decision are that the petitioner joined the respondent-school as a temporary Assistant Teacher on 16th June, 1980. The petitioner was confirmed and - 3 - made permanent teacher after completion of two years i.e. with effect from 16th June, 1982. The petitioner acquired B.Ed. decree on 25th May, 1985 thereby qualifying to be a trained teacher in grade "C". The respondent No.5 joined the respondent-school as a trained teacher in grade "C" on 21st June, 1985. The seniority list was issued by the respondent-school disclosing the petitioner in grade "C" above the respondent No.5 in the year 1985-1986. The payscale of the petitioner was raised to trained graduate scale upon creation of a trained category teaching post with effect from 14th January, 1988. For a period of 20 years, the said seniority list continued disclosing the name of the petitioner above the name of the respondent No.5. By an order dated 12th September, 2007, the respondent No.3 held that the respondent No.5 is senior to the petitioner on the ground that the date of appointment of the respondent No.5 in the trained graduate class was 21st June, 1985 whereas the petitioner was appointed from the trained non- graduate class to trained graduate class on 16th November, 1987. Hence, the present petition. 4. While assailing the impugned order, the learned advocate for the petitioner placing reliance in the decisions of a division bench of this Court in - 4 - the matter of Saramma Varghese v. Saramma Varghese v. Saramma Varghese v. Secretary/President, S.I.C.E.S. Society and Ors., Secretary/President, S.I.C.E.S. Society and Ors., Secretary/President, S.I.C.E.S. Society and Ors., reported in 1989 Mah.L.J. 951, Dominic Araujo v. Dominic Araujo v. Dominic Araujo v. State of Goa & Ors., State of Goa & Ors., State of Goa & Ors., reported in 1989 Mh.L.J.538, and Pramod Devaram Bhangale v. State of Maharashtra & Pramod Devaram Bhangale v. State of Maharashtra & Pramod Devaram Bhangale v. State of Maharashtra & Ors., Ors., Ors., reported in 2006(44) Mh.L.J.110, submitted that though upgradation of payscale of the petitioner was from 16th November, 1987, the petitioner acquired the qualification of a trained graduate teacher on 25th May, 1985, much prior to the entry of the respondent No.5 in the service of the respondent-school. The delay in upgrading the payscale of the petitioner was on account of non availability of vacant post for trained graduate teacher in the respondent-school inspite of the fact that the petitioner had acquired the requisite qualification of a trained graduate teacher. Besides, it is further contention on behalf of the petitioner that the annual seniority list was finalised in the year 1986-87 wherein the petitioner was listed above the respondent No.5 and the said seniority list continued upto the year 2006-2007 was to the knowledge and acceptance thereof by the respondent No.5 without any objection. The seniority list was duly signed for all these years by the respondent No.5 without any grievance being made about the seniority of the petitioner above the respondent - 5 - No.5. In these circumstances, there was no justification to alter the seniority list after a period of 20 year. It is further contention on behalf of the petitioner that the alteration has been brought in the seniority list without even affording an opportunity of being heard to the petitioner. The impugned order has been passed ex-parte without any justification and no notice was ever served upon the petitioner before passing the said order, and therefore, the petitioner had no opportunity to putforth her case before the respondent No.3 in relation to the seniority dispute, if any, raised by the respondent No.5. Downscalling the petitioner’s rank in the seniority list without giving her an opportunity to represent herself and to putforth her case is totally illegal and discloses arbitrary exercise of powers by the respondent No.3. It is further contention on behalf of the petitioner that in terms of the Maharashtra Employees of Private Schools (Conditions of Services) 1981 Rules, for short "the said Rules", the seniority of primary school teachers has to be based on the date of joining of service and continuous officiation, and further, once a person is a graduate teacher with B.Ed. degree, he or she should rank in seniority according to the date of continuous officiation and that has been laid down by - 6 - the division bench in Saramma Varghese’s case (supra). Saramma Varghese’s case (supra). Saramma Varghese’s case (supra). Applying the same to the petitioner’s case, the respondent No.5 could not have downscaled the rank of the petitioner in the seniority list in comparison to the respondent No.5. 5. On the other hand, it is the case on behalf of the respondents that the respondent No.5, right from the date of entry in the service of the respondent-school, was in the Category "C" on account of being duly trained graduate teacher, whereas, the petitioner could not be listed in Category "C" till 16th November, 1987, and therefore, the petitioner cannot claim to be senior to the respondent No.5. Irrespective of the fact that the petitioner had obtained B.Ed.degree on 25th May, 1985, she continued to be in category "D" and got entry to "C" category for the first time on 16th November, 1987, and therefore, she cannot claim to be senior to the respondent No.5. Since all along for last 20 years, injustice was sought to be done to the respondent No.5, the same was sought to be undone by the impugned order, and therefore, no fault should be found with such order. Even though, no hearing was given to the petitioner by the respondent No.3 before passing the impugned order, the fact remains that even in the - 7 - petition, the petitioner has not been able to make out any case on merits which could disclose the petitioner to be senior to the respondent No.5. The learned advocate appearing for the respondent No.5 has sought to rely upon the decisions of the Division Bench of this Court in Ashok Narayan Sathe v. Education Ashok Narayan Sathe v. Education Ashok Narayan Sathe v. Education Officer & Ors., Officer & Ors., Officer & Ors., reported in 2007(3) Bom.C.R. 241, Madhav Govindrao Budhe v. Education Officer, Zilla Madhav Govindrao Budhe v. Education Officer, Zilla Madhav Govindrao Budhe v. Education Officer, Zilla Parishad, Nagpur & Ors., Parishad, Nagpur & Ors., Parishad, Nagpur & Ors., reported in 1994(1) Mh.L.J.42, Rekha Lakhi Totlani v. Sind Brahma Sikhya Rekha Lakhi Totlani v. Sind Brahma Sikhya Rekha Lakhi Totlani v. Sind Brahma Sikhya Sammelan & Ors., Sammelan & Ors., Sammelan & Ors., reported in 2007(1) Mh.L.J. 225, the decision of the learned Single Judge of this Court in Lakhwinder Kaur Gurai v. Garison Children Education Lakhwinder Kaur Gurai v. Garison Children Education Lakhwinder Kaur Gurai v. Garison Children Education Society & Ors., Society & Ors., Society & Ors., reported in 2006(5) Mh.L.J. 332, and of the Full Bench of this Court in Vaijanath s/o Vaijanath s/o Vaijanath s/o Tatyarao Shinde v. Secretary, Marathwada Shikshan Tatyarao Shinde v. Secretary, Marathwada Shikshan Tatyarao Shinde v. Secretary, Marathwada Shikshan Prasarak Mandal, Devgiri College Campus, Aurangabad & Prasarak Mandal, Devgiri College Campus, Aurangabad & Prasarak Mandal, Devgiri College Campus, Aurangabad & Others, Others, Others, reported in 2006(6) Mh.L.J. 682. 6. As already observed above, the facts, as narrated herein, are not in dispute. It is a matter of record that for 20 years, the petitioner was shown senior to the respondent No.5 in the seniority list of the teachers in the respondent-school. The said seniority list was to the knowledge of the respondent No.5, apart from the fact that he had duly signed the - 8 - same. At no point of time during these 20 years, there is anything on record which could disclose that the respondent No.5 had made any grievance about such seniority or had ever made any complaint against the said seniority list to the competent authority. In the background of these undisputed facts, as rightly submitted by the learned advocate for the petitioner, there was no justification for the respondent No.3 to alter the seniority list without affording any opportunity of being heard to the petitioner. It is settled law that once the seniority list is finalised and is continued for number of years, any alteration therein can be only after hearing all the persons who can be aggrieved by such alterations. Once the person shown senior to another is to be downscaled in rank, certainly, he would feel aggrieved by such decision. Considering the same, it was absolutely necessary for the respondent No.3 to give an opportunity to the petitioner of being heard in the matter and thereafter, after taking into consideration the rival contentions, to pass an appropriate reasoned order in that regard. The decision to change the seniority to the prejudice of the petitioner without hearing her in the matter, discloses total arbitrariness on the part of the respondent No.3 in passing the impugned order and, therefore, without going into all other - 9 - contentions which are sought to be raised and leaving those contentions to be canvassed before the respondent No.3, the impugned order needs to be set aside and the matter to be remanded to the respondent No.3 to decide the seniority in relation to the petitioner and the respondent No.5 afresh, bearing in mind the law laid down in all the above referred decisions. We make it clear that we have not expressed any opinion on any of the points sought to be raised on behalf of the parties to the petition and all the issues are kept open. In case, the decision happens to be adverse to the interest of the petitioner, the same should not be given effect to for a period of eight weeks from the date of service of the order by the respondent No.3 upon the petitioner. 7. Being so, on the limited ground as stated above, the impugned order is hereby quashed and set aside. The matter is remanded to the respondent No.3 to decide the issue of seniority afresh bearing in mind the observations hereinabove. The rule is made absolute accordingly with no order as to costs. ( R.M.S.KHANDEPARKAR, J ) - 10 - ( A.A.SAYED, J )