:1: IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 254 OF 2004 Smt. Jayanti alias Vibha S. Naik, wife of Shri Sadanand Naik, of full age, Assistant Teacher, working in Vidhya Niketan School, Corlim, Tiswadi, Goa. residing at Tamsuli Khandola, Marcela Goa. ... Petitioner V e r s u s 1. The Director of Education, Government of Goa, 18th June Road, Panaji Goa. 2. State of Goa, through its Chief Secretary Secretariat, Panaji Goa. 3. The Corlim Educational Society, a Society registered under the Societies Registration Act with its office at Corlim, Tiswadi, Goa through its Manager, C/o Vidhya Niketan High School, Corlim, Tiswadi Goa. ... Respondents Mr. P. A. Kholkar, Advocate for the Petitioner. Mr. S. Bandodkar, Additional Government Advocate for the Respondent Nos.1 & 2. Mr. Pavithran A. V., Advocate for the Respondent No.3. CORAM : D. G. KARNIK, & F.M. REIS, JJ. DATED : 30 th SEPTEMBER, 2010. :2: ORAL JUDGMENT ( Per D. G. KARNIK, J ) By this petition, the petitioner challenges the communication dated 18th March, 2002 granting her senior scale of pay w.e.f. 24th January, 2002 and prays for a direction to grant her senior scale of pay w.e.f. 10th June, 1998 when she had completed 12 years of service. 2. The petitioner was appointed as a trained assistant teacher in a school run by the respondent no.3 society on 10th June, 1986. She was granted a senior pay scale with effect from 24th January, 2002. She claimed that she was entitled to a senior pay scale w.e.f. 10th June, 1998 in accordance with a decision of the Government dated 12th August, 1987, copy of which is annexed at Exhibit-D to the petition. On denial of her request, the petitioner made a representation to the Director of Education, the respondent no. 1 to issue a direction to the respondent no.3 to grant her senior pay scale w.e.f. 10th June, 1998. The respondent no. 1 sent the said representation to the respondent no.3 for comments. The respondent no.3 replied to the respondent nos. 1 and 2 that the petitioner was not entitled to the senior pay scale w.e.f. 10th June, 1998 on two grounds namely (1) the petitioner had not got regularised her unauthorised absence during her probation period by applying for leave with supporting documents for the period of absence which amounted to break in service, (2) the petitioner had not acquired the mandatory 21 days in service educational training until 17th February, 2002. Hence, she was not entitled :3: to the revised pay scale until 17th February, 2002. In view of the said communication, the respondent no. 1 vide his letter dated 29th October, 2003 rejected the petitioner's representation to grant her senior pay scale w.e.f. 10th June, 1998 as contended by her. That decision is impugned in this Writ Petition. 3. The State Government vide its communication dated 12th August, 1987 had informed all concerned its decision regarding grant of revised pay scale admissible to the teachers. The communication says that a teacher shall be entitled to a senior pay scale after completion of 12 years of service. The contention of the petitioner is that she is entitled for the pay scale on completion of 12 years of service. The condition nos. (i) and (iv) appearing in para 3 of the communication are material for our purpose and read thus : “i) While senior scale will be granted after 12 years to Primary School Teachers, Trained Graduate Teachers/Headmasters of Primary Schools and Post Graduate Teachers/Headmasters of Middle Schools, the selection scale will be granted after 12 years service in the senior scale of the respective cadre. For the Vice-Principals/Headmasters of Secondary Schools, there will be only Senior Scale after 12 years and no selection scale. iv) Every teacher would be required to participate in and inservice training programme :4: of at least three weeks duration before he/she/crosses an EB or is promoted to senior scale or selection scale, i.e., once in every six years; provided that where arrangements for such training cannot be made, the appointing authority may exempt a category of teachers for a specific period of time.” 4. The first condition required to be fulfilled for grant of senior pay scale is completion of 12 years in service. Since it is the contention of the Respondent no.3 that the petitioner had taken unathorised leave during the period of probation resulting in break of service we would consider whether the leave of the petitioner was unauthorised. The contention regarding the leave during the probation period was subject matter of Writ Petition No. 252 of 1992 between the petitioner and the respondents. Therein the contention of the petitioner was that she was in family way and was entitled to the maternity leave even during the period of probation. Her contention was accepted by the Court in its decision dated 23rd July, 1992 and the Court observed thus : “..........We are, therefore, clearly of the opinion that the petitioner was entitled to 90 days of leave on the head of 'maternity'. It has been shown to us that by the Rules of 1972 a female teacher is entitled to enjoy half of the maternity leave, that is, 45 days for pre- delivery period and 45 days for post-delivery period.” :5: Thereafter this Court held that the petitioner's leave be treated as maternity leave. In our view, therefore, the first ground of rejection by the management regarding the break of service is required to be rejected. 5. The second contention of the respondent no.3 is that the petitioner was required to undergo 21 days “in service training”, every six years. By filing an affidavit-in-rejoinder, the petitioner has stated that there were no “in-service training” facility available till early 1990. She has further stated that she had never refused to undergo “in service training” whenever she was deputed for such training. It is her contention that she was never deputed by the management for “in service training” and, therefore, she could not undergo the training. The contention does not appear to have been specifically considered by the respondents. The impugned order dated 29th October, 2003 only says that the petitioner's request for a revised pay scale w.e.f. 10th June, 1998 cannot be considered since she was not eligible for senior pay scale as per the Rules. The specific case of the petitioner is that there were no training facilities available till 1990 and her contention is that thereafter she was not deputed for the training by the management itself which cannot take advantage of its own wrong. This contention has not been considered by the respondents. In the circumstances, it is necessary to issue direction to the respondents to reconsider the case of the petitioner qua second :6: contention raised by the management of not undergoing the in service training and the petitioner's reply thereto. It is clarified that the first condition about the petitioner having availed unauthorised leave during the period of probation no longer survives and is answered in favour of the petitioner. We accordingly pass the following order : O R D E R The impugned communication dated 18th March, 2002 is set aside and the respondents are directed to re-consider the petitioner's case afresh in the light of the observations made herein and decide it afresh. The respondents shall take the decision within six months. D. G. KARNIK, J F.M. REIS, J at*