1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD WRIT PETITION NO. 8603 OF 2009 1 Prakash Bhaurao Parmeshwar, age 40 years, occ. Service, r/o Plot No. 78, Mahalaxmi Colony, CIDCO, N-2, Aurangabad, Tq. And Dist. Aurangabad ...Petitioner VERSUS 1 The State of Maharashtra, through its Secretary, Department of School Education, Mantralaya, Mumbai, 2 The Director of Education (Primary), Maharashtra State, Pune, 3 The Education Officer (Primary), Zilla Parishad, Aurangabad, 4 Unnati Shikshan Sanstha, N-2, Aurangabad, through its Secretary, 5 Dnyanesh Vidya Mandir (Secondary School), N-2, CIDCO, Aurangabad, through its Head Master, 6 Shailendra s/o Bhimsen Vitore, age 27 years, occ. Service-Clerk, Dnyanesh Vidya Mandir (Secondary School), N-2, CIDCO, Auragnabad ...Respondents 2 ..... Shri B.L.Sagar Killarikar, advocate for the petitioner Shri R.P.Phatke, A.G.P. for respondent nos. 1 and 2 Smt. Manjusha A. Deshpande, advocate for respondent no.3 Shri R.N.Dhorde, advocate holding for Shri N.T.Tribhuwan, advocate for respondent no.4 Shri S.S.Dambe, advocate for respondent nos. 5 and 6. ..... CORAM : S.B.DESHMUKH AND SHRIHARI P.DAVARE, JJ. DATE OF RESERVING THE JUDGMENT : 29.09.2010 DATE OF PRONOUNCING THE JUDGMENT : 06.10.2010 J U D G M E N T : (Per Shrihari P. Davare, J.) Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, the petition is taken up for final hearing at the stage of admission. 1 By the present petition, filed under Article 226 of the Constitution of India, the petitioner prayed that the impugned order dated 1.9.2009, passed by the Appellate Authority and Education Officer (Primary), Zilla Parishad, Aurangabad, dismissing the appeal of the petitioner herein Exh. 'G' be quashed and set aside. 2 The petitioner herein was appointed as a Junior Clerk in 3 the school of respondent no.4 Society by order dated 19.6.11991, and subsequently, his appointment was approved and came to be confirmed by respondent no.4 Society. Respondent no.1 is the State of Maharashtra. Respondent no.2 is the Director of Education (Primary). Respondent no.3 is the Education Officer (Primary) and Respondent no.4 is Unnati Shikshan Sanstha i.e. Society, which runs the school, namely Dnyanesh Vidya Mandir (Secondary School) I.e. Respondent no.5; and respondent no.6, namely Shailendra Bhimsen Vitore came to be appointed in the said school in the year 1993. 3 It is the contention of the petitioner that respondent no.4 Society was running Schools consisting of Primary (1 st to 7 th standards) and Secondary (8 th to 10 th standards) Sections in the same premises. Considering the strength of students and number of divisions, there were two posts of Clerk and three posts of Peon, which were sanctioned by the Authorities of respondent nos. 1 and 2. No separate non-teaching staff was sanctioned to respondent no.5 School i.e. Secondary Sections (8 th to 10 th standards) of Dnyanesh Vidya Mandir. 4 The petitioner also contends that the petitioner was serving in the Primary School (1 st to 7 th standards) of respondent no. 4 Society and was the senior most Clerk, since he was appointed on 19.6.1991. However, the said Primary School comprising of 1 st to 7 th 4 standards run by respondent no.4 Society came to be de-recognized by order dated 7.4.2005, passed by respondent no.3 Education Officer (Primary). The said order of de-recognition was challenged in the appeal filed before the Deputy Director of Education. However, the Deputy Director of Education, Aurangabad Division, Aurangabad, by order dated 9.5.2005, rejected the appeal upholding the order dated 7.4.2005 de-recognizing the primary school of respondent no.4 Society, and copy of the said order dated 9.5.2005 is annexed at Exh. 'B' (page 17). 5 It is further the contention of the petitioner that prior to taking decision of de-recognition of primary school (1 st to 7 th standards), respondent no.3 Education Officer (Primary) attached Middle School (5 th to 7 th standards) to Secondary School by its order dated 15.5.2004 with specific condition (clause 5) that in the event of reduction of number of non-teaching employees from Primary Section of the School, the same be transferred to Secondary School Section, copy of the said order dated 15.5.2004 is annexed at Exh. 'C'. 6 The petitioner also contends that on account of de- recognition of Primary Section of the then Dnyanesh Vidya Mandir School, many divisions came to be closed, and therefore, in addition to teaching employees, non-teaching employees also came to be 5 declared surplus. However, since Middle School (5 th to 7 th standards) came to be attached to respondent no.5 School (Secondary Section of School) permissible non-teaching staff was to be retained and rest to be declared surplus, to be absorbed in pursuance of Rule 26 of the Maharashtra Employees of Private Schools, (Conditions of Service) Rules, 1981 (hereinafter referred to as “the Rules of 1981”). 7 It is further the contention of the petitioner that the said issue of declaration of surplus employees is to be decided in pursuance of ‘last come first go’ principle. It is also the contention of the petitioner that as far as post of Clerk is concerned, the petitioner is the senior employee serving in the institution since June 1991. However, another Clerk i.e. respondent no. 6, who is the son of the Secretary of respondent no.4 Society, was favoured by retaining him in the school than relieving, being surplus employee, and said approach of respondent no.4 Society was hostile, discriminatory and violative of Article 14 of the Constitution of India. 8 It is also the case of the petitioner that his name was communicated to respondent nos. 2 and 3 as surplus employee, to be absorbed in services. Accordingly, in pursuance of directions of respondent no.3 Education Officer (Primary), petitioner came to be absorbed in services at Shri Sane Guruji Primary School Kannad, District Aurangabad since December 2006 and the petitioner is 6 serving in the said school presently, and copy of the said order of absorption dated 5.12.2006 is annexed at Exh. ‘D’. 9 However, the decision of respondent nos. 3 and 4 holding the petitioner as surplus and retaining respondent no.6 at respondent no.5 School, though he was junior to the petitioner, was challenged by the petitioner by preferring Writ Petition No. 6967 of 2009. Respondent no.4 Society disputed the seniority of the petitioner in the said petition. Accordingly, the said petition came to be disposed of by observing that the petitioner should approach to the Education Officer and further the Education Officer was directed to decide the said issue expeditiously and copy of the said order dated 5.2.2007, passed in the said Writ Petition is annexed at Exh. ‘E’. 10 Pursuant to the said order, the petitioner submitted his claim by way of appeal before respondent no.3 Education Officer (Primary) with a prayer to decide the issue of seniority. Respondent no.4 also filed it’s written submissions/say on 30.4.2007, and accordingly, after hearing the parties, respondent no.3 Education Officer (Primary) decided the said matter by passing the order on 1.9.2009, thereby dismissed the said appeal and claim of the petitioner, and copy of the said order is annexed at Exh. ‘G’ (page 35). 7 11 Being aggrieved and dissatisfied by the said order, passed by respondent no.3 Education Officer (Primary), Aurangabad, the petitioner has preferred the present petition challenging the same and also praying for quashment thereof. 12 Respondent no.3 filed the affidavit in reply, which was sworn in by Sudhakar Manohar Banate, presently working as Education Officer (Primary), Zilla Parishad, Aurangabad and thereby denied the averments and contentions of the petitioner in this petition unless specifically admitted therein. Respondent no.3 submitted that Primary Section and Secondary Section are two different institutions and there are two separate Education Officers for Primary Section and Secondary Section. Considering the same, the teachers from the de-recognized Primary Section were absorbed on the vacant post in the Zilla Parishad. However, there is no provision to absorb the non-teaching staff in Zilla Parishad Schools as per the norms in that respect. Hence, it was necessary to absorb the petitioner in any of the Private aided Primary School. However, same could not be done for want of vacancies within Aurangabad District. Still one post of Junior Clerk became vacant from Sane Guruji Primary School at Kannad, District Aurangabad and considering that the said school is aided primary school, the claim of the petitioner was considered for the same, and accordingly, an order dated 5.12.2006 also came to be issued in that respect and pursuant to the said 8 order, the petitioner joined on 30.12.2006 and continued to work there. 13 Respondent no.3 also states that as regards the dispute raised by the petitioner in respect of seniority of non-teaching staff from Primary Section and Secondary Section of the School run by respondent no.4 Society, it is the contention of the petitioner that respondent no.6, who was appointed in the respondent no.5 Secondary School as Junior Clerk on 14.6.1993, is junior to the petitioner, and therefore, he should have been declared surplus, and consequently, should have been absorbed in some other School. To substantiate the said contention of the petitioner, he relied upon Note 1 of Clause No. 3 of Schedule ‘F’ of the Rules of 1981. It is also the contention of the petitioner that as per the combined seniority list of Primary Section and Secondary Section, the petitioner stands senior to respondent no. 6, and therefore, he should have been accommodated in the respondent no.5 School itself and respondent no. 6 should have been declared surplus. In the said context, respondent no.3 submits that the Primary and Secondary Sections are completely different establishments, for which there are two separate Education Officers and separate Pay Units, and therefore, the said contention of the petitioner cannot be accepted. 14 Respondent no.3 further states that when a particular 9 Management runs more than one School, the seniority list shall be combined of all the persons working in that cadre in all the Schools of the Management. Scheduled ‘F’ contemplates the combined seniority list of the persons in the cadre working in all the Primary Schools under the same Management as one Section and combined seniority list of the persons in the cadre working in all such Secondary Schools, if there are more than one Primary Schools or Secondary Schools. In substance, combined seniority list, as stated above, relates to Primary Section in respect of all Schools run by particular Management. Hence, respondent no.3 submits that reliance placed by the petitioner in respect of the concerned Rules of 1981 and Schedule ‘F’ is misplaced. 15 It is also the contention of respondent no.3 that though clause no. 3 of Schedule ‘F’ of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 provides that common seniority of the non-teaching staff working in all schools run by the same Management shall be maintained, however, respondent no.3 states that since it does not contemplate one Primary School and one Secondary School run by the same Management, and therefore, the said Rule cannot be attracted in the present case. Respondent no.3 gives emphasis on the aspect that Primary School and Secondary School are two different establishments, their Education Officers and Pay Units are also different. Hence, 10 common seniority list of Primary School and Secondary School cannot be maintained. Moreover, the Primary School as well as Secondary School run by respondent no.4 have two distinct approved staffing pattern. As per the approved staffing pattern, one post of Clerk from each of the Primary Section as well as Secondary Section has been approved, and accordingly, respondent no.4 made the appointments. Accordingly, respondent no.3 states that although the petitioner was declared surplus on 1.5.2005 on account of de-recognition of Primary School in which he was working, he has been absorbed in the other aided Primary School, namely Sane Guruji Primary School, Kannad, by order dated 5.12.2006, and hence, he should not have any grievance about being declared as surplus. Hence, respondent no.3 submits that present petition bears no substance and same is devoid of any merits and same be dismissed. 16 Respondent no.4 also filed affidavit in reply, which was affirmed by Minakshi d/o Bajarang Lachure, Secretary of respondent no.4 and denied the averments made by the petitioner in the present petition unless admitted specifically therein. 17 Respondent no.4 states that present petition is not maintainable at all, since the petitioner has been already given appointment in Sane Guruji Primary School, Kannad, District 11 Aurangabad and has been already absorbed therein. Respondent no.4 further states that the Primary School and Secondary School are two different departments having their separate identity thereto. In the said context, respondent no.4 states that the appointment of present petitioner was in Primary Section since beginning as non- teaching staff i.e. Junior Clerk, and the petitioner used to draw salary from the Primary School of respondent no.2, as well as the attendance sheet showing the name of the petitioner was also in Primary School; whereas name of respondent no.6 was reflected in the records of Secondary School. 18 Respondent no.4 also states that it has maintained the seniority list separately for Primary and Secondary Schools respectively for teaching and non-teaching staff, wherein the name of the petitioner is shown at Sr. No. 29, and copy thereof is annexed thereto at Exh. ‘R-4’. It is also stated by respondent no.4 that since respondent no. 6 was appointed in Secondary School, his name appeared in the seniority list prepared by respondent no.5 i.e. Head Master of Dnyanesh Vidya Mandir (Secondary School). Hence, it is submitted that the allegation of the petitioner that common seniority list was maintained by the Management cannot be sustained in the eyes of law, and copy of the said seniority list prepared by the Head Master from the year 1993-94 till 2006-07, is annexed thereto at Exh. ‘R-5’ collectively. 12 19 Respondent no.4 further states that the Deputy Director of Education, Aurangabad cancelled the recongnition of Primary School of respondent no.4 by order dated 9.5.2005 and till that period the petitioner was working as Clerk and was drawing salary from Primary School (1 st to 4 th standards). Thereafter as per the order of merger of 5 th to 7 th standards under Secondary School, 11 teachers working under Primary School have been absorbed in Secondary School for teaching to the students of 5 th to 7 th standards, and letter for taking out the salary of those teachers was sent to the Superintendent, Salary and Provident Fund Section (Secondary School), Zilla Parishad, Aurangabad on 20.7.2004, and copy of same is annexed at Exh. ‘R-8’. However, it is stated by respondent no.4 that there was only one post of Clerk in Primary Section and one post of Secondary/High School sanctioned since beginning of the School and after merger of 5 th to 7 th standards in High School, as there was no provision of transfer of non-teaching staff i.e. Clerk and Peon from Primary Section to Secondary Section/High School, hence, the posts of Clerk and Peon of Primary Section (1 st to 4 th standards) were not shifted to Secondary School. It is further stated that all the staff of de-recognized Primary School i.e. all the 14 primary teachers and one Clerk i.e. the present petitioner and one Peon, who were working in Primary Section have been absorbed by the Education Officer, Zilla Parishad (Primary) in different Primary 13 Schools, and copy of the order of Chief Executive Officer, Zilla Parishad is annexed thereto at Exh.’R-9’. 20 Accordingly, respondent no. 4 submitted that since the petitioner has been appointed in Primary School and since Primary School of respondent no.4 was de-recognized with effect from 30.4.2005, the petitioner cannot compare his seniority with respondent no.6, as the appointment of respondent no.6 is in Secondary School only. Moreover, since separate seniority lists have been maintained for Primary School teaching and non-teaching staff and for Secondary School teaching and non-teaching staff, the petitioner cannot say that he is senior to respondent no. 6, as both have two separate Sections, since their group approval (Sanch Manyata) of both Sections is different since beginning. 21 Thus, respondent no.4 urged that the order passed by the Education Officer (Primary), Aurangabad is just and proper and no interference therein is warranted, as sought for by the petitioner, in the present petition, and present petition be dismissed accordingly. 22 Respondent no. 6 also filed affidavit in reply and opposed the present petition vehemently and submitted that he was appointed in Secondary School of respondent no.4 School i.e. Dnyanesh Vidya Mandir High School i.e. respondent no.5 in the year 1993; whereas 14 the petitioner was appointed in Primary School of respondent no.4. He also states that in Zilla Parishad, Primary Education Section and Secondary Education Section are two different departments having their separate identity and the Primary Section is separate from Secondary Section. Respondent no. 6 further submits that till the date of de-recognition of the School, the present petitioner was working in the Primary School and after de-recognition of the School, he has been absorbed by the Education Officer (Primary) in Sane Guruji Primary School, Kannad, District Aurangabad by appointment order dated 15.12.2006. It is also stated by respondent no.6 that the appointment of the present petitioner was in Primary School as non-teaching i.e. Junior Clerk since beginning and he used to draw his salary from the Pay Unit of Zilla Parishad; whereas respondent no., 6 used to draw his salary from the Pay Unit of Secondary Section. 23 Respondent no.6 further points out that Unnati Shikshan Sanstha i.e. respondent no.4 has maintained separate seniority lists for Primary School and Secondary School respectively for teaching and non-teaching staff for the year 2004-05, and copy thereof is produced at Exh. ‘R-7’, wherein name of the petitioner is shown at Sr. No. 29. Moreover, it is also stated that since respondent no. 6 was appointed in Secondary School, his name appeared in the seniority list prepared by respondent no. 5 i.e. Head Master of 15 Dnyanesh Vidya Mandir (Secondary School). Hence, it is submitted that the contention of the petitioner that common seniority list was maintained by the Management does not sustain. 24 Moreover, respondent no. 6 submits that when the Primary School (1 st to 4 th standards) which was de-recognized in the year 2005, even that time also the present petitioner did not raise any objection regarding seniority, but the petitioner filed an application for absorption, and accordingly, he was absorbed in service of Primary School, as mentioned herein above. 25 Accordingly, respondent no. 6 submits that since the petitioner has been appointed in Primary School and since the Primary School of respondent no.2 has been de-recognized with effect from 30.4.2005, the petitioner cannot compare his seniority with respondent no. 6, as the appointment of respondent no.6 is in Secondary School only. Moreover as already stated, since separate seniority lists have been maintained for Primary School teaching and non-teaching staff and for Secondary School teaching and non- teaching staff, the petitioner cannot claim that he is senior to respondent no. 6, since both belong to two different Sections. Thus, respondent no. 6 urged that the impugned order passed by the Education Officer (Primary), Aurangabad is just and proper and submitted that no interference therein is called for, and consequently, 16 present petition deserves to be dismissed. 26 We have perused the contents of the present petition, it's annexures, contents of the affidavits in replies filed by respondent nos. 3, 4 and 6, as well as perused the relevant provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (the Rules of 1981), and more particularly, Clause 3 Schedule 'F' thereof and heard the submissions advanced by the learned counsel for the parties anxiously. 27 At the out set, it is necessary to reproduce Clause 3 of Schedule 'F' of the Rules of 1981, which reads as under :- “ SCHEDULE “ F ” 1) ................ .......... ......... ................. ........... 3) Guidelines for fixation of seniority of non- teaching staff :- Clerks :- The clerical and supervisory posts in the channel of promotion comprise Junior Clerk, Senior Clerk, Head Clerk and Superintendent. Seniority of Junior Clerks in a School or Schools shall be determined on the basis of the date of appointment of the persons concerned. The post of Senior Clerk shall be filled in by promotion of seniormost Junior Clerk. The posts of Head Clerk 17 and Superintendent shall be filled in respectively by promotion of seniormost Senior Clerk and seniormost Head Clerk, respectively. ......... ................. ........... “ 28 Keeping in mind the said legal provision, and coming to the facts of the present case, admittedly the petitioner herein was appointed as a Junior Clerk in Primary School; whereas respondent no. 6 was appointed as a Clerk in the Secondary School, and Primary Section and Secondary Section are completely two different establishments, for which there are two separate Education Officers and separate Pay Units, as well as when a particular Management runs more than one School, seniority list for particular cadre shall be combined of all persons in that cadre working in all the Schools of the Management, and accordingly, Schedule 'F' contemplates, combined seniority list of the persons in the cadre working in all Primary Schools and combined seniority list of the persons in the cadre working in all Secondary Schools, under the same Management as one Section, if there are more than one Primary or Secondary Schools. In substance, combined seniority list, as stated herein above, relates to Primary Section in respect of all Schools run by a particular Management, and therefore, the reliance placed by the petitioner in respect of the Rules of 1981 and Clause 3 of Schedule 'F' thereof is misplaced. 18 29 Moreover, learned counsel for respondents canvassed that, although Clause 3 of Schedule 'F' of the Rules, 1981 provides that common seniority of non-teaching staff working in all the Schools run by the same Management shall be maintained, but since it does not contemplate one Primary and one Secondary School run by the same Management, the said Rule cannot be attracted in the present case. Moreover, the learned counsel for respondents also urged that since Primary Section and Secondary Section are completely two different establishments, their Education Officers, Pay Units and Controlling Authorities are also different, and therefore, common seniority list of Primary and Secondary Schools cannot be maintained. 30 Moreover, respondent no.4 Unnati Shikshan Sanstha has maintained the seniority list separately for Primary School and Secondary School, respectively for teaching and non-teaching staff for the year 2004-05, the name of the petitioner is shown at Sr. No. 29, and since respondent no. 6 was appointed in Secondary School, his name appeared in the seniority list prepared by respondent no. 5 Dnyanesh Vidya Mandir (Secondary School), and therefore, the allegation of the petitioner that common seniority list was maintained by the Management does not sustain in the eyes of law. 31 Having considered the relevant provision i.e. Clause No.3 19 of Schedule ‘F’ of the said Rules, and afore said submissions of learned counsel for respondents, we find that there is substance in the submissions advanced by learned counsel for respondents, and hence, we are inclined to accept the same. 32 Since the petitioner was declared surplus on 1.5.2005 on account of de-recognition of the Primary School wherein he was working, he has been absorbed in other aided Primary School, namely Sane Guruji Primary School, Kannad vide order dated 5.12.2006 and Corrigendum dated 19.12.2006 and the petitioner has already joined the said Primary School at Kannad on 30.12.2006, and therefore, there is no substance in the grievance raised by the petitioner in the present petition, and consequently, it bears no substance and same deserves to be dismissed. 33 In the circumstances, considering the peculiar facts of the present case that since the petitioner has been appointed in Primary School and since Primary School of respondent no.4 has been de-recognized with effect from 30.4.2005, the petitioner cannot compare his seniority with