1 Writ Petition No.7210-02 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN ITS CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7210 OF 2002 Shri Ankush Malhari Kamble Age 34 years, Occupation­Service R/at Chowdhary Plot, Temburne Road, Kurduwadi, Tal. Madha, Dist. Solapur 413 208 ..Petitioner Versus 1. Gramoday Samittee Kurduwadi C/o Antar Bharati Vidyalaya, Kurduwadi, Tal Madha. Dist. Solapur (Through its Seretary) 2. The Headmaster, Antar Bharati Vidyalaya, Kurduwadi, Tal Madha. Dist. Solapur 3. The Education Officer, Secondary Section, Zilla Parishad, Solapur 4. Shri Balasaheb Tulshiram Khune Age 33 years, Occupation Service R/at New Kadadi Chawl, Tembhurni Road, Kurduwadi, Tal Madha, Dist Solapur ..Respondents 2 Writ Petition No.7210-02 Shri Dilip Bodake for the Petitioner Shri C.R.Sonawane AGP for the Respondents Coram: P.B.MAJMUDAR AND R.M. SAVANT, JJ. 20th July, 2010 ORAL JUDGMENT (PER SHRI R.M.SAVANT) 1. This Writ Petition was tagged along with companion Writ Petition No.7728 of 2003, which we have already dismissed by our Judgment and order dated 19th July 2010. 2. By the above Petition filed under Article 226 and 227 of the Constitution of India, the Petitioner takes exception to the Order dated 8­3­2002, passed by the School Tribunal, Pune, by which order the Appeal filed by the Respondent No.4 herein against his reversion in rank came to be allowed and the order dated 3­1­2000, which was impugned in the said Appeal, came to be set aside, as also the letter dated 24­12­1997 issued by the Education Officer directing the management i.e. Respondent No.1 herein to revert the Respondent No.4 from B.Ed. scale to D.Ed. scale. As the controversy in the present Petition is as regards the Petitioner’s entitlement to the B.Ed. scale, the factual matrix involved in the above Petition can be stated thus: At the time of appointment of the Petitioner as an Assistant Teacher on 10­12­1996, he was holding qualification of S.S.C. D.Ed. and he was put in 3 Writ Petition No.7210-02 the scale of Trained Undergraduate Teachers Pay­scale. The Petitioner was made permanent on 10­12­1996. The Petitioner thereafter acquired qualification of B.A. B.Ed. and is teaching Hindi in the school run by the Respondent No.1. The Respondent No.4 herein came to be appointed on 3­7­1998 as an Assistant Teacher and was placed in Trained Undergraduate Teachers’ Payscale which is applicable to the teacher holding the qualification of S.S.C. D.Ed and at the relevant time he was holding qualification of M.Sc, M.Ed. He was appointed as Assistant Teacher in the B.Ed. scale from 3­8­1996 in the leave vacancy up to 30­9­1996 and thereafter in the vacant post from 1­10­1996 to 30­4­1998. He was again appointed in the B.Ed. scale on 23­7­1997. However, for the next academic year beginning from 3­7­1998, he was appointed on probation for two years, but the said appointment was in D.Ed. scale. He was again put in B.Ed. scale from 14­6­1999 as there was a vacancy for the said scale by then. The said up­ gradation was approved by the Education Officer. The Respondent No.4 herein all of a sudden was reverted back in the D.Ed. scale from 3­1­2000 by the Management on the ground that the Education Officer by his letter dated 24­12­1999 had directed to promote the Petitioner herein. It is against the said order dated 3­1­2000 that the Respondent No.4 herein filed an Appeal invoking Section 9 of Maharashtra Employees of Private School (Conditions of Service) Regulation Act 1977 (for the brevities sake herein after referred to as “the MEPS Act”). The said Appeal came to be numbered as Appeal No.3 of 2000. In so far as the said Appeal is concerned, the principle ground on which the said order was 4 Writ Petition No.7210-02 impugned was that the Respondent No.4 had worked in B.Ed. scale for more than three years, that his appointment was already approved by the Education Officer and that the impugned order dated 3­1­2000 was issued without there being any opportunity given to him. In the said Appeal the Respondent No.1 herein the management filed its Say wherein it was averred that the Respondent No.4 herein was appointed after following the procedure as envisaged in the rules i.e. after appointing him on probation as prescribed by the rules. The Respondent No.1 management further averred that since there was a need for teacher in Mathematics, the Respondent No.4 was continued from time to time and after the Respondent No.4 acquired the B.Ed. Qualification, the proposal was sent to the Education Officer for approval which proposal was never opposed by the Petitioner herein i.e. Respondent No.4 in the Appeal. The management further averred that though the Petitioner herein was senior, considering the need of the school for teacher in Mathematics and considering the educational qualification of the Respondent No.4, it was stated that Respondent No.4 was entitled to the B.Ed. Scale. The Respondent No.4 in the Appeal i.e. Petitioner herein also filed his reply. His principal contention was that he was the senior most teacher and, therefore, entitled to the B.Ed. Scale on that ground. It was further his case that 5 Writ Petition No.7210-02 the Respondent No.4 herein has not completed his probation period and it is only the management which is trying to protect the service of the Respondent No.4 herein by denying the claim of the Petitioner herein to the said B.Ed. Scale. The Petitioner herein disputed the reasons given by the management as regards the need for Mathematics teacher and it was his case that there are about 9 Science teachers who were then working in the school, who could have taught Mathematics. 3. The Tribunal on the basis of the material that was placed before it, came to the conclusion that though the Petitioner herein was senior to the Respondent No.4, however, considering the fact that there was a dire need for teacher to teach Mathematics, the grant of B.Ed. Scale to the Respondent No.4 herein was justified. The Tribunal further held that since the Petitioner herein has not objected to the proposal being sent to the Education Officer for the grant of B.Ed. Scale to the Respondent No.4 herein, had acquiesced or accepted the said position and, therefore, could not make any grievance about the same. The Tribunal also took into consideration that though there was 9 teachers who were teaching science subjects, none was available to teach Mathematics. However, the Tribunal was of the view that looking to the number of divisions in the school, a permanent arrangement for Mathematics was required and no stop gap arrangement could be made. The Tribunal, therefore, concluded that no favoritism was shown by the Respondent No.1 management in favour of 6 Writ Petition No.7210-02 Respondent No.4 herein. The Tribunal also took into consideration the circular dated 23­12­1994 issued by the Education Officer. The said circular inter alia regulates the grant of B.Ed. Scale to a teacher who is already in the D.Ed. Scale. The said circular postulates that the management should follow the directions and guidelines as contended in the letter of the Director of Education dated 9­7­1987 namely that the work load of VIII to X standard should be worked out subject wise. Thereafter, the teacher having B.Ed. qualifications working in the D.Ed. Scale should be considered by considering their subjects. The subject allotted for teaching to existing staff and remaining work load for particular subject should be considered and the Teacher in that subject should be considered for the grant of B.Ed. Scale. Clause 2 of the said circular allows appointment of Teacher from B.Ed. Scale by side tracking the seniority of senior most teacher. If the need arose in respect of a particular subject, the only condition is that prior approval of the Education Officer should be obtained. Considering the matter on the touchstone of the said Circular, the Tribunal was of the view that no fault could be found with the grant of B.Ed. Scale to the Respondent No.4 by over looking the claim of the Petitioner herein. 4. We have with the assistance of the Learned Counsel appearing for the parties gone through the findings as recorded by the Tribunal in its impugned Judgment. We are of the view that the Tribunal for cogent reasons has allowed the Appeal filed by the Respondent No.4 herein and has consequently set aside 7 Writ Petition No.7210-02 the impugned order dated 3­1­2000 as also the communication of the Education Officer dated 24­12­1999, addressed to the Respondent No.1 management. Having perused the impugned Judgment, we do not find any infirmity or illegality in the same for us to interfere in our extra ordinary writ jurisdiction under Articles 226 and 227 of the Constitution of India. 5. On behalf of the Petitioner the Learned Counsel Mr. Bodake has raised a jurisdictional point inasmuch as it is the contention of the Learned Counsel for the Petitioner that the Appeal itself was not maintainable, in view of the fact that it is not covered by any eventualities mentioned in Section 9 of the said MEPS Act. The Learned Counsel for the Petitioner submitted that reduction from B.Ed. Scale to D.Ed. Scale does not amount to supersession or reduction in rank as postulated in the said Section 9 for the Tribunal to exercise writ jurisdiction. The Learned Counsel for the petitioner for the said purpose relied upon the Judgment of a Learned Single Judge of this Court in Writ Petition No. 2728 of 1996 dated 12­1­2007. In the said case the Teacher in question had approached the Tribunal on the ground that there was a supersession inasmuch as the Teacher was not granted the higher trained graduate scale and somebody else was granted. In the fact situation of the said case, the Learned Single Judge of this Court had observed that the Act and the Rules in question do not contemplate that there is a promotion of an undergraduate teacher, on improvement of his qualifications to the post of trained graduate teacher, which carries higher pay 8 Writ Petition No.7210-02 scale. Relying on the said Judgment, the Learned Counsel for the Petitioner submits that the said ratio would apply in the present case where the Respondent No.4 has been brought down from B.Ed. Scale to D.Ed. Scale. 6. In so far as the said issue is concerned, it is required to be noted that no such issue was raised before the Tribunal and though raised before this Court in the above Writ Petition on 16­6­2003 does not indicate that the said issue is kept open for consideration at the final hearing. However, since we are sitting in our extra ordinary writ jurisdiction under Articles 226 and 227 of the Constitution of India, we deem it appropriate to deal with the said issue. In so far as the said issue is concerned, it would be relevant to reproduce Section 9 of the MEPS Act “9 (1) Notwithstanding anything contained in any law or contract for the time being in force [any employee in a private school­­­­ (a) who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank by the order passed by the management; or (b) who is superseded by the Management while making an appointment to any post by promotion, and who is aggrieved, shall have a right of appeal and may appeal against any such order or supersession to the Tribunal constituted under section 8] : Provided that, no such appeal shall lie to the Tribunal in any case where the matter has already been decided by a Court of competent jurisdiction or is pending before such Court, on the appointed date or where the order of dismissal, removal otherwise termination of service or reduction in rank was passed by the Management at any time before the 1st July 1976” 9 Writ Petition No.7210-02 7. A reading of the said Section 9, therefore, discloses that only in the eventualities as mentioned in the said Section that an Appeal would lie before the Tribunal constituted under the MEPS Act. In the instant case it is not in dispute that the Respondent No.4 herein was reduced from the B.Ed. Scale to the D.Ed. Scale. Rule 7 of the MEPS Rules, inter alia lays down the scale of pay for the several teaching and non teaching staff in the Schools which shall be as specified in Schedule­C. The said Schedule­C inter alia prescribes the pay scales applicable to the teaching and non teaching posts in the private school. The rules and Schedule “C” postulate that the B.Ed. Scale is a higher scale than the D.Ed. Scale. The term “reduction in rank” would encompass reduction in status. Since pay scale is a concomitant of status, in our view, reduction in pay scale would result in reduction in status and hence reduction in rank. The concept of reduction in rank, in our view, would, therefore, encompass the Teacher being brought down in the pay scale and would not only cover the case where the teacher is demoted from higher post to lower post. We have to bear in mind that the object and purpose of the MEPS Act is to grant some sort of protection to the teachers in the matter of their employment. If the phrase reduction in rank as postulated in Section 9 is given a restricted meaning as sought to be contended on behalf of the Petitioner, the purport and intent of the Act would be turned nugatory, that in our view cannot be the interpretation of said Section 9 especially of the phrase “reduction in rank”. 10 Writ Petition No.7210-02 8. In so far as the Judgment of the Learned Single Judge is concerned, as mentioned herein above, the said case concerned a teacher who had approached the Tribunal on the ground of alleged supersession on being not considered for the grant of the higher graduate scale. Such is not the case in the instant Petition wherein the Respondent No.4 was admittedly enjoying the benefits of the B.Ed. Scale for a period of 3 years, which was also approved by the Education officer and the said scale was reduced to the D.Ed. Scale by the impugned order dated 3­1­2000. In our view a perusal of the said Judgment discloses that no proposition of law is as such laid down by the Learned Single Judge. In that view of the matter, the submissions of the Learned Counsel for the Petitioner that Appeal filed before the School Tribunal by the Respondent No.4 itself was not maintainable is required to be rejected. No other contentions have been urged by the Learned Counsel for the Petitioner save and except those which have been dealt with by the Tribunal. 9. As already mentioned herein above, the Tribunal has for cogent reasons allowed the Appeal filed by the Respondent No.4. In that view of the matter, no case for interference is made out. The Writ Petition is dismissed. Rule is accordingly discharged. 10. However, it is required to be clarified that pursuant to the interim order dated 16­6­2003, the Petitioner herein has also been granted the higher 11 Writ Petition No.7210-02 B.Ed. Scale which he is at present enjoying from 3­6­2003 and at which scale he is being paid at present. Though, we have dismissed the above Petition, we direct that no recovery be effected against the Petitioner for the amounts paid to him in the intervening period. (R.M.SAVANT, J.) (P.B.MAJMUDAR, J.)