- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No. 4720 OF 2009 Mrs. Varsha Sharad Ponkshe ..Petitioner Vs. The State of Maharashtra & Ors. ..Respondents Mr. Narendra V. Bandiwadekar, for the Petitioner. Mrs. S. S. Bhende, AGP for the Respondent-State. Mr. Amol Mhatre, for Respondent No.5. CORAM : D. D. SINHA & A. A. SAYED , JJ. DATED : JANUARY 22, 2010. P.C. : 1. Heard the learned counsel for the petitioner and the learned AGP for the respondent-State. The writ petition is directed against the order dated 8th April 2009 passed by the Education Officer, respondent No.2 whereby it has been held that Mr. Bapat Prakash Bhikaji [SSC D.Ed] is included in Category-C of Schedule “F” of M.E.P.S. Rules 1981 with effect from 1985 whereas the petitioner is placed in Category - 2 - ‘C’ with effect from 1988. 2. The learned counsel for the petitioner has submitted that the Education Officer while concluding the issue of placement of inter-se seniority of the petitioner and respondent No.5 had placed reliance on Government Resolution dated 25th June 1992 and the Circular dated 23rd September 1983 issued by the Director of Education instead of considering the statutory provisions stipulated in Schedule “F” of the Maharashtra Employees of Private School Rules, 1981 (Category ‘C’). 3. The counsel for the petitioner further contended that on the earlier occasion, the Education Officer vide order 20th August 2008 in view of the same Government Resolution dated 25th June 1992 decided the issue in respect of inclusion of qualified teachers in Category ‘C’ from the date of their given promotion in B. Ed. pay-scale, therefore, present petitioner had filed a Writ Petition No. 6452 of 2008 and challenged the order dated 20-8-2008 passed by the Education Officer, Zilla Parishad, Ratnagiri. This Court considered the issue involved as well as the law on the subject and disposed of the said writ petition vide order 9th February 2009, which reads thus- “. Rule, returnable forthwith. Heard by consent. - 3 - 2. The learned counsel for the petitioner points out that the Education Officer, Zilla Parishad, Ratnagiri, by an Order dated 20.8.2008 has decided the inclusion of the qualified teachers in Category ‘C’ from the date of their given promotion in the B. Ed. pay scale by taking into account the Government Resolution dated 25.6.1992. 3. It is clear from the judgment of this court in the case of Lakhwinder Kaur Gurai vs. Garison Children Education Society & Ors. [2006(5) Mh. L.J. 332 that it is not permissible to rely on the Government Resolution and defeat statutory rules. This is exactly what has been done in the present case. Further it appears that there is some dispute about the event that must be taken into account for reckoning inclusion in Category ’C’, that is to say, whether the 10 years after S.T.C. should be reckoned from the date on which the qualifications were obtained or the date from which the candidate was paid the pay scale. This matter also needs the proper consideration in accordance with law. 4. In this view of the matter, the impugned order is - 4 - set aside. The Education Officer, Zilla Parishad, Ratnagiri, is directed to decide the question of relative seniority of the rival candidates after hearing them and giving them opportunity to point out the law. The Education Officer shall decide within a period of six weeks from the date the parties appear before him. The parties are directed to appear on 2.3.2009. Rule made absolute in the above terms.” 4. The learned counsel for the petitioner has submitted that in spite of the above referred order, the Education Officer once again relied on the said Government Resolution 20th June 1992 while considering the claim of petitioner as well as respondent No.5 in respect of placement in Category ‘C’ of Schedule “F” and has given complete go-bye to the statutory provisions, guidelines stipulated in Schedule “F” as well as as decision of this Court in the case of Pandurang Atmaramji Tijare Vs. State of Maharashtra & Ors. 1997(3) Mh.L.J. 568 which was cited before the Education Officer and therefore, the order impugned is liable to be quashed and set aside. 5. The learned AGP does not dispute the factual and legal aspect of the matter, however, contended that if the matter is remanded - 5 - back to the Education Officer, the Education Officer will take into consideration the scheme of Schedule “F” (Category ‘C’), the law laid down by this Court in the above referred decision as well as other decisions applicable in this regard and decide the issue accordingly, as directed by this Court afresh on its own merit. 6. The learned counsel for respondent No. 5 states that if this Court is inclined to remand back the matter to the Education Officer, before taking the decision, respondent No.5 be given opportunity of hearing. 7. We have considered the rival contentions canvassed by the learned counsel for the respective parties. Perused the impugned order passed by the Education officer, the decision of the learned Single Judge of this Court dated 9th February 2009 rendered in Writ Petition No. 6452 of 2008. 8. At the outset we want to express that this is really unfortunate that in spite of the positive directions given by the learned Single Judge of this Court vide order dated 9th February 2009, the Education Officer has given complete go-bye to the directions. In paragraph 3 of the said judgment/order, it is observed in Lakhwinder - 6 - Kaur Gurai Vs. Garison Children Education Society & Ors. [2006(5) Mh.L.J. 332 that “it is not permissible to rely on the Government Resolution and defeat statutory rules. This is exactly what was done in the present case”. Therefore, the earlier order passed by the Education Officer dated 20th August 2008 which was impugned in Writ Petition No. 6452 of 2008 came to be quashed and set aside and the matter was remanded back to the Education Officer to decide the issue afresh within the stipulated period. However, we are really surprised that the Education Officer though decided the issue but followed the same procedure which was followed earlier by relying on the same Government Resolution dated 25th June 1992. The conduct of the Education officer in our view is a matter of great concern, in spite of the observations of the learned Single Judge, adopting the same procedure is really unfortunate. However, we want to give the benefit of doubt to the Education Officer and expect that henceforth the Education Officer shall decide the same issue as per the directions issued by this Court and it also must be consistent with the observations made in the judgment by us. 9. We also want to express that if the decisions of the Court are cited by the parties, then the Education Officer must give reasons in - 7 - the order about its applicability or non-applicability to the facts of the case as well as its effect thereon. The Education Officer cannot ignore the decisions cited by the parties before it. 10. For the reasons stated hereinabove, we quash and set aside the impugned order dated 8th April 2009 passed by the Education Officer- the respondent No.2 herein. The matter is remanded back to the Education Officer to reconsider the claim of the petitioner as well as of respondent No.5 and decide their claims of inter-se placements in category ‘C’ of Schedule “F” of M.E.P.S. Rule 1981, in accordance with the statutory guidelines, the law declared by this Court in various decisions, on its own merits and in accordance with the law and the procedure applicable in this regard, within a period of six weeks from the date of communication of this order, by following the principles of natural justice. . With these observations and directions, writ petition is accordingly disposed of. Sd/- [D. D. SINHA, J.] Sd/- [ A. A. SAYED, J.]