-1- mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 4106 of 2001 Deccan Education Society through the Secretatry residing at Fergusan College Road, Campus, Pune ..Petitioner vs. 1. Education Officer (Secondary), Zilla Parishad Pune 2. Deputy Director of Education (Sec.) Pune 3. State of Maharashtra ..Respondents Shri R.S.Apte, i/b Shri M.V.Limaye for the petitioner. Smt.J.S.Pawar,A.G.P. for respondents CORAM: CORAM: CORAM: J.N.PATEL & J.N.PATEL & J.N.PATEL & S.J.KATHAWALLA S.J.KATHAWALLA S.J.KATHAWALLA JJ. JJ. JJ. 20th November, 2008 20th November, 2008 20th November, 2008 ORAL JUDGMENT: (Per J.N.PATEL J.) ORAL JUDGMENT: (Per J.N.PATEL J.) ORAL JUDGMENT: (Per J.N.PATEL J.) 1. Heard the learned Counsel for the petitioner. 2. The petition has been filed by the petitioner aggrieved by the decision taken by the Education Officer which was communicated to the petitioner by letter dated 30th May,2000 by respondent no.1 whereby it was informed to the petitioner society that the proposal for appointment of Smt.Jayashri -2- Vaidya as a Head Mistress of Ahilyadevi Highschool, Pune cannot be granted in view of the fact that various petitions are pending in the Court inrespect of promotion to the post of Head Master/Head Mistress. Therefore, approval cannot be granted to the proposal submitted by the petitioner society and Smt.Jayashri Vaidya cannot be appointed as a Head Mistress. 3. It is the case of the petitioner that Smt.Vaidya was appointed as Assistant Teacher in the petitioner institution on 7th June, 1971 and she has been performing her duties satisfactorily since then. The petitioner is running six highschools and, therefore, two posts of Head Masters and two posts of Assistant Head Masters are reserved as per the roster leaving the remaining four posts for open category candidates. As Smt.Vaidya was promoted as a Head Mistress on 13th November, 2000, though as per her seniority, she could have been promoted much earlier as Asstt. Head Mistress had the post not been reserved as per roster she could have been appointed as Head Mistress. Therefore, at the time when the petitioner society passed the Resolution the post -3- of Head Mistress of the school having become vacant the petitioner society appointed Smt.Vaidya as Head Mistress as she was the seniormost teacher considering the date of her appointment in the petitioner society. 4. It is contended by the learned Counsel for the petitioner society that the criteria for considering the seniority of an employee for the purpose of promotion is from the date the person joining as Asstt. Teacher in the school and not from the date of appointment of the candidate as Asstt. Head Master/Head Mistress. It is held that the criteria for considering the person for promotion for being appointed as Head of the institution got changed because of decision of the Supreme Court in the case of Jagdishlal Vs. State of Haryana reported in J.T.1997(5) S.C.387 where the Supreme Court has held that seniority of the employees in the cadre to which they are promoted and not their original seniority will have to be considered for further promotion and following the said decision, the Government of Maharashtra issued the Government Resolution dated 20th October, 1997 which is annexed to the petition as Exh. F. -4- 5. It has been pointed out to us by the learned Counsel appearing for the petitioner that subsequently the Supreme Court reconsidered the decision given in the case of Jagdishlal in Ajit Singh’s case and 5 Judges Bench of Supreme Court of India overruled the same and followed the ratio laid down in the decision rendered by the Supreme Court in the case of Union of India Vs. Virpalsingh Chouhan. It was further reiterated by the Supreme Court in the later judgment given in the case of M.G.Badappanavar and another Vs. State of Karnataka reported in A.I.R.2001 S.C.260. 6. It is, therefore, submitted that the Government Resolution dated 20th October, 1997 issued by respondent no.3 pursuant to the decision of the Supreme Court in the case of Jagdishlal deserves to be quashed and set aside as it has become null and void. Therefore, this Court should direct the respondents to grant approval to the appointment of Smt.Vaidya as Head Mistress in the school run by the petitioner society. 7. In reply to the petition, the respondents have -5- filed the affidavit of Deputy Education Officer (Secondary), Pune Zilla Parishad, Pune and submitted that as per Rule 3(3) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 the management of the school is required to fill up the post of Head by appointing the seniormost member from the teaching staff in accordance with the guidelines laid down in Schedule F from amongst those employed in the school and who fulfill the conditions laid down in sub-rule (1) having satisfactory record in service. According to the respondents Education Officer, Schedule "F" includes the categories from A to H and according to the Note 4 under Schedule "F" states that the categories mentioned from A to H represent the ladder of seniority and have been mentioned in the descending order. Therefore, as the petitioner institution has failed to meet the requirements of M.E.P.S.Rules, 1981 by passing the Resolution to promote Smt.Vaidya who was junior and, therefore, the approval was not accorded. It has also been stated that similar subject matter in Writ Petition No.5654 of 1999 is pending before this Court relating to the petitioner institution which has been filed by one of the Head Master in -6- the petitioner society claiming seniority. It is stated that as Smt.Vaidya is at Sr.No.6 and, therefore, she could not be considered for appointment to the said post as per the M.E.P.S.Rules. It is, therefore, submitted that as there is conflict of interest between the petitioner in Writ Petition No.5654 of 1999 and the case of Smt.Vaidya, the case of Smt.Vaidya was not considered and it is requested that both the writ petitions be tagged together and decided by common order. 8. We are informed by the learned Counsel appearing for the petitioner Management that the connected writ petition no.5654 of 1999 has been withdrawn as infructuous as the petitioner has retired. 9. In our view, in order to resolve the controversy, it will be appropriate that the matter is remitted back to the Education Officer (Secondary), Pune Zilla Parishad, Pune to reconsider the case of the petitioner in the light of the decisions of the Supreme Court in the case of Ajit Singh Vs. State of Punjab and Haryana. -7- We, therefore, direct the Education Department of the respondent State to reconsider the case of the petitioner in the light of our observations and take a decision in the matter within a period of 3 months from the date of communication of this order. We further make it clear that in case Smt.Vaidya has retired during the pendency of this petition, she would be entitled for notional promotion and to all benefits arising therefrom, if the Education Department finds that her case deserves consideration and she was eligible for being appointed as Head Mistress in terms of the resolution passed by the petitioner society. 10. Rule is made absolute in the aforesaid terms. There will be no order as to costs. (S.J.KATHAWALLA J.) (J.N.PATEL J.) (S.J.KATHAWALLA J.) (J.N.PATEL J.) (S.J.KATHAWALLA J.) (J.N.PATEL J.)