1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPEALLATE JURISDICTION WRIT PETITION NO. 4556 OF 2009 Smt.L.P. Shinde ...Petitioner vs. Swami Muktanand School, Mumbai & Ors. ...Respondents Mr.Mihir Desai for the Petitioner. Mr.Sunil Dighe for Respondent No.5. Mr.S.D. Rayrikar, AGP for Respondent Nos.3, 4 and 6. CORAM : V.M. KANADE, J. DATED : JUNE 23, 2009 P.C. :- 1 By this petition which is filed under Articles 226 and 227 of the Constitution of India, the petitioner is challenging order dated 4th April, 2009 passed by the respondent no.3, Education Inspector, North Zone, Mumbai. By the said order, the Education Inspector was pleased to reject the claim of seniority of the petitioner and was pleased to hold that respondent no.5 herein was senior to the petitioner. Brief facts are as under :- 2 2 The petitioner joined respondent no.1 school as Assistant Teacher on 16th June, 1980. She was made permanent on 16.6.1982. At the time of her initial appointment, she was appointed in the pay scale of trained graduate teacher. She, however, acquired additional qualification while she was in service and passed her Bachelor of Education (B.Ed) Examination and was awarded a B.Ed. Degree on 25th May, 1985. Her name was entered in category ‘C’ in the seniority list in 1985. Her pay scale, however, was upgraded to that of a trained graduate scale by letter dated 14th January, 1988 with effect from 16.11.87. It is an admitted position, however, that she was treated as a grade ‘C’ trained teacher in the seniority list of the school for the academic year 1985-86. 3 The respondent no.5 joined the respondent school as an Assistant Teacher in the trained graduate category from 21.6.1985 and at the time of his appointment had the requisite qualifications of the B.Sc. B.Ed. The respondent no.5 also passed his B.Ed. Examination, however, since he had appeared for the B.Ed. Examination from a different university, the result of B.Ed. Examination was declared by the said University sometime in June 1985. It is an admitted position, therefore, that the petitioner’s result of B.Ed. Degree was declared on 25.5.85 prior to the declaration of the 3 result of B.Ed. Degree of respondent no.5. Further, it is an admitted position that almost for a period of 22 years, the respondent no.5 accepted the seniority list of the petitioner and had signed the seniority list without raising any objection. 4 The respondent no.5, however, lodged a complaint regarding his seniority status and accordingly, his application for seniority was decided exparte without giving notice to the petitioner and by order dated 12th September, 2007, the Education Inspector held that the petitioner was junior to respondent no.5. The reason given by the respondent no.3 for disturbing the seniority list was that the petitioner was upgraded to the trained teacher pay scale only on 16.11.87 and respondent no.5 was directly appointed as trained teacher on 21.6.85 and on that ground, he held that the petitioner was junior to respondent no.5. The petitioner being aggrieved by the exparte order passed by the Education Inspector has filed a writ petition in this Court being Writ Petition No.914/2008 . A Division Bench of this Court by order dated 11th August, 2008 set aside exparte order and directed the respondent no.3 to give hearing to the concerned parties and decide the matter afresh. 4 5 Respondent no.3, however, after giving hearing to both the parties confirmed his earlier order. The petitioner being aggrieved by the said order has filed this petition. 6 Shri Mihir Desai, leanred Counsel appearing on behalf of the petitioner submitted that the Education Officer had clearly overlooked a well settled position in law and had therefore, committed an error of law apparent on the face of record. He relied on judgment of this Court in the case of Saramma Varghese vs. Secretary/President, S.I.C.E.S. Society and Ors., reported in 1989 Mh.L.J. 951. He also relied on Division Bench Judgments of this Court in the case of Madhav S/o. Govindrao Budhe vs. Education Officer, Zilla Parishad, Nagpur & Ors., reported in 1994 I CLR 969 and in the case of Domnic Araugo vs. State of Goa and others, reported in 1989 Mh.L.J. 538. He also relied on the judgment of the learned Single Judge of this court in the case of Lakhwinder Kaur Gurai vs. Garison Children Education Society and Ors., reported in 2006 (5) Bombay C.R. 612 and also on the Division Bench judgment of this Court in the case of Pramod Devaram Bhangale vs. State of Maharashtra and Ors. reported in 2006(44) Mh.L.J. Page 110. 5 7 Shri Dighe, learned Counsel appearing on behalf of the respondent, on the other hand, submitted that the respondent no.5 was directly appointed as a trained graduate teacher on 21st June, 1985. He submitted that the respondent no.5 was senior in age to the petitioner by one day. Both the petitioner as well as respondent no.5 had obtained the B.Ed. Degree in the examination which was held in April-May, 1985. He submitted that merely because the petitioner’s result was declared on 25th May, 1985 and the result of the respondent no.5 was declared on the subsequent date since he had appeared for the B.Ed. Examination through different university, that could not be a factor which would decide the seniority between the parties. He submitted that one of the Rule laid down under the Rules was, in the event, two teachers who were appointed on the same date and had similar qualifications, then in that case, the person who was senior in age would be entitled to claim seniority towards the other. He relied on number of judgments of this Court :- 1. Ashok Narayan Sathe vs. Education Officer & Ors., (2007(3) Bom.C.R. 241), 2. Ramchandra Pandurang Dalal vs. Municipal Council & Ors., (2007(2) Bom.C.R. 849), 3. Lakhwinder Kaur Gurai vs. Garison Children Education Society and others (2006(5) Mh.L.J. 332). 6 4. Sumersingh Ganpatsingh Pardeshi vs. Karmala Taluka Education Society, Karmala and others (2006(6) Mh.L.J. 508), 5. Madhav Govindrao Budhe vs. Education Officer, Zilla Parishad Nagpur, Nagpur & Ors. (1994 (1) Mh.L.J. 42), 6. Rekha Lakhi Totlani vs. Sind Brahma Sikhya Sammelan (2007 (1) Mh.L.J. 225), 7. State of Maharashtra & Ors. vs. Tukaram Tryambak Chaudhari & Ors.(2007 (2) Bom.C.R. 748 (SC), 8. Narayan Korga Pujari vs. Gandhi Education Society and others (2006 (6) Mh.L.J. 476), 9. Vaijanath s/o. Tatyarao Shinde Vs. Secretary, Marathwada Shikshan Prasarak Mandal, Devgiri College Campus, Aurangabad & Ors. (2006 (6) Mh.L.J. 682), 10. Smt.Jayashree Sunil Chavan vs. The State of Maharashtra & Others (2000 (3) Bom.C.R. 803 (Full Bench), 11. Pramod Devaram Bhangale vs. State of Maharashtra & Ors. (2007 (5) Mh.L.J. 110), 12. Bhagwat Namdeorao Akare vs. Education Officer (Secondary), Zilla Parishad & Ors (2008 (1) Bom.C.R. 328). 8 The short question which falls for consideration before this Court is whether while fixing the seniority between the teachers, the date on which the teacher acquires the qualifications of a trained graduate teacher will be taken into consideration or the date on which the teacher is given the pay scale of a trained graduate teacher will be the point from which his seniority should be considered. This question is no longer res integra and it has been consistently held in series of judgments that the date of acquiring educational qualification should be taken into consideration 7 instead of the date on which a teacher is given the trained graduate pay scale. The emphasis, therefore, has been placed on the date on which the teacher acquires the educational qualifications and not on the date on which the pay scale of a trained graduate teacher is given to the teacher as in the case of Saramma Varghese (supra). A similar issue was considered by the Division Bench and after taking into consideration the various provisions of the Act and Rules, the Division Bench observed this in para 16 which rads as under :- “ Thus, higher pay scale is not relevant for the purpose of fixation of seniority of teachers. A teacher with B.A. B.Ed. wherever he teaches will take his place according to the date of appointment and continuous officiation” 9 Same view has been followed by the other Division Benches on which reliance has been placed by the petitioner. In the present case, it is an admitted that the petitioner passed her B.Ed. Degree examination on 25th May, 1985 whereas the respondent no.5 obtained his B.Ed. Degree in June 1985 and was appointed directly as a trained graduate teacher on 21.6.85. It is no doubt true that though the petitioner had passed her B.Ed. Degree on 25th May, 1985, she was given a graduate scale in 1987 by letter dated 14.1.88 with effect from 16.11.87. The Education Inspector, therefore, has 8 not taken into consideration the law laid down by this Court in the case of Saramma Varghese (supra) and other judgments on which reliance has been placed by the learned Counsel. 10 The submission made by Shri Dighe, learned Counsel appearing on behalf of the respondent that because the respondent no.5 was senior in age than the petitioner, he was entitled to be declared as senior to the petitioner, cannot be accepted. The said rule will be applicable in cases where two teachers are appointed on the same date and have same qualifications, in such cases, the person who is senior in age acquires seniority over the other teacher. However, in the instant case, the petitioner initially was appointed as Assistant Teacher on 16th June, 1980 and was made permanent on 16.6.82 and had acquired the B.Ed. Qualification on 25.5.85 whereas the respondent no.5 was appointed as a trained graduate teacher on 21.6.85. The respondent no.5, therefore, cannot get the benefit of the said rule on which reliance is placed by the learned Counsel appearing on behalf of respondent no.5. The other submission of Shri Dighe, learned Counsel for respondent no.5 that since both the petitioner as well as respondent no.5 have passed their B.Ed. Examination in the same year, benefit of the seniority should be given to respondent no.5 since he was 9 senior in age to the petitioner also cannot be accepted. The settled position in law is the day on which a teacher acquires qualifications by a trained teacher is elevated to category ‘C’ in the seniority list. The submission of the learned Counsel for respondent no.5, therefore, that since the respondent no. 5 had also acquired qualifications of B.Ed. in 1985, both should be treated on par also cannot be accepted. Reliance which is placed by the learned Counsel appearing on behalf of the respondent on various judgments also, in my view, would not be of assistance because the said judgments are not on the issue which is raised in this petition and therefore, the ratio of these judgments would not apply to the facts of the present case. 11 In the result, the impugned order passed by the Education Inspector is set aside. The writ petition is allowed in terms of prayer clauses (a) and (c). Under the circumstances, there shall be no order as to costs. 12 The writ petition is disposed of. (V.M. KANADE, J.) 10