Remanded

Sanjay Dhananjay Pachpole v. the State of Maharshtra and Ors.

Bombay HC10 Jan 2012WP/4151/2011

Case brief

AI extract

What is this about?

Petitioner Assistant Teacher challenged his lower seniority to another Assistant Teacher, alleging the rival lacked requisite B.Ed. qualification. Reliance was placed on prior judgments and rules. The court found the impugned order defective for ignoring legal precedents and the laches objection, quashing it to refer the matter to the Education Officer for a decision in light of all submissions.

What did the court decide?

Impugned order of Education Officer quashed and set aside; parties relegated before Education Officer to decide seniority considering all submissions; hearing fixed for 30.01.2012.

Sanjay Dhananjay Pachpole Vs the State of… — Pension and Retirement Benefits | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 4151 OF 2011

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Sanjay S/o Dhananjay Pachpole, Age : 38 Years, Occu. : Service, Presently working as Assistant Teacher, In Vikas Vidyalaya, Satod, Tq. Yawal, Dist. Jalgaon. .. Petitioner

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Versus

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The State of Maharashtra, Through its Secretary, School Education Department, Mantralaya, Mumbai - 32.

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The Director of Education (Sec.), Maharashtra State, Pune.

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The Deputy Director of Education, Nashik Division, Nashik.

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The Education Officer (Secondary), Zilla Parishad, Jalgaon.

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Gramin Shikshan Mandal, At Satod, Tq. Yawal, Dist. Jalgaon, Through its Chairman.

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Vikas Vidyalaya, Satod, Tq. Yawal, Dist. Jalgaon, Through its Head Master.

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Kamlakar S/o Ramdas Sonawane, Age : 40 years, Occu. : Service, Presently working as Assistant Teacher, In Vikas Vidyalaya, Satod, Tq. Yawal, Dist. Jalgaon. .. Respondents

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Shri S. R. Barlinge, Advocate for the Petitioner. Shri S. K. Tambe, A. G. P. for Respondent/State. Shri P. B. Patil, Advocate for Respondent Nos. 5 and 6. Shri P. R. Patil, Advocate for the Respondent No. 7.

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CORAM : S. V. GANGAPURWALA, J. DATE : 10TH JANUARY, 2012.

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ORAL JUDGMENT :

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. Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing.

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The petitioner and the respondent No. 7 are appointed as Assistant Teachers in the respondent No. 5 institution. The petitioner is appointed vide appointment order dated 02nd July, 1997 on D. Ed. pay scale. The present respondent No. 7 is appointed on 01st December, 1997 on B. Ed. pay scale. The petitioner possesses qualification of B. A. B. Ed, whereas the respondent No. 7 possesses qualification of B. A. B. P. Ed. The petitioner objected to the factum of respondent No. 7 being shown as senior in the seniority list. On or about 09.07.2010 the

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Education Officer passed an order holding that the petitioner is senior to the respondent No. 7. On or about 20th August, 2010 the Education Officer reviewed its own order and had shown the present respondent No. 7 as senior to the petitioner. The petitioner aggrieved thereby filed writ petition bearing Writ Petition No. 10131/2010. The said writ petition was allowed and the matter was remitted to the Education Officer. The Education Officer thereafter rejected the application of the petitioner and held that the respondent No. 7 is senior to the petitioner. Aggrieved thereby the present petition is filed.

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Shri Barlinge, the learned counsel for the petitioner submits that the pay scale on which the petitioner is appointed is immaterial for determining the seniority. According to the learned counsel the qualification possessed by a candidate and his continuous officiation on the said post is the only relevant factor to consider the seniority. According to the learned counsel, the petitioner being B. A. B. Ed. and having been appointed on 02nd July, 1997 comes in category C. The respondent No. 7 is appointed as an assistant teacher and does not possess B. Ed. qualification, as such he is to be considered as untrained teacher. The learned counsel relies on the judgment of Division Bench of this Court in a case of Saramma Varghese Vs.

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Secretary/President S.I.C.E.S. Society reported in 1990 (1) Bom. C. R. 185 and another judgment of the Division Bench of this Court in a case of Madhav Govindrao Budhe Vs. Education Officer, Z. P. Nagpur reported in 1994 (1) Mh. L. J. 42 . The learned counsel further contends that the Government Resolution dated 25.06.1992 relied by the Education Officer is misplaced and the learned Single Judge of this Court in a case of Mrs. Lakhwinder Kaur Gurai Vs. The Garison Children Education Society in Writ Petition No. 52/199 decided on 23.03.2006 has held that the said Government Resolution cannot supplant the provisions of the rules and rules will have to be followed. As the petitioner comes in category C and his date of appointment is prior in point of time to respondent No. 7, the petitioner is senior.

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Shri P. R. Patil, the learned counsel for the respondent No. 7 submits that there are laches on the part of petitioner in approaching the authority and challenging seniority list. The seniority list was published in the year 2003. The same was signed by the petitioner and no objection to the same was raised. Thereafter, again it was published in the year 2005-2006. At that time also it was not challenged and it has been accepted.

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Shri Barlinge, the learned counsel contends that on the said seniority list the petitioner had made an endorsement that said list is not acceptable. Shri Patil, the learned counsel, however, contends that no challenge to the said list was raised at any point of time before an appropriate authority and for the first time the said seniority list was challenged by filing an application to the management on 24.11.2008 i. e. after more than five years and an application was given to the Education Officer as per Rules only in the year 2009 i. e. after six years and so the grievance of the petitioner cannot be looked into. The learned counsel relies on the judgment of the Apex Court in a case of Shiba Shankar Mohapatra Vs. State of Orissa reported in (2010) 12 SCC

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471 . The learned counsel also argued on other aspects of the matter.

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Shri P. B. Patil, the learned counsel for respondent Nos. 5 and 6 supports the argument of Shri P. R. Patil, the learned counsel for the respondent No. 7.

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With the assistance of learned counsel I have gone through the judgments referred by the learned counsel and the impugned order passed by the Education Officer.

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On perusing the judgment passed by the Education Officer, it is manifest that the Education Officer has not discussed about the judgments which are referred by the learned counsel in the present petition. The Education Officer has solely based his judgment on the Government Resolution dated 25.06.1992. According to the learned counsel for the petitioner, efficacy of the said G. R. is already considered by the learned Single Judge of this Court in a case of Mrs. Lakhwinder Kaur referred supra and it has been held that said Government Resolution would not override the rules. Be that as it may, the same does not appear to have been considered by the Education Officer. The Education Officer has also not considered about the judgments delivered by the Division Bench of this Court in the cases of Madhav Budhe

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and Saramma Varghese referred supra. Moreover, the objection about laches as raised by the present respondent No. 7 also is not considered by the Education Officer. What would be the effect of the endorsement made by the petitioner on the seniority list that is not acceptable to him and whether if any objection is raised, it is the duty of the management to refer the dispute to the Education Officer as per Rule 12(2) of the M. E. P. S. Rules. All these aspects are required to be considered by the Education Officer on merits.

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In the light of the above, I feel it appropriate to relegate the parties before the Education Officer to put forth their submissions and Education Officer shall decide the aspect of the seniority considering all the contentions raised by the respective parties. The parties are at liberty to file such appropriate say, petition in this regard including the reasons for approaching before the Education Officer at belated stage. So also the respondents may file say objecting the same. In view of the above, the impugned order is quashed and set aside and the parties are relegated before the Education Officer. The Education Officer shall decide the objection raised to the seniority list taking into consideration the contentions raised by all the parties expeditiously. The parties shall appear before the Education Officer on 30.01.2012.

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Rule is made absolute in above terms and observations made hereinabove.

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Sd/-

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[ S. V. GANGAPURWALA, J. ]

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bsb/Jan. 12

Sanjay Dhananjay Pachpole v. the State of Maharshtra and Ors.

Case brief

What is this about?

What did the court decide?

Sanjay Dhananjay Pachpole v. the State of Maharshtra and Ors.

Case brief

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What did the court decide?

What the court decided

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