This writ petition challenged the refusal of the petitioner's promotion as a trained special teacher in favor of another employee who held the requisite training diploma. The court held that untrained teachers belong to a different category and cannot jump ahead of trained teachers for promotion.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4359 OF 1998
Chandrakant Baburao Gondhali, adult, Occ. Special Teacher, residing at 12, Jaybhavani Housing Society, in front of T.V.Centre, near Ujani Nagar, Solapur. ... Petitioner.
V/s.
Mr. S.G.Kudle, Advocate, for the Petitioner. Mr. Vikas Mali, AGP for Respondent Nos.1 to 3. Mr. Subhash Langote, Advocate for Respondent Nos.4 and 5.
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CORAM : NARESH H. PATIL AND A.P. BHANGALE, JJ.
RESERVED ON : 04th DECEMBER, 2014. PRONOUNCED ON : 09th DECEMBER, 2014.
JUDGMENT : (PER A.P.BHANGALE, J.)
1 Heard submissions at the bar. Perused affidavit on record. The Petitioner questions the legality and propriety of the order dated 04051998 passed by the Dy Director of the Social welfare (Handicapped Division), Pune on behalf of the State on the ground that the Petitioner did not complete the training within five years and was not eligible for promotion as trained special teacher and that Respondent No.5 Shri Tambe was senior as trained graduate teacher, the Petitioner was refused the promotional post as trained graduate special teacher.
2 Facts pleaded for the Petitioner are :
The Petitioner having educational qualification as graduate at the relevant time of his appointment, was appointed on 01101987 as 'Special Teacher'. According to the Petitioner the training course for the visually handicapped teachers was introduced by the State of Maharashtra in the year 199091. The Petitioner completed the Diploma course in teaching the visually handicapped during the period between
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01071992 to 31031993.The Pay scale of the Petitioner was fixed at Rs.1350/ with effect from 19061993, by the Accounts Officer. The District social officer directed the President of the school for visually handicapped, in question to decide the Petitioner's seniority from the date of his initial appointment. The District Social welfare officer, Solapur on 16 12 1997 was pleased to hold the Petitioner as senior most special teacher amongst the teachers working in the Rajiv Gandhi Memorial School for the Blinds at Solapur. The said order was set aside by Dy. Director of Social welfare by the impugned order dated 04051998 and Respondent no. 5 Tambe was held as Senior most Teacher on account of having drawn higher pay scale than that of the Petitioner. Shri Tambe was appointed on 01081990 in the pay scale as trained graduate teacher. According to the learned Advocate for the Petitioner the Petitioner is Gondhali, nomadic tribe.
3 The question posed before us is as to whether claim of the Petitioner to the promotional post of Special teacher on the basis of the trained graduate Special teacher was overlooked by the respondent no.1. Our answer is in the negative for following reasons. It is contended on behalf of the Petitioner that the Petitioner was entitled to claim the seniority with effect from 01101987 than the Respondent no.5 Shri Tambe. Learned Advocate for the Petitioner argued that the Petitioner was belonging to the scheduled tribe hence ought
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to have been promoted ahead of the respondent no.5 according to him long absence of the Petitioner during the duty period from 01081990 to 31051991 as pleaded by the respondents was condonable as extraordinary leave.
4 The respondent State has opposed the Petition defending the order under challenge on the ground that the respondent no. 5 was educationally qualified as trained graduate teacher ('special teacher') at the relevant time when post of special teacher was to be filled in and was thus found senior in service than the Petitioner. It is contended that Petitioner was ineligible, not possessing the requisite educational qualification as trained graduate teacher with one year Diploma required for secondary school teacher of visually handicapped. Petitioner not holding the Diploma could not have been treated as trained graduate teacher. Furthermore he was not in continuous employment as he was absent from duty during the period between 01081990 to 31051991 and breaks recorded in the service book of the Petitioner. Learned counsel for the respondent State submitted that the categories of A, B, C, D are of the trained teachers according to rules while the untrained teachers came in the categories 'E' and 'F', hence the Petitioner could not have jumped in to category of 'C' in which the respondent no.5 as trained teacher already was at the time of promotion to the higher scale as 'Special teacher'.
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5 On behalf of the Petitioner it is argued that the Petitioner was on extraordinary leave during the aforesaid period of absence between 01081990 to 31051991. However we do not find material placed before us to believe that the Petitioner was accorded sanction of extraordinary leave by the competent authority as claimed on behalf of the Petitioner. There is reason to believe that absence of the Petitioner from the duty as teacher was without any acceptable reason.
6 The policy of the respondent State, consistent with the rules, indicates that the teacher who acquire the educational qualification as trained graduate teacher first; will have to be considered on priority in the higher scale as 'Special teacher' as per seniority in the same category. Untrained graduate teacher minus post graduate diploma could not have been considered on par with the category of trained graduate teacher so as to be promoted in higher scale as special teacher. Respondent no.5 was already a trained graduate teacher in the year 1989 and was appointed as such on 01081990. The Petitioner was appointed as graduate teacher on 01101987 but he was untrained though appeared senior in age. The Petitioner could not have jumped in to the category 'C' from the category 'E' or 'F' of the untrained teachers in which he was placed as untrained graduate teacher. The Petitioner did not possess the requisite educational qualification i.e. diploma in
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training of the visually handicapped students in addition to his graduate degree. On the other hand, the respondent no 5 possessed the necessary educational qualification as B.A. With additional diploma to train the visually handicapped students. In this peculiar fact situation, in our view the Petitioner and the respondent no. 5 were not similarly circumstanced for both of them to be considered on par for prospects of promotion in service as trained graduate teacher. Petitioner was not entitled to claim the right of promotion over and above the claim of the respondent no.5. Even otherwise the petitioner can not claim promotion merely on the ground that he belonged to the scheduled caste or tribe in the facts of the case. The Petitioner had no legal right to claim seniority and promotion over the claim of the respondent no. 5Shri Tambe in the facts and circumstances of the case. Even assuming that the Petitioner had right to be considered for promotion the impugned order of promoting the respondent no.5 was absolutely faultless, free from any arbitrariness. It is well reasoned, just and proper under the circumstances. Untrained teacher cannot be considered as senior to the trained teacher. They belonged to different categories. The impugned decision was taken by the Dy. Director, Social Welfare Division, (handicapped Division), Pune after grant of opportunity of hearing to the rival claimants and having observed the principles of natural justice.
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7 For all the reasons stated above and bearing in mind the well accepted dictum from the service law jurisprudence that an employee can not as a matter of right claim promotion though he has right to be considered for promotion. Hence we do not feel it essential in the facts and circumstances of this case to disturb the impugned order in exercise of extraordinary writ jurisdiction. No interference is warranted in the well reasoned impugned order in the facts and circumstances of the case.
8 The Petition is, therefore, dismissed with costs. Rule is discharged accordingly.
(A.P.BHANGALE, J.) (NARESH H. PATIL, J.)
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2 issues framed by the court
Whether a teacher untrained in teaching visually handicapped students could claim promotion as a trained graduate special teacher over a teacher who possessed the requisite training diploma.
Whether the impugned order denying the petitioner's claim for seniority and promotion as a trained special teacher was arbitrary, unreasoned, or violative of principles of natural justice.
Chandrakant Baburao Gondhali
Dy.Director of Social Welfare, Maharashtra State
District Social Welfare Officer, Solapur
The State of Maharashtra
President, National Association for the Blinds
Dattatray Babruvahan Tambe
Naresh H. Patil
A.P. Bhangale
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
