ANKUSH MALHARI KAMBLE Vs. GRAMODAY SAMITTEE KURDUWADI

JUDGEMENT

(1.) This Writ Petition was tagged along with companion Writ Petition No.7728 of 2003, which we have already dismissed by our Judgment and order dated 19th July 2010.

(2.) By the above Petition filed under Article 226 and 227 of the Constitution of India, the Petitioner takes exception to the Order dated 8-3-2002, passed by the School Tribunal, Pune, by which order the Appeal filed by the Respondent No.4 herein against his reversion in rank came to be allowed and the order dated 3-1-2000, which was impugned in the said Appeal, came to be set aside, as also the letter dated 24-12-1997 issued by the Education Officer directing the management i.e. Respondent No.1 herein to revert the Respondent No.4 from B.Ed. scale to D.Ed. scale. As the controversy in the present Petition is as regards the Petitioner's entitlement to the B.Ed. scale, the factual matrix involved in the above Petition can be stated thus: At the time of appointment of the Petitioner as an Assistant Teacher on 10-12-1996, he was holding qualification of S.S.C. D.Ed. and he was put in the scale of Trained Undergraduate Teachers Pay-scale. The Petitioner was made permanent on 10-12-1996. The Petitioner thereafter acquired qualification of B.A. B.Ed. and is teaching Hindi in the school run by the Respondent No.1. The Respondent No.4 herein came to be appointed on 3-7-1998 as an Assistant Teacher and was placed in Trained Undergraduate Teachers' Payscale which is applicable to the teacher holding the qualification of S.S.C. D.Ed and at the relevant time he was holding qualification of M.Sc, M.Ed. He was appointed as Assistant Teacher in the B.Ed. scale from 3-8-1996 in the leave vacancy up to 30-9-1996 and thereafter in the vacant post from 1-10-1996 to 30-4-1998. He was again appointed in the B.Ed. scale on 23-7-1997. However, for the next academic year beginning from 3-7-1998, he was appointed on probation for two years, but the said appointment was in D.Ed. scale. He was again put in B.Ed. scale from 14-6-1999 as there was a vacancy for the said scale by then. The said upgradation was approved by the Education Officer. The Respondent No.4 herein all of a sudden was reverted back in the D.Ed. scale from 3-1-2000 by the Management on the ground that the Education Officer by his letter dated 24-12-1999 had directed to promote the Petitioner herein. It is against the said order dated 3-1-2000 that the Respondent No.4 herein filed an Appeal invoking Section 9 of Maharashtra Employees of Private School (Conditions of Service) Regulation Act 1977 (for the brevities sake herein after referred to as "the MEPS Act"). The said Appeal came to be numbered as Appeal No.3 of 2000. In so far as the said Appeal is concerned, the principle ground on which the said order was impugned was that the Respondent No.4 had worked in B.Ed. scale for more than three years, that his appointment was already approved by the Education Officer and that the impugned order dated 3-1-2000 was issued without there being any opportunity given to him. In the said Appeal the Respondent No.1 herein the management filed its Say wherein it was averred that the Respondent No.4 herein was appointed after following the procedure as envisaged in the rules i.e. after appointing him on probation as prescribed by the rules. The Respondent No.1 management further averred that since there was a need for teacher in Mathematics, the Respondent No.4 was continued from time to time and after the Respondent No.4 acquired the B.Ed. Qualification, the proposal was sent to the Education Officer for approval which proposal was never opposed by the Petitioner herein i.e. Respondent No.4 in the Appeal. The management further averred that though the Petitioner herein was senior, considering the need of the school for teacher in Mathematics and considering the educational qualification of the Respondent No.4, it was stated that Respondent No.4 was entitled to the B.Ed. Scale. The Respondent No.4 in the Appeal i.e. Petitioner herein also filed his reply. His principal contention was that he was the senior most teacher and, therefore, entitled to the B.Ed. Scale on that ground. It was further his case that the Respondent No.4 herein has not completed his probation period and it is only the management which is trying to protect the service of the Respondent No.4 herein by denying the claim of the Petitioner herein to the said B.Ed. Scale. The Petitioner herein disputed the reasons given by the management as regards the need for Mathematics teacher and it was his case that there are about 9 Science teachers who were then working in the school, who could have taught Mathematics.

(3.) The Tribunal on the basis of the material that was placed before it, came to the conclusion that though the Petitioner herein was senior to the Respondent No.4, however, considering the fact that there was a dire need for teacher to teach Mathematics, the grant of B.Ed. Scale to the Respondent No.4 herein was justified. The Tribunal further held that since the Petitioner herein has not objected to the proposal being sent to the Education Officer for the grant of B.Ed. Scale to the Respondent No.4 herein, had acquiesced or accepted the said position and, therefore, could not make any grievance about the same. The Tribunal also took into consideration that though there was 9 teachers who were teaching science subjects, none was available to teach Mathematics. However, the Tribunal was of the view that looking to the number of divisions in the school, a permanent arrangement for Mathematics was required and no stop gap arrangement could be made. The Tribunal, therefore, concluded that no favoritism was shown by the Respondent No.1 management in favour of Respondent No.4 herein. The Tribunal also took into consideration the circular dated 23-12-1994 issued by the Education Officer. The said circular inter alia regulates the grant of B.Ed. Scale to a teacher who is already in the D.Ed. Scale. The said circular postulates that the management should follow the directions and guidelines as contended in the letter of the Director of Education dated 9-7-1987 namely that the work load of VIII to X standard should be worked out subject wise. Thereafter, the teacher having B.Ed. qualifications working in the D.Ed. Scale should be considered by considering their subjects. The subject allotted for teaching to existing staff and remaining work load for particular subject should be considered and the Teacher in that subject should be considered for the grant of B.Ed. Scale. Clause 2 of the said circular allows appointment of Teacher from B.Ed. Scale by side tracking the seniority of senior most teacher. If the need arose in respect of a particular subject, the only condition is that prior approval of the Education Officer should be obtained. Considering the matter on the touchstone of the said Circular, the Tribunal was of the view that no fault could be found with the grant of B.Ed. Scale to the Respondent No.4 by over looking the claim of the Petitioner herein.