MANGALA VASANT YADAV Vs. POONA SEVASADAN SOCIETY

JUDGEMENT

(1.) Though this Petition is claimed to have been filed under Article 226 and 227 of the Constitution, the same is being treated under Article 227 only having regards to the reliefs prayed for in the petition. The Petition arises from the Judgement and Order dated 15-9-1990 rendered by the School Tribunal at Pune whereby dismissing the Appeal No.105/1989 filed by the present Petitioner challenging the appointment of Respondent No.5 to the post of Assistant Head Mistress w.e.f. 1-10-1989 at the Girls High School at Solapur. The cause for filing the appeal arose on 1-8-1987 and Section 9 of the MEPS Act was amended with effect from 7-8-1987 so as to provide for a remedy to apply in case of supersession as alleged as per the Maharashtra Employees of Private Schools (Conditions of Service) Regulations(Amendment) 1987.

(2.) The Petitioner held the qualifications of B.A. B.Ed and she came to be appointed as an Assistant Teacher from 10-7-1981 as per the appointment order dated 9-7-1981. The Respondent No.5 with the same qualifications of B.A. B.Ed came to be appointed as an Assistant Teacher with effect from 16-8-1982. It appears both of them were not given the pay scale of trained graduate teacher. The Respondent management appointed one Mr. Ramesh Phulari with effect from 31-12-1985 as a trained graduate teacher with the same qualifications of B.A. B.Ed and the Petitioner by her representation dated 2-1-1986 pointed out to the management that she was holding the very same qualifications and she ought to have been given the pay scale of trained graduate teacher rather than somebody being appointed from outside. She also pointed out that the justification for Mr. Ramesh Phulari being appointed in trained graduate teachers pay scale from 31-12-1985 as he was to teach English subject was not proper and convincing because Shri Arvind Kulkarni with M.A. B.Ed degrees and had English subjects as optional but he was never assigned teaching of English subjects at the Secondary level. On 1-10-1989 Shri Talvalkar who was working as a Head Master of the Respondent No.4 School retired and in his place the next senior most teacher Smt. Mayeskar was appointed. Consequently, the post of Assistant Head Mistress which was held by Mrs. Mayeskar fell vacant and the Respondent management appointed Respondent No.5 to the said post w.e.f. 1-10-1989, which appointment the petitioner challenged as noted earlier by filing an Appeal under Section 9 of the MEPS Act, 1977.

(3.) The Respondent Management filed its written-statement and opposed the appeal. However, it appears that Respondent No.5 did not file any written statement to oppose the appeal. The management contended that (a) both the Petitioner and Respondent No.5 were appointed in the primary class of the High School in D.Ed scale and were in B category, (b) the Petitioner was senior to the Respondent No.5 in the B category, (c) on the representation submitted by Respondent No.5 she was granted a trained graduate teacher's pay scale w.e.f. 1-8-1987 (in the academic year 1987-88 whereas on the representation of the petitioner in the academic year 1988-89, she came to be given the trained graduate teachers' pay-scale w.e.f. 13-6-1988, (d) in category 'C', the Respondent No.5 was senior and in the seniority list published in the academic year 1997-98 she was shown senior to the Petitioner which was never objected to by her and (e) on the petitioner being given the impugned category 'C' as stated in Schedule F to the MEPS Rules, 1981, a fresh list was published and the Respondent No.5 was shown at sr. no.69 whereas Petitioner was shown at sr. No. 17 and this was again not objected to by the Petitioner. In short it was contended by the management that Respondent No.5 being senior to the Petitioner as a trained graduate teacher, it proceeded to appoint Respondent No.5 to the post of Assistant Head Mistress. The School Tribunal has accepted the plea of the management and has further relied upon the circular dated 23-11-1983 (exh.23) to held that Petitioner was junior to Respondent No.5 as a trained graduate teacher. The Tribunal further held that the Judgement of this Court (Division Bench) in the case of Saramma Verghese V/s. Secretary, SICES Society (1989 Mh LJ 951 was not applicable and thus it confirmed the appointment of Respondent No.5 to the post of Assistant Head Mistress. The Tribunal also considered the appointment letter issued to the Petitioner (exh.28) and held that the Petitioner was appointed to teach primary classes (standards Vth to VIIIth) in the SSC+D.Ed scale and the petitioner could not be treated to be a trained graduate teacher till she was granted the pay scale as applicable to the trained graduate teacher. The Tribunal also referred to the application dated 20-6-1981 submitted by the Petitioner (exh. 24) and noted that the said application was for the post of Assistant Teacher in SSC+D.Ed scale.