Veer Anandrao Ganpati vs State of Maharashtra

B.B. Vagyani, J.—By this Writ Petition, the Petitioner seeks to challenge the decision of Respondent No. 2 dated 01/02/1989, the decision of the Respondent No. 3 dated 06/10/1987 and 31/01/1989 coupled with the action of Respondent No. 4 placing Petitioner in D.Ed scale from 15/06/1979 to 13/06/1982.

The facts giving rise to the present Writ Petition are as under :

The Petitioner is M.A. B.Ed. The Respondent No. 4 is a Education Society registered under Societies Registration Act, 1860 and also under Bombay Public Trust Act, 1950. The Respondent No. 4 society runs three Secondary Schools and one Junior College within the local limits of District Sangli. The Respondent No. 4 society published an advertisement in daily Nav Sandesh of Sangli dated 12/06/1979 calling application for appointment of teachers for English subject. Petitioner being qualified as B.A. B.Ed and had offered English as special subject for B.A. submitted his application for the post of trained graduate in response to the advertisement. After completion of formality of interview, the petitioner was appointed as an Assistant Teacher vide appointment order dated 14/06/1979. This appointment order was in the scale of Rs. 365-760. The scale of Rs. 365-760 was admittedly prescribed for trained graduate teacher. In response to the order of appointment, the Petitioner joined his duties with effect from 15/06/1979.

The Respondent No. 5 is B.A. B.Ed, and his subject is Marathi. The Respondent No. 4 appointed Respondent No. 5 as an Assistant Teacher with effect from 17/07/1979. It is alleged by the Petitioner that Respondent No. 5 was working as an Assistant Teacher in some other institution. Respondent No. 5 left his previous service and joined the institution of Respondent No. 4 at the instance of Shri B. A. Patil, one of the Principal Office bearers of Respondent No. 4 society. Shri B. A. Patil the Principal Office bearer of Respondent No. 4 society accommodated Respondent No. 5 in Jyoti Vidyalaya, Yedenipani, where the Petitioner was serving as an Assistant Teacher. The Respondent No. 4 was appointed in the scale of Rs. 365-760. Jyoti Vidyalaya receives 100% grant in aid. This being the position the Respondent No. 4 society is under obligation to send proposal of newly appointed teachers to the Respondent No. 3 for his approval. The Respondent No. 3 for his approval and in the said proposal, the Respondent No. 4 had sought approval to the appointment of Petitioner as trained graduate. Respondent No. 3 made scrutiny of the proposal submitted by Respondent No. 4 and accorded his approval to the appointment of Petitioner as trained graduate. This approval was granted by Respondent No. 3 by his letter dated 22/01/1980. According to the Petitioner, Respondent No. 4 faced difficulties in getting approval to the appointment of Respondent No. 5 as trained graduate teacher because the post on which Petitioner was appointed on 15/06/1979 was the last post of trained graduate available in Jyoti Vidyalaya, Yedenipani. Under the circumstances, the Respondent No. 5 would have been required to work in the S.S.C. D.Ed. scale of Rs. 290-540. The Petitioner easily succumbed to the pressure of Respondent No. 4 simply on the ground that Respondent No. 4 was the employer and was in the position to dominate the Petitioner. On the basis of the consent letter of the Petitioner, the Respondent No. 4 paid him his salary in the scale meant for S.S.C. D.Ed. i.e., Rs. 290-540. The Petitioner has made a grievance that he received salary only after two years and at that time he came to know that his salary was paid in S.S.C. D.Ed. Scale.

The Petitioner was senior to Respondent No. 5. In order to ventilate his grievance with regard to higher scale meant for trained graduate and to seek a proper seniority, he approached the Respondent No. 4. Unfortunately the Petitioner was made to run from pillar to post. He was compelled to approach the Secretary of the Respondent No. 4, the Education Officer, Zilla Parishad, Sangli and also Deputy Director of Education, Kolhapur Division, Kolhapur. Petitioner sent representations to the concerned authorities and requested them to pass appropriate orders with regard to payment of difference of pay and proper placement in the seniority list. Though, Petitioner''s grievance was genuine, the concerned authorities did not pay any heed to the representations submitted by the Petitioner. Petitioner was informed by impugned letters dated 06/10/1987, 31/01/1989 and 01/02/1989 written by Respondent Nos. 3 and 2 respectively that his request would not be considered on the ground that claim was hopelessly time barred and that Petitioner had himself given consent for grant of S.S.C. D.Ed., scale.

The Petitioner lost all his hopes. His attempts did not bear desired fruits. Feeling aggrieved by the orders passed by Respondent Nos. 2 and 3, the Petitioner has finally invoked the jurisdiction of this Court.

The Respondent No. 4 has filed affidavit-in-reply. The Respondent No. 4 has reiterated that the Petitioner had himself given consent letter on 15/06/1979 to the effect that he was ready to work on the pay-scale of D.Ed. and therefore, the Petitioner is not entitled to make any grievance with regard to pay-scale. It is contended in the affidavit-in-reply that Petitioner was appointed on the pay-scale B.Ed, on 12/06/1982 and therefore, his request for seniority cannot be considered. Respondent No. 4 has denied that Petitioner was victim of nepotism. It is categorically denied that due to influence of Shri B. A. Patil, the uncle of Respondent No. 5, Respondent No. 5 was appointed on B.Ed. scale by committing deception on the Petitioner in the matter of consent letter.

We heard learned counsel Shri Subhash Langote for the Petitioner, Shri V. V. D''Gama, learned A.G.P. for respondent Nos. 1 and 2 and Shri B. R. Patil, learned counsel for Respondent No. 4, Respondent Nos. 3 and 5 are duly served.

The learned counsel Shri Subhash Langote, vehemently submitted before us that the petitioner was in fact appointed B.Ed. scale i.e. Rs. 365-760 and Respondent No. 3 had given his approval for appointment of Petitioner as an Assistant Teacher. On the other hand, it is strenuously submitted by learned counsel Shri B. R. Patil, for Respondent No. 4 that the Petitioner was appointed on D.Ed. scale. After careful perusal of the relevant documents, it is clearly seen that the Petitioner was appointed on the scale of Rs. 365-760. A reference could be made with profit to the appointment letter dated 14.06.1979 issued by the Secretary of Respondent No. 4. It is clearly seen from the appointment order dated 14.6.1979 that the Petitioner was initially appointed as an Assistant Teacher in Jyoti Vidyalaya, Yedenipani on the scale of Rs. 365-760 and his appointment was subject to the approval of Government and University. It is admitted fact that Respondent No. 4 had submitted a staff statement to Respondent No. 3 for his approval. The Respondent No. 3 had in fact acting on the staff statement made scrutiny and thereafter, accorded his approval to the appointment of Petitioner by letter dated 22.1.1980. It is emerged out from the approval letter dated 22.1.1980 that the approval was granted from 15.6.1979. There is no whisper in the approval letter dated 22.1.1980 that the Petitioner was appointed on D.Ed. scale. The subsequent letter of appointment dated 27.5.1980 that Petitioner was continued in service as an Assistant Teacher in Jyoti Vidyalaya, Yedenipani with effect from 1.6.1980 to 31.5.1981. There is no whisper in the subsequent order dated 27.5.1980 that the Petitioner was appointed on D.Ed. scale. If regard is had to the initial appointment letter Exh. B dated 14.6.1979, it is beyond doubt clear that the Petitioner was initially appointed on B.Ed. scale Rs. 365-760 and the Respondent No. 3 had accorded his approval. In view of this position, we find considerable substance in the submissions of learned counsel Shri Subhash Langote.

This takes us to consider the Principal plans of defence of Respondent No. 4 with regard to so-called consent letter of the Petitioner. For the reasons best known, the so-called consent letter has not been brought on record. However, execution of such kind of letter was admitted by the Petitioner. While considering this aspect it is required to be borne in mind the relations in between the Petitioner and Respondent No. 4. The Petitioner is in the employment of Respondent No. 4. The Respondent No. 4 being employer is in a dominating position. Keeping in mind this aspect of the matter, one has to appreciate the effect of the so-called consent letter on which much reliance is placed by Respondent No. 4. It is a fact that Respondent No. 5 was appointed on B.Ed. scale on 17/07/1979. It is not in dispute that the post on which the Petitioner was appointed on 15/06/1979 was last post of trained graduate available in Jyoti Vidyalaya, Yedenipani during academic year 1979-1980. Obviously there was difficulty to grant B.Ed scale to Respondent No. 5. The circumstance brought on record would clearly point out that in order to accommodate Respondent No. 5 on B.Ed. scale an ingenious mode has been adopted and exploiting the dominating position the consent letter was obtained from the Petitioner. In view of this position, so-called consent letter cannot be used as an instrument to deprive the legitimate claim of the Petitioner with regard to difference of pay and proper placement in the seniority,

The Petitioner''s claim with regard to seniority is strongly supported by the appointment letter Exh. 1. The Petitioner was appointed as an Assistant Teacher on the B.Ed. scale Rs. 365-760. Respondent No. 3 has accorded his approval to me appointment of the Petitioner. There is no scrap of paper to show that the initial appointment of the Petitioner was made on D.Ed scale. The documents brought on record would indicate otherwise. The Respondent No. 5 was appointed as an Assistant Teacher with effect from 17/07/1979. Under the circumstances, the prayer of the Petitioner with regard to proper placement in the seniority is required to be upheld. It is interesting to note that the competent authorities i.e., Education Officer, Zilla Parishad, Sangli and the Deputy Director of Education, Kolhapur Division, Kolhapur, turned down the prayer of the Petitioner simply on the ground that he made his prayer at belated stage and that he had himself given consent letter for D.Ed. scale. The consent letter suffers from suspicion. The consent letter was brought into existence in order to defeat the legitimate claim of the Petitioner that too to accommodate Respondent No. 5 on B.Ed. scale. At the cost of repetition, we would like to mention that Respondent No. 4 was in a dominating position and the Petitioner was in a apposition who could be easily exploited being sub-ordinate.

The learned counsel Shri Subhash Langote, has rightly relied upon a case decided by Division Bench of this court in Saramma Varghese v. Secretary/President, S.I.C.E.S. Society reported in 1989 ML.J 951. It has been held by the Division Bench of this court that higher payscale is not relevant for the purpose of fixation of seniority of teachers. It has been observed that the seniority will be decided according to the date of appointment and continuous officiation. The ratio of the Saramma Varghese case referred supra would clearly applies to the facts of the present case. The Petitioner having been earlier appointed is senior to Respondent No. 5. Under the circumstances, the Petitioner is entitled to have higher placement in the seniority list than the Respondent No. 5. By virtue of initial appointment of Petitioner on B.Ed. scale the Petitioner is certainly entitled to get difference in salary from 15/06/1979 to 13/06/1982. By the way we would like to mention that by alteration of seniority, no recovery should be made from other teachers who would be affected by this order. Decisions of Respondent Nos. 2 to 4 under challenge are set aside.

In the result, Petition succeeds in terms of prayer clauses (i) to (iv). No order as to costs.