S.M. Bawankar Vs. The Chief Officer Municipal Council Tumsar & Ors.
EmailAppeal: Civil Appeal No. 8390 of 1995
(From the Judgement and Order dated 1.09.93 of the Bombay High Court in W.P.No. 1833 of 1993)
(From the Judgement and Order dated 1.09.93 of the Bombay High Court in W.P.No. 1833 of 1993)
Petitioner: S.M. Bawankar
Respondent: The Chief Officer Municipal Council Tumsar & Ors.
Apeal: Civil Appeal No. 8390 of 1995
(From the Judgement and Order dated 1.09.93 of the Bombay High Court in W.P.No. 1833 of 1993)
(From the Judgement and Order dated 1.09.93 of the Bombay High Court in W.P.No. 1833 of 1993)
Judges: S.Saghir Ahmad & R.P.Sethi,JJ.
Date of Judgment: Apr 29, 1999
Appearances:
D.k.Garg, Adv.for the appellant.
Pinki Anand, Manish, D.N.Goburdhan, R.S.Lambat, Advs. for the Respondent.
Pinki Anand, Manish, D.N.Goburdhan, R.S.Lambat, Advs. for the Respondent.
Head Note:
SERVICE LAWS
Constitution
Art. 226, 136 – Appointment – Head Mistress of Municipal School – Appointed on 25.09.90 – Appointment set aside as order of promotion issued in 1993 and Respondent having been appointed as Assistant Head Master on 5.10.90 – Head Mistress appointed in service earlier in time – Shown senior in common seniority list – Had better experience of teaching – Resolution of employer in her favour. Held that judgement of High Court in not sustainable. However, appellant had since retired and could not work as Head Mistress, only consequential post-retiral benefit given.
Constitution
Art. 226, 136 – Appointment – Head Mistress of Municipal School – Appointed on 25.09.90 – Appointment set aside as order of promotion issued in 1993 and Respondent having been appointed as Assistant Head Master on 5.10.90 – Head Mistress appointed in service earlier in time – Shown senior in common seniority list – Had better experience of teaching – Resolution of employer in her favour. Held that judgement of High Court in not sustainable. However, appellant had since retired and could not work as Head Mistress, only consequential post-retiral benefit given.
Held:
High Court erred in holding her to be junior to respondent No.4 because she had acquired the requisite qualification in the year 1959 and subsequently prior to the respondent No.4 as is evident from annexure R.1. It appears that the High Court completely ignored the common seniority list of the Head Masters and Assistant Head Mistresses as it existed on 12.07.1993 (Annexure R-1), The High Court was also not justified in substituting its opinion for the opinion of the appointing authority regarding the comparative merit of the two contenders.
(para 3)
(para 3)
JUDGEMENT:
Sethi,J.
1. The appellant claims to have been appointed as Head Mistress on the basis of her seniority in the high schools on 25.9.1990. Respondent No. 4 is stated to have been appointed as Assistant Head Master on 5.10.1990. The President of the respondent municipal council issued the orders for promotion of appellant as Head Mistress on 13.07.1993. Respondent No. 4 filed a petition under Article 226 of the Constitution of India praying for issuance of an appropriate writ setting aside the order dated 13.07.1993 by which the appellant was promoted as Head Mistress with a further direction to the Chief Officer of the Municipal Council to appoint him as Head Master of the Municipal Nehru High School, Tumsar. The writ petition was allowed vide the order impugned on the ground of the respondent No.4 allegedly being senior.
2. It is not the dispute that the seniority is a relevant term which has reference to the class category or grade regarding which an issue is raised. A perusal of annexure R-1 would show that the appellant had joined the school on 23.07.1957 whereas respondent No.4 was employed on 20.08.1959. The appellant is shown to have appointed in the high school in the year 1959 whereas respondent No.4 on 16.07.62. It is also on record that the appellant had rendered services to teach high school classes from 1959 prior to her substantive appointment on 04.09.1968. The Municipal Council, Tumsar, the employer the contending parties in its Resolution Annexure ‘B’ referred to the available record including the seniority list of 1988 which had not been approved by the Standing Committee or the General Committee of Municipal Council and found that the appellant herein was senior to the respondent No.4 and had better experience on the post of Incharge Head Mistress on comparison of the merit of both the contenders. The Municipal Council resolved :-
“On the above information it is seen that Smt. Bavankar is senior in service than Sri. J.G.Gaidhane and therefore , Smt.Bavankar should be promoted on the vacant post of Head Master in Municipal Nehru Vidyalaya unanimously. The order of the promotion on the post of Head Mistress should be given as early as possible.
It is resolved that seniority list of the three secondary schools should be prepared as follows: At first the seniority of Head Masters then seniority of Assistant Head Master and Supervisors and then Assistant Teachers seniority of secondary/High school should be prepared. As per above the Seniority should be prepared of three High Schools and same be published by affixing on office notice boards and the said seniority list as prepared should be placed before the General Committee of the Council have been resolved unanimously.”
3. The High Court , however found that respondent No.4 allegedly being in service in 1962 after acquiring qualification requisite for High School teacher had better merit than the appellant who was stated to have requisite qualification in the year 1968. She was held to be eligible for her place in the seniority from 1968 only. Finding that the Standing Committee of the Municipal Council had wrongly given seniority to the appellant, the writ petition filed by him was allowed. The appellant is justified in contending that the High Court erred in holding her to be junior to respondent No.4 because she had acquired the requisite qualification in the year 1959 and subsequently prior to the respondent No.4 as is evident from annexure R.1. It appears that the High Court completely ignored the common seniority list of the Head Masters and Assistant Head Mistresses as it existed on 12.07.1993 (Annexure R-1), and decided the case on the basis of bare averments made by the respondent No.4 regarding his claim of seniority. The High Court was also not justified in substituting its opinion for the opinion of the appointing authority regarding the comparative merit of the two contenders. There was no occasion for the High Court to accept the contentions of respondent No.4 regarding his claim of seniority and comparative merit. The High Court also appears to have erred in coming to the conclusion that the impugned order had the effect of reversion of respondent No.4
4. Looking from any angle, the Judgment impugned in this appeal cannot be sustained and is liable to be set aside. However, we were informed during the arguments that both the appellant and respondent No.4 had since retired. Under the peculiar circumstances of the case but without creating any precedent , we direct that as a result of setting aside the impugned judgement of the High Court , the appellant shall be deemed to have been properly appointed as Head Mistress vide order dated 12.07.1993 but as on account of the litigation she could not perform her duties as head Mistress, she would not be entitled to any consequential monetary benefits. except the post-retiral benefits of pension only. Similarly, without intending to be treated as a precedent we direct that as the respondent No. 4 was allowed to perform the duties of Head Mater on the basis of the judicial pronouncements made in his favour, the acceptance of this appeal would not authorise the employer to recover any benefits conferred upon him on account of the judgment of the High Court. His pension or post retiral benefits would also not be adversely affected. Parties to bear their own costs.
1. The appellant claims to have been appointed as Head Mistress on the basis of her seniority in the high schools on 25.9.1990. Respondent No. 4 is stated to have been appointed as Assistant Head Master on 5.10.1990. The President of the respondent municipal council issued the orders for promotion of appellant as Head Mistress on 13.07.1993. Respondent No. 4 filed a petition under Article 226 of the Constitution of India praying for issuance of an appropriate writ setting aside the order dated 13.07.1993 by which the appellant was promoted as Head Mistress with a further direction to the Chief Officer of the Municipal Council to appoint him as Head Master of the Municipal Nehru High School, Tumsar. The writ petition was allowed vide the order impugned on the ground of the respondent No.4 allegedly being senior.
2. It is not the dispute that the seniority is a relevant term which has reference to the class category or grade regarding which an issue is raised. A perusal of annexure R-1 would show that the appellant had joined the school on 23.07.1957 whereas respondent No.4 was employed on 20.08.1959. The appellant is shown to have appointed in the high school in the year 1959 whereas respondent No.4 on 16.07.62. It is also on record that the appellant had rendered services to teach high school classes from 1959 prior to her substantive appointment on 04.09.1968. The Municipal Council, Tumsar, the employer the contending parties in its Resolution Annexure ‘B’ referred to the available record including the seniority list of 1988 which had not been approved by the Standing Committee or the General Committee of Municipal Council and found that the appellant herein was senior to the respondent No.4 and had better experience on the post of Incharge Head Mistress on comparison of the merit of both the contenders. The Municipal Council resolved :-
“On the above information it is seen that Smt. Bavankar is senior in service than Sri. J.G.Gaidhane and therefore , Smt.Bavankar should be promoted on the vacant post of Head Master in Municipal Nehru Vidyalaya unanimously. The order of the promotion on the post of Head Mistress should be given as early as possible.
It is resolved that seniority list of the three secondary schools should be prepared as follows: At first the seniority of Head Masters then seniority of Assistant Head Master and Supervisors and then Assistant Teachers seniority of secondary/High school should be prepared. As per above the Seniority should be prepared of three High Schools and same be published by affixing on office notice boards and the said seniority list as prepared should be placed before the General Committee of the Council have been resolved unanimously.”
3. The High Court , however found that respondent No.4 allegedly being in service in 1962 after acquiring qualification requisite for High School teacher had better merit than the appellant who was stated to have requisite qualification in the year 1968. She was held to be eligible for her place in the seniority from 1968 only. Finding that the Standing Committee of the Municipal Council had wrongly given seniority to the appellant, the writ petition filed by him was allowed. The appellant is justified in contending that the High Court erred in holding her to be junior to respondent No.4 because she had acquired the requisite qualification in the year 1959 and subsequently prior to the respondent No.4 as is evident from annexure R.1. It appears that the High Court completely ignored the common seniority list of the Head Masters and Assistant Head Mistresses as it existed on 12.07.1993 (Annexure R-1), and decided the case on the basis of bare averments made by the respondent No.4 regarding his claim of seniority. The High Court was also not justified in substituting its opinion for the opinion of the appointing authority regarding the comparative merit of the two contenders. There was no occasion for the High Court to accept the contentions of respondent No.4 regarding his claim of seniority and comparative merit. The High Court also appears to have erred in coming to the conclusion that the impugned order had the effect of reversion of respondent No.4
4. Looking from any angle, the Judgment impugned in this appeal cannot be sustained and is liable to be set aside. However, we were informed during the arguments that both the appellant and respondent No.4 had since retired. Under the peculiar circumstances of the case but without creating any precedent , we direct that as a result of setting aside the impugned judgement of the High Court , the appellant shall be deemed to have been properly appointed as Head Mistress vide order dated 12.07.1993 but as on account of the litigation she could not perform her duties as head Mistress, she would not be entitled to any consequential monetary benefits. except the post-retiral benefits of pension only. Similarly, without intending to be treated as a precedent we direct that as the respondent No. 4 was allowed to perform the duties of Head Mater on the basis of the judicial pronouncements made in his favour, the acceptance of this appeal would not authorise the employer to recover any benefits conferred upon him on account of the judgment of the High Court. His pension or post retiral benefits would also not be adversely affected. Parties to bear their own costs.
