Case Note & Summary
The dispute pertained to inter se seniority between two teachers, the petitioner and the fourth respondent, both appointed as Teacher Grade-I in People's Higher Secondary School, Panaji, Goa, on the same date. The fourth respondent, being older, was shown as senior from the outset. The petitioner challenged her seniority on two grounds: first, that the fourth respondent lacked the requisite qualifications for the post as she held a postgraduate degree in Microbiology, not Biology, and therefore her service was ad hoc and could not rank senior; second, that the period she spent on extraordinary leave from 21 September 2007 to 30 June 2013 while employed abroad should be excluded from seniority computation. The Director of Education dismissed the petitioner's appeals against the seniority lists for 2011-12 and 2013-14, and the Administrative Tribunal affirmed this in dismissing Education Appeal No. 3/2014, holding that the challenge to the regularity of appointment was beyond the scope of Rule 87-A of the Goa, Daman and Diu School Education Rules, 1986, and that extraordinary leave under the Rules of 2002 did not affect seniority. The petitioner then filed a writ petition before the High Court. The High Court examined the two contentions. On the first, it concurred with the Tribunal that the legality of the initial appointment could not be examined in a seniority appeal under Rule 87-A, as that rule only deals with preparation and correction of seniority lists and not with the validity of appointment. The petitioner's reliance on Bhupendra Nath Hazarika vs. State of Assam was distinguished on facts. On the second, the court interpreted Rule 2(i) of the Goa State Civil Services (Grant of Leave to seek employment in India or Abroad) Rules, 2002, which disentitles an employee on extraordinary leave to 'service benefits' such as monetary benefits and chances of promotion, but held that 'service benefits' does not encompass seniority. The court noted that the leave order did not specify loss of lien, and the fourth respondent's lien on the post continued. The court distinguished the cited decisions and found no merit in the petitioner's arguments. Consequently, the writ petition was dismissed, and the seniority of the fourth respondent was upheld.
Headnote
A) Seniority - Challenge to Regularity of Appointment - Scope of Rule 87-A - Goa, Daman and Diu School Education Rules, 1986 - The petitioner challenged the seniority of the fourth respondent on the ground that her initial appointment was irregular due to lack of proper qualifications; the Administrative Tribunal held that the question of regularity of appointment could not be agitated under Rule 87-A which provides for appeal against seniority list; the High Court concurred, holding that in a seniority dispute under Rule 87-A, the Director or Tribunal cannot examine the legality of the initial appointment; Held that the challenge to appointment regularity was beyond the scope of Rule 87-A and stood rejected (Paras 7, 9, 12)
B) Seniority - Effect of Extraordinary Leave - Rule 2(i) of Goa State Civil Services (Grant of Leave to seek employment in India or Abroad) Rules, 2002 - The petitioner contended that the period of extraordinary leave should be excluded for seniority, relying on Rule 2(i) which deprives an employee of 'service benefits' during leave; the Tribunal held that seniority is not lost, only monetary benefits and promotion chances are affected; the High Court upheld this, holding that 'service benefits' under Rule 2(i) does not include seniority, and in the absence of any rule specifically affecting seniority, the lien on post continues; Held that there is no merit in the contention that the period spent on extraordinary leave would affect the seniority of the fourth respondent (Paras 10, 11, 13, 14)
Issue of Consideration
Whether the period of extraordinary leave affects inter se seniority and whether the appointment of the fourth respondent was regular given her qualifications, thereby affecting seniority
Final Decision
The writ petition was dismissed. The High Court upheld the orders of the Administrative Tribunal and Director of Education, finding no merit in the petitioner's contentions. The court held that the challenge to the regularity of the fourth respondent's appointment was beyond the scope of Rule 87-A, and that the period of extraordinary leave did not affect her seniority. No order as to costs.
Law Points
- seniority dispute
- Rule 87-A of Goa
- Daman and Diu School Education Rules 1986
- Rule 2(i) of Goa State Civil Services (Grant of Leave to seek employment in India or Abroad) Rules 2002
- extraordinary leave does not affect seniority
- challenge to regularity of appointment beyond scope of appeal
- service benefits under Rule 2(i) do not include seniority
Case Details
2018 LawText (BOM) (10) 148
WRIT PETITION NO. 1140 OF 2017
Nigel Da Costa Frias, Maria Correira, Amir Jamadar, A. D. Bhobe, R. Rao
The Director of Education, Government of Goa and others
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Nature of Litigation
Writ petition challenging inter se seniority between two teachers in a higher secondary school.
Remedy Sought
Petitioner sought to quash the orders maintaining the seniority of the fourth respondent and to declare his own seniority as higher.
Filing Reason
Petitioner challenged the seniority list on two grounds: alleged irregular appointment of the fourth respondent due to lack of proper qualifications, and the period of extraordinary leave which should be excluded from seniority computation.
Previous Decisions
Director of Education dismissed petitioner's appeals (Education Appeal No.I/2011 and 10/2013) on 1/7/2014, maintaining the fourth respondent's seniority. Administrative Tribunal dismissed Education Appeal No.3/2014 on 11/5/2017, holding that the challenge to regularity of appointment was beyond the scope of Rule 87-A and that extraordinary leave did not affect seniority.
Issues
Whether the challenge to the regularity of the fourth respondent's appointment could be entertained in a seniority appeal under Rule 87-A of the Goa, Daman and Diu School Education Rules, 1986.
Whether the period of extraordinary leave spent by the fourth respondent affects her seniority under the Goa State Civil Services (Grant of Leave to seek employment in India or Abroad) Rules, 2002.
Submissions/Arguments
Petitioner argued that the fourth respondent lacked the requisite postgraduate degree in Biology and therefore her appointment was irregular; at most it was ad hoc and could not confer seniority over regularly appointed teachers.
Petitioner contended that the period of extraordinary leave (21/9/2007 to 30/6/2013) should be excluded from seniority computation, relying on Rule 2(i) of the 2002 Rules and various judicial precedents.
Petitioner submitted that the Director and Tribunal erred in refusing to examine the legality of the appointment under Rule 87-A, as for the limited purpose of determining inter se seniority, such examination is permissible.
Petitioner further argued that the term 'service benefits' under Rule 2(i) includes seniority, and the employee on leave loses all service benefits during that period.
Respondent contended that the challenge to the appointment was not raised before the authority and that the petitioner had not sought any declaration regarding the nature of appointment in the petition.
Respondent argued that the fourth respondent had been promoted as Principal with approval and that her appointment was in fact regular.
Respondent maintained that Rule 2(i) of the 2002 Rules only affects monetary benefits and chances of promotion, not seniority, and that the employee retained lien on the post.
Ratio Decidendi
An appeal against a seniority list under Rule 87-A of the Goa, Daman and Diu School Education Rules, 1986 does not permit examination of the legality or regularity of the initial appointment of a teacher. The scope is confined to correctness of the seniority list as drawn. The period of extraordinary leave taken under the Goa State Civil Services (Grant of Leave to seek employment in India or Abroad) Rules, 2002 does not affect the seniority of the employee, as the term 'service benefits' in Rule 2(i) refers only to monetary benefits and chances of promotion, not to the inter se seniority position. In the absence of a specific provision or a condition in the leave order affecting seniority, the employee retains lien on the post and seniority is maintained upon rejoining duty.
Judgment Excerpts
The Tribunal, in my considered view, was right in holding that the question of regularity of appointment cannot be determined in an appeal under Rule 87-A.
Admittedly the Rules of 2002 do not specifically deal with the question of loss of seniority.
In my considered view, there is no merit in the contention that the period spent on extraordinary leave would affect the seniority.
Procedural History
Petitioner filed Education Appeal No.I/2011 and 10/2013 before the Director of Education challenging the seniority lists for 2011-12 and 2013-14. The Director dismissed both appeals on 1/7/2014. The petitioner then filed Education Appeal No.3/2014 before the Administrative Tribunal, which dismissed it on 11/5/2017. Aggrieved, the petitioner filed Writ Petition No.1140/2017 before the High Court of Bombay at Goa.
Acts & Sections
- Goa, Daman and Diu School Education Act, 1984:
- Goa, Daman and Diu School Education Rules, 1986: Rule 87-A, Rule 78, Clause 5 of table annexed to Rule 78
- Goa State Civil Services (Grant of Leave to seek employment in India or Abroad) Rules, 2002: Rule 2(i)
- Goa Government (Seniority) Rules, 1967: Rule 5
- Central Civil Services (Pension) Rules: Rule 21
- Fundamental Rules: F.R. 26
