CHIEF EXECUTIVE OFFICER, ZILLA PARISHAD, BEED AND ORS.versusSYED YASIN AND ORS.

       CHIEF EXECUTIVE OFFICER, ZILLA PARISHAD,                                A
                    BEED AND ORS.
                                    v.
                       SYED YASIN AND ORS.

                            APRIL 24, 1996
                                                                               B
          [K. RAMASWAMY AND G.B. PAITANAIK, JJ.}

       Se1vice Law-Mallamshtra Zilla Pmishad1· DistJict Se1vices (Recmit-
ment) Rules, 1967-Primary School Teachers in services of Zilla
Pwishads-Upgradation of these posts to post of Head Masters--Resolution        c
No. PTP. 1070-F dated 22.10.1970 authorising Upgradation 1v.e.j.
1.4. 1966--Conditions precedent should be sati.1jied.

      The State of Maharashtra issued a Resolution No. PTP. 1070-F
dated 22.10.1970 authorising the Zilla Parishads, authorised D
Municipalities, the Nagpur Municipal Corporation and the Municipal
Councils in Nagpur Division to upgrade the existing posts of primary
school teachers on their respe~tive establishments into the posts of Head
Masters with retrospective effect from 1.4.1966. It was, however, stated in
the Resolution that the number of posts tl; be upgraded in each Zilla
Parishad should be equal to the total number of primacy school teachers E
upto and inclusive of Standard Vll and other primary schools having 200
or more people on their rolls on 1.4.1966; that the authorised·
Municipalities should be requested to fix the number of posts of Head
Masters on the basis indicated on 1.4.1966 for the first time and to
subsequently review it annually on 1st April; that the Zilla Parishads F
should be requested to fill up the posts of Head Masters by promotion in
accordance with, the provisions of Rule 6(4) r/w item No.8 in Appendix IV
(Part II) to Rule 5 of the Maharashtra Zilla Parishads District Services
(Recruitment) Rules, 1967.

       Respondents 1 to 4 serving under Zilla Parishad as Primary School       G
Teachers no deputation were finally absorbed in the services of Zilla
Parishad in the year 1968·69. They filed Writ Petition claiming that they
were entitled to the time scale of pay admissible to the post of Head Master
w.e.f. 1.4.1966 on the basis of this Government Resolution, While the
matter was pending, the Chief Executive Officer of Zilla Parishad, the         H
                                      729
    730                   SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A   competent authority to decide the lJUestion of upgradation by his order
    dated 18.4.9!1 directed that respondents 1 to 4 be granted the scale of pay
    meant for upgraded Head Masters w.e.f. 1.4.1966. However, the Chief
    Executive Officer suspended the operation of his order by his subsequent
    order dated 26.10.1990 when the Accounts Officer pointed out that this
B   order was contrary to the Government Resolution. The High Court, how-
    ever, relying upon his earlier order, without noticing the subselJUent order
    of the Executive Otlicer dated 26.10.1990, allowed the Writ Application.
    Hence this appeal.

          The appellant contended that the High Court committed gross error
C   in giving effect to the order of the executive otlicer dated 18.4.1990 even
    though that order had been kept under suspension by the later order dated
    26.10.1990 and the High Court ~ithout even examining the question as to
    whether there was vacancy for upgradation in terms of Resolution dated
    22.10.1970 committed error in directing implementation of the earlier
D   nrder of the Executive Ofticer.

           The respondents contended that there were several subsequent
    clarificatory orders issued by the State Governmept to clarify that respon-
    dents were entitled for being promoted to the upgraded post of Head
    Masters. However, no such orders were produced.
E
          Allowing the appeal, this Court

           HELD : By resolution dated 22.10.1970 a Chief Executive Otlicer of
    a Zilla Parishad would be authorised to upgrade the post of primary
F   school teacher to that of Head master provided the condition precedent
    prescribed in the said Resolution were satisfied. The Resolution did not
    ipso facto convert the post of primary school teacher to that of Head Master.
    The Chief Executive Officer was entitled to consider the matter afresh and
    put the earlier order in abeyance. Non consideration of his order dated
    26.10.1990 by the High Court and directing implementation of the earlier
G   order dated 18.4.1990 vitiated the judgment of the High Court. Since the
    Chief Executive Officer had merely suspended the earlier order dated
    18.4.1990 and had not taken any final decision with regard to the entitlement
    of respondents 1 to 4 to be appointed against the upgraded post of Head
    Master and if so from which date, the Chief Executive Officer is directed to
H   take a final decision within three months from the date of receipt of this
         CI-1 I EF EXECUTIVE OFFICER. v. SYED [PATfAN AlK, J .]       731

order and communicate the same to respondents 1 to 4, [738-D-G]             A
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7491 of
1996.

     From the Judgment and Order dated 3.9.93 of the Bombay High
Court in W.P. No. 1638 of 1989.                                             B

        Manoj Swarup for the Appellants.

        Rajendra Singhvi and Ashok Kumar Singh for the Respondents.

        The Judgment of the Court WdS delivered by :
                                                                            c

        Leave granted.

       PATIANAIK, J. This appeal by Special leave is directed against the
judgment of the Bombay High Court dated 3.9.93 inter alia on the ground. D
that the High Court committed gross error in relying upon the order of the
Chief Executive Officer dated 18.4.90 even though the said Chief Executive
Officer has suspended the operation of his eadicr order by his order dated
26.10.1990. The short facts necessary for adjudicating the point in issue are
that respondents 1 to 4 were serving under Zilla Parishad as Primary E
School Teachers on deputation betwe~n 1962-1968 and were finally ab-
sorbed in the services of Zilla Parishad in a year 1968-69. The State of
Maharashtra, respondent No.5, issued a Resolution No. PTP. 1070-F dated
22nd October 1970 authorising the Zilla Parishads, authorised
Municipalities in Western Maharashtra, the Nagpur Municipal Corpora-
tion and the Municipal Councils in Nagpur Division to upgrade the existing
                                                                              F
posts of primary school teachers on their respective establishments into the
posts of Head Masters in the scale of pay of Rs. 145-250 with retrospective
effect from 1st April1966. It was, however, staled in the said Resolution
that the number of posts to be upgraded in each Zilla Parishad should be
equal to the total of the number of primary school teachers upto and G
inclusive of Standard VII and other primary schools having 200 or more
people on their rolls on 1st April, 1966. The Resolution also stipulated that
the Zilla Parishads, the authorised Municip·aJities, the Nagpur Municipal
 Corporation and Municipal Councils in Nagpur Division should be re-
 quested .to fix the number CJf posts of Head Masters on the basis indicated H
    732                  SUPREMECOURTREPORTS j1996} SUPP.lS.C.R.

A above on 1st April, 1966 for the first time and to subsequently review it
    annually on 1st April. The aforesaid Resolution further indicated that the
    Zilla Parishads should be requested to fill up the posts of Head Masters
    by promotion in accordance With the provisions of Rule 6(4) read with item
    No. 8 in Appendix IV (Part II) to Rule 5 of the Maharashtra Zilla
B   Parishads District Services (Recruitment) Rules, 1967 (hereinafter referred
    to as "the Recruitment Rules"). The relevant Resolution is extracted
    hereinbelow in extenso :

            "RESOLUTION. - Government is pleased to authorise the Zilla
            Parishads, authorised Municipalities in Western Maharashtra, the
c           Nagpur Municipal Corporation and the Municipal Councils in
            Nagpur Divisions to upgrade the existing posts of primary school
            teachers on their respective establishments into the posts of Head
            Masters in the scale of pay of Rs. 145-5-175-6- 187-E.B.-6-205-9-
            250, sanctioned in Government Resolution, Education and Social
D           Welfare Department, No. PTP. 1069-F dated the 19th June, 1969,
            with retrospective effect from 1st April, 1966. The number of posts
            to be upgraded by each Zilla Parishad, authoris~d Municipality,
            Nagpur Municipal Corporation or a Municipal Council, as the case
            may be, should be equal to the total of :

E              (i) the number of primary schools teaching upto and inclusive
            of Standard VH; and

                (ii) the other primary schools having 200 or more pupils on
            their rolls on 1st April 1966.
F
               The Zilla Parishads, the authorised Municipalities, the Nagpur
            Municipal Corporation and Municipal Councils in Nagpur
            Division should be requested to flx the number of posts of Head
            Masters on the basis indicated above on 1st April1966 for the first
            time and to subsequently review it annually on 1st April.
G
                2. (A) The Zilla Parishads should be requested to fill up the
            posts of Head Masters by promotion in accordance with the
            provisions of Rule 6(4) read with item No.8 in Appendix IV (Part
            II) to Rule 5 of the Maharashtra Zilla Parishads District Services
H           (Recruitment) Rules, 1967.
CHIEF EXECUTIVE OFFICER. v. SYED [PATIANAIK, J.)              733

    EXPLANATION.- A primary teacher who has put in con- A
tinuous service of five years as a teacher and who is trained should
be held eligible for promotion to the upgraded post of Head
Master. Five years' service need not necessarily be post-training
serv1ce.

    (B) The Municipal School Boards, the Nagpur Municipal Cor-       B
poration and the Municipal Councils in Nagpur Division .~hould
be requested to fill up the posts of Head Masters authorised under
the Government Resolution by promotion in accordance with the
Recruitment Rule attached to this Government Resolution
(Schedule A) and in consultation with the Staff Selection Commit-    c
tee, if any.

   3. The ftxation of pay, payment of arrears and other cognate
matters should be regulated in accordance with the instructions
contained in Schedule B attached to this Government Resolution.
                                                                     D
   4. This Government Resolution issues with the concurrence of
the Rural Development Department and Finance Department,
vide Finance Department, unofficial No. 1750/XXVI, dated 22nd
October, 1970.          ·

   By order and in the name of the Governor of Maharashtra."         E
Schedule A attached to the aforesaid Resolution made it clear that
appointment to the posts shall be made by the promotion on the
basis of seniority-cum-merit from among trained primary school
teachers in the service of the Municipal School Board, Corporation
                                                                     F
of Council, as the case may be, who have completed not less than
5 years of continuous service as a teacher.

   In Schedule B to the aforesaid Resolution the 'Head Master'
was defined thus -
                                                                     G
    "A 'Head Master' means a primary teacher who was working
as the Head or. Head Teacher of a primary school"

   Expression "upgraded Head Master" was defined thus :

   "A post of 'upgraded Head Master means the newly authorised       H
    734                SUPREME COURT REPORTS [19961 SUPP.l S.C.R.

A         post of Head Master in the grade of Rs. 145-250".

             Expression ''Primary teacher eligible for appointm-ent" was
          defined thus :

              "A primary teacher 'eligible for the appointment' as an
B         upgraded Head Master is that teacher who fulfills the conditions
          laid down in the recruitment rule for the ~aid post read with
          explanation given below para 2(A) of the main Government
          Resolution to which this Schellule is an accompaniment, and who
          on the basis of his seniority-cum-merit, had been found eligible by
          the competent authority (i.e. the District Selection Board, the
c         Selection Committee etc.) for appointment to the said post."

             Expression a primary teacher "entitled to appointment" was
          defined thus :

             A primary teacher 'entitled to appointment as an upgraded
0         Head Master on a particular date is that teacher who is eligible
          for appointment and who, by \~rtue of this rank in the list of
          teachers eligible for appointment to the posts of upgraded Head
          Masters, becomes due for appointment to the said post on that
          date."
E            The date of notional appointment was defined thus :

              Date of notional appointment" is that date on which a primary
          teacher entitled to appointment as an upgraded Head Master
          would have been appointed as such because a vacancy was avail-
          able on that date, (It may be mentioned that in a vast majority of
F         cases, lst April, 1966, 1st April, 1967, 1st 1968, lst April1969, 1st
          1970 and so on will be the notional dates of appointment. In a few
          case~ however, the notional dates of appointment may fall within
          the period intervt:ning bel.wccn the afl)resaid dates if vacancies of
          upgraded Head Masters had arisen owing to retirement, resigna-
G         tion, removal, dismissal, death etc.)''

              Schedule B also classified the different types of cases where
          appropriate authority was entitled to upgrade the post of teacher
          to that of Head Master and to review the position annually. The
          relevant portions of the Resolution is extracted hereinbelow in
H         extenso:
CHIEF EXECUTIVE OFFICER. v. SYED [PATTANAIK, J.}               735

               II. CLASSIFICATION OF CASES                            A
   The Zilla Parishads, Municipal School Boards, Municipal Cor-
poratiom and Municipal Councils of Nagpur Division have been
authorised to create posts of upgraded Head Masters with affect .
from 1st April 1966 and to review the position annually on 1st of
April every year thereafter. As a result, following types of cases B
are likely to arise :

    (a) A primary teacher who is entitled to appointment as an
upgraded Head Master from 1st Aril 1966 and has also actually
worked continuously as a Head Master of an eligible Primary           C
School from 1st April 1966, or from any subsequent date, or for
intermittent periods after 1st April 1966, till his actual appoint-
ment as an upgraded Head Master after the newly authorised posts
of upgraded Head Masters are formally created; or till his super-
annuation, retirement, resignation etc. on a date prior to the date
on which the newly authorised posts of upgraded Head Masters          D
are formally created.

   (b) A primary teacher who is entitled to appointment as an
upgraded Head Master from 1st April 1966 but has not actually
worked as a Head Master of an eligible Primary School for any
period of whatsoever from 1st April 1966 till he is actually ap-
                                                                      E
pointed as an upgraded Head Master after the newly authorised
posts of upgraded Head Masters are formally created; or till his
superannuation, retirement, resignation etc. on a date prior to the
date on which the newly authorised posts of upgraded Head
Masters are formally crated.                                          F
    (c) A Prim11ry teacher who is entitled ~o appointment as an
upgraded Head ·Master on any dale subsequent to I sl April 1966
and who has actually worked continuously as a Head Master of an
eligible primary school from lst April 1966 or from any subsequent
date, or for intermittent periods from lst April 1966, till his actual G
appointment a.<; an upgraded Head Master after the newly
authorised posts of upgraded Head Masters are formally created;
or till his superannuation, retirement, resignation etc. on a date
prior to the date on which the newly authorised posts of upgraded
Head Masters are formally created.                                     H
    736                  SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A               (d) A primary teacher who is entitled to appointment as an
            upgraded Head Master on any date subsequent to 1st April 1966
            but has not actually worked as Head Master of an eligible primary
            school for any period whatsoever for 1st April 1966 till he is
            actually appointed as an upgraded Head Master after the newly
            authorised posts of upgraded Head Masters are formally created;
B           or till his superannuation, retirement, resignation etc. on a date
            prior to the date on which the newly authorised posts upgraded
            Head Masters are formally created.

                 (e) A primary teacher who was only eligible for appointment
c           as an upgraded Head Master and who has actually worked con-
            tinuously as a Head Master of an eligible primary school from 1st
            April 1966, or from any subsequent date, or for intermittent
            periods after 1st April1966, but who is not entitled to appointment
            as an upgraded Head Master even after all the newly authorised
            posts of upgraded Head Masters uptodate (i.e. upto 1st April1970)
D
            are formally created; or would not have become entitled to ap-
            pointment as an upgraded Head Masters till his superannuation,
            retirement, resignation etc. on a date prior to the date on which
            all the newly authorised posts of upgraded Head Masters upto date

E
                        .
            (i.e. upto 1st April1970) are formally created.

                (t) A primary teacher who is not even eligible for appointment
            as an upgraded Head Master but has actually worked continuously
            as a Head Master of an eligible primary school from 1st April1966,
            or from any subsequent date, or for intermittent periods after 1st
F           April 1966 till the newly authorised posts of upgraded Head
            Masters are formally created an appointments are made, thereto
            of teachers entitled to appointment, or till his superannuation,
            retirement, resignation etc. on a date prior to the date on which
            the newly authorised posts of upgraded Head Masters are formally
            created."
G
          Respondents nos. 1 to 4 filed Writ Petition No. 1638 of 1.989 before
    the Bombay High Court at Aurangabad claiming that they are entitled to
    the time scale of pay admissible to the post of Head Master with effect
    from 1.4.1966 on the basis of the aforesaid Government Resolution dated
H   22.10.1970. While the matter was pending before the High Court the Chief
        CHIEF EXECUTIVE OFF1CER. v. SYED [PATTANAIK, J.]               737

Executive Officer of Zilla Parishad who was the competent authority to A
decide the question of upgradation and fixing of scale of pay of the
upgraded Head Masters considered the representations filed by respon-
dents 1 to 4 and by his order dated 18.4.90 directed that respondents 1 to
4 be granted the scale of p<~y meant for upgraded Head Masters with effect
from 1.4.1966. Pursuant to the aforesaid order of the Chief Executive
Officer the Education Officer of Zilla Parishad ·passed the consequential
                                                                               B
order of 31.5.1990 f'lx.ing the scale of pay of respondents 1 to 4 in the
upgraded scale. But when the n1<1tter was referred to the Accounts Officers
of Zilla Parishad for verification it was he who pointed out the error
committed by the Chief Executive Officer and indicated that the said order
is contrary to the Government Resolution dated 22.10.1970. On the basis C
of the aforesaid notings of the Accounts Officer the Chief Executive
Officer suspended the operation of his earlier order dated 18.4.1990 and
the orders of the Education Officer dated 31.5.1990 by his order dated
26.10.1990. In the pending Writ proceedings the Zilla Parishad and other
officers filed their counter affidavits indicating that the respondents 1 to 4 D
could not have been granted the higher scale of pay in the grade of
upgraded Head Masters as such posts were not available, in terms of
Clause (i) and (ii) of the Resolution dated 22.10.1970. The High Court,
however, by the impugned order without even noticing the order of the
Executive Officer dated 26.10.1990 and solely relying upon his earlier order
dated 18.4.1990 allowed the Writ Application and hence this appeal.            E

      Mr. Manoj Swarup, learned counsel appearing for the appellant
contended that the High Court committed gross error in giving effect to
the order of the Executive Officer dated 18.4.1990 even though the said
order had been kept under suspension by the later order dated 26.10.1990. p
The learned counsel further urged that though the Executive Officer of
Zilla Parisbad is cntitleu to upgrade the post of primary school teachers
on their establishment to the post of Head Master but such upgradation
would be dependent upon the number of vacancies available after applying
the preconditions mentioned in the Resolution dated 22.10.1970. Since the
Chief Executive Officer without focussing his attention to that had passed G
orders in favour of respondents 1 to 4, the error having been pointed out
by the Accounts Officer he reconsidered the matter and had placed the
order under suspension and the High Court without even examining the
question as to whether there was vacancy for upgradalion in terms of
Resolution dated 22nd October, 1970 committed error in directing im- H
    738                   SUPREME COURT REPORTS [1996] SUPP.l S.C.R.

A plementation of the earlier order of the Executive Officer dated 18.4.1990.

          The learned counsel for the respondents on the other hand con-
    tended that there were several subsequent clarificatory orders issued by
    the State Government which would make the position clear that respon-
    dents are entitled for being promoted to the upgraded post of Head
B   Masters and the High Court did not commit any error in granting relief in
    question. But on being questioned the learned coun~el for the respondents
    could not lay his hand on any of those circulars nor was he able to establish
    that the respondents were entitled to be promoted to the upgraded post
    of Head Masters in accordance with the Resolution of the State Govern-
c   ment dated 22.10.1970.

          Having heard the learned counsel for the parties we find sufficient
    force in the arguments advance by Mr. Manoj Swarup, learned counsel for
    the appellants. On a bare reading of the Resolution dated 22.10.1970 we
    are of the opinion that a Chief Executive Ofticcr of a Zilla Parishad would
D
    be authorised to upgrade the post of primary school teacher to that of
    Head Master provided the condition precedent prescribed in the said
    Resolution are satisfied. The Resolution in question does not ipso facto
    converts the post of primary school teacher to that of Head Master. In this
    view of the matter the Chief Executive Officer was entitled to consider the
E   matter afresh and put the earlier order in abeyance. Non consideration of
    his order dated 2().10.1990 by the High Court and directing implementation
    of the earl]er order dated 18.4.1990 vitlates the judgment of the High Court.
    In the aforesaid premises the impugned order of the High Court cannot
    be sustained and we accordingly quash the same. Needless to mention that
    since the Chief Executive Officer has merely suspended the earlier order
F
    dated 18.4.1990 and has not taken any final decision with regard to the
    entitlement of respondents l to 4 to be appointed against the upgraded
    post of Head Master and if so with effect of what date, the said Chief
    Executive Officer, appellant in the present appeal, is directed to take a
    final decision within three months from the date of receipt of this order
G   and communicate the same to respondents 1 to 4.

           This appeal is accordingly allowed. But in the circumstances there
     will be no order as to costs.

     R.A.                                                      Appeals allowed.