G H MADHAVI versus CHAGAN & ORS. on 9 December 2020

[2020] 13 S.C.R. 1208

SUPREME COURT REPORTS

[2020] 13 S.C.R.

MADHAVI

A

v.

CHAGAN & ORS.

(Civil Appeal No. 3966 of 2020)

BDECEMBER 09, 2020

[L. NAGESWARA RAO, HEMANT GUPTA ANDAJAY RASTOGI, JJ.]

Maharashtra Employees of Private Schools (Conditions ofService) Regulation Act, 1977 – Maharashtra Employees of PrivateCSchools (Conditions of Service) Rules, 1981 – Appellant wasappointed at a School on a temporary basis on 16.07.1985 – Shepossessed graduation and B.Ed degrees and was accordingly placedin Category ‘C’ of schedule ‘F’ of the Rules, 1981 – Respondentno.1 was appointed as Assistant teacher at the School on 01.08.1985,Dhe possessed qualification of Senior Secondary Certificate andDiploma in Education at the time of appointment – The Schoolpassed an order of upgradation of appellant to High School w.e.f.24.11.1988 – Thereafter, the respondent no.1 acquired B.Sc. Degreeand entered category ‘D’ of Schedule ‘F’ – The dispute arose at thetime of appointment of appellant as the Head Master of the schoolE– Respondent no.1 claimed that he was appointed on regular basison 01.08.1985 as against appellant who was appointed against atemporary vacancy on 16.07.1985 – Respondent no.1 contendedthat he is senior to appellant and in terms of the Rules, he would beentitled to be promoted as Head Master – The promotion order datedF31.05.2014 promoting appellant as Head Master was challengedin appeal before the School Tribunal and the same was dismissed –Writ Petition filed by the respondent no.1 was dismissed by the SingleBench of the High Court – Thereafter, an application for reviewfiled was allowed – On appeal, held: The judgment in Bhawna v.State of Maharashtra & Ors. is directly applicable to the presentGcase inasmuch as appellant was holding the qualifications of B.A.B.Ed at the time of her initial appointment on 16.07.1985, thoughshe was appointed against a regular vacancy on 24.11.1988 –However, respondent no.1 was not qualified for appointment asAssistant Teacher as he graduated in science only in the year 1997Hand passed B.Ed in 1999 – He was upgraded to Category ‘C’ only1208

upon acquiring these qualifications – Accordingly, the seniority listmentioned respondent no.1’s name at serial no.10 while appellantwas placed at serial no.2, though first in Category ‘C’ – The schoolin question is secondary school, therefore clause 2 of Schedule ‘F’of the Rules would be referred – Keeping in view the principle laiddown in Vaijanath case, the appellant was qualified for appointmentas temporary teacher as she was a graduate and also possessedB.Ed degree – Her appointment was in accordance with s.5(5) ofthe Act – However, the respondent no.1 could not be treated to bepart of Category ‘C’ from the date of his initial appointment i.e.01.08.1985 as he was neither a graduate nor a trained teacherwhen he was appointed – Also, respondent no.1 was not even atrained teacher on the date of his appointment and thus cannotclaim seniority on such ground from the date of his initialappointment – Therefore, the judgment of High Court in reviewcannot be sustained in law and the same is set aside.

Allowing the appeals and dismissing the contempt petition,the Court HELD: 1. The judgment in Bhawna v. State of Maharashtra& Ors. is directly applicable to the present case inasmuch asappellant was holding the qualifications of B.A., B.Ed. at the timeof her initial appointment on 16.7.1985, though she was appointedagainst a regular vacancy on 24.11.1988. However, respondentno. 1 was not qualified for appointment as Assistant Teacher ashe graduated in Science only in the year 1997 and passed B.Ed.in 1999. He was upgraded to Category ‘C’ only upon acquiringthese qualifications. Accordingly, the seniority list circulated on1.1.2014 mentioned respondent no. 1’s name at Serial No. 10while appellant was placed at Serial No. 2, though first in Category‘C’. [Para 20][1227-F-H]

2. Respondent no. 1 was only having senior secondarycertificate and a Diploma in Education at the time of hisappointment. With such qualifications, he was an under-graduateteacher falling in Category II(2)(i) or (ii) of Schedule ‘B’ of theMaharashtra Employees of Private Schools (Conditions ofService) Rules, 1981. Such teacher is assigned Category ‘E’ asper Schedule ‘F’. Clause II(1) of Schedule ‘B’, is in respect ofteachers possessing graduate degrees. When respondent no. 1

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Aqualified B.Sc. in 1997, he climbed the ladder and became part ofCategory ‘D’ and later on after acquiring B.Ed. degree, he enteredCategory ‘C’, whereas appellant and other private respondentswere already in Category ‘C’ since the date of their appointmentbeing graduates and degree holders in teaching i.e. B.Ed. [Para21][1227-H; 1228-A-C]B

3. Clause 1 of Schedule ‘F’ deals with seniority of teachersin the primary school. The fact that the School in question is nota primary school could not be controverted by learned counselfor respondent no. 1. Therefore, it is Clause 2 of Schedule ‘F’which would be referred to in order to determine the seniority ofCteachers in the secondary school. [Para 22][1228-C-D]

4. The Scheme of the Maharashtra Employees of PrivateSchools (Conditions of service) Regulation Act, 1977 andMaharashtra Employees of Private Schools (Conditions ofService) Rules, 1981 makes it clear that primary and secondaryDschools have been treated differently in the same set of Rules.Rule 2(e) has entrusted the duties of Education Officer orEducation Inspector in relation to secondary or higher secondaryschool, whereas, the Education Officer in respect of a primaryschool is Education Officer or the Administrative Officer of theEMunicipal Corporation or a Municipal School Board. Similarly,Rule 3 prescribes different rules for appointment of a head of aprimary school and the head of the Secondary School. Part I ofSchedule ‘B’ prescribes qualifications for the appointment ofteachers in Primary School, whereas Part II prescribesqualification for appointment of teachers in Secondary School andFJunior colleges of Education. Respondent no. 1 had joinedSecondary School as an untrained undergraduate teacher. Hetherefore falls in Clause 2 of Part II of Schedule ‘B’. Similarly,Schedule ‘F’ deals with rule of seniority having different categories.Category ‘E’ is the lower-most level of the ladder which can beGupgraded with improvements in the qualifications of the teachers.[Para 23][1228-D-G]

5. This Court finds that the High Court failed to appreciatethe distinction between Clause 1 and Clause 2 of Schedule ‘F’ of the Rules. Clause 1 was the subject matter of interpretation bythis Court in Viman Vaman Awale and Clause 2 was the subjectmatter of interpretation in Bhawna. Vaijanath also dealt withpromotion to the post of Head Master of a School falling in Clause1 of Schedule ‘F’. Since the School in question is a secondaryschool, therefore, Clause 2 of Schedule ‘F’ will determine theseniority. Respondent no. 1 was not a trained teacher to be partof Category ‘C’ at the time of his appointment on 01.08.1985 andhe was rightly placed in Category ‘E’ on account of his qualificationbut he upgraded his qualifications, and hence was placed inCategory ‘D’ and ‘C’ on acquiring graduation and B.Ed. degreesrespectively. [Para 24][1228-G-H; 1229-A-B]

6. Keeping in view the principle laid down in Vaijanath,appellant was qualified for appointment as a temporary teacheras she was a graduate and also possessed B.Ed. degree. Herappointment was thus in accordance with Section 5(5) of the Act,so was the appointment of the other private respondents.However, respondent no. 1 could not be treated to be part ofCategory ‘C’ from the date of his initial appointment i.e.01.08.1985 as he was neither a graduate nor a trained teacherwhen he was appointed. Also, respondent no. 1 was not even atrained teacher on the date of his appointment and thus cannotclaim seniority on such ground from the date of his initialappointment. [Para 25][1229-B-D]

Bhawna v. State of Maharashtra & Ors. (2019) 4 SCC300 – relied on.

Viman Vaman Awale v. Gangadhar Makhriya CharitableTrust & Ors. (2014) 13 SCC 219 – inapplicable.

Gaur Pratibha & Ors. v. State of Maharashtra throughthe Secretary & Ors. (2019) SCC OnLine Bom 597 –referred to.

Vaijanath s/o Tatyarao Shinde v. Secretary, MarathwadaShikshan Prasarak Mandal, Devgiri College Campus,Aurangabad & Ors. 2006 (6) Mh.L.J. 682 – referredto.

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ACase Law Reference

(2014) 13 SCC 219inapplicablePara 7(2019) 4 SCC 300relied onPara 9

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3966Bof 2020.

From the Judgment and Order dated 25.03.2019 of the High Courtof Judicature at Bombay, Nagpur Bench, Nagpur in Writ Petition no.1391 of 2016.

WithC

Civil Appeal No. 3967 of 2020 and Contempt Petition (Civil) No.647 of 2020 in SLP (Civil) No. 10046 of 2019.

C. U. Singh, Ms. V. Mohana, Rajiv Dutta, Sr.Adv., SatyajitA. Desai, Akshay Sudame, Ms. Anagha S. Desai, Somanatha Padhan,Satya Kam Sharma, Amlan Kumar Ghosh, Rahul Chitnis, Sachin Patil,DGeo Joseph Advs. for the appearing parties.

The Judgment of the Court was delivered by HEMANT GUPTA, J.

1. The present appeals are directed against the common order ofEthe High Court of Judicature at Bombay, Nagpur Bench, whereby, thereview of the dismissed writ petition filed by respondent No. 1[1] wasallowed and the order passed by the School Tribunal dated 1.1.2016 wasset aside.

2. The appellant[2] herein was appointed with Shri Samarth ShikshanFSanstha[3] on a temporary basis on 16.7.1985. At that time, she possessedgraduation and B.Ed. degrees and was accordingly placed in Category‘C’ of Schedule ‘F’ of The Maharashtra Employees of Private Schools(Conditions of Service) Rules, 1981[4]. However, she was not appointedagainst regular vacancy. Chagan was thereafter appointed as AssistantGTeacher at the School on 1.8.1985 for teaching the students of Vth toVIIth standards, possessing qualification of Senior Secondary Certificateand Diploma in Education at the time of appointment. He was placed in 1 Hereinafter referred to as ‘Chagan’

2 Hereinafter referred as ‘Madhavi’

3 For short, the ‘School’

H4 For short, the ‘Rules’

Category ‘E’ of Schedule ‘F’ of the Rules. Both Madhavi and Chaganwere appointed for teaching the same section. The School later approvedtheir appointments against regular vacancies on 5.9.1986 w.e.f. 2.5.1986.

3. On 24.11.1988, the School passed an order of upgradation ofMadhavi to High School Scale w.e.f. 24.11.1988. The appointment ofMadhavi was purely temporary upto the Academic Session 1988-89.Some of the candidates, who are respondent Nos. 5 to 7, all graduatesand holding B.Ed. qualification, were appointed at the School and placedin Category ‘C’ of Schedule ‘F’ of the Rules. It is thereafter that Chaganacquired B.Sc. degree and entered Category ‘D’ of Schedule ‘F’ of theRules on 21.2.1997. Chagan then obtained B.Ed. degree in the year1999 and was thus placed in Category ‘C’ of Schedule ‘F’.

4. The dispute arose at the time of appointment of Madhavi as theHead Master of the School. Chagan claimed that he was appointed onregular basis on 1.8.1985 as against Madhavi who was appointed againsta temporary vacancy on 16.7.1985. Therefore, he contended that he issenior to Madhavi and in terms of the Rules, he would be entitled to bepromoted as Head Master. The promotion order dated 31.5.2014promoting Madhavi as Head Master was challenged in appeal beforethe learned School Tribunal. The challenge was also to the promotion ofrespondent No. 5, who was promoted as Assistant Head Master, andrespondent Nos. 6 and 7, who were promoted as Supervisors of theSchool. Chagan claimed appointment as Head Master of the School.

5. Chagan claimed seniority as trained graduate w.e.f. 1.8.1985in terms of Rule 6 read with Rule 2(1)(j) of the Rules. It was contendedthat the post of Secondary Teacher was not vacant in the year 1985,therefore, Madhavi was illegally appointed as Primary Teacher which isCategory ‘E’ post whereas he was appointed on 1.8.1985 and thus, he issenior to Madhavi.

6. The learned School Tribunal dismissed the appeal on 1.1.2016while holding as under:

“9. It is clear from these provisions that the appellant as per hisqualification is not come under the category of trained graduateat the time of his appointment on 01.08.1985. The respondent No.3 was possessing the qualification of B.Sc., B.Ed. on the sameday of her appointment on 16.07.1985. Therefore she would be A

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C

D

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Aconsidered in the category of trained graduate teacher on the dayof her appointment.

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12. It was also not disputed that the appellant subsequentlyimproved his qualification by acquiring a degree in 1997. He hasBalso acquired a teaching experience of 10 years till that time.Therefore since the date when he completed his graduation alongwith 10 years teaching experience, he become eligible to enterinto category-C. The appellant himself has mentioned that therespondent No. 4 was appointed as an assistant teacher onC24.11.1988 when the post became vacant. Even after consideringthis date, it is clear that the respondent No. 4 who was possessingthe qualification of B.Sc., B.Ed. in 1985 was directly entered incategory-C from that date. Therefore the appellant who enteredin category-C in 1997 is admittedly junior to respondent No. 4.”

D7. The judgment of this Court in Viman Vaman Awalev.Gangadhar Makhriya Charitable Trust & Ors.[5] referred to byChagan was distinguished by the Ld. Tribunal for the reason that theappellant in the aforesaid case joined service prior to the respondent.

8. Chagan challenged the order passed by the School Tribunal byEway of a writ petition before the High Court. The same was also dismissedby the learned Single Bench with the detailed reasoning on 28.9.2017.An application for review was then filed on 2.12.2017 which was allowedwith the following order:

“Heard. For the reasons stated in the application, the applicationFis allowed. Until further orders, the vacant post of Assistant HeadMaster shall not be filled in. Disposed of.”

9. It is thereafter that the learned Single Bench passed the orderimpugned in the present appeal whereby the writ petition filed by Chaganwas allowed. The High Court relied upon Viman Vaman Awale to holdthat the seniority is to be given from the date of first appointment whereasGthe judgment in Bhawna v. State of Maharashtra & Ors.[6] wasdistinguished observing that it was a case where the teacher was notholding the qualification of B.Ed. at the time of appointment and later 5 (2014) 13 SCC 2196 (2019) 4 SCC 300H

acquired the qualification. It was however noted that in the present case,Chagan was a teacher already holding such qualification on the date ofinitial appointment. It is the said order which has been challenged by theSchool and Madhavi before this Court.

A

10. Some of the relevant provisions of The Maharashtra Employeesof Private Schools (Conditions of Service) Regulation Act, 1977[7] andBthe Rules are extracted hereunder:

“ACT

2(9) “Head of a school” or “Head” means the person, by whatevername called in charge of the academic and administrative dutiesand functions of a school conducted by any Management andrecognised or deemed to be recognised under this Act, and includesa principal, vice principal, head-master, head-mistress, assistanthead-master, assistant head-mistress or superintendent thereof; C

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2(18) “primary education” means education imparted in suchsubjects and upto such standards as may be determined by theState Government, from time to time, located either in a primaryor a secondary school;

2(19) “primary school” means a recognised school, or a part ofsuch school, in which primary education is imparted; E

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2(24) “School” means a primary school, secondary school, highersecondary school, junior college of education or any other institutionby whatever name called including technical, vocational or artinstitution or part of any such school, college or institution, whichimparts general, technical, vocational, art or, as the case may be,special education or training in any faculty or discipline or subjectbelow the degree level; F

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2(26) “teacher” means a member of the teaching staff, and includesthe Head of a school; xx xx xx 7 For short, the ‘Act’

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5. Certain obligations of Management of private schools. – (1)The Management shall, as soon as possible, fill in, in the mannerprescribed, every permanent vacancy in a private school by theappointment of a person duly qualified to fill such vacancy.

A

Provided that, unless such vacancy is to be filled in byBpromotion, the Management shall, before proceeding to fill suchvacancy, ascertain from the Educational Inspector, GreaterBombay, the Education Officer, Zilla Parishad or, as the case maybe, the Director or the Officer designated by the Director in respectof schools imparting technical, vocational, art or special education,whether there is any suitable person available on the list of surplusCpersons maintained by him, for absorption in other schools and inthe event of such person being available, the Management shallappoint that person in such vacancy.

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5(5) The Management may fill in every temporary vacancy byappointing a person duly qualified to fill such vacancy. The orderof appointment shall be drawn up in the form prescribed in thatbehalf, and shall state the period of appointment of such person.

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Rules

E2(e) “Education Officer” –

(i) in relation to a private secondary or higher secondary school orJunior College of Education in Greater Bombay, means anEducational Inspector,

(ii) in relation to a private primary school in the areas of anyFMunicipal Corporation or Municipal Council, means the EducationOfficer or the Administrative Officer of a Municipal Corporationor a Municipal School Board, as the case may be, and

(iii) in relation to any private school in areas elsewhere in theState of Maharashtra, means an Education Officer, in a ZillaGParishad; xx xxxx 2(j) “trained graduate” means a person possessing the qualificationsmentioned in sub-clauses (i) to (vi) of clause (1) of item II inHSchedule ‘B’;

2(k) “trained teacher” means a teacher who has secured aprofessional certificate, a diploma or a degree recognised by theDepartment which qualifies him for a teaching post in a school; xx xxxx Rule 3 (as it existed prior to amendment on 22.6.2017).Qualifications and appointment of Head .—(1) A person to beappointed as the Head —

(a) (i) of a primary school having an enrolment of students above200 or having Standards I to VII shall be the seniormost trainedteacher who has put in not less than five years’ service; and

(ii) of any other primary school shall be the seniormost teacher inthe school; (b) of a secondary school including night school or a Junior Collegeof Education shall be a graduate possessing Bachelor’s degree inteaching or education of a statutory University or any otherqualification recognised by Government as equivalent thereto andpossessing not less than five years’ total full-time teachingexperience after graduation in a secondary school or a JuniorCollege of Education out of which at least two years’ experienceshall be after acquiring Bachelor’s degree in teaching or education:

Provided that, in the case of a person to be appointed as the Headof a night secondary school —

(i) he shall not be the one who is holding the post of the Head orAssistant Head of a day school, and

(ii) the experience laid down in clause (6) of sub-rule ( I ) may beas a part-time teacher.

(2) xxxxxx

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Rule 6. (as it existed prior to amendment on 22.6.2017) -Qualifications of teachers.—The minimum qualifications for theposts of teachers and the non-teaching staff in the primary schools,secondary schools, Junior Colleges and Junior Colleges ofEducation shall be as specified in Schedule “B’’:

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Provided that, the Education Officer may allow Managements toappoint untrained Science graduate teachers for teachingMathematics and Science subjects or untrained Arts or Commercegraduates for teaching other subjects in secondary schools inexceptional circumstances, such as non-availability of trainedgraduates. Such appointments shall, however, be allowed on anyear-to year basis, on the clear understanding that they shall haveto obtain training qualification at their own cost and further subjectto the condition that their services shall be liable for terminationas soon as trained graduate teachers become available.

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Provided further that, the untrained graduate appointed as a teacherafter obtaining the permission from the Education Officer beforethe commencement of the Maharashtra Employees of PrivateSchools (Conditions of Service) Rules, 1981 and who continuesto be in service in any school on the date of commencement ofthe Maharashtra Employees of Private Schools (Conditions ofService) (Amendment) Rules, 1984 shall, be continued in service C

D

on the condition that he obtains the prescribed trainingqualifications at his own cost before 1[st] June 1987, unless he hasalready obtained such qualifications, failing which his services shallbe terminated.

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Rule 12. (as it existed prior to amendment on 8.10.2018) SeniorityList.—(1) Every Management shall prepare and maintain senioritylist of the teaching staff including Head Master and AssistantHead Master and non-teaching staff in0the School in accordanceFwith the guidelines laid down in Schedule “F’’. The seniority listso prepared shall be circulated amongst the members of the staffconcerned and their signatures for having received a copy of thelist shall be obtained. Any subsequent change made in the senioritylist from time to time shall also be brought to the notice of themembers of the staff concerned and their signatures for havingGnoted the change shall be obtained.

(2) Objections, if any, to the seniority list or to the changes thereinshall be duly taken into consideration by the Management.

H

(3) Disputes, if any, in the matter of interse seniority shall be referredto the Education Officer for his decision.

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SCHEDULE B

I. Qualifications for Primary Teachers (as it existed prior toamendment on 22.6.2017) – Appointment to the posts of Primaryschool teachers (other than special teachers-Drawing teachers)shall be made by nomination from amongst candidates who havepassed S.S.C. examination or Matriculation examination orLokshala examination or any other examination recognised as suchby Government and the Primary Teachers Certificate examinationor Diploma in Education examination, or a Diploma in Education(pre-primary of two years’ duration).

Note.—A person holding a Diploma in Education (pre-primary oftwo years duration) shall be qualified to teach standards I to IVonly notwithstanding anything contained in the foregoingprovisions—

(à) Candidates who were recruited before the coming into forceof these rules in accordance with the recruitment rules then inforce and who were thereafter discharged for want of vacanciesshall be eligible few reappointment.

(b) Other things being equal, preference may be given to-

(i) candidates who have passed the S.S.C. or other equivalentexamination with English, Mathematics and Science or any twoof them; and

(ii) eligible women candidates obtaining (the qualificationsmentioned at item (i) through condensed courses.

II. Qualifications for trained teachers in secondary schools andjunior colleges of education.

(1) For Graduate Teachers:

(i) A Bachelor’s degree in Teaching or Education of any statutoryUniversity or a qualification recognised by Government asequivalent thereto; A

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A(ii) A Teaching Diploma of any statutory University if a personholding it is appointed for the first time before the 1st October1970;

(iii) A Secondary Teachers Certificate of the EducationDepartment of this State, if the person holding it is appointed forBthe first time before 1st October 1970:(iv) A Diploma in Education of the Graduates Basic TrainingCentres;

(v) A Diploma in Physical Education or a qualification recognisedby Government as equivalent thereto; or Bifocal Higher DiplomaCin Physical Education of the Government of Maharashtra (asPhysical Education with one of the method subjects) o t B. P. Ed.(Marathwada University) or B. P. Ed. (Shivaji University) or B.Ed.(Physical Education) (Poona University) or B.Ed. (PhysicalEducation) (Bombay University) or Diploma in Physical Education,DCulture and Recreation awarded by Hanuman Vyayam PrasarakMandal, Amravati; or

(vi) Any other degree, diploma or certificate which Governmentor the Inter-University Board may sanction as equivalent to anyof the above qualifications.

E(2) For Undergraduate Teachers:

(i) A Diploma in “Education of Nagpur and Bombay Universitieswhich is awarded two years after Secondary School CertificateExamination;

(ii) A Secondary Teachers’ Certificate of the EducationFDepartment or the Teachers’ Diploma of any other statutoryUniversity if the person holding it is appointed for the first timebefore the 1st October 1970;

(iii) A Certificate in Physical Education recognised by Governmentif the person holding it is appointed for the first time before the 1stGJune 1971;

(iv) A Diploma in Education (Primary) awarded by Government;or

(v) Any other equivalent diploma or certificate approved byHGovernment or Inter-University Board.

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SCHEDULE F

1. Guidelines for fixation of seniority of teachers in the primaryschools. - The seniority of primary school teachers in PrimarySchools shall be based on the date of joining service and continuousofficiation.

2. Guidelines for fixation of seniority of teachers in the secondaryschools, Junior Colleges of Education and Junior College classesattached to secondary schools and Senior Colleges :— For thepurpose of fixation of seniority of teachers in the secondaryschools, Junior Colleges of Education and Junior College classesattached to Secondary Schools the teachers should be categorisedas follows:—

Category A. -xxxxxxCategory B. -xxxxxx

Category C. - Holders of— M,A. M.Sc. M.Com., B.T./B.Ed., orits equivalent; or B.A./B.Sc./B.Com., B.T./B.Ed., or its equivalent;or B.A., B.Sc./B.Com., Dip. T. (old two years course); or B.A./B.Sc./B.Com., S.T.C./Dip. Ed./Dip.?. T. (one year course) with10 years post-S.T.C. etc. service.

Category D. - Holders of-— B.A. B.Sc. B.Com., S.T.C./Dip.Ed. (one year course) or its equivalent.

Category E. - Holders of— S.S.C., T.C./Dip. Ed./Dip. T. (oneyear course) or its equivalent.

Note 1. - For the purpose of categories C, D and E teachers withS.T.C., T.D., Jr. P. T.C., Dip. 1., Dip. Ed. (post-S.S.C. one yearcourse)) qualifications appointed on or after 1[st] October 1970 shallbe considered as untrained and their seniority shall be fixed in the‘F’ or ‘G’ category of untrained teachers, as the case may be.

Note 2. - The following training qualifications which can be securedtwo years after S.S.C. Examination shall be considered as trainingqualification for the purpose of seniority even after 1[st] October,1970:-

(1) D .Ed. (2 years),

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A(2) T .D . (Bombay University),

(3) Dip. Ed. (Nagpur University).

Note 3. - In the case of teachers whose date of continuousappointment in one and the same category is common, the teacherwho is senior by age will be treated as senior.B

Note 4 —The categories mentioned above represent the ladderof seniority and have been mentioned in descending order.”

11. Learned counsel for the appellant submitted that the School inthe present case is not a primary school. The seniority of teachers in aCprimary school is based upon the date of joining service and continuousofficiation thereof, as provided under Clause 1 of Schedule ‘F’. Whereas,guidelines for fixation of seniority of teachers in the secondary school,junior college of education and junior classes attached to secondary schooland senior colleges are contained in Clause 2 of Schedule ‘F’. It wascontended that the management runs the present school which is aDsecondary school only and not a primary school. Therefore, Clause 1 ofSchedule ‘F’ cannot be applied for determining seniority of teachers in asecondary school. It was further contended that Chagan was not qualifiedto be appointed as a trained teacher in the secondary School. Qualificationsrequired for teaching in the School are a professional certificate, a diplomaEor a degree recognised by the Department. However, Chagan graduatedin the year 1997 and got a degree for teaching in a school i.e. B.Ed. onlyin the year 1999. Trained graduate in terms of Rule 2(j) of the Rules is aperson possessing the qualification mentioned in Schedule ‘B’ of theRules.

F12. Learned counsel for the appellant also relied on a judgment ofBombay High Court, Nagpur Bench in Gaur Pratibha & Ors. v. Stateof Maharashtra through the Secretary & Ors.[8] in which the Courthad examined both the judgments of this Court in Viman Vaman Awaleand Bhawna and also the arguments that the latter judgment is perincuriam as the former was not referred in it. The Court held as under:G“96. We do not think they do. Viman Vaman Awale concerns thePrimary Assistant Teachers; Bhawana, the Secondary AssistantTeachers. So the former case interprets the “Guidelines for fixationof seniority of teachers in the primary schools”, under Schedule H8 2019 SCC OnLine Bom 597

F, under Rule 12. The latter the “Guidelines for fixation of seniorityof teachers in the secondary schools Junior Colleges of Educationand Junior College classes attached to secondary schools andSenior Colleges.”

97. In Viman Vaman Awale both the teachers had their basicqualifications when they entered service, their additionalqualifications notwithstanding. And as per Clause (I) of ScheduleF, the seniority of primary school teachers shall be based on thedate of joining service and continuous officiation. Both thecandidates duly qualified, Viman Vaman Awale upheld the seniorityof the teacher that joined the service first.

98. In Bhawana, as we have already observed, the teacher whoentered the service first had no prerequisite qualification— B.Ed.So she joined the service as an untrained teacher, falling in category‘F’. The other teacher entered the service as a trained teacherand placed himself straightaway in C Category. The first teachercould get the B.Ed., and enter that Category only later. So as perClause (II) of Schedule F—and as clarified by Note 4—thecategories mentioned in Schedule F represented the ladder ofseniority in descending order. Thus, Bhawana has held that ateacher in Category F, on later migration to Category C, cannotsteal a march over a teacher already ensconced in that Category.

99. Therefore, we conclude that Viman Vaman Awale andBhawana do not conflict with each other; they have taken nodivergent precedential paths. Though Bhawana may not have beenaware of Viman Vaman Awale, both decisions have displayedremarkable interpretative consistency.”

13. It was also pointed out that the Special Leave Petition againstthe said judgment was dismissed.

14. On the other hand, learned counsel for Chagan vehementlyargued that the Rules are common to both primary and secondary schools.Therefore, the principle laid down in Viman Vaman Awale would be abinding precedent and the judgment in Bhawna wherein the VimanVaman Awale’s case was not referred is per incuriam. It was arguedthat Viman Vaman Awale was a case of a secondary School as per theinformation received under the Right to Information Act. Hence, theprinciple laid down in the aforesaid judgment has been rightly applied by A

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Athe High Court while setting aside the appointment of Madhavi as theHead Master.

15. We find that the order of the High Court cannot be sustainedin law. This Court in Viman Vaman Awale has proceeded as if theCourt is dealing with seniority of teachers in a primary school. ThisBCourt also referred to Full Bench judgment of Bombay High Courtreported as Vaijanath s/o Tatyarao Shinde v. Secretary, MarathwadaShikshan Prasarak Mandal, Devgiri College Campus, Aurangabad& Ors.[9] which again decided the question of promotion to the post ofHead Master of a primary school. This Court in Viman Vaman Awaleheld as under:C

“15. The appellant herein entered the service in Respondent 3School as Assistant Teacher of a primary school with Diploma inEducation i.e. D. Ed qualification. She, thus, fulfilled thequalification for that post. B. Ed degree is not the essentialqualification prescribed for this post. This is a relevant factor whichDis to be kept in mind for resolving the controversy in issue.

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18. In the present case, as already mentioned above, the appellantwas having the requisite minimum qualification for appointmentEto the post of Assistant Teacher in the primary school and it wasnot a case of appointment of an unqualified teacher when theappellant was appointed to the said post on 24-8-1979. This makesall the difference and renders the judgment in Vaijanath[Vaijanath v. Marathwada Shikshan Prasarak Mandal, 2006SCC OnLine Bom 1131 : (2006) 6 Mah LJ 682] as inapplicable toFthe facts of the present case. The High Court has failed to noticethis relevant distinction and mechanically applied the ratio of thejudgment in Vaijanath [Vaijanath v. Marathwada ShikshanPrasarak Mandal, 2006 SCC OnLine Bom 1131 : (2006) 6 MahLJ 682].”

G16. In fact, learned counsel for Chagan relied upon Vaijanath insupport of his arguments before the learned Single Bench. The counselfor Madhavi also referred to the said judgment in support of the argumentsbefore the High Court. Such argument was dealt with by the High Courtin the impugned judgment, which reads as under:

H9 2006 (6) Mh.L.J. 682

“13. It was strenuously contended on behalf of respondent Nos. 2to 7 that Full Bench judgment of this Court in the case of VaijanathTatyarao Shinde v. Secretary (supra) supported their argumentsand that the relevant date for determining seniority was the datewhen the petitioner acquired the higher qualification and enteredCategory C of Clause 2 to Schedule F of the MEPS Rules. But,the said Full Bench judgment of this Court has been distinguishedin the aforesaid judgment of the Hon’ble Supreme Court in thecase of Viman Vaman Awale v. Gangadhar MakhriyaCharitable Trust (supra). It has been found that in the Full Benchjudgment of this Court, what was being considered was a situationwhere at the time of initial appointment one of the teachers wasnot possessing the requisite training/teaching qualification and thatin such a situation the inter se seniority between teachers couldbe determined only when such training/teaching qualification wasobtained by such a candidate. In that context, the Full Bench ofthis Court held that acquisition of the requisite qualification wouldbe the determinative factor.”

17. At this stage, it would be appropriate to refer to Full Benchjudgment of Bombay High Court in Vaijanath which dealt with thepromotion to the post of Head Master of a primary school. The questionexamined was whether seniority of the teacher is to be determined fromthe date of initial appointment or from the date of acquisition of educationaland training qualifications. The High Court held that only a trained teacheris eligible and qualified to be appointed as a primary school teacher.Therefore, it was not possible to concede that the services rendered bya teacher in a primary school who does not have the requisite qualificationas laid down in Schedule ‘B’ could be considered for the purpose ofascertaining seniority. The Court held as under:

“14. … Reading of Rule 6 and Schedule “B”, in the light ofsection 5, which speaks of appointment of duly qualified teachers,the conclusion is inescapable that only a trained teacher is eligibleand qualified for being appointed as a primary school teacher andif this be so, it is not possible to conceive that service rendered bya teacher in a primary school who does not have the requisitequalification as laid down in Schedule “B” can be counted for thepurpose of seniority. No doubt, the criteria is “seniority based onthe date of joining service and continuous officiation” but it cannot A

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Abe lost sight of the fact that Schedule “F”, so also, Rule 12 pre-supposes appointment of a trained primary school teacher inconformity with the eligibility and qualification prescribed inSchedule “B”. Rule 12 and Schedule “F” cannot be read in isolationwithout considering the mandatory provision contained in section5 of the M.E.P.S. Act, so also, Rule 6 and Scheduled “B” of theBM.E.P.S. Rules.

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18. … All the provisions, if read in harmony, the clear positionwhich emerges is that no person can be appointed as primaryCschool teacher who is not having qualification as prescribed underSchedule “B”, meaning thereby, possessing minimum educationaland training qualification.

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20. In this view of the matter, we hold that for a valid appointmentDof a primary school teacher, a person must possess educationalso also the training/teaching qualification. No person can be legallyappointed who does not hold training qualification. Hence, servicerendered as an untrained teacher will not qualify for being countedto determine seniority.”

E18. Further, even in respect of temporary vacancy, Full Bench ofthe High Court held that in terms of Section 5 of the Act, the managementis bound to fill the vacancy, be it permanent or temporary, by appointinga person duly qualified to fill such vacancy. It was reiterated thatSection 5 mandates the management to fill in the permanent or temporaryFvacancy by appointing a person duly qualified to fill such vacancy.Rule 6 lays down that minimum qualifications for the post of teachersshall be as specified in Schedule ‘B’. Schedule ‘B’ in turn provides forminimum qualification for appointment to the post of primary schoolteachers and further prescribes the qualification of S.S.C. and D.Ed. orany other qualification equivalent to the same, as laid down in Clause 1Gof Schedule ‘B’. The High Court held that if Rules 3(1)(a)(i) and (ii) areread in the light of provisions of Rule 6 and Schedule ‘B’, it is obviousthat Rule 3(1)(a)(ii) only intended to relax the requirement of an experienceof not less than 5 years’ service which is specifically provided for inRule 3(1)(a)(i). The Scheme of the Act cannot be comprehended tohold that the legislature intended to do away with the requirement of theH

senior-most teacher being a trained teacher. It could not have been theintention of the legislature while framing Rule 3(1)(a)(ii) to deliberatelyomit the word “trained”. The omission of the word “trained” is an obviousdrafting error and if the said word is not supplemented, the rule cannotbe harmonized in tune with the scheme of the Act and the other Ruleswhich are referred to hereinabove.

19. In view thereof, we find that the judgment of this Court inViman Vaman Awale dealt with only seniority of teachers in a primaryschool. The said judgment does not make any reference to seniority ofteachers in a secondary school. On the contrary, the judgment of thisCourt in Bhawna is a judgment pertaining to seniority of teachers in asecondary school. This Court held as under:

“9. Undisputably, the fifth respondent was holding the qualificationof BA, BEd at the time of his initial appointment dated 13-8-1997and became a member of Category C. At the same time, theappellant though appointed on 27-6-1994 as an untrained teacher,having acquired the training qualification i.e. BEd on 19-9-1997and became a member of Category C after entry of the fifthrespondent into service as a trained teacher, could not have claimedseniority in Category C over the fifth respondent prior to acquiringprofessional qualification (BEd) as envisaged under the schemeof the 1981 Rules as trained teacher and this what was consideredby the authority who examined the inter se seniority of the appellantvis-à-vis fifth respondent under the 1981 Rules and confirmed bythe High Court on dismissal of the writ petition preferred by theappellant.”

20. The judgment in Bhawna is directly applicable to the presentcase inasmuch as Madhavi was holding the qualifications of B.A., B.Ed.at the time of her initial appointment on 16.7.1985, though she wasappointed against a regular vacancy on 24.11.1988. However, Chaganwas not qualified for appointment as Assistant Teacher as he graduatedin Science only in the year 1997 and passed B.Ed. in 1999. He wasupgraded to Category ‘C’ only upon acquiring these qualifications.Accordingly, the seniority list circulated on 1.1.2014 mentioned Chagan’sname at Serial No. 10 while Madhavi was placed at Serial No. 2, thoughfirst in Category ‘C’.

21. Chagan was only having senior secondary certificate and aDiploma in Education at the time of his appointment. With such A

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Aqualifications, he was an under-graduate teacher falling in CategoryII(2)(i) or (ii) of Schedule ‘B’ of the Rules. Such teacher is assignedCategory ‘E’ as per Schedule ‘F’. Clause II(1) of Schedule ‘B’, is inrespect of teachers possessing graduate degrees. When Chagan qualifiedB.Sc. in 1997, he climbed the ladder and became part of Category ‘D’and later on after acquiring B.Ed. degree, he entered Category ‘C’,Bwhereas Madhavi and other private respondents were already in Category‘C’ since the date of their appointment being graduates and degree holdersin teaching i.e. B.Ed.

22. Clause 1 of Schedule ‘F’ deals with seniority of teachers inthe primary school. The fact that the School in question is not a primaryCschool could not be controverted by learned counsel for Chagan.Therefore, it is Clause 2 of Schedule ‘F’ which would be referred to inorder to determine the seniority of teachers in the secondary school.

23. The Scheme of the Act and the Rules makes it clear thatprimary and secondary schools have been treated differently in the sameDset of Rules. Rule 2(e) has entrusted the duties of Education Officer orEducation Inspector in relation to secondary or higher secondary school,whereas, the Education Officer in respect of a primary school is EducationOfficer or the Administrative Officer of the Municipal Corporation or aMunicipal School Board. Similarly, Rule 3 prescribes different rules forEappointment of a head of a primary school and the head of the SecondarySchool. Part I of Schedule ‘B’ prescribes qualifications for theappointment of teachers in Primary School, whereas Part II prescribesqualification for appointment of teachers in Secondary School and Juniorcolleges of Education. Chagan had joined Secondary School as anuntrained undergraduate teacher. He therefore falls in Clause 2 of PartFII of Schedule ‘B’. Similarly, Schedule ‘F’ deals with rule of seniorityhaving different categories. Category ‘E’ is the lower-most level of theladder which can be upgraded with improvements in the qualificationsof the teachers.

24. We find that the High Court failed to appreciate the distinctionGbetween Clause 1 and Clause 2 of Schedule ‘F’ of the Rules. Clause 1was the subject matter of interpretation by this Court in Viman VamanAwale and Clause 2 was the subject matter of interpretation in BhawnaVaijanath also dealt with promotion to the post of Head Master of aSchool falling in Clause 1 of Schedule ‘F’. Since the School in questionHis a secondary school, therefore, Clause 2 of Schedule ‘F’ will determine the seniority. Chagan was not a trained teacher to be part of Category‘C’ at the time of his appointment on 1.8.1985 and he was rightly placedin Category ‘E’ on account of his qualification but he upgraded hisqualifications, and hence was placed in Category ‘D’ and ‘C’ on acquiringgraduation and B.Ed. degrees respectively.

25. Keeping in view the principle laid down in Vaijanath, Madhaviwas qualified for appointment as a temporary teacher as she was agraduate and also possessed B.Ed. degree. Her appointment was thusin accordance with Section 5(5) of the Act, so was the appointment ofthe other private respondents. However, Chagan could not be treated tobe part of Category ‘C’ from the date of his initial appointment i.e.1.8.1985 as he was neither a graduate nor a trained teacher when hewas appointed. Also, Chagan was not even a trained teacher on the dateof his appointment and thus cannot claim seniority on such ground fromthe date of his initial appointment.

26. Thus, we find that the judgment of the High Court in reviewcannot be sustained in law and the same is hence set aside. The WritPetition is ordered to be dismissed. The present appeals are thus allowed.In view of the above, the contempt petition is dismissed.

Ankit Gyan

Appeals allowed and Contempt Petition dismissed.

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