-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.881 OF 2009 Shri Vishnu Dattu Jadhav : Petitioner (Orig.Appellant) V/s. Janata Education Society & Ors. : Respondents (Res.1 to 3 are Orig. Respondents) ... Mr.N.V.Bandiwadekar for the petitioner. Mr.V.S.Gokhale for respondent nos.1 & 3. Mr.S.K.Chinchalikar, Asstt. Govt. Pleader for resp.no.2. ... CORAM : S.A. BOBDE, J. DATE : APRIL 3, 2009. P.C. 1. The petitioner has challenged the order of the School Tribunal dismissing his appeal under section 9 of the M.E.P.S. Act holding that he is junior in service to the respondent no.3 and, therefore, the appointment of the respondent no.3 as a Headmaster is not illegal. 2. The dispute is as to the point of time at which the petitioner and the respondent no.3 entered category ‘C’ under rule 12 Schedule ‘F’. The relevant facts are that -: 2 :- on 22.9.1984 the petitioner was appointed as an Asstt. Teacher. He obtained degree of B.A. in April 1987 and he obtained a degree of B.Ed. in April 1991. These two degrees are prescribed in Schedule ‘F’ as degrees necessary for category ‘C’. The relevant part of Schedule ‘F’ reads as follows:- "Category C : Holders of -- M.A./M.Sc./M.Com.,B.T./B.Ed., or its 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) with 10 years post-S.T.C. etc. service. B.A. or its equivalent Plus Senior Hindi Shikshak Sanad with five years service; or Junior Hindi Shikshak with ten years service after obtaining both academic and training qualifications." However, despite the acquisition of these qualifications, the petitioner continued to work as an untrained teacher. He was given the post of a trained teacher along with pay scale on 1.7.2001. On the other hand, the respondent no.3 was appointed as an Asstt. Teacher with the requisite qualifications for category ‘C’ i.e. B.A., B.Ed. on 21.3.1995. 3. Since the respondent no.3 was promoted as a -: 3 :- Headmaster, the petitioner challenged his promotion on the ground that he is senior to the respondent no.3. The Tribunal heard the matter and came to the conclusion that the respondent no.3 is senior because he entered category ‘C’ on 21.3.1995, holding B.A., B.Ed. qualifications, he was appointed as an Asstt. Teacher and absorbed into the respondent-School. There is no dispute that the respondent no.3 was working in another school from 11.6.1990 holding B.A., B.Ed. qualification, but he was absorbed in the present school on 21.3.1995 in accordance with rule 26(8). Therefore, his seniority is liable to be reckoned with effect from the date he is absorbed. The relevant part of rule 26(8) reads as follows:- "............ However, his seniority for the purpose of promotion in the school in which he is absorbed shall be fixed in the respective category from the date of his absorption." The Tribunal heard the matter and came to the conclusion that the respondent no.3 is senior to the petitioner since he entered category ‘C’ on 21.3.1995 and the petitioner entered category ‘C’ on 1.7.2008. The petitioner’s seniority has been reckoned by the Tribunal from the date he was appointed on a clear vacant post as a trained Asstt. Teacher. Mr.Bandiwadekar, the learned counsel for the petitioner, submitted that the finding of the Tribunal is not in accordance with law and the -: 4 :- Tribunal could not have ignored the fact that the petitioner was entitled to be considered as having entered category ‘C’ in April 1991 itself when he obtained the requisite qualification for entering category ‘C’ i.e. B.A., B.Ed. The learned counsel further contended that the Tribunal could not have held that the petitioner entered category ‘C’ merely because the petitioner started getting the trained graduate scale on 1.7.2001. It was submitted on behalf of the petitioner that the circumstances of getting the scale is not relevant for considering entry into category ‘C’. 4. Having considered the matter, it appears that the issue is settled by two judgments of this Court in Lakhwinder Kaur Gurai v. Garison Children Education Society & Ors. (2006 (5) Mah.L.J. 332) and an unreported decision in Writ Petition No.2085 of 2008 (Bhaskar C. Choudhari v. Balak Mandir Sanstha, Kalyan & Ors.) delivered on 7.4.2008. The learned single Judge of this Court has in both the cases held that the entitlement of a teacher to be placed in category ‘C’ does not depend on whether the teacher holds a post meant for a trained graduate teacher and receive the prescribed pay scale. In the subsequent judgement i.e. in Writ Petition No.2085 of 2008, the learned single Judge has held vide paragraph 8 that the Education Officer was not -: 5 :- entitled to treat the petitioner in that case in category ‘C’ only when the post fell vacant. The learned single Judge has held that fixation of seniority has nothing to do with the post falling vacant. In view of the two judgements, the judgement of the School Tribunal in the present case suffers from an error of law apparent on the face of the record, because the School Tribunal has observed that the petitioner was not entitled to be treated as senior because there was no post of his subject which was lying vacant in the school in which he could have been appointed vide paragraph 20. 5. Mr.Gokhale, the learned counsel for the respondent nos.1 & 3, however, submitted that the petitioner worked continuously from the year 1991 through the year 2001 in the post of an untrained graduate teacher and, therefore, he has waived his right to assert his seniority. The learned counsel for the respondent nos.1 & 3, therefore, pleaded waiver on the part of the petitioner. Mr.Bandiwadekar, the learned counsel for the petitioner, however, pointed out that the petitioner has been consistently agitating his rights by sending representations to the management and to the Education Officer and at no point of time, did he accept his non-placement in category ‘C’. I find that in these circumstances, it cannot be said that the petitioner has -: 6 :- waived his right. Moreover, it must be seen that the petitioner was entitled to challenge the appointment of the respondent no.3 as a Headmaster and that was done without any delay. 6. In this view of the matter, the rule is made absolute. The impugned order dated 18.9.2008 is set aside. The promotion of the respondent no.3 is held to be illegal. The respondent no.1 society is directed to consider the petitioner for promotion to the post of Headmaster with effect from 3.10.2006 with all consequential benefits within a period of two months from today. S.A. BOBDE, J.