( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3775 OF 2009 Ashok s/o Ganpatrao Joshi, Assistant Teacher with Shri Saraswati Bhuvan Shikshan Sanstha, Aurangabad, r/o Nageshwarwadi, Aurangabad, District Aurangabad. PETITIONER VERSUS 1. The State of Maharashtra, through the Secretary, School Education Department, Mantralaya, Mumbai. 2. The General Secretary, Shri Saraswati Bhuvan Shikshan Sanstha, Saraswati Nagar, Aurangapura, Aurangabad. 3. The Education Officer (Secondary), Zilla Parishad, Aurangabad 4. Sanjay s/o Ramlal Pande, R/o Bhavsingpura, Aurangabad. 5. Dilip s/o Purushottamrao Bhavthankar, R/o Gulmohar Colony, Aurangabad. 6. Prabhakar s/o Jagannath Gavali, R/o Mayur Park, Aurangabad. 7. Suryakant s/o Panditrao Saraf, R/o Ramtara, Near Shahanoormiya Darga, Aurangabad, Dist. Aurangabad. RESPONDENTS .... Mr. R.S. Deshmukh, advocate for the petitioner. Mr. D.R. Korade, AGP for the respondents No. 1 and 3. Mr. Arvind R. Joshi, advocate for the respondent No. 2. Mr. D.P. Palodkar, advocate for the respondents No. 5 and 6. .... ( 2 ) [CORAM : V.R. KINGAONKAR, J.] [DATE : 19th July, 2010] ORAL JUDGEMENT : 1. By this petition, the petitioner challenges communication dated 13th April, 2009, issued by the respondent No. 3 - Education Officer (Secondary), Zilla Parishad, Aurangabad, confirming the seniority list. 2. The petitioner's seniority position in the list of employees is the contentious issue raked by him at various rounds of litigation. There is no dispute about the fact that the petitioner was appointed as Junior Clerk when he entered service on establishment of the respondent No. 2 in the year 1971. He was lateron appointed as Assistant Teacher w.e.f 1st July, 1974. According to him, he had completed S.S.C. and two (2) years' diploma course in educational training. He had previously claimed his qualification as S.S.C. D.Ed., inter alia, in the earlier rounds of litigation, but now, his stance in the present petition is that he was having qualification of H.S.C. Dip.T (old two years' course). He submits that previously, he was unable to explain the correct nature of the qualification in the earlier representations and, therefore, ( 3 ) his correct seniority position was not fixed by the Education Officer. His averment is that seniority list was drawn in accordance with Rule 12 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short, “the MEPS Rules”). He alleges that his seniority position was at serial No. 13 in view of the period of his becoming eligible for appointment as Assistant Teacher in the secondary school. There is no dispute about the fact that subsequently, his seniority position was changed after the seniority list was drawn and he was shown at serial No. 63. His original seniority position was shown at serial no. 63, but on his representation, for a short while, during the intervening period, it was changed to serial No. 13, but lateron, on re-fixation of the seniority, his position again tumbled down to serial No. 61. 3. The petitioner's case is that due to change in the seniority position, his appointment as Head Master was revoked by the respondent No. 2. The petitioner admittedly passed the diploma examination in April, 1977. He had also completed graduation in Arts faculty. 4. The only contentious issue involved in the petition ( 4 ) is whether the petitioner falls in category “C-3” or category “C-4” of Guideline (2) under Schedule `F’ appended to Rule 12 of the MEPS Rules. The categorization under Guideline (2) under Schedule-`F” of Rule 12 may be re-produced for ready reference. “2. Guidelines for fixation of seniority of teachers in the secondary schools Junior Colleges of Education and Junior College classes attached to secondary schools and Senior Colleges :- For the purpose of fixation of seniority of teachers in the secondary schools, Junior Colleges of Education and Junior College classes attached to Secondary Schools the teachers should be categorised as follows : Category A : ***** Category B : ***** Category C : Holders of - M.A./M.S.c./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.T. (one year course) with 10 years post S.T.C. etc. service.” If it is held that the petitioner comes within the category “C-4”, then it is imperative that without ten (10) years’ prior service after S.T.C./Dip.Ed./Dip.T. (one year course), he will not be eligible for fixation of seniority in the cadre ( 5 ) of secondary school teachers. It is amply clear, therefore, that the Education Officer was required to examine whether the petitioner satisfies the qualification mentioned at serial No. 3 of category “C” under Guideline No. 2 of Schedule-F of Rule 12, or that he falls outside such Guideline. So far as Educational Institution is concerned, it appears that the Management did not object the claim of the petitioner. 5. The impugned order reveals that the Education Officer referred to the communication which he had with the Deputy Director of Education. The learned Education Officer referred to communication dated 9th March, 2009 and held that the educational qualification of the petitioner is B.A. D.Ed. According to the impugned order, the diploma course completed by the petitioner is nothing but D.Ed. The impugned order reveals that the petitioner had completed D.Ed. course in April, 1977 and it cannot be compared with any other State’s D.Ed./Dip.T. or B.Ed. course. In other words, the exercise undertaken by the Education Officer was to find out whether the diploma course completed by the petitioner was equivalent to the diploma course or graduation course in education of any other University. That was not the term of reference made to the Education Officer. What appears from the directions of the School Tribunal is that while partly allowing appeal No. ( 6 ) 25/2008, the School Tribunal called upon the Education Officer to give a specific finding as to whether the petitioner had completed diploma in teaching/training with two (2) years’ course as per the old curriculum. Obviously, the Education Officer i.e. the respondent No. 3 was required to compare the curriculum of the available courses, pertaining to diploma in education or diploma in teaching or diploma in training, whatsoever may the nomenclature thereof. The respondent No. 3 – Education Officer had no business to make comparison about availability of such courses with other Universities, because it was nobody’s case that the petitioner completed Dip.T. course which could be compared with the course of any other University. His pointed contention was that though he had previously stated that he had completed D.Ed. course, yet, it was an error on his part and, in fact, he had completed Dip.T. (old course of 2 years’ duration). 6. At this juncture, it may be stated that the petitioner was previously governed by the Secondary Schools Code before the MEPS Rules of 1981 came into force. He completed his diploma course in April, 1977 i.e. prior to commencement of the MEPS Rules. Obviously, the respondent No. 3 was required to examine the legal position vis-a-vis the ( 7 ) seniority position available under the then existing Rules/Government Resolutions/Circulars. There may not be a comparative equivalence of any other University. The question is whether a special two (2) years’ duration diploma course was available in Pune University in April, 1977, which was not a D.Ed. course, but was a Dip.T. (two years’ course) as per the old curriculum. The words “old course” do not specify the course of any particular year as such and, therefore, it will have to be said that the meaning of such words i.e. “old course” is the course as per the old curriculum. The respondent No. 3 was required to determine the curriculum of D.Ed. course in or after 1977 and to examine whether the petitioner did complete such a D.Ed. course or that the curriculum was different and as such, it could be regarded as Dip.T. The petitioner has placed on record xerox copies of the marks-sheets and the certificate issued to him as well as the marks-sheet and certificate issued in favour of one Nita Shridharrao Naik. It appears that said Nita Naik completed D.Ed. course in April, 1988. The format of the certificate and the subjects as per the curriculum are quite different from the format of the certificate presented by the petitioner and the curriculum. This Court, however, cannot determine the issue on basis of mere copies of such certificates which are ( 8 ) presented by the petitioner. 7. The impugned order shows that the Education Officer held that the petitioner could not place on record the Government Resolution/s regarding the course completed by him being equivalent to B.Ed. or Dip.T. (two years course). One thing is quite sure, namely, the petitioner did not complete any diploma course of one (1) year’s duration. It appears that instead of conducting research by himself, the learned Education Officer attempted to make comparison and placed burden on the petitioner to establish that the course completed by the petitioner was Dip.T (old two years). The exercise was not properly done by the Education Officer as required under the law. Under the circumstances, the impugned order is quite unsustainable, for want of appropriate foundation. 8. In the result, the petition is partly allowed. The impugned order is set aside. The respondent No. 3 – Education Officer is directed to reconsider the representation of the petitioner in the light of all the available circulars and particularly, having regard to the nature of curriculum which was envisaged for the D.Ed. course, when it was firstly ( 9 ) introduced and also to consider the curriculum which was followed by the petitioner, while determining the relevant issue. No opinion is expressed on merits. The respondent No. 3 to take appropriate decision within two (2) months after the remand of the matter and to decide the issue de novo on basis of the nature of curriculum and not only by making references to the Deputy Director’s communication/s. The petition is accordingly disposed of. No costs. 9. In view of disposal of this writ petition, civil application No. 1793/2010 does not survive and hence, stands disposed of accordingly. [V.R. KINGAONKAR] JUDGE NPJ/wp3775-09