1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 2258 OF 2009 Smt. Damayanti Dhanaji Lokhande, Age 55 yrs., Occu. Service, R/o. C/o. Shri. Sudhakar Kashiram Phirke, Dikshitwadi, Jilha Peth, Jalgaon, District : Jalgaon. ....Petitioner. Versus 1. The State of Maharashtra (Through its Secretary, Education Department, Mantralaya, Mumbai-32). 2. The Deputy Director of Education, Nashik Division, Nashik. 3. Administrative Officer, Jalgaon Municipal Corporation, Jalgaon, Dist. Jalgaon. 4. The Education Officer (Primary), Zilla Parishad, Jalgaon, Dist. Jalgaon. 5. The Secretary/President, Manavata Shikshan Prasarak Mandal, Shivaji Nagar, Jalgaon, Dist. Jalgaon. 6. Smt. Jayashri Vamanrao Deshmukh, Head Mistress, Khubchand Sagarmal Primary School, Jalgaon, Dist. Jalgaon. ....Respondents. Shri. A.G. Talhar, Advocate for petitioner. Shri. D.R. Kale, A.G. P. for respondent Nos. 1 and 2. Shri. S.R. Patil, Advocate for respondent No. 6. 2 CORAM : R.K. DESHPANDE, J. DATE : 9th August, 2010. ORAL JUDGMENT : 1. This writ petition challenges the order dated 16/31st of December 2008 passed by the Deputy Director of Education, Nasik Division, Nasik. By this order the claim of the petitioner for seniority over the respondent No. 6 Smt. Jayashri Vamanrao Deshmukh has been rejected. It has been held that the seniority in the post of Assistant Teacher (Primary School) has to be counted from the date of acquisition of training qualification, the training qualification being D.Ed. Although the petitioner was appointed in the respondent No. 5 School as an Assistant Teacher on 7.6.1988, at that time she was possessing qualifications of B.A., B.Ed., whereas the respondent No. 6 Smt. Jayashri Vamanrao Deshmukh, though appointed on 12.6.1989, was possessing the qualifications of S.S.C., D.Ed. The petitioner acquired D.Ed. qualification on 4.3.2003 and her seniority is, therefore, counted in the post of Assistant Teacher in the primary school with effect from 4.7.2003 and she has been held to be junior to the respondent No. 6, who was possessing S.S.C., D.Ed. qualifications on 12.6.1989. 2. Shri. Talhar, the learned counsel appearing for the petitioner has heavily relied upon the communication dated 23rd of September 1983 issued by the Education and Employment Department of State 3 Government addressed to the Deputy Director of Education, Maharashtra State, Pune. This Government Resolution grants protection in service to those, who were possessing the qualifications of B.A., B.Ed., but were appointed as trained teachers in primary school. It was informed by this communication that those teachers, who are in service at present and possessing B.A., B.Ed. qualifications should be treated as trained teachers. It further states that henceforth, the teachers possessing qualification of S.S.C., D.Ed. should only be appointed. The submission of Shri. Talhar is that on the date when this circular/letter dated 23rd of September 1983 was issued, the petitioner was working as an Assistant Teacher in Smt. Gitabai Mukundas Bam Primary School and therefore she is required to be treated as a trained teacher in terms of this letter dated 23rd of September 1983 as she was possessing the qualifications of B.A., B.Ed. and was teaching in primary school. According to him, once the petitioner has been granted status of a trained teacher as per the letter dated 23rd of September 1983, it is for all times to come, irrespective of the fact, whether she continues to serve with the same school or joins some another school. Hence, according to the petitioner, her appointment in the respondent No. 5 School on 7.8.1988 has to be treated as a trained teacher and her seniority is required to be counted with effect from that date that. According to the petitioner, the Deputy Director of Education has completely overlooked this aspect and has wrongly held that the respondent No. 6 is senior to the petitioner on the basis of possessing D.Ed. qualification. 4 3. In response to the notice issued by this Court on 17th of April 2009, Shri. Patil the learned counsel appears for respondent No. 6 whereas Shri. D.R. Kale, the learned A.G.P. appears for the respondent Nos. 1 and 2. Although all other respondents are served, the contesting respondent is respondent No. 6, in whose favour the order has been passed by the respondent No. 2 - the Deputy Director of Education. Hence, no fresh notices are required to be issued to other respondents. The learned counsel appearing for the parties agree that the matter can be finally disposed of at the stage of admission. Hence, Rule, made returnable forthwith. Heard finally by consent of parties. 4. The real dispute involved in the petition is in respect of the decision of the respondent No. 2 - the Deputy Director of Education with respect to interse the seniority of the petitioner and the respondent No. 6. Perusal of the communication dated 23rd of September 1983, which has been heavily relied upon by the learned counsel for the petitioner, shows that it is regarding protection in service and instructions are issued that the Assistant Teachers, possessing B.A., B.Ed. qualifications, should be treated as a trained teachers and their service should not be terminated. When this communication was issued, the petitioner was working as an Assistant Teacher in Smt. Gitabai Mukundas Bam Primary School and she could not have been terminated and her services were protected by treating her as trained teacher on the 5 basis of this communication. The necessary qualification for the appointment as an Assistant Teacher in primary school is undisputedly S.S.C., D.Ed. The petitioner was not possessing D.Ed. qualification and there was threat of discontinuation of her service on that count. It is for the purpose of protecting this threatened termination that the instructions dated 23rd September 1983 were issued. The said communication nowhere speaks about the seniority. 5. The Deputy Director of Education by the impugned order has held that the petitioner left the earlier school and joined the respondent No. 5 School on 7.6.1988 and thus, her appointment in the respondent No. 5 School is a fresh appointment and in terms of communication dated 23rd of September 1983, she should have been possessing S.S.C., D.Ed. qualification for being appointed as a trained teacher (primary school). The petitioner was admittedly not possessing D.Ed. qualification. The Deputy Director of Education was, therefore, right in holding that simply because she was treated as trained teacher in the earlier school, she does not carry the same status on her reappointment in respondent No. 5 School. 6. The learned counsel for the respondent No. 6 has relied upon the decision of Full Bench of this Court reported in 2006 (6) Bom. C. R. 804 in the case of Vaijanath Tatyarao Shinde Vs. Secretary & ors. Para 12 of the said judgment, which is relevant, is reproduced below :- 6 "12. To us, it does appear that had the attention of the rule makers been drawn to Rule 3(1)(a)(i) and (ii) and more particularly, in regard to the absence of the word "trained" in Rule 3(1)(a)(ii), they would have filled in the omission by inserting the word "trained" in Rule 3(1)(a)(ii). As we are convinced that absence of word "trained" in Rule 3(1)(a)(ii) is an unintended accidental omission, the same has to be supplemented by having recourse to the rule of construction, as stated by Denning, L.J., which has been approved by the majority judgment of the Apex Court viz. seven Judges judgment rendered in Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and others (supra). Failure to have recourse to the same, would result in destroying the whole fabric of the scheme laid down by the Act and the other provisions of the Rules. In this view of the matter, we deem it appropriate to read the word "trained" in Rule 3(1)(a)(ii) after the word "seniormost" and before the word "teacher" so that a harmonious construction of the Act and the other provisions of the Rules is possible. Accordingly, we supplement the word "trained" in Rule 31)(a)(ii) and answer the reference herein below thus : For appointment to the post of Head Master (by promotion) of a primary school, the seniority of the teacher is to be counted from the date he acquires educational and training qualifications as prescribed under Schedule "B" of the M.E.P.S. Rules. The seniority cannot be counted from the date of initial appointment and continuous officiation devoid of requisite qualification as prescribed in Schedule "B". " It has been held that for appointment to the post of Head Master (by promotion) of a primary school, seniority of a teacher is to be counted from the date candidate acquires educational and training qualifications as prescribed under Schedule "B" of the M.E.P.S. Rules. It has been further held that the seniority cannot be counted from the date of initial appointment and continuous officiation devoid of requisite 7 qualification as prescribed in Schedule "B". 7. In view of this decision of the Full Bench, it has been rightly held by the Deputy Director of Education by the impugned order that the petitioner acquired training qualification on 4.7.2003 and it is from that date her seniority as an Assistant Teacher (Primary) is required to be counted. The respondent No. 6 has been held to be senior to the petitioner, on the ground that she was appointed on 12.6.1989 and at the time of appointment, she was possessing the qualifications as prescribed in Schedule "B". Hence, no fault can be found with the order passed by the Deputy Director of Education. 8. The learned counsel for the petitioner has invited my attention to clause (3) of the order impugned in this petition. The Deputy Director of Education has directed that the petitioner should be treated as an untrained teacher from 7.6.1988 till 3.7.2003, when she acquired training the training qualification of D.Ed. and accordingly her fixation of salary should be made in the scale of untrained teacher for that period. The learned counsel has expressed an apprehension that on the basis of this, the recovery may be ordered against the petitioner towards the difference in the salary of trained teacher and untrained teacher for the period from 7.6.1988 to 3.7.2003. However, perusal of the entire order nowhere shows that any such recovery has been ordered and therefore, there is no basis for such apprehension nurtured by the petitioner. In the 8 event, if any such recovery is ordered, it shall be open for the petitioner to challenge the same before the appropriate forum in accordance with law. Essentially, the dispute in this petition pertains to seniority and hence, any grievance in respect of recovery of salary paid to the petitioner as trained teacher would be out of purview of the order and it shall be open for the petitioner to adopt appropriate remedy. 9. In the result, there is no substance in this petition. The same is, therefore, dismissed. No order as to costs. Rule is discharges. [ R.K. DESHPANDE, J. ] ssc/wp2258.09