1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2085 OF 2008 Bhaskar C. Choudhari ..Petitioner. Vs. Balak Mandir Sanstha, Kalyan and others ..Respondents. .... Ms. Anjali Helekar for the Petitioner. Mr. S.N. Patil, AGP for Respondent No.3. Mr. Surel S. Shah for Respondents 4 and 5. ...... CORAM: DR. D.Y. CHANDRACHUD, J. 7th April, 2008. P.C. : 1. The dispute in the present case relates to the seniority inter se between the Petitioner on the one hand and Respondents 4 and 5 on the other hand. For the purposes of these proceedings, the contesting parties viz. the three concerned teachers have appeared before the Court. The Petition is accordingly taken up for hearing and final disposal with the consent of the learned counsel and at their request. 2. The facts insofar as they are necessary for the disposal of these proceedings lie within a narrow compass. The Petitioner 2 was initially appointed as a trained undergraduate teacher on 11th September, 1979. The Petitioner had acquired the D. Ed. qualification in April 1976 and completed his B.A. on 15th June, 1989. The Petitioner completed ten years' service on 10th September, 1989. 3. The Fourth Respondent joined service on 1st September, 1989 and held the B. A. and B. Ed. qualifications on the date of the appointment. The Fifth Respondent joined services on 3rd October, 1989 and held the B.A. and B. P. Ed. qualifications on the date of the appointment. 4. It is on the basis of these facts that the inter se seniority as between the Petitioner on the one hand and Respondents 4 and 5 on the other hand would have to be determined. 5. Clause II of Schedule F to the Maharashtra Employees of Private Schools Rules 1981 furnishes statutory guidelines for the fixation of seniority of teachers in secondary schools and junior colleges of education. Clause II consists of categories A to H. Note 4 indicates that the categories represent the ladder of 3 seniority in descending order. Category C is to the following effect : “Category C : Holders of - M.A. / M.Sc. /M.Com. , B.T./B.Ed., or its equivalent; or B.A.B.T./ 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.” 6. The Petitioner who had initially acquired the D. Ed. qualification acquired the B.A. degree on 15th June, 1989. In order to fall in category C the Petitioner was required to have the B.A., and a diploma in education with 10 years post diploma service. This requirement was fulfilled by the Petitioner on 10th September, 1989. The Fourth Respondent fulfilled the requirement of category C by holding the B.A. and B. Ed. qualification on 1st September, 1989 which was the date of appointment. Hence, the Fourth Respondent would correctly rank as senior to the Petitioner. 7. However, insofar as the Fifth Respondent is concerned, his initial appointment was on 3rd October, 1989 which was after 4 the date on which the Petitioner fulfilled the requirement of category C. In these circumstances, there can be no manner of doubt that the Petitioner would rank higher in seniority to the Fifth Respondent. 8. Counsel appearing for the Petitioner had attempted to submit that the requirement of ten years' service in category C may not apply to the Petitioner in view of Note 2 under which the two year D. Ed. qualification is considered as a training qualification for the purpose of seniority even after 1st October, 1970. Note 2 will not affect the requirement that though a candidate holds a B. A. degree and a diploma in education, placement in category C is subject to the completion of ten years post diploma service. In these circumstances, for the reasons already indicated, the Petitioner would rank below the Fourth Respondent but above the Fifth Respondent in seniority. The Education Officer, in the course of his order dated 20th February, 2008 has made a determination in respect of the seniority of various employees. These proceedings are relatable only to the inter se seniority between the Petitioner and the Fourth and Fifth Respondents and therefore, it would be necessary to clarify that rest of the order does not fall for 5 consideration. However, during the course of his order the Education Officer has held that the Petitioner would be entitled to be placed in category C only on 1st December, 1989 when a post fell vacant. This part of the reasoning is clearly erroneous because the fixation of seniority has nothing to do with the post falling vacant. Obviously a candidate can be considered for promotion only subject to a vacancy being available, but that has nothing to do with the determination of seniority. The seniority of a candidate for being placed in category C is dependent in the rules only upon the acquisition of the requisite qualification and the fulfillment of service experience. 9. For all these reasons, the Petition is allowed in part. The order of the Education Officer insofar as it holds that the Petitioner would be placed in category C on and from 1st December, 1989 is quashed and set aside. The placement of the Petitioner in category C shall be with effect from 10th September, 1989. In the circumstances, the Petitioner shall rank higher in seniority than the Fifth Respondent whose placement in category C is with effect from 3rd October, 1989. The final seniority list shall now be issued in the light of the aforesaid directions. 6 Rule is made absolute to the aforesaid extent. There shall be no order as to costs. *****