Wp 4703 of 09 1 SSK/ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4703 OF 2009 Chandrakant Narayan Deorukhkar ....Petitioner Versus Janata Vidyalaya & Ors. ...Respondents Mr. Mihir Desai, Advocate for the Petitioner. Mr. R. M. Patne, AGP for Respondent Nos. 3,4 & 6. Mr. Rajesh Kolge, Advocate for the Respondent No.5. CORAM : R. V. MORE, J. DATED : 15TH JULY, 2010. P.C.: Heard Mr. Desai, learned Counsel for the Petitioner, Mr.Patne, learned AGP for Respondent Nos. 3, 4 & 6 and Mr. Kolge, learned Counsel for Respondent No.5. 2. The Respondent Nos.1 & 2 though served, none present on their behalf, otherwise also Respondent Nos. 1 & 2 are only formal parties. 3. Rule. In view of the short point involved, Rule made absolute forthwith by consent of the parties. Wp 4703 of 09 2 4. The short point which falls for consideration is whether while fixing the seniority between the teachers, the date on which the teacher has acquired qualification of a trained graduate teacher should be taken into consideration or the date on which the teacher is given pay scale of a trained graduate teacher should be a point on which his seniority be considered. In order to understand the controversy, few facts are necessary to be quoted. The Petitioner has after completion of S.S.C. and D.Ed. was appointed in Respondent No.1-School as an Assistant Teacher w.e.f. 27th July, 1984. The Petitioner thereafter acquired qualification of “Sahitya Sudhakar” on 20th December, 1997. However, his pay scale was up graded to that of a trained graduate teacher w.e.f. 1st August, 1999. So far as the Respondent No.5 is concerned, he is B.A. B.Ed. and joined Respondent No.1-School as an Assistant Teacher w.e.f. 12th January, 1998 The seniority list was published thereafter in the year 2007-2008 and in the said seniority list the Petitioner was shown as senior to the Respondent No.5. The Respondent No.5 thereafter made representation to Respondent No.3- Education Officer and the Education Officer decided his representation on 16th March, 2009. By this order, the Education Officer held that Respondent No.5 is senior to the Petitioner. This order is challenged by the Petitioner by filing the present petition. Wp 4703 of 09 3 5. Mr. Desai, learned Counsel for the Petitioner submitted that the Petitioner acquired the qualification of Sahitya Sudhakar in the year 1997. He also submitted that the said qualification is equivalent to B.A. and therefore Petitioner’s seniority ought to have been fixed on the basis of date on which he acquired the qualification of Sahitya Sudhakar. He relied upon the decision of the Division Bench in the case of Saramma Varghese Versus Secretary/President, S.I.C.E.S. Society & Ors. reported in Writ Petition No. 3578 of 1986. Another decision of the Division Bench in the case of Ashok N. Sathe versus Education Officer reported in 2007(3) Bom.C.R. 241 and a decision of learned Single Judge in writ petition no. 4556 of 2009. 6. Mr. Kolge, learned Counsel for Respondent No.5 on the contrary supported the impugned order. He submitted that the qualification of Sahitya Sudhakar is not equivalent to B.A.. He also relied upon the Government Resolution dated 25th June, 1992 and submitted that the Education Officer has passed the impugned order correctly. He submitted that above Government Resolution was not under consideration of the Division Bench in Saramma Varghese case (supra) as well as in the case of Ashok N. Sathe (supra). Mr.Patne, learned AGP also supported the impugned order by submitting that no interference is called for. Wp 4703 of 09 4 7. Having considered the submission of respective counsel and having gone through the compilation of writ petition alongwith the relevant Government Resolutions and ratio of decisions of this Court, I find merit in the petition. There is no dispute that the Petitioner is S.S.C. D.Ed, and initially appointed in the year 1984 as a teacher and he acquired the qualification of Sahitya Sudhakar on 20th December, 1997. There is further no dispute that the Respondent No.5 is B.A. B.Ed. and appointed as an Assistant Teacher on 12th January, 1998. I have perused the Government Resolution dated 1st November, 1971. Under this Government Resolution, the qualification of Sahitya Sudhakar obtained from Bombay Hindi Vidhyapeth Mumbai is held equivalent to B.A.. I find no substance in the submission of Respondent No.5 in this regard. In fact the question whether the qualification of Sahitya Sudhakar is equivalent to B.A. is not the issue in dispute before the Education Officer and the reading of impugned order reveals that the Education Officer proceeded on the basis that the qualification of Sahitya Sudhakar is equivalent to B.A.. 8. The only question that deserves consideration is, which is the relevant date for the purpose of fixing seniority? In the present case, the date on which the Petitioner acquired graduation qualification or the date on which his pay scale was upgraded. This issue is no more res-integra. The Division Bench in Ashok N. Sathe’s case(supra) on the basis of Wp 4703 of 09 5 judgment in the case of Madhav Govindrao Budhe versus Education Officer, Zilla Parishad, Nagpur & Ors. reported in Bom.C.R. (N.B.)32:1994 Mh.L.J. 42 has held that the initial date of appointment is of no consequence insofar as category wise seniority is concerned. The seniority has to be reckoned from the date the teacher either achieves the qualifications required or improves his/her qualifications for being a trained teacher. Another Division Bench in Saramma Varghese case (supra) concluded that grant of higher pay scale is not relevant for the purpose of deciding the seniority. This very issue fell for consideration of the learned Single Judge in writ petition no.4556 of 2009 and the learned Single Judge also held that the date of acquiring education qualification should be taken into consideration instead of the date on which a teacher is given trained graduate pay scale. I am in agreement with the ratio laid down in the aforesaid judgment. The Education Officer in the light of the above observations, in my opinion, committed an error in passing the impugned order relying upon the Government Resolution dated 25th June, 1992. I have gone through the said Government Resolution. The Government Resolution pertains to the approval to the trained graduate teachers on the post reserved for under graduate teachers. The said resolution is not applicable to the facts and circumstances of the present case and therefore, not relevant to decide the seniority interse between the Petitioner and Respondent No.5. In the facts and circumstances of the case, the Wp 4703 of 09 6 impugned order deserves to be quashed and set-aside. Same is accordingly set-aside. The petition is allowed in terms of prayer clause (a) and (b). (R. V. MORE, J.)