Case: MADHAVI Vs. CHAGAN &amp; ORS

with the requirement of the senior-most teacher being a trained teacher. It could not have been the intention of the legislature while framing Rule 3(1)(a)(ii) to deliberately omit the word trained. The omission of the word trained is an obvious drafting error and if the said word is not supplemented, the rule cannot be harmonized in tune with the scheme of the Act and the other Rules which are referred to hereinabove. 19. In view thereof, we find that the judgment of this Court in Viman Vaman Awale dealt with only seniority of teachers in a primary school. The said judgment does not make any reference to seniority of teachers in a secondary school. On the contrary, the judgment of this Court in Bhawna is a judgment pertaining to seniority of teachers in a secondary school. This Court held as under: 9. Undisputably, the fifth respondent was holding the qualification of BA, BEd at the time of his initial appointment dated 13-8-1997 and became a member of Category C. At the same time, the appellant though appointed on 27-6-1994 as an untrained teacher, having acquired the training qualification i.e. BEd on 19-9-1997 and became a member of Category C after entry of the fifth respondent into service as a trained teacher, could not have claimed seniority in Category C over the fifth respondent prior to acquiring professional qualification (BEd) as envisaged under the scheme of the 1981 Rules as trained teacher and this what was considered by the authority who examined the inter se seniority of the appellant vis-a-vis fifth respondent under the 1981 Rules and confirmed by the High Court on dismissal of the writ petition preferred by the appellant. 20. The judgment in Bhawna is directly applicable to the present case inasmuch as Madhavi was holding the qualifications of B.A., B.Ed, at the time of her initial appointment on 16.7.1985, though she was appointed against a regular vacancy on 24.11.1988. However, Chagan was not qualified for appointment as Assistant Teacher as he graduated in Science only in the year 1997 and passed B.Ed, in 1999. He was upgraded to Category C only upon acquiring these qualifications. Accordingly, the seniority list circulated on 1.1.2014 mentioned Chagans name at Serial No. 10 while Madhavi was placed at Serial No. 2, though first in Category C 21. Chagan was only having senior secondary certificate and a Diploma in Education at the time of his appointment. With such qualifications, he was an under-graduate teacher falling in Category II(2)(i) or (ii) of Schedule B of the Rules. Such teacher is assigned Category E as per Schedule F. Clause 11(1) of Schedule B, is in respect of teachers possessing graduate degrees. When Chagan qualified B.Sc. in 1997, he climbed the ladder and became part of Category D and later on after acquiring B.Ed, degree, he entered Category C, whereas Madhavi and other private respondents were already in Category C since the date of their appointment being graduates and degree holders in teaching i.e. B.Ed. 22. Clause 1 of Schedule F deals with seniority of teachers in the primary school. The fact that the School in question is not a primary school could not be controverted by learned counsel for Chagan. Therefore, it is Clause 2 of Schedule F which would be referred to in order to determine the seniority of teachers in the secondary school. 23. The Scheme of the Act and the Rules makes it clear that primary and secondary schools have been treated differently in the same set of Rules. Rule 2(e) has entrusted the duties of Education Officer or Education Inspector in relation to secondary or higher secondary school, whereas, the Education Officer in respect of a primary school is Education Officer or the Administrative Officer of the Municipal Corporation or a Municipal School Board. Similarly, Rule 3 prescribes different rules for appointment of a head of a primary school and the head of the Secondary School. Part I of Schedule B prescribes qualifications for the appointment of teachers in Primary School, whereas Part II prescribes qualification for appointment of teachers in Secondary School and Junior colleges of Education. Chagan had joined Secondary School as an untrained undergraduate teacher. He therefore falls in Clause 2 of Part II of Schedule B. Similarly, Schedule F deals with rule of seniority having different categories. Category E is the lower-most level of the ladder which can be upgraded with improvements in the qualifications of the teachers. 24. We find that the High Court failed to appreciate the distinction between Clause 1 and Clause 2 of Schedule F of the Rules. Clause 1 was the subject matter of interpretation by this Court in Viman Vaman Awale and Clause 2 was the subject matter of interpretation in Bhawna. Vaijanath also dealt with promotion to the post of Head Master of a School falling in Clause 1 of Schedule F. Since the School in question is a secondary school, therefore, Clause 2 of Schedule F will determine the seniority. Chagan was not a trained teacher to be part of Category C at the time of his appointment on 1.8.1985 and he was rightly placed in Category E on account of his qualification but he upgraded his qualifications, and hence was placed in Category D and C on acquiring graduation and B.Ed, degrees respectively. 25. Keeping in view the principle laid down in Vaijanath, Madhavi was qualified for appointment as a temporary teacher as she was a graduate and also possessed B.Ed, degree. Her appointment was thus in accordance with Section 5(5) of the Act, so was the appointment of the other private respondents. However, Chagan could not be treated to be part of Category C from the date of his initial appointment i.e. 1.8.1985 as he was neither a graduate nor a trained teacher when he was appointed. Also, Chagan was not even a trained teacher on the date of his appointment and thus cannot claim seniority on such ground from the date of his initial appointment.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]15. We find that the order of the High Court cannot be sustained in law. This Court in Viman Vaman Awale has proceeded as if the Court is dealing with seniority of teachers in a primary school. This Court also referred to Full Bench judgment of Bombay High Court reported as Vaijanath s/o Tatyarao Shinde vs. Secretary, Marathwada Shikshan Prasarak Mandal, Devgiri College Campus, Aurangabad & Ors., 2006 (6) Mh.L.J. 682 which again decided the question of promotion to the post of Head Master of a primary school. This Court in Viman Vaman Awale held as under:15. The appellant herein entered the service in Respondent 3 School as Assistant Teacher of a primary school with Diploma in Education i.e. D. Ed qualification. She, thus, fulfilled the qualification for that post. B. Ed degree is not the essential qualification prescribed for this post. This is a relevant factor which is to be kept in mind for resolving the controversy in issue.18. In the present case, as already mentioned above, the appellant was having the requisite minimum qualification for appointment to the post of Assistant Teacher in the primary school and it was not a case of appointment of an unqualified teacher when the appellant was appointed to the said post on 24-8-1979. This makes all the difference and renders the judgment in Vaijanath [Vaijanath vs. Marathwada Shikshan Prasarak Mandal, 2006 SCC OnLine Bom 1131: (2006) 6 Mah LJ 682] as inapplicable to the facts of the present case. The High Court has failed to notice this relevant distinction and mechanically applied the ratio of the judgment in Vaijanath [Vaijanath vs. Marathwada Shikshan Prasarak Mandal, 2006 SCC OnLine Bom 1131: (2006) 6 Mah LJ 682].17. At this stage, it would be appropriate to refer to Full Bench judgment of Bombay High Court in Vaijanath which dealt with the promotion to the post of Head Master of a primary school. The question examined was whether seniority of the teacher is to be determined from the date of initial appointment or from the date of acquisition of educational and training qualifications. The High Court held that only a trained teacher is eligible and qualified to be appointed as a primary school teacher. Therefore, it was not possible to concede that the services rendered by a teacher in a primary school who does not have the requisite qualification as laid down in Schedule B could be considered for the purpose of ascertaining seniority. The Court held as under:14. ... Reading of Rule 6 and Schedule B, in the light of section 5, which speaks of appointment of duly qualified teachers, the conclusion is inescapable that only a trained teacher is eligible and qualified for being appointed as a primary school teacher and if this be so, it is not possible to conceive that service rendered by a teacher in a primary school who does not have the requisite qualification as laid down in Schedule B can be counted for the purpose of seniority. No doubt, the criteria is seniority based on the date of joining service and continuous officiation but it cannot be lost sight of the fact that Schedule F, so also, Rule 12 pre-supposes appointment of a trained primary school teacher in conformity with the eligibility and qualification prescribed in Schedule B. Rule 12 and Schedule F cannot be read in isolation without considering the mandatory provision contained in section 5 of the M.E.P.S. Act, so also, Rule 6 and Scheduled B of the M.E.P.S. Rules.18. ... All the provisions, if read in harmony, the clear position which emerges is that no person can be appointed as primary school teacher who is not having qualification as prescribed under Schedule B, meaning thereby, possessing minimum educational and training qualification.20. In this view of the matter, we hold that for a valid appointment of a primary school teacher, a person must possess educational so also the training/teaching qualification. No person can be legally appointed who does not hold training qualification. Hence, service rendered as an untrained teacher will not qualify for being counted to determine seniority.19. In view thereof, we find that the judgment of this Court in Viman Vaman Awale dealt with only seniority of teachers in a primary school. The said judgment does not make any reference to seniority of teachers in a secondary school. On the contrary, the judgment of this Court in Bhawna is a judgment pertaining to seniority of teachers in a secondary school. This Court held as under:9. Undisputably, the fifth respondent was holding the qualification of BA, BEd at the time of his initial appointment dated 13-8-1997 and became a member of Category C. At the same time, the appellant though appointed on 27-6-1994 as an untrained teacher, having acquired the training qualification i.e. BEd on 19-9-1997 and became a member of Category C after entry of the fifth respondent into service as a trained teacher, could not have claimed seniority in Category C over the fifth respondent prior to acquiring professional qualification (BEd) as envisaged under the scheme of the 1981 Rules as trained teacher and this what was considered by the authority who examined the inter se seniority of the appellant vis-a-vis fifth respondent under the 1981 Rules and confirmed by the High Court on dismissal of the writ petition preferred by the appellant.20. The judgment in Bhawna is directly applicable to the present case inasmuch as Madhavi was holding the qualifications of B.A., B.Ed, at the time of her initial appointment on 16.7.1985, though she was appointed against a regular vacancy on 24.11.1988. However, Chagan was not qualified for appointment as Assistant Teacher as he graduated in Science only in the year 1997 and passed B.Ed, in 1999. He was upgraded to Category C only upon acquiring these qualifications. Accordingly, the seniority list circulated on 1.1.2014 mentioned Chagans name at Serial No. 10 while Madhavi was placed at Serial No. 2, though first in Category C21. Chagan was only having senior secondary certificate and a Diploma in Education at the time of his appointment. With such qualifications, he was an under-graduate teacher falling in Category II(2)(i) or (ii) of Schedule B of the Rules. Such teacher is assigned Category E as per Schedule F. Clause 11(1) of Schedule B, is in respect of teachers possessing graduate degrees. When Chagan qualified B.Sc. in 1997, he climbed the ladder and became part of Category D and later on after acquiring B.Ed, degree, he entered Category C, whereas Madhavi and other private respondents were already in Category C since the date of their appointment being graduates and degree holders in teaching i.e. B.Ed.22. Clause 1 of Schedule F deals with seniority of teachers in the primary school. The fact that the School in question is not a primary school could not be controverted by learned counsel for Chagan. Therefore, it is Clause 2 of Schedule F which would be referred to in order to determine the seniority of teachers in the secondary school.23. The Scheme of the Act and the Rules makes it clear that primary and secondary schools have been treated differently in the same set of Rules. Rule 2(e) has entrusted the duties of Education Officer or Education Inspector in relation to secondary or higher secondary school, whereas, the Education Officer in respect of a primary school is Education Officer or the Administrative Officer of the Municipal Corporation or a Municipal School Board. Similarly, Rule 3 prescribes different rules for appointment of a head of a primary school and the head of the Secondary School. Part I of Schedule B prescribes qualifications for the appointment of teachers in Primary School, whereas Part II prescribes qualification for appointment of teachers in Secondary School and Junior colleges of Education. Chagan had joined Secondary School as an untrained undergraduate teacher. He therefore falls in Clause 2 of Part II of Schedule B. Similarly, Schedule F deals with rule of seniority having different categories. Category E is the lower-most level of the ladder which can be upgraded with improvements in the qualifications of the teachers.24. We find that the High Court failed to appreciate the distinction between Clause 1 and Clause 2 of Schedule F of the Rules. Clause 1 was the subject matter of interpretation by this Court in Viman Vaman Awale and Clause 2 was the subject matter of interpretation in Bhawna. Vaijanath also dealt with promotion to the post of Head Master of a School falling in Clause 1 of Schedule F. Since the School in question is a secondary school, therefore, Clause 2 of Schedule F will determine the seniority. Chagan was not a trained teacher to be part of Category C at the time of his appointment on 1.8.1985 and he was rightly placed in Category E on account of his qualification but he upgraded his qualifications, and hence was placed in Category D and C on acquiring graduation and B.Ed, degrees respectively.25. Keeping in view the principle laid down in Vaijanath, Madhavi was qualified for appointment as a temporary teacher as she was a graduate and also possessed B.Ed, degree. Her appointment was thus in accordance with Section 5(5) of the Act, so was the appointment of the other private respondents. However, Chagan could not be treated to be part of Category C from the date of his initial appointment i.e. 1.8.1985 as he was neither a graduate nor a trained teacher when he was appointed. Also, Chagan was not even a trained teacher on the date of his appointment and thus cannot claim seniority on such ground from the date of his initial appointment.