Case: MADHAVI Vs. CHAGAN &amp; ORS

2. The appellant(Hereinafter referred as Madhavi) herein was appointed with Shri Samarth Shikshan Sanstha(For short, the School) on a temporary basis on 16.7.1985. At that time, she possessed graduation and B.Ed, degrees and was accordingly placed in Category C of Schedule F of The Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981(For short, the Rules). However, she was not appointed against regular vacancy. Chagan was thereafter appointed as Assistant Teacher at the School on 1.8.1985 for teaching the students of Vth to VIIth standards, possessing qualification of Senior Secondary Certificate and Diploma in Education at the time of appointment. He was placed in Category E of Schedule F of the Rules. Both Madhavi and Chagan were appointed for teaching the same section. The School later approved their appointments against regular vacancies on 5.9.1986 w.e.f. 2.5.1986.3. On 24.11.1988, the School passed an order of upgradation of Madhavi to High School Scale w.e.f. 24.11.1988. The appointment of Madhavi was purely temporary upto the Academic Session 1988-89. Some of the candidates, who are respondent Nos. 5 to 7, all graduates and holding B.Ed, qualification, were appointed at the School and placed in Category C of Schedule F of the Rules. It is thereafter that Chagan acquired B.Sc. degree and entered Category Dof Scheduled F of the Rules on 21.2.1997. Chagan then obtained B.Ed, degree in the year 1999 and was thus placed in Category C of Schedule F.4. The dispute arose at the time of appointment of Madhavi as the Head Master of the School. Chagan claimed that he was appointed on regular basis on 1.8.1985 as against Madhavi who was appointed against a temporary vacancy on 16.7.1985. Therefore, he contended that he is senior to Madhavi and in terms of the Rules, he would be entitled to be promoted as Head Master. The promotion order dated 31.5.2014 promoting Madhavi as Head Master was challenged in appeal before the learned School Tribunal. The challenge was also to the promotion of respondent No. 5, who was promoted as Assistant Head Master, and respondent Nos. 6 and 7, who were promoted as Supervisors of the School. Chagan claimed appointment as Head Master of the School.5. Chagan claimed seniority as trained graduate w.e.f. 1.8.1985 in terms of Rule 6 read with Rule 2(l)(j) of the Rules. It was contended that the post of Secondary Teacher was not vacant in the year 1985, therefore, Madhavi was illegally appointed as Primary Teacher which is Category E post whereas he was appointed on 1.8.1985 and thus, he is senior to Madhavi.6. The learned School Tribunal dismissed the appeal on 1.1.2016 while holding as under:9. It is clear from these provisions that the appellant as per his qualification is not come under the category of trained graduate at the time of his appointment on 01.08.1985. The respondent No. 3 was possessing the qualification of B.Sc, B.Ed, on the same day of her appointment on 16.07.1985. Therefore she would be considered in the category of trained graduate teacher on the day of her appointment.12. It was also not disputed that the appellant subsequently improved his qualification by acquiring a degree in 1997. He has also acquired a teaching experience of 10 years till that time. Therefore since the date when he completed his graduation along with 10 years teaching experience, he become eligible to enter into category-C. The appellant himself has mentioned that the respondent No. 4 was appointed as an assistant teacher on 24.11.1988 when the post became vacant. Even after considering this date, it is clear that the respondent No. 4 who was possessing the qualification of B.Sc, B.Ed, in 1985 was directly entered in category-C from that date. Therefore the appellant who entered in category-C in 1997 is admittedly junior to respondent No. 4.7. The judgment of this Court in Viman Vaman Awale vs. Gangadhar Makhriya Charitable Trust & Ors., (2014) 13 SCC 219 referred to by Chagan was distinguished by the Ld. Tribunal for the reason that the appellant in the aforesaid case joined service prior to the respondent.8. Chagan challenged the order passed by the School Tribunal by way of a writ petition before the High Court. The same was also dismissed by the learned Single Bench with the detailed reasoning on 28.9.2017. An application for review was then filed on 2.12.2017 which was allowed with the following order:Heard. For the reasons stated in the application, the application is allowed. Until further orders, the vacant post of Assistant Head Master shall not be filled in. Disposed of.9. It is thereafter that the learned Single Bench passed the order impugned in the present appeal whereby the writ petition filed by Chagan was allowed. The High Court relied upon Viman Vaman Awale to hold that the seniority is to be given from the date of first appointment whereas the judgment in Bhawna vs. State of Maharashtra & Ors., (2019) 4 SCC 300   was distinguished observing that it was a case where the teacher was not holding the qualification of B.Ed, at the time of appointment and later acquired the qualification. It was however noted that in the present case, Chagan was a teacher already holding such qualification on the date of initial appointment. It is the said order which has been challenged by the School and Madhavi before this Court.

Reasoning:
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.