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Thursday, August 14, 2014

Service Matter - Seniority - Promotion - mere having B.Ed. Degree can the junior as a senior in Trained Graduates cadre over power the senior candidate and can be designated as senior for promotion - Apex court set aside the order of High court and held that we find that in the case at hand there is a specific Rule, namely, Rule 12 of the Rules, which deals with seniority. The clear and unambiguous criteria for determining seniority is the continuous officiation counted from the date of acquiring the educational qualification as prescribed under Schedule “B”. since the appellant was holding the requisite qualifications, i.e. D.Ed., for appointment to the post of Assistant Teacher in Primary School, as prescribed under Schedule “B” to the Rules, her seniority was to be counted on the basis of continuous officiation. Since she joined the post of Assistant Teacher on 24.08.1979 and respondent No.4 came to be appointed subsequently, i.e. on 01.09.1980. The appellant would naturally be senior to respondent No.4.Insofar as manning the post of Head of the School is concerned, Rule 3 of the Rules provides for the qualifications. It is not in dispute that as on the date of which the Head of the School was to be appointed, the appellant fulfilled all the requisite qualifications mentioned in the said Rule. Further, as already found, she was senior to respondent No.4 as well. Therefore, it is the appellant who was the rightful claimant to the post of Head of the School. Depriving her of this legitimate right and making the appointment of respondent No.4 as the Head Master of the School was, therefore, clearly erroneous, which resulted in infringement of the rights of the appellant to hold that post. Accordingly, this appeal is allowed. Judgment of the High Court is set aside and a direction is issued to appoint the appellant as Head of the School by replacing respondent No.4 therefrom. This direction shall be carried out within a period of four weeks from today.= CIVIL APPEAL NO. 7699 OF 2014 (arising out of Special Leave Petition (Civil) No. 29696 of 2013) |VIMAN VAMAN AWALE |.....APPELLANT(S) | |VERSUS | | |GANGADHAR MAKHRIYA CHARITABLE TRUST & |.....RESPONDENT(S) | |ORS. | | = 2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41826

 Service Matter - Seniority - Promotion - mere having B.Ed. Degree can the junior  as a senior in Trained Graduates cadre over power the senior candidate and can be designated as senior for promotion - Apex court set aside the order of High court and held that we find that in the case at  hand  there  is  a  specific  Rule, namely, Rule 12 of the Rules, which deals with  seniority.   
The  clear  and unambiguous  criteria  for   determining   seniority   is   the   continuous
officiation  counted  from   the   date   of   acquiring   the   educational qualification as prescribed under Schedule “B”.  since  the  appellant  was   holding   the   requisite qualifications, i.e.  D.Ed.,  for  appointment  to  the  post  of  Assistant Teacher in Primary School, as prescribed under Schedule “B”  to  the  Rules, her seniority was to be counted on  the  basis  of  continuous  officiation. Since she joined the post of Assistant Teacher on 24.08.1979 and  respondent No.4 came to be appointed subsequently, i.e. on 01.09.1980.   The  appellant would naturally be senior to respondent No.4.Insofar as manning the post of Head of the School is concerned,  Rule  3  of
the Rules provides for the qualifications.  It is not in dispute that as  on the date of which the Head of the School was to be appointed, the  appellant fulfilled all the requisite  qualifications  mentioned  in  the  said  Rule. Further, as already found, she  was  senior  to  respondent  No.4  as  well. Therefore, it is the appellant who was the rightful claimant to the post  of Head of the School.  Depriving her of this legitimate right and  making  the appointment of respondent No.4  as  the  Head  Master  of  the  School  was, therefore, clearly erroneous, which resulted in infringement of  the  rights of the appellant to hold that post. Accordingly, this appeal is allowed.  Judgment of  the  High  Court  is  set aside and a direction is issued to appoint the  appellant  as  Head  of  the School by replacing respondent No.4  therefrom.   This  direction  shall  be carried out within a period of four weeks from today.=

 Both the appellant as well as respondent No.4 are  working
as teachers in Seth Gangadhar Makhriya High School, Mahabaleshwar,  District
Satara in Maharashtra.
It is not in dispute that the appellant  had  joined
the said school as Assistant Teacher before respondent No.4 and  was  senior
to him in the post of  Assistant  Teacher.  
However,  respondent  No.4  had
acquired B.Ed. degree prior to  the  appellant  and  on  that  basis  he  is
treated senior to  the  appellant  in  the  category  of  'Trained  Graduate
Teachers'.  
Whether this consequence follows as a result  of  the  rules  is
the matter of examination in the present case .=

The view taken by us also finds support from  the  judgment  of
this Court
in Union of India v.  B.  Jayaraman,  (1994)  Supp  (1)  SCC  95,
wherein considering a similar argument this Court held: (SCC Headnote)

“The note in column 11 is only for purposes of  giving  eligibility  to  the
erstwhile Assistants working as Superintendents Grade  II  for  purposes  of
being considered for promotion to the post of  Superintendent  Grade  I  and
not for the purpose of seniority at all.

                                                        (Emphasis supplied)”


That apart, we find that in the case at  hand  there  is  a  specific  Rule,
namely, Rule 12 of the Rules, which deals with  seniority.   
The  clear  and
unambiguous  criteria  for   determining   seniority   is   the   continuous
officiation  counted  from   the   date   of   acquiring   the   educational
qualification as prescribed under Schedule “B”. 
 It is stated  at  the  cost
of  repetition  that  since  the  appellant  was   holding   the   requisite
qualifications, i.e.  D.Ed.,  for  appointment  to  the  post  of  Assistant
Teacher in Primary School, as prescribed under Schedule “B”  to  the  Rules,
her seniority was to be counted on  the  basis  of  continuous  officiation.
Since she joined the post of Assistant Teacher on 24.08.1979 and  respondent
No.4 came to be appointed subsequently, i.e. on 01.09.1980.   The  appellant
would naturally be senior to respondent No.4.

Insofar as manning the post of Head of the School is concerned,  Rule  3  of
the Rules provides for the qualifications.  
It is not in dispute that as  on
the date of which the Head of the School was to be appointed, the  appellant
fulfilled all the requisite  qualifications  mentioned  in  the  said  Rule.
Further, as already found, she  was  senior  to  respondent  No.4  as  well.
Therefore, it is the appellant who was the rightful claimant to the post  of
Head of the School.  Depriving her of this legitimate right and  making  the
appointment of respondent No.4  as  the  Head  Master  of  the  School  was,
therefore, clearly erroneous, which resulted in infringement of  the  rights
of the appellant to hold that post.

Accordingly, this appeal is allowed.  Judgment of  the  High  Court  is  set
aside and a direction is issued to appoint the  appellant  as  Head  of  the
School by replacing respondent No.4  therefrom.   This  direction  shall  be
carried out within a period of four weeks from today.
                 Since the respondents have not appeared, we are not  making
any order as to costs.

2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41826

J. CHELAMESWAR, A.K. SIKRI
                                                             NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 7699 OF 2014
      (arising out of Special Leave Petition (Civil) No. 29696 of 2013)


|VIMAN VAMAN AWALE                        |.....APPELLANT(S)              |
|VERSUS                                   |                               |
|GANGADHAR MAKHRIYA CHARITABLE TRUST &    |.....RESPONDENT(S)             |
|ORS.                                     |                               |



                               J U D G M E N T


A.K. SIKRI, J.

                 Leave granted.

Dispute in this appeal pertains to the seniority of the appellant  vis-a-vis
respondent No.4.  Both the appellant as well as respondent No.4 are  working
as teachers in Seth Gangadhar Makhriya High School, Mahabaleshwar,  District
Satara in Maharashtra.  It is not in dispute that the appellant  had  joined
the said school as Assistant Teacher before respondent No.4 and  was  senior
to him in the post of  Assistant  Teacher.   However,  respondent  No.4  had
acquired B.Ed. degree prior to  the  appellant  and  on  that  basis  he  is
treated senior to  the  appellant  in  the  category  of  'Trained  Graduate
Teachers'.  Whether this consequence follows as a result  of  the  rules  is
the matter of examination in the present case.

This question has arisen in the following circumstances:
            The appellant joined the service with respondent No.3 School  as
Assistant Teacher on 24.08.1979, whereas respondent  No.4  joined  the  same
post in the same School on 01.09.1980.  At the  time  of  her  joining,  the
appellant had not completed her graduation, though  it  is  not  in  dispute
that the appellant fulfilled the requisite  qualifications  for  appointment
as Assistant Teacher. She completed her BA in the  year  1984.   Thereafter,
she did B.Ed. as well, with due permission of the  School  authorities,  and
passed the said course on 20.05.1986.  To improve her academic  record,  the
appellant even acquired the qualification of MA in the year  1997.   On  the
other hand, the academic graph of respondent  No.4  discloses  that  he  was
already BA when he joined the service as Assistant  Teacher  on  01.09.1980.
He also did B.Ed. and completed that course on 01.11.1984 (that  is,  before
the appellant, who had acquired the same qualification on 20.05.1986).

A seniority list was circulated by the School authorities (from the  record,
the date of this list is not discernible) wherein the  appellant  was  shown
as junior to respondent No.4.  The appellant claimed  that  she  was  senior
and,  therefore,  filed  objections  to  the  said  seniority  list,  which,
however, did not yield any result.

The then Headmaster of the School, one Mr. K.R. Lakeri, was  due  to  retire
on attaining the age of superannuation on 31.12.2009. The appellant  claimed
that she should be promoted as Headmistress, being the senior  most  teacher
on the retirement of Mr. Lakeri and submitted an application to this  effect
on  16.05.2009,  which  was  followed   by   another   communication   dated
01.12.2009.  In reply, she received the communication dated 29.12.2009  from
respondent No.1, which is a Charitable Trust running the School, asking  for
grounds and explanations on the basis of which she was staking her claim  to
the post of Headmistress.  However, without waiting for  the  reply  of  the
appellant and on the same day, that is on 29.12.2009, the Management of  the
School passed Resolution No.3 resolving to appoint respondent  No.4  as  the
Headmaster of the School.  Appointment  letter  dated  11.01.2010  was  also
issued in this behalf in favour  of  respondent  No.4.   This  proposal  was
forwarded by the School authorities to the  Education  Officer  (Secondary),
Zilla  Parishad,  Satara  (respondent  No.5  herein)  seeking  approval  for
appointment of respondent No.4 as  the  Headmaster,  which  was  granted  by
respondent No.5.

Feeling aggrieved  by  the  promotion  of  respondent  No.4,  the  appellant
approached the School Tribunal  by  filing  an  appeal  bearing  No.  5/2010
seeking quashing of the orders  of  the  authorities  appointing  respondent
No.4. as the Headmaster of the School.  This appeal  was  contested  by  the
School authorities as well as the  Education  Officer  taking  the  position
that respondent No.4 was senior to  the  appellant.   The  School  Tribunal,
after hearing the matter, passed  orders  dated  26.09.2012  dismissing  the
appeal preferred by the appellant.  The appellant challenged that  order  by
filing the writ petition in the High Court of Bombay.   This  writ  petition
has also been dismissed by the High  Court  vide  orders  dated  25.02.2013.
Undettered by two unsuccessful attempts, the appellant has  approached  this
Court maintaining the posture that she is  senior  to  respondent  No.4  and
rightful claimant to the post of Headmistress, as per the extant Rules.

The aforesaid, thus, is the brief narration of the background in  which  the
dispute has arise, viz. whether  it  is  the  appellant  who  is  senior  to
respondent No.4 or it is respondent No.4 who is senior to the appellant.

The  reason  given  by  the  School  Tribunal  in  accepting  the  claim  of
respondent No.4 is that at the time  of  entry  of  both  these  persons  as
Assistant Teachers in the  School,  both  of  them  were  not  having  B.Ed.
qualification but were only D.Ed.  Therefore, they were placed in  Category-
D of Schedule 'F'.  Further, as far as B.Ed.  qualification  was  concerned,
the same was acquired by the appellant in the year 1986, whereas  respondent
No.4  got  this  qualification  on  31.05.1984.   According  to  the  School
Tribunal, seniority is to be considered from  the  date  of  acquisition  of
this  professional qualification, that is being the 'Trained  Teacher'.   In
this context, the School Tribunal took note  of  the  fact  that  respondent
No.3 School is a Secondary School, having classes of V to X and as such,  as
per Rule 3(1)(b),  the  required  qualification  must  be  graduate  teacher
possessing bachelor's degree in teaching and five years teaching  experience
and out of this two years experience shall  be  after  acquiring  bachelor's
degree.   Further,  Schedule-B  of  the  Maharashtra  Employees  of  Private
Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as  the
'Rules')   provides  the  degree  qualification  for  secondary  teacher  as
Graduate  plus  B.Ed.   On  that  reckoning,  the  date  of  acquiring   the
professional qualification becomes relevant, which was B.Ed., and  since  it
is respondent No.4 who stole the march over the appellant by acquiring  this
qualification earlier in point of time, he was to be treated  as  senior  to
the appellant.  The School Tribunal, in support of this conclusion that  the
date of acquisition of professional  qualification  would  be  the  date  of
determining the seniority, relied upon a Full Bench judgment of  the  Bombay
High Court in the case  of  Shri  Vaijanath  s/o.  Tatyarao  Shinde  v.  The
Secretary, Marathwada Shikshan Prasarak Mandal (Writ Petition  No.  4907  of
2002 decided on 15.11.2006).

The High Court, while dismissing the writ petition  of  the  appellant,  has
concurred with the aforesaid view of the School Tribunal.

Notice in this case was duly served upon the respondents. However,  none  of
the respondents chose to enter appearance.  In these circumstances,  we  had
no option but to hear the counsel for the appellant in the  absence  of  the
respondents.  However, we have ourselves  minutely  perused  the  record  as
well as the relevant statutory provisions.

The submission of the learned counsel for the appellant  was  that  criteria
followed by the courts below in determining the seniority, namely, the  date
of acquisition of professional qualification, is totally extraneous  and  is
not reflected in the relevant provisions, namely, the Maharashtra  Employees
of Private Schools (Conditions of Service) Regulation Act, 1977 (for  short,
the 'Act') and the Rules framed thereunder.  His submission was  that  there
are specific  Rules  determining  the  seniority  and  respondent  No.1  was
supposed to follow those Rules.  According to him, the  relevant  Rules  did
not prescribe acquisition of a particular qualification as the criteria  for
fixing the seniority.  He referred to the provisions of  Section  4  of  the
Act as well as Rules 3 and 12 of the Rules,  read  with  Schedule-F  to  the
said Rules and submitted that  these  provisions,  which  are  statutory  in
nature, not only provide the qualification required  for  the  post(s),  but
also provide formula for determining  the  inter-se  seniority  as  well  as
criterion for appointment of the Headmaster of a Private School.

In order to appreciate the aforesaid contention, it is necessary  to  glance
through the Rules in question.

Section 2(9) of  the  Act  defines  'Head  of  a  School'.   Section  2(24A)
provides the definition of 'Assistant Teacher  (Probationary)'.  Section  3,
which pertains to the applicability of the Act, inter  alia,  provides  that
this Act shall apply to all private schools in  the  State  of  Maharashtra,
whether receiving a grant-in-aid from the State Government or not.   Section
4 of the Act provides for the terms and conditions of service  of  employees
of private schools. Section 5 cast  certain  obligations  of  Management  of
private schools, which includes filling up of permanent  vacancies  in  such
schools by appointment of a person duly qualified to fill such vacancy.

We would like  to  reproduce,  verbatim,  provisions  of  Section  2(9)  and
Section 2(24A) as well as Section 4 of the Act, which are as under:
“Section 2(9)

“Head of a School”, or Head means the person, by whatever  name  called  in-
charge of the academic and administrative duties and functions of  a  school
conducted by any management and recognised or deemed to be recognised  under
this Act, and  includes  a  principal,  vice-Principal,  head  master,  head
mistress, assistant head master, assistant head-mistress, or  superintendent
thereof;

Section 2(24A)

Assistant Teacher (Probationary) means  a  member  of  base  teaching  cadre
appointed on  honorarium  and  subject  to  such  terms  and  conditions  as
specified in the Government Resolution published in  Maharashtra  Government
Gazet6te, Extra-ordinary, No.12, Part-I-Central Sub-section, dated the  15th
February 2007, for eventual appointment as a teacher;

Section 4

Terms and conditions of service of employees of Private schools.

(1)   Subject to the provisions of this section, the  State  Government  may
make  rules  providing  for  the  minimum  qualification   for   recruitment
(including its procedure),  duties,  pay,  allowances,  post-retirement  and
other benefits, and other conditions of  service  of  employees  of  private
schools and for reservation of adequate  number  of  posts  for  members  of
backward classes:

Provided that, neither the pay  nor  the  rights  in  respect  of  leave  of
absence, age of retirement and post-retirement benefits and  other  monetary
benefits of an employee in the employment of an existing private  school  on
the appointed date shall be varied to the disadvantage of such  employee  by
any such rules.

(2)   Every employee of a private school shall be governed by such  Code  of
Conduct as may be prescribed.  On the violation of  any  provision  of  such
Code of Conduct, the employee shall be liable to disciplinary  action  after
conducting an enquiry in such manner as may be prescribed.

(3)   If the scales  of  pay  and  allowances,  post  retirement  and  other
benefits of the employees of any private school  are  less  favourable  than
those provided by the rules made under sub-section (1), the  Director  shall
direct in writing the Management of such school to bring the same  upto  the
level provided by the said rules, within such period or extended  period  as
may be specified by him.

(4)   Failure to  comply  with  any  direction  given  by  the  Director  in
pursuance of sub-section (3) may result in the  recognition  of  the  school
concerned being withdrawn,  provided  that  the  recognition  shall  not  be
withdrawn unless the Management of the school concerned  has  been  given  a
reasonable opportunity of being heard.

(5)   No employee working in a private school shall  work  in  any  coaching
class.  If any employee, in contravention of this provision,  works  in  any
coaching class, his services  shall  be  liable  to  be  terminated  by  the
Management, provided that no such  order  of  termination  shall  be  issued
unless the employee concerned has been given  a  reasonable  opportunity  of
being heard.

(6)   No employee of a private  school  shall  be  suspended,  dismissed  or
removed or his services shall not be otherwise terminated or  he  shall  not
be reduced in rank,  by  the  Management,  except  in  accordance  with  the
provisions of this Act and the rules made in that behalf.”



Relevant Rules with which  we  are  concerned  are  Rule  3  (providing  for
qualification and appointment of Head); Rule 6  (stipulating  qualifications
needed  for  appointment  as  teachers)  and  Rule  12  (dealing  with   the
seniority).  Relevant portion of these Rules are as under:
“3.  Qualifications and appointment of Head.

(1)   A person to be appointed as the Head -

(a)         xx             xx                 xx

(b)   of a secondary school including night school or a  Junior  College  of
Education shall be a graduate possessing Bachelor's degree  in  teaching  or
education of a statutory University or any  other  qualification  recognised
by Government as equivalent  thereto  and  possessing  not  less  than  give
years', total full-time teaching experience after graduation in a  secondary
school or a Junior College of Education out of which  at  least  two  years'
experience shall  be  after  acquiring  Bachelor's  degree  in  teaching  or
education:

                 xx             xx                  xx

(3)   The Management of a school including a night school shall fill up  the
post of the Head by appointing the seniormost member of the  teaching  staff
(in accordance with the guidelines laid down in Schedule  “f”  from  amongst
those employed in a school (if it is the only school run by the  Management)
or schools [if there are more  than  one  school  (excluding  night  school)
conducted by it] who fulfills the conditions laid down in sub-rule  (1)  and
who has a satisfactory record of service.

                 xx             xx                  xx


6.    Qualifications of Teachers.

      The minimum qualifications for the  post  of  teachers  and  the  non-
teaching staff in the primary schools, secondary  schools,  Junior  Colleges
and Junior Colleges of Education shall be as specified in Schedule “B”.

                 xx             xx                  xx


                                Schedule 'B'

                          (See rules 2(1)(j) and 6)

                   I. Qualifications for Primary Teachers

      Appointment to the  posts  of  Primary  school  teachers  (other  than
special teachers-Drawing teachers) shall be made by nomination from  amongst
candidates who have passed S.S.C. examination or  Matriculation  examination
or Lokshala examination or any  other  examination  recognised  as  such  by
Government and the Primary Teachers Certificate examination  or  Diploma  in
Education examination, or a Diploma in Education (per-primary of two  years'
duration).

Note. - A person holding a Diploma in Education (pre-primary of  two  year's
duration)  shall  be  qualified  to   teach   standards   I   to   IV   only
notwithstanding anything contained in the foregoing provisions -

                 xx             xx                  xx

   II. Qualifications for trained Teachers in Secondary Schools and Junior
                            Colleges of Education

1.    For Graduate Teachers:

                 xx             xx                  xx

(iv)   A Diploma in Education of the Graduates Basic Training Centres;

                 xx             xx                  xx

12.  SENIORITY LIST

(1)   Every Management shall prepare and  maintain  seniority  list  of  the
teaching staff including head master and  Assistant  Head  master  and  non-
teaching staff in the school in accordance with the Guidelines laid down  in
Schedule “F”.  The Seniority List so prepared shall  be  circulated  amongst
the members of the staff concerned and their signatures for having  received
a copy of the list shall be obtained.  Any subsequent  change  made  in  the
list from time to time shall also be brought to the notice  of  the  members
of the staff concerned and their  signature  for  having  noted  the  change
shall be obtained.

(2)   Objections, if any, to the seniority list or to  the  changes  therein
shall be duly taken into consideration by the management.

(3)   Disputes, if any,  in  the  matter  of  inter-se  seniority  shall  be
referred to the Education Officer for his decision.

                                Schedule “F”

1.    Guidelines for fixation  of  seniority  of  teachers  in  the  primary
schools:

The Seniority of primary school teachers in Primary Schools shall  be  based
on  continuous  officiation  counted  from  the  date   of   acquiring   the
educational qualification as  prescribed  under  “Schedule  B'  appended  to
these rules.

2.    Guidelines for fixation of seniority  of  teachers  in  the  secondary
schools, Junior Colleges of Education and Junior  College  Classes  attached
to secondary schools and Senior College:

For the purpose of Fixation  of  Seniority  of  teachers  in  the  secondary
schools, Junior Colleges of Education and Junior  College  classes  attached
to Secondary Schools the teachers should be categorized as follows:

Category A: Heads of Secondary  Schools  having  an  enrolment  of  students
above 500 and Principals of Junior Colleges of Education  having  more  than
four Divisions on the basis of their appointments to the respective posts.

Category B: Heads of Secondary  Schools  having  an  enrolment  of  students
above 500, Principals of Junior Colleges of Education having  four  or  less
divisions and Assistant Heads of  Secondary  Schools  having  more  than  20
classes on the basis of their appointments to the respective posts.

Category C:

      M.A./M.Sc./M.Com, B.T./B.Ed., or its equivalent; or

      B.A./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. services

Category D:

      B.A./B.Sc./B.Com., S.T.C./Dip.T. (One year course)  Senior  or  Junior
Hindi Shikshak Sanad or its equivalent

Category E:

      S.S.C., S.T.C./ Dip.Ed/ Dip.T. (One  year  course)  Senior  or  Junior
Hindi Shikshak Sanad or its equivalent

Category F:

      Untrained Graduates or holders of equivalent qualification

Category G:

      Untrained Matriculates or holders of equivalent qualification



Category H:

      All teachers other than those mentioned in categories A to G.

                 xx             xx                  xx


Note 2:     The following training qualifications which can be  secured  two
years  after  S.S.C.   examination   shall   be   considered   as   training
qualification for the purpose of seniority even after 1.10.1970:

(1)   D.Ed. (2 years)

(2)   T.D. (Bombay University)

(3)   Dip. Ed. (Nagpur University).

                 xx             xx                  xx

Note  4:      The  categories  mentioned  above  represent  the  ladder   of
seniority and have been mentioned in descending order.”


When we read the aforesaid Rules in the context of  the  present  case,  the
position which emerges is that for appointment of  a  Primary  Teacher,  the
qualification that is stipulated in Schedule-B is  that  he  or  she  should
have passed S.S.C. examination  or  matriculation  examination  or  lokshala
examination or any other examination recognised as such  by  Government  and
the  Primary  Teachers  Certificate  examination  or  Diploma  in  Education
examination,  or  a  Diploma  in  Education  (per-primary  of   two   years'
duration).   Thus,  among  various  alternate   qualifications   which   are
prescribed for appointment to the post of Primary School  Teachers,  one  of
the prescribed qualification is Diploma in  Education  Examination  (D.Ed.).
Therefore,  a  person  holding  this  qualification  would  be  treated   as
satisfying the qualification stipulated in Rule 6.   As  a  consequence,  he
would be treated as 'Trained Graduate', as defined in  Rule  2(1)(j),  which
means a person possessing the qualifications mentioned  in  sub-clauses  (i)
to (vi) of clause (1) of item II in Schedule “B”.

The appellant herein entered  the  service  in  respondent  No.3  School  as
Assistant Teacher of a Primarcy  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.

In the aforesaid backdrop, it is to be seen as  to  whether  acquisition  of
B.Ed. degree by respondent No.4 (who joined as Assistant Teacher  after  the
appellant and was junior to her as Assistant Teacher) earlier  in  point  of
time than the appellant would tamper with the  seniority  of  the  appellant
and steal a march over her?  The School Tribunal as well as the  High  Court
has referred to the Full Bench judgment of the Bombay  High  Court  in  Shri
Vaijanath (supra) while answering this question  in  the  affirmative.   The
question which was referred for determination by  the  Full  Bench  in  that
case was to the following effect:
“For promotion to the post of Head  Master  of  a  Primary  School,  whether
seniority of the  teacher  is  to  be  counted  from  the  date  of  initial
appointment, or from the date of acquisition  of  educational  and  training
qualification?”

The Full Bench of the High Court answered the aforesaid question by  holding
that  seniority  shall  be  determined  from  the  date  of  acquisition  of
educational and training qualification.   For  providing  this  answer,  the
Full Bench took into consideration provisions of Section 5  of  the  Act  as
per which permanent vacancy in a private  school  is  to  be  filled  up  by
appointing a person duly qualified to fill such vacancy.  In  the  facts  of
that case, the Court noted that since the petitioner there, when  he  joined
the school, did not have the necessary qualification for the said  post,  he
could not be treated as a person duly qualified in  terms  of  Rule  6  read
with Schedule “B” of the Rules.  On  that  basis,  the  Court  came  to  the
conclusion that as the said petitioner acquired the  qualification  required
for the post at a later date, it is  only  on  the  acquisition  of  such  a
qualification that he became eligible and qualified for being  appointed  to
the post and, therefore, his seniority would be determined from the date  of
acquisition of the qualification and not before.   For  such  a  conclusion,
the High Court relied upon the judgment of  this  Court  in  Shitala  Prasad
Shukla v. State of U.P. & Ors., (1986) II LLJ 298 SC.

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 24.08.1979. This makes all the difference and  renders  the
judgment in the case of Shri Vaijanath (supra) 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  Shri
Vaijanath (supra).

In the present case, when we find that the appellant  was  qualified  to  be
appointed as Assistant  Teacher  in  Primary  School  on  the  date  of  his
appointment, acquisition of higher qualification at a later date, even  when
such a higher qualification is requisite qualification for the higher  post,
will not be determinative for fixing the seniority.  Direct  answer  thereto
is provided by this Court in R.B. Desai & Anr. v.  S.K.  Khanolker  &  Ors.,
(1999) 7 SCC 54.    The appellants therein were appointed  to  the  post  of
Forest Officer in the year 1964-65 and after the  required  training  joined
the Forest Department of the Government of  Goa  as  Foresters  with  effect
from 27.01.1965.  They were promoted to the next higher cadre  of  RFO  with
effect from 08.03.1974.  The first respondent  therein  directly  joined  as
RFO on 01.11.1975 a  date  subsequent  to  the  date  of  promotion  of  the
appellants.  In the various seniority lists, including the  final  seniority
list, prepared and published on 30.07.1991 of the officers in the  cadre  of
RFOs, the appellants were shown at S.Nos. 5 and 8  whereas  respondent  No.1
was placed at S.No. 11.  The ranking assigned in  that  seniority  list  was
not been challenged at any point of time.  Next promotion was  to  the  post
of ACF.  As per the relevant Rules, the said post was a selection  post  and
the method of recruitment to this post was in the ratio of 75% by  promotion
and 25% by direct recruitment.  In the case of  promotion,  the  eligibility
criteria was fixed as under:
“(i)  Range Forest Officers with 5 years' regular service in the  grade  and
possessing diploma of Forest Rangers' Training from Forest  Rangers  College
in India or equivalent.

(ii)  Unqualified Range Forest Officers trained in  Forest  School  with  10
years' regular service in the grade.

Note  1.–  The  eligibility  list  for  promotion  shall  be  prepared  with
reference to the date of  completion  by  the  officers  of  the  prescribed
qualifying service in the respective grade/posts.

Note  2.–  Unqualified  Range  Forest  Officers  shall  after  promotion  as
Assistant Conservator of Forests would be required to complete  successfully
refresher courses at FRI&C.
                                                        (Emphasis supplied)”


            Interpreting Note 1, the  High  Court  had  held  that  date  of
completion of the prescribed qualifying service would be relevant and  since
the appellants therein, when they were senior as  RFOs,  had  completed  the
qualifying service (which was 10 years in their case) and  respondent  No9.1
had completed qualifying service earlier in point of time  (which  was  only
five years), respondent No.1 was senior.  This Court reversed the  aforesaid
view of the High Court by accepting the contentions of the  appellants  that
once they entered  the  eligible  list,  the  date  of  eligibility  had  no
preferential benefit and it is only the seniority vis  a  vis  the  eligible
candidates, as shown in the seniority list of the RFOs that would  be  taken
into consideration.  Interpretation given to Note 1 by the  High  Court  was
also rejected.  The entire issue, while taking the aforesaid view, is  dealt
with by this Court in the following manner:
“9.   We are unable to agree with this reasoning  of  the  High  Court.   As
noticed above, promotion to the post of AFOs is made from the post  of  RFOs
to the extent of 75% of the vacancies.  There is no dispute  that  both  the
appellants and the first respondent belong to the cadre of RFOs.   The  only
difference between them being that the  appellants  were  promotees  in  the
said cadre while the first respondent  was  a  direct  recruit.   It  is  an
accepted  principle  in  service  jurisprudence  that  once   persons   from
different sources enter a common cadre, their  seniority  will  have  to  be
counted from the date of their continuous officiation in the cadre to  which
they are appointed.  On facts, there  is  no  dispute  that  the  appellants
entered the RFOs' cadre on a date anterior to that of the first  respondent,
therefore, in the cadre of RFOs, the appellants  are  senior  to  the  first
respondent.  However, to be considered  for  promotion,  the  rule  required
RFOs to  acquire  the  eligibility  as  provided  therein.   Therefore,  the
question  for  consideration  is:  can  the  acquisition   of   an   earlier
eligibility give an  advantage  to  the  first  respondent  as  against  the
appellants when an avenue for promotion opens in  the  cadre  of  ACFs  even
though at what point of time the appellants had also acquired  the  required
eligibility?  We are of the opinion that if at  the  time  of  consideration
for promotion the candidates concerned have acquired the  eligibility,  then
unless the rule specifically gives an advantage to a candidate with  earlier
eligibility,  the  date  of  seniority  should  prevail  over  the  date  of
eligibility.  The rule under consideration does not give any  such  priority
to the  candidates  acquiring  earlier  eligibility  and,  in  our  opinion,
rightly so.  In service law, seniority has its own weightage and unless  and
until the rules specifically exclude this weightage of seniority, it is  not
open to the authorities to ignore the same.

10.   The High Court has relied upon the language of Note 1 to the  rule  to
come to the conclusion that the persons with  earlier  date  of  eligibility
have a weightage over others solely on the basis that the note required  the
list  of  eligibility  to  be  maintained  on  the  basis  of  the  date  of
acquisition of such  eligibility,  hence  eligibility  has  preference  over
seniority.  Our reading of the said note does not persuade us  to  give  any
such preference.  If the rule did contemplate such advantage, it would  have
stated so in specific terms.  We also do not see any  special  objective  in
giving  preference  to  the  date  of  eligibility  as  against   seniority.
Eligibility, of course, has a relevant object but  date  of  acquisition  of
eligibility, when both competing persons have the eligibility  at  the  time
of consideration cannot, in our opinion, make any difference.

11.   If on the date of consideration,  the  appellants  did  not  have  the
eligibility then certainly it is the first  respondent  who  ought  to  have
been considered for the said promotion and if he  was  so  promoted  earlier
than the  appellants  he  would  have  acquired  a  higher  ranking  in  the
seniority list of ACFs.  That not being the case, we  are  unable  to  agree
with the view taken by the High Court, as stated above, because on the  date
on which the avenue for promotion to the  cadre  of  ACFs  opened  both  the
appellants as well as the first respondent  had  the  necessary  eligibility
and their names figured in the eligibility list.  That being so,  as  stated
above, it is the appellants whose case ought to have been  considered  first
and it was so done and they having been found otherwise suitable, they  were
rightly promoted earlier than the first respondent.  Consequently, they  are
entitled to a higher ranking in the cadre  of  ACFs  vis  a  vis  the  first
respondent.  The view taken by us also finds support from  the  judgment  of
this Court in Union of India v.  B.  Jayaraman,  (1994)  Supp  (1)  SCC  95,
wherein considering a similar argument this Court held: (SCC Headnote)

“The note in column 11 is only for purposes of  giving  eligibility  to  the
erstwhile Assistants working as Superintendents Grade  II  for  purposes  of
being considered for promotion to the post of  Superintendent  Grade  I  and
not for the purpose of seniority at all.

                                                        (Emphasis supplied)”


That apart, we find that in the case at  hand  there  is  a  specific  Rule,
namely, Rule 12 of the Rules, which deals with  seniority.   The  clear  and
unambiguous  criteria  for   determining   seniority   is   the   continuous
officiation  counted  from   the   date   of   acquiring   the   educational
qualification as prescribed under Schedule “B”.  It is stated  at  the  cost
of  repetition  that  since  the  appellant  was   holding   the   requisite
qualifications, i.e.  D.Ed.,  for  appointment  to  the  post  of  Assistant
Teacher in Primary School, as prescribed under Schedule “B”  to  the  Rules,
her seniority was to be counted on  the  basis  of  continuous  officiation.
Since she joined the post of Assistant Teacher on 24.08.1979 and  respondent
No.4 came to be appointed subsequently, i.e. on 01.09.1980.   The  appellant
would naturally be senior to respondent No.4.

Insofar as manning the post of Head of the School is concerned,  Rule  3  of
the Rules provides for the qualifications.  It is not in dispute that as  on
the date of which the Head of the School was to be appointed, the  appellant
fulfilled all the requisite  qualifications  mentioned  in  the  said  Rule.
Further, as already found, she  was  senior  to  respondent  No.4  as  well.
Therefore, it is the appellant who was the rightful claimant to the post  of
Head of the School.  Depriving her of this legitimate right and  making  the
appointment of respondent No.4  as  the  Head  Master  of  the  School  was,
therefore, clearly erroneous, which resulted in infringement of  the  rights
of the appellant to hold that post.

Accordingly, this appeal is allowed.  Judgment of  the  High  Court  is  set
aside and a direction is issued to appoint the  appellant  as  Head  of  the
School by replacing respondent No.4  therefrom.   This  direction  shall  be
carried out within a period of four weeks from today.
                 Since the respondents have not appeared, we are not  making
any order as to costs.

                             .............................................J.
                                                            (J. CHELAMESWAR)



                             .............................................J.
                                                                (A.K. SIKRI)

New Delhi;
August 13, 2014.

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