LAW FOR ALL : 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.

Wednesday, December 9, 2020

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.

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.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3966 OF 2020

(ARISING OUT OF SLP (CIVIL) NO. 9611 OF 2019)

MADHAVI .....APPELLANT(S)

VERSUS

CHAGAN & ORS. .....RESPONDENT(S)

W I T H

CIVIL APPEAL NO. 3967 OF 2020

(ARISING OUT OF SLP (CIVIL) NO. 10046 OF 2019)

A N D

CONTEMPT PETITION (CIVIL) NO. 647 OF 2020

SLP (CIVIL) NO. 10046 OF 2019

J U D G M E N T

HEMANT GUPTA, J.

1. The present appeals are directed against the common order of the

High Court of Judicature at Bombay, Nagpur Bench, whereby, the

review of the dismissed writ petition filed by respondent No. 11 was

allowed and the order passed by the School Tribunal dated 1.1.2016

was set aside.

1 Hereinafter referred to as ‘Chagan’

2. The appellant2 herein was appointed with Shri Samarth Shikshan

Sanstha3 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, 19814

. 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

2 Hereinafter referred as ‘Madhavi’

3 For short, the ‘School’

4 For short, the ‘Rules’

Category ‘D’ of Schedule ‘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(1)(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.

xx xx xx

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 v. Gangadhar

Makhriya Charitable Trust & Ors.5

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

5 (2014) 13 SCC 219

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 v. State of

Maharashtra & Ors.6 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.

10. Some of the relevant provisions of The Maharashtra Employees of

Private Schools (Conditions of Service) Regulation Act, 19777 and

the Rules are extracted hereunder:

“ACT

2(9) “Head of a school” or “Head” means the person, by

whatever name called in charge of the academic and

6 (2019) 4 SCC 300

7 For short, the ‘Act’

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 headmaster, assistant head-mistress or superintendent

thereof;

xx xx xx

2(18) “primary education” means education imparted in

such subjects and upto such standards as may be

determined by the State Government, from time to time,

located either in a primary or a secondary school;

2(19) “primary school” means a recognised school, or a

part of such school, in which primary education is

imparted;

xx xx xx

2(24) “School” means a primary school, secondary

school, higher secondary school, junior college of

education or any other institution by whatever name

called including technical, vocational or art institution or

part of any such school, college or institution, which

imparts general, technical, vocational, art or, as the case

may be, special education or training in any faculty or

discipline or subject below the degree level;

xx xx xx

2(26) “teacher” means a member of the teaching staff,

and includes the Head of a school;

xx xx xx

5. Certain obligations of Management of private schools.

– (1) The Management shall, as soon as possible, fill in,

in the manner prescribed, every permanent vacancy in a

private school by the appointment of a person duly

qualified to fill such vacancy.

Provided that, unless such vacancy is to be filled in

by promotion, the Management shall, before proceeding

to fill such vacancy, ascertain from the Educational

Inspector, Greater Bombay, the Education Officer, Zilla

Parishad or, as the case may be, the Director or the

Officer designated by the Director in respect of schools

imparting technical, vocational, art or special education,

whether there is any suitable person available on the list

of surplus persons maintained by him, for absorption in

other schools and in the event of such person being

available, the Management shall appoint that person in

such vacancy.

xx xx xx

5(5) The Management may fill in every temporary

vacancy by appointing a person duly qualified to fill such

vacancy. The order of appointment shall be drawn up in

the form prescribed in that behalf, and shall state the

period of appointment of such person.

Rules

2(e) “Education Officer” –

(i) in relation to a private secondary or higher secondary

school or Junior College of Education in Greater Bombay,

means an Educational Inspector,

(ii) in relation to a private primary school in the areas of

any Municipal Corporation or Municipal Council, means

the Education Officer or the Administrative Officer of a

Municipal Corporation or a Municipal School Board, as the

case may be, and

(iii) in relation to any private school in areas elsewhere

in the State of Maharashtra, means an Education Officer,

in a Zilla Parishad;

xx xx xx

2(j) “trained graduate” means a person possessing the

qualifications mentioned in sub-clauses (i) to (vi) of

clause (1) of item II in Schedule ‘B’;

2(k) “trained teacher” means a teacher who has secured

a professional certificate, a diploma or a degree

recognised by the Department which qualifies him for a

teaching post in a school;

xx xx xx

Rule 3 (as it existed prior to amendment on 22.6.2017).

Qualifications and appointment of Head .—(1) A person

to be appointed as the Head —

(a) (i) of a primary school having an enrolment of

students above 200 or having Standards I to VII shall be

the seniormost trained teacher who has put in not less

than five years’ service; and

(ii) of any other primary school shall be the seniormost

teacher in the school;

(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 five 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:

Provided that, in the case of a person to be appointed as

the Head of a night secondary school —

(i) he shall not be the one who is holding the post of the

Head or Assistant Head of a day school, and

(ii) the experience laid down in clause (6) of sub-rule ( I )

may be as a part-time teacher.

(2) xxx xxx

xx xx xx

Rule 6. (as it existed prior to amendment on 22.6.2017)

- Qualifications of teachers.—The minimum qualifications

for the posts 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 ”:

Provided that, the Education Officer may allow

Managements to appoint untrained Science graduate

teachers for teaching Mathematics and Science subjects

or untrained Arts or Commerce graduates for teaching

other subjects in secondary schools in exceptional

circumstances, such as non-availability of trained

graduates. Such appointments shall, however, be allowed

on an year-to year basis, on the clear understanding that

they shall have to obtain training qualification at their

own cost and further subject to the condition that their

services shall be liable for termination as soon as trained

graduate teachers become available.

Provided further that, the untrained graduate appointed

as a teacher after obtaining the permission from the

Education Officer before the commencement of the

Maharashtra Employees of Private Schools (Conditions of

Service) Rules, 1981 and who continues to be in service

in any school on the date of commencement of the

Maharashtra Employees of Private Schools (Conditions of

Service) (Amendment) Rules, 1984 shall, be continued in

service on the condition that he obtains the prescribed

training qualifications at his own cost before 1st June

1987, unless he has already obtained such qualifications,

failing which his services shall be terminated.

xx xx xx

Rule 12. (as it existed prior to amendment on 8.10.2018)

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

in0the 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

seniority list from time to time shall also be brought to

the notice of the members of the staff concerned and

their signatures 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 interse seniority shall

be referred to the Education Officer for his decision.

xx xx xx

SCHEDULE B

I. Qualifications for Primary Teachers (as it existed prior

to amendment on 22.6.2017) – 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 (pre-primary of two years’

duration).

Note.—A person holding a Diploma in Education (preprimary of two years duration) shall be qualified to teach

standards I to IV only notwithstanding anything

contained in the foregoing provisions—

(а) Candidates who were recruited before the coming into

force of these rules in accordance with the recruitment

rules then in force and who were thereafter discharged

for want of vacancies shall be eligible few reappointment.

(b) Other things being equal, preference may be given

to-

(i) candidates who have passed the S.S.C. or other

equivalent examination with English, Mathematics and

Science or any two of them; and

(ii) eligible women candidates obtaining (the

qualifications mentioned at item (i) through condensed

courses.

II. Qualifications for trained teachers in secondary

schools and junior colleges of education.

(1) For Graduate Teachers:

(i) A Bachelor's degree in Teaching or Education of any

statutory University or a qualification recognised by

Government as equivalent thereto;

(ii) A Teaching Diploma of any statutory University if a

person holding it is appointed for the first time before the

1st October 1970;

(iii) A Secondary Teachers Certificate of the Education

Department of this State, if the person holding it is

appointed for the first time before 1st October 1970:

(iv) A Diploma in Education of the Graduates Basic

Training Centres;

(v) A Diploma in Physical Education or a qualification

recognised by Government as equivalent thereto; or

Bifocal Higher Diploma in Physical Education of the

Government of Maharashtra (as Physical Education with

one of the method subjects) o t B. P. Ed. (Marathwada

University) or B. P. Ed. (Shivaji University) or B.Ed.

(Physical Education) (Poona University) or B.Ed. (Physical

Education) (Bombay University) or Diploma in Physical

Education, Culture and Recreation awarded by Hanuman

Vyayam Prasarak Mandal, Amravati; or

(vi) Any other degree, diploma or certificate which

Government or the Inter-University Board may sanction

as equivalent to any of the above qualifications.

(2) For Undergraduate Teachers:

(i) A Diploma in "Education of Nagpur and Bombay

Universities which is awarded two years after Secondary

School Certificate Examination;

(ii) A Secondary Teachers' Certificate of the Education

Department or the Teachers’ Diploma of any other

statutory University if the person holding it is appointed

for the first time before the 1st October 1970;

(iii) A Certificate in Physical Education recognised by

Government if the person holding it is appointed for the

first time before the 1st June 1971;

(iv) A Diploma in Education (Primary) awarded by

Government; or

(v) Any other equivalent diploma or certificate approved

by Government or Inter-University Board.

xx xx xx

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 the date of

joining service and continuous officiation.

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 Colleges :— 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 categorised as

follows:—

Category A. - xx xx xx

Category B. - xx xx xx

Category C. - Holders of— 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. service.

Category D. - Holders of-— B.A. B.Sc. B.Com., S.T.C./Dip.

Ed. (one year course) or its equivalent.

Category E. - Holders of— S.S.C., T.C./Dip. Ed./Dip. T.

(one year course) or its equivalent.

xx xx xx

Note 1. - For the purpose of categories C, D and E

teachers with S.T.C., T.D., Jr. P. T.C., Dip. 1., Dip. Ed.

(post-S.S.C. one year course)) qualifications appointed

on or after 1st October 1970 shall be considered as

untrained and their seniority shall be fixed in the ‘F’ or ‘G’

category of untrained teachers, as the case may be.

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 1st October, 1970:-

(1) D .Ed. (2 years),

(2) T .D . (Bombay University),

(3) Dip. Ed. (Nagpur University).

Note 3. - In the case of teachers whose date of

continuous appointment in one and the same category is

common, the teacher who is senior by age will be treated

as senior.

Note 4 —The categories mentioned above represent the

ladder of seniority and have been mentioned in

descending order.”

11. Learned counsel for the appellant submitted that the School in the

present case is not a primary school. The seniority of teachers in a

primary school is based upon the date of joining service and

continuous officiation thereof, as provided under Clause 1 of

Schedule ‘F’. Whereas, guidelines for fixation of seniority of teachers

in the secondary school, junior college of education and junior

classes attached to secondary school and senior colleges are

contained in Clause 2 of Schedule ‘F’. It was contended that the

management runs the present school which is a secondary school

only and not a primary school. Therefore, Clause 1 of Schedule ‘F’

cannot be applied for determining seniority of teachers in a

secondary school. It was further contended that Chagan was not

qualified to be appointed as a trained teacher in the secondary

School. Qualifications required for teaching in the School are a

professional certificate, a diploma or a degree recognised by the

Department. However, Chagan graduated in the year 1997 and got

a degree for teaching in a school i.e. B.Ed. only in the year 1999.

Trained graduate in terms of Rule 2(j) of the Rules is a person

possessing the qualification mentioned in Schedule ‘B’ of the Rules.

12. Learned counsel for the appellant also relied on a judgment of

Bombay High Court, Nagpur Bench in Gaur Pratibha & Ors. v.

State of Maharashtra through the Secretary & Ors.8

in which

the Court had examined both the judgments of this Court in Viman

Vaman Awale and Bhawna and also the arguments that the latter

judgment is per incuriam as the former was not referred in it. The

Court held as under:

“96. We do not think they do. Viman Vaman Awale

concerns the Primary Assistant Teachers; Bhawana, the

Secondary Assistant Teachers. So the former case

interprets the “Guidelines for fixation of seniority of

teachers in the primary schools”, under Schedule F, under

Rule 12. The latter the “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 Colleges.”

97. In Viman Vaman Awale both the teachers had their

basic qualifications when they entered service, their

additional qualifications notwithstanding. And as per

Clause (I) of Schedule F, the seniority of primary school

teachers shall be based on the date of joining service and

continuous officiation. Both the candidates duly qualified,

Viman Vaman Awale upheld the seniority of the teacher

that joined the service first.

98. In Bhawana, as we have already observed, the

teacher who entered the service first had no prerequisite

qualification— B.Ed. So she joined the service as an

untrained teacher, falling in category ‘F’. The other

teacher entered the service as a trained teacher and

placed himself straightaway in C Category. The first

teacher could get the B.Ed., and enter that Category only

later. So as per Clause (II) of Schedule F—and as clarified

by Note 4—the categories mentioned in Schedule F

represented the ladder of seniority in descending order.

Thus, Bhawana has held that a teacher in Category F, on

later migration to Category C, cannot steal a march over

a teacher already ensconced in that Category.

8 2019 SCC OnLine Bom 597

99. Therefore, we conclude that Viman Vaman Awale and

Bhawana do not conflict with each other; they have taken

no divergent precedential paths. Though Bhawana may

not have been aware of Viman Vaman Awale, both

decisions have displayed remarkable interpretative

consistency.”

13. It was also pointed out that the Special Leave Petition against the

said judgment was dismissed.

14. On the other hand, learned counsel for Chagan vehemently argued

that the Rules are common to both primary and secondary schools.

Therefore, the principle laid down in Viman Vaman Awale would

be a binding precedent and the judgment in Bhawna wherein the

Viman Vaman Awale’s case was not referred is per incuriam. It

was argued that Viman Vaman Awale was a case of a secondary

School as per the information received under the Right to

Information Act. Hence, the principle laid down in the aforesaid

judgment has been rightly applied by the High Court while setting

aside the appointment of Madhavi as the Head Master.

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 v. Secretary, Marathwada

Shikshan Prasarak Mandal, Devgiri College Campus,

Aurangabad & Ors.9 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.

xx xx xx

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 v. 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 v. Marathwada

Shikshan Prasarak Mandal, 2006 SCC OnLine Bom 1131 :

(2006) 6 Mah LJ 682].”

16. In fact, learned counsel for Chagan relied upon Vaijanath in support

of his arguments before the learned Single Bench. The counsel for

Madhavi also referred to the said judgment in support of the

arguments before the High Court. Such argument was dealt with by

the High Court in the impugned judgment, which reads as under:

“13. It was strenuously contended on behalf of

respondent Nos. 2 to 7 that Full Bench judgment of this

9 2006 (6) Mh.L.J. 682

Court in the case of Vaijanath Tatyarao

Shinde v. Secretary (supra) supported their arguments

and that the relevant date for determining seniority was

the date when the petitioner acquired the higher

qualification and entered Category C of Clause 2 to

Schedule F of the MEPS Rules. But, the said Full Bench

judgment of this Court has been distinguished in the

aforesaid judgment of the Hon'ble Supreme Court in the

case of Viman Vaman Awale v. Gangadhar Makhriya

Charitable Trust (supra). It has been found that in the

Full Bench judgment of this Court, what was being

considered was a situation where at the time of initial

appointment one of the teachers was not possessing the

requisite training/teaching qualification and that in such

a situation the inter se seniority between teachers could

be determined only when such training/teaching

qualification was obtained by such a candidate. In that

context, the Full Bench of this Court held that acquisition

of the requisite qualification would be the determinative

factor.”

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.

xx xx xx

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.

xx xx xx

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.”

18. Further, even in respect of temporary vacancy, Full Bench of the High

Court held that in terms of Section 5 of the Act, the management is

bound to fill the vacancy, be it permanent or temporary, by

appointing a person duly qualified to fill such vacancy. It was

reiterated that Section 5 mandates the management to fill in the

permanent or temporary vacancy by appointing a person duly

qualified to fill such vacancy. Rule 6 lays down that minimum

qualifications for the post of teachers shall be as specified in

Schedule ‘B’. Schedule ‘B’ in turn provides for minimum qualification

for appointment to the post of primary school teachers and further

prescribes the qualification of S.S.C. and D.Ed. or any other

qualification equivalent to the same, as laid down in Clause 1 of

Schedule ‘B’. The High Court held that if Rules 3(1)(a)(i) and (ii) are

read in the light of provisions of Rule 6 and Schedule ‘B’, it is obvious

that Rule 3(1)(a)(ii) only intended to relax the requirement of an

experience of not less than 5 years’ service which is specifically

provided for in Rule 3(1)(a)(i). The Scheme of the Act cannot be

comprehended to hold that the legislature intended to do away 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-à-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 Chagan’s 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 II(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.

26. Thus, we find that the judgment of the High Court in review cannot

be sustained in law and the same is hence set aside. The Writ Petition

is ordered to be dismissed. The present appeals are thus allowed.

In view of the above, the contempt petition is dismissed.

.............................................J.

(L. NAGESWARA RAO)

.............................................J.

(HEMANT GUPTA)

.............................................J.

(AJAY RASTOGI)

NEW DELHI;

DECEMBER 9, 2020.

LAW FOR ALL

LawforAll

advocatemmmohan

WELCOME TO LEGAL WORLD

Wednesday, December 9, 2020