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.
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.
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
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.
