Supreme Court of India
G H MADHAVIversusCHAGAN & ORS.
- Citation
- 2020 INSC 690
- Decided
- 9 December 2020
- Disposal
- Appeal(s) allowed
- Bench
- L NAGESWARA RAO
Holding
Seniority for secondary school teachers is determined by Clause 2 of Schedule F, and a teacher who possessed the required qualifications at the time of initial appointment (Madhavi) is senior to one who did not (Chagan).
Summary
Madhavi was appointed as a temporary teacher in a private secondary school on 16 July 1985, holding a BA and B.Ed., and was placed in Category ‘C’ of Schedule ‘F’. Chagan was appointed on 1 August 1985 as an assistant teacher with only a senior secondary certificate and a Diploma in Education, placing him in Category ‘E’. Chagan later obtained a B.Sc. in 1997 and a B.Ed. in 1999, moving up to Categories ‘D’ and ‘C’. A dispute arose when Madhavi was promoted to Head Master in 2014 and Chagan claimed seniority based on his earlier date of appointment. The Supreme Court held that seniority for secondary school teachers is governed by Clause 2 of Schedule F, and that only teachers who possessed the requisite qualifications at the time of appointment can claim seniority from that date. Since Madhavi had the required qualifications at her initial appointment and Chagan did not, Madhavi’s seniority prevailed and the High Court’s decision was set aside.
Issues considered
- The appropriate provision for determining seniority of teachers in a secondary school under the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981.
- Whether seniority is calculated from the date of initial appointment or from the date of acquiring the requisite qualifications.
- Whether a temporary appointment with requisite qualifications confers seniority comparable to a regular appointment.
Legislation cited
- Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977s. 2(18), s. 2(19), s. 2(24), s. 2(26), s. 2(9), s. 5(5)
Subjects
seniorityteacher promotionsecondary schoolMaharashtra Employees of Private Schools Acttemporary appointmentqualificationCategory CCategory ESchedule Fhead master
Judgment
1208 [2020] REPORTS
SUPREME COURT 13 S.C.R. 1208 [2020] 13 S.C.R.
A MADHAVI
v.
CHAGAN & ORS.
(Civil Appeal No. 3966 of 2020)
B DECEMBER 09, 2020
[L. NAGESWARA RAO, HEMANT GUPTA AND
AJAY RASTOGI, JJ.]
Maharashtra Employees of Private Schools (Conditions of
Service) Regulation Act, 1977 – Maharashtra Employees of Private
C
Schools (Conditions of Service) Rules, 1981 – Appellant was
appointed at a School on a temporary basis on 16.07.1985 – She
possessed graduation and B.Ed degrees and was accordingly placed
in Category ‘C’ of schedule ‘F’ of the Rules, 1981 – Respondent
no.1 was appointed as Assistant teacher at the School on 01.08.1985,
D he possessed qualification of Senior Secondary Certificate and
Diploma in Education at the time of appointment – The School
passed an order of upgradation of appellant to High School w.e.f.
24.11.1988 – Thereafter, the respondent no.1 acquired B.Sc. Degree
and entered category ‘D’ of Schedule ‘F’ – The dispute arose at the
time of appointment of appellant as the Head Master of the school
E
– Respondent no.1 claimed that he was appointed on regular basis
on 01.08.1985 as against appellant who was appointed against a
temporary vacancy on 16.07.1985 – Respondent no.1 contended
that he is senior to appellant and in terms of the Rules, he would be
entitled to be promoted as Head Master – The promotion order dated
F 31.05.2014 promoting appellant as Head Master was challenged
in appeal before the School Tribunal and the same was dismissed –
Writ Petition filed by the respondent no.1 was dismissed by the Single
Bench of the High Court – Thereafter, an application for review
filed was allowed – On appeal, held: The judgment in Bhawna v.
State of Maharashtra & Ors. is directly applicable to the present
G
case inasmuch as appellant was holding the qualifications of B.A.
B.Ed at the time of her initial appointment on 16.07.1985, though
she was appointed against a regular vacancy on 24.11.1988 –
However, respondent no.1 was not qualified for appointment as
Assistant Teacher as he graduated in science only in the year 1997
H and passed B.Ed in 1999 – He was upgraded to Category ‘C’ only
1208
MADHAVI v. CHAGAN & ORS. 1209
upon acquiring these qualifications – Accordingly, the seniority list A
mentioned respondent no.1’s name at serial no.10 while appellant
was placed at serial no.2, though first in Category ‘C’ – The school
in question is secondary school, therefore clause 2 of Schedule ‘F’
of the Rules would be referred – Keeping in view the principle laid
down in Vaijanath case, the appellant was qualified for appointment
B
as temporary teacher as she was a graduate and also possessed
B.Ed degree – Her appointment was in accordance with s.5(5) of
the Act – However, the respondent no.1 could not be treated to be
part of Category ‘C’ from the date of his initial appointment i.e.
01.08.1985 as he was neither a graduate nor a trained teacher
when he was appointed – Also, respondent no.1 was not even a C
trained teacher on the date of his appointment and thus cannot
claim seniority on such ground from the date of his initial
appointment – Therefore, the judgment of High Court in review
cannot be sustained in law and the same is set aside.
Allowing the appeals and dismissing the contempt petition, D
the Court
HELD: 1. The judgment in Bhawna v. State of Maharashtra
& Ors. is directly applicable to the present case inasmuch as
appellant was holding the qualifications of B.A., B.Ed. at the time
of her initial appointment on 16.7.1985, though she was appointed E
against a regular vacancy on 24.11.1988. However, respondent
no. 1 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 respondent no. 1’s name at Serial No. 10 F
while appellant was placed at Serial No. 2, though first in Category
‘C’. [Para 20][1227-F-H]
2. Respondent no. 1 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 G
teacher falling in Category II(2)(i) or (ii) of Schedule ‘B’ of the
Maharashtra Employees of Private Schools (Conditions of
Service) Rules, 1981. 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 respondent no. 1 H
1210 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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 appellant 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. [Para
21][1227-H; 1228-A-C]
B
3. 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 respondent no. 1. Therefore, it is Clause 2 of Schedule ‘F’
which would be referred to in order to determine the seniority of
C teachers in the secondary school. [Para 22][1228-C-D]
4. The Scheme of the Maharashtra Employees of Private
Schools (Conditions of service) Regulation Act, 1977 and
Maharashtra Employees of Private Schools (Conditions of
Service) Rules, 1981 makes it clear that primary and secondary
D 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
E 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
F Junior colleges of Education. Respondent no. 1 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
G upgraded with improvements in the qualifications of the teachers.
[Para 23][1228-D-G]
5. This Court finds that the High Court failed to appreciate
the distinction between Clause 1 and Clause 2 of Schedule ‘F’ of
H
MADHAVI v. CHAGAN & ORS. 1211
the Rules. Clause 1 was the subject matter of interpretation by A
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
B
seniority. Respondent no. 1 was not a trained teacher to be part
of Category ‘C’ at the time of his appointment on 01.08.1985 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. [Para 24][1228-G-H; 1229-A-B] C
6. Keeping in view the principle laid down in Vaijanath,
appellant 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. D
However, respondent no. 1 could not be treated to be part of
Category ‘C’ from the date of his initial appointment i.e.
01.08.1985 as he was neither a graduate nor a trained teacher
when he was appointed. Also, respondent no. 1 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 E
appointment. [Para 25][1229-B-D]
Bhawna v. State of Maharashtra & Ors. (2019) 4 SCC
300 – relied on.
Viman Vaman Awale v. Gangadhar Makhriya Charitable F
Trust & Ors. (2014) 13 SCC 219 – inapplicable.
Gaur Pratibha & Ors. v. State of Maharashtra through
the Secretary & Ors. (2019) SCC OnLine Bom 597 –
referred to.
Vaijanath s/o Tatyarao Shinde v. Secretary, Marathwada G
Shikshan Prasarak Mandal, Devgiri College Campus,
Aurangabad & Ors. 2006 (6) Mh.L.J. 682 – referred
to.
H
1212 SUPREME COURT REPORTS [2020] 13 S.C.R.
A Case Law Reference
(2014) 13 SCC 219 inapplicable Para 7
(2019) 4 SCC 300 relied on Para 9
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3966
B of 2020.
From the Judgment and Order dated 25.03.2019 of the High Court
of Judicature at Bombay, Nagpur Bench, Nagpur in Writ Petition no.
1391 of 2016.
With
C
Civil Appeal No. 3967 of 2020 and Contempt Petition (Civil) No.
647 of 2020 in SLP (Civil) No. 10046 of 2019.
C. U. Singh, Ms. V. Mohana, Rajiv Dutta, Sr.Adv., Satyajit
A. Desai, Akshay Sudame, Ms. Anagha S. Desai, Somanatha Padhan,
Satya Kam Sharma, Amlan Kumar Ghosh, Rahul Chitnis, Sachin Patil,
D
Geo Joseph Advs. for the appearing parties.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. The present appeals are directed against the common order of
E the High Court of Judicature at Bombay, Nagpur Bench, whereby, the
review of the dismissed writ petition filed by respondent No. 1 1 was
allowed and the order passed by the School Tribunal dated 1.1.2016 was
set aside.
2. The appellant2 herein was appointed with Shri Samarth Shikshan
F 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
G 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
1
Hereinafter referred to as ‘Chagan’
2
Hereinafter referred as ‘Madhavi’
3
For short, the ‘School’
H 4
For short, the ‘Rules’
MADHAVI v. CHAGAN & ORS. 1213
[HEMANT GUPTA, J.]
Category ‘E’ of Schedule ‘F’ of the Rules. Both Madhavi and Chagan A
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. B
Some of the candidates, who are respondent Nos. 5 to 7, all graduates
and holding B.Ed. qualification, were appointed at the School and placed
in Category ‘C’ of Schedule ‘F’ of the Rules. It is thereafter that Chagan
acquired B.Sc. degree and entered Category ‘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’. C
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 D
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 E
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 F
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 G
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
H
1214 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B 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
C 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.”
D 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
E way of a writ petition before the High Court. The same was also dismissed
by the learned Single Bench with the detailed reasoning on 28.9.2017.
An application for review was then filed on 2.12.2017 which was allowed
with the following order:
“Heard. For the reasons stated in the application, the application
F 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
G
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
5
(2014) 13 SCC 219
6
(2019) 4 SCC 300
H
MADHAVI v. CHAGAN & ORS. 1215
[HEMANT GUPTA, J.]
acquired the qualification. It was however noted that in the present case, A
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 B
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 administrative duties
and functions of a school conducted by any Management and C
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;
xx xx xx
D
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
E
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 F
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 G
2(26) “teacher” means a member of the teaching staff, and includes
the Head of a school;
xx xx xx
7
For short, the ‘Act’
H
1216 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B 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
C 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
D 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
E 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
F
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
G 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
H Schedule ‘B’;
MADHAVI v. CHAGAN & ORS. 1217
[HEMANT GUPTA, J.]
2(k) “trained teacher” means a teacher who has secured a 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 B
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
C
(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 D
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:
E
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 F
as a part-time teacher.
(2) xxx xxx
xx xx xx
Rule 6. (as it existed prior to amendment on 22.6.2017) - G
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’’:
H
1218 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B
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
C 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
D 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.
E 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
F 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
G 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.
H
MADHAVI v. CHAGAN & ORS. 1219
[HEMANT GUPTA, J.]
(3) Disputes, if any, in the matter of interse seniority shall be referred A
to the Education Officer for his decision.
xx xx xx
SCHEDULE B
I. Qualifications for Primary Teachers (as it existed prior to B
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 C
or Diploma in Education examination, or a Diploma in Education
(pre-primary of two years’ duration).
Note.—A person holding a Diploma in Education (pre-primary of
two years duration) shall be qualified to teach standards I to IV
only notwithstanding anything contained in the foregoing D
provisions—
(à) 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. E
(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
F
(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: G
(i) A Bachelor’s degree in Teaching or Education of any statutory
University or a qualification recognised by Government as
equivalent thereto;
H
1220 SUPREME COURT REPORTS [2020] 13 S.C.R.
A (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
B 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
C 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,
D 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.
E (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
F
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
G June 1971;
(iv) A Diploma in Education (Primary) awarded by Government;
or
(v) Any other equivalent diploma or certificate approved by
H Government or Inter-University Board.
xx xx xx
MADHAVI v. CHAGAN & ORS. 1221
[HEMANT GUPTA, J.]
SCHEDULE F A
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 B
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 C
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 D
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.
E
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 F
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 G
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),
H
1222 SUPREME COURT REPORTS [2020] 13 S.C.R.
A (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.
B
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
C 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
D 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
E 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.
F 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:
G
“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
8
H 2019 SCC OnLine Bom 597
MADHAVI v. CHAGAN & ORS. 1223
[HEMANT GUPTA, J.]
F, under Rule 12. The latter the “Guidelines for fixation of seniority A
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 B
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.
C
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 D
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. E
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.” F
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 G
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
H
1224 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B 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:
C
“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
D 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
E 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
F 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].”
G 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:
H 9
2006 (6) Mh.L.J. 682
MADHAVI v. CHAGAN & ORS. 1225
[HEMANT GUPTA, J.]
“13. It was strenuously contended on behalf of respondent Nos. 2 A
to 7 that Full Bench judgment of this 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,
B
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 C
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
D
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 E
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 F
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 G
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
H
1226 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B
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
C 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
D 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.”
E 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
F 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
G 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
H
MADHAVI v. CHAGAN & ORS. 1227
[HEMANT GUPTA, J.]
senior-most teacher being a trained teacher. It could not have been the A
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.
B
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: C
“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 D
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 E
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 F
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. G
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 H
1228 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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’,
B
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
C 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
D 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
E 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
F 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
G 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
H is a secondary school, therefore, Clause 2 of Schedule ‘F’ will determine
MADHAVI v. CHAGAN & ORS. 1229
[HEMANT GUPTA, J.]
the seniority. Chagan was not a trained teacher to be part of Category A
‘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 B
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 C
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 D
Petition is ordered to be dismissed. The present appeals are thus allowed.
In view of the above, the contempt petition is dismissed.
Ankit Gyan Appeals allowed and Contempt Petition dismissed.
E
F
G
H
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