Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s).11934 OF 2018
(Arising out of SLP(C ) No(s). 28527 of 2016)
KU. BHAWANA …..Appellant(s)
VERSUS
STATE OF MAHARASHTRA & ORS. …….Respondent(s)
J U D G M E N T
Rastogi, J.
1. The dispute in this appeal pertains to the inter se seniority
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of the appellant visavis 5 respondent, who were appointed as
Assistant Teacher in Secondary School and their services are
governed by the Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981 (hereinafter being referred to
as “Rules 1981”).
2. The brief facts that culled out in a nut shell are that the
appellant was appointed as Rest. (untrained) Teacher in High
Signature Not Verified
School, Smt. Sindhutai Poreddiwar, Gogaon, Distt. Gadchiroli,
Digitally signed by
SUSHIL KUMAR
RAKHEJA
Date: 2019.01.04
14:11:35 IST
Reason:
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with effect from 15 July, 1994 vide order of appointment dated
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27 June, 1994. Her appointment was purely on temporary
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basis for a period from 15 July, 1994 to 7 May, 1995 on the
terms & conditions as laid down in Maharashtra Employees of
Private Schools (Conditions of Service) Regulation Act, 1977 and
the Rules of 1981 framed thereunder. She qualified her B.Ed
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examination and became a trained teacher on 19 September,
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1997. At the same time, the impleaded 5 respondent was
appointed as trained Assistant Teacher vide order of appointment
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dated 13 August, 1997. On the date of appointment, he was
holder of the qualification of B.A., B.Ed. and was a trained
teacher under the Scheme of Rules, 1981. At one point of time,
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the appellant was placed senior to the 5 respondent in the
category of Assistant Teacher that gave a cause of grievance to
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the 5 respondent. If there is any grievance to the teaching/non
teaching staff in reference to inter se seniority, such dispute has
to be adjudicated by the Education Officer as provided under
Rule 12(3) of the Scheme of Rules, 1981.
3. The Competent Authority adverted to the rival claims of the
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parties and observed in its order dated 31 March, 2003 holding
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that the 5 respondent was appointed on 13 August, 1997 as a
trained teacher holding the qualification of B.A. B.Ed. and at the
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time of entry into service, he was in category table ‘C’. At the
same time, the appellant although was appointed as Assistant
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Teacher (untrained) with effect from 15 July, 1994 but she
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qualified her B.Ed on 19 September, 1997 and became member
of category table ‘C’ only on acquiring qualification of B.Ed. and
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accordingly the 5 Respondent became senior to the appellant in
category ‘C’ to Schedule ‘F’ annexed to Rule 12 of Rules, 1981. It
was upheld by the High Court under the impugned judgment
which is a subject matter before us.
4. Learned counsel for the appellant submits that practically
seniority is not an issue in the present matter although
inter se
raised before the High Court but her grievance primarily is
regarding salary escalation which is extended to the graduates as
defined in Rule 2(j) annexed to Schedule ‘B’ to the Rules, 1981.
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Learned counsel further submits that the 5 respondent being a
temporary teacher cannot claim seniority until stood confirmed
and seniority could not have been claimed by him over the
appellant before becoming member of the Rules, 1981. Learned
counsel further submits that under the scheme of Rules,
seniority is determined on the basis of longer officiation of service
in the cadre, her later acquiring the qualification of B.Ed and
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become a trained Assistant Teacher would not take away her
right of seniority envisaged under Rule 12 of Rules, 1981.
5. Per contra , learned counsel for the respondent, on the other
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hand, submits that 5 respondent was initially appointed as a
trained teacher and the appellant acquired the B.Ed.
qualification later and became a member of Category ‘C’ of
Schedule ‘F’ annexed to Rule 12 and this fact has been noticed
by the competent authority while determining the inter se
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seniority of the appellant visavis the 5 respondent and
confirmed by the High Court on dismissal of the writ petition and
needs no further interference.
6. We heard the learned counsel for the parties and with their
assistance perused the materials on record.
7. Before adverting to the question raised for consideration, it
will be apposite to take a glance of the scheme of Rules, 1981.
8. The Rules of 1981 has been framed in exercise of the
powers conferred by subsections (1) and (2) of Section 16 of the
Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977. Rule 2(j) defines “trained graduate” and
2(k) defines “trained teacher” and qualification of the teachers
has been prescribed under Rule 6 read with Schedule ‘B’ and the
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appointment of teaching staff is made in terms of the procedure
prescribed under Rule 9 and their seniority is being determined
in terms of Rule 12 read with the guidelines laid down in
schedule ‘F’ annexed to the scheme of Rules, 1981. The dispute
in reference to inter se seniority is to be resolved by the
Education Officer as referred to under Rule 12(3) of Rules, 1981.
The extract with reference to rules alongwith Schedule ‘F’
annexed to Rule 12 of the Rules, 1981 relevant for the purpose is
reproduced as under:
“ 12. Seniority List. Every Management shall prepare and
maintain seniority list of the teaching staff including Head
Master and Assistant Head Master and nonteaching 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 seniority list from time to time
shall also be brought to the notice of the members of the staff
concerned and their signatures for having noted the change
shall be obtained.
(2) Objections, if any, to the seniority list or to the changes
therein shall be duly taken into consideration by the
Management.
(3) Disputes, if any, in the matter of 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
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Primary Schools shall be based on the date of joining service and
continuous officiation.
2. Guidelines for fixation of seniority of teachers in the
secondary schools Junior Colleges of Education and Junior
College classes attached to secondary schools and Senior
Colleges. For the purpose of fixation of seniority of teachers in
the secondary schools. Junior Colleges of Education and Junior
College classes attached to Secondary Schools the teachers
should be categorised as follows :
Heads of Secondary schools having an enrolment
Category A :
of students above 500 and Principals of Junior Colleges of
Education having more than four Divisions on the basis of the
dates of their appointments to the respective posts.
Category B : Heads of secondary schools having an enrolment of
students of 500 and below, 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
the dates of their appointments to the respective posts.
Holders of
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 postS. T. C. etc. service.
[B. A. or its equivalent plus Senior Hindi Shikshak Sanad with
five years service; or Junior Hindi Shikshak with ten years
service [after obtaining both academic and training
qualifications.] ]
Category D : Holders of
B. A., B. Sc./B.Com./S. T. C./Dip. Ed. (one year course) [Senior
or Junior Hindi Shikshak Sanad] or its equivalent.
[ Explanation. On and after the date of publication of this
notification in the Official Gazette and without affecting the
promotion made until that date, the inter se seniority of teachers
with qualification Senior Hindi Shikshak Sanad or Junior Hindi
Shikshak Sanad in service should be fixed in Category ‘C' with
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reference to the date of their acquiring both the qualifications i.e.
B.A. or its equivalent and the Senior (5 years) or Junior Hindi
Shikshak Sanad (10 years) as the case may be by the teachers
concerned.]
Category E : Holders of
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.
Untrained Matriculates or holders of equivalent
Category G :
qualification.
Category H : All teachers other than those mentioned in
categories A to G.
For the purpose of categories C, D, and E teachers with
Note 1 :
S. T. C., T. D., Jr. P. T. C. Dip, T., 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.
The following training qualifications which can be
Note 2 :
secured two years after S.S.C. Examination shall be considered
as training qualification for the purpose of seniority even after
1st October 1970
(1) D. Ed. (2 years).
(2) T. D. (Bombay University).
(3) Dip. Ed. (Nagpur University).
Note 3 : In the case of teachers whose date of continuous
appointment in one and the same category is common, the
teacher who is senior by age will be treated as senior.
Note 4 : The categories mentioned above represent the ladder of
seniority and have been mentioned in descending order.
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Note 5 : Where a management runs more than one school and
where Junior College classes are or are not attached to any one
or more of such schools, the seniority list for a particular cadre
shall be a combined seniority list of all persons in that cadre
working in all the schools (excluding night schools, if any), or
Junior College classes attached to schools of the Management.
The total continuous service rendered by the persons in a
particular cadre in any school or Junior College class shall be
taken into consideration for the purpose of seniority and for the
purpose of promotion.
The seniority of the (coaching staff in night school shall
Note 6 :
be maintained separately.
Note 7 : Where one of schools is a Girls' school and where the
Management desires to maintain a separate seniority list of
teachers in that school, the management shall resolve
accordingly and forward a copy of the resolution to the
Education Officer or, as the case may be, the Deputy Director of
Education. Such a decision shall not, however, be revocable at
any time in future. Further, where the Management decides to
do so the candidates to be appointed to the teaching posts shall
be given a clear understanding to the effect that they shall not
have any claim on the promotional posts in other schools run by
the same Management. The services of the members of the
teaching staff in such a school shall not be permanently
transferable to any other school and vice versa . The temporary
transfer of services of the members of the teaching staff in such
a school shall also be with the prior permission of the Education
Officer or, as the case may be, the Deputy Director of Education.
Note 8 : Where a Management runs one or more secondary
schools and a Junior College of Education, then notwithstanding
the fact that trained graduate teachers in Junior College of
Education are in a higher scale of pay, a combined seniority list
of all teachers, in both the types of Institutions shall be
maintained in such schools and Junior College of Education in
accordance with the guidelines laid down in paragraph 2 of this
schedule. This seniority list shall form the basis for purpose of
promotion to the posts of Head Masters and Assistant Head
Masters in secondary school (s) and Principal (s) of Junior
College of Education.
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Note 9 : In the case of permanent teachers having a break or
breaks in service (physical or otherwise i.e. owing to parttime
service interposed) between two spans of fulltime service under
the same management, after being made permanent but prior to
the 1st July 1970 and who may not have changed the cadre
after the period of break, the Management shall condone the
break (s) for period(s) not exceeding three years for the purpose
of seniority by commuting retrospectively the period of absence.
If the period exceeds three years and if the teachers had worked
on parttime basis, the Management shall also give credit for
Period (s) of part time service to the extent of half the total
period, for the purpose of seniority only. Each type of such
breaks shall not exceed three in number during the career of a
teacher and seniority so gained shall not entitle the teacher for
retrospective promotion.
Note 10 : The seniority of secondary school teachers in Vidarbha
Region who were permanent on the 31st December 1965 and
whose seniority was determined as per the provisions contained
in the Madhya Pradesh Secondary Education Act, 1951 and the
rules made thereunder shall not be disturbed. If any teacher
among such teachers, improves his qualifications and thereby
switches over to higher category, these guidelines of seniority
shall apply so far as the determination of his seniority in the
higher category is concerned.”
9. The Scheme of the Rules, 1981 of which reference has been
made clearly envisages that the teaching staff holding
qualification mentioned in Subsection (i) to (iv) of Clause 1 of
Item II in Schedule ‘B’ are considered trained teachers and the
seniority of teachers in primary Schools and teachers in the
Secondary Schools, Junior College of Education and Junior
College attached to Secondary Schools are being determined in
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terms of the guidelines laid down for fixation of seniority of
teachers in Schedule ‘F’ annexed to Rule 12 of Rules, 1981. As
regards fixation of seniority in the primary school is concerned, it
is based on the date of joining service and continuance
officiation. At the same time, fixation of seniority in the
secondary schools, junior colleges of education and junior college
classes attached to secondary schools and senior colleges, it has
been graded into separate categories commencing from AH, and
as regards category ‘A and B’ are concerned, the seniority is
determined on the basis of the date of appointment to the
respective posts and those who are holders of various
qualifications falling in categories C to H, their seniority is
determined on the basis of total service rendered by the person in
a particular cadre in school or junior college of education for the
purpose of seniority and for promotion as indicated under Note 5,
the rule making authority was conscious of this fact giving
preference in descending order to the holders of category ‘C, D, E
or F’, as the case may be, as indicated in Note 4. As a
consequence thereof, a person who is a member of category ‘F’ or
‘G’, as the case may be, would in no manner can rank senior to
the teaching staff who is member of category ‘C’, ‘D’ or ‘E’ based
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on their continuous service rendered in the category to which the
person belongs.
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10. Indisputedly, the 5 respondent was holding the
qualification of B.A. B.Ed. at the time of his initial appointment
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dated 13 August, 1997 and became a member of category ‘C’.
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At the same time, the appellant though appointed on 27 June,
1994 as an untrained teacher, having acquired the training
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qualification i.e. B.Ed. on 19 September, 1997 and
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became a member of category ‘C’ after entry of the 5 respondent
into service as a trained teacher, could not have claimed seniority
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in category ‘C’ over the 5 respondent prior to acquiring
professional qualification(B.Ed) as envisaged under the Scheme
of Rules, 1981 as trained teacher and this what was considered
by the authority who examined the inter se seniority of the
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appellant visavis 5 respondent under the Rules, 1981 and
confirmed by the High Court on dismissal of the writ petition
preferred by the appellant.
11. The submission of the appellant regarding salary escalation
to trained graduates against 25% quota was neither raised before
the competent authority nor before the High Court. It may not be
advisable for us to examine at this stage and leave it to authority
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competent if raised to examine it independently in accordance
with law.
12. Further submission made by the appellant in reference to
nature of appointment as a trained/untrained teacher for the
purpose of the determination of inter se seniority being
insignificant is without substance for the reason that
appointments are made of the teaching staff strictly in terms of
rule 9 of the Rules, 1981 and their seniority is determined under
Rule 12 read with the guidelines annexed to Schedule ‘F’ to the
Rules, which envisages total continuous service rendered by the
person in that particular cadre in any school or college, as the
case may be, which may be a relevant consideration for the
purpose of seniority and for promotion and later confirmation or
becoming permanent in the cadre of teaching staff may not be the
decisive factor for the purposes of determination of seniority of
the teaching staff in the cadre under the scheme of Rules, 1981.
13. Indisputedly, in the instant case, the appellant was entered
into service as an untrained teacher falling in category ‘F’ and the
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5 respondent was a trained teacher falling in category ‘C’ at the
time of entry into service and the appellant became a trained
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teacher on qualifying B.Ed examination after entry of the 5
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respondent into service on 19 September, 1997. The 5
respondent was a member of category ‘C’ at the very inception of
appointment and the appellant became a member of category ‘C’
later on acquiring the B.Ed. qualification which indisputedly she
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acquired after entry of the 5 respondent into service. As such,
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she could not have claimed seniority over the 5 respondent in
category ‘C’ of Schedule F annexed to Rule 12 of Rules, 1981, this
what has been held by the High Court under the impugned
judgment.
14. We, therefore, find no substance in this appeal and the
same is accordingly dismissed.
……………………………..J.
(ASHOK BHUSHAN)
……………………………..J.
(AJAY RASTOGI)
NEW DELHI
January 04, 2019.
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