Full Judgment Text
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2745 OF 2004
1.Secretary,
The Bombay St.Xavier’s
College Society,
5, Mahapalika Marg,
Mumbai - 400 001.
2.Principal,
St.Xavier College,
5, Mahapalika Marg,
Mumbai - 400 001. ...Petitioners
V/s.
1.Anwar Hasan Bhombal,
Asmita Heritage - II,
"B" Wing, F.No.603,
Nayanagar, Mira Road (East),
Dist.Thane - 401 107.
2.C.L.Jacob,
St.Xavier’s College,
5, Mahapalika Marg,
Mumbai - 400 001.
3.Educational Inspector (South)
Mumbai.
4.Dy.Director of Education,
Jawahar Bal Bhavan,
Charni Road, Mumbai.
5.State of Maharashtra
through Govt.Pleader,
High Court (O.S.) Mumbai. ...Respondents
WITH
APPELLATE SIDE WRIT PETITION NO.9833 OF 2004
Mrs.C.L.Jacob, Age - 52 yrs.,
St.Xavier’s College,
5, Mahapalika Marg,
Mumbai - 400 001. ...Petitioner
V/s.
1.Secretary,
St.Xavier’s College Society,
5, Mahapalika Marg,
Mumbai - 400 001.
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2. Principal,
St.Xavier’s College,
5, Mahapalika Marg,
Mumbai - 400 001.
3.Mr.Anwar Hasan Bhombal,
R/O. "Asmita Heritage" - II,
"B" Wing, F.No.603,
Nayanagar, Mira Road (East),
Thane.
4.Educational Inspector
(South) Mumbai.
5.Dy.Director of Education,
Jawahar Bal Bhavan,
Charni Road, Mumbai. ...Respondents
......
Mr.A.G.Kothari for Petitioners in WP/2745/2004 &
for Respondents 1 & 2 in AS/WP/9833/2004.
Mr.N.P.Bapat for Petitioner in AS/WP/9833/2004 &
for Respondent No.2 in WP/2745/2004.
Ms.Nilopher Bhagwat with Mr.Shaikh Nasir Masih for
Respondent No.1 in WP/2745/2004 & for Respondent
No.3 in AS/WP/9833/2004.
Ms.Uma Desai Palsule, A.G.P. for Respondent
No.5/State in WP/2745/2004.
......
CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J.
MARCH 11, 2008. MARCH 11, 2008. MARCH 11, 2008.
JUDGMENT : JUDGMENT : JUDGMENT :
1. Both these Writ Petitions are being
disposed of by common Judgment as the same have
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been filed against the self-same Judgment of the
School Tribunal, Mumbai dated 28th June 2004 in
Appeal No.53 of 1998. The said Appeal was filed by
Respondent No.1 in Writ Petition No.2745 of 2004
and Respondent No.3 in Writ Petition No.9833 of
2004. For the sake of convenience, the parties
will be referred to as per their description in the
Appeal filed before the School Tribunal by the
above said Respondent. For the sake of clarity, it
may be noted that Anwar Hasan Mohammed had filed
the said Appeal against the decision of the
Management to appoint Mrs.C.L.Jacob as the Vice
Principal of the St.Xavier’s Junior College. The
said Mrs.Jacob was impleaded as Respondent No.3 in
the Appeal.
2. Briefly stated, the admitted facts are
that the the Respondent Institution has been
recognised as minority institution. Appellant as
well as Respondent No.3 were appointed on the same
date as lecturers in the Junior College on 20th
June 1979. At the time of appointment, the date of
birth of the Appellant was disclosed as 5th
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February 1954 and that of the Respondent No.3
Mrs.Jacob was disclosed as 16th July 1954. At the
time when the Appellant and Respondent No.3 were
appointed, both were postgraduates in M.Sc. Soon
after the appointment, Respondent No.3 Jacob passed
Diploma in Higher Education (DHE) Course which is
equivalent to B.Ed. Course, in July 1979. It is
common ground that when the Respondent No.3 Jacob
was appointed on 20th June 1979, she had appeared
for the said DHE examination and results were
awaited. Results were declared only in July 1979.
Insofar as the Appellant is concerned, he acquired
the same qualification only in April 1981.
Nevertheless, presumably on the basis of date of
birth of the Appellant, he was considered as senior
to Respondent No.3 by the Management and came to be
appointed as lecturer in Senior College in a leave
vacancy with effect from 1st December 1978 to teach
the integrated teaching course with a workload of
lectures at Senior and Junior College. The
Appellant was also subsequently appointed as
Supervisor on 17th May 1995 which was the senior
most post in the Junior College and the functions
now performed by the Vice Principal were being
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performed by the Supervisor. The State Government
issued Government Resolution on 5th August 1997
creating post of Vice Principal in the Junior
College. In view of the said Notification, the
Management was required to appoint the eligible
lecturer as Vice Principal. That post was filled
on 19th November 1977 by appointing Respondent
No.3, instead of the Appellant-though he entered
service as lecturer on the same date along with the
Respondent No.3. This action of the Management was
questioned by the Appellant by way of Appeal under
Section 9 of the Maharashtra Employees of Private
Schools (Conditions of Service) Regulation Act,
1977 (hereinafter referred to as ‘the Act’). The
said Appeal was resisted by the Management as well
as Respondent No.3. According to the Management,
they were advised to appoint Respondent No.3 as
Vice Principal in exercise of discretion available
to the minority institution in terms of Section
3(2) of the Act. The Management also asserted that
the Respondent No.3 was senior to Appellant having
regard to her changed date of birth effected on the
basis of documents produced by the Respondent No.3
to indicate that she was born on 16th July 1952 and
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not on 16th July 1954. If that changed date of
birth is to be reckoned, the Respondent No.3 would
be senior to the Appellant having regard to her
date of birth, being born in prior point of time.
The Respondent No.3 also resisted the Appeal and
additionally contended that she was senior to
Appellant in view of the admitted fact that she had
acquired requisite qualification of DHE in July
1979 itself, much prior to that qualification
acquired by the Appellant in 1981. According to
the Respondent No.3 on acquiring the said
qualification, in July 1979, having regard to the
extant provisions, she was deemed to have entered
the higher category in relation to the interse
seniority position than the Appellant. According
to the Respondent No.3, taking any view of the
matter, she was senior to Appellant and thus
eligible to be appointed as Vice Principal in the
Junior College being the senior most lecturer.
3. The School Tribunal after considering the
stand taken by the rival parties proceeded to
answer the plea taken by the Management in the
negative. The Tribunal relying on the decision of
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Division Bench of our High Court in the case of
Gunvantlal Kantilal Khamar vs. State of
Gunvantlal Kantilal Khamar vs. State of Gunvantlal Kantilal Khamar vs. State of
Maharashtra & Ors. reported in 1993 (I) CLR 295 Maharashtra & Ors. reported in 1993 (I) CLR 295 Maharashtra & Ors. reported in 1993 (I) CLR 295
rejected the stand of the Management, justifying
the appointment of Respondent No.3, in preference
to that of the Appellant, in exercise of powers
under Section 3(2) of the Act, to be invoked by the
minority institutions. Insofar as the stand taken
by the Management on the basis of changed date of
birth of the Respondent No.3, the same also has
been rejected on the reasoning that the Respondent
No.3 failed to follow necessary procedure for
effecting such change in the date of birth, for
which reason, the claim of the Respondent No.3 of
changed date of birth, as 16th July 1952, cannot be
accepted. Insofar as the stand taken by the
Respondent No.3 that having regard to the fact that
the Respondent No.3 had acquired DHE qualification
in earlier point of time, soon after being
appointed as lecturer, the same has been answered
by the Tribunal by observing that it cannot be
taken into consideration as it has been taken only
in the written statement filed by the Respondent
No.3. The Tribunal did not elaborate further on
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this aspect. Consistent with the finding reached
by the Tribunal, the Tribunal proceeded to allow
the Appeal, thereby setting aside the appointment
order dated 27th November 1997 in respect of
Respondent No.3 as the Vice Principal with effect
from 27th November 1997 and instead, directed the
Management to appoint the Appellant as the Vice
Principal of the Junior College and pay him
difference in salary allowances from November 1997.
This decision is subject matter of challenge in the
two Writ Petitions which are being disposed of by
this common order. The former Writ Petition is
filed by the Management on the Original Side of
this Court, whereas, the latter Petition is filed
by the Respondent No.3 on the Appellate Side of
this Court against the self-same Judgment of the
Tribunal.
4. Having considered the rival submissions
and keeping in mind the pleadings and documents on
record, in particular, the admitted factual
position as already noted earlier, I shall proceed
to answer the controversy in issue.
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5. The first question that needs to be
addressed is: whether the claim of the Management
that it had legitimately exercised discretion under
Section 3(2) of the Act, available to a minority
institution, to appoint the Respondent No.3 as Vice
Principal in preference to the Appellant, though
the Appellant was senior in age to the Respondent
No.3, can be sustained? Counsel for the Management
placed reliance on the unreported decision of
Single Judge of our High Court in Writ Petition
No.2775 of 2002 decided on 2nd May 2002;
unreported decision of Division Bench of our High
Court dated 13th January 2004 in Writ Petition
No.4794 of 2003; observations in the decision of
the Division Bench of our High Court in the case of
Gunvantlal (supra) Gunvantlal (supra); another Division Bench Gunvantlal (supra)
decision of our High Court in the case of
Hakimsingh Ram Sumer Singh Yadav vs. Vardhaman Hakimsingh Ram Sumer Singh Yadav vs. Vardhaman Hakimsingh Ram Sumer Singh Yadav vs. Vardhaman
Sthanakwasi Jain Shravak Sangh & Ors. reported in Sthanakwasi Jain Shravak Sangh & Ors. reported in Sthanakwasi Jain Shravak Sangh & Ors. reported in
2000 (4) Mh.L.J. 626. 2000 (4) Mh.L.J. 626. 2000 (4) Mh.L.J. 626.
6. On the other hand, Counsel for the
Appellant relied on the exposition in the case of
Gunvantlal (supra) Gunvantlal (supra) and additionally on the decision Gunvantlal (supra)
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of the Single Judge of our High Court in the case
St.Theressa’s High School & Anr. v. State of
of St.Theressa’s High School & Anr. v. State of St.Theressa’s High School & Anr. v. State of
Maharashtra reported in 1997 (2) Mh.L.J. 713. Maharashtra reported in 1997 (2) Mh.L.J. 713. Maharashtra reported in 1997 (2) Mh.L.J. 713.
7. In my view, it is unnecessary to dilate on
this issue in detail, as the legal position is well
established as expounded in the case of Gunvantlal Gunvantlal Gunvantlal
(supra) (supra) as well as St.Theressa High School’s case (supra) St.Theressa High School’s case St.Theressa High School’s case
(supra) (supra). It is common ground that the decision of (supra)
our High Court in Gunvantlal (supra) Gunvantlal (supra) is a good law Gunvantlal (supra)
and is being consistently followed by this Court
including by the Single Judge of our High Court in
St.Theressa’s case (supra) St.Theressa’s case (supra). The decision in St.Theressa’s case (supra)
St.Theressa’s case (supra) St.Theressa’s case (supra) restates the legal St.Theressa’s case (supra)
position stated in Gunvantlal’s case ( supra) Gunvantlal’s case ( supra) and Gunvantlal’s case ( supra)
further expounds that if the Management decides by
appropriate Resolution to confer administrative,
managerial, supervisory and financial functions on
a Supervisor (in the present case, Vice Principal),
then the Management is required to pass an
appropriate Resolution. The Court further
proceeded to hold that the compartmentalization of
duties, responsibilities and functions enumerated
in the Act would indicate that in every matter, on
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facts, the Court or the Tribunal is required to be
satisfied that a Principal, Vice Principal, Head
Master, Head Mistress, Assistant Head Master,
Assistant Head Mistress or Superintendent has been
appointed as Administrative Head of the School by
appropriate Resolution. That would be a question
of fact which is required to be proved by the
minority institution whenever dispute arises
regarding the status of the appointee. The Court
has found that the duties and functions of the Head
of a School are distinct and separate from the
duties of Assistant Head Supervisor,
Superintendent, etc.; in that, apart from his
duties as a teacher, a Head is also required to
discharge administrative functions and is required
to look into financial matters. The definition of
the Head of the Institution in Section 2(9) would
indicate that although all the functionaries
referred to in the said Section do the work of
teaching, the Head of the School is required to
discharge the administrative duties which are of
administrative nature. For that reason, the Court
proceeded to hold that the Management has to decide
by appropriate Resolution to confer such duties on
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the named officer by an appropriate Resolution and
notify the same to the concerned Authority.
8. In the case on hand, the Management has
not asserted that the post of Vice Principal which
was to be filled in was notified as Head of the
Institution as such. If so, the question of
accepting the claim of the Management that they
made appointment on the post of Vice-Principal of
the Junior College, in exercise of powers under
Section 3(2) of the Act, disregarding the seniority
of the eligible candidate, cannot be countenanced.
To that extent, I am in agreement with the view
taken by the Tribunal. The decisions which are
pressed into service would clearly indicate that
right to exercise discretion under Section 3(2) of
the Act of the minority institution is essentially
in respect of direct recruitment of a person and
not in respect of a promotional post. In other
words, insofar as the claim of Appellant and
Respondent No.3 to the post of Vice Principal, that
was required to be considered only as a promotional
post by the Management keeping in mind their
interse seniority and eligibility. In the
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circumstances, I have no hesitation in rejecting
the claim of the Management that the appointment of
Respondent No.3 to the post of Vice Principal was
made in exercise of discretion under Section 3(2)
of the Act, being a minority institution, as is
asserted by the Management. The appointment of
Respondent No.3 cannot be sustained on that count.
9. That takes me to the next question as to
whether the appointment of Respondent No.3 can be
justified on the basis of claim of Management that
the Respondent No.3 was senior to the Appellant,
having regard to her changed date of birth.
Insofar as this question is concerned, in my
opinion, the Tribunal has rightly found that the
Respondent No.3 cannot be permitted to rely on the
documents pressed into service to assert that her
date of birth was 16th July 1952 and not 16th July
1954 as was disclosed at the threshold when her
appointment was made on that basis. This is so
because, the Respondent No.3 has admittedly not
followed the procedure as is required for effecting
the change of date of birth in the service record.
Neither the Counsel for the Management nor the
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Respondent No.3 has been able to point out that the
mandatory procedure for effecting change in date of
birth in the service record was followed by the
Respondent No.3. The finding so recorded by the
Tribunal, in my opinion, is unquestionable. If the
Respondent No.3 has not taken recourse to necessary
procedure for change of date of birth, merely
because the Respondent No.3 has in her possession
some documents to substantiate her claim that her
correct date of birth was 16th July 1952 and not
16th July 1954, that can be no basis to give
benefit thereof to the Respondent No.3,
disregarding the entry of date of birth in her
service record. The service record of the
Respondent No.3 on the relevant date when she came
to be appointed as Vice Principal; as well as even
now continues to indicate her date of birth as 16th
July 1954. If that date of birth is to be kept in
mind, obviously she would be junior to the
Appellant as the admitted date of birth of the
Appellant is 5th February 1954. Being senior in
age, the Appellant, having regard to the relevant
provisions, will have to be treated as senior to
the Respondent No.3-both of them having been
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appointed on the same date i.e. 20th June 1979.
In other words, even this view taken by the
Tribunal does not warrant any interference.
10. The last question that remains to be
addressed is the stand taken by the Respondent No.3
that she acquired DHE qualification soon after
being appointed as lecturer, on account of which,
she will have to be treated as senior to the
Appellant and placed in higher category in the
seniority order with effect from such date. The
Tribunal has brushed aside this contention on the
specious reasoning that it cannot be considered, as
the same finds place only in the Written Statement
filed by the Respondent No.3. Significantly, the
Tribunal was conscious of the legal position that
the issue of seniority if required to be gone into,
while considering the Appeal under Section 9
raising grievance regarding supersession, ought to
be considered as an incidental issue. That
observation is found in Paragraph 25 of the
impugned Judgment. This legal position is well
established. In the recent decision of the
Division Bench of our High court in the case of
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Umesh Balkrishna Vispute v. State of Maharashtra & Umesh Balkrishna Vispute v. State of Maharashtra & Umesh Balkrishna Vispute v. State of Maharashtra &
Ors. reported in 2001 (1) Mh.L.J. 486, this issue
Ors. reported in 2001 (1) Mh.L.J. 486 Ors. reported in 2001 (1) Mh.L.J. 486
has been answered relying on earlier decision in
the case of Ramchandra Narayan Jamkar vs.
Sau.Saroj Yeshwant Deopujari in Writ Petition
No.1309 of 1991 decided on 19th June 1991. In the
reported decision, the Division Bench has quoted
with approval, statement of law occurring in the
earlier decisions rejecting the plea that the
seniority list approved by the Education Officer
becomes final and conclusive and it is not open to
the Tribunal to examine the validity of such
seniority list. For, the issue of seniority being
an incidental issue for considering the grievance
about the supersession, the Tribunal while
considering the Appeal under Section 9 is competent
to examine grievance regarding validity of the
interse seniority position of the parties. The
question is : whether on account of Respondent
No.3 having acquired DHE qualification in earlier
point of time, can be the basis to treat the
Respondent No.3 as senior to that of the Appellant?
11. To examine this aspect, it would be
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apposite to revert to the position as obtained in
the year 1979 when the Appellant as well as
Respondent No.3 were appointed on 20th June 1979.
At the relevant time, the service conditions and
related matters of the employees in Junior Colleges
were governed by the provisions of the Secondary
Schools Code (hereinafter referred to as ‘the
Code’). The definition clause-Clause (5) of the
Code-stipulates that a Higher Secondary School
(Junior College) is an institution which provides
instruction leading to Higher Secondary School
Certificate Examination (H.S.C. Examination) or
Indian School Certificate Examination or other
Examinations recognised by the Government as
equivalent thereto, at the end of Std. XII (Second
Year Junior College). Annexure 45 in the said Code
deals with the seniority list of teachers in the
non-Government secondary schools. As aforesaid,
Junior College, on account of the deeming provision
in the Code, have always been treated as Secondary
Schools for the purpose of application of
provisions in the Code. It is well established
position that although the Code has been considered
as executive instructions, however, insofar as the
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provisions in the Code dealing with the
recruitment, conditions of service of employees and
allied provisions have been given statutory status
and held to be binding on the parties. That
position is well established. The provisions
regarding seniority list of teachers in
non-Government secondary schools are spelt out in
Annexure 45 of the Code. The same reads thus:
"ANNEXURE (45) "ANNEXURE (45) "ANNEXURE (45)
Seniority List of Teacher in the Non-Government Seniority List of Teacher in the Non-Government Seniority List of Teacher in the Non-Government
Secondary Schools Secondary Schools Secondary Schools
1. Government has decided to lay down the
following revised guidelines for fixation of
seniority of teachers in non-Government
secondary and higher secondary schools.
2. For the purpose of fixation of
seniority of teachers in non-Government
secondary and higher secondary schools the
following categories of teachers in the
ladder of seniority should be taken into
account.
Category A : This category is applicable to:
Higher Secondary Schools Only Higher Secondary Schools Only
Higher Secondary Schools Only
M.A.,II/M.Sc.,II/M.Com.,II/M.Sc.(Agriculture),
II,B.T./B.Ed.
The teachers of the above qualification
appointed in higher secondary schools
and teaching a subject offered by them
at their Master’s Degree Examination to
the top standard of the higher
secondary school.
Category B: Holders of :
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M.A./M.Sc.,B.T./B.Ed., or its equivalent; or
B.A./B.Sc.,B.T./B.Ed., or its equivalent; or
B.A./B.Sc.,Dip.T.(old two year Course); or
B.A./B.Sc.,S.T.C./Dip.Ed./Dip.T.(one-year
course) with 10 years post S.T.C., etc.,
service.
Category C: Holders of :
B.A./B.Sc.,S.T.C./Dip.T.(one-year course) or
its equivalent.
Category D: Holders of:
S.S.C.,S.T.C./Dip.Ed.,/Dip.T.(one-year
course) or its equivalent.
Category E : Untrained Graduates or holders
of equivalent qualifications.
Category F: Untrained Matriculates or
holders of equivalent qualifications.
Category G: The rest.
Note 1 : Note 1 : For the purposes of categories B, Note 1 :
C and D mentioned above, teachers with
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 will be considered as untrained
and their seniority should be fixed in the E
or F Category of untrained teachers, as the
case may be.
Note 2 : Note 2 : The following training Note 2 :
qualification which can be secured two years
after S.S.C. Examination should, however,
be considered as training qualification for
the purpose of seniority even after 1st
October 1970:
(i) D.Ed, (2 years).
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(ii) T.D. (Bombay University)
(iii) Dip.Ed.(Nagpur University)
Note 3: Note 3: Seniority of M.A. (M.Sc.) M.Com., Note 3:
B.Ed., teachers would be common and their
seniority would be determined on the basis
of length of service after B.Ed., in the
school or schools of the same Management.
There would not be a separate category ‘A’
for determining the seniority of the
teachers in Higher Secondary Schools.
(G.R.E. and Y.S.D.No.HSC.1076/419IXX-XXI of (G.R.E. and Y.S.D.No.HSC.1076/419IXX-XXI of (G.R.E. and Y.S.D.No.HSC.1076/419IXX-XXI of
6th May 1976) 6th May 1976) 6th May 1976)
Note 4 : Note 4 : In the case of teachers whose date Note 4 :
of continuous appointment in one and the
same category is common, the teacher who is
senior by age will be treated as senior.
3. The categories mentioned above
represent the ladder of seniority and have
been mentioned in descending order. The
interse seniority of teachers falling in any
single category should be determined on the
basis of their length of continuous service
in that category in a single school or in
schools run by the same management.
4. If a management run S.S.C. level
school(s) as well as Higher Secondary
School(s), higher seniority of
M.A.,II/M.Sc.,II, B.T./B.Ed. teachers (by
virtue of their falling in category A)
should be considered only while making
appointment to the post of headmaster of
Higher Secondary School. For the purpose of
making appointments to the posts of
Headmaster/s and Supervisor/s in its S.S.C.
level schools M.A.,II/M.Sc.,II, B.T./B.Ed.
teachers should not be considered as
belonging to a higher category of seniority
(category A). They should be considered as
part of teachers in category B, the interse
seniority of teachers in this category B (to
be considered while making appointments to
the posts of Headmaster/s and Supervisor/s
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in S.S.C. level schools) being determined
in accordance with provisions of paragraph 3
above.
5. The seniority lists of non-Government
secondary school teachers in Nagpur Region
(now Nagpur and Amaravati Regions) who were
permanent on 31st December 1965 should not
be disturbed. Their seniority should
continue to be determined as per statutory
provisions contained in the M.P. Secondary
Education Act, 1951 and the rules made
thereunder.r If any of such teachers,
however, improves his qualifications and
goes to the higher category, these revised
guidelines of seniority will apply so far as
the determination of his seniority in the
higher category is concerned.
6. Seniority lists of non-Government
secondary school teachers prepared as per
D.E.’s Circular No.907/65-C, dated 27th July
1966; should be revised in the light of
these guidelines. However, appointments of
Headmasters already made after taking into
consideration seniority of teachers
determined on the basis of old guidelines
would not be cancelled. The persons
concerned should continue as Headmasters.
7. Any departure from the aforesaid
revised guidelines by any management should
be allowed only after the prior approval of
the Regional Deputy Director of Education
concerned, who may consider each case on its
merits.
(D.E.’s Circular No.AMS.6169/10440-C, (D.E.’s Circular No.AMS.6169/10440-C, (D.E.’s Circular No.AMS.6169/10440-C,
dated 11th dated 11th May 1971). dated 11th May 1971). May 1971).
(Please also see Annexure 52)."
12. Adverting to Clause 2, it is obvious that
the ladder of seniority of teachers is specified in
clause 2 in Category ‘A’ to Category ‘G’. Insofar
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as teachers who possess qualification only as
postgraduates, were required to be treated as
untrained graduates falling under Category ‘E’.
That position is clearly spelt out on conjoint
reading of Note 1 and Note 3 in the said Annexure.
In other words, when the Appellant and the
Respondent No.3 were appointed on 20th June 1979,
as both were possessing qualification of only post
graduate degree, were required to be treated as
untrained graduates covered by Category ‘E’. Till
the Respondent No.3 acquired the qualification of
DHE which is equivalent to B.Ed., she continued to
remain in Category ‘E’. So long as she continued
in Category ‘E’, on account of Note 4, the
Appellant was required to be treated as senior to
her, being senior in age and appointed on the same
date falling in the same category. However, the
day Respondent No.3 acquired qualification of DHE
in July 1979, to effectuate the provisions in
Annexure 45 of the Code, the Management was obliged
to treat her as covered under Category ‘B’, being a
postgraduate and also possessing DHE qualification
which is admittedly equivalent to B.Ed.
qualification. Indeed, the Appellant on acquiring
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similar DHE qualification in April 1981 would also
enter in Category B along with the Respondent No.3.
However, as the Appellant would enter Category ‘B’
in subsequent point of time, naturally on account
of Note 3, would be required to be treated as
junior to the Respondent No.3 who has entered
category ‘B’ in much earlier point of time to that
of Appellant. If any authority is required, we can
usefully refer to the decisions of the Division
Bench of our High Court in the case of Madhav Madhav Madhav
Govindrao Budhe vs. Education Officer, Zilla Govindrao Budhe vs. Education Officer, Zilla Govindrao Budhe vs. Education Officer, Zilla
Parishad, Nagpur & Ors. reported in 1994 Mh.L.J. Parishad, Nagpur & Ors. reported in 1994 Mh.L.J. Parishad, Nagpur & Ors. reported in 1994 Mh.L.J.
42 42 and more particularly, decision of Single Judge 42
of our High Court in the case of Baliram Maharaj Baliram Maharaj Baliram Maharaj
Shikshan Sanstha Mardi & Anr. vs. Education Shikshan Sanstha Mardi & Anr. vs. Education Shikshan Sanstha Mardi & Anr. vs. Education
Officer (Secondary), Zilla Parishad, Amravati & Officer (Secondary), Zilla Parishad, Amravati & Officer (Secondary), Zilla Parishad, Amravati &
Anr. reported in 2001 (4) Mh.L.J. 394 Anr. reported in 2001 (4) Mh.L.J. 394, in which Anr. reported in 2001 (4) Mh.L.J. 394
case, both the incumbents were appointed on the
same date in the School but possessed different
qualifications which was the basis to reckon their
interse seniority. Besides, the Respondents have
rightly pressed into service exposition in the case
of Shri.Vaijanath s/o. Tatyarao Shinde v. The Shri.Vaijanath s/o. Tatyarao Shinde v. The Shri.Vaijanath s/o. Tatyarao Shinde v. The
Secretary, Marathwada Shikshan Prasarak Mandal, Secretary, Marathwada Shikshan Prasarak Mandal, Secretary, Marathwada Shikshan Prasarak Mandal,
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: 24 :
Aurangabad & Ors. Aurangabad & Ors. decided by the Full Bench of our Aurangabad & Ors.
2006 (6) All.M.R. 823,
High Court reported in 2006 (6) All.M.R. 823 2006 (6) All.M.R. 823
which has taken the view that the service rendered
as an untrained teacher was not relevant for
determining the seniority. In that, the period
spent by the Appellant as untrained teacher would
be of no avail for reckoning the seniority of the
Appellant vis-a-vis the seniority of the Respondent
No.3 who had entered higher category in earlier
point of time on account of having acquired
requisite qualification to be treated as trained
teacher. The Respondents have also pressed into
service decision of Division Bench of our High
Court in the case of Saramma Varghese vs. Saramma Varghese vs. Saramma Varghese vs.
Secretary/President, S.I.C.E.S. Society & Ors. Secretary/President, S.I.C.E.S. Society & Ors. Secretary/President, S.I.C.E.S. Society & Ors.
reported in 1990 (1) CLR 46 reported in 1990 (1) CLR 46. In Paragraph 18 of reported in 1990 (1) CLR 46
the said decision, it is held that the length of
service after B.Ed. in the School or Schools of
the same Management, would be relevant for
determining the interse seniority.
13. To get over this position, Counsel for the
Appellant would contend that the provisions of the
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Code cannot be invoked in the present case inasmuch
as those provisions would be relevant for
determining seniority of teachers in the
non-Government secondary schools only and not of
junior colleges. It was also argued that the
decisions which are referred to in the earlier part
of this Judgment, relate to schools and not junior
college as such. I find no substance in this
submission. As observed earlier, by virtue of
deeming provisions in the Code, the provisions in
the Code were made applicable even to the employees
of junior colleges as if it were Secondary Schools.
14. The Appellant would next contend that the
Management had always treated the Appellant as
senior to Respondent No.3 on account of date of
birth. It is on this premiss, the Appellant was in
the first place appointed as lecturer in the Senior
College in leave vacancy with effect from 1st
December 1998 and later on as Supervisor in the
Junior College with effect from 17th May 1995. The
argument though attractive, cannot be the basis to
decide the legal issue involved in the present
case. Going by the admitted facts and applying the
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provisions of Law, the matter will have to be
considered on its own merits and not on account of
fortuitous circumstances or erroneous assumption of
the Management to consider Appellant as senior at
one stage and Respondent No.3 as senior at another
stage of their career.
15. I have adverted to the position which
ought to have obtained at the relevant time when
the Appellant and Respondent No.3 were appointed as
lecturer in the same College. Assuming that we
have to consider the matter in the context of the
provisions in the Act of 1977 and the Rules of 1981
which came into effect from 15th July 1981, the
position will be no different. The qualification
for teachers is provided under the Rules framed
under the Act. Schedule ‘B’ framed under Rule
2(1)(j) and Rule 6, Part 3 thereof deals with the
qualifications for teachers in Junior Colleges.
There is no dispute that lecturer with only a
Master’s Degree will have to be treated as
untrained teacher. It is only on acquiring
qualification of B.Ed. or equivalent course, the
concerned employee can be treated as trained
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lecturer. The length of service as untrained
lecturer will be of no avail to determine the
seniority of such person. The guide-lines for
fixation of seniority of lecturers in Junior
College can be discerned from provisions in
Schedule F framed under Rule 12 of the Rules under
the Act. The same reads thus:
"12. Seniority List :- Every Management
shall prepare and maintain seniority list
of the teaching staff, including Head
Masters 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 seniority list from time to time
shall also be brought to the notice of the
members of the staff concerned and their
signatures fro 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."
16. Indubitably, the provisions of the Act and
the Rules cannot be given retrospective effect.
However, we are concerned with the situation as to
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how the matter should be viewed keeping in mind the
provisions of the Act and the Rules. Till 15th
July 1981, the seniority between Appellant and
Respondent No.3 was governed by the principles
underlying the Code which are already referred to
earlier. After 15th July 1981, there is no
qualitative difference between the said
principles-as the provisions in Schedule F are more
or less similar to the stipulations in the
provisions of the Code which are already referred
to earlier, except in some respect, which has no
relevance to the issue on hand.
17. Suffice it to observe that in terms of
provisions in Schedule ‘F’, the Appellant and the
Respondent No.3 will have to be treated as
untrained lecturers on the date of appointment, but
the Respondent No.3 acquired the requisite
qualification in July 1979-on which date would
enter the higher category being Category ‘C’,
instead of Category ‘F’ of untrained graduates.
The Respondent No.3 having entered category C in
earlier point of time, her seniority will have to
be reckoned from that date; whereas, the seniority
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of Appellant will have to be reckoned in category C
on and only from April 1981 when he entered the
said category after acquiring necessary
qualification. Thus understood, the date on which
the Management intended to fill in the vacancy of
the Vice Principal, it was obliged in Law, to give
precedence to the senior most lecturer between the
Appellant and the Respondent No.3. The Respondent
No.3 being senior to the Appellant, having entered
category C in earlier point of time, was
legitimately entitled to be considered and
appointed as Vice Principal, unless found unfit.
The Management having appointed Respondent No.3 as
Vice Principal obviously presupposes that she was
found fit for the said post on the relevant date in
November 1997.
18. A priori, even though the Management
proceeded to appoint the Respondent No.3 on an
erroneous assumption that it was doing so in
exercise of discretion under Section 3(2) of the
Act or for that matter, the Respondent was treated
as senior to Appellant on the basis of corrected
date of birth, both these arguments though
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unfounded, the appointment of Respondent No.3 in
the post of Vice Principal can be sustained on
accepting the stand of Respondent No.3 that in Law,
she was senior to Appellant having acquired
requisite qualification to be treated as trained
lecturer in earlier point of time.
19. Accordingly, in my opinion, no
interference is warranted with the ultimate
conclusion reached by the Tribunal, though for
different reasons.
20. Accordingly, both these Writ Petitions
should succeed. The impugned Judgment and Order is
set-aside and the Appeal preferred by the Appellant
is dismissed on account of this order, thereby
upholding the appointment of Respondent No.3 as
Vice Principal in the Junior College as per the
Notification dated 5th November 1997.
21. Petitions allowed on the above terms with
no order as to costs.
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A.M.KHANWILKAR, J.
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