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2017 DIGILAW 2044 (BOM)

CHAGAN s/o NAMDEORAO ATHAWALE v. EDUCATION OFFICER (SECONDARY), ZILLA PARISHAD, AMRAVATI

2017-09-28

S.C.GUPTE

body2017
JUDGMENT : This petition challenges an order passed by the School Tribunal at Amravati in an appeal under section 9 of the Maharashtra Employees of Private Schools Act (“MEPS Act”). By the impugned order, the School Tribunal dismissed the petitioner’s appeal challenging (i) the promotion of respondent No. 4 (as Headmaster), (ii) promotions of respondent No. 5 (as Assistant Headmaster) and respondent Nos. 6 and 7 (as Supervisors), and (iii) the seniority list prepared by respondent No. 1 on 1st January, 2014. 2. On 1st August, 1985, the petitioner was appointed to the post of Assistant Teacher in the primary section of the 3rd respondent – school. At the time of his appointment, he was possessing the requisite qualification of S.S.C., D.Ed. for a Primary Teacher. Respondent No. 4 was appointed as an Assistant Teacher also in the primary section on 16th July, 1985. At that time she possessed the qualification of B.Sc., B.Ed.. On 24th November, 1988, Respondent No. 4 was appointed to the post of Secondary Teacher in the Higher Secondary School run by respondent No. 2, she having possessed the requisite qualifications for such appointment. Respondent Nos. 5, 6 and 7, who also possessed the qualifications of a graduate degree with B.Ed., were appointed as Assistant Teachers on 15th July, 1989. The Petitioner improved his qualifications to B.Sc. in the year 1997 and B.Ed. in 1999. The Management placed the petitioner and respondent Nos. 4 to 7 in the particular category of ‘trained graduate’, namely, category ‘C’, with effect from different dates. In the case of respondent Nos. 4 to 7, it placed them in category ‘C’ with effect from their appointment as assistant teachers since on that date they possessed the requisite qualification for category ‘C’, whilst the petitioner was placed in category ‘C’ with effect from the date he acquired the improved qualifications which enabled him to be placed in category ‘C’. Respondent Nos. 4, 5, 6 and 7 were promoted to the respective posts as noted above over the petitioner, based on this list of seniority prepared by the Management. The grievance of the petitioner in his appeal before the School Tribunal was that the seniority of the teachers including the petitioner herein fixed by the Management was in violation of Rule 12 of the MEPS Rules read with Schedule “F”. The grievance of the petitioner in his appeal before the School Tribunal was that the seniority of the teachers including the petitioner herein fixed by the Management was in violation of Rule 12 of the MEPS Rules read with Schedule “F”. It was his case that the Rule required the management to prepare a seniority list of the teaching staff including the Headmaster and the Assistant Headmaster of the school in accordance with the guidelines laid down in Schedule “F” for fixation of seniority of teachers in Primary and Secondary Schools. Relying on the judgment of the Hon’ble Supreme Court in the case of Viman Vaman Awale vs. Gangadhar Makhriya Charitable Trust, (2014) 13 SCC 219 it was submitted that for promotion to the post of Headmaster of a School, the seniority of teachers should be counted from the date of their initial appointment irrespective of the point of time at which the various requisite qualifications are obtained by the teachers with a view to climb the ladder of seniority. Learned counsel for the petitioner submits that if this principle is accepted, the petitioner is entitled to the post of Headmaster and not respondent No. 4. Learned counsel submits that the list of seniority needs, accordingly, to be altered for all concerned including the petitioner and respondent Nos. 4 to 7. Learned counsel also relies on the judgment of the Division Bench of our court in the case of Ramkrishna s/o Shriram Bhoyar and others vs. State of Maharashtra and others, Writ Petition No. 6146/2011 decided on 8 June, 2017 (Nagpur Bench) in support of his submissions. 3. The scheme of the MEPS Act and Rules framed thereunder, so far as it is relevant to decide the controversy in the present petition, may be noted at the outset as follows : 3.1 The MEPS Act, which extends to the whole of the State of Maharashtra, and which has come into force on 15th July, 1981, regulates recruitment and conditions of service of employees in private schools. Private schools are recognised schools established or administered by a management other than the Government or a local authority (section 2(20)). Recognised schools are divided into two categories, primary and secondary schools. Under section 2(20), ‘primary school’ means a reognised school, or part of such school, in which primary education is imparted. Private schools are recognised schools established or administered by a management other than the Government or a local authority (section 2(20)). Recognised schools are divided into two categories, primary and secondary schools. Under section 2(20), ‘primary school’ means a reognised school, or part of such school, in which primary education is imparted. According to a State Government notification in this behalf, education imparted from 1st standard to 8th standard is included in the term “primary education” as defined in section 2(18). Schools, or parts of schools, imparting education for 9th and 10th standards are secondary schools. Under section 2(26), “teacher” means a member of the teaching staff including the Head of a school. Rule 2(1)(j) defines a “Trained Graduate” to mean a person possessing the qualifications mentioned in sub-clauses (i) to (vi) of clause (1) of Item II in Schedule B”. 3.2 Rule 6 of the MEPS Rules provides for qualifications of teachers. Minimum qualifications for the posts of teachers in the primary and secondary schools under that Rule have to be as specified in Schedule “B” to the MEPS Rules. 3.3 Schedule ‘B’ separately provides for qualifications of primary and secondary teachers. Qualifications for primary teachers inter alia are S.S.C. examination or any other equivalent examination recognised by Government and Diploma in Education. Schedule “B”, however, makes it clear that a person holding Diploma in Education shall be qualified to teach standards 1st to 4th only. On the other hand, qualifications for a trained teacher in Secondary School as a Graduate Teacher inter alia require graduation with a Bachelor’s Degree in Teaching or Education of any statutory University or a qualification recognized by the Government as equivalent thereto. 3.4 Rule 12 of the MEPS Rules, which provides for preparation of seniority list, is in the following terms — “(1) Every Management shall prepare and maintain seniority list of the teaching staff including Head Master and Assistant Head Master and non-teaching staff in the School in accordance with the guidelines laid down in Schedule “F”. The seniority list so prepared shall be circulated amongst the members of the staff concerned and their signatures for having received a copy of the list shall be obtained. 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.” 3.5 Schedule “F” provides for guidelines for fixation of seniority of teachers in Primary and Secondary Schools separately. As far as seniority of teachers in a Primary School is concerned, the guidelines make it clear that the seniority shall be reckoned on the basis of continuous officiation counted from the date of acquiring the educational qualification as prescribed under Schedule “B” appended to these Rules. Based on various qualifications acquired by the teachers of Secondary School, Schedule “F” provides for categorization of secondary teachers in nine categories, Category–A being heads of secondary schools having enrollment of students above 500, Category–B being heads of secondary schools having enrollment of students of 500 and below, and Category–C being holders of a Graduate Degree in Arts, Science and Commerce along with Bachelor of Education or its equivalent. Category–D provides for holders of Graduate Degree in Arts, Science and Commerce with a Diploma in Education or its equivalent and so on. These categories represent a ladder of seniority and are in a descending order. 4. In the face of the scheme of the MEPS Act and Rules, is the petitioner’s seniority for appointment to the post of Headmaster, or Assistant Headmaster or Supervisor, for that matter, to be reckoned from the date he was placed in the particular category in the ladder of seniority (category ‘C’ in the present case) or is it to be from the date of his initial appointment, whatever be the applicable category in the ladder of seniority in which he was then (i.e. at the time of his appointment) placed. That is the question we have to consider in the present case. That is the question we have to consider in the present case. The argument of the petitioner, based on the judgment of the Hon’ble Supreme Court in the case of Viman Vaman Awale (supra), is that though for being appointed the Head of a secondary school a person is required to be a graduate possessing Bachelor’s degree in teaching or education of a statutory university or equivalent recognized qualification, so long as the person holds any of the prescribed qualifications in Schedule “B”, he should be treated as satisfying the qualifications stipulated in Rule 6 and as a consequence, be treated as ‘Trained Graduate’ as defined in Rule 2(1)(j), which means a person possessing the qualifications mentioned in Sub-Clauses (i) to (vi) of Clause-I of Item-II in Schedule “B”. Once a person acquires the qualification which is necessary for his appointment, acquisition of higher qualification of a later date, even when such higher qualification is the requisite qualification for the higher post, will not be determinative in the matter of fixation of seniority. The seniority will depend upon appointment in the cadre after obtaining the qualification. If at the time of consideration for promotion, the candidate concerned has acquired the eligibility for promotion, then unless the rule specifically gives an advantage to a candidate with earlier eligibility, the date of seniority would prevail over the date of eligibility. It is submitted that the judgment of our Court in the case of Ramkrishna (supra) also proceeds on the footing that it would only be necessary for an Assistant Teacher to possess the training qualification. Once a person possess such qualification, his name ought to be placed in the seniority list on the basis of his or her date of appointment and not from the date on which he or she secures the training qualification for promotion. The Division Bench relied on the case of Viman Vaman Awale to the extent it holds that if teachers are fully qualified at the time of preparation of the seniority list, the Primary Teacher, who had joined first in point of time would rank the seniormost, whether or not he or she last came to secure the higher qualification, i.e. B.Ed. qualification in that case. 5. qualification in that case. 5. Before we consider the application of the law, including the judgments referred to above, to the facts of our case, it may be noted at the outset that even if the petitioner is right on his interpretation of that law, the case against the promotion of respondent No. 4 as Head Master is a non-starter. Respondent No. 4 was anyway appointed as an Assistant Teacher prior to the petitioner and thus, even if the petitioner’s argument on reckoning of seniority as from the date of appointment and not from the date of acquisition of higher qualification is accepted, the seniority of respondent No. 4 cannot be questioned. The only ground urged in this behalf by the petitioner, namely, that respondent No. 4 was wrongly appointed as a primary teacher when he possessed higher qualifications, is devoid of any merit. The petitioner’s contention is that when the required qualification for the post of a primary teacher was S.S.C., D.Ed, the appointment to the post of respondent No. 4, who was a graduate with B.Ed., was illegal. As rightly observed by the School Tribunal, Rule 6 provides for minimum qualification for the post of teacher and non-reaching staff; a higher qualification does not disqualify anyone from being appointed to the post. 6. Secondly, it is important to note that the petitioner was appointed on the date claimed by him as an assistant teacher in a primary school. He was placed in the particular category, namely, category ‘C’, which is a category of secondary school teachers, later. What we are concerned with in this present case is the seniority of teachers in the secondary school. Besides, unlike in the case of primary teachers in the case of secondary teachers there is a ladder of seniority based on the qualifications, the effect of which is discussed below. 7. As noted above, whilst seniority of primary school teachers is based on the date of joining service and continuous officiation (paragraph 1 of Schedule F of the Rules), the teaching staff of secondary schools has been classified into different categories for the purpose of fixation of seniority. Categories A, B, C, D, E, F, G and H represent the ladder of seniority. Categories A, B, C, D, E, F, G and H represent the ladder of seniority. As explained by a Division Bench of our court in the case of Saramma Varghese vs. Secretary/President, S.I.C.E.S. Society, 1989 Mh.L.J. 951, these categories representing the ladder in a descending order imply that teachers in category A are necessarily senior to those in category B. Likewise those in category B are senior to category C and so on. Inter se seniority of teachers falling in any single category has to be determined on the basis of their continuous service in that category in a single school or schools of the same management. The seniority of the members of the teaching staff being thus reckoned, the seniormost members respectively are appointed as the Head and Assistant Head of the school/s. 8. As far as the Petitioner is concerned, he was appointed in the primary school of Respondent No. 1. Even if he were to be considered as a graduate teacher falling within sub-clauses (i) to (vi) of clause 1 of Item (II) in Schedule B of the MEPS Rules, for the purposes of seniority as a secondary teacher, he can only come under 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. On the other hand, each one of Respondent Nos. 4 to 7 comes within category ‘C’ as holder of graduate degree in Arts/Commerce/Science with a B.Ed. degree or its equivalent. Respondent Nos. 4 to 7 qualify in category ‘C’ as of the date of their respective appointments, that is to say, on 24 November, 1988 (in case of Respondent No. 4) and 15 July, 1989 (in case of Respondent Nos. 5 to 7). The Petitioner, on the other hand, was qualified to be placed in category ‘C’ with effect from the date he acquired the improved qualification of a graduate degree in Science (B.Sc). The petitioner having acquired this qualification and accordingly entered into category ‘C’ in the year 1997, could not be said to be senior to Respondent Nos. 4 to 7, each of whom entered category ‘C’ much prior in point of time to him. 9. The cases of Viman Vaman Awale decided by the Supreme Court and Ramkrishna s/o. Shriram Bhoyar decided by a Division Bench of our court do not lead to any other result. 4 to 7, each of whom entered category ‘C’ much prior in point of time to him. 9. The cases of Viman Vaman Awale decided by the Supreme Court and Ramkrishna s/o. Shriram Bhoyar decided by a Division Bench of our court do not lead to any other result. In Viman Vaman Awale, both rival candidates, i.e. the Appellant and Respondent No. 4 in that case, were primary teachers both having fulfilled the qualifications stipulated in Schedule B for appointment as a primary teacher, namely, SSC with a diploma in Educational examination or a diploma in Education (D.Ed). Both were accordingly to be treated as satisfying the qualifications stipulated in Rule 6. Though the further qualification of B.Ed. degree was essential for being promoted as the head of the school, it was not an essential qualification for the original post held by them, namely, that of Assistant Teacher of the primary school. What the court considered was whether acquisition of B.Ed. degree by Respondent No. 4 (who joined after the Appellant and was junior to her as Assistant Teacher) earlier in point of time than the Appellant would tamper with the seniority of the Appellant and steal the march over her. The School Tribunal as well as the High Court in that case had answered the question in the affirmative relying on the Full Bench Judgment of our court in Shri Vaijanath s/o Tatyarao Shinde vs. Secretary/Marathwada Shikshan Prasarak Mandal, 2006(6) Bom.C.R. 804 (F.B.). The question referred to for the determination of the Full Bench in the case was to the following effect : “For promotion to the post of Head Master of a Primary School, whether seniority of the teacher is to be counted from the date of initial appointment, or from the date of acquisition of educational and training qualification?” The Full Bench answered the question by holding that seniority shall be determined from the date of acquisition of educational and training qualification. The Full Bench noted that since the petitioner in that case, when he joined the school, did not have the necessary qualification for the post, he could not be treated as a person duly qualified in terms of Rule 6 read with Schedule B of the Rules. The Full Bench noted that since the petitioner in that case, when he joined the school, did not have the necessary qualification for the post, he could not be treated as a person duly qualified in terms of Rule 6 read with Schedule B of the Rules. On that basis, the Full Bench came to the conclusion that the petitioner acquired the qualification required for the post at a later date and it is only on the acquisition of such qualification that he became eligible and qualified to be appointed for the post and therefore, his seniority would be determined from the date of acquisition of the qualification and not before. The Supreme Court in Viman Vaman Awale did not question this statement of law by the Full Bench. The Supreme Court, however, distinguished the facts of the case before it by noticing that the Appellant before it was having the requisite minimum qualification for appointment to the post of Assistant Teacher in the primary school and was not an unqualified teacher when appointed to the post. Based on this observation, the Supreme Court noted that the decision of the Full Bench in Vaijanath’s case was not applicable. The High Court having failed to notice this point of distinction and having thus wrongly applied the ratio of Vaijanath case, the decision of the High Court was set aside and the Appellant’s case of seniority was accepted. The court held that the Appellant was qualified to be appointed as Assistant Teacher in primary school on the date of his appointment and that acquisition of higher qualification at a later date, even when such higher qualification was the requisite qualification for the higher post, would not be determinative for fixing the seniority. What is to be noted here is that unlike in the case of primary teachers, where the seniority is to be reckoned on the basis of continuous officiation counted from the date of acquiring the educational qualification prescribed under Schedule B, which is S.S.C. and D.Ed., in the case of secondary teachers the guidelines of Schedule F provide for eight different categories representing a ladder of seniority in a descending order. A person on the date of his appointment may be qualified to be a teacher in the secondary school but if he is lower in the ladder of seniority, the teacher falling within higher categories, even if junior in terms of the date of appointment to the former, shall be reckoned as senior. 10. The case of Ramkrishna s/o Shriram Bhoyar is also decided by the Division Bench of our court following the ratio of Viman Vaman Awale without reference to the ladder of seniority provided for under Schedule “F” for teachers of secondary school. Even in that case, what the court held was that all the petitioners were graduates and possessed a training qualification and their names ought to have been placed in the seniority list on the basis of their date of appointment and not from the date on which they secured higher qualifications. As far as teachers in secondary school are concerned, their inter se seniority has to be reckoned with reference to the ladder of seniority represented by categories A to H, the categories themselves being in a descending order, and therefore, their seniority depends on their place in the categories forming the ladder of seniority, that is to say, the date of their having acquired the qualification for entering the particular category in the ladder and not merely on the date of their initial appointment. 11. In the present case since on the date of their respective appointments each of Respondent Nos. 4 to 7 were in a higher category on the ladder of seniority, namely, category ‘C’, and the Respondent having obtained the requisite qualification for being placed in category ‘C’ on a later date, is not entitled to be treated as senior to them simply on the basis of his date of appointment in the lower category, namely, in the present case, category ‘E’. 12. This law has been correctly applied by the School Tribunal and no exception can be taken to the impugned judgment with reference to it. There is accordingly no merit in the writ petition. The writ petition is dismissed. No order as to costs. Petition dismissed.