This case discusses the determination of seniority of the teachers in the primary and secondary schools in Maharashtra and their appointment.
Brief Facts of the Case
The dispute arose in the year 2014 at the time of appointment of the Appellant (Madhavi) as the Head Master of the School, where she had been appointed temporarily on 16.7.1985 and placed in category ‘C’ of Schedule ‘F’ of The Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. She was placed in this category because she possessed graduation and B.Ed. degrees. In the year 1988, she was upgraded to High School Scale and till the Academic Session 1988-89, her appointment was purely temporary.
Respondent No.1 (Chagan), claimed that he is senior to Madhavi as he was appointed on 1.8.1985 on regular basis, whereas, she was appointed against a temporary vacancy on 16.7.1985. Thus, he should be appointed as Head Master of the School. Chagan, however, when appointed was placed in Category ‘E’ of Schedule ‘F’ of the Rules. This is because he was possessing just the Senior Secondary Certificate and D.Ed. Later, he acquired, further, qualification was placed in category ‘C’ in 1999.
The promotion of the appellant as Head Master was challenged before the School Tribunal. Along as supervisors were also challenged. The school tribunal dismissed the appeal. Respondent No.1, thus, approached the High Court, where the Single Bench dismissed the petition. However, the application filed for review was allowed with the order to not fill the vacant post of Assistant Head Master.
After this, the Single Bench passed the order impugned in the present appeal whereby the writ petition filed by Chagan was allowed. This order had been challenged by the School and Madhavi before this Court.
Appellant’s Argument
The Appellant submitted that the school is not a primary school. The seniority in the primary is based upon the date of joining and continuous officiation as provided under Clause 1 of Schedule ‘F’. However, the seniority of teachers in the secondary school is ascertained according to Clause 2 of Schedule ‘F’. The present school is a secondary school. Chagan was not qualified to be appointed as a trained teacher in secondary school. Qualifications required are a professional certificate, a diploma, or a degree recognized by the Department. However, he graduated later in 1997 and got B.Ed. Degree in 1999.
The Counsel relied on the Judgement of Gaur Pratibha & Ors. v. State of Maharashtra through Secretary & Ors., where the judgment in Viman Vaman Awale v. Gangadhar Makhriya Charitable Trust & Ors. and Bhawna v. State of Maharashtra & Ors. In the former case, both the candidates were duly qualified, thus the seniority of the teacher that joined first was upheld. In the latter, it was held that teachers in Category F, on later migration to Category C, cannot surpass a teacher already ensconced in the category. Thus, Chagan later acquiring Category C cannot surpass Madhavi already ensconced in the category.
Respondent’s Argument
It had been submitted that rules for the primary and secondary schools are common. Thus, the principle of Viman Vaman Awale would be a binding precedent and judgment in Bhawna wherein Viman Vaman Awale’s case was not referred to as per incuriam. According to the information received by RTI, it was argued that Viman Vaman Awale was a case of secondary school. Hence, the principle laid down in the aforesaid judgment had been rightly applied by the High Court setting aside the appointment of Madhavi as Head Master.
Observation by the Court
The Court found that the order of the High Court cannot be sustained in law. The Court had proceeded in Viman Vaman Awale as if the Court is dealing with the seniority of teachers in primary school. This Court also referred to Bombay High Court Judgement of Vaijanath s/o Tatyarao Shinde v. Secretary Marathwada Shikshan Prasarak Mandal, Devgiri College Campus, Aurangabad & Ors. in which it was held that only a trained teacher is eligible and qualified to be appointed as a primary school teacher.
Rule 3(1)(a)(i) provides that a person to be appointed as Head of a primary School having enrollment above 200 or having standards I to VII shall be the senior-most trained teacher who has at least 5 years of experience. Rule 3(1)(a)(ii), provides that to be appointed as Head of any other Primary School shall be a senior most teacher in the School. Rule 3(1)(a)(ii), only intends to do away with the requirement of 5 years experience provided in 3(1)(a)(i). It cannot be comprehended that the legislature intended to do away with the requirement of the senior-most teacher being a trained one. The omission of the word “trained” is an obvious drafting error.
The Judgement of Bhawna is directly applicable in the case as the facts are pari materia. The Scheme of the Act and Rules makes it clear that primary and secondary schools are treated differently in the same set of rules. For instance, Rule 3 prescribes the different rules of appointment of the head of primary and secondary school, Part I and Part II of Schedule ‘B’ provides for qualifications of teachers in primary and secondary school respectively.
The present School is a secondary school, thus Clause 2 of Schedule ‘F’ will determine the seniority. Chagan was not a trained teacher at the time of appointment, thus was rightly placed in category ‘E’ as per his qualification and later he upgrades his qualification and placed in category ‘D’ and ‘C’ on acquiring graduation and B.Ed. degrees respectively.
Given the principle laid down in Vaijanath, Madhavi was qualified for appointment as a temporary teacher. Her appointment and appointment of private respondents was following Sec. 5(5) of the act. Chagan cannot be taken into Category ‘C’ from the date of appointment as he did not have the required qualification at that time and was neither a trained teacher.
The Decision of the Court
The Judgement of the High Court in review cannot be sustained in law, hence set aside. The Writ Petition is ordered to be dismissed. The present appeals are thus allowed. The contempt petition is dismissed.
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