TaxTMI 
TaxTMI 
2014 (8) TMI 1210
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....of examination in the present case. 3. This question has arisen in the following circumstances: The Appellant joined the service with Respondent No. 3 School as Assistant Teacher on 24.08.1979, whereas Respondent No. 4 joined the same post in the same School on 01.09.1980. At the time of her joining, the Appellant had not completed her graduation, though it is not in dispute that the Appellant fulfilled the requisite qualifications for appointment as Assistant Teacher. She completed her BA in the year 1984. Thereafter, she did B. Ed. as well, with due permission of the School authorities, and passed the said course on 20.05.1986. To improve her academic record, the Appellant even acquired the qualification of MA in the year 1997. On the other hand, the academic graph of Respondent No. 4 discloses that he was already BA when he joined the service as Assistant Teacher on 01.09.1980. He also did B. Ed. and completed that course on 01.11.1984 (that is, before the Appellant, who had acquired the same qualification on 20.05.1986). 4. A seniority list was circulated by the School authorities (from the record, the date of this list is not discernible) wherein the Appellant was shown ....
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....he dispute has arise, viz. whether it is the Appellant who is senior to Respondent No. 4 or it is Respondent No. 4 who is senior to the Appellant. 8. The reason given by the School Tribunal in accepting the claim of Respondent No. 4 is that at the time of entry of both these persons as Assistant Teachers in the School, both of them were not having B. Ed. qualification but were only D. Ed. Therefore, they were placed in Category-D of Schedule 'F'. Further, as far as B. Ed. qualification was concerned, the same was acquired by the Appellant in the year 1986, whereas Respondent No. 4 got this qualification on 31.05.1984. According to the School Tribunal, seniority is to be considered from the date of acquisition of this professional qualification, that is being the 'Trained Teacher'. In this context, the School Tribunal took note of the fact that Respondent No. 3 School is a Secondary School, having classes of v. to X and as such, as per Rule 3(1)(b), the required qualification must be graduate teacher possessing bachelor's degree in teaching and five years teaching experience and out of this two years experience shall be after acquiring bachelor's degree. F....
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.... seniority as well as criterion for appointment of the Headmaster of a Private School. 12. In order to appreciate the aforesaid contention, it is necessary to glance through the Rules in question. 13. Section 2(9) of the Act defines 'Head of a School'. Section 2(24A) provides the definition of 'Assistant Teacher (Probationary)'. Section 3, which pertains to the applicability of the Act, inter alia, provides that this Act shall apply to all private schools in the State of Maharashtra, whether receiving a grant-in-aid from the State Government or not. Section 4 of the Act provides for the terms and conditions of service of employees of private schools. Section 5 cast certain obligations of Management of private schools, which includes filling up of permanent vacancies in such schools by appointment of a person duly qualified to fill such vacancy. 14. We would like to reproduce, verbatim, provisions of Section 2(9) and Section 2(24A) as well as Section 4 of the Act, which are as under: "Section 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 scho....
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....ity of being heard. (5) No employee working in a private school shall work in any coaching class. If any employee, in contravention of this provision, works in any coaching class, his services shall be liable to be terminated by the Management, provided that no such order of termination shall be issued unless the employee concerned has been given a reasonable opportunity of being heard. (6) No employee of a private school shall be suspended, dismissed or removed or his services shall not be otherwise terminated or he shall not be reduced in rank, by the Management, except in accordance with the provisions of this Act and the rules made in that behalf." 15. Relevant Rules with which we are concerned are Rule 3 (providing for qualification and appointment of Head); Rule 6 (stipulating qualifications needed for appointment as teachers) and Rule 12 (dealing with the seniority). Relevant portion of these Rules are as under: "3. Qualifications and appointment of Head. (1) A person to be appointed as the Head- (a) xx xx xx (b) of a secondary school including night school or a Junior College of Education shall be a graduate possessin....
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....ing 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. Any subsequent change made in the list from time to time shall also be brought to the notice of the members of the staff concerned and their signature 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 Primary Schools shall be based on continuous officiation counted from the date of acquiring the educational qualification as prescribed under "Schedule B' appended to these rules. 2. Guidelines for fixation of seniority of teachers i....
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....ipulated in Schedule-B is that he or she should 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 or Diploma in Education examination, or a Diploma in Education (per-primary of two years' duration). Thus, among various alternate qualifications which are prescribed for appointment to the post of Primary School Teachers, one of the prescribed qualification is Diploma in Education Examination (D. Ed.). Therefore, a person holding this qualification would be treated as satisfying the qualification stipulated in Rule 6. As a consequence, he would 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 (1) of item II in Schedule "B". 17. The Appellant herein entered the service in Respondent No. 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 ....
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....f an unqualified teacher when the Appellant was appointed to the said post on 24.08.1979. This makes all the difference and renders the judgment in the case of Shri Vaijanath (supra) as inapplicable to 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 Shri Vaijanath (supra). 21. In the present case, when we find that the Appellant was qualified to be appointed as Assistant Teacher in Primary School on the date of his appointment, acquisition of higher qualification at a later date, even when such a higher qualification is requisite qualification for the higher post, will not be determinative for fixing the seniority. Direct answer thereto is provided by this Court in R.B. Desai and Anr. v. S.K. Khanolker and Ors. (1999) 7 SCC 54. The Appellants therein were appointed to the post of Forest Officer in the year 1964-65 and after the required training joined the Forest Department of the Government of Goa as Foresters with effect from 27.01.1965. They were promoted to the next higher cadre of RFO with effect from 08.03.1974. The first Respondent therein directly joined as RFO on 01.11.197....
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....d above, promotion to the post of AFOs is made from the post of RFOs to the extent of 75% of the vacancies. There is no dispute that both the Appellants and the first Respondent belong to the cadre of RFOs. The only difference between them being that the Appellants were promotees in the said cadre while the first Respondent was a direct recruit. It is an accepted principle in service jurisprudence that once persons from different sources enter a common cadre, their seniority will have to be counted from the date of their continuous officiation in the cadre to which they are appointed. On facts, there is no dispute that the Appellants entered the RFOs' cadre on a date anterior to that of the first Respondent, therefore, in the cadre of RFOs, the Appellants are senior to the first Respondent. However, to be considered for promotion, the rule required RFOs to acquire the eligibility as provided therein. Therefore, the question for consideration is: can the acquisition of an earlier eligibility give an advantage to the first Respondent as against the Appellants when an avenue for promotion opens in the cadre of ACFs even though at what point of time the Appellants had also acquired....
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....king in the cadre of ACFs vis a vis the first Respondent. The view taken by us also finds support from the judgment of this Court in Union of India v. B. Jayaraman MANU/SC/0893/1994 : (1994) Supp (1) SCC 95, wherein considering a similar argument this Court held: (SCC Headnote) "The note in column 11 is only for purposes of giving eligibility to the erstwhile Assistants working as Superintendents Grade II for purposes of being considered for promotion to the post of Superintendent Grade I and not for the purpose of seniority at all. (Emphasis supplied)" 22. That apart, we find that in the case at hand there is a specific Rule, namely, Rule 12 of the Rules, which deals with seniority. The clear and unambiguous criteria for determining seniority is the continuous officiation counted from the date of acquiring the educational qualification as prescribed under Schedule "B". It is stated at the cost of repetition that since the Appellant was holding the requisite qualifications, i.e. D. Ed., for appointment to the post of Assistant Teacher in Primary School, as prescribed under Schedule "B" to the Rules, her seniority was to be counted on the basis of continuous off....