TaxTMI 
TaxTMI 
2019 (4) TMI 1954
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.... that particular category later may have actually joined the service earlier. The Questions: 2(a). Here, the question is, once persons from different sources enter a common category, how should their seniority be reckoned? 2(b). Is it from the date of their entering and continuously officiating in the service or from the date of their acquiring qualification to reach that common category? 2(c). Is there any universal principle for this proposition or does it depend on the rules of service? Facts: WP No. 14242 of 2018: 3. In W.P.(C) No. 14242 of 2018, there are 13 petitioners; they all work as assistant teachers in the fifth Respondent school. All the petitioners, in fact, entered the service as trained graduate teachers, possessing the requisite qualifications. The school is Government recognised, with both aided and unaided secondary divisions. It is governed by the Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1977, and the eponymous Rules, 1981. 4. The fifth Respondent school has also appointed a few persons as trained undergraduate teachers. Some of those teachers later acquired B.Ed., qualification. Thus, they too have become trained....
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....unsel have argued that the impugned circulars violate the statutory scheme of seniority. To elaborate, they contend that the teachers in the secondary schools must have their seniority governed by the category they belong to, rather than the date they have been appointed on. In the light of the impugned circulars and the consequential revised seniority, many trained graduate teachers have been denied promotion. In some cases, those promoted earlier were reverted. 13. The learned counsel assert that to be placed in the proper category, the teacher ought to possess the basic qualification, that is B.Ed. Indeed, they have also elaborated on how the petitioner teachers have formed a committee and continued to plead with and represent to the education authorities on the issue. 14. Besides taking us through the statutory scheme, the petitioners' counsel have also relied on a profusion of precedents. We will refer to the regnant regulations and the decisions soon. Though the learned counsel appearing for the petitioners in different cases have also brought to our notice minor factual variations among those cases, we disregard them. For the issue essentially turns on a disput....
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....lier one and redefined the "Seniority" and redrawn the seniority lists. Now the later one may unsettle what has already been settled. For, as he maintains, the later of the two coequal-Bench decisions must prevail. Those decisions are Viman Vaman Awale v. Gangadhar Makhriya Charitable Trust (2014) 13 SCC 219 and Bhawana v. State of Maharashtra. AIR 2019 SC 238 21. Heard Shri N.V. Bandiwadekar, Shri A.A. Garg and Ms. Pranita Hingmire, the learned counsel for the respective Petitioners. Also heard the learned Senior Counsel Shri Mihir Desai, the learned counsel Shri Rameshwar Gite, Shri Rajesh Kolge, Ms. Anupama Shah, and learned AGP Shri Kedar Dighe for the respective Respondents. Analyses: Issues in Perspective: 22. The dispute centers on seniority; seniority between two classes of Assistant Teachers in Secondary Schools. The petitioner-teachers entered the service as trained graduate teachers; they possessed B.Ed. Thus, they were placed in Category C of Schedule F. The respondent-teachers, on the other hand, entered the service as trained undergraduate teachers or as untrained Assistant Teachers in Secondary Schools. For they did not possess B.Ed., or other essential qualifica....
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...., the common seniority list as per the provisions of schedule F to the MEPS Rules, 1981, should be held valid, (taken with modification from the translated copy) 28. Later, through a circular, dated 14 November 2011, the government further mandated: 1. The graduate seniority list should be considered for sanction of the graduate pay scale to the teacher concerned. 2. Common Seniority list should be considered for promotion. 3. The Degree, such as B.A./B.Com./B.Sc., "is of educational nature" and that qualification is only an additional qualification, besides the basic qualification necessary for the post of primary teacher. 4. After acquiring the degree, the teacher concerned will be included in the list of graduate teachers. His seniority in the list will be reckoned from the date of his first appointment to the post of teacher and his continuous service. 5. The Common Seniority list prepared based on the teachers' first appointment shall be considered for promotion. At the time of promotion, if the teacher concerned is possessing the educational and professional qualifications along with the necessary experience, then the teacher conce....
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....for recruitment (including its procedure), duties, pay, allowances, post-retirement and other benefits, and [service] conditions" of private school employees. The State Government can regulate the rules of reservation, too, in private schools. Subsection (5) obligates the private-school management to fill up, at the earliest, every permanent vacancy with a qualified person and by adhering to the statutory mandate. 33. Section 8 of the Act deals with the constitution of School Tribunals. And Section 9 confers on the private-school employees the right of appeal. Indeed, the Tribunal's decision is final and binding, as declared under Section 12 of the Act. 34. Moreover, Section 16 deals with the delegated legislative power: the State Government can make rules, among other things, for carrying out the purposes of the Act. The rule-making power covers the employees' qualifications, their scales of pay, their post-retirement and other benefits; and all other conditions of service of such employees including leave superannuation, reemployment, and promotion. The Executive has the retrospective, yet conditional, rule-making power, too. The Rules: 35. From a cryptic enactment co....
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....r this Schedule, to be appointed a Primary Teacher, a person must have passed (a) S.S.C., or (b) Matriculation, or (c) Lokshala examination, or (d) any other examination recognised as equivalent. Besides possessing the above qualification, that person must also possess (i) a Primary Teachers Certificate, or (ii) a Diploma in Education examination, or (iii) a Diploma in Education (pre-primary of two years' duration). 42. The "Note", however, clarifies that a person holding a Diploma in Education (pre-primary of two years' duration) can only teach standards I to IV. But certain Primary School teachers shall be regarded as trained S.S.C., teachers. To be regarded so, they must satisfy two prerequisites: (a) must have possessed S.S.C. and S.T.C. or T.D. or D.T. (one year) or Diploma in Education (one year); (b) must have been appointed by 30th September 1970. 43. Now, let us see how the Schedule deals with the Secondary and other Teachers: (b) Teachers in Secondary Schools and Junior Colleges: (1) For Graduate Teachers: (i) a bachelor's degree in Teaching or its equivalent; or (ii) a ....
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.... be categorized as follows: Category A: Heads of Secondary schools having an enrolment 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 [fewer] 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. Category C: Holders of - 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 post-S.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.....
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....ecific. To put it explicitly, on their joining the service, based on their entry-level qualification, the teachers will, by default, belong to one particular category. In that default category, they will have their seniority reckoned based on the date of their joining. 50. While in service, teachers may desire better career prospects. For that they may earn higher degrees. As they keep on acquiring additional qualifications, they move up the categories. Then, the teachers' seniority is reckoned in each "moved-up" category based on the date of their qualifying. 51. To illustrate this inter-category movement and the resultant seniority, Schedule F has numerous notes attached to it. We will now consider those that throw light on the controversy we are grappling with. As Note 1 demonstrates, teachers, appointed on or after 1st October 1970, with S.T.C., T.D., Jr. P.T.C. Dip., T. Dip. Ed. (post S.S.C. one-year course) qualifications shall be regarded as untrained. So they stand placed in Category 'F' or 'G'. As the teachers in these categories keep on acquiring qualifications, they move up in the category ladder. Moreover, Note 2 lists the qualifications--D. Ed. (2....
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....cided Bhawana unaware of the earlier Vimal Vaman Awale. 56. According to the learned Government Pleader, the Government has drawn the secondary teachers' seniority and has even promoted some, guided by Viman Vaman Awale. Now, if this Court follows Bhawana, a later judgment, it will cause chaos and upset the whole apple cart, as it were. He nevertheless wants us to resolve this decisional dilemma or precedential tangle. An unenviable task! 57. Granted, Bhawana does not refer to Viman Vaman Awale. But do they precedentially take a conflicting course? To unravel this seeming conflict, we must first ascertain this: Of a decision, what binds the courts under Article 141 of the Constitution? Is it the ratio, or holding, or conclusion? Then, this begets another question--a fundamental one. What is the precedent? What is the Precedent? 58. Salmond defines a precedent as a judicial decision "which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi." According to him, it is "the abstract ratio decidendi which alone has the force of law as regards the world at large." Professor John Chipman Gray in hi....
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....ion to a 'case-holding' in the adjudicatory hierarchy. 63. Then, we can adopt Arthur L. Goodhart's assertion Determining the Ratio Decidendi of a Case, Yale Law Journal, Dec, 1930 that it is not the rule of law "set forth" by the court, or the rule "enunciated", which necessarily constitutes the principle of the case. There may be no rule of law set forth in the opinion, or the rule when stated may be too wide or too narrow. Goodhart quotes from Oliphant's A Return to Stare Decisis (1927) that the predictable element in a case is "what courts have done in response to the stimuli of the facts of the concrete cases before them. Not the judges' opinions." 64. That said, it is necessary for us to know what the judge has said about his choice of the facts, for what he does has a meaning for us only when we know what facts he has relied on. "A divorce of the conclusion from the material facts on which that conclusion is based is illogical and must lead to arbitrary and unsound results." To cap it, we will once again recall how Goodheart sums up a curious mind's quest to ferret out the elusive ratio decidendi or holding: If an opinion gives the facts, the first p....
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....itional qualifications. 70. To conclude as above, Viman Vaman Awale has relied on Rule 12 of the Rules, which deals with seniority. The clear and unambiguous criterion for determining the seniority, according to Viman Vaman Awale, is "the continuous officiation counted from the date of acquiring the educational qualification" under Schedule "B". So it has held that as the Appellant has the requisite qualification to be an assistant teacher in a Primary School, her seniority must be reckoned based on her "continuous officiation." 71. To put the issue in perspective, we may note on facts that when the appellant and the fourth respondent entered the service, they both had the D.Ed., qualification--that is, they both were "trained graduates". But the fact remains that the appellant joined the service first. So her seniority prevailed. We reckon from the facts of Viman Vaman Awale both the teachers started their career as Primary Assistant Teachers. The threshold qualification fulfilled, the additional ones, in the same category, serve only an ornamental purpose, so to say. (b) Bhawana: 72. In Bhawana, decided on 04.01.2019, the appellant and the fifth respondent are assistant teach....
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....r of category 'F' or 'G' can in no manner rank senior to the teacher who is in category 'C', 'D' or 'E' merely based on his or her "continuous service rendered in the category to which th[at] person belongs." 77. On facts, Bhawana declares that the appellant entered the service indisputably as an untrained teacher, falling in category 'F'. But the 5th Respondent entered the service as a trained teacher, falling in category 'C'. After acquiring the B.Ed., qualification, the appellant entered Category C, but only after the 5th respondent's entry. So the appellant "could not have claimed seniority over the 5th Respondent in category 'C' of Schedule F annexed to Rule 12 of Rules, 1981." (c) Coequal Benches & the Conundrum of Precedential Conflict: 78. Precedentially, the predominant jurisprudential view--at least until recently--is that among the conflicting judgments of co-equal Benches, the latest should prevail. This school of thought, I am afraid, no longer holds good. Various High Courts, through Benches of varying strength, have ruled on that issue, but still unanimity has eluded. 79. In Jaisri Sahu v. Dubey ....
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....er court may refuse to follow the later decision on the ground that it was arrived at per incuriam, or it may follow such decision on the ground that it is the latest authority. Which of these two courses the court adopts depends, or should depend, upon its own view of what the law ought to be." 83. Long back, a Constitution Bench of the Supreme Court in Atma Ram v. State of Punjab, AIR 1959 SC 519 has however termed this "doctrine of choice" for the subordinate courts "an embarrassment of preferring one view to another, both equally binding upon them." 84. Faced with this ineluctable embarrassment, later a Full Bench of this Court, in Kamleshkumar Ishwardas Patel v. Union of India, has referred to a Special Bench decision of Calcutta High Court in Bholanath v. Madanmohan. (1988) 1 CAL LT 1 (HC) It concerns the course to be followed by the High Court when confronted with contrary decisions of the Supreme Court emanating from Benches of coequal strength. Bholanath, in fact, notices the two schools of thought: (1) that the High Court has no option but to follow the later one; (2) that the High Court is not necessarily bound to follow the one which is later in point of time, but may....
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....nst the hierarchical supremacy of Courts. (e) The Icing on the Cake: 90. In Sundeep Kumar Bafna v. State of Maharashtra AIR 2014 SC 1745, a two-Judge Bench of the Supreme Court faced the conflicting judgments of two "three-Judge Bench" decisions on the question of "custody and arrest." In that context, Sundeep Kumar Bafna has observed that the view of the coordinate Bench of earlier vintage must prevail, and this discipline demands and constrains the courts to adhere to the former decision, rather than the later. It pays to quote the Supreme Court's observations: It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co-equal or Larger Bench; ....
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....de that Viman Vaman Awale and Bhawana do not conflict with each other; they have taken no divergent precedential paths. Though Bhawana may not have been aware of Viman Vaman Awale, both decisions have displayed remarkable interpretative consistency. Precedential Pandora's Box: 96. Now, we must address the avalanche of authorities the parties on either side have relied on. As to the collection of ratio or holding, a single precedent may cause no concern; but a congeries of case law on the same issue always does. For judicial decisions are accumulated articulations. Each builds on another. We expect the later one to coalesce with the previous one, but most often ever so subtly it shifts its stand-imperceptible in a single instance yet almost divergent in a continuum. Precedents thus are "clear at the core but blurred at the edges." 97. In Sunil, a Division Bench of this Court has considered how the seniority of primary teachers should be determined. It has held that the primary teachers' seniority must be reckoned based on their date of joining and continuous officiation. Sunil has pertinently observed that a primary teacher's obtaining B.Ed., gives him no march over o....
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.... Khati. The same precedential path is taken by Chagan v. Education Officer (Secondary), Zilla Parishad 2018(3) Mh. LJ 720, another decision by a learned Single Judge. 100. The earliest among these decisions is Vitthal v. Zilla Parishad, Chandarpur 2006 (2) Mh.LJ 124, to which one of us (B.R. Gavai J) is a party. Though Vitthal's stand is unmistakable on the efficacy of a teacher's acquiring higher qualification, it nevertheless concerns pay scale among the primary teachers. So it needs no elaboration. 101. In R.B. Desai v. S.K. Khanolker AIR 1999 SC 3306, the Supreme Court has held that "if at the time of consideration for promotion, the candidates concerned have acquired the eligibility, then unless the Rule specifically gives an advantage to a candidate with earlier eligibility, the date of seniority should prevail over the date of eligibility." The Rule in R.B. Desai has given no priority to the candidates acquiring earlier eligibility. Here it has. Granted, in service law, seniority has its own weightage. But as guardingly observed in R.B. Desai, the Rule can "specifically exclude this weightage of seniority." 102. In Sahakar Vidya Prasarak Mandal v. Shreelekha Sunil....
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....1.02.1997. The petitioner has contended that he was appointed on 01.08.1985 in a post for which he was holding the requisite qualification. And the respondents 4 to 7 were appointed later, although to teach higher standards in the school. When the question of seniority for the post of Headmaster arose, the petitioner contended that because of his longer continuous officiation, he was the senior most, and so he ought to have been appointed as the Headmaster. 107. The respondents have, however, contended that the petitioner's earlier joining the service in "the primary or middle section" of the school was irrelevant because seniority based on continuous officiation was relevant only in case of primary school teachers. 108. A learned Single Judge, after referring to almost the entire case law on the issue of seniority, has held that "when the petitioner and respondent nos. 4 to 7 were all holding the necessary qualifications for being appointed as Headmaster, the seniority between them could be determined only on the basis of initial date of appointment." 109. But, to our mind, going by Viman Vaman Awale and Bhawana, Chagan seems to accord with neither the statutory mandate nor....
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....y vis-a-vis those who join the same stream later." Emphatic is the observation that "the late comers to the regular stream cannot steal a march over the early arrivals in the regular queue." 114. Agreed, in Chagan, the petitioner joined as a primary teacher. And he had all the qualifications for that post. But he was not staking seniority as a primary teacher. He later joined the stream of secondary teachers. In that category, with later acquired qualifications, he cannot, as held in Vadanath, steal a march over others who had been there in that stream. Had Vadanath been brought to the notice of Chagan, perhaps the result would have been different. Conclusion: 115. This Court's series of judicial pronouncements as cited above, with the final cap by the Supreme Court's Viman Vaman Awale and Bhawana, unmistakably lays down the law: Among Primary Teachers, the seniority is counted from the date of the teacher's joining service. On the other hand, among the Secondary Teachers, the seniority is counted based on when the teachers had been placed in a particular category--for their seniority stands graded and categorized by the date of their very joining. This categorizatio....