TaxTMI 
TaxTMI 
2019 (4) TMI 1954
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.... or later. But those who scale up and reach 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 acquir....
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....ch one. Submissions: Petitioners': 12. In summary, the petitioners' counsel 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....
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.... conflicting judgments--through coequal Benches, at that. According to him, the Government acted on the earlier 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....
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....r acquiring the degree. 3.... 4. For promotion, instead of the seniority list of graduates or the subject-wise seniority list, 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 consid....
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....tion 3 stipulates, stands covered by the Act. Of course, the minority schools largely remain unaffected by the Act. And Section 4 empowers the State Government to make rules providing for "the minimum qualifications 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 con....
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.... not a stand-alone statutory benefit; it depends, as the statutory scheme may dictate, on myriad factors. Here it depends on "qualification." So let us examine what Schedule B says about qualifications. (a) Primary Teachers: 41. As per 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 appoint....
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....edule B' appended to these rules. 2. Guidelines for fixation of seniority of teachers in the secondary schools, Junior Colleges of Education and Junior College Classes attached to secondary schools and Senior College: For the purpose of Fixation of Seniority of teachers in the secondary schools, Junior Colleges of Education and Junior College classes attached to Secondary Schools the teachers should 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....
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....the holders of category 'C, D, E or F'. That is, a teacher in category 'F' or 'G' could in no manner rank senior to a teacher in category 'C, 'D' or 'E'. Then, let us examine how the gradation pans out. 49. As we understand, Categories A and B are post-specific; they have nothing to do with the qualification, barring the basic one. In other words, they are similar to the teachers in Primary Schools; their seniority counts from the date of appointment. On the other hand, Categories C to H are qualification-specific. 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 resultan....
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....f first impression--that is, res integra. This Court and the Supreme Court, too, have grappled with the issue of seniority. In fact, ironic as it may sound, the Government cites precedential compulsion for its issuing the Circulars: altering the method of seniority. So it pays to examine the precedents, a tad too many to anyone's comfort, to ascertain the prevailing judicial position on this recurring issue. The learned Government Pleader has stressed that Viman Vaman Awale and Bhawana conflict with each other. According to him, a later coequal Supreme Court Bench has decided 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 ascert....
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....t the court decides after combining the facts of a case with the legal principles those facts attract. While holding might be thought to equate more nearly with the court's determination of the concrete problem before it, ratio decidendi is normally seen, according to them, "as a genus-proposition of which the concrete holding is one species or instance." They do admit that the distinction is a fine one for those who observe it. In the end, they declare that ratio requires adherence to the extent possible, but the holding compels compliance fully. Thus, stare decisis admits of no exception 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 stimul....
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....d Teacher". This Court affirmed the Tribunal's findings. Undaunted, the appellant appealed to the Supreme Court. 69. The Supreme Court has ruled in the appellant's favour. It has held that among various alternative qualifications prescribed for the post of Primary School Teachers, one is the Diploma in Education Examination (D.Ed.). So a person's holding this qualification would be treated as satisfying the qualification stipulated in Rule 6. Then, that person should be treated as 'Trained Graduate', as defined in Rule 2(1)(j) of the Rules. Reasoning thus, the Court disregarded the additional 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 ....
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....the date of the teacher's "joining service and continued] officiation." On the other hand, the seniority "in the secondary schools, junior colleges of education, and junior college classes attached to secondary schools and senior colleges," stands graded into separate categories, from A-H. As to the persons holding various qualifications falling in categories C to H, their seniority is determined, Bhawana clarifies, based on the total service rendered by the teacher "in a particular cadre". And the method of promotion, then, stands explained in Note 5. 76. Illustratively, Bhawana observes that a person who is a member 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, bu....
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....86 Guj. 81(FB), Gopal Krishna Indley v. 5th Addl. District Judge, Kanpur AIR 1981 All. 300, Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd. AIR 1980 Kar. 92(FB), Deputy Commissioner v. Anandan 1987 (1) KLT 192 (DB). 82. Yet earlier, another Division Bench of this Court in Manasing Surajsingh v. The State Maharashtra (1968) 70 BOMLR 654, has quoted with approval Salmond's observations in his treatise on Jurisprudence 12th Edition Page 153: "Where authorities of equal standing are irreconcilably in conflict, a lower court has the same freedom to pick and choose between them as the schizophrenic court itself. The lower 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 bindi....
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....2003 MP 81, examined the precedential value of conflicting judgments of coordinate Benches. It has eventually held that if a conflict occurs between judgments of two Division Benches of equal strength, the decision of earlier Division Bench shall be followed unless it is explained by the latter Division Bench in which case the decision of latter Division Bench shall be binding. 89. Indeed, Jabalpur Bus Operators Association has observed that High Courts and Subordinate Courts should lack the competence to interpret decisions of Apex Court since that would not only defeat what is envisaged under Article 141 of the Constitution of India but also militate against 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....
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....eacher who entered the service first had no prerequisite qualification-- B.Ed. So she joined the service as an untrained teacher, falling in category 'F'. The other teacher entered the service as a trained teacher and placed himself straightaway in C Category. The first teacher could get the B.Ed., and enter that Category only later. So as per Clause (II) of Schedule F--and as clarified by Note 4--the categories mentioned in Schedule F represented the ladder of seniority in descending order. Thus, Bhawana has held that a teacher in Category F, on later migration to Category C, cannot steal a march over a teacher already ensconced in that Category. 95. Therefore, we conclude 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 i....
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....he age if two or more candidates or teachers are appointed on the same day. 99. Ashok Narayan Sathe v. Education Officer (Secondary), Zilla Parashad 2007 (4) Mh. LJ 358, another Division Bench decision, in fact, is a precursor to Sau. Mamta Pandurang Nimje and Anjali Jayant Khati. All these three squarely accord among themselves in their judicial dicta, as was later echoed in Bhawana. Not to proliferate, we may note that Pushpanajali Subodha Shenvi v. Nagrik Seva Mandal 2016 (5) Mh. LJ 856, too, takes the same stand. In Shantaram Dhondu Ahire v. Education Officer (Secondary), Zilla Parishad WP No. 7113 of 2015, decided on 10th October 2017, a learned Single Judge has followed Anjali Jayant 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 nee....
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....sistant Teacher in the respondent School on 01.08.1985 for teaching 5th to 7th standards. He was fully qualified, as he was possessing S.S.C., and D.Ed. Respondent 4 to 7, on the other hand, were holding Graduation and B.Ed. The fourth respondent was initially appointed temporarily on 16.07.1985. Later, on 24.11.1988 he was appointed in a regular vacancy, to teach higher standards. Respondent Nos. 5 to 7, too, were appointed on 15.07.1989, to teach higher standards. All had the necessary qualifications of Graduation with B.Ed. 106. In course of time, after his acquiring B.Sc., the petitioner was brought into the category in which the requisite qualification is Graduation. He came into that category on 21.02.1997. 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....
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.... had S.S.C. But he acquired the D.Ed., in 1980; that is, one year before the petitioner could. If the seniority was to be reckoned from the date of initial appointment and continuous officiation, the petitioner would emerge senior. If the seniority was to be counted from the date of the teacher's acquiring the requisite qualification (D.Ed. in the present case), respondent No. 2 would be senior. 113. The learned Full Bench has observed that an employee must belong to the same stream before he can claim seniority vis-a-vis others. With an improved qualification, the person may join the regular stream. At that point of confluence with the regular stream, those who have already been in the stream "can claim seniority 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, h....