JUDGMENT B.P. Dharmadhikari, J.
1. The petitioner in this petition is a Retired Teacher of a primary school, who was promoted as Headmistress and whose promotion has been set aside on 15-3-1994 by the respondent No. 1 School Tribunal in Appeal filed under section 9 of the Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 (hereinafter referred to as "the Act" for short), by the present respondent No. 2. The respondent No. 3 is the Management, while the respondent No. 4 is the Education Officer (Primary). The petitioner has retired on 31-3-1996 and till then she worked as Headmistress, in view of the interim orders passed by this Court. After her retirement the present intervener No. 1 Smt. Sheela Deshpande, has worked as Headmistress upto 30-6-2003 and thereafter the present respondent No. 2 was promoted as Headmaster by the Management.
2. The question required to be decided in this petition can be briefly stated as under:
How the Seniority of a teacher for his promotion to the post of Headmaster of primary school is to be considered in view of the provisions of Rule 3 of the M.E.P.S. Rules, 1981 and clause 1 of Schedule-F thereof?
The School Tribunal has accepted the case of the respondent No. 2 that a trained teacher who is seniormost, considering the length of service part after taking is to be promoted as Headmaster/Headmistress. In other words as per School Tribunal one who acquires training qualification earlier will rank senior.
3. The brief facts in which the said question arise can be stated thus:
The petitioner in Writ Petition has stated that she has joined the service as primary teacher on 19-7-1971. However in her reply before the School Tribunal, the petitioner as also the Management has also stated that she was appointed on 12-9-1972. She obtained her professional qualification of D.Ed., on 5-1-1982. The present respondent No. 2 who was appellant before the School Tribunal came to be appointed as teacher in primary school w.e.f. 1-8-1978. He was possessing D.Ed, qualification at the time of his recruitment itself. The vacancy against which the promotion has been effected, arose in July, 1989 and by order dated 5-7-1989, the respondent No. 3 Management promoted the petitioner as Headmistress. The respondent No. 2 treated this as supercession of his claim and approached the respondent No. 1 School Tribunal in Appeal under section 9 of the Act, on or about 4-8-1992. As already stated above the School Tribunal has on 15-3-1994, accepted the contention of the respondent No. 2 and as the respondent No. 2 was possession training qualification from 1-8-1978 itself, while the present petitioner acquired it after him i.e. on 1-5-1982, the respondent No. 2 has been found to be seniormost trained teacher by the School Tribunal and accordingly the respondent No. 3 Management was directed to promote the respondent No. 2 in place of the petitioner.
4. I have heard Shri Somalwar, Advocate for petitioner, Shri V.A. Dhabe, for respondent No. 2, Shri A. B. Choudhary, Advocate for respondent No. 3 and Shri P. A. Deshmukh, Advocate for interveners.
5. Advocate Somalwar, has relied upon the provisions of Clause 1 of Schedule-F and also provisions of Rule 3(1)(a) of the Rules, to contend that the cumulative effect of this provision is to find out who is seniormost teacher qualified to be promoted as headmaster. He contents that the qualification required as a professional qualification with 5 years experience thereafter. He contends that in this case the vacancy has arisen in July, 1989 and as such in July, 1989 the present petitioner as also the respondent No. 2 were only qualified for consideration. He further states that as the petitioner was found to be the senior-most she has been promoted. He contends that the length of service put in by a teacher after acquiring the training qualification is not relevant for deciding the seniority. He has also relied upon the judgment reported at 2001(2) Mh,L.J. 896, Shripad Shikshan Mandal v. Rajaram Bhandari Chavan and Ors. in support of his contention.
6. Advocate Dhabe, appearing for respondent No. 2, on the other hand has invited attention to the provisions of Rule 3(1)(a) of the Rules, to contend that the seniormost trained teacher alone qualified for promotion. He has also invited attention to the definition clause of the Rules, particularly Rule 2(1)(k), to point out that importance assigned to phrase "trained teacher". He states that a person who acquires a professional qualification can alone be recruited as trained teacher. In this light he invites attention of the Court to the provisions of Schedule-B and points out that Part-I of the said Schedule which prescribes qualification for primary teacher expressly mentions that a candidate who possess SSC qualification and the professional qualification like Diploma in Education can alone be appointed to the post of primary school teacher. He contends that the petitioner was not in possession of this qualification at the time when she entered service and therefore, she was not appointed to that post of primary school teacher as provided by Schedule-B. He further submits that after acquiring qualification on 5-1-1982 alone the petitioner has become a teacher appointed against the post of primary school teacher and therefore, her seniority is to be counted from 5-1-1982 only. He contends that the provisions of Schedule-F in relation to fixation of seniority to teachers of primary school are required to be read in this light and only those primary teachers who are appointed against the post are to be included in it, depending upon the date of their joining of service and continuous officiation.
7. Advocate Choudhary, appearing for respondent No. 3, has contended that the requirement of Rule 3, is to promote a seniormost trained teacher and according to him a teacher who has put in maximum length of service as trained teacher alone qualifies for such promotion. He contends that for the purpose of said Rule this service has to be counted only after acquiring qualification.
8. Advocate Deshmukh, appearing for interveners has supported the case of the petitioner and he invites attention to explanation appended to Rule 3, wherein the word used as seniormost qualified teacher having satisfactory record of service. He contends that seniormost qualified teacher having satisfactory record of service is therefore eligible for promotion and petitioner is one such seniormost qualified teacher. He further contends that after petitioner, Smt. Deshpande was the seniormost qualified teacher, and as such the Management has rightly promoted Smt. Deshpande.
9. In this background when judgment reported at 2001(2) Mh.LJ, 896 (supra), on which petitioner has placed reliance is looked into, this Court has considered there the provisions of Rule 12, which prescribes procedure for maintaining seniority. The provisions of Rule 3 and also Schedule-F are referred to and thereafter the arguments that the date of acquiring qualification is material for deciding the seniority amongst teachers in primary school has been rejected. The findings recorded by this Court are reproduced below:
...In my opinion, the submissions made by the learned Counsel is not well founded. Perusal of the provision of Schedule-'F' itself shows that while framing the Rules and Rule Making Authority has alive to the possibility of persons not qualified being appointed as teachers in the School. Perusal of Rule '2' of Schedule-'F' which lays down guidelines for seniority of teachers in secondary school brings out this position more clearly. A comparison of the provisions of Rules I and 2 in Schedule-'F' clearly bring out the situation that insofar as for working out of seniority of teachers working in secondary school, acquisition of training qualification has been given importance whereas while working out seniority of teachers in primary schools acquiring of training qualification has not been considered. The only requirement of Rule is that at the time of appointment of Headmaster or promotion of the Headmaster, the teacher must be a trained teacher. It is further to be seen here that the Act and the Rule framed thereunder have come into force in 1981. The petitioner No. 2 was appointed in 1966 i.e. before the commencement of the Act and the Rules. Therefore, so far as qualification for appointment of teachers before commencement of the Act is concerned, the Rules in existence of that date would be relevant. Schedule-'B' of the Rules deals with the qualification of primary teachers. It lays down that for being eligible for appointment of a teacher in primary school, the person concerned must have obtained Diploma in Education. Perusal of Schedule- 'B' further shows that persons who were appointed as primary teachers before coming into force of these Rules in accordance with the Rules then in force and who were thereafter discharged for want of vacancies shall be eligible for reappointrnent. It is thus clear that insofar as the question of working out seniority of teachers in primary school is concerned, the date of acquisition of training qualification is not relevant. Promotion to the post of Head Master is on the basis of seniority and thus the petitioner No. 2 is senior to respondent No. 1 and as on the date of his appointment he was also a trained teacher. Petitioner No. 2 would be entitled to the promotion. It is thus clear that the order of the School Tribunal setting aside promotion of petitioner No. 2 to the post of Head Master and directing promotion of respondent No. 1 is clearly illegal and therefore, liable to be set aside.
10. Thus, this judgment clearly establishes the position that a seniormost teacher working in primary school who is qualified for promotion as headmaster is to be considered and promoted. Provisions of Rule 6 of the Rules, read with ScheduJe-B, also leave no manner of doubt that a untrained teacher can also be continued in service as primary school teacher, particularly Clause 4 of the said clause points out that the primary school teacher recruited prior to 30-6-1972 with academic qualification as per Rules then in force are exempted from obtaining SSC and B.Ed, qualification. Though there is dispute about the date on which the petitioner has been appointed, still later part of this clause 4, comes to the help of petitioner. The later part protected the petitioner inasmuch as it stipulated that those teachers who are recruited after 30-6-1972 and do not possess SSC and teaching qualification can acquire the same before June, 1985. It is further provided that failure to acquire this qualification before June, 1985, shall make them liable from termination. Even if it is presumed that the petitioner has joined the services on 1-1-1972 in view of this clause, she was entitled to obtain D.Ed, qualification before 30-6-1985. In the facts of the present case, she had obtained the said qualification much before June, 1985. When in these facts and circumstances clause I of Schedule-F, is looked into, it is clear that the case of the petitioner as also the respondent No. 2 is required to be considered as in June, 1989. In July, 1989, petitioner as also the respondent No. 2 were both qualified for promotion. However, the petitioner was seniormost primary school teacher because her date of joining was prior to the date of joining of respondent No. 2.
11. In such circumstances, I find that the view taken by the School Tribunal is contrary to the provisions of the Rules, and unsustainable. The judgment of the School Tribunal is therefore quashed and set aside. Rule is made absolute in the aforesaid terms, with no orders as to costs.