Ramchandra S/O Pandurang Dalal vs Municipal Council And Ors.
2006 Latest Caselaw 678 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard. The petitioner in the present writ petition seeks to quash the orders dated 6th September and 27th September of 2003 issued by the respondents No. 1 and 3 respectively and further to declare the petitioner to be senior to respondent No. 2 and consequently for directions to the respondents 1 and 3 to prepare the seniority list.

2. Undisputed facts are that the petitioner and the respondent No. 2 are employed as the assistant teachers in the school run by the respondent No. 1 under the name and style Municipal High School, Pavni. The petitioner had been in the employment since 1975, whereas the respondent No. 2 was appointed on 27-6-1983. The appointment of the respondent No. 2 was as a trained teacher. The appointment of the petitioner since 1975 was in the capacity as untrained teacher. However, the petitioner acquired training qualification, i.e. B.Ed. in the year 1983. It is also not in dispute that the petitioner had appeared for the B.Ed. Examination held for the year 1982-83, the general results of such examination were declared on 25-5-1983 but the result of the petitioner was made known on 11-7-1983. In the background of these facts, the dispute between petitioner and respondent No. 2 relates to the issue of seniority, in the sense that it is the case of the petitioner that the general results of the examination for B.Ed. held for the year 1982-83 were declared on 25-5-1983 and therefore the petitioner is senior to the respondent No. 2 as the latter was appointed on 27-6-1983, i.e. after the date of declaration of general result of the said B.Ed. Examination. It is also not in dispute that the petitioner was already in the employment of the respondent No. 1 prior to the appointment of the respondent No. 2. On the other hand, it is the contention of the respondent No. 2 that though the general results of B.Ed. Examination held for the year 1982-83 were declared on 25-5-1983, the result in respect of petitioner's performance was declared on 11-7-1983 much after the appointment was declared on 11-7-1983 much after the appointment of the respondent No. 2 as a trained teacher and that therefore the respondent No. 2 is senior to the petitioner.

3. In the year 1998, the respondent No. 1 published the seniority list of its institution wherein the petitioner was shown to be senior to the respondent No. 2 and consequently the same was objected to by the respondent No. 2 by filing the revision application before the Regional Director of Municipal Administration, Nagpur. It is also to be noted that based on the said seniority list, declared in the year 1998, the petitioner was promoted to the post of Supervisor with effect from 1-9-2001. The same was also challenged by the respondent No. 2 by the said revision application. The Regional Director of Municipal Administration vide its order dated 22-4-2003 set aside the seniority list fixed by the respondent No. 1 and directed preparation of fresh seniority list in accordance with the provisions of law. The respondent No. 3 by its order dated 6-9-2003 thereupon prepared a new seniority list wherein the petitioner was shown junior to the respondent No. 2, on the basis of which the respondent No. 1 by its order dated 27-9-2003 reverted the petitioner from the post of assistant teacher, and hence the present petition.

4. While assailing the impugned orders, the learned Advocate appearing for the petitioner, drawing our attention to Schedule F of Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977, submitted that the seniority of the petitioner as the trained teacher in category C has to be determined from the date of acquisition of trained qualification, and in the case of the petitioner consequent to the declaration of general results of B.Ed. Examination which were held sometime in March, 1983, the petitioner should be deemed to have acquired such training qualification with effect from 25-5-1983 the date on which the general results were declared. It is the contention that mere communication of the marks obtained by the petitioner under the mark list dated 11-7-1983 will not amount to declaration of the petitioner's result on 11-7-1983. According to the learned advocate, it is the date of declaration of general result which is to be considered as the date of acquisition of qualification obtained by the candidate who had appeared for such examination in respect of which the results have been declared. Reliance is sought to be placed in the decision of the learned Single Judge of Allahabad High Court in Sukram Pal Singh Saharawat v. U.P. Secondary Education Services Commission, Alenganj and Ors. reported in 1993 Lab.I.C. 555 and of the Apex Court in Mohan Lal and Ors. v. State of 11. P. through its Secretary, Excise and Taxation Department . Attention is also drawn to the order dated 25-10-2005 passed in Misc. Civil Appln. No. 759 of 2004 in W.P. No. 2697 of 2003 by this Court, while contending that by the said order this Court has already accepted the contention of the petitioner that he had acquired his B.Ed. qualification on 25-5-1983. The learned advocate for the respondents, on the other hand, while supporting the impugned orders on the ground that the same have been passed in accordance with the provisions of law, submitted that the date of acquisition of the educational qualification could always be the date on which the results of the examination are declared. In cases where the results of the candidates appearing for the same examination are declared on different dates, the acquisition of degree would depend on the date of declaration of results of the respective candidates. Reliance is also sought to be placed in the decision of Apex Court in the case of Charles K. Skaria and Ors. v. Dr. C. Mathew and Ors. .

5. In response to the contentions sought to be raised on behalf of the respondents, the learned advocate appearing for the petitioner has submitted that merely because of technical reason, the result of the petitioner was declared as late as on 11-7-1983, for no fault on the part of the petitioner, it cannot result in denial of seniority to the petitioner, once the general results of such examination were undisputedly declared on 25-5-1983.

6. The factual matrix being not in dispute, the only point to be decided in the matter is whether the general declaration of the results on 25-5-1983 will inure to the benefit of the petitioner irrespective of the fact that petitioner's result were made known on 11-7-1983. In case the answer is found to be affirmative, the impugned orders will have to be set aside. However, in case of negative answer to the question, no interference will be required to the impugned orders.

7. The learned Single Judge of Allahabad High Court in Sukram Pal Singh 's case, while dealing with the arguments as regards the date of acquisition of educational qualification, in the facts of that case wherein the result of the candidate who had appeared for the examination and had answered the last paper thereof on 17-5-1989, was declared on 3-10-1989. it was held that the candidate should be deemed to have possessed the requisite qualification on 30-6-1989 the date on which the vacancy had actually occurred. The ruling in that regard is to be found in para 20 of the judgment in Sukram's case. Perusal of the entire judgment, however, does not disclose reference to any statutory provision or any provision of either a Code dealing with the educational matters or rules of any University having been referred to or considered before arriving at the conclusion that has been arrived at in the said decision.

8. In Charles K. Skaria's case, the Apex Court while dealing with the issue as to whether the candidate who had acquired Diploma Certificate should be deemed to have acquired the same only after the last date for application for the post graduate degree or not, ruled thus:

Only those who, at least by the final date for making applications for admissions possess the diploma. Acquisition of a diploma later may qualify him later, not this year. Otherwise, the dateline makes no sense. So the short question is when can a candidate claim to have got a diploma? When he has done all that he has to do and the result of it is officially made known by the concerned authority.An examinee for a degree or diploma must complete his examination written, oral or practical - before he can tell the selection committee or the Court that he has done his part. Even this is not enough. If all goes well after that, he cannot be credited with the title to the degree if the results are announced only after the last date for applications but before selection. The second condition precedent must also be fulfilled viz., the official communication of the result before the selection and its being brought to the ken of the committee in an authentic manner. May be, the examination is cancelled or the marks of the candidates are withheld. He acquires the degree or diploma only when the results are officially made known. Until then his qualification is inchoate.But once these event happen his qualification can be taken into account in evaluation of equal opportunity provided the selection committee has the result before it at the time of- not after- the selection is over.

(emphasis supplied)

The above ruling clearly lays down the law that acquisition of a degree or diploma by examinee would be on the date the results of the examination are declared. But the point then arises, what would be the date of declaration of result when the result of different candidates for the same examination is made known to such candidates on different dates. In this regard the specific ruling by the Apex Court in the above decision to the effect that "He acquires the degree or diploma only when the results are officially made known." is a pointer to the answer to the said question. The expression 'officially made known' obviously refers to the result of the concerned examinee. Merely because the results of most of the candidates are declared on a particular date, the same cannot enure to the benefit of other examinees whose results are withheld. They could claim to have acquired degree or diploma for which they are declared as having passed in the examination only after their results are officially made known to them. It is true that many a times for sheer mistake on the part examination body, the results are withheld, for no fault that can be attached to the examinees. However, even in such a situation, the examinees cannot claim to have acquired the degree or diploma merely because they had appeared for the examination and the results of other candidates are declared. The right to acquire qualification can be said to have matured in examinee only upon declaration of the performance of such examinee in the examination and such declaration is only by way of declaration of the results of such examinee. Being so, till and until the result of the examinee is declared he cannot claim to have acquired qualification in relation to the examination he had appeared.

9. As regards the decision of the Apex Court in Mohanlal's case (supra) is concerned, the same is of no help in the case in hand. That was a ruling given based on the provisions of law comprised under Rule 11 of the (Seniority) Service Rules read with Rule 4 of Examination Rules for Excise and Taxation Inspectors in Himachal Pradesh Excise and Taxation Department (Inspectorate Staff, Class III) Service and does not deal with the general rules regarding the date of acquisition of qualification by an examinee.

10. The law on the point being as stated above and as rightly submitted by the learned advocates for the respondents, no fault can be found with the findings arrived at by the respondents on the issue of seniority with reference to the petitioner and the respondent No. 2. Undisputedly on the date of appointment, i.e. on 27-6-1983, the respondent No. 2 was a trained qualified teacher and the required training qualification was obtained by the petitioner only on 11-7-1983. Being so, the petitioner cannot claim to be senior to the respondent No. 2.

11. With utmost respect, we are unable to persuade ourselves to agree with the view taken by the Allahabad High Court in Sulcram Pal Singh's case.

12. As regards the order dated 25-10-2005 in Misc Civil Appln. No. 759 of 2004, it is true that there is a passing reference to the fact of acquisition of B.Ed. Degree by the petitioner while disposing of the said application, however that does not disclose any adjudication of the issue as to the date of acquisition of the degree of B.Ed. by the petitioner. Obviously, that was an order in Misc. Civil Application and it could not be said to have decided the substantial issue as to the date on which the petitioner might have acquired B.Ed. Degree. That is essentially a substantive issue which is raised in the petition. Being so, passing reference in the order about acquisition of B.Ed. qualification cannot be a ground to contend that this Court has accepted petitioner's claim that the petitioner had passed B.Ed. Examination on 25-5-1983.

13. In the result, the petition fails and is hereby dismissed. Rule is discharged. There shall be no order as to costs.