Bombay High Court

Ashok Tukaram More vs Secretary Pandit Din Dayal ... on 19 July, 2017

Bench: R.V. Ghuge

                                     1

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                      WRIT PETITION NO. 6293 OF 2016

          Shri Ashok S/o. Tukarm More,
          Age. 54 years, Occ. Assistant Teacher,
          In Shri Tukaram Vidyalaya, Shingi,
          Tq. Gangapur, Dist. Aurangabad.                   ...Petitioner.

                   Versus

 1.       Secretary, Pandit Din Dayal Shiksan Sanstha,
          At Warud, Having its Registered Office at 
          Dharamveer Sambahaji Vidyalaya,
          At N-5, CIDCO,
          Tq. and Dist. Aurangabad.

 2.       Shri Narayan Jeevanrao Babhulgaonkar,
          The Head Master,
          Dharamveer Sambhaji Vidyalaya,
          At N-5, CIDCO,
          Tq. and Dist. Aurangabad.

 3.       The Education Officer,
          (Secondary),
          Zilla Parishad,
          Tq. and Dist. Aurangabad.                     ...Respondents.



              Advocate for Petitioner : Shri S.R. Kolhare.
          Advocate for Respondent No. 1 : Shri Y.V. Kadade.
         Advocate for Respondent No. 2 : Shri Y.S. Choudhari.
            AGP for Respondent No. 3 : Shri S.K. Tambe.
                   Shri V.D. Sapkal, Amicus Curiae.



                                      CORAM : RAVINDRA V. GHUGE, J.

                                      Dated    : 19th July, 2017







 ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally

by the consent of the parties.

2. The petitioner is aggrieved by the judgment dated

04/03/2016, delivered by the School Tribunal, by which, the

petitioner's Appeal No. 34/2015, alleging supercession, has

been dismissed primarily on the following grounds :

(A) The petitioner was appointed as a Trained Assistant

Teacher on 03/07/1991 for a period of one year. After

the break on account of the summer vacation, he was

again appointed for the academic year 1992-1993.

(B) Respondent No. 2, who is said to have superceeded

the petitioner for becoming the Head Master, was

appointed on 11/06/1992, though as a untrained

assistant teacher as he did not have the qualifications of a

trained teacher and he has acquired the said qualification

on 09/06/1993, i.e. five days before the petitioner was

appointed on probation.

(C) The petitioner was appointed on probation on

14/06/1993, and respondent No. 2 acquired the

qualification required for a trained teacher on

09/06/1993.

3. I have considered the strenuous submissions of the

learned advocates for the respective sides. Since I felt that this

issue requires consideration and further assistance was

required, I have called upon Shri V.D. Sapkal, learned advocate

to assist the court as an amicus curiae.

4. It is apparent that there is no dispute as regards the dates

of appointment and the acquiring of the qualifications of a

trained teacher by respondent No. 2. The petitioner had

approached the School Tribunal for challenging the promotion

of respondent No. 2 as a Head Master, by order dated

01/08/2015. He had, therefore, invoked Section 9 (1) (b) of the

Maharashtra Employees of Private School Act, 1977. It is also

not disputed that till 2013, the petitioner was shown senior to

respondent No. 2 in the seniority list, ever since, they were in

employment.

5. Issue, therefore, is as to whether the breaks in service

indicated by the Management, in so far as the petitioner is

concerned, could be termed to be artificial breaks or whether

there is any sanctity to the said breaks.

6. As rightly pointed by Shri Sapkal, the learned Full Bench

of this Court in the matter of Vaijanath Tatyarao Shinde Versus

Secretary and others [2006 (6) BCR 804], has concluded that in

order to render validity to the appointment of a primary school

teacher, a person shall posses the educational qualifications as

are prescribed for a trained teacher. Service rendered as an

untrained teacher will not be reckoned with for determining the

seniority. Paragraph Nos. 9 and 10 of the said judgment read

as under :

"9. In this view of the matter, we hold that for a valid

appointment of a primary school teacher, a person must

possess educational so also the training / teaching

qualification. No person can be legally appointed who

does not hold training qualification. Hence, service

rendered as an untrained teacher will not qualify for being

counted to determine seniority.

10. Having recorded a finding that for appointment of a

primary school teacher, the requisite eligibility criteria is

possessing educational and training/teaching

qualification, we are faced with a direct conflict in the

language used in sub-rule 3 (1)(a)(i) and 3(1)(a)(ii). Rule

3(1)(a)(i) categorically provides that for appointment to the

post of Head of a primary school having an enrolment of

students about 200 or having standards I to VII, shall be

the seniormost trained teacher who has put in not less

than 5 years service, whereas Rule 3(1)(a)(ii) lays down

that a person to be appointed as a Head of any other

primary school shall be the seniormost teacher in the

school. A plain reading of sub-rule (a)(ii) gives an

impression that not only the requirement of not less than

5 years service is dispensed with, but also it dispenses

with the requirement of training qualification. The

omission of the word "trained" occurring after the words

seniormost and before the word teacher gives rise to an

absurdity, inasmuch a for appointment of a teacher

training qualification is pre-requisite and if Rule 3(1)(a)(ii)

is literally construed, the same does not postulate that for

appointment of a Head, the teacher should be a trained

teacher. This anomaly has to be resolved by

interpretative process.

It is a settled position in law, that a statute must be

read as a whole and one provision of the Act should be

construed with reference to the other provisions in the

same Act so as to make a consistent enactment of the

whole statute. A construction which avoid inconsistency

or repugnancy either within the rule or between the rule

and other parts of the statute has to be preferred. It is

incumbent on courts to avoid a head on clash between

the provisions of the Rules. The rules need to be

harmonized in furtherance of the object of the statute.

One provision cannot be read so as to defeat those of

another. Rules are required to be read as part of an

integral whole as being interdependent. Any

interpretation which results in repugnancy or absurdity

will have to be avoided. For maintaining the unity of the

statutory scheme, it is imperative to determine the

hierarchy of the provisions so as to give effect to the

purpose sought to be achieved by the statute. With a risk

of repetition, it is reiterated that Section 5 mandates the

management to fill in the vacancy, be it permanent or

temporary, by appointing a person duly qualified to fill

such vacancy. Rule 6 lays down that minimum

qualifications for the post of teachers shall be as specified

in Scheduled B and Schedule B in turn provides for

minimum qualification for appointment to the post of

primary school teachers and further prescribes the

qualification of S.S.C. And D.Ed. or any other

qualification equivalent to the same, as laid down in

Clause 1 of Schedule B. If Rule 3(1)(a)(i) and (ii) is read in

the light of provisions of Rule 6 and Schedule B, it is

obvious that Rule 3(1)(a)(ii) only intended to relax the

requirement of an experience of not less than 5 years

service which is specifically provided for in Rule 3(1)(a)(i).

In the scheme of the Act, one cannot comprehend that the

legislature had intended to do away with the requirement

of the seniormost teacher being a trained teacher. It

could not have been the intention of the legislature while

framing Rule 3(1)(a)(ii) to deliberately omit the word

"trained". The omission of the word trained is an obvious

drafting error and if the said word is not supplemented,

the rule cannot be harmonized in tune with the scheme of

the Act and the other Rules which are referred to herein

above."

7. The learned Single Judge of this Court in the matter of

Sumangala Manoharrao Sakharkar Versus State of Maharashtra

and others [2010 (1) Mh.L.J. 63], dealt with the similar issue of

a claim made by the Management before the School Tribunal

that the service of the appellant suffered a break at the end of

the academic year. She was terminated for the whole month of

the summer vacation and after the beginning of the new

academic year, she was again appointed in service. There was

no dispute about she being qualified to be appointed as a

trained teacher.

8. Shri Sapkal, therefore, points out from paragraph Nos. 12

to 23 and 26 of the said judgment which read as under :

"12. It is not necessary to go into the question of

occasion or necessity for fixation of seniority. Rather, it

may be useful to consider the following aspects :

1) Whether discontinuation of appointment of the

petitioner at the ends of academic sessions and her

reappointment amounted to breaks which were

required to be condoned ?

2) If yes, whether the management or Education

Officer had the authority to condone such breaks ?

3) Whether such condonation could be only for the

purpose of counting service for pensionary benefits

and not for the purpose of seniority ?

13. On the first question the learned counsel for

respondent Nos. 6 and 7 submitted that since the

petitioner herself had not come up with the case that

there were no breaks and that she merely claimed that

breaks had been condoned, it may be impermissible to

find for a party a case which is not pleaded. The learned

counsel for the petitioner submitted that requirement of

pleadings would limit an argument based on facts and not

an argument about legal consequences flowing from facts

pleaded. He submitted that if a legal aspect of a matter is

missed by the parties, or even the authorities, it could

always be raised even in the course of a hearing.

14. Having considered the rival submission on this

aspect, I would hold that absence of pleadings cannot

prevent a party from pointing out the consequences

flowing from a provision of law. Therefore, the basic

question whether there was a factual bread or not would

have to be decided.

15. In (Punjab State Co-op. Agricultural Development

Bank Vs. Gurnaib Singh) 1, reported at 2003(10) S.C.C.

235, on which the learned counsel for respondent No. 6

placed reliance, the plaintiff was appointed on 2.7.1971

for a period of six months and again on 4.1.1972 till

25.51972. He was not in service from 26.5.1972 till

5.3.1973. He was again appointed on 5.3.1973 w.e.f.

6.3.1973. The question was whether the service from

2.7.1971 till 6.3.1973 with breaks could be counted

towards seniority of the plaintiff. The Supreme Court held

that since the plaintiff himself, after the break period,

subsequently made an application for appointment,

earlier service could not be counted. It may be seen that

the break was long one from 26.5.1972 to 5.3.1973 and

not on account of vacation or institution being closed.

Therefore, this judgment would not help in resolving the

case at hand.

16. The relevance of judgment of the Division Bench of

this Court in (Yeshwant Vs. Director of Educaton, Pune)2,

reported at 1987 Lab.I.C. 1611 is not clear, since in that

case the question was about transition of service

conditions of the teachers and lecturers employed under

the erstwhile Madhya Pradesh State after the State of

Bombay and later State of Maharashtra was formed.

17. The learned counsel for the petitioner placed

reliance on my order dated 25.2.2008 in Writ Petition No.

4645 of 2007, where I had held that discontinuation

during vacations do not amount to breaks. He also

pointed out that a Letters Patent Appeal by his client in

that case is admitted (since his argument to the contrary

was rejected) but submitted that till the judgment is set

aside, it would bind me, unless it is shown that even

when it was pronounced it ran counter to a view already

taken by this or a Superior Court. All the learned

counsel, however, agree that the question as to whether

such discontinuation amounts to breaks has not been, to

their knowledge, dealt with in any other pronouncement.

submitted that it would be open to them to show the view

taken was not correct and therefore, urged that the

question may be re-examined. I find that a fresh look at

the finding in Writ Petition No. 4645/2007 may be

appropriate.

18. The learned counsel for respondents No. 6 and 7

submitted that for fictionally holding that a break did not

exist, it would be necessary to have a rule. They

submitted that Rule 13 of the Maharashtra Employees of

Private Schools (Conditions of Service) Rules only provides

for payment of vacation pay to a teacher who was serving

before and after a vacation, and does not add that such

teacher be fictionally deemed to have continued.

Therefore, such a fiction could not be created. The

learned counsel for the petitioner opposed this.

19. It may be useful to reproduce Rule 13 of the

Maharashtra Employees of Private Schools (Conditions of

Service) Rules, 1981 for ready reference in order to

consider this argument :

13. Vacation and Vacation Pay -

(1) Subject to the provisions of this rule, all the

employees on the teaching staff including Head

masters, Laboratory Assistants and Laboratory

Attendants in a school shall be entitled to vacations

as follows namely :

(i) a short vacation which may either

commence in a month of October or

November every year generally to cover Diwali

Festival;

(ii) a Summer vacation which may ordinarily

commence in the month of May every year.

The dates of commencement and the periods

of vacations shall be notified by the

Educational Inspector, or as the case may be,

the Education Officer in Zilla Parishad.

(2) Non-permanent employee shall be entitled to

the salary for the period of vacation if he had served

for a major part of respective term and the

temporary vacancy such as vacancy on account of

leave, deputation or post created for a specific

period, in which he was originally appointed

continues to exist beyond the period of vacation and

that the employee continues to be in service after

the vacation.

(3) If the Management terminates the services of

a non-permanent employee son before the

commencement of Summer vacation, such non-

permanent employee shall also be entitled, in

addition to vacation salary, to pay and allowances

for the gap between the date of termination of his

service and the date of commencement of the

vacation if the Education Officer is satisfied that the

termination of his service was on the ground other

that the possibility of reduction in establishment.

(4) If a permanent employee after due notice,

resigns his post in the school on the last working

day of the term, he shall be entitled to the vacation

salary.

(5) If a permanent employee after due notice,

resigns his post in the school in the middle of the

term and if the school is required to appoint a

substitute who would otherwise be entitled to

vacation salary under sub-rule (2), the permanent

employee who has resigned shall not be entitled to

the vacation salary for the same period.

(6) Untrained teachers appointed in the

Secondary Schools or Junior Colleges of Education

during the period from the 16th July, 1969 to 6th

February 1974 (both days inclusive and allowed to

get trained at their own cost (by sanctioning leave

for the entire period of training) shall be entitled to

the vacation salary during the vacation immediately

falling after their resuming duties on completion of

training.

20. A break is discontinuation in service. Such a break

may be physical break where the employee concerned

does not perform duties on account of several reasons.

But an employee not performing duties on account of

institution being closed for vacation cannot obviously be

an incidence of break. Here, it is not that the employee is

prevented from discharging his duties by any order,

peculiar to him, or by any act personally on his part. He

does not perform his duties simply because the institution

is closed for vacation. Thus, vacation is not a break.

Now, for this period if an employee is also directed to be

paid salary under the Rules, it would be obviously so

because the administration considers that, but for the

vacation the employee would have continued to be in

employment and therefore, is held entitled to the salary

for vacation period.

21. Rule 13 covers situation of employees whose

employment got terminated at the commencement of

vacation and began again at the completion of vacation. If

an employee is held entitled to salary it may not be

permissible to hold that though he drew salary he was not

in employment, because ordinarily the salary comes with

employment. Therefore, vacation cannot be treated as a

break in service for two reasons : first, but for the school

being closed for vacations, the employee would have

continued, and secondly, as the employee is held entitled

under Rule 13 to the salary for the said period and had

actually drawn that salary. Therefore, termination at the

commencement of vacation and reappointment on

reopening of school could not at all be termed as a break.

Therefore, even upon re-examination of the reasons given

while deciding Writ Petition No. 4645 of 2007, I am not

persuaded to take a different view.

22. The contention of the learned counsel for

respondents No. 6 and 7 that, a fiction could not be

created by a judgment, may not be correct. That apart,

the judgment in Writ Petition No. 4645/2007 does not

create a fiction. It merely restates the consequences of

Rule 13, which recognizes the right of the employee, who

had served the school till it closed for vacation and also

recommenced service from reopening of the school, to

receive salary for the period of vacation. He draws salary

because fictionally administration and the Government

treat such a teacher to be in employment. Payment of

salary for vacation period itself creates a fictional

employment. Therefore, it has to be held that there were

no breaks in the employment of the petitioner from the

date she joined services of respondents No. 4 and 5 on

5-1-1981, which were required to be condoned.

23. Consequently, there would be strictly no occasion

for examining whether the Education Officer or the

Management had the Authority to condone such breaks

and whether such breaks could be condoned only for

pensionary benefits and not for the purpose of seniority.

All the same, it may be useful to consider those questions

also. In (D.P. Gupta Vs. Parsuram Tiwari)3, reported at

2004(13) S.C.C. 746 on which reliance was placed by the

learned Counsel for the respondent, the Supreme Court

was considering the question of condonation of break in

service on account of the concerned teacher taking

extraordinary leave without pay for surreptitiously taking

up a job of Land Valuation Officer, somewhere else. The

Supreme Court held that the High Court had correctly

taken a view that the teacher concerned who had taken

up job elsewhere has lost lien of his service with

University and thus, there was a break in his service,

which could not have been condoned by the Vice

Chancellor. The Court held that for the purpose of his

seniority and eligibility for promotion, the service would

be counted only from the date of rejoining. The learned

counsel for the respondent submitted that case at hand is

similar and just as Vice Chancellor in that case had no

authority, the Education Officer in our case has no

authority to condone break. The decision does not help

since it is on facts peculiar to the case where the teacher

had lost lien by surreptitiously taking up job elsewhere.

........................

26. I have carefully considered these contentions. It

has to be noted that the petitioner is not serving a

government school but a private institution. The

Government comes into picture only because it pays

salary as well as pension to the teachers. Therefore,

where financial implications are involved it would be

proper for the Government to control such action and to

provide that the Deputy Director of Education alone

would be entitled to condone the breaks for the purpose of

pension. However, such may not be the case in respect of

condoning the breaks for the purpose of seniority. This

does not have any financial implications and it is only a

matter between different teachers who are serving under

the same management. As an employer, unless prevented

from deciding the question of seniority of its teachers, the

management would be entitled to do so. Rule 12 of the

MEPS Rules, provides that the objections to seniority have

to be considered by the management in the first place. It

would be for the management to decide whether the

breaks for the purpose of computation of seniority could

be condoned by it. Sub-rule (3) of Rule 12 provides that

the disputes in the matter of inter se seniority shall be

referred to the Education Officer for his decision.

Therefore, his concurrence in the condonation of breaks

by the management should be conclusive of the matter.

Thus the Education Officer gets the authority to approve

condonation of break for seniority."

9. The learned Division Bench of this Court (to which I am a

party), in the matter of Rajendraprasad Vidyaprasad Tiwari

dealt with a Versus Secretary & others [2014 (2) B.C.R. 204],

similar case in Letters Patent Appeal. The learned Single Judge

had held that as a candidate has acquired a trained

qualification and was in regular employment, he was shown

senior to the appellant. After considering the qualifications of

both the candidates and upon considering the MEPS Rules,

1981, it was observed in paragraph Nos. 14 to 17 as under :

"14. That, so far as respondent No. 4 is concerned, there

is no dispute that he has been appointed on 16.6.1986

and on the date of his appointment, he was holding

training qualification. The Tribunal as well as the School

Tribunal proceeded to hold that the appellant became

trained teacher from 16.6.1986 when his date of

appointment is shown as 15.6.1986 and that respondent

No.4 was appointed on 10.6.1986 with effect from

16.6.1986 as trained teacher. It is recorded by the

learned Single Judge that considering the fact that

respondent No.4 is senior in age, he is rightly considered

to be senior than the appellant.

15. It is a matter of record that the appellant was

appointed as an Assistant teacher from 15.6.1985 as

untrained teacher. After acquisition of training

qualification i.e. since 21.5.1986, he became a trained

teacher. As has been recorded above, the appellant has

been held eligible to received pay scale prescribed for

trained teacher since 1.6.1986 i.e. prior to appointment of

respondent No. 4.

16. In this context, guidelines, prescribed under the

Maharashtra Employees of Private Schools (Conditions of

Service) Rules, 1981 in respect of fixation of seniority of

teachers in the Schools, are required to be taken into

consideration. A graduate or post graduate degree holder

having training qualification is included in category "C",

whereas, untrained Graduate or holder of equivalent

qualification is included in category "F". Note 4 of

Schedule "F" provides that the categories mentioned in

the Schedule represent the ladder of seniority and have

been mentioned in descending order. Thus, a teacher

included in category "C" shall obviously be senior to a

teacher classified in category "F". The appellant, at the

time of his appointment, since holding training

qualification, was liable to be included in category "F" and

on acquisition of the training qualification, that is on

21.5.1986, he moves upwards in category "C". In the

instant matter, as date of appointment of respondent No.

4 is 16.6.1986, much later than tat of acquisition of

training qualification and inclusion of appellant in

category "C", respondent No. 4 could not have been

considered as senior to the appellant.

17. It was contended before the Tribunal as well as

before the learned Single Judge that the appellant was

issued order of appointment appointing him as trained

teacher since 15.6.1986 and as a result of issuance of

order appointing him as trained teacher on 15.6.1986, his

seniority has to be reckoned from the date of his

appointment. The submission made on behalf of

respondent No. 4 is devoid of substance for the reason

that on perusal of the Service Book of the appellant, it

transpires that service rendered by the appellant is

continuous without there being any break in the service.

The Service Book of the appellant, which has been verified

by the Competent Authority i.e. Accounts Officer of the

Education Department, records that the appellant has

acquired training qualification on 21.5.1986 and his pay

has been fixed as trained teacher in the pay scale of Rs.

1400 to 2600/- on 1.6.1986. Thus, the contention of

respondent No. 4 that there is order appointing

respondent No. 4 a trained teacher since 15.6.1986 and

that his seniority shall be reckoned from that date, is

devoid of substance. The services rendered by the

appellant are continuous one and theory of issuance of

fresh appointment order appears to have been evolved to

defeat claim of the appellant."

10. Thereafter, the controversy was put to rest by the

observations in paragraph Nos. 19 to 21, in the said judgment

by placing reliance upon the Full Bench judgment in the matter

of Vaijnath Tatyarao Shinde (Supra). Paragraph Nos. 19 to 21

read as under :

"19. The learned single Judge overlooked the fact that

respondent No. 4 has entered service only on 16.6.1986

and his acquisition of training qualification along with

appellant on 21.5.1986 is of no consequence. The

question of reckoning seniority of an employee arises only

after issuance of order of appointment in favour of such

employee. The seniority of an employee has to be

reckoned with reference to his date of appointment and

only the factum of date of acquisition of training

qualification, overlooking the date of appointment, cannot

be taken into consideration. In our considered view,

interpretation put by the learned Single Judge in respect

of ratio laid down by the Full Bench, in the judgment

cited supra, is erroneous. The issue referred for

consideration before the Full Bench, was thus :

For promotion to the post of Head Master of a

Primary School whether seniority of the teacher is to be

counted from the date of initial appointment, or from the

date of acquisition of educational and training

qualification ?

20. While answering the issue, it has been observed by

the Full Bench, in paragraph No. 9, thus :

"9. In this view of the matter, we hold that

for a valid appointment of a primary school teacher,

a person must possess educational so also the

training/teaching qualification. No person can be

legally appointed who does not hold training

qualification. Hence, service rendered as an

untrained teacher will not qualify for being counted

to determine seniority."

The Full Bench proceeded to conclude that for

appointment to the post of Head Master (by promotion) of

a primary school, the seniority of the teacher is to be

counted from the date he acquires educational and

training qualifications as prescribed under Schedule-B of

the M.E.P.S. Rules. The seniority cannot be counted from

the date of initial appointment and continuous officiation

devoid of requisite qualification as prescribed in Schedule-

B.

21. Applying the ratio laid down by the Full Bench to

the case in hand, services rendered by the appellant from

10.6.1985 as untrained teacher till the date of acquisition

of training qualification by him i.e. 21.5.1986, cannot be

reckoned. However, his services are to be reckoned from

the date of acquisition of training qualification i.e.

21.5.1986 onwards. Considering the fact that appellant is

deemed to be trained teacher from the date of acquisition

of training qualification by him as well as by extending

the pay scale prescribed for trained teacher in the pay

scale of Rs. 1400 to 2600/- from 1.6.1986, he ought to be

considered as senior to respondent No. 4 since

respondent No. 4 has entered services only on 16.6.1986.

The learned Single Judge has committed serious error in

considering the period of acquisition of training Single

Judge has committed serous error in considering the

period of acquisition of training qualification by him i.e.

respondent No. 4 prior to the date of his appointment

(respondent No. 4s appointment). In the nutshell,

although both - appellant and respondent No. 4 have

acquired training qualification on 21.5.1986, having

regard to the date of entry of respondent No. 4 in service

i.e. 16.6.1986, the appellant ought to be considered as

senior to respondent No. 4."

11. The School Tribunal has dismissed the appeal of the

petitioner by concluding that though undisputedly he was

appointed on 03/07/1991, he was not in regular employment.

He was appointed for one academic year and was given a break

after the end of the academic session 1991-1992, in May, 1992.

He was re-inducted in service in June, 1992 for the academic

year 1992-1993. He was again given a break for the summer of

1993 in the month of May and was issued with an appointment

order indicating that he was on probation, on 14/06/1993.

Respondent No. 2, for reasons best known to the Management,

was given an order of appointment on probation on 11/06/1992

and he acquired trained teacher's qualification so as to be

eligible to be confirmed in employment on 09/06/1993.

Apparently, considering the settled law in the judgments

referred to herein above, the employment of respondent No. 2 till

09/06/1993, is inconsequential and insignificant. So also, it is

not the case of the Management that the appointment of the

petitioner was illegally made or that it suffered from procedural

defects. His appointment is not under challenge.

12. The issue is, as to whether the breaks shown in the

service of the petitioner would have any sanctity. Considering

the law laid down in Sumangala's Case (Supra), and by the

learned Full Bench of this Court in Rajendra Prasad's case

(Supra), such breaks are only to be considered as being artificial

breaks and meant only to disrupt the service of an employee

who has been legally appointed. In cantena of judgments, this

Court has concluded that an employee cannot be appointed for

an academic year if he is otherwise eligible to be appointed.

13. Contention of the Management is that there was no post

on which the petitioner could have been appointed. It is,

however, conceded by the Management that in the year 1991,

the school was not on full grant-in aid basis and as such it

appears that there was no issue about the staffing pattern. It

also does not emerge from the impugned judgment that the

issue of staffing pattern was ever raised, keeping in view that

the said school was not on 100 % grant-in-aid basis. Even

otherwise, when it came to deciding the seniority between the

petitioner and respondent No. 2, the petitioner was shown to be

senior all throughout until 2013 when the Management

surreptitiously changed the seniority, as if it was on account of

the training qualification acquired by respondent No. 2, twenty

years ago on 09/06/1993. This was apparently done to pave

the may for appointment of respondent No. 2 as the Head

Master.

14. The learned Full Bench in Vaijnath Tatyarao Shinde

(Supra), considering similar peculiar facts, placed reliance upon

the observations of Denning L.J., in the case of Seaford Court

It would be Estates Ltd. Versus Asher [1994 (2) All E.R. 155].

apposite to reproduce those observations of Lord Denning, in so

far as the roll of a judge in seeing a defect, as under :

"When a defect appears a Judge cannot simply fold

his hands and blame the draftsman. He must set to work

on the constructive task of finding the intention of

Parliament and then he must supplement the written

words so as to give force and life to the intention of the

Legislature. A Judge should ask himself the question

how, if the makers of the Act had themselves come across

this ruck in the texture of it, they would have

straightened it out ? He must then do as they would have

done. A judge must not alter the material of which the

Act is woven, but he can and should iron cut the creases.

........

We sit here to find out the intention of Parliament

and of ministers and carry it out, and we do this better by

filling in the gaps and making sense of the enactment

than by opening it up to destructive analysis."

15. Considering the factual matrix and the law, I have no

hesitation in concluding that the seniority of the petitioner

would be with effect from the date of his joining as a trained

teacher. Consequentially, he would be senior to Respondent No.

2 and legitimately would be entitled to the post of Head Master.

16. Considering the above, though the petitioner has lost

valuable two years during which he could have performed his

duty as a Head Master from 01/08/2015, I find that the

injustice caused to the petitioner could be largely done away

with. In the result, this petition is allowed. The impugned

judgment dated 04/03/2016, passed by the School Tribunal is

quashed and set aside and Appeal No. 34/2015 is allowed.