Bombay High Court
Mrs. Gaur Pratibha (Ms. Thakur ... vs The State Of Maharashtra Through ... on 9 April, 2019
Bench: B.R. Gavai
Sneha Chavan
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 14242 OF 2018
Mrs. Gaur Pratibha (Ms. Thakur Pratima
Jagatsingh ) and Ors. ... Petitioners
V/s.
The State of Maharashtra through
the Secretary and Ors. ... Respondents
WITH
WRIT PETITION NO. 11022 OF 2018
Shri. Sumedha Sunil Abhyankar and Ors. ... Petitioners
V/s.
The President/Secretary,
The Education Society Ambarnath and Ors. ... Respondents
WITH
WRIT PETITION NO. 11695 OF 2018
Shri. Kishor Gopal Jagtap ... Petitioners
V/s.
The State of Maharashtra through the
Secretary Education Department and Ors. ... Respondents
WITH
WRIT PETITION NO. 3970 OF 2018
Shri. Ramesh Chandrasing Patil ... Petitioners
V/s.
The State of Maharashtra through
the Secretary and Ors. ... Respondents
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WITH
WRIT PETITION NO. 14256 OF 2018
Mrs. Pramodini Bapu Sawant ... Petitioner
V/s.
The State of Maharashtra through
the Dept of School Education and Ors. ... Respondents
WITH
WRIT PETITION (ST) NO. 32036 OF 2018
B.Ed. Niyukta Madhyamik Shikshak Sangh
Through its Chairman and Anr. ... Petitioners
V/s.
The State of Maharashtra through
the Secretary and Ors. ... Respondents
WITH
WRIT PETITION (ST) NO. 33510 OF 2018
Mr. Sonawane Kondaji Radhaji and Ors. ... Petitioners
V/s.
The State of Maharashtra through the
Secretary Education Department and Ors. ... Respondents
WITH
CONTEMPT PETITION (ST) NO. 8326 OF 2018
Mrs. Usha L. Naag and Anr. ... Petitioners
V/s.
The State of Maharashtra through
its Secretary and Ors. ... Respondents
------
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Mr. N.V Bandivadekar with Mr. S.A. Mane for the Petitioner in
WP/14242/2018, WP/3970/2018, WP/14256/2018, WPST/32036/
2018 and WPST/33510/2018.
Ms. Pranita Hingmire for the Petitioner in WP/11695/2018.
Mr. A.A. Garge I/b Mr. J.H. Oak for the Petitioner in
WP/11022/2018.
Mr. Kedar Dighe with Mrs. Rupali M. Shinde and Mr. S.B. Kalel, AGP
for Respondent - State in all writ petitions and contempt petition.
Mr. Mihir Desai, Senior Advocate I/b Mr. S.S. Jadhav, for
Respondent No.5 in WP/3970/2018.
Mr. Rameshwar Gite for Respondent Nos. 4 and 5 in
WP/11695/2018.
Mr. Rajesh Kolge for Respondent No. 7 in WP/14242/2018.
Ms. Anupama Shah for Respondent Nos. 5 to 7 in
WPST/32036/2018.
CORAM:
B.R. GAVAI &
DAMA SESHADRI NAIDU, JJ.
RESERVED ON: 28th MARCH 2019
PRONOUNCED ON: 9th April 2019
JUDGMENT (PER: DAMA SESHADRI NAIDU, J.)
Introduction:
Two sets of persons, with diverse qualifications, enter service
as Secondary School Assistants, at different times. They are
placed in different categories of seniority, not based on their date
of joining, but based on their qualification. With time, the teachers
who are placed in lower category rise through the rungs, after
acquiring additional qualifications. Thus, most may get paced in
one common higher category, sooner 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 acquired B.Ed., qualification. Thus, they too have
become trained graduate teachers. Annually, the school prepares
a seniority list of all teachers working in it. That seniority list must
accord with the statutory mandate in schedule F, under Rule 12 of
the Rules. Based on their entry into service and their
qualifications, the teachers have been placed under Categories
to H.
5. As the record reveals, some of the untrained
undergraduate teachers joined the service earlier than the trained
graduate teachers. Across the state, these teachers, as it is
pleaded, have demanded that once they acquired the requisite
qualification while in service, their seniority must be reckoned
from the date of their initial appointment and continuous
officiation. These claims by the trained undergraduate teachers
and the counterclaims by the trained graduate teachers have
engendered much subordinate legislation--Government
Resolutions (GR)--and unavoidable litigation, too.
6. The Government Circular dated 24 th January 2017 and the
Government Circular dated 14 th November 2017, that is exhibits G
and H respectively, are the regnant government resolutions that
hold the field. In fact, guided by these circulars, the Respondent
school prepared Exhibit D seniority list. In that list, the petitioners
were shown below the fifth and sixth Respondent teachers. These
Respondents earlier had their entry as trained undergraduate
teachers but rose in the ranks with their later-acquired
qualifications.
7. Aggrieved, the petitioners challenged exhibits G and
circulars and, consequently, sought the invalidation of Exhibit D
seniority list, as well.
WP (ST) No.33510 of 2018:
8. In this writ petition, there are 96 petitioners. None of the
rival contenders to the seniority finds arrayed as a respondent,
though.
WP No.11022 of 2018:
9. Here, there are 19 petitioners. As with WP No.33510 of
2018, no rival contender is seen arrayed.
WP (ST) No.32036 of 2018:
10. In this Writ Petition there are two petitioners; they have a
seniority dispute with the Respondents 5, 6 7. In fact, the first
petitioner is a registered association of the teachers having B.Ed.,
qualification.
WP No.3970 of 2018; WP No.11695 of 2018; WP 14256 of
2018:
11. In each of these writ petitions, there is a sole petitioner.
He has his seniority dispute with the respondent teachers, as
arrayed in each 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
variations among those cases, we disregard them. For the issue
essentially turns on a disputed question of law about the seniority.
Respondents':
15. Compendiously considered, the counsel for the
Respondent teachers in all the Writ petitions have offered an
identical defence to the petitioners' claim of seniority. Here too,
we avoid reference to individual contentions of minor variations.
16. The counsel for the Respondent teachers initially admit
that those teachers entered the service in categories below "C".
But they assert that once they acquired graduation, say BA,
besides having D. Ed.; with their seniority, they ought to be
treated as trained graduate teachers. According to them, D. Ed.,
equals B.Ed.
17. In the alternative, the learned counsel also contend that
the petitioners' initial entry into Category C entails them to
nothing in terms of seniority unless they have also completed ten
years' service. And that completion must precede the Respondent
teachers'. In other words, a teacher's getting into Category C and
earning graduate scale do not affect the seniority to be prepared
in the ascending order based on their continuous length of service
and officiation.
18. Relying on certain decisions, such as Sunil v. Amravati
Zilla Parishad[1], the counsel for the Respondent teachers also
contend that to reckon the seniority, the statute does not
1[] 2016 (6) Mh.LJ 576
distinguish between the primary teachers and the secondary
teachers. According to them, in both cases the seniority has to be
reckoned from the date of initial appointment. In other words,
once an untrained graduate teacher enters category C with
improved qualifications, the length of service alone matters.
19. Finally, the learned counsel maintain that the impugned
circulars do not suffer from any legal infirmity. On the contrary,
they accord with the statutory mandate, besides complying with
the judicial mandate frequently emanating from this Court and
the Supreme Court.
Government's:
20. The learned Assistant Government Pleader has
submitted that the authorities have followed the numerous
precedents of the Supreme Court as well as this Court to fine-tune
the reckoning of seniority in private schools. Besides drawing our
attention to an avalanche of authorities on the issue, he
eventually stresses that the Supreme Court has recently rendered
two 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[2] and Bhawana v. State of Maharashtra.
[3]
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
2[] (2014)13 SCC 219
3[] AIR 2019 SC 238
as untrained Assistant Teachers in Secondary Schools. For they
did not possess B.Ed., or other essential qualification.
Indisputably, they were placed, initially, in categories below C.
These respondent teachers later acquired qualification, say, B.Ed.
They thus scaled up in rank and found a place in Category C,
having become trained graduate teachers. Initially, the petitioner-
teachers were placed higher in seniority because they entered
Category C first, though they entered service after the respondent
teachers had.
23. But because of the Government Circulars, dated 24 th
January 2017, and dated 14th November 2017, the Schools have
revised the Seniority. In the revised Seniority, the petitioner
teachers found themselves pushed down. They were placed below
the respondent teachers. Only the length of service--but not the
qualification, nor even the teacher's entry in Category C--was
considered for seniority.
24. So we should first examine the impugned Government
Circulars.
The Impugned Circulars:
25. The Government Circular dated 13 October 2016, in para
5, mentions how the post of trained graduate should be
understood. According to it the meaning of 'Graduate' indicates a
person with a degree in any faculty along with D. Ed., or B.Ed. If
"the teachers passed 10th and 12th" before entering the service,
and if they acquire a degree while in service, such teachers
should also be treated as trained graduates. Their seniority
"should be fixed as per the directions of the High Court." (as
gathered from the translated copy).
26. The Government Circular, dated 24 January 2017, refers
to para 5 of the earlier circular and proceeds to lay down the
method of calculating the seniority of both the primary and
secondary teachers. It emphasises the need of maintaining a
common seniority list, based on a learned Single Judge's
judgment, at Nagpur Bench, in a batch of Writ petitions: W.P. (ST)
No.2280 of 1997 and others.
27. According to the circular, the guidelines for seniority
read:
1. Unless the candidate acquires the degree qualification,
he shall not acquire a place in the subject-wise graduate
seniority list.
2. While preparing the seniority list of graduate primary
teachers, the school authorities must fix their seniority
based on their initial appointment; that is, without
considering the date of their 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 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 concerned should be considered for promotion.
6. For being included in category C of scheduled F as per
Rules 12 of the MEPS Rules, 1981, the teacher concerned
should possess the qualification prescribed for category
(E.g. STC/Dip. ED. (One-year course)) or equivalent
professional qualification besides having completed ten
years' service.
7. The common seniority list to be considered for
promotion should also be considered for secondary
(standard 9 to 10) and higher secondary (standard 11 to 12)
levels along with primary level. [taken with modification
from the translated copy]
29. So we must examine these two circulars in the light of the Act
and the Rules. For that, we ought to analyse both the MEPS Act and the
Rules.
Statutory Scheme:
30. The Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977 ("MEPS Act"),
regulates the recruitment and the service conditions of the
employees in "certain private schools." As defined in Section 2
(7), the term "employee" includes the teaching and the non-
teaching staff of a recognised school. Even an Assistant Teacher
on probation must be reckoned as an employee. And Sub-Section
(18) defines "primary education" to mean education imparted "in
such subjects and up to such standards as may be determined by
the State Government, from time to time," located either in a
primary or secondary school. And the Government treats
Standards I to V in a school as "primary education".
31. The definitional dynamics further examined, "School" in
Section 2 (24) of the Act has a compendious, comprehensive
definition: it can be a primary school, secondary school, higher
secondary school, junior college of education, or any other
institution by whatever name called. The "Primary School" stands
defined in Section 2(19): a recognised school, or a part of such
school in which primary education is imparted. A "private school",
according to Sub-Section (20), is a recognised school established
or administered by a Management, other than the Government or
a local authority.
32. Whether a school receives any grant-in-aid or not, every
private school in the State of Maharashtra, as Section 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 conditions
of service of such employees including leave superannuation, re-
employment, and promotion. The Executive has the retrospective,
yet conditional, rule-making power, too.
The Rules:
35. From a cryptic enactment comes a large set of rules. And
these rules engender a rash of Government Resolutions; these
Resolutions have inevitably become breeding grounds for
burgeoning litigation.
36. To begin with, we must refer to a few definitions. Rule 2,
the lexical clause, defines many terms. We will, however, examine
only those terms that bring to bear on the controversy. Sub-Rule
(j) defines "trained graduate" to mean a person possessing the
qualifications mentioned in sub-sections (i) to (vi) of clause (1) of
item II in the Schedule "B". "Trained" here confines itself to the
prescribed qualification, rather than to its denotational process of
getting trained. And a "trained teacher", as per Sub-Rule (K), is a
teacher "who has secured a professional certificate, a diploma or
a degree recognised by the Department which qualifies him for a
teaching post in a school." Here too, "trained" is qualification
specific and nothing beyond.
37. Rule 6 provides for the "qualifications of teachers." It,
however, directs us to Schedule "B" for this purpose. Besides that,
its first proviso allows the school management "to appoint
untrained Science graduate teachers for teaching Mathematics
and Science subjects". It also empowers the management to
appoint "untrained Arts or Commerce graduates for teaching
other subjects". These out-of-turn appointments in secondary
schools may happen under exceptional circumstances, though.
38. As classified under Rule 10, the employees of a school
can be permanent or non-permanent; those non-permanent
employees may be either temporary or on probation. Pivotal is
Rule 12, which deals with seniority, the bone of contention here. It
plainly declares that every management prepare and maintain
seniority list of the teaching staff and non-teaching staff in the
School "in accordance with the guidelines" laid down in Schedule
"F".
39. Under Rule 25, every employee desirous of earning
higher qualifications must get the employer's leave. But this
limitation does not apply to "professional courses, such as B.Ed.
or D.Ed., which are "prerequisites of a teacher." Mere intimation
will suffice.
Schedules:
40. Indeed, "seniority" is 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 appointed by 30 th 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 Teaching Diploma of any statutory University (if appointed
before the 1st October 1970); or
(iii) a Secondary Teachers' Certificate of the Education
Department of Maharashtra State (if appointed before the 1st October
1970); or
(iv) a Diploma in Education of the Graduates Basic Training
Centres; or
(v) a Diploma in Physical Education or its equivalent; or
(vi) any other degree, diploma, or certificate which Government
or the Inter University Board may sanction as equivalent to any of the
above qualifications.
(2) For Undergraduate Teachers:
(i) a Diploma in Education of Nagpur and Bombay Universities,
awarded two years after Secondary School Certificate
Examination; or
(ii) a Secondary Teachers' Certificate of the Education
Department of Maharashtra State;
(iia) the Teachers' Diploma of any statutory University (if
appointed before the 1st October 1970); or
(iii) a Certificate in Physical Education recognised by Government
(if the person acquired that qualification before 31st May 1971 and was
appointed by the 20th September 1978); or
(iv) a Diploma in Education (Primary) awarded by Government; or
(v) any other equivalent diploma or certificate approved by
Government or Inter-University Board.
44. Though Schedule B also deals with other teachers, such
as Drawing Teacher and Crafts Teachers, those categories may
not be relevant for our purpose. So are the posts of Teachers in
Junio Colleges.
Seniority:
45. Now, we should examine the "Seniority". In terms of Rule
12, Schedule "F" provides the guidelines for fixing the seniority.
And the Schedule F reads:
Schedule F:
1. Guidelines for fixation of seniority of teachers in the primary
schools:
The Seniority of primary school teachers in Primary Schools shall
be based on continuous officiation counted from the date of
acquiring the educational qualification as prescribed under
"Schedule 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 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. Ed. (one-year course) [Senior or
Junior Hindi Shikshak Sanad] or its equivalent.
...
Category E: Holders of -
S. S. C., S. T. C./Dip. Ed./Dip. T. (one-year course) [Senior or Junior
Hindi Shikshak Sanad] or its equivalent.
Category F: Untrained Graduates or holders of equivalent
qualification.
Category G: Untrained Matriculates or holders of equivalent
qualification.
Category H: All teachers other than those mentioned in
categories A to G.
46. The Guidelines are in two parts: (1) those that concern
the Primary Teachers; and (2) those that concern Teachers in
Secondary Schools, independent Junior Colleges or those attached
to Secondary Schools, and Senior Colleges.
(a) Teachers in Primary Schools:
47. First, we will examine the Guidelines that affect primary
schools. Indeed, a primary school teacher's seniority depends on
that teacher's "date of joining service and continuous officiation".
Thus, the primary school teacher's seniority is independent of the
teacher's educational qualification beyond the basic one; the
teacher's acquiring additional qualifications hardly affects the
seniority.
(b) Teachers in Secondary Schools, independent Junior
Colleges or those attached to Secondary Schools, and
Senior Colleges:
48. Seniority in the secondary schools, junior colleges of
education, junior college classes attached to secondary schools,
and senior colleges follows gradation: Categories A to H. In
Categories A and B, the seniority counts from the date of
appointment. In Categories C to H, the teachers' seniority
depends on the "total service rendered by the person in a
particular cadre." The Rulemaking authority, as judicially noted on
many earlier occasions, was conscious of this gradation; so it
prescribed a descending order of gradation to 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
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 years), T. D. (Bombay
University), and Dip. Ed. (Nagpur University)--with which these
untrained teachers get the grade and become the trained
teachers.
52. To dispel any ambiguity, Note 4 clarifies that the
categories--especially the categories (C) to (H)-- represent the
ladder of seniority in descending order.
53. A leaned Division Bench of this Court in Nandini
Arunkumar Kalaskar v. State of Maharashtra [4] has taken the view
that as per the Act and the Rules, qualifications for primary
4[] Writ Petition No. 4644 of 1997
teachers are as mentioned in Schedule B-I. And qualifications for
secondary teachers are as mentioned in Schedule B-II of the
Rules. That is, Schedule B-I prescribes D.Ed. as a requisite
qualification for a primary teacher; Schedule B-II prescribes B.Ed.,
for higher secondary teachers. That means, B.Ed. is not a
requisite qualification for primary teachers.
54. In Jayashree Sunil Chavan v. The State Of Maharashtra [5],
another Division Bench has, among other issues, considered
whether B.Ed., can be taken as a qualification higher than D.Ed.,
and on that basis whether it could be treated as a requisite
qualification. To answer that, Jayashree Sunil Chavan has held
that both B.Ed. and D.Ed., are to operate in separate and distinct
fields:
"There is no question of there being one qualification
higher than the other particularly with regard to the
requirement of the primary school. It is, therefore, not
possible to accept the argument that B.Ed. being the
Bachelor's Degree, in comparison with D.Ed., being the
Diploma, the degree would be higher than the diploma
and, there from on that very count alone a holder of
B.Ed. would be superior to D.Ed. holder and hence can
be employed as a primary school teacher."
The Way Forward:
5[] AIR 2000 Bom 394
55. True, it is not a case of 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 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 his The Nature and
Sources of the Law[6] stresses that "it must be an opinion the
formation of which is necessary for the decision of a particular
case; in other words, it must not be obiter dictum."
59. Putting both the above views in perspective, Allen in his
Law in the Making[7], observes that "any judgment of any Court is
authoritative only as to that part of it, called the ratio decidendi,
6[] (2d ed. 1921) 261
7[] (2d ed. 1930) 155
which is considered to have been necessary to the decision of the
actual issue between the litigants. It is for the Court, of whatever
degree, which is called upon to consider the precedent, to
determine what the true ratio decidendi was."
60. Oft-quoted are the views of Holt C.J., and Lord Mansfield.
In Cage v. Acton[8], the former has held that "the reason of a
resolution is more to be considered than the resolution itself."
Then, the latter has held in Fisher v. Prince[9] that "the reason and
spirit of cases make law; not the letter of particular precedents."
But in contrast is the now-widely-accepted principle that the ratio
decidendi of a case must not be sought in the reasons on which
the judge has based his decision.
61. If we consider the recent jurisprudential rumblings on the
never-ending debate of what part of judgment will have
precedential force, comes to mind the articulation advanced by
Garner, et al. In a recent commentary on stare decisis--The Law
of Judicial Precedent[10]--the learned authors have elaborately
8[] 12 Mod. 288, 294 (1796)
9[] 3 Burr. 1363, 1364 (1762)
10[] Thomson Reuters, 2016, pp.44-46
treated this principle. According to them, there can be no cavil
about what binds of a decision as a precedent. It is the holding.
62. And holding emerges when the ratio--the pure principle
of law--is applied to the facts of a case. That is, a holding is what
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.
[11]
63. Then, we can adopt Arthur L. Goodhart's assertion
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
11[] Determining the Ratio Decidendi of a Case, Yale Law Journal, Dec., 1930
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 point to notice is that we cannot go behind the opinion to
show that the facts appear to be different in the record. We are
bound by the judge's statement of the facts even though it is
patent he has misstated them, for it is on the facts as he, perhaps
incorrectly, has seen them that he has based his judgment.
65. With this prefatory jurisprudential underpinning, we will
examine both Viman Vaman Awale and Bhawana.
A Tale of Two Cases:
(a) Viman Vaman Awale:
66. In Viman Vaman Awale, decided on 13.08.2014, the
appellant and the fourth respondents are assistant teachers; first,
the appellant joined in 1979, followed by the fourth respondent in
1980. By the time they joined, both had the basic qualification--
D.Ed.,--to be assistant teachers. But the fourth respondent, by
then, had an additional qualification: B.A. The fourth respondent,
after joining service, acquired B.Ed., in 1984. The appellant, a
non-graduate, too, went on acquiring additional qualifications:
first B.A., in 1984; later B.Ed., in 1986; and finally M.A., in 1997.
67. In short, both had the requisite qualifications when they
joined the service, and both went on acquiring additional
qualifications in their service. But at the time of joining, the fourth
respondent had a "superior qualification", and acquired B.Ed., too,
before the appellant did. There arose a dispute of seniority
between them.
68. To begin with, they both were placed in Category-D of
Schedule F. Yet in the seniority list, the appellant was shown
below the fourth respondent--the better qualified, but later joined
teacher. On the appellant's challenge, the Tribunal ruled that
"seniority is to be considered from the date of [a candidate's
acquiring] this professional qualification, that is being the 'Trained
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 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 teachers in a secondary school.
But the appellant initially was appointed in 1994 as an untrained
Teacher in a High School. Her appointment was purely temporary.
She acquired her B. Ed qualification and "became a trained
teacher" in September 1997. Just a month before that, the 5th
Respondent was appointed as a "trained Assistant Teacher".
73. Yet the appellant was made senior "in the category of
Assistant Teacher". Responding to the 5 th respondent's challenge,
the Competent Authority ruled in his favour. The authority
observed that the 5th Respondent was appointed as a trained
teacher in August 1997, whereas the appellant remained
untrained teacher till September 1997. Thus, the 5th respondent
placed himself in Category C one month before the appellant did,
by acquiring the necessary qualification: B.Ed. The appellant's
appointment in 1994 remained inconsequential for she was an
untrained Assistant Teacher until one month after the 5 th
respondent's joining the service.
74. When the matter waded its way to the Supreme Court,
the appellant's counsel asserted that "practically inter se seniority
is not an issue." Instead, he cited "salary escalation" as the cause
for the appellant's grievance. Yet as the judgment reads, the
arguments were also advanced on either side covering, primarily,
the seniority. The appellant's principal argument is that seniority
is based on the "longer officiation of service in the cadre". So the
appellant's acquiring B.Ed., and her becoming a trained Assistant
Teacher later, the counsel further asserted, would not take away
the appellant's right to seniority.
75. Repelling the appellant's arguments, Bhawana holds--in
fact, reiterates--that seniority in the primary school is based on
the date of the teacher's "joining service and continu[ed]
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, 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[12], the Supreme Court has
observed that "law will be bereft of all its utility if it should be
thrown into a state of uncertainty by reason of conflicting
decisions." So it has advocated as desirable that if a conflict is
found, the question should be authoritatively settled. The better
course for the Bench hearing the case would be, according to
Jaisri Sahu, to refer the matter to another Bench of superior
numerical strength. It is inadvisable for the Bench of lesser
strength to take upon itself the task of deciding whether it should
follow one decision or the other.
80. But as we see, Jaisri Sahu confines itself to intra-court
precedential conflict. That is, it does not refer to the coequal
conflicting-judgments of the Supreme Court vis-à-vis the High
Courts and other courts down the judicial establishment. This
proposition, again, stands affirmed in Delhi Development
Authority v. Ashok Kumar Bahel[13]. According to it, two conflicting
principles on the same point by the same Court should not be
allowed to operate simultaneously.
12[] AIR 1962 SC 83
13[] AIR 2002 SC 2940
81. The erstwhile Nagpur High Court has held in D.D.
Bilimoria v.Central Bank[14] that the 'the result is not that the later
authority is substituted for the earlier, but that the two stand side
by side conflicting with each other'. In Vasant Tatoba Hargude v.
Dikkaya Muttaya Pujari[15], a Division Bench of this Court was
dealing with a similar question under Art.141. It has held that if a
clear conflict occurs between two decisions of the Apex Court of
an equal number of Judges, the later decision will bind the High
Court. Many other High Courts, too, have held the same view:
Gujarat Housing Board, Ahmedabad v. Nagajibhai [16], Gopal
Krishna Indley v. 5th Addl. District Judge, Kanpur [17], Govindanaik
G. Kalaghatigi v. West Patent Press Co. Ltd. [18], Deputy
Commissioner v. Anandan[19].
82. Yet earlier, another Division Bench of this Court in
Manasing Surajsingh v. The State Maharashtra [20], has quoted with
14[] AIR1943 Nag 340
15[] AIR 1980 Bombay 341
16[] AIR 1986 Guj. 81(FB)
17[] AIR 1981 All. 300
18[] AIR 1980 Kar. 92(FB)
19[] 1987 (1) KLT 192 (DB).
20[] (1968) 70 BOMLR 654
approval Salmond's observations in his treatise on
Jurisprudence21:
"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,[22] 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.[23] It concerns the course to
be followed by the High Court when confronted with contrary
decisions of the Supreme Court emanating from Benches of co-
equal strength. Bholanath, in fact, notices the two schools of
21[] 12th Edition Page 153
22[] AIR 1959 SC 519
23[] (1988) 1 CAL LT 1 (HC)
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 follow the
one which, in its view, is better in point of law.
85. Then, Bholanath has preferred the latter view. In that
context it has referred to the ancient Jurist Narada's
Dharmashastra Virodhe Tu Yuktiyukta Vidhe Smrita (the
Dharmashastras or the Law Codes) and the modern-day Jurist
Seervai. That said, Bholanath has acknowledged that highly
embarrassing it may be "for the High Court to declare one out of
the two or more decisions of the Supreme Court to be more
reasonable, implying thereby that the other or others is or are
less reasonable." But if such a task falls upon the High Court, it
further observes, because of irreconcilable contrary decisions of
the Supreme Court emanating from Benches of co-ordinate
jurisdiction, the task, however uncomfortable, has got to be
performed.
86. As noted in Bholanath, indeed, the redoubtable
constitutional expert H.M H. M. Seervai, in his treatise, the
Constitutional Law of India, (as often quoted in various
judgments) has observed that the Supreme Court judgments
"which cannot stand together present a serious problem to the
High Courts and to subordinate Courts. It is submitted that in such
circumstances the correct thing is to follow that judgment which
appears to the court to state the law accurately or more
accurately than the other conflicting judgments."
87. And this Court's Full Bench in Kamleshkumar Ishwardas
Patel has held that the law as enunciated in Bholanath "has our
unqualified concurrence": that the High Court "may follow the one
which, in its view, is better in point of law".
(d) Yet Another View:
88. A Special Bench of Five Judges of the Madhya Pradesh
High Court in Jabalpur Bus Operators Association v. State of
Madhya Pradesh,[24], 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
24[] AIR 2003 MP 81
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 [25]
,
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
25[] 2014 SC 1745
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 ; or if the decision of a
High Court is not in consonance with the views of this Court. It
must immediately be clarified that the per incuriam rule is strictly
and correctly applicable to the ratio decidendi and not to obiter
dicta. It is often encountered in High Courts that two or more
mutually irreconcilable decisions of the Supreme Court are cited
at the Bar. We think that the inviolable recourse is to apply the
earliest view as the succeeding ones would fall in the category of
per incuriam.
(italics supplied)
91. So now, the judicial dictum is unmistakable: A decision or
judgment can be per incuriam if it conflicts with the ratio of a
previously pronounced judgment of a co-equal or a larger Bench.
(f) Do Viman Vaman Awale and Bhawana Conflict?
92. We do not think they do. Viman Vaman Awale concerns
the Primary Assistant Teachers; Bhawana, the Secondary
Assistant Teachers. So the former case interprets the "Guidelines
for fixation of seniority of teachers in the primary schools", under
Schedule F, under Rule 12. The latter the "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 Colleges."
93. In Viman Vaman Awale both the teachers had their basic
qualifications when they entered service, their additional
qualifications notwithstanding. And as per Clause (I) of Schedule
F, the seniority of primary school teachers shall be based on the
date of joining service and continuous officiation. Both the
candidates duly qualified, Viman Vaman Awale upheld the
seniority of the teacher that joined the service first.
94. In Bhawana, as we have already observed, the teacher
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 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 others. In Sau. Mamta Pandurang Nimje
v. State of Maharashtra[26], a Division Bench of this Court at
Aurangabad has held that the seniority of a graduate trained
teacher must be reckoned from the date of his or her qualifying,
but not from the date of joining the service. In fact, the petitioner,
in this case, filed a review petition and sought to rely on Viman
Vaman Awale. But the Court has repelled the petitioner's
contentions, holding that the decision applies only to primary
teachers. Rightly so.
98. In Anjali Jayant Khati v. Bal Mandir Sanstha [27], another
Division Bench has tellingly observed that the date of
appointment is not the only criterion for fixing the seniority. While
the authority's fixing the seniority, the date of a candidate's
acquiring B. Ed. qualification would also become material. Unless
one acquires or possesses such qualification as B. Ed. or another
professional qualification, notes Anjali Jayant Khati, one cannot go
up in the ladder. If a teacher is a graduate but does not hold
"training" or professional qualification, he cannot fall in Category
'C'. He may enter 'C' category the day he acquires training or
professional qualification. The ladder is in descending order.
26[] W.P. No.1679 of 2018, decided on 15th January 2018
27[] (2009) 1 Bom.C.R. 2016
Further observes Anjali Jayant Khatib that a trained teacher would
be put above an untrained teacher though the untrained teacher
may be senior, in the literal sense. Referring to Schedule 'F',
Anjali Jayant Khati lays down that the seniority must be fixed
mainly on three criteria: (a) the length of continuous service; (b)
the acquisition of professional qualification; and (c) the age if two
or more candidates or teachers are appointed on the same day.
99. Ashok Narayan Sathe v. Education Officer (Secondary),
Zilla Parashad[28], 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 [29],
too, takes the same stand. In Shantaram Dhondu Ahire v.
Education Officer (Secondary), Zilla Parishad [30], a learned Single
Judge has followed Anjali Jayant Khati. The same precedential
path is taken by Chagan v. Education Officer (Secondary), Zilla
Parishad[31], another decision by a learned Single Judge.
28[] 2007 (4) Mh. LJ 358
29[] 2016 (5) Mh.LJ 856
30[] WP No.7113 of 2015, decided on 10th October 2017
31[] 2018(3) Mh.LJ 720
100. The earliest among these decisions is Vitthal v. Zilla
Parishad, Chandarpur32, 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 [33], 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
Garg[34], a learned Single Judge has relied on Viman Vaman Awale
32[] 2006 (2) Mh.LJ 124
33[] AIR 1999 SC 3306
34[] W.P. No.1153 of 2018, decided on 4th May 2018
to hold that "D.Ed., qualification is sufficient along with the SSC
and the Diploma. It is not material to obtain a B.Ed., degree for
the purpose of computing seniority; rather it would be on the
basis of continuous officiation . . ." But in review [35], this judgment
was recalled and the matter was restored to file. So Shreelekha
Sunil Garg, as a precedent, if it were, has ceased to exist.
103. In Satish Ramchandra Kamdi v. State of Maharashtra [36],
the petitioner had the requisite qualification by the date of his
appointment (13.07.1983). The 5th respondent was only an
untrained teacher on the date of his appointment (23.07.1983).
Following Viman Vaman Awale, a learned Single Judge has held
that the petitioner is the senior of the two.
104. In Vivek v. The Education Officer [37], the petitioner
joined the service in July 1970. The law mandates that a person,
with a diploma of any statutory University, appointed before 1st
October 1970 and continued as a teacher with or without any
break, is to be treated as a trained teacher in the Secondary
School. So, because of this peculiar fact, Vivek concludes that the
35[] Review Petition No.86 of 2018, decided on 27th September 2018
36[] W.P. No.983 of 2016, decided on 9th March 2018
37[] 1998 (2) Bom.CR 534
petitioner is the senior despite his lacking the qualification. Thus,
Vivek turns on its own facts--especially that the petitioner joined
before the 1st October 1970.
105. In Chgan v. Education Officer (Secondary) [38], as
gathered from the judgment, the petitioner was appointed as an
Assistant 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
38[] WP No.1391 of 2016, decided on 25th March 2019
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 the precedential position holding the field. It is
undisputed that the petitioner completed graduation, acquired
the qualification of B.Ed., and was brought into category C later.
When the petitioner entered that Category, the respondents 4 to
7 had already been there from date of their initial appointment.
110. True, Chagan refers to Rule 3 of the MEPS Rules. Rule
3(1)(b) of the Rules spells out the eligibility for appointment as
Headmaster of a Secondary School. Further true is the fact that
the petitioner, as well as the respondents 4 to 7, is qualified.
Thus, they may have apparently been placed on an even keel. Yet
can we ignore the respondents' seniority--seniority at an elevated
category? Regrettably, we cannot. The promotion is not as a
Primary Teacher; it is as a Secondary Teacher. In fact, Chagan falls
foul of Bhawana, so to say. So we hold, with respect, Chagan is
per incuriam.
111. A Full Bench of this Court in Vadanath v. Secretary,
Marathwada Shikshan Prasarak Mandal[39], has on reference
considered this question: For promotion to the post of Head
Master of a Primary School, is a teacher's seniority counted from
the date of initial appointment or from the date of his acquiring
39[] 2006 (6) Bom.CR 804
the educational and training qualification? The reference was
because of conflicting judicial dicta from two Division Benches.
112. On the facts, the petitioner's date of initial appointment
as a primary school teacher was 1-3-1972; then, he had S.S.C. He,
however, improved his qualification in 1981, by passing Diploma
in Education (D.Ed.). On the other hand, the respondent No. 2 was
initially appointed on 1-7-1973; then he too 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, 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 categorization is qualification-dependent. Placed in
the descending order of category, the teachers rise in ranks of
seniority with their additionally acquired qualifications under
Guideline (2) of Schedule F, appended to Rule 12 of the MEPS
Rules.
116. Once a few teachers reach a common category, equal
they may have all been in rank, but their seniority depends on
who entered the specific category first. And this entry depends on
the date of the teacher's acquiring qualification, not on the date
of his or her joining service.
117. Thus, a teacher who is a member of a lower category
can in no manner rank senior to the teacher who is already a
member of a higher category. Such a claim could be based neither
on his continuous service nor on his acquiring the qualification
and reaching the higher category. To be specific a teacher, for
example, in Category D, E, or F, on later migration to Category C,
cannot steal a march over a teacher already ensconced in that
higher Category. That teacher's seniority by length of service and
by his or her later acquiring the requisite, additional, or even
superior qualifications does not defeat the right of teachers
already found placed in Category C. What applies to Primary
Teachers cannot apply to Secondary Teachers, for the Rules do
keep these two streams of teachers unmixed.
Answers:
118. Once, secondary teachers enter a common category
from different sources, how should their seniority be reckoned: is
it from the date of their entering and continuously officiating or
from the date of their acquiring qualification to reach that
common category?
119. The seniority must be reckoned from the date they
entered the desired category; that is, from the date they acquired
the necessary qualification, but not from the date of their entry
into service.
120. Is there any universal principle for this proposition or
does it depend on the rules of service?
121. No. the seniority in any cadre depends on the statutory
position--principal or subordinate--that governs the employees of
an establishment. Here, it is governed by the Guidelines in
Schedule F, under Rule 12, of MEPS Rules.
122. We therefore allow all the writ petitions, holding:
(a) The two Government Circulars of 24th January 2017 and
14th November 2017 may stand unaffected vis-à-vis the Primary
Teachers.
(b) Those two Government Circulars, however, cannot be
sustained vis-à-vis the Secondary Teachers, to the extent those
GRs mandate that the teachers' seniority be reckoned from the
date of their first appointment and continuous service.
(c) The Government and the authorities concerned, including
the School Managements, will recalibrate the relative seniority of
the Secondary Teachers based on the Category they belong to
and based on when they have entered that Category.
So we declare. No order on costs.
(Dama Seshadri Naidu, J) (B.R. Gavai, J)
