MADHAVI v. CHAGAN & Ors.

#5. This Court finds that the High Court failed to appreciate the distinction between Clause 1 and Clause 2 of Schedule ‘F’ of A B C D E F G H MADHAVI v. CHAGAN & ORS. 1211 the Rules. Clause 1 was the subject matter of interpretation by this Court in Viman Vaman Awale and Clause 2 was the subject matter of interpretation in Bhawna. Vaijanath also dealt with promotion to the post of Head Master of a School falling in Clause 1 of Schedule ‘F’. Since the School in question is a secondary school, therefore, Clause 2 of Schedule ‘F’ will determine the seniority. Respondent no. 1 was not a trained teacher to be part of Category ‘C’ at the time of his appointment on 01.08.1985 and he was rightly placed in Category ‘E’ on account of his qualification but he upgraded his qualifications, and hence was placed in Category ‘D’ and ‘C’ on acquiring graduation and B.Ed. degrees respectively. [Para 24][1228-G-H; 1229-A-B]

#6. Keeping in view the principle laid down in Vaijanath, appellant was qualified for appointment as a temporary teacher as she was a graduate and also possessed B.Ed. degree. Her appointment was thus in accordance with Section 5(5) of the Act, so was the appointment of the other private respondents. However, respondent no. 1 could not be treated to be part of Category ‘C’ from the date of his initial appointment i.e. 01.08.1985 as he was neither a graduate nor a trained teacher when he was appointed. Also, respondent no. 1 was not even a trained teacher on the date of his appointment and thus cannot claim seniority on such ground from the date of his initial appointment. [Para 25][1229-B-D] Bhawna v. State of Maharashtra & Ors. (2019) 4 SCC 300 – relied on. Viman Vaman Awale v. Gangadhar Makhriya Charitable Trust & Ors. (2014) 13 SCC 219 – inapplicable. Gaur Pratibha & Ors. v. State of Maharashtra through the Secretary & Ors. (2019) SCC OnLine Bom 597 – referred to. Vaijanath s/o Tatyarao Shinde v. Secretary, Marathwada Shikshan Prasarak Mandal, Devgiri College Campus, Aurangabad & Ors. 2006 (6) Mh.L.J. 682 – referred to. A B C D E F G H 1212 SUPREME COURT REPORTS [2020] 13 S.C.R. A Case Law Reference (2014) 13 SCC 219 inapplicable (2019) 4 SCC 300 relied on Para 7 Para 9 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3966 B of 2020. From the Judgment and Order dated 25.03.2019 of the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Writ Petition no. 1391 of 2016. With Civil Appeal No. 3967 of 2020 and Contempt Petition (Civil) No. 647 of 2020 in SLP (Civil) No. 10046 of 2019. C. U. Singh, Ms. V. Mohana, Rajiv Dutta, Sr.Adv., Satyajit A. Desai, Akshay Sudame, Ms. Anagha S. Desai, Somanatha Padhan, Satya Kam Sharma, Amlan Kumar Ghosh, Rahul Chitnis, Sachin Patil, Geo Joseph Advs. for the appearing parties. The Judgment of the Court was delivered by HEMANT GUPTA, J.

#1. The present appeals are directed against the common order of the High Court of Judicature at Bombay, Nagpur Bench, whereby, the review of the dismissed writ petition filed by respondent No. 11 was allowed and the order passed by the School Tribunal dated 1.1.2016 was set aside.

#2. The appellant2 herein was appointed with Shri Samarth Shikshan Sanstha3 on a temporary basis on 16.7.1985. At that time, she possessed graduation and B.Ed. degrees and was accordingly placed in Category ‘C’ of Schedule ‘F’ of The Maharashtra Employees of Private Schools (Conditions of Service) Rules, 19814. However, she was not appointed against regular vacancy. Chagan was thereafter appointed as Assistant Teacher at the School on 1.8.1985 for teaching the students of Vth to VIIth standards, possessing qualification of Senior Secondary Certificate and Diploma in Education at the time of appointment. He was placed in 1 Hereinafter referred to as ‘Chagan’ 2 Hereinafter referred as ‘Madhavi’ 3 For short, the ‘School’ 4 For short, the ‘Rules’ C D E F G H MADHAVI v. CHAGAN & ORS. [HEMANT GUPTA, J.] 1213 Category ‘E’ of Schedule ‘F’ of the Rules. Both Madhavi and Chagan were appointed for teaching the same section. The School later approved their appointments against regular vacancies on 5.9.1986 w.e.f. 2.5.1986.

#3. On 24.11.1988, the School passed an order of upgradation of Madhavi to High School Scale w.e.f. 24.11.1988. The appointment of Madhavi was purely temporary upto the Academic Session 1988-89. Some of the candidates, who are respondent Nos. 5 to 7, all graduates and holding B.Ed. qualification, were appointed at the School and placed in Category ‘C’ of Schedule ‘F’ of the Rules. It is thereafter that Chagan acquired B.Sc. degree and entered Category ‘D’ of Schedule ‘F’ of the Rules on 21.2.1997. Chagan then obtained B.Ed. degree in the year 1999 and was thus placed in Category ‘C’ of Schedule ‘F’.

#4. The dispute arose at the time of appointment of Madhavi as the Head Master of the School. Chagan claimed that he was appointed on regular basis on 1.8.1985 as against Madhavi who was appointed against a temporary vacancy on 16.7.1985. Therefore, he contended that he is senior to Madhavi and in terms of the Rules, he would be entitled to be promoted as Head Master. The promotion order dated 31.5.2014 promoting Madhavi as Head Master was challenged in appeal before the learned School Tribunal. The challenge was also to the promotion of respondent No. 5, who was promoted as Assistant Head Master, and respondent Nos. 6 and 7, who were promoted as Supervisors of the School. Chagan claimed appointment as Head Master of the School.

#5. Chagan claimed seniority as trained graduate w.e.f. 1.8.1985 in terms of Rule 6 read with Rule 2(1)(j) of the Rules. It was contended that the post of Secondary Teacher was not vacant in the year 1985, therefore, Madhavi was illegally appointed as Primary Teacher which is Category ‘E’ post whereas he was appointed on 1.8.1985 and thus, he is senior to Madhavi.

#6. The learned School Tribunal dismissed the appeal on 1.1.2016 while holding as under: “9. It is clear from these provisions that the appellant as per his qualification is not come under the category of trained graduate at the time of his appointment on 01.08.1985. The respondent No. 3 was possessing the qualification of B.Sc., B.Ed. on the same day of her appointment on 16.07.1985. Therefore she would be A B C D E F G H 1214 SUPREME COURT REPORTS [2020] 13 S.C.R. A B C D E F G H considered in the category of trained graduate teacher on the day of her appointment.

#12. It was also not disputed that the appellant subsequently improved his qualification by acquiring a degree in 1997. He has also acquired a teaching experience of 10 years till that time. Therefore since the date when he completed his graduation along with 10 years teaching experience, he become eligible to enter into category-C. The appellant himself has mentioned that the respondent No. 4 was appointed as an assistant teacher on 24.11.1988 when the post became vacant. Even after considering this date, it is clear that the respondent No. 4 who was possessing the qualification of B.Sc., B.Ed. in 1985 was directly entered in category-C from that date. Therefore the appellant who entered in category-C in 1997 is admittedly junior to respondent No. 4.”

#7. The judgment of this Court in Viman Vaman Awale v.Gangadhar Makhriya Charitable Trust & Ors.5 referred to by Chagan was distinguished by the Ld. Tribunal for the reason that the appellant in the aforesaid case joined service prior to the respondent.

#8. Chagan challenged the order passed by the School Tribunal by way of a writ petition before the High Court. The same was also dismissed by the learned Single Bench with the detailed reasoning on 28.9.2017. An application for review was then filed on 2.12.2017 which was allowed with the following order: “Heard. For the reasons stated in the application, the application is allowed. Until further orders, the vacant post of Assistant Head Master shall not be filled in. Disposed of.”

#9. It is thereafter that the learned Single Bench passed the order impugned in the present appeal whereby the writ petition filed by Chagan was allowed. The High Court relied upon Viman Vaman Awale to hold that the seniority is to be given from the date of first appointment whereas the judgment in Bhawna v. State of Maharashtra & Ors.6 was distinguished observing that it was a case where the teacher was not holding the qualification of B.Ed. at the time of appointment and later