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SUPREME COURT OF INDIA
L. Nageswara Rao, Hemant Gupta, Ajay Rastogi, JJ.
MADHAVI – APPELLANT(S)
VERSUS
CHAGAN & ORS. – RESPONDENT(S)
Civil Appeal No. 3966 of 2020 (Arising Out of SLP (Civil) No. 9611 of 2019), Civil Appeal No. 3967 of 2020 (Arising Out of SLP (Civil) No. 10046 of 2019) and Contempt Petition (Civil) No. 647 of 2020 in SLP (Civil) No. 10046 of 2019
Decided on : 09-12-2020
Service Law – Appointment – Post of Teacher – Appellant was qualified for appointment as a temporary teacher as she was a graduate and also possessed B.Ed. degree – Her appointment was in accordance with Section 5(5) of Act, so was appointment of other private respondents – However, respondent could not be treated to be part of Category ‘C’ from date of his initial appointment as he was neither a graduate nor a trained teacher when he was appointed – Respondent was not even a trained teacher on the date of his appointment and cannot claim seniority on such ground from date of his initial appointment – Judgment of High Court in review cannot be sustained in law and same set aside – Writ Petition ordered to be dismissed – Appeals allowed – Contempt petition dismissed. [Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 – Section 5(5)] (Paras 25 and 26)
Facts of the Case:
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.
Findings of Court:
Primary and secondary schools have been treated differently in the same set of Rules. Rule 2(e) has entrusted the duties of Education Officer or Education Inspector in relation to secondary or higher secondary school, whereas, the Education Officer in respect of a primary school is Education Officer or the Administrative Officer of the Municipal Corporation or a Municipal School Board.
Result : Appeals allowed.
Key Points: - The judgment holds that Chagan could not be treated as part of Category C from the date of initial appointment since he was not a graduate or trained teacher then; seniority depends on later qualification rather than initial unqualified appointment (!) (!) (!) . - It distinguishes Schedule F Clause 1 (primary school) and Clause 2 (secondary school) and applies Clause 2 for a secondary school to determine seniority (!) (!) (!) . - It concludes Madhavi was qualified for appointment under Section 5(5) and that Chagan’s attempts to claim seniority from initial appointment were not sustainable; the High Court’s review is set aside and Appeals allowed (!) (!) . - The decision cites Viman Vaman Awale for primary school seniority and Bhawna for secondary school seniority, clarifying their applicability to the respective contexts (!) (!) . - The Act requires appointment of duly qualified teachers; untrained service cannot count toward seniority for primary or secondary posts as per Schedule B and Rule 6 (!) (!) (!) .
JUDGMENT
Hemant Gupta, J.
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[Hereinafter referred to as 'Chagan'] was allowed and the order passed by the School Tribunal dated 1.1.2016 was set aside.
2. The appellant2[Hereinafter referred as 'Madhavi'] herein was appointed with Shri Samarth Shikshan Sanstha3[For short, the 'School'] 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[For short, the 'Rules']. 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 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 Dof Scheduled 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(l)(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 considered in the category of trained graduate teacher on the day of her appointment.
xx xx xx
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
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