1998 Supreme(Bom) 129

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Patil G.D. Sakhare A.Y., JJ.
Devlal Jagatram Chauhan another .... Petitioners.
Versus
Municipal Council, Gondia others.... Respondents.
Writ Petition No. 1383 of 1991, decided on 27-2-1998.
Advocates appeared :
R.R. Deshpande, S.K. Sable V.N. Meshram, for petitioners.
A. Shelat, for respondent No. 1.
V.A. Masodkar, Ms. M.V. Masodkar Ms. V.R. Chaudhari, for respondent No. 3.
R.K. Borkar N.R. Borkar, for respondents Nos. 3, 6, 7 9.

Headnote:Maharashtra Secondary Education Act, 1951

       Code framed thereunder - State of Maharashtra Secondary Schools Code-Annexure 45 clause (5)-Seniority of teachers as before and after 31.12.1965-Qualified and unqualified teachers-Held, in view of clause (5) of Annexure 45 uplo 31.12.1965 teachers governed by Act 1951 and Code framed thereunder and after 31.12.1965 governed by Secondary Schools Code as framed by State of Maharashtra for purpose of seniority.-111e conclusion thus emerges is that in view of clause (5) of Annexure 45 up to 31.12.1965 the parties will be governed by the provisions of the Act and the Code framed thereunder and thereafter the parties will be governed by the provisions of the Secondary Schools Code as framed by the State of Maharashtra for the purposes of seniority. The teachers who were having requisite qualifications as on 31.12.1965 will have to be given seniority on the basis of length of service in appropriate category and the teachers who have acquired the requisite qualification after 1965 will have to be given seniority as per the provisions contained in Annexure 45 of the Secondary Schools Code. In the present case, prior to 3.12.]965 the petitioners and the respondent Nos. 3 to 8 only were possessing qualifications of graduation and training course. The petitioners acquired B.Ed. qualifications on 11.5.1963, while the respondent No.3 acquired the training qualification on 55.1964 and the respondent No.8 acquired training qualification in the year 1984. On 31.12.1965, the respondent Nos. 4, 5, 6, 7 and 9 were not possessing the B.Ed. training qualification and this qualification was acquired by the respondent NO.4 on 10.5.1970, by the respondent No.5 on 175.1967 by the respondent No.6 on 45.1971, by the respondent No.7 on 21.12.1971 and by the respondent No.9 on 85.1971. Thus, as far as the petitioners, the respondent No.3 and the respondent No.8 are concerned they were possessing the requisite qualifications on 31.12.1965 and by application of Annexure 45 of the Secondary Schools Code after 1965 they will be placed in one category depending upon their length of service in the high school. The respondent Nos. 4, 5, 6, 7 and 9 were not possessing the training qualification on 31.12.1965 hence these respondents will have to be placed in lower category than the petitioners and the respondent Nos. 3 and 8 and from the date of their qualifications these respondents will be placed in the higher category as per the guidelines contained in Annexure 45 of the Secondary Schools Code for the purposes of seniority.

       Secondary School Code under Maharashtra Secondary Education Act

       Clause 5 of Annexure 45 - Madhya Pradesh Secondary Education Act, 1951-Seniority of teachers Fixation of-In view of clause 5 of Annexure 45 upto 31.12.1965 parties to be governed by provisions of Ad 1951 and thereafter by provisions of Secondary School Code framed by Maharashtra Act for purpose of seniority -If any teacher improves qualification eligible for higher category, revised guidelines would apply. Thus as per clause 5 of Annexure 45, if any teacher in1proves his qualification and goes in higher category then the revised guidelines of seniority will apply so far as the seniority in higher category is concerned. Thus the provisions of Annexure 45 of the Secondary School Code as framed by the State at Maharashtra will apply after 1965. Thus as far as the petitioners, the respondent No.3 and the respondent No.8, are concerned they were possessing the requisite qualifications on 31.12.1965 and by application of Annexure 45 of the Secondary School Code after 1965 they will be placed in one category depending upon their length of service in the high school. The respondent Nos. 4, 5, 6, 7 and 9 were not possessing the training qualification on 31.12.1965, hence these respondents will have to be placed in lower category than the petitioners and the respondent Nos. 3 and 8 and from the date of their qualifications these respondents will be placed in the higher category as per the guidelines contained in Annexure 45 of the Secondary School Code for the purposes of seniority. Thus, the seniority of the petitioners and respondent Nos. 3 and 8 as on 31.12.1965 will be on the basis of their length of service while the seniority of the respondent Nos. 4, 5, 6, 7 and 9 will be on the basis of date of their acquiring B.Ed. qualification. In view of Annexure 45 of the Secondary School Code, the respondent Nos. 4, 5, 6, 7 and 9 will have to be treated as juniors to the petitioners. The ultimate result will be that the seniority of the petitioners and the respondent Nos. 3 and 8 will depend on their length of service as they were possessing the requisite qualifications on 31.12.1965. After 1965 seniority between the petitioners and the respondent Nos. 3 and 8 cannot be disturbed.

       Annexure 45, clause 5-M.P. Secondary Education Act, 1951, Section 20, Regulation Chapter XII under the heading school code-Seniority of school teachers-municipal employees-Till 31.12.1965 parties will be governed by the provisions of the M.P. Secondary Education Act, 1951 and the School Code framed thereunder-Thereafter the Secondary Schools Code will be applicable.-In view of clause 5 of Annexure 45 of the Secondary Schools Code upto 31.12.1965 the teachers who are municipal employees will be governed by the provisions of Secondary School Code. As per clause 5 the seniority of non-government secondary school teachers in Nagpur region who were permanent on 31.12.1965 should not be disturbed. The said clause further says that if any such teacher, however, improves his qualification and goes to the higher category, the revised guidelines of seniority will apply. So far as the determination of seniority in the higher category is concerned, the harmonious construction for clause 5 of the Annexure 45 of the Secondary School Code will be that the seniority of a non-government secondary school teacher in Nagpur Region up to 31.12.1965 will have to be governed by the provisions of the M.P. Secondary Education Act and the code framed thereunder. However, after the application of Secondary School Code as framed by the State of Maharashtra, the concerned teachers will have to be placed under the appropriate category as contemplated under Annexure 45 of the Code and if the concerned teacher improves his qualification he will be placed in the higher category and guidelines of the seniority will apply so far as the determination of his seniority in the higher category is concerned. According to clause 5, the seniority of the person who was permanent on 31.12.1965 will have to be determined as per the statutory provisions in M.P. Secondary Education Act and, therefore, seniority will have to be determined on the basis of the length of service that he has put in. However, the rule does not stop there. It proceeds further with a rider which is almost in the nature of a proviso to the effect that if any such teacher, improves his qualifications and goes to the higher category, then it is not the provisions of the M.P. Act and Code, but the revised guidelines of Secondary Schools Code which would apply to the case in determining the seniority. The proviso thus has made all the difference. That it is a proviso is clear from the use of the words like "if" and "however" 1990 Mh LJ 97, Distinguished.