JUDGMENT - THAKKER C.K., C.J.:---Rule. Mr. R.D. Rane, learned Additional Government Pleader, on behalf of respondents No. 4, 5 and 6, and Mr. M.S. Lagu, learned Counsel, on behalf of respondent No. 7, appear and waive service of notice of rule. In the facts and circumstances, the matter is taken up for final hearing today.

2.This petition is filed by the petitioner for an appropriate writ, direction or order quashing and setting aside an order dated May 23, 2003 passed by the Education Officer (Secondary), Zilla Parishad, Thane, respondent No. 4 herein, and to allow the petitioner to continue to work in Dnyandeep Vidyalaya, respondent No. 3 herein, as Head Master and to draw salary in accordance with law.

3.The case of the petitioner before this Court is that he was appointed on June 16, 1987 as Assistant Teacher of respondent No. 3 School. Respondent No. 7 was appointed as Assistant Teacher in the same school on June 16, 1986. Thus, considering the initial appointment as Assistant Teacher, respondent No. 7 was senior to the petitioner. It is, however, the case of the petitioner that in 1991, he had completed B.Ed. and, hence, he was placed in Category C. So far as respondent No. 7 is concerned, he was at that time in Category F-G. As respondent No. 7 completed B.Ed. in 1992, he was placed in Category C only in 1992. According to the petitioner, therefore, the petitioner ought to have been considered for promotion as Head Master before respondent No. 7.

4.It is not in dispute that the services of the petitioner were terminated, but the appeal filed by him was allowed, and he was reinstated in service. The effect of the said order, according to the learned Counsel for the petitioner, was that he continued to be in service with effect from the date of his initial appointment in 1987.

5.By the impugned order passed by respondent No. 4, respondent No. 7 was considered senior to the petitioner. The following conclusions have been recorded by respondent No. 4;-

"1. The management had not prepared the seniority list as per the provisions of Rule 12(1) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act and Rules of 1981. There is no signature of teachers on the seniority list. Hence the promotion given to Shri Paste as Head Master is not according to the Rules.

2. Shri Sashe Atmaram Mahadeos first date of appointment is 16-6-1986 and that the first date of appointment of Shri Paste is 16-6-1987. At the time of appointment, both the teachers were untrained. By taking into consideration the entire service period, it is observed that Shri Sashe is senior to Shri Paste.

3. Shri Paste Atmaram Mahadeo had worked from 14-6-1993 till 3-9-1997 as full time Asstt. Teacher and Head Master at Gopalrao Patil Educational Sansthas Kalwa, New Pimproli High School, Pimproli, Taluka Ambernath, Dist. Thane. Thus, his service is breaked (sic) in Dnyandeep Vidaylaya, Gegaon Nandval, Tal. Shahapur. Hence to show him senior in the seniority list is not as per the Rules."

6.A direction was, therefore, issued by respondent No. 4 that respondent No. 7 be appointed on the post of Head Master from 1-6-2002 and to send his proposal for approval as per the prescribed Rules."

7.The learned Counsel for the petitioner contended that the order passed and direction issued by respondent No. 4 is illegal and contrary to law. He submitted that the law laid down by this Court in (Saramma Varghese v. Secretary/President, S.I.C.E.S. Society others)1, 1990(1) Bom.C.R. 185 , has not been followed by respondent No. 4. It was urged that once the order of termination was set aside, and the petitioner was ordered to be reinstated in service, the fact that the petitioner had worked somewhere was totally irrelevant and extraneous for fixing seniority. The said fact may be relevant for the purpose of granting other reliefs, such as payment of back wages. Admittedly, the petitioner cleared his B.Ed. before the equivalent qualification acquired by responde

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