Per DESHPANDE A.P., J.: - A conflict in the views expressed by two Division Benches of this Court was noticed by one of us and hence, a reference was made to the Honourable the Chief Justice with a request to refer the matter to a Bench comprising of more than two Judges. This Full Bench is constituted pursuant to the said reference. We formulate the point of reference as herein below :

"For promotion to the post of Head Master of a Primary School, whether seniority of the teacher is to be counted from the date of initial appointment, or from date of acquisition of educational and training qualification ?"

2. In a judgment reported in 2003(Supp.) Bom.C.R. (N.B.)785 : 2003(3) Mh.L.J. 438, in case of (Chintaman Ramaji Mahakalkar v. Education Officer (Primary), Zilla Parishad, Wardha and others) I , the Division Bench held that the seniority of primary school teachers has to be determined on the basis of date of joining service and continuous officiation irrespective of the date of acquiring D.Ed. qualification, whereas a contrary view is expressed in another Division Benchjudgmen1 ofthis Court reported in 2003(3) Mh.L.J. 206 in case of (Rajhans Narayanrao ShahapurE others v. Prabhavati Vithalrao Kamble and others)2, The Division Bench in Rajhans’s case has held that here is no doubt that for the purpose of seniority, the initial date of appointment is required to be considered bu1 for teachers who fulfil the required qualifications for such appointment. The learned Judges counted the seniority of primary school teacher from the date of acquisition of D.Ed. qualification.

3. Few facts that are necessary to consider the rival contentions are set out herein below:

The petitioner is in the employment of respondent No. 1 / Society and is working as an Assistant Teacher in a primary school having Standards from I to VII. The respondent No.1 promoted the respondent No.2 to the post of Head Master and aggrieved thereby, the petitioner filed an appeal before the School Tribunal, contending that the promotion granted to the respondent No.2 being in supersession of the claim of the petitioner, the same be quashed, it being illegal. The Tribunal allowed the appeal by holding that the seniority need to be counted from the date of acquiring training qualification. The respondent no.2 before the Tribunal is the petitioner before this Court and he has challenged the judgment and order passed by the Tribunal.

The petitioners date of initial appointment as a primary school teacher is 1-3-1972 at which point of time, he had the qualification of S.S.C. The petitioner improved his qualification while in service by passing Diploma in Education (D.Ed.) examination in the year 1981, whereas the respondent No. 2 was initially appointed on 1-7-1973 and at the time of his appointment, he was possessing qualification of S.S.C. The respondent No. 2 acquired the qualification of Diploma in Education (D.Ed.) in the year 1980 i.e. prior to the petitioner. If the seniority is to be reckoned from the date of initial appointment, and continuous officiation from the said date is to be taken to be the criteria to determine seniority, the present petitioner will be senior. However, if the seniority is to be counted from the date of acquiring the requisite qualification (D.Ed. in the present case), the respondent No.2 will be senior. In the above factual matrix, we proceed to consider the issue.

4. The learned Counsel appearing for the petitioner has contended that Rule 12 of the Maharashtra Employees of Private Schools Rules, 1981 (For short, "M.E.P.S. Rules") mandates the management of every school to prepare and maintain seniority list of the teaching staff in accordance with the guidelines laid down in Schedule "F". Inviting our o attention to Schedule "F", it is submitted that Clause 1 which deals with guidelines for fixation of seniority of teachers in the primary schools provide that the seniority of primary I school teachers shall be based on the date of joining se

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