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Judgment
1.Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.
The controversy involved in the present petition pertains to inter se seniority between the petitioner â€" Ashok Daduji Dongare and the respondent
No.3 â€" Sunil Vasantrao Dumpalwar in the post of Assistant Teacher in a Private School, governed by the provisions of the Maharashtra Employees
of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules framed thereunder (for short, “the MEPS Act†and “the MEPS
Rulesâ€).
The facts relating to the case are as under :
(I) The petitioner was initially appointed as Assistant Teacher on 16Â7Â1982, and at that time, he was possessing the qualifications of H.S.C. and
D.Ed. According to the Management, the appointment of the petitioner was in Category 'E' of the Teachers under Schedule 'F' of the MEPS Rules,
whereas the stand of the Education Officer, competent to determine the seniority, is that the appointment of the petitioner was in Category 'D'. The
petitioner improved his qualifications by obtaining a bachelor's degree in Arts in the year 1986, and a bachelor's degree in Education in the year
1993. He was promoted on 1Â8Â1991 in the category of Graduate Teachers, and on 1Â8Â2000 as Assistant Teacher in the High School. The
petitioner has retired from service from the month of October, 2017.
(II) The respondent No.3 was appointed as Assistant Teacher on 1Â7Â1987 in Category 'C' of Teachers under ScheduleÂF of the MEPS Rules, and
at that time, he was possessing the qualifications of B.Sc. And B.Ed. Â obtained in  the  year  1985  and  1987
 respectively. The respondent No.3 was promoted to the post of Supervisor on 1Â7Â2009 and thereafter as Assistant Head Master on 1Â8Â‐
2010, and as Head Master on 1Â5Â2012.
(III) The petitioner filed S.T.C. Appeal No.15 of 2011 under Section 9 of the MEPS Act challenging the promotion of the respondent No.3 to the post
of Assistant Head Master with effect from 1Â8Â2010 on the ground that the petitioner was senior to the respondent No.3 in service, and in
supersession of the claim of the petitioner, the Management appointed the respondent No.3 to the post of Assistant Head Master. The School
Tribunal, by its judgment and order dated 14Â8Â2014, has dismissed the appeal, holding that on the date of his appointment on 1Â7Â1987 the
respondent No.3 was in Category 'C' of Teachers under Schedule 'F' of the MEPS Rules and rightly shown as senior to the petitioner.This is the
subjectÂmatter of challenge in this petition.
The stand of the Management in para 14 of its written statement before the School Tribunal is reproduced below :
“14. That, the appellant has been appointed in the middle school in the year 1982 as an Assistant Teacher as he was having a qualification of HSC,
D.Ed. Accordingly, the appellant was in 'E' category at the time of his appointment. However, the respondent No.3 who was and is having
qualification B.Sc. B.Ed. appointed as an Assistant Teacher in the year 1987 in the High School. Thus, at the time of appointment the respondent
No.3 came into 'C' category. That, the appellant has completed his graduation in Arts in the year 1986. Therefore, he came into 'D' category in
the year 1986. That, after getting qualification of degree in education in summer 1993, the appellant came into 'C' category. Thus, since
01.09.1993 the appellant came into 'C' category looking to his qualification. However, the seniority list which was prepared in the year 1992Â93
according to the date of appointment of employees of the school by the management. This seniority list is not according to rules prescribed under
M.E.P.S. Act and Rules 1981. However, the present appellant by taking undue advantage of this list time to time put his objection to the seniority
list which was prepared by the management according to law as per its category.â€
The question of qualifications for appointment and determination of seniority of the Assistant Teachers in Private Schools for the purposes of
promotion to the post of Head Master is governed by Rules 3 and 6 read with Schedule 'B', and Rule 12 read with Schedule 'F' under the MEPS
Rules. Schedule 'F' divides Assistant Teachers in Categories 'C' to 'H' on the basis of their qualifications. These categories represent the ladder
of seniority and are mentioned in descending order. All these provisions are considered by the Apex Court in the case of Viman Vaman Awale v.
Gangadhar Makhriya Charitable Trust and others, reported in (2014) 13 SCC 219. It was a case where the appellant and the respondent No.4
before the Apex Court were appointed as Assistant Teachers in Category 'D' under Schedule 'F'. The appellant joined the service on 24Â8Â1979,
whereas the respondent No.4 joined the same post in the same School on 1Â9Â1980. At the time of joining, the appellant had not completed her
graduation, though she fulfilled the requisite qualifications for appointment as Assistant Teacher. She completed her B.A. in the year 1984, and
B.Ed. on 20Â5Â1986. She also improved her qualification of M.A. in the year 1997. The respondent No.4 was already B.A. at the time of
joining the service as Assistant Teacher and he did B.Ed. on 1Â11Â1984. The School Tribunal as well as the High Court accepted the position that
the respondent No.4 having obtained B.Ed. qualification prior in point of time than the appellant, was senior to the appellant, as the seniority is to be
counted from the date of acquisition of training qualification. The Apex Court set aside the decision of the High Court.
In para 22 of the decision in Viman Vaman Awale's case, it is held as under :
“22. That apart, we find that in the case at hand there is a specific rule, namely, Rule 12 of the Rules, which deals with seniority. The clear and
unambiguous criterion for determining seniority is the continuous officiation counted from the date of acquiring the educational qualification as
prescribed under Schedule 'B'. It is stated at the cost of repetition that since the appellant was holding the requisite qualifications i.e. DEd for
appointment to the post of Assistant Teacher in Primary School as prescribed under Schedule 'B' to the Rules, her seniority was to be counted on the
basis of continuous officiation. Since she joined the post of Assistant Teacher on 24Â8Â1979 and Respondent 4 came to be appointed subsequently
i.e. on 1Â9Â1980. The appellant would naturally be senior to Respondent 4.â€
The Court holds that the clear and unambiguous criteria for determining seniority is the continuous officiation counted from the date of acquiring the
educational qualification, as prescribed under Schedule 'B'. It is held that since the appellant was holding the requisite qualification of D.Ed. for
appointment to the post of Assistant Teacher in Primary School, as prescribed in Schedule 'B' to the Rules, her seniority was to be counted on the
basis of continuous officiation in the post of Assistant Teacher from 24Â8Â1979. The respondent No.4 was appointed subsequently on 1Â9Â1980
and, therefore, the appellant would naturally be senior to the respondent No.4.
The criteria for determining seniority is the continuous officiation in the category of appointment counted from the date of acquiring the educational
qualification, as prescribed under Schedule 'B', as laid down by the Apex Court, is required to be applied and followed. Before applying this
principle, the Court has to answer the questions  (i) In which categories of Assistant Teachers 'C' to 'H' under Schedule 'F', the initial appointment
was made?, and (ii) The date of acquiring the qualification mentioned in Schedule 'B' for appointment in such category. If an Assistant Teacher
was possessing the qualifications for appointment specified in Schedule 'B' on the date of appointment, his seniority is to be counted from the date of
his appointment in the category of his initial appointment. If the essential qualifications in terms of Schedule 'B' are acquired after the appointment,
then the seniority is to be counted from the date of acquisition of such qualifications. There has to be a common categoryÂwise seniority of the
Assistant Teachers prepared on the basis of the principle laid down by the Apex Court. There cannot be different principles for counting seniority in
different categories of Assistant Teachers 'C' to 'H' in Schedule 'F' of the Rules.
In the present case, the petitioner was qualified for being appointed to the post of Assistant Teacher either in Category 'D' or Category 'E' on the
date of his initial appointment on 16Â7Â1982 and, therefore, his seniority has to be counted from the said date. Though the respondent No.3 was
appointed in Category 'C' of Teachers under Schedule 'F', his appointment was on 1Â7Â1987, i.e. subsequent to the appointment of the petitioner, and
though he was possessing the requisite qualifications for being appointed in Category 'C', he would not climb above the petitioner in the seniority list.
The petitioner was obviously, therefore, senior to the respondent No.3 in service, and the decision of the Tribunal holding otherwise along with such a
decision taken by the Management or the Education Officer, cannot be sustained.
The reliance was placed upon the decision of the Division Bench of this Court delivered in Writ Petition No.6242 of 2017 [Rajendra s/o Bhuraji
Masram v. State of Maharashtra and others] on 25Â9Â2017, and it being a short, is reproduced below :
“Judgment of Hon'ble Apex Court in the case of Viman Vaman Awale .vs. Gangadhar Makhriya Charitable Trust & others (Civil Appeal No.7699
of 2014 arising out of S.L.P. (Civil) No.29696/13) decided on 31.8.2014 has obviously no application because here seniority list to be prepared is of
teachers falling in Category 'C'. Teachers cannot enter Category 'C' unless and until he is graduate and holds training qualification.Contention that,
therefore, date of acquiring B.Ed. Degree cannot be relevant for deciding seniority is erroneous. No case is made out. Petition is rejected.â€
The aforesaid case was dismissed in motionÂhearing and it does not constitute a ratio. Be that as it may, the decision does not run contrary to the
view which I have taken. What the Division Bench has said is probably in respect of two teachers, who were appointed in Category 'C', and
probably it was not a case where one person was appointed in Category 'C' and the other person was appointed either in Category 'D' or Category 'E'
under Schedule 'F' of the MEPS Rules. In this background, the Court has rejected the contention that the date of acquiring B.Ed. degree cannot be
relevant for deciding seniority and, therefore, the said decision does not run contrary to what has been held in the present case.
In the result, this petition is allowed. It is declared that the petitioner was senior to the respondent No.3 and was entitled to be promoted to the
post of Assistant Head Master with effect from 1Â8Â2010, and consequently to the post of Head Master on 1Â5Â2012. Since the petitioner has
retired from service, the promotion granted to the respondent No.3 is notionally set aside. However, there shall be no recovery of payment, if any,
made in excess from the respondent No.3. The petitioner would be entitled to the notional benefit and ultimate fixation of pension on the post of
Assistant Head Master from 1Â8Â2010, and on the post of Head Master from 1Â5Â2012. The petitioner would not be entitled to any arrears,
though retiral benefits shall be calculated accordingly.
Rule is made absolute in the aforesaid terms. There shall be no order as to costs.