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Judgment
Heard learned counsels for the respective parties.
The petitioner being aggrieved by the impugned judgment and order dated 13.07.2016 passed by the learned Presiding Officer, School Tribunal, Amravati, in Appeal No.75/2015, by which the appeal has been dismissed preferred the present petition by invoking the extraordinary jurisdiction of this Court.
In the present petition, the issue of the seniority for promotion to the post of the “Headmaster” is under challenge. Therefore, it would be relevant to record certain facts which are undisputed in the present case.
The petitioner was admittedly appointed in the School on 01.07.1987. At the time of his appointment, he was holding the qualification of B.A. and B.Ed. He has obtained the qualification of B.Ed in the year 2009. As such, the petitioner became a Trained Graduate Teacher (TGT), in the year 2009.
Respondent No.2 was appointed in the School on 01.07.1991 as an Assistant Teacher. At the time of his appointment, he was holding the qualifications of B.A. (Additional), BSW and B.Ed. As such, on the date of his appointment, respondent No.2 was holding the qualification of a Trained Graduate Teacher (TGT).
The petitioner approached before the learned School Tribunal, challenging the promotion of the respondent No.2 to the post of “Headmaster” of the School, with effect from 01.10.2014, by relying upon the decision of the Hon’ble Supreme Court of India in the case of Viman V. Awale Vs. Gangadhar Makhriya Charitable Trust and Others reported in 2014 (5) Bombay C.R. 529 S.C. According to the petitioner, the date of appointment is the criteria which is required to be considered by the Management, for considering the claim for promotion to the post of “Headmaster”. However, the Management by considering the date of acquiring qualification as a “Trained Graduate Teacher” decided the issue of seniority and thereby, superseded his claim for promotion.
Respondent No.2 contested the appeal before the learned School Tribunal. According to respondent No.2, the criteria laid down in the case of Viman Awale (supra), is applicable to the Primary Schools, whereas, the School which is involved in the matter is a Secondary School, therefore, the seniority is required to be considered as per the Guidelines for Fixation of Seniority of Teachers in Secondary Schools as provided in Clause 2 of Schedule F of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short “the MEPS Rules”).
The learned School Tribunal, accordingly, considered the submissions of both the parties and taking into consideration, the categorization of promotion as provided under Clause 2 of Schedule F of the MEPS Rules, held that for the Secondary School Teacher, the educational qualification is the criteria which is to be followed and not the length of service or continuous officiation of the employee. Hence, the learned School Tribunal has held that the law laid down by the Hon’ble Supreme Court in the case of Viman Awale (supra), is not applicable in the matter.
In support of his submissions, respondents have relied upon judgment of the Hon’ble Division Bench of this Court in case of Sunil Pandhari Nagrare Vs. State of Maharashtra and Others, reported in 2020(6) Mh.L.J. 675, wherein, by considering the judgment of Hon’ble Supreme Court, in case of Viman Awale (supra), held that while seniority of Primary School Teachers is to be reckoned on the basis of entry in service and continuous officiation and for seniority of Secondary School Teacher is to be determined on the basis of his entry in category A to H thereof. It would be relevant to refer para Nos.11 and 19, which reads as under :-
“11.It would thus be apparent that Clause-I and II of Schedule-B under Rules 2 (1) (j) and 6 of the MEPS Rules, 1981 read with the Guidelines under Schedule-F framed under Rule 12 of the MEPS Rules, 1981 clearly delineate that there are not only separate qualifications, but also separate Rules applicable for fixation of seniority of teachers in the primary schools, and for fixation of seniority of teachers in the secondary schools. Whereas the seniority of teachers in primary schools is based upon continuous officiation counted from the date of acquiring the educational qualification as prescribed under item (1) of Schedule "B", in case of teachers in secondary schools, the fixation of seniority, is categorized into Categories A to H based upon the qualifications held at the time of the initial appointment. It is permissible in case of secondary schools to climb the ladder, by improving one's qualifications as contemplated by Notes 3 and 4 thereunder. If any teacher among a particular category, improves his qualification and thereby switches over to a higher category, he would be joining the higher category at the lowest rung and does not steal a march over those already present in that category, even if his initial appointment may have been prior to that of those present in the category to which he is switching over. To clarify this, a teacher, in Category E, holding S.S.C. and diploma in education, in case subsequently improves his qualification by acquiring those qualifications as listed in Category C, and therefore, becomes entitled to be included in Category C, he will be the junior most in Category C, on his date of such inclusion, even though, he may have been appointed in Category E earlier in point of time than those already included in Category C. Any other interpretation would render Guideline-II and Notes 3 & 4 appended thereunder of Schedule F meaningless, for the reason that once the categories are created, then the seniority is clearly cadre based and the seniority therefore will have to be calculated and maintained categoriwise, based upon the date of entry in the particular category and the length of stay there. This would necessarily mandate that though the ladder of categories can be ascended by improving one's educational and teaching qualification as prescribed by Schedule B, the entry into the higher category on account of such acquisition/improvement of/in qualification, would enable such person to join at the bottom of the seniority list of that cadre/category and not otherwise, which status would continue with such person, till he remains in that category/cadre. In such a situation, the date of his initial appointment, in a lower category would become redundant and all that would matter, for determining his seniority, categorywise, would be the date of his entering such category, otherwise a teacher not qualified to enter or be included in a particular category, upon acquiring the requisite qualification, later on, may claim to have become senior to those already more qualified to him, by reason of which they already stood ensconced in that category earlier in point of time, which in our humble opinion, cannot be the meaning or interpretation given to Guideline-II of Schedule F read with Schedule B of the MEPS Rules, 1981 in the matter of determination of seniority of secondary school teachers.
19.It is in light of the above, that the judgment of the Hon'ble Apex Court in Viman Awale (supra) has to be considered. Though as contended by Mr. Gode, learned Counsel for the petitioner that para 8 of the judgment in Viman Awale (Supra), makes a mention, that the respondent No. 3 school therein, was a secondary school and the Education Officer (Secondary) Zilla Parishad, Satara was a party respondent No. 5 therein, however, this has to be considered in light of what is mentioned in para 5 therein, which indicates that the Court was considering the entire issue, in light of the proposal by the management, resolving to appoint the respondent No. 4 as headmaster of the school, which was forwarded to the Education Officer (Secondary). The judgment in Viman Awale (Supra), itself in para 15, has reproduced Schedule B, item 1, under Rules 2 (1) (j) and 6 of the MEPS Rules, 1981 which deals with the qualifications for primary teachers. In para 16, these qualifications for appointment of a primary teacher are again spelt out. In para 18 the Full Bench judgment of this Court in Vaijanath s/o Tatyarao Shinde vs. Secretary, Marathwada Shikshan Prasarak Mandal, Devgiri College Campus, Aurangabad and others, 2006(6) Mh.L.J. (F.B.) 682, which holds that for valid appointment of a primary school teacher, a person must possess educational and so also training/teaching qualification, has been considered and has been distinguished as inapplicable to the facts in Viman Awale (supra). In para 22, it has been held that the clear and unambiguous criteria for determining seniority is the "continuous officiation counted from the date of acquiring educational qualification as prescribed under Schedule 'B", and since for appointment to the post of assistant teacher in primary school, the petitioner possessed the requisite qualification, i.e. D.Ed., and there was no requirement for acquiring additional qualification, it was in that light held that the respondent No. 4, therein, who came to be appointed subsequently, though possessed an higher qualification of B.Ed., was not senior to the petitioner in Viman Awale (supra). The expression, 'continuous officiation', is found in Guideline-1 of Schedule F, which deals with fixation of seniority of teachers in the primary schools. The expression is not found in Guideline -II of Schedule F. It is therefore clear that the judgment in Viman Awale (supra), deals with an issue, regarding seniority of teachers in primary schools and not otherwise. Though the Court in para 15 has noted item-2 in Schedule F, which categorizes, teachers into Category A to H for the purpose of fixation of their seniority in secondary schools, the same has not been dilated upon in the judgment, which is another indication, that Viman Awale deals with the fixation of seniority of teachers in primary schools only and not otherwise.”
It is further pointed out that vide Government Resolution dated 03.05.2019, the State Government, clarified that the seniority of a Primary School Teachers as well as Secondary School Teachers, is required to be considered in accordance with Schedule F of the MEPS Rules. It is also recorded that the seniority of the Secondary School Teachers, shall be considered from the Categories A, B, C, D, E, F, G and H as provided under Clause 2 of the Schedule F of the MEPS Rules, whereas the seniority of Primary School Teacher, be determined on the basis of continuation in service.
In view of these guidelines which are based upon the judgment of this Court, the legal position is now clear that the criteria of the continuous officiating is applicable only in the cases where teachers in the Primary School and category-wise promotion is required for the Secondary School Teachers, on the basis of categories prescribed under Schedule F of the MEPS Rules.
The petitioner has further raised a ground in the present matter that respondent No.2 possesses the qualification of BSW, which is not equivalent to the qualification for a Trained Graduate Teacher (TGT). However, from the document dated 14.06.1999 filed by the petitioner on record, it is clear that the State Government has made clear that a person qualified as BSW along with the qualification of B.Ed., would be entitled for appointment as a Secondary School Teacher. If once employee is entitled to get appointment as Assistant Teacher, there is no provision under law that such employee cannot be promoted as “Headmaster” of the School. Therefore, the submission of the petitioner cannot be accepted in the present case.
The petitioner further made a submission that respondent No.2 has obtained the qualification of B.A. (Additional), in the third class and therefore, he is not entitled for the promotion. However, there is no such provision under the statute that a person who has obtained the qualification of B.A. in the third class, would not be entitled for appointment as a Trained Graduate Teacher (TGT).
In the present case, undisputedly, the appointment of respondent No.2 is of dated 01.07.1991 and he was shown in the category C of the Schedule F of the MEPS Rules. The petitioner acquired the status of “Trained Graduate Teacher” in the year 2009. In view of this fact, as the school involved in the matter is Secondary School, respondent No.2 was rightly promoted as “Headmaster”.
In the light of abovesaid reasons, I find that the present petition is being devoid of merit. Accordingly, the writ petition stands dismissed with no order as to costs.