2019 (4) TMI 1954 - HC - Indian Laws

Seniority in Job - Rules of service - once persons from different sources enter a common category, how should their seniority be reckoned? - Is it from the date of their entering and continuously officiating in the service or from the date of their acquiring qualification to reach that common category? HELD THAT - The petitioner's date of initial appointment as a primary school teacher was 1-3-1972; then, he had S.S.C. He, however, improved his qualification in 1981, by passing Diploma in Education (D.Ed.). On the other hand, the respondent No. 2 was initially appointed on 1-7-1973; then he too had S.S.C. But he acquired the D.Ed., in 1980; that is, one year before the petitioner could. If the seniority was to be reckoned from the date of initial appointment and continuous officiation, the petitioner would emerge senior. If the seniority was to be counted from the date of the teacher's acquiring the requisite qualification (D.Ed. in the present case), respondent No. 2 would be senior. The learned Full Bench has observed that an employee must belong to the same stream before he can claim seniority vis-a-vis others. With an improved qualification, the person may join the regular stream. At that point of confluence with the regular stream, those who have already been in the stream can claim seniority vis-a-vis those who join the same stream later. Emphatic is the observation that the late comers to the regular stream cannot steal a march over the early arrivals in the regular queue. This Court's series of judicial pronouncements as cited, with the final cap by the Supreme Court's VIMAN VAMAN AWALE VERSUS GANGADHAR MAKHRIYA CHARITABLE TRUST 2014 (8) TMI 1210 - SUPREME COURT unmistakably lays down the law Among Primary Teachers, the seniority is counted from the date of the teacher's joining service. On the other hand, among the Secondary Teachers, the seniority is counted based on when the teachers had been placed in a particular category--for their seniority stands graded and categorized by the date of their very joining. This categorization is qualification-dependent. Placed in the descending order of category, the teachers rise in ranks of seniority with their additionally acquired qualifications under Guideline (2) of Schedule F, appended to Rule 12 of the MEPS Rules. A teacher who is a member of a lower category can in no manner rank senior to the teacher who is already a member of a higher category. Such a claim could be based neither on his continuous service nor on his acquiring the qualification and reaching the higher category. To be specific a teacher, for example, in Category D, E, or F, on later migration to Category C, cannot steal a march over a teacher already ensconced in that higher Category. That teacher's seniority by length of service and by his or her later acquiring the requisite, additional, or even superior qualifications does not defeat the right of teachers already found placed in Category C. What applies to Primary Teachers cannot apply to Secondary Teachers, for the Rules do keep these two streams of teachers unmixed. Once, secondary teachers enter a common category from different sources, how should their seniority be reckoned is it from the date of their entering and continuously officiating or from the date of their acquiring qualification to reach that common category? - The seniority must be reckoned from the date they entered the desired category; that is, from the date they acquired the necessary qualification, but not from the date of their entry into service. Is there any universal principle for this proposition or does it depend on the rules of service? - No. the seniority in any cadre depends on the statutory position--principal or subordinate--that governs the employees of an establishment. Here, it is governed by the Guidelines in Schedule F, under Rule 12, of MEPS Rules. The writ petitions is allowed holding that (a) The two Government Circulars of 24th January 2017 and 14th November 2017 may stand unaffected vis-a-vis the Primary Teachers. (b) Those two Government Circulars, however, cannot be sustained vis-a-vis the Secondary Teachers, to the extent those GRs mandate that the teachers' seniority be reckoned from the date of their first appointment and continuous service. (c) The Government and the authorities concerned, including the School Managements, will recalibrate the relative seniority of the Secondary Teachers based on the Category they belong to and based on when they have entered that Category.

Summary

Issues Involved:
1. Determination of seniority among secondary school teachers with different qualifications and entry times.
2. Interpretation of relevant government circulars and statutory provisions.
3. Analysis of precedents and conflicting judgments from co-equal benches.

Issue-wise Analysis:

1. Determination of Seniority Among Secondary School Teachers:
- Primary Issue: How should seniority be reckoned once teachers from different sources enter a common category?
- Key Questions: Should seniority be based on the date of entering service or the date of acquiring qualifications? Is there a universal principle, or does it depend on service rules?
- Facts: Petitioners, who entered service as trained graduate teachers, challenged the seniority list prepared by the respondent school, which placed them below teachers who acquired qualifications later.
- Legal Framework: The case revolves around the Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1977, and the Rules, 1981, particularly Schedule F under Rule 12.
- Petitioners' Argument: Seniority should be based on the category they belong to, not the date of appointment. The impugned circulars violate the statutory scheme.
- Respondents' Argument: Seniority should be based on continuous officiation and initial appointment date, irrespective of later-acquired qualifications.

2. Interpretation of Relevant Government Circulars and Statutory Provisions:
- Circulars in Question: Government Circulars dated 24th January 2017 and 14th November 2017.
- Circulars' Directives: Seniority should be fixed based on initial appointment and continuous service, not the date of acquiring qualifications.
- Statutory Scheme: MEPS Act and Rules mandate qualifications and seniority guidelines, with Schedule F categorizing teachers and providing guidelines for seniority based on qualifications.
- Court's Analysis: The court examined the circulars in light of the statutory provisions and found that while they may apply to primary teachers, they do not hold for secondary teachers whose seniority is qualification-dependent.

3. Analysis of Precedents and Conflicting Judgments from Co-equal Benches:
- Key Precedents:
- Viman Vaman Awale v. Gangadhar Makhriya Charitable Trust (2014): Seniority for primary teachers is based on the date of joining and continuous officiation.
- Bhawana v. State of Maharashtra (2019): Seniority for secondary teachers is based on the date of acquiring qualifications, not the date of joining service.
- Court's Conclusion on Precedential Conflict: The court found no conflict between Viman Vaman Awale and Bhawana as they pertain to different categories of teachers (primary vs. secondary). The principles from both cases were applied consistently within their respective contexts.
- Other Relevant Cases: The court reviewed multiple cases, including Sunil v. Amravati Zilla Parishad, Anjali Jayant Khati v. Bal Mandir Sanstha, and others, which supported the view that seniority among secondary teachers should be based on qualifications and category entry date.

Conclusion:
- Final Holding: Seniority among secondary teachers must be reckoned from the date they entered the desired category by acquiring the necessary qualifications, not from the date of their initial appointment.
- Impact on Circulars: The government circulars dated 24th January 2017 and 14th November 2017 cannot be sustained vis-a-vis secondary teachers to the extent they mandate seniority based on initial appointment and continuous service.
- Directive: The authorities must recalibrate the relative seniority of secondary teachers based on their category and the date they entered that category.

Order:
- The writ petitions are allowed, and the impugned circulars are invalidated concerning secondary teachers. The authorities must revise the seniority lists accordingly. No order on costs.