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TMI Blog2014 (8) TMI 1210X X X X Extracts X X X X X X X X Extracts X X X X ..... Diploma in Education Examination (D. Ed.). Therefore, a person holding this qualification would be treated as satisfying the qualification stipulated in Rule 6. As a consequence, he would be treated as 'Trained Graduate', as defined in Rule 2(1)(j), which means a person possessing the qualifications mentioned in Sub-clauses (i) to (vi) of Clause (1) of item II in Schedule B . The Appellant was having the requisite minimum qualification for appointment to the post of Assistant Teacher in the Primary School and it was not a case of appointment of an unqualified teacher when the Appellant was appointed to the said post on 24.08.1979 - In the present case, when it is found that the Appellant was qualified to be appointed as Assistant Teacher in Primary School on the date of his appointment, acquisition of higher qualification at a later date, even when such a higher qualification is requisite qualification for the higher post, will not be determinative for fixing the seniority. In the case at hand there is a specific Rule, namely, Rule 12 of the Rules, which deals with seniority. The clear and unambiguous criteria for determining seniority is the continuous officiation c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mprove her academic record, the Appellant even acquired the qualification of MA in the year 1997. On the other hand, the academic graph of Respondent No. 4 discloses that he was already BA when he joined the service as Assistant Teacher on 01.09.1980. He also did B. Ed. and completed that course on 01.11.1984 (that is, before the Appellant, who had acquired the same qualification on 20.05.1986). 4. A seniority list was circulated by the School authorities (from the record, the date of this list is not discernible) wherein the Appellant was shown as junior to Respondent No. 4. The Appellant claimed that she was senior and, therefore, filed objections to the said seniority list, which, however, did not yield any result. 5. The then Headmaster of the School, one Mr. K.R. Lakeri, was due to retire on attaining the age of superannuation on 31.12.2009. The Appellant claimed that she should be promoted as Headmistress, being the senior most teacher on the retirement of Mr. Lakeri and submitted an application to this effect on 16.05.2009, which was followed by another communication dated 01.12.2009. In reply, she received the communication dated 29.12.2009 from Respondent No. 1, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the School Tribunal, seniority is to be considered from the date of acquisition of this professional qualification, that is being the 'Trained Teacher'. In this context, the School Tribunal took note of the fact that Respondent No. 3 School is a Secondary School, having classes of v. to X and as such, as per Rule 3(1)(b), the required qualification must be graduate teacher possessing bachelor's degree in teaching and five years teaching experience and out of this two years experience shall be after acquiring bachelor's degree. Further, Schedule-B of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as the 'Rules') provides the degree qualification for secondary teacher as Graduate plus B. Ed. On that reckoning, the date of acquiring the professional qualification becomes relevant, which was B. Ed., and since it is Respondent No. 4 who stole the march over the Appellant by acquiring this qualification earlier in point of time, he was to be treated as senior to the Appellant. The School Tribunal, in support of this conclusion that the date of acquisition of professional qualification would be the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of employees of private schools. Section 5 cast certain obligations of Management of private schools, which includes filling up of permanent vacancies in such schools by appointment of a person duly qualified to fill such vacancy. 14. We would like to reproduce, verbatim, provisions of Section 2(9) and Section 2(24A) as well as Section 4 of the Act, which are as under: Section 2(9) Head of a School , or Head means the person, by whatever name called in-charge of the academic and administrative duties and functions of a school conducted by any management and recognised or deemed to be recognised under this Act, and includes a principal, vice-Principal, head master, head mistress, assistant head master, assistant headmistress, or superintendent thereof; Section 2(24A) Assistant Teacher (Probationary) means a member of base teaching cadre appointed on honorarium and subject to such terms and conditions as specified in the Government Resolution published in Maharashtra Government Gazette, Extra-ordinary, No. 12, Part-I-Central Sub-section, dated the 15th February 2007, for eventual appointment as a teacher; Section 4 Terms and conditions of service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les with which we are concerned are Rule 3 (providing for qualification and appointment of Head); Rule 6 (stipulating qualifications needed for appointment as teachers) and Rule 12 (dealing with the seniority). Relevant portion of these Rules are as under: 3. Qualifications and appointment of Head. (1) A person to be appointed as the Head- (a) xx xx xx (b) of a secondary school including night school or a Junior College of Education shall be a graduate possessing Bachelor's degree in teaching or education of a statutory University or any other qualification recognised by Government as equivalent thereto and possessing not less than give years', total full-time teaching experience after graduation in a secondary school or a Junior College of Education out of which at least two years' experience shall be after acquiring Bachelor's degree in teaching or education: xx xx xx (3) The Management of a school including a night school shall fill up the post of the Head by appointing the senior most member of the teaching staff (in accordance with the guidelines laid down in Schedule f from amongst those employed in a school (if it is the only s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule F 1. Guidelines for fixation of seniority of teachers in the primary schools: The Seniority of primary school teachers in Primary Schools shall be based on continuous officiation counted from the date of acquiring the educational qualification as prescribed under Schedule B' appended to these rules. 2. Guidelines for fixation of seniority of teachers in the secondary schools, Junior Colleges of Education and Junior College Classes attached to secondary schools and Senior College: For the purpose of Fixation of Seniority of teachers in the secondary schools, Junior Colleges of Education and Junior College classes attached to Secondary Schools the teachers should be categorized as follows: Category A: Heads of Secondary Schools having an enrolment of students above 500 and Principals of Junior Colleges of Education having more than four Divisions on the basis of their appointments to the respective posts. Category B: Heads of Secondary Schools having an enrolment of students above 500, Principals of Junior Colleges of Education having four or less divisions and Assistant Heads of Secondary Schools having more than 20 classes on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein entered the service in Respondent No. 3 School as Assistant Teacher of a Primary School with Diploma in Education, i.e. D. Ed. qualification. She, thus, fulfilled the qualification for that post. B. Ed. degree is not the essential qualification prescribed for this post. This is a relevant factor which is to be kept in mind for resolving the controversy in issue. 18. In the aforesaid backdrop, it is to be seen as to whether acquisition of B. Ed. degree by Respondent No. 4 (who joined as Assistant Teacher after the Appellant and was junior to her as Assistant Teacher) earlier in point of time than the Appellant would tamper with the seniority of the Appellant and steal a march over her? The School Tribunal as well as the High Court has referred to the Full Bench judgment of the Bombay High Court in Shri Vaijanath (supra) while answering this question in the affirmative. The question which was referred for determination by the Full Bench in that case was to the following effect: 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 the date of acquisition of educatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 1964-65 and after the required training joined the Forest Department of the Government of Goa as Foresters with effect from 27.01.1965. They were promoted to the next higher cadre of RFO with effect from 08.03.1974. The first Respondent therein directly joined as RFO on 01.11.1975 a date subsequent to the date of promotion of the Appellants. In the various seniority lists, including the final seniority list, prepared and published on 30.07.1991 of the officers in the cadre of RFOs, the Appellants were shown at S. Nos. 5 and 8 whereas Respondent No. 1 was placed at S. No. 11. The ranking assigned in that seniority list was not been challenged at any point of time. Next promotion was to the post of ACF. As per the relevant Rules, the said post was a selection post and the method of recruitment to this post was in the ratio of 75% by promotion and 25% by direct recruitment. In the case of promotion, the eligibility criteria was fixed as under: (i) Range Forest Officers with 5 years' regular service in the grade and possessing diploma of Forest Rangers' Training from Forest Rangers College in India or equivalent. (ii) Unqualified Range Forest Officers trained in Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration is: can the acquisition of an earlier eligibility give an advantage to the first Respondent as against the Appellants when an avenue for promotion opens in the cadre of ACFs even though at what point of time the Appellants had also acquired the required eligibility? We are of the opinion that if at the time of consideration for promotion the candidates concerned have acquired the eligibility, then unless the rule specifically gives an advantage to a candidate with earlier eligibility, the date of seniority should prevail over the date of eligibility. The rule under consideration does not give any such priority to the candidates acquiring earlier eligibility and, in our opinion, rightly so. In service law, seniority has its own weightage and unless and until the rules specifically exclude this weightage of seniority, it is not open to the authorities to ignore the same. 10. The High Court has relied upon the language of Note 1 to the rule to come to the conclusion that the persons with earlier date of eligibility have a weightage over others solely on the basis that the note required the list of eligibility to be maintained on the basis of the date of acquisition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant was holding the requisite qualifications, i.e. D. Ed., 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 24.08.1979 and Respondent No. 4 came to be appointed subsequently, i.e. on 01.09.1980. The Appellant would naturally be senior to Respondent No. 4. 23. Insofar as manning the post of Head of the School is concerned, Rule 3 of the Rules provides for the qualifications. It is not in dispute that as on the date of which the Head of the School was to be appointed, the Appellant fulfilled all the requisite qualifications mentioned in the said Rule. Further, as already found, she was senior to Respondent No. 4 as well. Therefore, it is the Appellant who was the rightful claimant to the post of Head of the School. Depriving her of this legitimate right and making the appointment of Respondent No. 4 as the Head Master of the School was, therefore, clearly erroneous, which resulted in infringement of the rights of the Appellant to hold that post. 24. Accordingly, this appeal is allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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