TMI Blog2019 (4) TMI 1954X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Guide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 32036, 33510 of 2018 and Contempt Petition (ST) No. 8326 of 2018 - - - Dated:- 9-4-2019 - B.R. Gavai And Dama Seshadri Naidu, JJ. For the Appellant : N.V. Bandivadekar, S.A. Mane, Pranita Hingmire, A.A. Garge i/b J.H. Oak, Kedar Dighe, Rupali M. Shinde and S.B. Kalel, AGP For the Respondent : Kedar Dighe, Rupali M. Shinde, S.B. Kalel, AGP, Mihir Desai, Senior Advocate i/b S.S. Jadhav, Rameshwar Gite, Rajesh Kolge and Anupama Shah JUDGMENT Dama Seshadri Naidu, J. 1. Two sets of persons, with diverse qualifications, enter service as Secondary School Assistants, at different times. They are placed in different categories of seniority, not based on their date of joining, but based on their qualification. With time, the teachers who are placed in lower category rise through the rungs, after acquiring additional qualifications. Thus, most may get paced in one common higher category, sooner or later. But those who scale up and reach that particular category later may have actually joined the service earlier. The Questions: 2(a). Here, the question is, once persons from different sources enter a common category, how should their seniority be reckoned? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red qualifications. 7. Aggrieved, the petitioners challenged exhibits G and H circulars and, consequently, sought the invalidation of Exhibit D seniority list, as well. WP (ST) No. 33510 of 2018: 8. In this writ petition, there are 96 petitioners. None of the rival contenders to the seniority finds arrayed as a respondent, though. WP No. 11022 of 2018: 9. Here, there are 19 petitioners. As with WP No. 33510 of 2018, no rival contender is seen arrayed. WP (ST) No. 32036 of 2018: 10. In this Writ Petition there are two petitioners; they have a seniority dispute with the Respondents 5, 6, 7. In fact, the first petitioner is a registered association of the teachers having B.Ed., qualification. WP No. 3970 of 2018; WP No. 11695 of 2018; WP 14256 of 2018: 11. In each of these writ petitions, there is a sole petitioner. He has his seniority dispute with the respondent teachers, as arrayed in each one. Submissions: Petitioners': 12. In summary, the petitioners' counsel have argued that the impugned circulars violate the statutory scheme of seniority. To elaborate, they contend that the teachers in the secondary schools must have their seniority g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondary teachers. According to them, in both cases the seniority has to be reckoned from the date of initial appointment. In other words, once an untrained graduate teacher enters category C with improved qualifications, the length of service alone matters. 19. Finally, the learned counsel maintain that the impugned circulars do not suffer from any legal infirmity. On the contrary, they accord with the statutory mandate, besides complying with the judicial mandate frequently emanating from this Court and the Supreme Court. Government's: 20. The learned Assistant Government Pleader has submitted that the authorities have followed the numerous precedents of the Supreme Court as well as this Court to fine-tune the reckoning of seniority in private schools. Besides drawing our attention to an avalanche of authorities on the issue, he eventually stresses that the Supreme Court has recently rendered two conflicting judgments--through coequal Benches, at that. According to him, the Government acted on the earlier one and redefined the Seniority and redrawn the seniority lists. Now the later one may unsettle what has already been settled. For, as he maintains, the later of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be fixed as per the directions of the High Court. (as gathered from the translated copy). 26. The Government Circular, dated 24 January 2017, refers to para 5 of the earlier circular and proceeds to lay down the method of calculating the seniority of both the primary and secondary teachers. It emphasises the need of maintaining a common seniority list, based on a learned Single Judge's judgment, at Nagpur Bench, in a batch of Writ petitions: W.P. (ST) No. 2280 of 1997 and others. 27. According to the circular, the guidelines for seniority read: 1. Unless the candidate acquires the degree qualification, he shall not acquire a place in the subject-wise graduate seniority list. 2. While preparing the seniority list of graduate primary teachers, the school authorities must fix their seniority based on their initial appointment; that is, without considering the date of their acquiring the degree. 3.... 4. For promotion, instead of the seniority list of graduates or the subject-wise seniority list, the common seniority list as per the provisions of schedule F to the MEPS Rules, 1981, should be held valid, (taken with modification from the translated copy) 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econdary school. And the Government treats Standards I to V in a school as primary education . 31. The definitional dynamics further examined, School in Section 2 (24) of the Act has a compendious, comprehensive definition: it can be a primary school, secondary school, higher secondary school, junior college of education, or any other institution by whatever name called. The Primary School stands defined in Section 2(19): a recognised school, or a part of such school in which primary education is imparted. A private school , according to Sub-Section (20), is a recognised school established or administered by a Management, other than the Government or a local authority. 32. Whether a school receives any grant-in-aid or not, every private school in the State of Maharashtra, as Section 3 stipulates, stands covered by the Act. Of course, the minority schools largely remain unaffected by the Act. And Section 4 empowers the State Government to make rules providing for the minimum qualifications for recruitment (including its procedure), duties, pay, allowances, post-retirement and other benefits, and [service] conditions of private school employees. The State Government can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en under exceptional circumstances, though. 38. As classified under Rule 10, the employees of a school can be permanent or non-permanent; those non-permanent employees may be either temporary or on probation. Pivotal is Rule 12, which deals with seniority, the bone of contention here. It plainly declares that every management prepare and maintain seniority list of the teaching staff and non-teaching staff in the School in accordance with the guidelines laid down in Schedule F . 39. Under Rule 25, every employee desirous of earning higher qualifications must get the employer's leave. But this limitation does not apply to professional courses, such as B.Ed. or D.Ed., which are prerequisites of a teacher. Mere intimation will suffice. Schedules: 40. Indeed, seniority is not a stand-alone statutory benefit; it depends, as the statutory scheme may dictate, on myriad factors. Here it depends on qualification. So let us examine what Schedule B says about qualifications. (a) Primary Teachers: 41. As per this Schedule, to be appointed a Primary Teacher, a person must have passed (a) S.S.C., or (b) Matriculation, or (c) Lokshala examination, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant for our purpose. So are the posts of Teachers in Junior Colleges. Seniority: 45. Now, we should examine the Seniority . In terms of Rule 12, Schedule F provides the guidelines for fixing the seniority. And the Schedule F reads: 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 the dates of their appointments to the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B, the seniority counts from the date of appointment. In Categories C to H, the teachers' seniority depends on the total service rendered by the person in a particular cadre. The Rulemaking authority, as judicially noted on many earlier occasions, was conscious of this gradation; so it prescribed a descending order of gradation to the holders of category 'C, D, E or F'. That is, a teacher in category 'F' or 'G' could in no manner rank senior to a teacher in category 'C, 'D' or 'E'. Then, let us examine how the gradation pans out. 49. As we understand, Categories A and B are post-specific; they have nothing to do with the qualification, barring the basic one. In other words, they are similar to the teachers in Primary Schools; their seniority counts from the date of appointment. On the other hand, Categories C to H are qualification-specific. To put it explicitly, on their joining the service, based on their entry-level qualification, the teachers will, by default, belong to one particular category. In that default category, they will have their seniority reckoned based on the date of their joining. 50. While in service, teache ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B.Ed. being the Bachelor's Degree, in comparison with D.Ed., being the Diploma, the degree would be higher than the diploma and, there from on that very count alone a holder of B.Ed. would be superior to D.Ed. holder and hence can be employed as a primary school teacher. The Way Forward: 55. True, it is not a case of first impression--that is, res integra. This Court and the Supreme Court, too, have grappled with the issue of seniority. In fact, ironic as it may sound, the Government cites precedential compulsion for its issuing the Circulars: altering the method of seniority. So it pays to examine the precedents, a tad too many to anyone's comfort, to ascertain the prevailing judicial position on this recurring issue. The learned Government Pleader has stressed that Viman Vaman Awale and Bhawana conflict with each other. According to him, a later coequal Supreme Court Bench has decided Bhawana unaware of the earlier Vimal Vaman Awale. 56. According to the learned Government Pleader, the Government has drawn the secondary teachers' seniority and has even promoted some, guided by Viman Vaman Awale. Now, if this Court follows Bhawana, a later judgment, it will c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son Reuters, 2016, pp. 44-46--the learned authors have elaborately treated this principle. According to them, there can be no cavil about what binds of a decision as a precedent. It is the holding. 62. And holding emerges when the ratio--the pure principle of law--is applied to the facts of a case. That is, a holding is what the court decides after combining the facts of a case with the legal principles those facts attract. While holding might be thought to equate more nearly with the court's determination of the concrete problem before it, ratio decidendi is normally seen, according to them, as a genus-proposition of which the concrete holding is one species or instance. They do admit that the distinction is a fine one for those who observe it. In the end, they declare that ratio requires adherence to the extent possible, but the holding compels compliance fully. Thus, stare decisis admits of no exception to a 'case-holding' in the adjudicatory hierarchy. 63. Then, we can adopt Arthur L. Goodhart's assertion Determining the Ratio Decidendi of a Case, Yale Law Journal, Dec, 1930 that it is not the rule of law set forth by the court, or the rule enunciated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Yet in the seniority list, the appellant was shown below the fourth respondent--the better qualified, but later joined teacher. On the appellant's challenge, the Tribunal ruled that seniority is to be considered from the date of [a candidate's acquiring] this professional qualification, that is being the 'Trained Teacher . This Court affirmed the Tribunal's findings. Undaunted, the appellant appealed to the Supreme Court. 69. The Supreme Court has ruled in the appellant's favour. It has held that among various alternative qualifications prescribed for the post of Primary School Teachers, one is the Diploma in Education Examination (D.Ed.). So a person's holding this qualification would be treated as satisfying the qualification stipulated in Rule 6. Then, that person should be treated as 'Trained Graduate', as defined in Rule 2(1)(j) of the Rules. Reasoning thus, the Court disregarded the additional qualifications. 70. To conclude as above, Viman Vaman Awale has relied on Rule 12 of the Rules, which deals with seniority. The clear and unambiguous criterion for determining the seniority, according to Viman Vaman Awale, is the continuous offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cadre . So the appellant's acquiring B.Ed., and her becoming a trained Assistant Teacher later, the counsel further asserted, would not take away the appellant's right to seniority. 75. Repelling the appellant's arguments, Bhawana holds--in fact, reiterates--that seniority in the primary school is based on the date of the teacher's joining service and continued] officiation. On the other hand, the seniority in the secondary schools, junior colleges of education, and junior college classes attached to secondary schools and senior colleges, stands graded into separate categories, from A-H. As to the persons holding various qualifications falling in categories C to H, their seniority is determined, Bhawana clarifies, based on the total service rendered by the teacher in a particular cadre . And the method of promotion, then, stands explained in Note 5. 76. Illustratively, Bhawana observes that a person who is a member of category 'F' or 'G' can in no manner rank senior to the teacher who is in category 'C', 'D' or 'E' merely based on his or her continuous service rendered in the category to which th[at] person be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt was dealing with a similar question under Art. 141. It has held that if a clear conflict occurs between two decisions of the Apex Court of an equal number of Judges, the later decision will bind the High Court. Many other High Courts, too, have held the same view: Gujarat Housing Board, Ahmedabad v. Nagajibhai AIR 1986 Guj. 81(FB), Gopal Krishna Indley v. 5th Addl. District Judge, Kanpur AIR 1981 All. 300, Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd. AIR 1980 Kar. 92(FB), Deputy Commissioner v. Anandan 1987 (1) KLT 192 (DB). 82. Yet earlier, another Division Bench of this Court in Manasing Surajsingh v. The State Maharashtra (1968) 70 BOMLR 654, has quoted with approval Salmond's observations in his treatise on Jurisprudence 12th Edition Page 153: Where authorities of equal standing are irreconcilably in conflict, a lower court has the same freedom to pick and choose between them as the schizophrenic court itself. The lower court may refuse to follow the later decision on the ground that it was arrived at per incuriam, or it may follow such decision on the ground that it is the latest authority. Which of these two courses the court adopts depends, or shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unciated in Bholanath has our unqualified concurrence : that the High Court may follow the one which, in its view, is better in point of law . (d) Yet Another View: 88. A Special Bench of Five Judges of the Madhya Pradesh High Court in Jabalpur Bus Operators Association v. State of Madhya Pradesh AIR 2003 MP 81, examined the precedential value of conflicting judgments of coordinate Benches. It has eventually held that if a conflict occurs between judgments of two Division Benches of equal strength, the decision of earlier Division Bench shall be followed unless it is explained by the latter Division Bench in which case the decision of latter Division Bench shall be binding. 89. Indeed, Jabalpur Bus Operators Association has observed that High Courts and Subordinate Courts should lack the competence to interpret decisions of Apex Court since that would not only defeat what is envisaged under Article 141 of the Constitution of India but also militate against the hierarchical supremacy of Courts. (e) The Icing on the Cake: 90. In Sundeep Kumar Bafna v. State of Maharashtra AIR 2014 SC 1745, a two-Judge Bench of the Supreme Court faced the conflicting judgments of two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e F, the seniority of primary school teachers shall be based on the date of joining service and continuous officiation. Both the candidates duly qualified, Viman Vaman Awale upheld the seniority of the teacher that joined the service first. 94. In Bhawana, as we have already observed, the teacher who entered the service first had no prerequisite qualification-- B.Ed. So she joined the service as an untrained teacher, falling in category 'F'. The other teacher entered the service as a trained teacher and placed himself straightaway in C Category. The first teacher could get the B.Ed., and enter that Category only later. So as per Clause (II) of Schedule F--and as clarified by Note 4--the categories mentioned in Schedule F represented the ladder of seniority in descending order. Thus, Bhawana has held that a teacher in Category F, on later migration to Category C, cannot steal a march over a teacher already ensconced in that Category. 95. Therefore, we conclude that Viman Vaman Awale and Bhawana do not conflict with each other; they have taken no divergent precedential paths. Though Bhawana may not have been aware of Viman Vaman Awale, both decisions have displayed rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acher though the untrained teacher may be senior, in the literal sense. Referring to Schedule 'F', Anjali Jayant Khati lays down that the seniority must be fixed mainly on three criteria: (a) the length of continuous service; (b) the acquisition of professional qualification; and (c) the age if two or more candidates or teachers are appointed on the same day. 99. Ashok Narayan Sathe v. Education Officer (Secondary), Zilla Parashad 2007 (4) Mh. LJ 358, another Division Bench decision, in fact, is a precursor to Sau. Mamta Pandurang Nimje and Anjali Jayant Khati. All these three squarely accord among themselves in their judicial dicta, as was later echoed in Bhawana. Not to proliferate, we may note that Pushpanajali Subodha Shenvi v. Nagrik Seva Mandal 2016 (5) Mh. LJ 856, too, takes the same stand. In Shantaram Dhondu Ahire v. Education Officer (Secondary), Zilla Parishad WP No. 7113 of 2015, decided on 10th October 2017, a learned Single Judge has followed Anjali Jayant Khati. The same precedential path is taken by Chagan v. Education Officer (Secondary), Zilla Parishad 2018(3) Mh. LJ 720, another decision by a learned Single Judge. 100. The earliest among these decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cking the qualification. Thus, Vivek turns on its own facts--especially that the petitioner joined before the 1st October 1970. 105. In Chgan v. Education Officer (Secondary WP No. 1391 of 2016, decided on 25th March 2019, as gathered from the judgment, the petitioner was appointed as an Assistant Teacher in the respondent School on 01.08.1985 for teaching 5th to 7th standards. He was fully qualified, as he was possessing S.S.C., and D.Ed. Respondent 4 to 7, on the other hand, were holding Graduation and B.Ed. The fourth respondent was initially appointed temporarily on 16.07.1985. Later, on 24.11.1988 he was appointed in a regular vacancy, to teach higher standards. Respondent Nos. 5 to 7, too, were appointed on 15.07.1989, to teach higher standards. All had the necessary qualifications of Graduation with B.Ed. 106. In course of time, after his acquiring B.Sc., the petitioner was brought into the category in which the requisite qualification is Graduation. He came into that category on 21.02.1997. The petitioner has contended that he was appointed on 01.08.1985 in a post for which he was holding the requisite qualification. And the respondents 4 to 7 were appointed later, al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts, 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. 113. 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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? 119. 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. 120. Is there any universal principle for this proposition or does it depend on the rules of service? 121. 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. 122. We therefore allow all the writ petitions, holding: (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 appointmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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