Paragraph numbers below are the court’s original numbering, recovered from the source text.
18. Further, even in respect of temporary vacancy, Full Bench of the High Court held that in terms of Section 5 of the Act, the management is bound to fill the vacancy, be it permanent or temporary, by appointing a person duly qualified to fill such vacancy. It was reiterated that Section 5 mandates the management to fill in the permanent or temporary vacancy by appointing a person duly qualified to fill such vacancy. Rule 6 lays down that minimum qualifications for the post of teachers shall be as specified in Schedule ‘B’. Schedule ‘B’ in turn provides for minimum qualification for appointment to the post of primary school teachers and further prescribes the qualification of S.S.C. and D.Ed. or any other qualification equivalent to the same, as laid down in Clause 1 of Schedule ‘B’. The High Court held that if Rules 3(1)(a)(i) and (ii) are read in the light of provisions of Rule 6 and Schedule ‘B’, it is obvious that Rule 3(1)(a)(ii) only intended to relax the requirement of an experience of not less than 5 years’ service which is specifically provided for in Rule 3(1)(a)(i). The Scheme of the Act cannot be comprehended to hold that the legislature intended to do away with the requirement of the senior-most teacher being a trained teacher. It could not have been the intention of the legislature while framing Rule 3(1)(a)(ii) to deliberately omit the word “trained”. The omission of the word “trained” is an obvious drafting error and if the said word is not supplemented, the rule cannot be harmonized in tune with the scheme of the Act and the other Rules which are referred to hereinabove.
19. In view thereof, we find that the judgment of this Court in Viman Vaman Awale dealt with only seniority of teachers in a primary school. The said judgment does not make any reference to seniority of teachers in a secondary school. On the contrary, the judgment of this Court in Bhawna is a judgment pertaining to seniority of teachers in a secondary school. This Court held as under: “9. Undisputably, the fifth respondent was holding the qualification of BA, BEd at the time of his initial appointment dated 13-8-1997 and became a member of Category C. At the same time, the appellant though appointed on 27-6-1994 as an untrained teacher, having acquired the training qualification i.e. BEd on 19-9-1997 and became a member of Category C after entry of the fifth respondent into service as a trained teacher, could not have claimed seniority in Category C over the fifth respondent prior to acquiring professional qualification (BEd) as envisaged under the scheme of the 1981 Rules as trained teacher and this what was considered by the authority who examined the inter se seniority of the appellant vis-à-vis fifth respondent under the 1981 Rules and confirmed by the High Court on dismissal of the writ petition preferred by the appellant.”
20. The judgment in Bhawna is directly applicable to the present case inasmuch as Madhavi was holding the qualifications of B.A., B.Ed. at the time of her initial appointment on 16.7.1985, though she was appointed against a regular vacancy on 24.11.1988. However, Chagan was not qualified for appointment as Assistant Teacher as he graduated in Science only in the year 1997 and passed B.Ed. in 1999. He was upgraded to Category ‘C’ only upon acquiring these qualifications. Accordingly, the seniority list circulated on 1.1.2014 mentioned Chagan’s name at Serial No. 10 while Madhavi was placed at Serial No. 2, though first in Category ‘C’.
21. Chagan was only having senior secondary certificate and a Diploma in Education at the time of his appointment. With such MADHAVI v. CHAGAN & ORS. [HEMANT GUPTA, J.] qualifications, he was an under-graduate teacher falling in Category II(2)(i) or (ii) of Schedule ‘B’ of the Rules. Such teacher is assigned Category ‘E’ as per Schedule ‘F’. Clause II(1) of Schedule ‘B’, is in respect of teachers possessing graduate degrees. When Chagan qualified B.Sc. in 1997, he climbed the ladder and became part of Category ‘D’ and later on after acquiring B.Ed. degree, he entered Category ‘C’, whereas Madhavi and other private respondents were already in Category ‘C’ since the date of their appointment being graduates and degree holders in teaching i.e. B.Ed.
22. Clause 1 of Schedule ‘F’ deals with seniority of teachers in the primary school. The fact that the School in question is not a primary school could not be controverted by learned counsel for Chagan. Therefore, it is Clause 2 of Schedule ‘F’ which would be referred to in order to determine the seniority of teachers in the secondary school.
23. The Scheme of the Act and the Rules makes it clear that primary and secondary schools have been treated differently in the same set of Rules. Rule 2(e) has entrusted the duties of Education Officer or Education Inspector in relation to secondary or higher secondary school, whereas, the Education Officer in respect of a primary school is Education Officer or the Administrative Officer of the Municipal Corporation or a Municipal School Board. Similarly, Rule 3 prescribes different rules for appointment of a head of a primary school and the head of the Secondary School. Part I of Schedule ‘B’ prescribes qualifications for the appointment of teachers in Primary School, whereas Part II prescribes qualification for appointment of teachers in Secondary School and Junior colleges of Education. Chagan had joined Secondary School as an untrained undergraduate teacher. He therefore falls in Clause 2 of Part II of Schedule ‘B’. Similarly, Schedule ‘F’ deals with rule of seniority having different categories. Category ‘E’ is the lower-most level of the ladder which can be upgraded with improvements in the qualifications of the teachers.
24. We find that the High Court failed to appreciate the distinction between Clause 1 and Clause 2 of Schedule ‘F’ of the Rules. Clause 1 was the subject matter of interpretation by this Court in Viman Vaman Awale and Clause 2 was the subject matter of interpretation in Bhawna Vaijanath also dealt with promotion to the post of Head Master of a School falling in Clause 1 of Schedule ‘F’. Since the School in question is a secondary school, therefore, Clause 2 of Schedule ‘F’ will determine the seniority. Chagan was not a trained teacher to be part of Category ‘C’ at the time of his appointment on 1.8.1985 and he was rightly placed in Category ‘E’ on account of his qualification but he upgraded his qualifications, and hence was placed in Category ‘D’ and ‘C’ on acquiring graduation and B.Ed. degrees respectively.
25. Keeping in view the principle laid down in Vaijanath, Madhavi was qualified for appointment as a temporary teacher as she was a graduate and also possessed B.Ed. degree. Her appointment was thus in accordance with Section 5(5) of the Act, so was the appointment of the other private respondents. However, Chagan could not be treated to be part of Category ‘C’ from the date of his initial appointment i.e. 1.8.1985 as he was neither a graduate nor a trained teacher when he was appointed. Also, Chagan was not even a trained teacher on the date of his appointment and thus cannot claim seniority on such ground from the date of his initial appointment.
26. Thus, we find that the judgment of the High Court in review cannot be sustained in law and the same is hence set aside. The Writ Petition is ordered to be dismissed. The present appeals are thus allowed. In view of the above, the contempt petition is dismissed. Ankit Gyan Appeals allowed and Contempt Petition dismissed. MADHAVI v. CHAGAN & ORS. [HEMANT GUPTA, J.]