"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) of The Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 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" (Para 18)
Madhavi v. Chagan & Ors.
Civil Appeal No. 3966 of 2020 (Arising out of SLP (Civil) No. 9611 of 2019)
With Civil Appeal No. 3967 of 2020 (Arising out of SLP (Civil) No. 10046 of 2019) and Contempt Petition (Civil) No. 647 of 2020 in SLP (Civil) No. 10046 of 2019
Decided on December 09, 2020.
A three-judge bench of the Hon’ble Supreme Court comprising of Justice L. Nageswara Rao, Justice Hemant Gupta and Justice Ajay Rastogi decided the present case.
The dispute arose at the time of appointment of the appellant as the Head Master of the School. Respondent No.1 claimed that he was appointed on regular basis on 1.8.1985 as against the appellant who was appointed against a temporary vacancy on 16.7.1985. Therefore, he contended that he is senior to Madhavi and in terms of The Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, he would be entitled to be promoted as Head Master. The promotion order dated 31.5.2014 promoting Madhavi as Head Master, promotion of respondent No. 5, who was promoted as Assistant Head Master, and respondent Nos. 6 and 7, who were promoted as Supervisors of the School was challenged in appeal before the learned School Tribunal.
It was contended that the post of Secondary Teacher was not vacant in the year 1985, therefore, Madhavi was illegally appointed as Primary Teacher which is Category ‘E’ post whereas he was appointed on 1.8.1985 and thus, he is senior to Madhavi. The learned School Tribunal dismissed the appeal on 1.1.2016; Chagan challenged the order passed by the School Tribunal by way of a Writ Petition before the High Court which was dismissed by the learned Single Bench. An application for review was filed on 2.12.2017 which was allowed with an order which stated that the vacant post of Assistant Head Master shall not be filled in. It is the said order which has been challenged by the School and Madhavi before this Court.
The learned Counsel for the appellant submitted that the School in the present case is not a primary school and therefore, Clause 1 of Schedule ‘F’ of the Rules cannot be applied for determining seniority of teachers in a secondary school. It was further contended that Chagan was not qualified to be appointed as a trained teacher in the secondary School. He relied on a judgment of Bombay High Court, Nagpur Bench in Gaur Pratibha & Ors. v. State of Maharashtra through the Secretary & Ors., 2019 SCC OnLine Bom 597.
On the other hand, learned Counsel for the Respondent argued that the Rules are common to both primary and secondary schools, and therefore, the principle laid down in Viman Vaman Awale v. Gangadhar Makhriya Charitable Trust & Ors., (2014) 13 SCC 219 would be a binding precedent, hence the principle laid down in the aforesaid judgment has been rightly applied by the High Court while setting aside the appointment of Madhavi as the Head Master.
The Court heard both Counsels and found the order of the High Court to be unsustainable in law.
The Court referred to the judgment of Bombay High Court in Vaijanath which dealt with the promotion to the post of Head Master of a primary school and stated:
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 herein above. (Para 18)
The Court observed:
The judgment in Bhawna is directly applicable to the present case in as much 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’. (Para 20)
The Court noted that the High Court failed to appreciate the distinction between Clause 1 and Clause 2 of Schedule ‘F’ of the Rules and stated:
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. (Para 25)
The Court set aside the judgment of the High Court, dismissed the Writ Petition and Contempt Petition and allowed the present appeals.
View/Download Judgment: Madhavi v. Chagan & Ors.
Jhanavi M
Comments