Seniority could not be claimed, if one is not a trained teacher as on the date of appointment: Supreme Court
Keeping in view the principle laid down in Vaijanath’s case, 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. The Supreme Court held this in, Madhavi v. Chagan &amp;Ors.( SLP (CIVIL) NO. 9611 OF 2019) The appellant herein was appointed with Shri Samarth Shikshan Sanstha on a temporary basis on 16.7.1985. At that time, she possessed graduation and B.Ed. degrees and was accordingly placed in Category ‘C’ of Schedule ‘F’ of The Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. However, she was not appointed against regular vacancy. Chagan was thereafter appointed as Assistant Teacher at the School on 1.8.1985 for teaching the students of Vth to VIIth standards, possessing qualification of Senior Secondary Certificate and Diploma in Education at the time of appointment. He was placed in Category ‘E’ of Schedule ‘F’ of the Rules. Both Madhavi and Chagan were appointed for teaching the same section. The School later approved their appointments against regular vacancies on 5.9.1986 w.e.f. 2.5.1986. On 24.11.1988, the School passed an order of upgradation of Madhavi to High School Scale w.e.f. 24.11.1988. The appointment of Madhavi was purely temporary upto the Academic Session 1988- 89. And thereafter, Chagan acquired B.Sc. degree. The dispute arose at the time of appointment of Madhavi as the Head Master of the School. Chagan claimed that he was appointed on regular basis on 1.8.1985 as against Madhavi 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 Rules, he would be entitled to be promoted as Head Master. The promotion order dated 31.5.2014 promoting Madhavi as Head Master was challenged in appeal before the learned School Tribunal. And the tribunal dismissed the application, as the appellant as per his qualification is not come under the category of trained graduate at the time of his appointment on 01.08.1985. n 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. 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. However, the court was of the view that, “Chagan was only having senior secondary certificate and a Diploma in Education at the time of his appointment. With such  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.”
IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3966 OF 2020 ARISING OUT OF SLPNO. 9611 OF 2019) CHAGAN & ORS. W I T H CIVIL APPEAL NO. 3967 OF 2020 ARISING OUT OF SLPNO. 10046 OF 2019) A N D CONTEMPT PETITIONNO. 647 OF 2020 SLPNO. 10046 OF 2019 JUDGMENT HEMANT GUPTA J. The present appeals are directed against the common order of the High Court of Judicature at Bombay Nagpur Bench whereby the review of the dismissed writ petition filed by respondent No. 11 was allowed and the order passed by the School Tribunal dated 1.1.2016 was set aside. 1 Hereinafter referred to as ‘Chagan’ The appellant2 herein was appointed with Shri Samarth Shikshan Sanstha3 on a temporary basis on 16.7.1985. At that time she possessed graduation and B.Ed. degrees and was accordingly placed in Category ‘C’ of Schedule ‘F’ of The Maharashtra Employees of Private SchoolsRules 19814. However she was not appointed against regular vacancy. Chagan was thereafter appointed as Assistant Teacher at the School on 1.8.1985 for teaching the students of Vth to VIIth standards possessing qualification of Senior Secondary Certificate and Diploma in Education at the time of appointment. He was placed in Category ‘E’ of Schedule ‘F’ of the Rules. Both Madhavi and Chagan were appointed for teaching the same section. The School later approved their appointments against regular vacancies on 5.9.1986 w.e.f. On 24.11.1988 the School passed an order of upgradation of Madhavi to High School Scale w.e.f. 24.11.1988. The appointment of Madhavi was purely temporary upto the Academic Session 1988 89. Some of the candidates who are respondent Nos. 5 to 7 all graduates and holding B.Ed. qualification were appointed at the School and placed in Category ‘C’ of Schedule ‘F’ of the Rules. It is thereafter that Chagan acquired B.Sc. degree and entered 2 Hereinafter referred as ‘Madhavi’ 3 For short the ‘School’ 4 For short the ‘Rules’ Category ‘D’ of Schedule ‘F’ of the Rules on 21.2.1997. Chagan then obtained B.Ed. degree in the year 1999 and was thus placed in Category ‘C’ of Schedule ‘F’. The dispute arose at the time of appointment of Madhavi as the Head Master of the School. Chagan claimed that he was appointed on regular basis on 1.8.1985 as against Madhavi 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 Rules he would be entitled to be promoted as Head Master. The promotion order dated 31.5.2014 promoting Madhavi as Head Master was challenged in appeal before the learned School Tribunal. The challenge was also to the 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. Chagan claimed appointment as Head Master of the School. Chagan claimed seniority as trained graduate w.e.f. 1.8.1985 in terms of Rule 6 read with Rule 2(1)(j) of the Rules. 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. holding as under: The learned School Tribunal dismissed the appeal on 1.1.2016 while “9. It is clear from these provisions that the appellant as per his qualification is not come under the category of trained graduate at the time of his appointment on 01.08.1985. The respondent No. 3 was possessing the qualification of B.Sc. B.Ed. on the same day of her appointment on 16.07.1985. Therefore she would be considered in the category of trained graduate teacher on the day of her appointment. 12. It was also not disputed that the appellant subsequently improved his qualification by acquiring a degree in 1997. He has also acquired a teaching experience of 10 years till that time. Therefore since the date when he completed his graduation along with 10 years teaching experience he become eligible to enter into category C. The appellant himself has mentioned that the respondent No. 4 was appointed as an assistant teacher on 24.11.1988 when the post became vacant. Even after considering this date it is clear that the respondent No. 4 who was possessing the qualification of B.Sc. B.Ed. in 1985 was directly entered in category C from that date. Therefore the appellant who entered in category C in 1997 is admittedly junior to respondent No. The judgment of this Court in Viman Vaman Awale v. Gangadhar Makhriya Charitable Trust & Ors.5 referred to by Chagan was distinguished by the Ld. Tribunal for the reason that the appellant in the aforesaid case joined service prior to the respondent. Chagan challenged the order passed by the School Tribunal by way of a writ petition before the High Court. The same was also dismissed by the learned Single Bench with the detailed reasoning 5 13 SCC 219 on 28.9.2017. An application for review was then filed on 2.12.2017 which was allowed with the following order: “Heard. For the reasons stated in the application the application is allowed. Until further orders the vacant post of Assistant Head Master shall not be filled in. Disposed of.” It is thereafter that the learned Single Bench passed the order impugned in the present appeal whereby the writ petition filed by Chagan was allowed. The High Court relied upon Viman Vaman Awale to hold that the seniority is to be given from the date of first appointment whereas the judgment in Bhawna v. State of Maharashtra & Ors.6 was distinguished observing that it was a case where the teacher was not holding the qualification of B.Ed. at the time of appointment and later acquired the qualification. It was however noted that in the present case Chagan was a teacher already holding such qualification on the date of initial appointment. It is the said order which has been challenged by the School and Madhavi before this Court. 10. Some of the relevant provisions of The Maharashtra Employees of Private Schools Regulation Act 19777 and the Rules are extracted hereunder: 2(9) “Head of a school” or “Head” means the person by whatever name called in charge of the academic and 6 4 SCC 300 7 For short the ‘Act’ 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 head mistress or superintendent thereof 2(18) “primary education” means education imparted in such subjects and upto such standards as may be determined by the State Government from time to time located either in a primary or a secondary school 2(19) “primary school” means a recognised school or a part of such school in which primary education is imparted 2(24) “School” means a primary school secondary school higher secondary school junior college of education or any other institution by whatever name called including technical vocational or art institution or part of any such school college or institution which imparts general technical vocational art or as the case may be special education or training in any faculty or discipline or subject below the degree level 2(26) “teacher” means a member of the teaching staff and includes the Head of a school 5. Certain obligations of Management of private schools. The Management shall as soon as possible fill in in the manner prescribed every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy. Provided that unless such vacancy is to be filled in by promotion the Management shall before proceeding to fill such vacancy ascertain from the Educational Inspector Greater Bombay the Education Officer Zilla Parishad or as the case may be the Director or the Officer designated by the Director in respect of schools imparting technical vocational art or special education whether there is any suitable person available on the list of surplus persons maintained by him for absorption in other schools and in the event of such person being available the Management shall appoint that person in such vacancy. 5(5) The Management may fill in every temporary vacancy by appointing a person duly qualified to fill such vacancy. The order of appointment shall be drawn up in the form prescribed in that behalf and shall state the period of appointment of such person. 2(e) “Education Officer” i) in relation to a private secondary or higher secondary school or Junior College of Education in Greater Bombay means an Educational Inspector ii) in relation to a private primary school in the areas of any Municipal Corporation or Municipal Council means the Education Officer or the Administrative Officer of a Municipal Corporation or a Municipal School Board as the case may be and iii) in relation to any private school in areas elsewhere in the State of Maharashtra means an Education Officer in a Zilla Parishad 2(j) “trained graduate” means a person possessing the qualifications mentioned in sub clauses to of clauseof item II in Schedule ‘B’ 2(k) “trained teacher” means a teacher who has secured a professional certificate a diploma or a degree recognised by the Department which qualifies him for a teaching post in a school xx Rule 3A person to be appointed as the Head — a) of a primary school having an enrolment of students above 200 or having Standards I to VII shall be the seniormost trained teacher who has put in not less than five years’ service and ii) of any other primary school shall be the seniormost teacher in the school 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 five 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: Provided that in the case of a person to be appointed as the Head of a night secondary school — i) he shall not be the one who is holding the post of the Head or Assistant Head of a day school and ii) the experience laid down in clauseof sub rulemay be as a part time teacher. 2) xxx Rule 6.Qualifications of teachers.—The minimum qualifications for the posts of teachers and the non teaching staff in the primary schools secondary schools Junior Colleges and Junior Colleges of Education shall be as specified in Schedule “ B ”: the Education Officer may allow Managements to appoint untrained Science graduate teachers for teaching Mathematics and Science subjects that or untrained Arts or Commerce graduates for teaching other subjects in secondary schools in exceptional circumstances such as non availability of trained graduates. Such appointments shall however be allowed on an year to year basis on the clear understanding that they shall have to obtain training qualification at their own cost and further subject to the condition that their services shall be liable for termination as soon as trained graduate teachers become available. Provided further that the untrained graduate appointed as a teacher after obtaining the permission from the Education Officer before the commencement of the Maharashtra Employees of Private SchoolsRules 1981 and who continues to be in service in any school on the date of commencement of the Maharashtra Employees of Private Schools(Amendment) Rules 1984 shall be continued in service on the condition that he obtains the prescribed training qualifications at his own cost before 1st June 1987 unless he has already obtained such qualifications failing which his services shall be terminated. Rule 12.Seniority List.—(1) Every Management shall prepare and maintain seniority list of the teaching staff including Head Master and Assistant Head Master and non teaching staff in0the School in accordance with the guidelines laid down in Schedule “ F ”. The seniority list so prepared shall be circulated amongst the members of the staff concerned and their signatures for having received a copy of the list shall be obtained. Any subsequent change made in the seniority list from time to time shall also be brought to the notice of the members of the staff concerned and their signatures for having noted the change shall be 2) Objections if any to the seniority list or to the changes therein shall be duly taken into consideration by the Management. 3) Disputes if any in the matter of interse seniority shall be referred to the Education Officer for his decision. xx SCHEDULE B I. Qualifications for Primary TeachersAppointment to the posts of Primary school teachers shall be made by nomination from amongst candidates who have passed S.S.C. examination or Matriculation examination or Lokshala examination or any other examination recognised as such by Government and the Primary Teachers Certificate examination or Diploma in Education examination or a Diploma in Education shall be qualified to teach standards I to IV only notwithstanding anything contained in the foregoing provisions— а) Candidates who were recruited before the coming into force of these rules in accordance with the recruitment rules then in force and who were thereafter discharged for want of vacancies shall be eligible few reappointment. b) Other things being equal preference may be given to i) candidates who have passed the S.S.C. or other equivalent examination with English Mathematics and Science or any two of them and qualifications mentioned at item through condensed II. Qualifications for trained teachers in secondary schools and junior colleges of education. 1) For Graduate Teachers: i) A Bachelor s degree in Teaching or Education of any statutory University or a qualification recognised by Government as equivalent thereto ii) A Teaching Diploma of any statutory University if a person holding it is appointed for the first time before the 1st October 1970 candidates obtaining eligible women A Secondary Teachers Certificate of the Education Department of this State if the person holding it is appointed for the first time before 1st October 1970: iv) A Diploma in Education of the Graduates Basic Training Centres v) A Diploma in Physical Education or a qualification recognised by Government as equivalent thereto or Bifocal Higher Diploma in Physical Education of the Government of Maharashtrao t B. P. Ed. or B. P. Ed. or B.Ed. Physical Education)or B.Ed.(Bombay University) or Diploma in Physical Education Culture and Recreation awarded by Hanuman Vyayam Prasarak Mandal Amravati or vi) Any other degree diploma or certificate which Government or the Inter University Board may sanction as equivalent to any of the above qualifications. 2) For Undergraduate Teachers: i) A Diploma in "Education of Nagpur and Bombay Universities which is awarded two years after Secondary School Certificate Examination ii) A Secondary Teachers Certificate of the Education Department or the Teachers’ Diploma of any other statutory University if the person holding it is appointed for the first time before the 1st October 1970 iii) A Certificate in Physical Education recognised by Government if the person holding it is appointed for the first time before the 1st June 1971 iv) A Diploma in Education awarded by Government or v) Any other equivalent diploma or certificate approved by Government or Inter University Board. 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 the date of joining service and continuous officiation. 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 Colleges :— 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 categorised as Category A. Category B. Category C. Holders of— M A. M.Sc. M.Com. B.T. B.Ed. or its equivalent or B.A. B.Sc. B.Com. B.T. B.Ed. or its equivalent or B.A. B.Sc. B.Com. Dip. T.or B.A. B.Sc. B.Com. S.T.C. Dip. Ed. Dip. . T. one year course) with 10 years post S.T.C. etc. service. Category D. Holders of — B.A. B.Sc. B.Com. S.T.C. Dip. Ed.or its equivalent. Category E. Holders of— S.S.C. T.C. Dip. Ed. Dip. T. one year course) or its equivalent. Note 1. For the purpose of categories C D and E teachers with S.T.C. T.D. Jr. P. T.C. Dip. 1. Dip. Ed. post S.S.C. one year course)) qualifications appointed on or after 1st October 1970 shall be considered as untrained and their seniority shall be fixed in the ‘F’ or ‘G’ category of untrained teachers as the case may be. Note 2. The following training qualifications which can be secured two years after S.S.C. Examination shall be considered as training qualification for the purpose of seniority even after 1st October 1970: 1) D .Ed.2) T .D .3) Dip. Ed.of the Rules is a person possessing the qualification mentioned in Schedule ‘B’ of the Rules. 12. Learned counsel for the appellant also relied on a judgment of Bombay High Court Nagpur Bench in Gaur Pratibha & Ors. v. State of Maharashtra through the Secretary & Ors.8 in which the Court had examined both the judgments of this Court in Viman Vaman Awale and Bhawna and also the arguments that the latter judgment is per incuriam as the former was not referred in it. The Court held as under: “96. We do not think they do. Viman Vaman Awale concerns the Primary Assistant Teachers Bhawana the Secondary Assistant Teachers. So the former case interprets the “Guidelines for fixation of seniority of teachers in the primary schools” under Schedule F under Rule 12. The latter the “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 Colleges.” 97. In Viman Vaman Awale both the teachers had their basic qualifications when they entered service their additional qualifications notwithstanding. And as per Clauseof Schedule 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. 98. 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 Clauseof 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. 8 2019 SCC OnLine Bom 597 99. 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 remarkable It was also pointed out that the Special Leave Petition against the said judgment was dismissed. 14. On the other hand learned counsel for Chagan vehemently argued that the Rules are common to both primary and secondary schools. Therefore the principle laid down in Viman Vaman Awale would be a binding precedent and the judgment in Bhawna wherein the Viman Vaman Awale’s case was not referred is per incuriam. It was argued that Viman Vaman Awale was a case of a secondary School as per the information received under the Right to Information Act. 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. 15. We find that the order of the High Court cannot be sustained in law. This Court in Viman Vaman Awale has proceeded as if the Court is dealing with seniority of teachers in a primary school. This Court also referred to Full Bench judgment of Bombay High Court reported as Vaijanath s o Tatyarao Shinde v. Secretary Marathwada Shikshan Prasarak Mandal Devgiri College Campus Aurangabad & Ors.9 which again decided the question of promotion to the post of Head Master of a primary school. This Court in Viman Vaman Awale held as under: “15. The appellant herein entered the service in Respondent 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 present case as already mentioned above 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 8 1979. This makes all the difference and renders the judgment in Vaijanath6 Mah LJ 682] as inapplicable to the facts of the present case. The High Court has failed to notice this relevant distinction and mechanically applied the ratio of the in Vaijanath6 Mah LJ 682].” In fact learned counsel for Chagan relied upon Vaijanath in support of his arguments before the learned Single Bench. The counsel for Madhavi also referred to the said judgment in support of the arguments before the High Court. Such argument was dealt with by the High Court in the impugned judgment which reads as under: “13. It was strenuously contended on behalf of respondent Nos. 2 to 7 that Full Bench judgment of this 9 2006Mh.L.J. 682 in of Vaijanath Shinde v. Secretarysupported their arguments and that the relevant date for determining seniority was the date when the petitioner acquired the higher qualification and entered Category C of Clause 2 to Schedule F of the MEPS Rules. But the said Full Bench judgment of this Court has been distinguished in the aforesaid judgment of the Hon ble Supreme Court in the case of Viman Vaman Awale v. Gangadhar Makhriya Charitable Trustandare 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 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 qualifications he was an under graduate teacher falling in Category II(2)(i) orof 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. NEW DELHI DECEMBER 9 2020. L. NAGESWARA RAO) HEMANT GUPTA) AJAY RASTOGI) 