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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7699 OF 2014 (arising out of Special Leave Petition (Civil) No. 29696 of 2013)

VIMAN VAMAN AWALE .....APPELLANT(S)

VERSUS

GANGADHAR MAKHRIYA  CHARITABLE TRUST & ORS.

.....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

Leave granted.

2) Dispute in this appeal pertains to the seniority of the appellant vis-

a-vis respondent No.4.  Both the appellant as well as respondent  

No.4 are working as teachers in Seth Gangadhar Makhriya High  

School, Mahabaleshwar, District Satara in Maharashtra.  It is not  

in  dispute  that  the  appellant  had  joined  the  said  school  as  

Assistant Teacher before respondent No.4 and was senior to him  

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in the post of Assistant Teacher.  However, respondent No.4 had  

acquired B.Ed. degree prior to the appellant and on that basis he  

is  treated  senior  to  the  appellant  in  the  category  of  'Trained  

Graduate  Teachers'.   Whether  this  consequence  follows  as  a  

result of the rules is the matter of examination in the present case.  

3) This question has arisen in the following circumstances:

The appellant joined the service with respondent No.3 School as  

Assistant  Teacher  on  24.08.1979,  whereas  respondent  No.4  

joined the same post in the same School on 01.09.1980.  At the  

time  of  her  joining,  the  appellant  had  not  completed  her  

graduation, though it is not in dispute that the appellant fulfilled  

the requisite qualifications for appointment as Assistant Teacher.  

She completed  her  BA in  the  year  1984.   Thereafter,  she  did  

B.Ed. as well, with due permission of the School authorities, and  

passed the said course on 20.05.1986.  To improve 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  

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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,  which  is  a  Charitable  Trust  

running the School, asking for grounds and explanations on the  

basis  of  which  she  was  staking  her  claim  to  the  post  of  

Headmistress.   However,  without  waiting  for  the  reply  of  the  

appellant  and  on  the  same  day,  that  is  on  29.12.2009,  the  

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Management of the School passed Resolution No.3 resolving to  

appoint  respondent  No.4  as  the  Headmaster  of  the  School.  

Appointment  letter  dated  11.01.2010  was  also  issued  in  this  

behalf in favour of respondent No.4.  This proposal was forwarded  

by the School authorities to the Education Officer (Secondary),  

Zilla Parishad, Satara (respondent No.5 herein) seeking approval  

for  appointment  of  respondent  No.4 as the Headmaster,  which  

was granted by respondent No.5.

6) Feeling  aggrieved  by  the  promotion  of  respondent  No.4,  the  

appellant  approached  the  School  Tribunal  by  filing  an  appeal  

bearing  No.  5/2010  seeking  quashing  of  the  orders  of  the  

authorities appointing respondent No.4. as the Headmaster of the  

School.  This appeal was contested by the School authorities as  

well as the Education Officer taking the position that respondent  

No.4  was  senior  to  the  appellant.   The  School  Tribunal,  after  

hearing the matter,  passed orders dated 26.09.2012 dismissing  

the appeal preferred by the appellant.  The appellant challenged  

that order by filing the writ petition in the High Court of Bombay.  

This writ petition has also been dismissed by the High Court vide  

orders  dated  25.02.2013.   Undettered  by  two  unsuccessful  

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attempts, the appellant has approached this Court maintaining the  

posture that she is senior to respondent No.4 and rightful claimant  

to the post of Headmistress, as per the extant Rules.

7) The aforesaid,  thus,  is the brief  narration of  the background in  

which the dispute has arise, viz. whether it is the appellant who is  

senior to respondent No.4 or it is respondent No.4 who is senior  

to the appellant.   

8) The reason given by the School Tribunal in accepting the claim of  

respondent No.4 is that at the time of entry of both these persons  

as Assistant Teachers in the School, both of them were not having  

B.Ed.  qualification  but  were  only  D.Ed.   Therefore,  they  were  

placed in Category-D of Schedule 'F'.  Further, as far as B.Ed.  

qualification  was  concerned,  the  same  was  acquired  by  the  

appellant  in  the  year  1986,  whereas  respondent  No.4  got  this  

qualification on 31.05.1984.   According 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  

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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 date of determining the  

seniority, relied upon a Full Bench judgment of the Bombay High  

Court in the case of Shri Vaijanath s/o. Tatyarao Shinde v. The  

Secretary,  Marathwada  Shikshan  Prasarak  Mandal  (Writ  

Petition No. 4907 of 2002 decided on 15.11.2006).

9) The High Court, while dismissing the writ petition of the appellant,  

has concurred with the aforesaid view of the School Tribunal.

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10) Notice  in  this  case  was  duly  served  upon  the  respondents.  

However, none of the respondents chose to enter appearance.  In  

these circumstances, we had no option but to hear the counsel for  

the appellant in the absence of the respondents.  However, we  

have  ourselves  minutely  perused  the  record  as  well  as  the  

relevant statutory provisions.

11) The submission of the learned counsel for the appellant was that  

criteria followed by the courts below in determining the seniority,  

namely,  the  date  of  acquisition  of  professional  qualification,  is  

totally extraneous and is not reflected in the relevant provisions,  

namely,  the  Maharashtra  Employees  of  Private  Schools  

(Conditions of Service) Regulation Act, 1977 (for short, the 'Act')  

and the Rules framed thereunder.  His submission was that there  

are specific Rules determining the seniority and respondent No.1  

was  supposed  to  follow  those  Rules.   According  to  him,  the  

relevant  Rules  did  not  prescribe  acquisition  of  a  particular  

qualification as the criteria for fixing the seniority.  He referred to  

the provisions of Section 4 of the Act as well as Rules 3 and 12 of  

the Rules, read with Schedule-F to the said Rules and submitted  

that  these  provisions,  which  are  statutory  in  nature,  not  only  

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provide the qualification required for the post(s), but also provide  

formula for determining the  inter-se  seniority as well as criterion  

for appointment of the Headmaster of a Private School.

12) In order to appreciate the aforesaid contention, it is necessary to  

glance through the Rules in question.

13) Section 2(9) of the Act defines 'Head of a School'.  Section 2(24A)  

provides  the  definition  of  'Assistant  Teacher  (Probationary)'.  

Section 3, which pertains to the applicability of the Act, inter alia,  

provides that this Act shall apply to all private schools in the State  

of Maharashtra, whether receiving a grant-in-aid from the State  

Government or not.  Section 4 of the Act provides for the terms  

and conditions of service 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:

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“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  head- mistress, 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 Gazet6te, 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  of  employees  of   Private schools.

(1) Subject to the provisions of this section, the State  Government  may  make  rules  providing  for  the  minimum  qualification  for  recruitment  (including  its  procedure),  duties,  pay,  allowances,  post-retirement  and other benefits, and other conditions of service of  employees of private schools and for reservation of  adequate number of posts for members of backward  classes:

Provided that, neither the pay nor the rights in respect  of  leave  of  absence,  age  of  retirement  and  post- retirement benefits and other monetary benefits of an  employee in  the employment  of  an existing private  school on the appointed date shall be varied to the  disadvantage of such employee by any such rules.

(2) Every  employee  of  a  private  school  shall  be  governed  by  such  Code  of  Conduct  as  may  be  prescribed.  On the violation of any provision of such  

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Code  of  Conduct,  the  employee  shall  be  liable  to  disciplinary action after conducting an enquiry in such  manner as may be prescribed.

(3) If  the  scales  of  pay  and  allowances,  post  retirement and other benefits of the employees of any  private  school  are  less  favourable  than  those  provided by the rules made under sub-section (1), the  Director  shall  direct  in  writing  the  Management  of  such school to bring the same upto the level provided  by  the  said  rules,  within  such  period  or  extended  period as may be specified by him.

(4) Failure to comply with any direction given by the  Director in pursuance of sub-section (3) may result in  the  recognition  of  the  school  concerned  being  withdrawn, provided that the recognition shall not be  withdrawn  unless  the  Management  of  the  school  concerned has been given a reasonable opportunity  of being heard.

(5) No  employee  working  in  a  private  school  shall  work  in  any  coaching  class.   If  any  employee,  in  contravention of this provision, works in any coaching  class, his services shall be liable to be terminated by  the  Management,  provided  that  no  such  order  of  termination  shall  be  issued  unless  the  employee  concerned has been given a reasonable opportunity  of being heard.

(6) No  employee  of  a  private  school  shall  be  suspended,  dismissed  or  removed  or  his  services  shall not be otherwise terminated or he shall not be  reduced  in  rank,  by  the  Management,  except  in  accordance  with  the  provisions  of  this  Act  and the  rules made in that behalf.”

15) Relevant  Rules  with  which  we  are  concerned  are  Rule  3  

(providing  for  qualification  and  appointment  of  Head);  Rule  6  

(stipulating  qualifications  needed  for  appointment  as  teachers)  

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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  seniormost  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 school run by the Management) or schools [if  there  are  more  than  one  school  (excluding  night  school) conducted by it] who fulfills the conditions laid  down  in  sub-rule  (1)  and  who  has  a  satisfactory  record of service.

xx     xx        xx

6. Qualifications of Teachers.

The  minimum  qualifications  for  the  post  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”.

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xx     xx        xx

Schedule 'B'

(See rules 2(1)(j) and 6)

I. Qualifications for Primary Teachers

Appointment  to  the  posts  of  Primary  school  teachers  (other  than  special  teachers-Drawing  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  (per-primary  of  two  years'  duration).

Note. - A person holding a Diploma in Education (pre- primary of  two year's  duration) shall  be qualified to  teach standards I to IV only notwithstanding anything  contained in the foregoing provisions -  

xx     xx        xx

II. Qualifications for trained Teachers in  Secondary Schools and Junior Colleges of  

Education

1. For Graduate Teachers:

xx     xx        xx

(iv)  A Diploma in Education of the Graduates Basic  Training Centres;

xx     xx        xx

12.  SENIORITY LIST

(1) Every  Management  shall  prepare  and  maintain  seniority  list  of  the  teaching  staff  including  head  

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master and Assistant Head master and non-teaching  staff in the 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 list from time to time  shall also be brought to the notice of the members of  the  staff  concerned  and  their  signature  for  having  noted the change shall be obtained.

(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 inter-se seniority  shall  be  referred  to  the  Education  Officer  for  his  decision.

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  

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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  of  their  appointments to the respective posts.

Category C:

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 (old two years course);  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. services

Category D:

B.A./B.Sc./B.Com.,  S.T.C./Dip.T.  (One  year  course) Senior or Junior Hindi Shikshak Sanad or its  equivalent

Category E:

S.S.C., S.T.C./ Dip.Ed/ Dip.T. (One year course)  Senior  or  Junior  Hindi  Shikshak  Sanad  or  its  equivalent

Category F:

Untrained  Graduates  or  holders  of  equivalent  qualification

Category G:

Untrained  Matriculates  or  holders  of  equivalent  qualification

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Category H:

All  teachers  other  than  those  mentioned  in  categories A to G.

xx     xx        xx

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 1.10.1970:

(1) D.Ed. (2 years)

(2) T.D. (Bombay University)

(3) Dip. Ed. (Nagpur University).

xx     xx        xx

Note 4: The categories mentioned above represent  the ladder of seniority and have been mentioned in  descending order.”

16) When we read the aforesaid Rules in the context of the present  

case,  the position which emerges is  that  for  appointment  of  a  

Primary Teacher, the qualification that is stipulated in Schedule-B  

is  that  he  or  she  should  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 (per-primary of two years'  

duration).  Thus, among various alternate qualifications which are  

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prescribed  for  appointment  to  the  post  of  Primary  School  

Teachers,  one  of  the  prescribed  qualification  is  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”.

17) The  appellant  herein  entered  the  service  in  respondent  No.3  

School as Assistant Teacher of a Primarcy 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  

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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  educational  and  training qualification?”

19) The  Full  Bench  of  the  High  Court  answered  the  aforesaid  

question by holding that seniority shall  be determined from the  

date of acquisition of educational and training qualification.  For  

providing  this  answer,  the  Full  Bench  took  into  consideration  

provisions  of  Section  5  of  the  Act  as  per  which  permanent  

vacancy  in  a  private  school  is  to  be  filled  up  by  appointing  a  

person duly qualified to fill such vacancy.  In the facts of that case,  

the Court noted that since the petitioner there, when he joined the  

school, did not have the necessary qualification for the said post,  

he could not be treated as a person duly qualified in terms of Rule  

6 read with Schedule “B” of the Rules.  On that basis, the Court  

came to the conclusion that as the said petitioner acquired the  

qualification required for the post at a later date, it is only on the  

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acquisition  of  such a  qualification that  he became eligible  and  

qualified  for  being  appointed  to  the  post  and,  therefore,  his  

seniority would be determined from the date of acquisition of the  

qualification  and  not  before.   For  such  a  conclusion,  the  High  

Court relied upon the judgment of this Court in  Shitala Prasad  

Shukla v. State of U.P. & Ors., (1986) II LLJ 298 SC.

20) 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  24.08.1979.  This  

makes all the difference and renders the judgment in the case of  

Shri Vaijanath (supra) 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  judgment  in  Shri   

Vaijanath (supra).

21) In the present case, when we find 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  

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later  date,  even  when  such  a  higher  qualification  is  requisite  

qualification for the higher post, will not be determinative for fixing  

the seniority.  Direct answer thereto is provided by this Court in  

R.B. Desai & Anr.  v. S.K. Khanolker & Ors.,  (1999) 7 SCC 54.  

The  appellants  therein  were  appointed  to  the  post  of  Forest  

Officer in the year 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:

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“(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  Forest  School  with  10 years'  regular  service in the  grade.

Note  1.–  The  eligibility  list  for  promotion  shall  be  prepared with reference to the date of completion by  the officers of the prescribed qualifying service in the  respective grade/posts.

Note 2.– Unqualified Range Forest Officers shall after  promotion as Assistant Conservator of Forests would  be  required  to  complete  successfully  refresher  courses at FRI&C.

(Emphasis supplied)”

Interpreting  Note  1,  the  High  Court  had  held  that  date  of  

completion of the prescribed qualifying service would be relevant  

and since the appellants therein, when they were senior as RFOs,  

had completed the qualifying service (which was 10 years in their  

case)  and  respondent  No9.1  had  completed  qualifying  service  

earlier in point of time (which was only five years),  respondent  

No.1 was senior.  This Court reversed the aforesaid view of the  

High Court  by accepting the contentions of  the appellants that  

once they entered the eligible list,  the date of eligibility had no  

preferential benefit and it is only the seniority vis a vis the eligible  

candidates, as shown in the seniority list of the RFOs that would  

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be taken into consideration.  Interpretation given to Note 1 by the  

High Court was also rejected.  The entire issue, while taking the  

aforesaid view, is dealt with by this Court in the following manner:

“9. We are unable to agree with this reasoning of the  High Court.  As noticed above, promotion to the post  of AFOs is made from the post of RFOs to the extent  of  75% of the vacancies.   There is no dispute that  both the appellants and the first respondent belong to  the  cadre  of  RFOs.   The  only  difference  between  them being that the appellants were promotees in the  said  cadre  while  the  first  respondent  was  a  direct  recruit.   It  is  an  accepted  principle  in  service  jurisprudence  that  once  persons  from  different  sources  enter  a  common  cadre,  their  seniority  will  have to be counted from the date of their continuous  officiation in the cadre to which they are appointed.  On  facts,  there  is  no  dispute  that  the  appellants  entered the RFOs' cadre on a date anterior to that of  the first respondent, therefore, in the cadre of RFOs,  the  appellants  are  senior  to  the  first  respondent.  However,  to  be  considered  for  promotion,  the  rule  required RFOs to acquire the eligibility  as provided  therein.  Therefore, the question for 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  

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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 of such eligibility,  hence eligibility  has preference over seniority.   Our  reading of the said note does not persuade us to give  any such preference.  If the rule did contemplate such  advantage, it would have stated so in specific terms.  We also do not  see any special  objective in giving  preference  to  the  date  of  eligibility  as  against  seniority.  Eligibility, of course, has a relevant object  but  date  of  acquisition  of  eligibility,  when  both  competing persons have the eligibility at the time of  consideration  cannot,  in  our  opinion,  make  any  difference.

11. If on the date of consideration, the appellants did  not  have  the  eligibility  then  certainly  it  is  the  first  respondent who ought to have been considered for  the said promotion and if he was so promoted earlier  than the appellants he would have acquired a higher  ranking in the seniority list of ACFs.  That not being  the case, we are unable to agree with the view taken  by the High Court, as stated above, because on the  date on which the avenue for promotion to the cadre  of ACFs opened both the appellants as well as the  first respondent had the necessary eligibility and their  names figured in the eligibility list.  That being so, as  stated above, it is the appellants whose case ought to  have been considered first and it was so done and  they having been found otherwise suitable, they were  rightly  promoted  earlier  than  the  first  respondent.  Consequently, they are entitled to a higher ranking in  the cadre of ACFs vis a vis the first respondent.  The  view taken by us also finds support from the judgment  of this Court in Union of India v. B. Jayaraman, (1994)  Supp  (1)  SCC  95,  wherein  considering  a  similar  argument this Court held: (SCC Headnote)

“The note in column 11 is only for purposes of  giving  eligibility  to  the  erstwhile  Assistants  working  as  Superintendents  Grade  II  for  purposes of  being considered for  promotion to  the post of Superintendent Grade I and not for  

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the purpose of seniority at all.

(Emphasis supplied)”

22) That apart, we find that 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 counted from the date of acquiring the  

educational qualification as prescribed under Schedule “B”.  It is  

stated at the cost of repetition that since 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  

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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 allowed.  Judgment of the High Court is  

set  aside and a direction is issued to appoint  the appellant  as  

Head of the School by replacing respondent No.4 therefrom.  This  

direction shall be carried out within a period of four weeks from  

today.

Since  the  respondents  have  not  appeared,  we  are  not  

making any order as to costs.

.............................................J. (J. CHELAMESWAR)

.............................................J. (A.K. SIKRI)

New Delhi; August 13, 2014.

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