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 &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.”
Conclusively, the court found that the judgment of the High Court in review cannot be sustained in law and the same is hence set aside.