Bombay High Court
Vijay Laxmanrao Avhane vs The Deputy Director Of Education, ... on 15 July, 2025
Author: M.S.Jawalkar
Bench: M.S. Jawalkar
2025:BHC-NAG:6744-DB
Judgment 1 201wp1065.22 (J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1065/2022
Dr. Vijay Laxmanrao Avhane,
Aged about 53 years, Occ. Service,
R/o. Near LIC Office, Civil Colony,
Deulgaonraja, Tq. Deulgaonraja,
District Buldhana
.... PETITIONER
// VERSUS //
(1) The Deputy Director of Education,
Amravati Division, Amravati
(2) The Municipal Council,
Deulgaonraja, Through its Chief Officer,
Tq. Deulgaonraja, District Buldhanaf
(3) The Education Officer (Secondary),
Zilla Parishad, Buldhana, District Buldhana
(4) Shri Sanjay Kisanrao Deshmukh,
Aged about 50 years, Occ. Service,
C/o. Municipal Shri Shivaji High School,
Deulgaonraja, District Buldhana
.... RESPONDENTS
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Petitioner through his Representative.
Shri A.M. Joshi, AGP for the Respondent Nos.1 & 3.
Shri D.M. Kale, Advocate for the Respondent No. 2
Shri K.S. Narwade, Advocate for the Respondent No. 4
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CORAM : M.S. JAWALKAR & M.W. CHANDWANI, JJ.
CLOSED FOR JUDGMENT ON :- JUNE 09, 2025
JUDGMENT PRONOUNCED ON :- JULY 15, 2025
Judgment 2 201wp1065.22 (J).odt
JUDGMENT :- (Per : Smt. M.S.Jawalkar) Heard finally by consent of representative of the Petitioner and learned Counsel for the Respondents. (2) Being aggrieved by the order dated 09/02/2022 passed by the Deputy Director of Education, Amravati Division, Amravati and the consequent communication dated 15/02/2022 issued by the Chief Officer, Municipal Council, Deulgaonraja thereby publishing the seniority list and illegally showing the Petitioner as junior in the seniority list, thereby adversely affecting the right of promotion, the Petitioner has filed the present Writ Petition.
(3) The facts giving rise for filing of the present Writ Petition are as under:-
(4) The Petitioner is qualified as M.A. and Ph.D. The Petitioner has cleared B.A. degree in the year 1989 and has completed B.Ed in 1991. The Petitioner, as was possessing the qualification of B.A. as well as B.Ed, deemed to be appointed initially as Assistant Teacher on 04/08/1993. The Petitioner, thereafter, was made permanent as Trained Graduate Secondary School Teacher by way of the order dated 05/11/1993. The Petitioner, in all the seniority lists published by the Municipal Judgment 3 201wp1065.22 (J).odt Council from 1993 to 2018, was shown senior to one Shri Deshmukh (Respondent No. 4) as Shri Deshmukh was appointed as Untrained Teacher and has completed B.Ed qualification during the course of service.
(5) By the order dated 26/07/2017, the Petitioner, being senior to Shri Deshmukh, was promoted as Supervisor of the School. Thereafter, a fresh seniority list was published by Municipal Council thereby showing Shri Deshmukh as senior to the present Petitioner. Thereafter, on 13/04/2018, the Petitioner immediately submitted Representation/Complaint objecting the preparation of seniority list. On 17/04/2018, the said objection was rejected. As such, on 21/05/2018, the Petitioner submitted Representation to the Education Officer. According to the Petitioner, on 31/10/2018, although the objection of the Petitioner was pending, the Municipal Council by acting erroneously has promoted Shri Deshmukh as Assistant Headmaster. The Education Officer, by the order dated 20/12/2019, rejected the objections preferred by the Petitioner.
Both the orders dated 17/04/2018 and 20/12/2019 passed by the Education Officer were challenged by the Petitioner before this Court in Writ Petition No. 1237/2020.
Judgment 4 201wp1065.22 (J).odt (6) This Court, by the order dated 27/10/2021, set aside
both the impugned orders and observed that the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and Rules 1981 (for short, "MEPS Act and Rules") do not apply to the Municipal Schools. The Petitioner was granted liberty to file appropriate Representation under the provisions of the Secondary School Code. Though under the provisions of the Secondary School Code, it was mandatory on the part of the Deputy Director of Education to adjudicate the dispute on merits, by the impugned order dated 09/02/2022, the Deputy Director of Education has simply referred the dispute to the Municipal Council. The Municipal Council has again preferred the very same seniority list and attempted to promote Shri Deshmukh - Respondent No. 4 as Headmaster. The said order dated 09/02/2022 passed by the Deputy Director of Education is the subject matter of challenge in the present Writ Petition.
(7) It is the contention of the Petitioner that the though Respondent No. 4 - Shri Deshmukh was appointed in the year 1992, he was appointed in Category-D only and has completed his B.Ed qualification in the year 1996. On the contrary, the Petitioner was appointed in Category-B itself. As such, by any Judgment 5 201wp1065.22 (J).odt stretch of imagination, the Respondent No. 4 - Shri Deshmukh, who has achieved the qualification of B.Ed in the year 1996, cannot march over the Petitioner, who is already in Category-B at the time of his appointment.
(8) The Petitioner, in support of his contentions, relied on the following judgments :-
(a) Madhavi -Vs- Chagan, 2020 SCC OnLine SC 1007;
(b) Vasant Babanrao Palkandwar -Vs Vishuddha Vidyalaya, 2010 (5) Mh LJ 405;
(c) Sunil Pandhari Nagrare Vs State of Maharashtra, 2021 (1) All.M.R. 188;
(d) Shiba Shankar Mohapatra & others vs. State of Orissa & others, [2009] 15 (ADDL.) S.C.R., 866;
(e) Maloon Lawrence Cecil D'Souza-Vs- Union of India & Ors, 1976 (1) SCC 599;
(f) Madhav Govindrao Budhe vs. Education Officer, Zilla Parishad, Nagpur, (1994) Mh.L.J. 42;
(g) Ashok Narayan Sathe -vs- The Education Officer, 2007 (4) Mh.L.J. 358;
(9) Per contra, Shri A.M. Joshi, learned AGP for the Respondent/State submitted that the Respondent No. 4 was appointed in the year 02/12/1992. At the time of appointment, he was possessing the qualification of S.S.C. and D.Ed. The Respondent No. 4 acquired its qualification as B.A. in the year 1993 and he was placed in "C" Category of the seniority list. The Judgment 6 201wp1065.22 (J).odt Respondent No. 1 has considered the objection of the Petitioner and adjudicate the same, the decision has been communicated to the Petitioner by communication dated 11/03/2022. It is stated that the Municipal Council and the Education Officer have considered that the Respondent No. 4 is senior to the Petitioner by taking initial date of appointment which was based on the existing Rule at the time of promotion. The Education Officer is the Competent Authority to decide the seniority list and not the Respondent No. 1. The Education Officer has already taken decision in reference to the seniority list. As such, the grievance, as raised by the Petitioner, is entirely misconceived, devoid of substance and merits, and hence, the Petition is liable to be rejected in limine and it may accordingly be so rejected. (10) It is further submitted that the Chief Officer, Nagar Parishad is the appointing authority in case of Petitioner and Respondent No.4, and seniority list which is declared by Chief Officer, Nagar Parishad and the Respondent No. 3 has accordingly granted approval to the Respondent No.4, considering the seniority list prepared by Chief Officer, Nagar Parishad. It is submitted that if the Petitioner has any grievance regarding any seniority viz-a-viz, the Respondent No.4, the Petitioner was supposed to avail the alternative remedy of filing Judgment 7 201wp1065.22 (J).odt an Appeal available in Rule 61.2 of the Secondary School Code.
Apparently and admittedly, no such appeal is preferred by the Petitioner to the Director of Education. The Respondent No. 3 has acted according to the provisions of Act and Rules and the Secondary School Code as also according to seniority list prepared by Chief Officer Nagar Parishad. Hence, the Petition, being devoid of merits, is liable to be dismissed. (11) Shri D.M. Kale, learned Counsel for the Respondent No. 2 submitted that the Respondent No. 2 proceeded with the matter in terms of the order dated 09/02/2022 passed by the Respondent No. 1. In terms of the direction, the Respondent No. 1 prepared the draft inter se seniority list and the same was published on 15/09/2022. The order passed by the Respondent No. 1 is self-explanatory and as per the Provisions of the School Code. The same is just and proper and needs to be maintained at the hands of this Court.
(12) It is further submitted that in terms of the order passed by this Court on 27/10/2021, the Petitioner has to approach the appropriate authority under the Secondary School Code for determining the inter se seniority between the Petitioner and Respondent No. 4. That, the placement of Respondent No.4 Judgment 8 201wp1065.22 (J).odt and Petitioner is made in accordance with the orders passed by the Respondent No. 1. The contentions raised by Petitioner, therefore, cannot be accepted. No case is made out by Petitioner and therefore, the Petition is liable to be dismissed. (13) Shri K.S. Narwade, learned Counsel for the Respondent No. 4 submitted that the Petitioner is seeking promotion by setting aside promotion of the Respondent No. 4, firstly to the post of Assistant Headmaster, and thereafter, to the post of Headmaster of Nagar Parishad Shri Shivaji High School run by Municipal Council, Deulgaon Raja. The Petitioner has challenged the order of promotion in favour of the Respondent No. 4 dated 31/10/2018 as an Assistant Headmaster and the orders dated 11/03/2022 and 17/3/2022 in the present petition, by which, the Respondent No. 4 has been promoted as a Headmaster of the Nagar Parishad school. Since, the Petitioner is having alternative efficacious remedy of appeals, the present Writ Petition may not be entertained. In the said Writ Petition, the Respondent No. 4 appeared and by filing his affidavit-in-reply pointed out to this Court, that the services of the employees are governed by the Secondary School Code.
Judgment 9 201wp1065.22 (J).odt (14) Learned Counsel for the Respondent No. 4 further
points out that the Respondent No. 4 has been promoted as an Assistant Headmaster, and there is an approval to his appointment by the Competent Authority. After hearing the parties, this Court, vide order dated 27/10/2021, set aside the impugned seniority list with a further liberty to the Petitioner to approach the appropriate authority under the Secondary School Code. This Court further observed that, if such authorities are approached, the application shall be entertained without going into the issue of delay. Considering the same, the matter is being persuaded by the Petitioner before the wrong forum. In view of the above facts, the Writ Petition may not be entertained and without going into the disputed facts, this Court may be pleased to relegate the Petitioner to the alternate available remedy. (15) It is further submitted that the Petitioner is conveniently picking inapplicable clauses of the Secondary School Code which provide guidelines for fixation of the Seniority in the Higher Secondary School. The Respondent No. 4 was appointed in the Secondary School only. The Respondent No.4 was initially appointed on 02/11/1992 who had passed two years' D.Ed training. The confusion is being created by the Petitioner by repeatedly contending that the Respondent No. 4 has done B.Ed.
Judgment 10 201wp1065.22 (J).odt in the year 1996, and as such, he is junior to him. In view of fact that, the Petitioner was possessing D.Ed (2 years) training qualification at the time of his appointment itself, he was very well entitled to be placed in Category-B after he acquired B.A. degree. In view of the above submission, the Respondent No. 4 prays that the Writ Petition filed by the Petitioner be dismissed. (16) Shri Narwade, learned Counsel for the Respondent No. 4, in support of his contentions, relied on the following citations:-
(a) Sahakar Vidya Prasarak Mandal vs. Dinesh Karbhari Kute, Judgment of this Court in Writ Petition No. 1221/2020, decided on 11/04/2023.
(b) Krishna Mahadu Gasti & another vs. Mahesh Shamrao Deshmukh & another, 2024 SCC OnLine Bom 958;
(c) Vasant Babanrao Palkandwar -Vs Vishuddha Vidyalaya, 2010 (5) Mh LJ 405;
(d) Hashmiya Bahrul Faiz Social vs. Abdullah M. Shukur Qureshi & others, 2023(2) Mh.L.J. 763 (Full Bench) (17) Heard both the sides at length. Perused the impugned communication/order and citations relied on by both the parties. (18) The main issue revolves around the equivalence of two years diploma course as training qualification. The Judgment 11 201wp1065.22 (J).odt comparative chart of the Petitioner and Respondent no. 4, for the sake of convenience, is given as under:-
Name of the Parties Dr. Vijay Laxmanrao Shri Sanjay Kisanrao Avhane (Petitioner) Deshmukh (Resp.No.4) Assistant Teacher on Appointed in Category E 04/08/1993 as Untrained teacher on Date of 02/11/1992 Appointment Appointed as Graduate teacher on 17/07/1993 Entered in Category B on Entered in Category B on Category 04/08/1993 17/07/1993 Qualification at the BA 1989 SCC in 1986 time of B. Ed in 1991 D. Ed. (Two years) in appointment 1989 Additional MA in 1997 BA in 17/07/1993 Qualifications B.Ed in 08/07/1996 Ph.D. in 2010 when acquired MA in 16/04/1998 (19) It is also necessary for the sake of convenience to reproduce the Annexure - 45 of (Secondary School Code), which is applicable to the present Petitioner and Respondent no. 4, reads as under:-
"Annexure (45 of Secondary School Code) [Vide Rules 61 and 63] Seniority List of Teachers in the Non-Government Secondary School.
Government has decided to lay down the following revised guidelines for fixation of seniority of teachers in non- Government secondary and higher secondary schools.
2. For the purpose of fixation of seniority of teachers in non- Government secondary and higher secondary schools the following categories of teachers in the ladder of seniority should Judgment 12 201wp1065.22 (J).odt be taken into account:
Category A: This category is applicable to:
Higher Secondary Schools Only. M.A., II/M.Sc., II/M.Com., II/M.Sc. (Agriculture), II, B.T./B.Ed. Teachers of the above qualifications appointed in higher secondary schools and teaching a subject offered by them at their Master's Degree Examination to the top standard of the higher secondary school.
Category B: Holders of:
M.A./M.Sc., B.T./B.ED., or its equivalent; or B.A./B.Sc., B.T./B.Ed., or its equivalent; or B.A./B.Sc., Dip. T.(old two year Course); or B.A./B.Sc., S.T.C./Dip. Ed./Dip. T.(one-year Course) with 10 years post S.T.C., etc., services. Category C: Holders of:
B.A./B.Sc., S.T.C./Dip. Ed. (one year Course) or its equivalent. Category D: Holders of:
S.S.C., S.T.C./Dip.Ed.,/Dip. T. (one year Course) or its equivalent.
Category E: Untrained Graduates or holder of equivalent qualifications.
Category F: Untrained Matriculates or holders of equivalent qualifications.
Category G: The rest.
Note 1: For the purposes of categories B, C and D mentioned above, teachers with S.T.C., T.D., Jr. P.T.C., Dip.T., Dip. Ed.(Post S.S.C. One-Year Course) qualifications appointed on or after 1 st October 1970 will be considered as untrained and their seniority should be fixed in the E or F Category of untrained teachers, as the case may be.
Note 2: The following training qualification which can be secured two years after S.S.C. Examination should, however, be considered as training qualification for the purpose of seniority even after Ist October 1970:
(i) D.Ed.(2 years).
Judgment 13 201wp1065.22 (J).odt
(ii) T.D. (Bombay University).
(iii) Dip.Ed.(Nagpur University). Note 3: Seniority of M.A. (M.Sc.) M.Com., B.Ed. and B.A. (B.Sc.) B.Com., B.Ed., teachers would be common and their seniority would be determined on the basis of length of service after B.Ed.
in the school or schools of the same Management. There would not be a separate category 'A' for determining the seniority of the teachers in Higher Secondary Schools.
(G.R.E. and Y.S.D. No. HSC. 1076/419/XX-XXI of 6th May 1976). Note 4: In the case of teachers whose date of continuous appointment in one and the same category is common, the teacher who is senior by age will be treated as senior." (20) Similar provision is there in Schedule 'F' of the MEPS Act and Rules.
(21) The representative of Petitioner vehemently submitted that, Dip. T. (old 2 years course) and D.Ed. (2 years course) are not Equivalent because Teaching Diploma i.e. Dip.T. is qualification for trained graduate teacher and on the contrary, D.Ed. (2 years) is qualification given for trained undergraduate teacher in Rule 65 of Secondary School Code. Dip.T. i.e. Teaching Diploma qualification is mentioned for trained graduate teachers at Rule 65 - (1) at (ii) row with further condition that the same Diploma in teaching should be prior to 01/10/1970. Diploma in Education of 2 years i.e. D.Ed. (2 years) is mentioned for trained Judgment 14 201wp1065.22 (J).odt undergraduate teachers in Rule 65 (2) (i) and (iv). For the sake of convenience, Rule 65 of School Code is reproduced as under :
"65. A teacher will be considered as trained only if he possesses any of the following qualifications :
(1) For Graduate Teachers:
(i) The B. T./B. Ed. degree of any of the statutory Universities/or its equivalent;
(ii) The Teaching Diploma of any of the statutory Universities if the person holding it is appointed before 1-10-1970;
(iii) The S. T. Certificate of the Education Department of this State, if the person holding it is appointed before 1-10-1970;
(iv) The Diploma in Education of the Graduates Basic Training Centres;
(v) The Diploma in Physical Education recognised by Government or its equivalent;
(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) The Diploma in Education of Nagpur and Bombay Universities which is awarded two years after S.S.C. Examinatipn;
(ii) The S.T. Certificate of Education Department or the T.D. of any other statutory Universities in the State, if the person holding it is appointed before 1-10-1970;
(iii) Certificate in P. Ed. Recognised by the Department if the person holding it is appointed before 1-6-1971;
(iv) The Diploma in Education (D.Ed.) (Primary) awarded by the Government of Maharashtra;
Judgment 15 201wp1065.22 (J).odt
(v) Any other equivalent diploma or certificate approved by the Department or Inter-University Board."
(22) It is the contention of the Petitioner that, under the qualification for graduate teachers, Dip.T. with condition of appointment before 01/10/1970, is given separately. The qualification D.Ed. (2 years) is given separately under trained qualification of undergraduate teachers and therefore, Diploma under Dip.T. and D.Ed. (2 years course) operates for different sections/classes and therefore, they cannot be treated as equivalent. It is further contention that, in Annexure - 45 of Secondary School Code, undergraduate teachers are in category 'D' and graduate teachers are in category 'B'. (23) The representative of Petitioner relied on Madhavi (supra), (matter under Maharashtra Employees of Private School Act) wherein the factual position is given as under:-
"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) 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 Judgment 16 201wp1065.22 (J).odt 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."
(24) In Madhavi (supra), the Hon'ble Apex Court, in para 24, held as under:-
"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) The learned counsel for Respondent(s) has drawn our attention to Note (2) of the Annexure - 45 of the Secondary School Code, which clearly considered D.Ed. (2 years course) as training qualification for the purpose of seniority even after 01/10/1970. It is his contention that, the Respondent no. 4 came to be appointed on 02/11/1992 as untrained teacher in Category Judgment 17 201wp1065.22 (J).odt 'E', however, on acquiring his graduation, on 17/07/1993, he entered into category of graduate trained teacher. Rule 45 (ii) holds that, teacher having B.A./B.Sc., Dip.T. (old 2 years course) is entitled to be entered in Category 'B' and in view of Note (2), D.Ed. (2 years course) is considered as training qualification for the purpose of seniority.
(26) As such, even as per judgment in Madhavi (supra), on acquiring graduation i.e. upgradation of his qualification, he would enter into Category 'B' on 17/07/1993 whereas the appointment of the Petitioner itself is of 04/08/1993 i.e. subsequent to Respondent no. 4 entered in Category 'B'. (27) The representative of Petitioner relied on Vasant Babanrao Palkandwar (supra), wherein the seniority as per Schedule 'F' entry for specific category of MEPS Act & Rules was in question. In Vasant Babanrao Palkandwar (supra), this Court in para 15 and 16 held as under:-
"15. The perusal of Note 2 in Schedule F only shows that D.Ed. (2 years) qualification continues to be recognized as training qualification even after 01.10.1970 and teachers who had obtained that qualification continued to be recognized as trained in spite of above mentioned D.Os. Those who obtained those qualifications later on, therefore, can also be Judgment 18 201wp1065.22 (J).odt treated as trained teachers. The question is whether because of this recognition they can be placed in category "C". Note 4 in Schedule F mentions that categories mentioned in part 2 represent the ladder of seniority in descending order. In category C, Post Graduate Teachers with degree in training "or its equivalent" are placed in entry 1. Graduate teachers with graduate qualification in training "or its equivalent" are in entry 2. Third entry deals with Graduates with Diploma in Teaching. This Diploma in Teaching is qualified by words "old two years course". The words "or its equivalent"
are not employed by rule making authority in Entry No. 3. Entry No. 4 deals with Graduates with training qualification like S.T.C., Dip. Ed., T.D., Dip. T. (one year course). However, this entry No. 4 is then further qualified by imposing requirement of 10 years Post training service. Thus, because of absence of words "or its equivalent", it is clear that D.Ed. 2 years qualification obtained by the petitioner cannot be read in Entry No. 3 of Category - С. It also cannot be read in Entry No. 4 because it speaks of a Graduate with Training qualification which is of one year. It again does not use words "or its equivalent". In this situation, D.Ed. qualification obtained by the petitioner can be treated at the most as training qualification but that does not give him birth in category "C" automatically.
16. In any case, it was necessary for the petitioner to demonstrate equivalence of his D.Ed. course with Dip. T (old two years course) to qualify to come in Entry No. 3 of Category - C. That has not been done in this matter.
Therefore, only entry left is last entry i.e. entry No. 4 and that entry requires 10 years Post Training service. 2007 (supra) judgment of this Court has considered this situation. The said judgment of Hon'ble Division Bench is binding on this Court. On the basis of arguments Judgment 19 201wp1065.22 (J).odt advanced, this Court cannot add to or subtract from entries in category C."
(28) The representative of Petitioner also placed reliance on Viman Vaman Awale Vs. Gangadhar Makhriya Charitable Trust & Ors., reported in (2014) 13 SCC 219, wherein the Hon'ble Apex Court held that in terms of Rule 12 of MEPS Act which deals with seniority clear and unambiguous criteria for determining seniority is the "continuous officiation"
counted from the date of acquiring educational qualification as prescribed under Schedule "B" (MEPS Act). Since the appellant was holding the requisite qualification D.Ed. for appointment to the post of Assistant Teacher in primary school, as prescribed under Schedule "B" to the Rules, the 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 on 01/09/1980. The Appellant would naturally be senior to Respondent No.4. It is also held that it is the appellant who was the rightful claimant to the post of Head of the school as the appellant was fulfilling all the requisite qualifications for being appointed as 'Headmaster'.
Judgment 20 201wp1065.22 (J).odt (29) The representative of Petitioner also placed reliance
on Shri Sunil S/o Pandhari Nagrare (supra), wherein it is made clear that judgment in Viman Vaman Awale concerned a primary assistant teacher whereas another judgment of Ku. Bhawana Vs. State of Maharashtra & Ors. (Civil Appeal No.11934/2018) is in respect of secondary assistant teachers. In the Viman Vaman Awale matter, Court interpreted the guidelines for fixation of seniority of teachers in the primary schools whereas, Ku. Bhawana's judgment is concerned with the seniority of teachers in the secondary schools. The seniority of secondary school teachers, is to be determined on the basis of being placed in a particular category, which may depend, upon the acquiring or improving of qualifications and consequently being included in a higher category, than the one, which the teacher was earlier included in. The judgment of Ku. Bhawna specifically dealt with the inter se seniority of teachers in secondary school. It is held that fixation of the seniority in the secondary school has been graded into separate categories commencing from 'A' to 'H' and as regard category of 'A' and 'B' are concerned, the seniority is determined on the basis of the date of appointment to the respective posts. It is held in the judgment of Shri Sunil S/o Pandhari Nagrare (supra) that "the Judgment 21 201wp1065.22 (J).odt seniority must be reckoned from the date they entered the desired category; that is, from the date they acquired the necessary qualification, but not from the date of their entry into service."
(30) It is the contention of the Respondent No.4 that the Respondent No.4, at the time of appointment having qualification of S.S.C. D.Ed., (two years) his date of appointment is 02/11/1992. He acquired Graduation on 17/07/1993, whereas the Petitioner appointed on 04/08/1993, having qualification of B.A. B.Ed. Therefore, Respondent No.4 entered into a category of "B" on 17/07/1993 on acquiring Graduation (B.A.). (31) It is contention of the Petitioner that unless the teacher is appointed for secondary classes, he cannot enter into Category "B" as per the Secondary School Code. The letter relied upon by the Respondent No.4 to content that Dip.T. and B.Ed. (two years course) are equivalent are not issued by proper Authority. The letters issued by the Government Department being merely opinion of the Department and cannot be termed as executive instructions. The Petitioner relied on Shiba Shankar Mohapatra (supra). Such equivalence is not given anywhere in Judgment 22 201wp1065.22 (J).odt the Secondary School Code, hence it cannot be relied upon. (32) As against this, the learned Counsel for Respondent No.4 submitted that as per definition of "High School" in Rule 4 is a "Secondary School", which provides instruction from standard Vth or above but not beyond standard of X th. As per Clause 61.2(a) of Secondary School Code, which prescribes appointment and duties of Head of school shall be determined only in accordance with the guidelines issued by the Department from time to time. Thus, School Code itself permit the Department to issue guidelines time to time. His further submission is that there is provision of appeal in Rule 61.2 (d) to the Director and further appeal provided before the State if appellant is aggrieved by the order passed by the Director of Education. By not availing remedy under the Code deprived Respondent No.4 from two remedy of appeal.
(33) It is brought to our notice that the said Circular dated 28.01.2025 clarifies the position that Dip.T. (old two years course) and D.Ed. (old two years course) are equivalent course therefore does not change the nature of qualification. This is a clarificatory Government Resolution. The learned Counsel for Judgment 23 201wp1065.22 (J).odt Respondent No.4 further submitted that challenge to the Government Resolution dated 24.03.2024 are also disposed of by this Court.
(34) The learned Counsel for the Respondent No.4 placed reliance on Sahakar Vidya Prasarak Mandal (supra). The learned Single Bench of this Court considered the seniority and recorded findings regarding the training qualification of D.Ed. (two years course) for counting seniority. The provisions of Schedule "F" are similar to the provisions of Annexure 45 of the Secondary School Code. Rule 12 of the MEPS Rules prescribed maintenance of the seniority list and the decision of the Education Officer on the same question. There are no such provisions in Secondary School Code, the only provision of Guidelines in 61.2 of the Secondary School Code which govern the seniority and promotion. As the provisions in MEPS Act under Schedule "F" are similar to the Secondary School Code provision Annexure 45 and the Guidelines in Clause 61.2, this Court in paras 28, 29, 31 and 32 recorded its findings as under while discussing equivalence of qualification as per Note 2 :
"28. The guidelines contained in Schedule "F"
are required to be read as whole. Construing the entries in a particular category in isolation Judgment 24 201wp1065.22 (J).odt may lead to anomalous consequences. The Notes appended bill the categories further elucidate the intent of the entries in the guidelines. The contrast between Note 1 and Note 2 is unmistakable. Note 1 declares that for the purpose of category C, D and E teachers with S.T.C., T.D., Jr. P.T.C. Dip., T., 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. In contrast under Note 2, the training qualification of, (1)- D.Ed. (two years course), (2)- T.D. (Bombay University) and (3)- Dip. Ed. (Nagpur University), which can be secured two years after S.C.C. examination, shall be considered as training qualification for the purpose of seniority even after 1st October, 1970.
29. A conjoint reading of Notes 1 and 2 would indicate that the training qualifications described under Note 2 constitute a class by themselves and are required be reckoned for the purpose of seniority even if they are acquired post 1st October, 1970. Secondly, such interpretation is required to be given which gives play to operate both Note 1 and Note 2.
31. If the entries within Category "C" are considered in juxtaposition with Note 1 and 2, the view taken by the learned Presiding Officer School Tribunal that after acquisition of B.A. qualification, the respondent No.2, with two years D.Ed. Course, catapulted himself to the third entry in Category "C" from Category "F" (of untrained graduate teachers) becomes justifiable. Any other view would render D.Ed.
Judgment 25 201wp1065.22 (J).odt (two years course) not covered by any of the entries in Category "C".
32. The absence of the expression, "or its equivalent" in third entry in Category "C", pressed into service by Mr. Bandiwadekar, in my view, is not of determinative significance. Note 2 removes the ambiguity. It expressly provides that the three specified training qualifications including D.Ed. (two years course) shall be considered as training qualifications for the purpose of seniority even after 1st October, 1970. Omission of these three qualifications in Note 1 which subsumes in its fold all the training qualifications (post S.C.C. 1 year course) also indicates that they were to be treated at a higher pedestal. I am therefore persuaded to hold that the learned Presiding Officer School Tribunal was justified in reckoning the case of respondent No.1 as falling within the ambit of the third entry."
(35) Thus, there is distinction between qualification of S.T.C./Dip.Ed./Dip.T. (One year course) and training qualification of D.Ed. (Two years course). If candidate having S.T.C./Dip.Ed./Dip.T., (One year course), he requires to put in ten years services in that category then only be considered for seniority in category "B". This view of the Court in Sahakar Vidya Prasarak Mandal (supra) is also followed in the judgment of this Court in Krishna Mahadu Gasti (supra). In the said matter, the controversy was regarding entering category Judgment 26 201wp1065.22 (J).odt "C" based on the third entry of Category "C" on the ground of acquiring of B.Ed. Degree. The Court in paragraph 31 reiterated the above observations in the decision of Sahakar Vidya Prasarak Mandal (supra). Thus, we are of the considered opinion that view taken in Sahakar Vidya Prasarak Mandal (supra) followed in Krishna Mahadu Gasti (supra) is more logical and taken after considering the overall provision. (36) The representative of Petitioner placed reliance on Vasant Babanrao Palkandwar (supra). In the said judgment, the question before this Court was whether the requirement of putting in 10 years of service can be made applicable to the Petitioner who possessed S.S.C., D.Ed. (2 years) qualification. This Court held that after perusal of Note 2 in Schedule "F" it only shows that D.Ed. (2 years) qualification continues to be recognized as training qualification even after 01.10.1970 and teachers who had obtained that qualification continued to be recognized as trained as there was no mention that Dip.T. is qualified by words "old two years course". The words "or its equivalent" are not employed in Entry No. 3. Entry No. 4 provides for Dip.T. (one year course), however, it qualified by imposing requirement of 10 years Post training services. In our Judgment 27 201wp1065.22 (J).odt considered opinion, this view of the Single Bench of this Court in judgment of Vasant Babanrao Palkandwar (supra) is not correct. For entering into Category "B" of Annexure 45, it is not necessary or prescribed against Entry No.3 that person holding Dip.T. (old two years course) with Graduation is required to put in 10 years post S.T.C. service. It is simply graduation and Dip.T. old two years course holders are entitled to be included in Category "B" as held in Sahakar Vidya Prasarak Mandal (supra). There has to be a conjoint reading of Note 1 and Note 2 which would indicate that the training qualifications described under Note 2 constitute a class by themselves and are required be reckoned for the purpose of seniority even if they are acquired post 1 October, 1970. The absence of the expression, "or its equivalent" in the third entry in Category "B" is not of determinative significance. Note 2 removes the ambiguity. This also endorsed by the Single Bench of this Court in Krishna Mahadu Gasti (supra).
(37) The representative of the Petitioner placed reliance on Judgment of Ashok Narayan Sathe (supra), however this judgment is of no avail to the Petitioner. The contention of the Petitioner in the said matter was that D.Ed. two years course was Judgment 28 201wp1065.22 (J).odt equivalent to the B.Ed. degree, therefore, he claims that since he has already completed his D.Ed. course prior to Respondent No.5 joining the services, he was entitled to be considered senior in Category 'C'.
(38) The representative of the Petitioner placed reliance on Judgment of Madhav Govindrao Budhe (supra). In the said judgment, the Division Bench has considered this issue. Rule 61 and 63, Annexure 45 and Clause 5 of the M.P. Education Act, which are pari materia with Schedule 'F' of the MEPS Act read with Rule 12 of the MEPS Rules, framed under the MEPS Act. It was held that the initial date of appointment is of no consequences. In so far as category wise seniority is concerned, the seniority has to be reckoned from the date, the teacher either achieves the qualification required or he proves his/her qualification for being appointed as trained teacher. (39) As per the School Code in Clause 61.2(a) which specifically prescribed the appointment and duties of head of schools shall be determined only in accordance with the guidelines issued by the Department from time to time. The representative of Petitioner though placed reliance on Sunil Judgment 29 201wp1065.22 (J).odt Pandhari Nagrare (supra), wherein this Court in para 16 and 18 held as under :
"16. That apart even in respect of teachers in secondary schools, for the purpose of determining his seniority, the Category into which a teacher falls, is determined by the nature of qualifications, possessed by such teacher, on the date of the initial appointment, which position, as indicated above could be improved upon by enhancing one's educational qualification, so as to claim, entitlement to inclusion in a higher category.
18. Thus, whereas the seniority of teachers in a Primary school earlier was based upon the date of joining of service and continuous officiation, therefrom, the seniority of teachers in secondary school is Cadre based in light of the categories A to H, as mentioned in Guideline-II of Schedule F of the MEPS Rules, 1981 and the seniority is thus to be counted cadrewise and from the date a teacher is placed in the particular category."
In the said matter, claim of the Petitioner that they are covered by Judgment in Viman Vaman Awale (supra) rejected and their writ petitions were dismissed. (40) So far as reliance placed by the representative of Petitioner on Judgment of Shiba Shankar Mohapatra (supra), there is no dispute over the ratio laid down in the said judgment. In the said judgment, it is held that seniority can be challenged within a reasonable period, challenge beyond such Judgment 30 201wp1065.22 (J).odt period needs to be explained. Court exercising public law jurisdiction does not encourage agitation of stale claims, where right of parties is affected. The similar view is taken in judgement of Maloon Lawrence Cecil D'Souza (supra). By this judgment of the Hon'ble Apex Court, it is held that although security of service cannot be used as a shield against administrative action for lapse of a public servant by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects for, it should at least be possible to ensure that matters like one's position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of party who has during the intervening period chosen to keep quiet. However, in the present matter, the Petitioner has not filed any Petition challenging the seniority list. The Municipal Council itself has taken the decision to fix the seniority of Respondent No.4 above petitioner. The decision of fixing seniority was taken in view of the order dated 27/10/2021, passed in the Writ Petition No.1237/2020, in the matter of Petitioner. In the said matter, this Court held that MEPS Act is not applicable to the schools run by the local authorities. In para 5 of the order, the following Judgment 31 201wp1065.22 (J).odt directions were given :
"5. Needless to mention that the petitioner shall be entitled to approach the Appropriate Authority under the Secondary School Code for determining the inter se seniority between the petitioner and respondent No.1. It is also made clear that in case such authorities are approached, the application shall be entertained without going into the issue of delay, considering that the matter is being pursued by the petitioner before a wrong forum."
(41) In view of this order dated 27/10/2021, inter se seniority of the Petitioner and Respondent No.4 came to be decided after due hearing to the parties. The said decision is taken by the Chief Officer, Nagar Parishad Deulgaonraja, District Buldhana on 11/03/2022 and considering the criteria it is declared Shri S. K. Deshmukh, Incharge Headmaster is senior to the Petitioner. In fact, in view of the order passed by this Court in Writ Petition No.1237/2020, the Authority is directed to entertain the application without going into the issue of delay, considering that the matter is being pursued by the Petitioner before a wrong forum. As such, objection of Respondent No.4 that alternate remedy is available and the Petitioner ought to have filed appeal against the order as per Clause 61.2(a) is sustainable. It is contention of the Respondent No.4 that if the Petitioner becomes successful in challenging the promotion of Judgment 32 201wp1065.22 (J).odt Respondent No.4, he cannot be made to lose one opportunity of appeal before the State Government as there is second appeal provided against the order of the Director of Education before the State. It also appears that the Respondent No.4 came to be promoted as Assistant Head Master on 01/07/2018, however, it was challenged by the Petitioner in the present Writ Petition on 22.07.2022.
(42) The Respondent No.4 also placed reliance on Government Resolution dated 28/01/2025, it is applicable to the private schools. The equivalence is given to D.Ed. old two years course with Dip.T. old two years old course. The said Government Resolution is in detail explained that the said D.Ed. two years course was equivalent to the Dip.T. two years course and there is no modification by this G.R. to this position, only it clarifies the said entries. This G.R. cannot be ignored. As such, in our considered opinion, the inter se seniority of the Petitioner and Respondent No.4 fixed by the Chief Officer cannot be faulted with. Moreover, alternate remedy though available to the Petitioner, he has not availed the same. It also appears that promotion to the Assistant Head Master was granted on 22/11/2018 to the Respondent No.4, however, there was no Judgment 33 201wp1065.22 (J).odt challenge till filing of Petition i.e. 22/02/2022. As matter was admitted by this Court it is decided on merit. (43) As such, the Petition is liable to be dismissed as there is no merit in the Petition. Accordingly, the Petition stands dismissed. No order as to costs.
(M.W. CHANDWANI, J.) (SMT. M.S. JAWALKAR, J.) Kirtak Signed by: Mr. B.J. Kirtak Designation: PA To Honourable Judge Date: 17/07/2025 17:32:40