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6. Learned Counsel Shri Mehadia submits that so far as respondent No. 4 is concerned, he was appointed as Assistant Teacher on 2-7-1962 and he obtained degree of Bachelor of Arts in the year 1961 and degree of Bachelor of Education in the 1967, i.e. much prior to the said degrees obtained by the petitioner. It is further submitted that in view of Note 3 and Clause 5 of Annexure 45 of the Secondary Schools Code, the claim of the respondent No. 4 for the promotional post was considered by the Municipal Council. Consequently, respondent No. 4 was made Head Master of the School. In order to substantiate the contentions, reliance is placed by the learned Counsel on the judgment of this Court in Devlal Jagatram Chauhan and Anr. v. Municipal Council, Gondia and Ors., 1999 (1) Mh.L.J. 163.

8. On the backdrop of the above undisputed facts, it will be appropriate to consider controversy in issue in the light of the provisions of Note 3 as well as Clause 5 of Annexure 45 of the Secondary Schools Code. This issue, in our view, is no more res integra and is covered by the decision of this Court in the case of Devlal Jagatram Chauhan (cited supra). The relevant observations of the Division Bench of this Court made in para (14) of the judgment in the said case read thus :

"The conclusion thus emerges is that in view of clause 5 of Annexure 45 upto 31-12-1965 the parties will be governed by the provisions of the Act and the Code framed thereunder and thereafter the parties will be governed by the provisions of the Secondary School Code as framed by the State of Maharashtra for the purposes of seniority. The teachers who were having requisite qualifications as on 31-12-1965 will have to be given seniority on the basis of length of service in appropriate category and the teachers who have acquired the requisite qualification after 1965 will have to be given seniority as per the provisions contained in Annexure 45 of the Secondary School Code. In the present case, prior to 31-12-1965 the petitioners and the respondents Nos. 3 to 8 only were possessing qualifications of graduation and training course. The petitioners acquired B.Ed, qualifications on 11-5-1963, while the respondent No. 3 acquired training qualification on 5-5-1964 and the respondent No. 8 acquired training qualification in the year 1964. On 31-12-1965, the respondents Nos. 4, 5, 6, 7 and 9 were not possessing the B.Ed, training qualification and this qualification was acquired by the respondent No. 4 on 10-5-1970, by the respondent No. 5 on 17-5-1967, by the respondent No. 6 on 8-5-1971, by the respondent No. 7 on 21-12-1971 and by the respondent No. 9 on 8-5-1971. Thus, as far as the petitioners, the respondent No. 3 and the respondent No. 8 are concerned, they were possessing the requisite qualifications on 31-12-1965 and by application of Annexure 45 of the Secondary School Code after 1965 they will be placed in one category depending upon their length of service in the high school. The respondent Nos. 4, 5, 6, 7 and 9 were not possessing the training qualification on 31-12-1965, hence these respondents will have to be placed in lower category than the petitioners and the respondents Nos. 3 and 8 and from the date of their qualifications these respondents will be placed in the higher category as per the guidelines contained in Annexure 45 of the Secondary School Code for the purposes of seniority. Thus, the seniority of the petitioners and the respondents Nos. 3 and 8, as on 31-12-1965 will be on the basis of their length of service while the seniority of the respondents Nos. 4, 5, 6, 7 and 9 will be on the basis of date of their acquiring B.Ed, qualification. In view of Annexure 45 of the Secondary School Code, the respondents Nos. 4,5,6,7 and 9 will have to be treated as juniors to the petitioners. The ultimate result will be that the seniority of the petitioners and the respondent Nos. 3 and 8 will depend on their length of service as they were possessing the requisite qualifications on 31-12-1965. After 1965 seniority between the petitioners and the respondents Nos. 3 and 8 cannot be disturbed."

9. Taking into consideration the above referred observations of the Division Bench of this Court, it is evident that respondent No. 4 acquired requisite qualification of B.Ed, prior to the petitioner and as per scheme of Clause 5 of Annexure 45 of the Secondary Schools Code, he will have to be placed in the higher category than petitioner, who obviously did not possess the requisite qualification on 31-12-1965. The law laid down by the Division Bench of this Court in the case of Devlal Jagatram Chauhan (cited supra) is clearly applicable to the facts of the present case. For the reasons stated hereinabove, respondent No. 4 will have to be placed in the higher category than the petitioner and his length of service in the said category will have to be counted from the date on which he has acquired requisite qualifications for the post, i.e. B.A., B.Ed. The respondent No. 4 obtained these qualifications much prior to the petitioner and, therefore, had a better claim for the higher post. The Municipal Council was, therefore, justified in considering the claim of the respondent No. 4 and promoting him to the post of Head Master.

10. So far as judgment of the Division Bench in the case of Sopan s/o Bhagwan Kinage (cited supra) relied by the learned Counsel for the petitioner is concerned, the same is considered by the Division Bench of this Court in Devlal Jagatram Chauhan's case (cited supra). In the said case of Devlal Jagatram Chauhan, the Division Bench has already observed that in view of Clause 5 of Annexure 45, after 31-12-1965, the parties will be governed by the provisions of the Act and Rules. The present case needs to be considered under the provisions of the Secondary Schools Code as framed by the State of Maharashtra for the purpose of seniority. Keeping this aspect in mind as well as scheme enumerated in Clause 5 of Annexure 45 of the Secondary Schools Code, there is no scope to assess inter se seniority of the employees of the Secondary School on the basis of age and in absence thereof, it is necessary to give proper meaning to Clause 5 of Annexure 45 in construing inter se seniority between the employees and, therefore, we are afraid that the law laid down by the Division Bench of this Court in Sopan s/o Bhagwan Kinage's case is not of any help to the petitioner in respect of controversy in issue.