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5. In Writ Petition No. 1201/96, interim order of status quo was passed while admitting the said petition by this Court and subsequently, the interim order of status quo came to be vacated by another order dated 6-11-1996. The application for restoration of the status quo order filed by the petitioner in that petition is on record white in Writ Petition No. 971/97, only notice before admission was issued.

6. In Writ Petition No. 1201/96, respondent No. 3 School Management has appeared and filed its Return in which petition has been supported in to and it has been further emphatically averred that Shri Tijare was promoted as Assistant Teacher in the Secondary School by Resolution dated 3-8-1977 and he worked in that capacity continuously. The respondent No. 3 has further emphasised correctness of seniority list finalised on 7-8-1995 and averred that there was no objection received from any one against the said seniority list including respondent No. 4 Shri Kadgaye. Shri Kadgaye, respondent No. 4 in Writ Petition No. 1201/96 and petitioner in Writ Petition No. 971/97, has filed his reply and has not brought anything on record to show that he had taken objections to the seniority list circulated in July/August 1995 by the respondent No. 3. However, his detailed reply opposing Writ Petition No. 1201/96 avers that the School Management and the Education Officer were in collusion with each other and the Education Officer had not approved the seniority list circulated in July/August 1995 and that the original order dated 10-1-1996 declaring him as surplus was grossly erroneous. The return of respondent No. 4 further emphasises the allegation that in the seniority list published by the respondent No. 3 in the years 1992, 1993 and 1994 petitioner Shri Tijare was shown as junior to respondent No. 4 and the said position was never disputed. It is further admitted that the respondent No. 4 continued to work in the new School even on the date when the return was filed by him while the petitioner continued to work at the old School, i.e. School run by the respondent No. 3. It is further contended by respondent No. 4 that petitioner Shri Tijare was paid salary payable to the High School Teacher under the 25% quota available to the Middle School Teachers and Shri Tijare in fact continued to be a Middle School Teacher and he was never appointed as an Assistant Teacher for the Secondary School. The respondent No. 4 further alleged that taking advantage of the disputed seniority so as to safeguard interest of the petitioner, the respondent Management and the Head Master of the School submitted faulty proposal for declaring respondent No. 4 as excess Teacher to respondent No. 2 Education Officer, who passed order dated 10-1-1996 without considering the factual position and extending an opportunity to the respondent No. 4 and he joined the new School reserving his rights during the pendency of Writ Petition No. 268/96. It is further submitted by respondent No. 4 Shri Kadgaye that petitioner Shri Tijare came in the cadre of High School Teacher only in the year 1984 when he acquired B.Ed. qualification and the seniority of Shri Tijare is required to be counted from the date of his acquiring B.Ed. qualification as per Schedule 'F' Note No. 3 of the Secondary School Code. Finally the respondent No. 4 supported the order dated 16-4-1996 passed by the Education Officer.

10. It is not disputed that both petitioner as well as respondent No. 4 are trained teachers and the Management had published a seniority list in 1987 itself. It is also admitted that prior to enactment of Maharashtra Employees or Private Schools (Conditions of Service) Regulation Act, 1977 and Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, the service conditions of teachers in the private schools in Vidarbha region were covered by the Secondary Schools Code. The provisions for determination of qualifications, pay-scales and seniority of the School Teachers were also incorporated in the Secondary Schools Code and they are almost materially similar to the provisions incorporated under the Act of 1977 as well as Rules framed in 1981. For sometime, the petitioner was governed under the Secondary Schools Code, whereas respondent No. 4 has been governed under the Rules of 1981 right from his initial appointment. However, to decide the inter se seniority between these two teachers, it is suffice to examine their respective claims taking into consideration the provision of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules framed thereunder, namely, 1981 Rules. Rule 2(1)(j) of 1981 Rules reads as under :

15. Reliance may be usefully placed on the judgment of this Court in the case of Madhav Govindrao Budhe v. Education Officer, Zilla Parishad Nagpur and others, 1994 Mh.L.J. 42 (Sambre and Sirpurkar, JJ.) wherein a similar issue fell for consideration based on the provisions of Secondary Schools Code as was then prevailing and this Court held that principle of continuous officiation is squarely applicable to decide the seniority of trained Assistant Teachers falling in Category 'C' even if one has B.Ed, qualification and other has D.Ed. qualification so long as both of them are Graduates. Annexure (45) which was in relation to Rules 61 and 63 of the Secondary Schools Code provided guidelines for fixation of seniority list of the teachers in the non-Government Secondary Schools. Categories of teachers were also set out in Annexure (45) and Rule 3 therein read as under :
"It is an admitted position that the petitioner was only a matriculate when he joined the service. He acquired diploma in teaching in the year 1962 and on 31.12.1965 he was an under graduate trained teacher. Thus, he belonged to Category 'D' at the time when he was confirmed. Now after the advent of the Secondary Schools Code, the petitioner for the first time in the year 1967, became a graduate and thus stepped into category "C". He stepped into this category because of the improvement of his qualifications. Category "C" is applicable to those who hold degree of B.A./B.Sc. S.T.C./Dip.Ed.(One year course) or its equivalent. Therefore, in the year 1967, the petitioner belonged to Category "C" being a graduate and having a diploma in teaching."