A.P Deshpande, J.:— A conflict in the views expressed by two Division Benches of this Court was noticed by one of us and hence, a reference was made to the Honourable the Chief Justice with a request to refer the matter to a Bench comprising of more than two Judges. This Full Bench is constituted pursuant to the said reference. We formulate the point of reference as herein below:—

“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?”

2. In a judgment reported in 2003 (3) Mh. L.J 438 in case of Chintaman Ramaji Mahakalkar v. Education Officer (Primary), Zilla Parishad, Wardha, the Division Bench held that the seniority of primary school teachers has to be determined on the basis of date of joining service and continuous officiation irrespective of the date of acquiring D.Ed qualification, whereas a contrary view is expressed in another Division Bench judgment of this Court reported in 2003 (3) Mh. L.J 206, in case of Rajhans Narayanrao Shahapure v. Prabhavati Vithalrao Kamble. The Division Bench in Rajhans's case has held that there is no doubt that for the purpose of seniority, the initial date of appointment is required to be considered but for teachers who fulfil the required qualifications for such appointment, the learned Judges counted the seniority of primary school teacher from the date of acquisition of D.Ed qualification.

3. Few facts that are necessary to consider the rival contentions are set out herein below:

4. The petitioner is in the employment of respondent No. 1.Society and is working as an Assistant Teacher in a primary school having Standards from I to VII. The respondent No. 1 promoted the respondent No. 2 to the post of Head Master and aggrieved thereby, the petitioner filed an appeal before the School Tribunal, contending that the promotion granted to the respondent No. 2 being in supersession of the claim of the petitioner, the same be quashed, it being illegal. The Tribunal allowed the appeal by holding that the seniority need to be counted from the date of acquiring training qualification. The respondent No. 2 before the Tribunal is the petitioner before this Court and he has challenged the judgment and order passed by the Tribunal.

5. The petitioner's date of initial appointment as a primary school teacher is 1-3-1972 at which point of time, he had the qualification of S.S.C The petitioner improved his qualification while in service by passing Diploma in Education (D.Ed) examination in the year 1981, whereas the respondent No. 2 was initially appointed on 1-7-1973 and at the time of his appointment, he was possessing qualification of S.S.C The respondent No. 2 acquired the qualification of Diploma in Education (D.Ed) in the year 1980 i.e prior to the petitioner. If the seniority is to be reckoned from the date of initial appointment, and continuous officiation from the said date is to be taken to be the criteria to determine seniority, the present petitioner will be senior. However, if the seniority is to be counted from the date of acquiring the requisite qualification (D.Ed in the present case), the respondent No. 2 will be senior.

6. In the above factual matrix, we proceed to consider the issue.

7. The learned Counsel appearing for the petitioner has contended that Rule 12 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (For short, “M.E.P.S Rules”) mandates the management of every school to prepare and maintain seniority list of the teaching staff in accordance with the guidelines laid down in Schedule “F”. Inviting our attention to Schedule “F”, it is submitted that Clause 1 which deals with guidelines for fixation of seniority of teachers in the primary schools provide that the seniority of primary school teachers shall be based on the date of joining service and continuous officiation. It is submitted by Mr. N.B Khandare, learned Counsel appearing on behalf of the petitioner, that Rule 12 read with Schedule “F” deals with fixation of seniority and it does not speak of the training qualification. Thus, he submits that the training qualification cannot be read either in Rule 12 or Schedule “F” of the M.E.P.S Rules.

8. Per contra, Mr. S.B Bhapkar, learned Counsel appearing on behalf of respondent No. 2, submits that in the very scheme of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (For short, “M.E.P.S Act”) and the Rules framed thereunder, untrained teacher cannot be appointed at all and the seniority has to be from amongst the trained teachers only. The learned Counsel for the respondent No. 2 places reliance on the definition of “trained teacher” in Rule 2(1)(k) which reads thus:—

““Trained teacher” means a teacher who has secured a professional certificate, a diploma or a degree recognised by the Department which qualifies him for a teaching post in a school.”

9. It is submitted that an untrained teacher is not qualified and is not eligible to be appointed as a primary school teacher. Hence, service rendered by a primary school teacher without training qualification cannot be counted for seniority, as such an appointment is no appointment in the eye of law.

10. Section 5 of the M.E.P.S Act provides for certain obligations of the managements of private schools and section 5(1) reads thus:—

“The Management shall, as soon as possible, fill in, in the manner prescribed, every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy.”

(Emphasis supplied)

11. Sub-section 5 of section 5 permits the Management to fill in every temporary vacancy by appointing a person duly qualified to fill such a vacancy. What is to be seen is that section 5 obliges the Management to fill in the permanent vacancy, so also, the temporary vacancy by appointing a person duly qualified.

12. Rule 6 of the M.E.P.S Rules lays down the qualifications of teachers, the relevant portion of which reads thus:

“The minimum qualifications for the posts 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”.”

13. A plain reading of Rule 6 makes it amply clear, that the minimum qualification for the post of teachers in primary and secondary school shall be as specified in Schedule “B”. Turning to Schedule “B”, it can be noticed that minimum qualifications for primary teachers are stipulated in clause “I”. The relevant portion thereof lays down thus:—

“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 (pre-primary of two years' duration).”

(Emphasis supplied)

14. For appointment to the post of primary school teacher, Schedule “B” provides that the person to be appointed need to possess qualifications of S.S.C (or any examination equivalent thereto) and the training qualification which is prescribed. Unless and until a person possesses the qualifications of S.S.C and Diploma in Education or teaching, as laid down in clause “I” of Schedule “B”, he cannot be treated as a person duly qualified, which is the requirement of section 5(1) and section 5(5) of the M.E.P.S Act. Sub-Clause 2 of Clause “I” of Scheduled “B” of the M.E.P.S Rules deals with appointment of Special Teachers, whereas Sub-Clause-3 exempts primary school teachers whose date of first appointment is prior to 15th October, 1966 from acquiring the necessary qualification. It is not the case of the petitioner, that the petitioner satisfies the criteria in clause 3 and hence, falls within the exception. Reading of Rule 6 and Schedule “B”, in the light of section 5, which speaks of appointment of duly qualified teachers, the conclusion is inescapable that only a trained teacher is eligible and qualified for being appointed as a primary school teacher and if this be so, it is not possible to conceive that service rendered by a teacher in a primary school who does not have the requisite qualification as laid down in Schedule “B” can be counted for the purpose of seniority. No doubt, the criteria is “seniority based on the date of joining service and continuous officiation” but it cannot be lost sight of the fact that Schedule “F”, so also, Rule 12 pre-supposes appointment of a trained primary school teacher in conformity with the eligibility and qualification prescribed in Schedule “B”. Rule 12 and Schedule “F” cannot be read in isolation without considering the mandatory provision contained in Section 5 of the M.E.P.S Act, so also, Rule 6 and Scheduled “B” of the M.E.P.S Rules.

15. Keeping the above relevant provisions in mind, we turn to Rule 3(1) of the M.E.P.S Rules which regulate the appointment of “Head”. It reads thus:

“Qualifications and appointment of Head. — (1) A person to be appointed as the Head—

(a)(i) of a primary school having an enrolment of students above 200 or having Standards I to VII shall be the seniormost trained teacher who has put in not less than five years' service; and

(ii) of any other primary school shall be the seniormost teacher in the school.

(b) ……………………”

(Emphasis supplied)

16. In the case in hand, the situation is squarely covered by rule 3(1)(a)(i) as the school has Standards from I to VII. The rule clearly provides that the person to be appointed as “Head” shall be the seniormost trained teacher who has put in not less than 5 years of service. Thus, rule 3(1)(a)(i) does not leave any room for ambiguity.

17. The learned Counsel appearing on behalf of the petitioner submits that Rule 3(1)(a)(ii) does not prescribe, that a person to be appointed as Head in any other primary school shall be the seniormost trained teacher but on the contrary, it prescribes the criteria of “seniormost teacher”. Taking support from the omission of the word “trained” in Rule 3(1)(a)(ii), it is submitted that the rule does not postulate appointment of a seniormost trained teacher as a Head, but permits appointment of the seniormost teacher and if this be so, then it cannot be claimed that the training qualification is a sine qua non for appointment of a primary school teachers and hence, seniority should be reckoned having regard to the initial date of appointment and continuous officiation.

18. Though in the first blush, the submission appears to be impressive, on a closure scrutiny, the same does not hold good. Rule 3, which is a provision in the subordinate piece of legislation, will have to be interpreted in consonance with other provisions contained in the Rules and such construction need to be in harmony with the parent statute. Section 5 of the M.E.P.S Act in no uncertain terms direct that the Management shall fill in the permanent vacancy or the temporary vacancy by appointment of a person duly qualified. Rule 6 is the crucial rule laying down qualifications of teachers and it provides that the minimum qualifications for the post of teachers shall be as specified in Schedule “B”. Clause “I” of Schedule “B”, which deals with qualifications of primary school teachers, specifically prescribe qualification of S.S.C and D.Ed (or any other equivalent diploma mentioned therein). The definition of “trained teacher” in Rule 2(1)(k) refers to a teacher who has secured professional certificate or diploma or degree recognized by the Department which qualifies him for a teaching post. All the provisions, if read in harmony, the clear position which emerges is that no person can be appointed as primary school teacher who is not having qualification as prescribed under Schedule “B”, meaning thereby, possessing minimum educational and training qualification.

19. We may draw support for the above mentioned proposition in reported judgment of the Apex Court in the matter of Shitala Prasad Shukla v. State of U.P, reported in AIR 1986 SC 1859. The appellant therein, who was working as a Lecturer in Hindi in a college, did not have requisite qualifications and was, therefore, not entitled to be appointed in the lecturer's grade as lecturer (Hindi) having regard to the prohibition contained in section 16-F of the U.P Intermediate Education Act. The appellant in the reported judgment, made an application for exemption as envisaged by section 16-E of the Act. The application was considered and granted by the Board of High School and Intermediate Education, U.P, by its order dated July 23, 1963. The contention of the appellant therein was that though the Board had actually granted exemption only on July 23, 1963, he must be deemed to have been exempted from November 4, 1960, it being the date on which he applied for exemption and as such, his seniority is liable to be counted from November 4, 1960, itself. While dealing with these contentions and negativing the arguments advanced by the appellant, the Apex Court has observed in paragraphs 8 and 9 of the judgment, thus:

“There is also one more dimension of the matter. Though the appellant was working as a lecturer, it was not under any authority of law for there is no provision which empowers the college to allow any unqualified person to teach or to appoint him as such in anticipation of his disqualification being removed in future. Till the exemption was granted appellant was not even a teacher in the eye of law though he was allowed to teach by the indulgence of the college authorities. The disqualification was removed only on July 23, 1963 when the Board granted the exemption. How could he have claimed seniority vis-a-vis respondents Nos. 5 and 6 who possessed the requisite qualifications and became regularly and lawfully appointed teachers much prior thereto?

An employee must belong to the same stream before he can claim seniority vis-a-vis others. One who belongs to the stream of lawfully and regularly appointed employees does not have to contend with those who never belonged to that stream, they having been appointed in an irregular manner. Those who have been irregularly appointed belong to a different stream, and cannot claim seniority vis-a-vis those who have been regularly and properly appointed, till their appointments became regular or are regularized by the appointing authority as a result of which their stream joins the regular stream. At that point of confluence with the regular stream, from the point of time they join the stream by virtue of the regularization, they can claim seniority vis-a-vis those who join the same stream later. The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue.”

20. In this view of the matter, we hold that for a valid appointment of a primary school teacher, a person must possess educational so also the training/teaching qualification. No person can be legally appointed who does not hold training qualification. Hence, service rendered as an untrained teacher will not qualify for being counted to determine seniority.

21. Having recorded a finding that for appointment of a primary school teacher, the requisite eligibility criteria is possessing educational and training/teaching qualification, we are faced with a direct conflict in the language used in Sub-Rule 3(1)(a)(i) and 3(1)(a)(ii). Rule 3(1)(a)(i) categorically provides that for appointment to the Post of Head of a primary school having an enrolment of students about 200 or having standards I to VII, shall be the seniormost trained teacher who has put in not less than 5 years service, whereas Rule 3(1)(a)(ii) lays down that a person to be appointed as a Head of any other primary school shall be the seniormost teacher in the school. A plain reading of Sub-Rule (a)(ii) gives an impression that not only the requirement of not less than 5 years service is dispensed with, but also it dispenses with the requirement of training qualification. The omission of the word “trained” occurring after the words “seniormost” and before the word “teacher” gives rise to an absurdity, inasmuch as for appointment of a teacher training qualification is pre-requisite and if Rule 3(1)(a)(ii) is literally construed, the same does not postulate that for appointment of a Head, the teacher should be a trained teacher. This anomaly has to be resolved by interpretative process.

22. It is a settled position in law, that a statute must be read as a whole and one provision of the Act should be construed with reference to the other provisions in the same Act so as to make a consistent enactment of the whole statute. A construction which avoid inconsistency or repugnancy either within the rule or between the rule and other parts of the statute has to be preferred. It is incumbent on courts to avoid “a head on clash “between the provisions of the rules. The rules need to be harmonized in furtherance of the object of the statute. One provision cannot be read so as to defeat those of another. Rules are required to be read as part of an integral whole as being interdependent. Any interpretation which results in repugnancy or absurdity will have to be avoided. For maintaining the unity of the statutory scheme, it is imperative to determine the hierarchy of the provisions so as to give effect to the purpose sought to be achieved by the statute. With a risk of repetition, it is reiterated that section 5 mandates the management to fill in the vacancy, be it permanent or temporary, by appointing a person duly qualified to fill such vacancy. Rule 6 lays down that minimum qualifications for the post of teachers shall be as specified in Schedule “B” and Schedule “B” in turn provides for minimum qualification for appointment to the post of primary school teachers and further prescribes the qualification of S.S.C and D.Ed or any other qualification equivalent to the same, as laid down in Clause 1 of Schedule “B”. If rule 3(1)(a)(i) and (ii) is 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). In the scheme of the Act, one cannot comprehend that the legislature had intended to do away with the requirement of the seniormost teacher being a trained teacher. It could not have been the intention of the legislature while framing Rule 3(1)(a)(ii) to deliberately omit the word “trained”. The omission of the word “trained” is an obvious drafting error and if the said word is not supplemented, the rule cannot be harmonized in tune with the scheme of the Act and the other rules which are referred to herein above.

23. We are alive to the legal position, that only in an exceptional situation, the courts can supplement a word, as the same would almost tantamount to legislative exercise but unless and until we resort to the exception, there would be no harmony in the scheme of the Act and the rules and what would surface would be nothing less than repugnancy and absurdity. Faced with this difficulty, we proceed to rely upon a rule of construction enunciated by Denning. L.J, which has been cited with approval by the Supreme Court in some of its judgments. Denning, L.J, said in Seaford Court Estates Ltd. v. Asher, (1994) 2 All England Reporter 155, at page 164:

“When a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give ‘force and life’ to the intention of the Legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.”

24. The Apex Court in case of Bangalore Water Supply and Sewerage Board v. A. Rajappa, AIR 1978 SC 548, approved the rule of construction stated by Denning, L.J, while dealing with the definition of “Industry” in the Industrial Disputes Act, 1947. His Lordship, V.R Krishna Iyer, J., who delivered the leading majority judgment in that case, referred with approval the passage extracted above from the judgment of Denning, L.J, in case of Seaford Court Estates Asher Ltd. v. Asher. Denning, L.J has re-stated the above referred rule in a new form in a subsequent judgment by making following observations:

“We sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.”

25. What follows from the above discussion is that if there is a prima facie gap or an obvious omission in the statute/rule, the Judge should ask a question to himself, that if the makers of the Rule had themselves come across this ruck in the texture of it, would they have straightened it out, and if the answer is in the affirmative, he must then do so as they would have done, of course, without altering the material of which the Act is woven of.

26. To us, it does appear that had the attention of the rule makers been drawn to rule 3(1)(a)(i) and (ii) and more particularly, in regard to the absence of the word “trained” in Rule 3(1)(a)(ii), they would have filled in the omission by inserting the word “trained” in Rule 3(1)(a)(ii). As we are convinced that absence of word “trained” in Rule 3(1)(a)(ii) is an unintended accidental omission, the same has to be supplemented by having recourse to the rule of construction, as stated by Denning, L.J, which has been approved by the majority judgment of the Apex Court viz. seven Judges judgment rendered in Bangalore Water Supply and Sewerage Board v. A. Rajappa (supra). Failure to have recourse to the same, would result in destroying the whole fabric of the scheme laid down by the Act and the other provisions of the Rules. In this view of the matter, we deem it appropriate to read the word “trained” in Rule 3(1)(a)(ii) after the word “seniormost” and before the word “teacher” so that a harmonious construction of the Act and the other provisions of the Rules is possible. Accordingly, we supplement the word “trained” in Rule 3(1)(a)(ii) and answer the reference herein below thus:

27. For appointment to the post of Head Master (by promotion) of a primary school, the seniority of the teacher is to be counted from the date he acquires educational and training qualifications as prescribed under Schedule “B” of the M.E.P.S Rules. The seniority cannot be counted from the date of initial appointment and continuous officiation devoid of requisite qualification as prescribed in Schedule “B”.

28. Having answered the reference, we direct the Registry to place the Writ Petition before the appropriate Bench for disposal.

Reference answered accordingly.