Pangarkar C.L, J.:— All these three writ petitions can be disposed of by common judgment since all petitioners seek to challenge their placement in the seniority inter se.

2. Facts giving rise to these petitions are as follows:

All petitioners came to be appointed as Assistant Teachers in respondent No. 1's School. The petitioner in Writ Petition No. 72 of 1994 came to be appointed on 17.7.1987 The petitioner in Writ Petition No. 67 of 1994 came to be appointed w.e.f 6.7.1987 while the petitioner in Writ Petition No. 171 of 1994 came to be appointed on 25.06.1987 After they were so appointed the School was converted into grant-in-aid School. There was, therefore, necessity to fix the seniority of the petitioners. It is contended that the petitioners were required to file Writ Petition No. 2737 of 1992 and other petitions when they were allegedly transferred from one branch of the school to the other branch. This Court in Writ Petition No. 2737 and 2735 of 1992 directed that a Seniority List be pre- pared. The Seniority List was prepared and was sent for approval to the Education Officer. However, another writ petition came to be filed and the seniority was challenged. The Education Officer was directed to consider the objections of the teachers to the seniority list as prepared. The Education officer thereafter heard the petitioners and fixed their seniority by order dated 3.11.1993 It is this Seniority List that is being challenged by the present petitioners. All those who would be affected by the decisions in these petitions have been made respondents in these writ petitions. The petitioners submit that the Education Officer had taken a wrong date of their continuous appointment as Assistant Teachers and therefore wrongly fixed their seniority in the cadre. They submit that their seniority should have been fixed from the date of their initial appointment as teachers.

3. The respondent No. 1 has filed return and the main contention of the respondent No. 1 School is that seniority has been rightly fixed by the Education Officer. The petitioners services were terminated and therefore there was no continuous service after their initial appointment. Thus respondent No. 1 submits that the date of continuous appointment of the petitioners is rightly given in order dated 3.11.1993 which is at Annexure 9 in Writ Petition No. 67 of 1994.

4. We have heard the learned Counsel for the petitioners and the respondents.

5. Each of the petitioner claims that she is senior to the other petitioner. It may be mentioned that the seniority is sought to be challenged mainly on two grounds. First ground relates to date of initial appointment and the second relates to acquisition of the professional qualification i.e B. Ed. As far as the first ground is concerned the petitioner Anjali Khati in Writ Petition No. 67 of 1994 is concerned, it is her contention that she was initially appointed as a teacher by order dated 30.6.1987 and she resumed her duties from 6.7.1987 She, therefore, claims that her seniority should be reckoned from 06.07.1987 as she has worked continuously from that date as Assistant Teacher, while Education Officer has reckoned her seniority from 26.06.1989

6. The petitioner in Writ Petition No. 72 of 1994 (filed by Vidya Khandekar) claims that her initial date of appointment is 17.07.1987 and she is continuously in service from that date whereas the Education Officer has fixed her seniority from 2.5.1989

7. The third petitioner Madhuri Patankar in Writ Petition No. 171 of 1994 claims that she was initially appointed w.e.f 25.06.1987 and that is her date of continuous appointment. The Education Officer however has fixed the seniority from 02.05.1989 Order Annexure II in Writ Petition No. 171 of 1994 was passed by the Education Officer after hearing the concerned teachers. By this order he has fixed the seniority of the teachers including the petitioners. The Education Officer it seems has fixed the seniority on the basis of date of continuous appointment and other factors and atleast that is so mentioned in the order.

8. It was contended by the learned Counsel for the petitioners that the Education Officer has taken totally wrong dates of initial appointments and dates of continuous service. According to them the dates of initially appointments ought to be taken as dates from which the seniority is to be reckoned. They submit that the petitioners have continuously worked from the date of initial appointment and there was no break in service whatsoever. Respondent No. 1 School however pleads that there was a break in service inasmuch as the services of the petitioners were terminated during Summer Vacation and fresh appointments were given.

9. Therefore, the first controversy that needs to be resolved is if the services of the petitioners could be said to be continuous from their initial date of appointment or they could be said to be continuous from the date as mentioned by the Education Officer in the Seniority List as prepared by him. In this regard, one thing that is not disputed is that each of the petitioner was appointed on vacant post at the time of initial appointment. Although the appointments of the petition- ers may be temporary the fact remains that they were appointed against the vacant post and therefore whenever they are confirmed their confirmation relate back to the date of initial appointment. We now need to look into Rule 12 of the Maharashtra Employees of Private Schools, Rules 1981 which deals with the seniority. The rule reads thus:

12. Seniority List:

“(1) Every Management shall prepare and maintain seniority list of the teaching staff including Head Master and Assistant Head Master and non-teaching staff in the School in accordance with the guidelines laid down in Schedule “F”. The seniority list so prepared shall be circulated amongst the members of the staff concerned and their signatures for having received a copy of the list shall be obtained. Any subsequent change made in the seniority list from time to time shall also be brought to the notice of the members of the staff concerned and their signatures for having noted the change shall be obtained.

(2) Objections, if any, to the seniority list or to the changes therein shall be duly taken into consideration by the Management.

(3) Disputes, if any, in the matter of inter se seniority shall be referred to the Education Officer for his decision.”

10. The rule casts a duty on the Management of the School to prepare and maintain a seniority list. Objections are required to be invited from teachers and if there is any dispute the matter is required to be referred to the Education Officer. It is thus clear that it is the primary duty and responsibility of the Management alone to prepare and maintain a list. The list would be required to be sent to the Education Officer only in case of dispute and not otherwise. While resolving the dispute the Education Officer is required to act upon the information given by the Management and the teachers alone and he cannot do anything arbitrarily. It appears in these cases to us that the Management of the School had sent seniority list prepared by it for approval to the Education Officer. In Writ Petition No. 72 of 1994 copy of the seniority list as prepared by the School is filed at Annexure X. If this seniority list is seen, there are two important columns in the said list. One such column is with regard to the date of the first date of joining the school and second is a column in which it is mentioned that “Services are continued till recognition is there.” This Annexure X in Writ Petition No. 72 of 1994 seems to have been prepared in 1992 when the School became grant-in-aid school and a direction was given to prepare the seniority list by the Court. This list clearly supports the case of the petitioners that their services need to be reckoned from their initial date of appointment. In the Column of date of joining of service and initial appointment of petitioners the date as claimed by the petitioners is mentioned and it is also further mentioned that until time the school was recognised their services were continuous. As said earlier in one column it is mentioned that the petitioners have continued in service from the date of their initial appointment. Further from the dates as mentioned against the names of each of the petitioners and teachers it would be clear that seniority is fixed by the school or management on the basis of the date of initial appointment. It may be noted here that the date of appointment of Mrs. Kaduskar is shown as 2.7.1987 and next to her is Anjali Khati whose date of appointment is shown as 6.7.1987 A teacher next to her is Vidya Khandekar whose date of initial appointment is shown to be 17.7.1987 It is, therefore, obvious that this seniority is only fixed on the date of initial appointment in 1992 when all the petitioners had in fact put in 4 to 5 years service. It now cannot lie in the mouth of the respondent No. 1 School to say and plead that dates of appointments are different than mentioned in seniority list. Once it prepares a list on the basis of date of initial appointment it cannot resile from that submission and cannot plead a break in service. In fact, this list itself was sent to the Education Officer for approval after the objections were recorded on it. We next further observe here that once the management had sent a seniority list prepared on the basis of the dates of initial appointment of teachers the Education Officer had no right to change the date unless he has had some other material before him to do so. There are other reasons why the services of the petitioners need to be treated as continuous from the date of initial appointment. Respondent No. 1 has contended that there was a break in service in Summer Vacation and fresh appointments were given. In this regard it may be mentioned that each of the petitioner has alleged in the petition that she was paid salary for the period of alleged break in the Summer Vacation. This fact is not disputed by the respondent No. 1 in its return. Rule 13(3) of the Maharashtra Employees of Private Schools Rules, says that if the Management terminates the services of non-permanent employee soon before the vacation such employee shall be entitled to vacation salary. Such provision in fact, therefore, clearly goes to suggest that even during the vacation the employee is deemed to be on duty though the termination order may have been issued. If he is deemed to be on duty there is no reason why this period of summer vacation should not be calculated to treat the employee's service as continuous. In fact when a person is paid salary for that period it must be assumed for all purposes that he was on duty and was discharging his duties during that period. The intention of the Legislature was, therefore, certainly to see that the teacher is deemed to be continued in service even during the summer vacation. Intention of the Legislature was that the teacher is deemed to have worked in the summer vacation once he continued to work upto summer vacation. It is for this reason that the Legislature had thought it fit to pay him the salary for the summer vacation. Therefore, whenever such salary is paid as said earlier, said person must be deemed to be on duty. Therefore, even if Vidya Khandekar's services were terminated from 07.05.1987 and she was reappointed on 25.6.1988 and again if her services were terminated on 30.04.1989 and she was appointed on 2.5.1989 she was deemed to be on duty during the vacation period as she was paid salary for that period. Even petitioner Anjali Khati was given termination orders during Summer Vacation as is alleged in para 8 of the return. If she was paid salary for the Summer Vacation she is deemed to be on duty and as such in continuous service. As far as Madhuri Patankar is concerned she claims 25.06.1987 as her initial date of appointment although she had worked in the School in 1985-86. The letter of appointment of Madhuri Patankar Annexure I in Writ Petition No. 171 of 1994 shows that she was appointed on 25.06.1987 until further orders. Annexure VI in her petition shows that her appointment dated 25.6.1987 was terminated on 01.05.1989 and she was reappointed on 2.5.1989 It is obvious from all above orders of appointments and reappointments that the alleged break was in Summer Vacation. We find that if the petitioners were paid full salary of Summer Vacation all of them must be deemed to be on duty continuously and therefore their services must be deemed to be continuous and without any break. We, therefore, hold that for the purpose of reckoning the seniority of the petitioners their initial dates of appointment as mentioned in the petitions should be taken into account.

11. Date of continuous appointment is not the only criteria for fixation of seniority. Seniority has to be Fixed according to Rules laid down in Schedule “F” to the Maharashtra Employees of Private Schools Rules. The present petitioners fall in Category ‘C since all of them as on the date of fixation of seniority in 1992 were trained teachers. However, while fixing the seniority the date of acquisition of B. Ed. Qualification would also become material. Unless one acquires or possesses such qualification as B. Ed. or professional qualification one cannot go up in the ladder. If a teacher is a graduate but does not hold training or professional qualification he cannot fall in Category ‘C’. He may enter ‘C’ category the day he acquires training or professional qualification. The ladder is in descending order. Here it must be borne in mind that a trained teacher would be put above untrained teacher though length of service wise the untrained teacher may be senior. Education Officer seems to have not followed the instructions contained in Sched- ule ‘F’. The seniority is to be fixed mainly on three criterias i.e length of continuous service, the acquisition of professional qualification and the age, if two or more candidates or teachers are appointed on the same day. The seniority list as prepared and approved by the Education Officer is at Annexure IX in Writ Petition No. 72 of 1994. He has placed one Jayashree Koranne at Serial No. 1. Her date of appointment as given by the Management is 07.07.1985 but she acquired training qualification B. Ed. from 11.6.1988 Obviously she could not be put in Category ‘C’ till 11.6.1988 though she was appointed in 1985. On the other hand all petitioners possessed degree as well as B. Ed. Qualification on the day they were appointed. Therefore, they could be put in Category ‘C’ the day they were appointed. Therefore, placing Jayashree Koranne at Sr. No. 1 in Seniority List was obviously wrong. She could be placed at Sr. No. 5 in the same Seniority List. If both the dates i.e date of appointment and date of acquisition of B. Ed. Qualification are seen it will be petitioner in Writ Petition No. 171 of 1994 Madhuri Patankar who should have been placed at Sr. No. 1. Her date of appointment being 25.06.1987 and acquisition of B.Ed Qualification in 1985. No. 2 would be respondent No. 4 Sunetra Kaduskar. Her date of appointment being 02.07.1987 and she having acquired B. Ed. Qualification in 1986. Third would be petitioner Anjali Khati in Writ Petition No. 67 of 1994. Her date of appointment being 6.7.1987 and acquisition of B. Ed. Degree in 1975. Fourth will be Vidya Khandekar, petitioner in Writ Petition No. 72 of 1994 and her date of appointment being 17.7.1987 and B. Ed. Decree in 1983. Jayashree Koranne respondent No. 3 as said earlier has to be placed at Sr. No. 5. Sixth would be Vijaya Korti. She was appointed on 5.8.1988 and she acquired B.Ed in 1975. Seventh would be Uttam Meghare-respondent No. 5. His date of appointment is 24.07.1986 but he acquired B.Ed Degree on 15.12.1988 and the eighth would be respondent No. 6-Mridula Shahane. Her date of appointment is 14.7.1986 but date of acquisition of B. Ed. is 16.6.1989 The seniority therefore ought to have been fixed taking into consideration the date of entry into Category ‘C’ as well as date of continuous appointment. Although the order of Education Officer dated 3.11.1993 shows that he did take into consideration the date of acquiring professional qualification that actually does not seem to have been done at all. It may be mentioned that all the 8 teachers were graduates on the date of appointment. The question for consideration was only date of acquiring the professional qualification such as B.Ed, B.T, Dip. T. No two teachers were appointed on the same day. Since the Education officer has not taken into consideration the date of entry of the petitioners and other teachers in Category ‘C’ and had taken a wrong date for calculation of their continuous service the orders passed by the Education Officer on 03.11.1993 and 14.12.1993 are liable to be set aside and quashed. Respondents No. 1 and 2 are therefore directed to refix the seniority of the petitioners as per observations made by this Court in this Judgment. They would be entitled to all consequential benefits if they are so entitled, including promotions, deemed promotions and arrears of salary. The petitions are thus allowed. No order as to costs.

12. Petitions allowed.