JUDGMENT
D.G. Karnik, J.
FACTS:
1. The Nanded Municipal Council, which has been
converted into Municipal Corporation with effect from
25th March 1997, runs several schools within the city of
Nanded. The Divisional Revenue Commissioner and the
Regional Director of Municipal Administration,
Aurangabad, under which fell the Municipal Council,
Nanded, was pleased to accord sanction for creation of 3
posts of Head Masters alongwith certain other posts of
Assistant teachers, Peons, Chowkidars, etc. in the
primary schools run by the Municipal Council, Nanded,
vide letter dated 16th June, 1984. The qualifications
required for the post of Head Master of the school as
laid down in the said letter was B.A. B.Ed. The
petitioner who possessed the required qualification of
B.A. B.Ed. was selected and appointed as Head Master of
Sangamwadi primary school run by the Respondent No. 4 on
18th June, 1984. The Deputy Director of Education, who
is the Respondent No. 2 herein, on 6th February, 1991
granted approval to the appointment of the petitioner,
but as an untrained teacher, from the date of his
appointment and the petitioner was directed to pass the
D.Ed. course within a period of five years. The
Education Officer, who is the Respondent No.3 herein, on
the basis of the letter of the Deputy Director of
Education dated 6th February, 1991, also granted
approval to the appointment of the petitioner as an
untrained teacher on the condition that the petitioner
should complete the D.Ed. course within a period of
five years. Relying on the said two communications, the
Chief Officer, Municipal Council, Nanded, who is the
Respondent No.4 herein, issued a letter dated 27th
March, 1991, to the petitioner informing the petitioner
that he should pass D.Ed. course within a period of
five years and that as the petitioner did not possess
the D.Ed. qualification, he would be treated as an
untrained teacher and would be entitled to get salary
only as an untrained teacher and not as the trained
teacher.
2. In this petition, the petitioner has
challenged the letter dated 27th March, 1991, issued by
the Respondent No. 4 in pursuance of the directions
issued by the Respondents No.1 & 2. Shri S.R. Barlinge,
the learned Counsel for the petitioner, urged the
following points in support of the petition.
(i) The provisions of Maharashtra Employees of
Private Schools (Conditions of Service)
Regulation Act, 1977 (for short M.E.P.S.
Act) and the Rules framed thereunder, namely
the Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981 (for
short the M.E.P.S. Rules) are not
applicable to the schools run by the
Municipal Council and, therefore, the
qualifications prescribed under the M.E.P.S.
Rules for the appointment of an Assistant
teacher or a Head Master do not apply to
such schools. Consequently, the Respondents
No.2 and 3 had no power to direct the
Respondent No.4 to treat the petitioner as
an untrained teacher. The Divisional
Revenue Commissioner and the Regional
Director of Municipal Administration who
created and sanctioned the posts of Head
Masters in the schools run by the Respondent
No.4, only was the competent authority to
prescribe the qualifications for the post of
the Head Master. As the Commissioner & the
Regional Director had prescribed B.A. B.Ed.
as the requisite qualification for the post
of the Head Master and the petitioner did
posses the same, he cannot be treated as an
untrained teacher.
(ii) Assuming without admitting that the provisions of the M.E.P.S. Act and the
M.E.P.S. Rules are applicable, the School
in which the petitioner was appointed was
not the primary school because the
petitioner was attached to that part of the
school which runs the classes between
standards 5th and 7th. Even according to
the Government Resolution dated 14.11.1979,
in respect of the schools conducting classes
between standards 5th and 7th, 75% of the
teachers should possess S.S.C. D.Ed.
qualification and 25% of the teachers should
be Graduates with B.Ed. qualification. As
the petitioner possesses B.A. B.Ed.
qualification, he would fit in those 25% and
is not an untrained teacher.
Re First contention :
3. Section 3 of the M.E.P.S. Act lays down
that it shall apply to all private schools in the State
of Maharashtra, whether receiving any grant-in-aid from
the State Government or not. A “private school” as
defined in sub-section (20) of Section 2 of the M.E.P.S.
Act means a recognised school established or
administered by a Management, other than the Government
or a local authority. Thus the M.E.P.S. Act is not
applicable to the schools run by the local authority,
like the Respondent No. 4. The M.E.P.S. Rules, 1981,
framed under Section 16 of the M.E.P.S. Act, therefore,
do not apply to the schools run by the local authorities
like the Respondent No. 4.
4. We are, therefore, required to consider the
authority for prescribing the educational qualifications
required for appointment as an Assistant teacher in a
school run by the local authority like Municipal
Council/Corporation. It needs to be stated that the
primary schools run by the Municipal Corporation are
governed under the Bombay Primary Education Act, 1947
and the Bombay Primary Education Rules, 1949. Whereas
the Secondary Schools run by such local authorities are
governed under the Secondary Schools Code. In the case
of Tikaram Vs. Mundikota Shikshan Prasarak Mandal &
others, , it has been held
that the orders passed by the authorities under the
Secondary School Code can be challenged in Writ
Petitions under Article 226 of the Constitution though
the Code is non statutory in character. It is clear
that the Secondary Schools Code is a compilation of
executive instructions and orders. In support of our
view that the qualifications of teachers, age of
retirement, etc. are governed under the Secondary
Schools Code, we may safely rely upon the judgment of
the Apex Court in the case of M.G. Pandke and others Vs.
Municipal Council Hinganghat, District Wardha and
others, .
5. Section 2(2) of the Bombay Primary Education
Act defines the term “approved School” and it means a
primary school maintained by the State Government or by
a School board or a Zilla Parishad or by an authorised
Municipality or which is for the time being recognised
as such by a School board or Zilla Parishad or by the
State Government or by an officer authorised by it in
this behalf. The term “Municipal School Board” has been
defined under Section 2(11) and it means a School board
constituted for the area of an authorised Municipality
under Section 3. Section 3(2) states that for each area
of an authorised Municipality, there shall be a
municipal school board. The term “school board” means a
Municipal School board within the meaning of Section
2(11) and the term “Primary School” means a school or a
part of a school in which primary education up to any
standard is imparted as per Section 2(17) of the said
Act. The term “Director of Local Authorities” has been
defined under Rule 2(c-1) of the Bombay Primary
Education Rules, 1949 and it means an officer appointed
for the time being by the State Government to be the
Director of Local Authorities. As per Rule 2(k)
“trained teacher” means a teacher who holds a
certificate of training granted by the Education
Department of Government or such other certificate as
may, from time to time, be recognised by the Government
in this behalf.
By reading the scheme of Bombay Primary
Education Act and the Rules framed thereunder as well as
the Secondary Schools Code, it is clear that the
teachers appointed in the primary or secondary schools
run by a Municipal Council/Corporation must meet the
educational requirements as prescribed thereunder and
they must hold the qualifications for appointment as a
trained teacher prescribed by the Government by invoking
the powers under the Bombay Primary Education Act and
the Rules framed thereunder or the Secondary Schools
Code, as the case may be.
Re Second Contention :
6. Coming to the second contention of the petitioner
on the assumption that the provisions of M.E.P.S. Act
and Rules are applicable to the Schools in which the
petitioner is working as Head Master, we must note that
this issue is not required to be considered on account
of our clear finding in reply to the first contention
that the schools run by the Municipal Council are
governed either under the provisions of Bombay Primary
Education Act and the Rules framed thereunder or the
Secondary Schools Code, as the case may be. In any
case, these cases are not governed under the M.E.P.S.
Act and the Rules framed thereunder.
7. We are then required to consider the status
of the classes from 5th to 7th standards, inasmuch as,
whether they are called as primary schools or secondary
schools. These classes are permitted to be attached
either to the primary schools and/or to the Secondary
schools. If the existing primary school has classes
from 1st to 4th standards, the classes from 5th to 7th
standards are granted by way of natural growth and no
permission is granted for conducting the school only for
the standards between 5th and 7th and as such these
classes are required to be attached either to the
primary or to the secondary schools. Section 2(7) of
the Bombay Primary Education Act defines the term
“child” and it means a boy or a girl whose age is not
less than six and not more than fourteen years at the
beginning of the school year. As per Section 2(8) of
the Act, the term “Director” means the Director of
Education. It is, thus, obvious that the said Act
encompasses the education of the children between the
age of 6 and 14 years. A Full Bench of this Court, in
the case of Suryakant Sheshrao Panchal Vs. Vasantrao
Naik Vimukta Jati, Bhatkya Jamati Adarsh Prasarak Mandal
and others, noted that a primary school is normally from
1st to 7th standards. However, a primary school from
1st to 4th standards is called as Level-I and primary
school from 5th to 7th standards is called as Level-II.
Even if the classes of 5th to 7th standards are attached
to a Secondary school run by the Municipal
Council/Corporation, the section of 5th to 7th standards
will have to be called as primary section (Level-II).
In the Policy Statement of Education Reconstruction in
Maharashtra published in February 1970, the Government
had announced its policy decision that a programme for
attaching classes of standards from 5th to 7th standards
to secondary schools should be undertaken and
accordingly vide Government Resolution dated 27th
September 1971, the Government directed that a secondary
school, which fulfills the conditions laid down therein
would be considered for being granted permission to open
and attach classes of standards 5th to 7th. One of the
conditions was that the school had a trained Graduate
Head Master and other adequately qualified staff. It
was further directed that the requirements of teaching
staff for these classes permitted to be opened from the
academic year 1972-73 should be calculated in accordance
with the provisions of Rule 73 of the Secondary Schools
Code and out of such requirements, only 25% of teachers
must be Graduate or trained Graduate i.e. after every 3
under-Graduate trained teachers employed, one may be a
Graduate trained teacher. This limit was required to be
applied even in case of the secondary schools which were
allowed to open the classes of standards 5th to 7th.
This concept was further regularised and clearly
propounded by the next Government Resolution dated 21st
May, 1979 and were made applicable to the schools run by
the Municipal Councils vide Government Resolution dated
14th November, 1979. By this Government Resolution
dated 14.11.1979, the Government had decided to remove
the anomaly and, therefore, prescribed a common policy
relating to the facilities and staffing pattern provided
to the classes of 5th to 7th standards attached to the
secondary schools as well as to the primary schools run
by the local self Government. More so, there was a
difference in the staffing pattern. In order to bring
parity, it was decided that in respect of 5th to 7th
standards, teachers should be sanctioned in the ratio of
1.3 per class. It was also resolved that out of every 4
sanctioned teachers, 1st 3 teachers should possess
educational qualifications of S.S.C. & D.Ed. and the
4th teacher should be a Graduate with B.Ed./D.Ed.
Accordingly, 25% of the posts of teachers for 5th to 7th
standards were converted from S.S.C. + D.Ed. to
Graduate + B.Ed./D.Ed. and they were given higher pay
scale in two stages. It is admitted that the petitioner
is employed in Sangamwadi Primary School which has
classes from 1st to 7th standards and, therefore, he
would be governed by the policy laid down by the State
Government vide Government Resolution dated 14.11.1979
and subsequently followed all along in respect of the
schools run by the Municipal Councils.
8. Consequent to the decision of a Full Bench
of this Court in the case of Jayashree Sunil Chavan Vs.
State of Maharashtra and others, reported in 2000 (3)
Mh.L.J. 605, the Government issued the Resolutions
dated 25th October 2000 as well as 7th November, 2001,
by directing that the trained Graduates appointed for
the classes between 5th and 7th standards ought to
possess the D.Ed. qualifications instead of B.Ed.
degree. In fact, this decision of the Full Bench did
not overrule the scheme of the State Government to
appoint trained Graduate teachers for the classes
between 5th to 7th standards and it only dealt with the
qualifications required for a trained teacher in the
primary schools. Different Division Benches of this
Court had taken a contrary view regarding the
eligibility of Graduates with B.Ed. degree for
appointment as trained primary teachers. The Full Bench
held that for appointment as primary school teacher
D.Ed. is a necessary qualification and the teachers
holding B.Ed. degree would not qualify for such an
appointment. Notwithstanding the said view, the policy
of the State Government, as announced vide Government
Resolution dated 14.11.1979 and as continued thereafter,
was not affected by the Full Bench decision of this
Court. The Government Resolution dated 12.11.2001 came
to be challenged in Writ Petition No.3564/2002 and the
same has been stayed by this Court. We will have,
therefore, to hold that the policy of the Government
announced vide Government Resolution dated 14.11.1979
continues to apply for the primary school from 1st to
7th standards run by the Municipal Council and thus an
Assistant teacher who possesses B.A.B.Ed.
qualifications and teaches in the schools imparting
education from 5th to 7th standards is a trained teacher
and, therefore, is entitled to be appointed as a Head
Master. The second contention, as raised by the learned
Counsel for the petitioner, is upheld and it is declared
that the petitioner was eligible to be appointed as Head
Master of the Sangamwadi Primary School run by the
Respondent No. 4 and he could not be said to be an
unqualified teacher. The communications dated 6th
February, 1991 issued by the Respondent No. 2 and dated
8th March 1991 issued by the Respondent No. 3 granting
approval to the post of petitioner, but as an untrained
teacher were unsustainable. Consequently, the
communication and the order dated 27th March 1991,
issued by the Respondent to the petitioner, revoking
approval of the pay scale as trained graduate teacher,
is void ab initio and the same is required to be quashed
and set aside.
9. Resultantly, petition is allowed and the
Rule is made absolute in terms of prayers clauses (B)
and (D), but without costs.