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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5556 OF 1999
1. Maharashtra Seva Sangh
Mashall Vasti, Jaykumar Nagar,
Vijapur Road, Solapur,
(through its Secretary), ..
2. The Principal,
Shree Nutan Prashala Junior
College, Mashaal Vasti,
Jaykumar Nagar, Vijapur Road,
Solapur .. Petitioners.
Vs.
1. Shri Shaikh Jamalchand
Room Nos.12 and 13,
resident of Block No.2,
Keshav Nagar Police Line,
Solapur ..
2. The Deputy Director of
Education, Pune Region,
Dr.Ambedkar Road,
Pune - 17. .. Respondents.
Mr.T.D.Deshmukh for the petitioners.
Mr.S.G.Kudle for respondent no.1.
Mr.Chinchlikar AGP for the State.
CORAM : D.B.BHOSALE, J.
DATED : 21ST MARCH, 2009.
ORAL JUDGMENT:
. This writ petition under Article 226 and 227
of the Constitution of India is directed against the
judgment and order dated 8.9.1999 in appeal No.70 of
1997 rendered by the Presiding Officer, Additional
School Tribunal, Pune Region, Solapur. The appeal,
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filed by respondent no.1 under section 9 of the
Maharashtra Employees of Private School (Conditions
of Service) Regulation, Act (for short “MEPS Act”),
challenging his termination has been allowed by the
Tribunal. The operative portion of the impugned
judgment reads thus:
. Appeal is allowed as under.
. The orders of reducing the appellant
from full time teacher to part time teacher
and from part time teacher to teacher on
Clock Hour Basis issued by the Deputy
Director of Education and Respondent No.1 are
hereby declared illegal and are quashed and
set aside.
. Appellant is restored to full time
teacher in Higher Secondary School by name
Shree Nutan Prashala Jr.College, Solapur,
since 1.4.1994. He is entitled to get
salaries as a full time teacher from
1.4.1994, till he is restored as a full time
lecturer. Respondents are directed to pay
the salary with effect from 1.4.1994 within
the period of three months and further they
are directed to allow the appellant to join
his duties as a full time teacher in Shree
Nutan Prashala Jr.College, Solapur run by
Respondent No.1 immediately.
. No order as to costs."
2. The facts that are relevant and necessary to
decide the questions raised in this petition are that
respondent No.1, who, at the relevant time, was only
MA (Sociology) and MA (Political Science), was
initially appointed on 5.7.1990 by the
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petitioner-institution in their Junior College on
clock hour basis. Admittedly he was not holding B.Ed
qualification, which is prescribed under Rule 6 read
with Schedule B-III of MEPS Rules. On 30th March,
1991, respondent no.2 – Education Officer had
approved the appointment of respondent no.1 only for
one year by relaxing the condition of qualification.
On 11.6.1991, respondent no.1 was appointed as full
time teacher for sociology with effect from
19.6.1991. On 11.6.1992, he was once again appointed
on
for a period of two years (i.e.
probation with effect from 15.6.1992.
1992-93 and 1993-94)
Respondent
No.2, however, approved his appointment only for one
year i.e. for 1992-93. Respondent No.1 thereafter
was refused approval for academic year 1993-94 vide
order dated 5.10.1994 on the ground that he was
untrained teacher. Respondent No.1 was once again
refused approval for the year 1994-95 on the same
ground vide letter dated 20.3.1995 issued by
respondent no.2 – Education Officer. On 23.3.1995,
respondent no.1 informed to respondent no.2 in
writing that he is ready to work as part time teacher
since he was not holding the prescribed
qualification. Respondent No.2, however, granted
approval only for the year 1994-95 with effect from
13.6.1995 as part time teacher. In 1992-93,
respondent no.1 had taken admission for B.Ed course
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and he acquired the said qualification on 24.8.1995.
Even thereafter, respondent no.1 was continued as
part time teacher for 1995-96 and his appointment was
approved as part time teacher by respondent no.2. He
was thereafter granted approval vide letter dated
29.11.1997 on clock hour basis. According to
respondent no.1, the approval granted on clock hour
basis amounts to reduction in rank and hence he filed
the instant appeal under section 9 of the MEPS Act.
3.
rival
The
School Tribunal after having
contentions of the parties and the material on
considered
record, in paragraph 21 of the impugned judgment held
thus:
” …. …. …. it is clear that
appointment order dated 11.6.1992 which was
issued by respondent no.1 to appellant as a
full time lecturer in Sociology was on
probation for the period of two academic
years i.e. 1992 to 1994. Appellant has
satisfactory completed the probation period
of two years and Deputy Director of Education
has also accorded approval to the appellant’s
appointment as a full time lecturer in
Jr.College by separate orders dated 11.1.1993
by according relaxation to the appellant’s
educational qualification because appellant
was not trained i.e. he has not completed
B.Ed. Subsequently, appellant has completed
B.Ed. course also. Appellant has completed
probation period of two years from 14.6.1992
to April, 1994. Therefore, as per section
5(2) of the Maharashtra Employees of Private
Schools Act, 1977 says that ‘Every person
appointed to fill permanent vacancy shall be
on probation for the period of two years.
Subject to the provisions sub-section (3) and
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(4), he shall, on completion on this
probation period of two years deemed to have
been confirmed. Therefore, in view of the
Section 5(2) of the Maharashtra Employees of
Private Schools Act, 1977, appellant has
become permanent employee of the respondent
no.1 therefore respondent no.1 or Deputy
Director of Education cannot reduce the
appellant into the rank i.e. from full time
teacher to part time teacher and from part
time teacher to teacher on clock hour basis
without following the procedure of law and
rules.
. In this matter, it is very important
to note that from the pleadings and documents
of the both the parties, it is clear that
there was a clear and permanent vacancy when
appellant was appointed as a full time
lecturer in Jr.College on probation and
appellant has completed the probation period
of two years satisfactory therefore his
appointment order was according to section
(5) of the Maharashtra Employees of Private
Schools Act. Even though appellant was not
B.Ed at the time of his initial appointment
but he has completed his B.Ed. While he was
in service therefore he has become trained
teacher and his appointment was also approved
by Deputy Director of Education by giving
relaxation in his Educational qualification.”
. From perusal of the judgment of the tribunal,
and in particular paragraph 21 thereof, it is clear
that the tribunal has given benefit of deemed
permanency to respondent no.1 under sub-section (2)
of section 5 of the MEPS Act.
4. I have heard learned counsel for the parties
at length and with their assistance gone through the
entire material placed before the court.
Mr.Deshmukh, learned counsel for the petitioner, at
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the outset, invited my attention to the relevant
provisions of the Act and the Rules, and submitted
that under any circumstances respondent no.1 cannot
claim benefit of the deeming provision under section
5(2) of the MEPS Act, since admittedly he was not
holding the prescribed qualification at the time of
his appointment on permanent vacancy as full timer.
He submitted, when respondent no.1 was appointed on
permanent vacancy as a full timer, he was not holding
the required qualification, and when he acquired the
prescribed
which he was
qualification, the permanent vacant post,
claiming, ceased to exist. This,
according to Mr.Deshmukh, the tribunal has completely
overlooked and has wrongly held that respondent no.1
became deemed permanent teacher as contemplated by
sub-section (2) of section 5 of the MEPS Act.
Mr.Deshmukh also submitted that the judgment of the
tribunal is without jurisdiction and hence nullity.
He submitted that reduction in workload in any case
would not amount to reduction in rank and, therefore,
the appeal under section 9 of the MEPS Act itself was
not maintainable.
5. Mr.Kudle, learned counsel for respondent no.1
on the other hand submitted that though at the time
of his initial appointment, and in 1992 on probation,
he was not possessing the prescribed qualification,
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he acquired the same in August, 1995, and even
thereafter he was continued in the service till he
filed the appeal. He, therefore, submitted that
respondent No.1 deemed to have been confirmed, as has
been rightly held by the Tribunal. Mr.Kudle
submitted that the moment respondent no.1 acquired
the prescribed qualification he also acquired legal
right to continue as a teacher on permanent vacancy.
He then submitted that the institution had given an
undertaking that they will allow respondent no.1 to
continue
in the said post and they would absorb
after he acquires the qualification of B.Ed. In view
him
thereof it is not open to the petitioner-institution
to reduce him in rank by appointing him on clock hour
basis. He submitted that the concept of untrained
teacher is recognised under the provisions of the
MEPS Act and the rules thereunder. He submitted that
Rule 6 and the first proviso thereto clearly empowers
the management to appoint untrained teacher, and even
if the appointment of such teacher is allowed on year
to year basis, his services are not liable to be
terminated, unless trained graduate teachers become
available. Mr.Kudle, thereafter, submitted that the
petitioner-institution ought not to have reduced his
rank from full timer to clock hour basis. He then
submitted that the submission of Mr.Deshmukh on the
point of maintainability of the appeal cannot be
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considered since it was never raised before the
tribunal. Lastly, he submitted that the appointment
of surplus teachers at the relevant time in the
school shows that there was sufficient workload
available and that there was no reason for the
management to appoint respondent no.1 on clock hour
basis in 1997, which amounts to reduction in rank
from full timer to clock hour basis.
6. The questions that fall for my consideration
are
holding the
whether respondent no.1, who was admittedly
prescribed qualification, provided
not
for
under Rule 6 read with schedule B-III of MEPS Rules,
at the time of his appointment on probation for a
period of two years, i.e. the academic years 1992-93
and 1993-94, can claim benefit of deemed permanency,
contemplated by sub-section (2) of section 5 of the
MEPS Act ?, and whether the orders appointing and
granting approval as a part timer and then on clock
hour basis, would amount to “reduction in rank” ? if
not, whether appeal under section 9 of the MEPS Act
is maintainable ?
7. Section 5 of the MEPS Act, insofar as fresh
appointments of teachers in junior colleges are
concerned, provides that the management shall, as far
as possible, fill in, “in the manner prescribed”,
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“every permanent vacancy” in a private school by the
appointment of a person “duly qualified” to fill such
vacancy. Sub-section (2) of section 5 provides that
every person appointed to fill a permanent vacancy
shall be on probation for a period of two years.
Such person becomes deemed permanent on completion of
this probation period of two years, subject to the
provisions of sub-sections (3) and (4). Sub-section
(3) empowers the management to terminate services of
the probationer at any point during the period of his
probation
salary or
after
iggiving
honorarium
him one month’s
of one month in lieu
notice
of
or
the
notice, if in the opinion of management his work or
behaviour during the period of his probation was not
satisfactory. Sub-section (4) deals with
re-appointment of any probationer whose services has
been terminated under sub-section (3). Sub-section
(5) provides that the management may fill in every
temporary vacancy by appointing a person “duly
qualified” to fill every permanent vacancy and the
order of appointment shall be drawn up in the form
prescribed in that behalf, and shall state the period
of appointment of such person.
8. A plain reading of section 5 of MEPS Act
would show that in order to claim benefit of deemed
permanency under sub-section (2) of section 5 of the
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MEPS Act, a person, who is otherwise eligible to be
appointed in a private school, must satisfy three
conditions as reflected in sub-section (1). Firstly,
his appointment must be on permanent vacancy;
secondly, he must possess the qualification
prescribed under Rule 6 read with schedule ‘B’ of the
MEPS Rules; and lastly, his appointment must have
been made in the manner prescribed i.e. by due
process of selection. In the present case we are not
concerned with the last condition. Once an eligible
candidate,
selected by
holding the “prescribed qualification” is
selection process i.e. by competition
amongst all eligible and desirous candidates, and who
is appointed on a “permanent vacant post”, the
management has no option but to appoint such person
on probation for a period of two years. It is
neither open for the management to appoint him for
one academic year or any period shorter than two
years probation period, nor it is open for Education
Officer to grant approval for shorter period. Such
candidate, appointed on probation, shall enjoy status
of deemed permanency on completion of two years,
unless extension of probation is informed, or
termination is ordered. It is also well settled that
the appointment of a person not belonging to reserved
category, in a post reserved for a particular
category, because the candidate of that category is
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not available, shall be absolutely temporary and on
an year to year basis, governed by sub-rule (9) of
Rule 9, although in a permanent vacancy. (see :
Priyadarshini Trust Vs. Ratis Bano 2007 (6) Mh.L.J.
667).
667) It is thus clear that to claim deemed
permanency one must be eligible to hold the post, he
must be duly qualified, as prescribed under Rule 6
read with schedule ‘B’ of the MEPS rules, and the
post, in which he is appointed, is a permanent vacant
post.
9. Rule 6
read with part III of Schedule B of
MEPS Rules deals with the qualifications for teachers
in junior colleges. Rule 6 provides that 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”.
Part III (1)(a) of Schedule ‘B’, with which we are
concerned in the present petition, provides that the
full time teachers in junior colleges require to
possess a Master’s degree of a statutory University
in second class in the respective subjects plus B.Ed,
or a diploma or Certificate in Teaching, approved by
the Department. Clause 1(d) of part III of Schedule
B provides that if persons possessing the
qualification referred to in clauses (a) and (b) are
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not available, the Director may relax the
qualification on the basis of the merits of each case
and the person in whose favour such relaxation is
allowed shall be appointed purely on temporary basis.
10. The first proviso to rule 6 provides that the
Education Officer may allow Managements to appoint
untrained Science graduate teachers for teaching
Mathematics and Science subjects or untrained Arts or
Commerce graduates for teaching other subjects in
appointments
“secondary schools” in exceptional circumstances, and
such shall, however, be allowed on an
year to year basis, on the clear understanding that
they shall have to obtain training qualification at
their own costs and further subject to the condition
that their services shall be liable for termination
as soon as trained graduate teachers become
available.
11. Mr.Deshmukh, learned counsel for the
petitioner submitted that insofar as the first
proviso to Rule 6 is concerned, it will not apply to
the facts of the present case since we are concerned
with the teachers in junior college and not in
secondary schools. The first proviso to Rule 6 is
applicable only to the teachers in secondary school
and, therefore, no benefit of this proviso can be
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extended to respondent no.1. On the other hand, the
learned counsel for respondent no.1 submitted that
there is no difference between junior colleges and
higher secondary schools and similarly no difference
can be made between secondary schools and higher
secondary schools for extending benefit of the
proviso to Rule 6. He submitted that if such benefit
is not extended, till the trained teachers become
available, the institution will not be able to
appoint teachers, and as a result thereof, the
students will suffer.
12. A plain reading of rule 6 shows that it
provides for 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”. The first proviso to
rule 6, however, provides for relaxation of
qualification of teachers in the “secondary schools”
only. The word “school” has been defined under
section 2(24), which also means primary school,
secondary school, higher secondary school, junior
college of education. The distinction is also
evident from Schedule “B”, which is divided into
three parts. The first part provides qualification
for primary teachers, the second part provides
qualifications for teachers in secondary schools and
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junior colleges of education, and the part three
provides qualifications for teachers in junior
colleges. It is thus clear that there is a
difference between “secondary schools” and “higher
secondary schools”, and in any case “secondary
schools” cannot be equated with “junior
colleges/higher secondary schools”, insofar as
qualifications for teachers is concerned. There
would be no justification for the court to read the
words “higher secondary schools” in the first proviso
to rule
construed
6.
to
The language of the statute
suit convenience of the party
cannot
to
be
the
proceedings, particularly when it is not susceptible
to any other meaning. The very same submission fell
for the consideration of this court in the Trustees
of S.P.R. and Others Vs. Abdul Kaleem & Ors.
1999(4) Bom.C.R. 104.
104 I find support in this
judgment of the learned Single Judge for the view
that the first proviso to Rule 6 would apply only to
the persons teaching in secondary schools.
Therefore, in my opinion, respondent no.1 cannot
claim any benefit whatsoever of the first proviso to
Rule 6.
13. However, that does not mean that the
institutions cannot appoint in junior colleges a
person who is not a trained teacher (i.e. "B.Ed")
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and that the Education Department cannot relax the
qualifications. Clause (1)(d) of Part III of
Schedule ‘B’ of the MEPS Rules makes it clear that if
persons possessing the prescribed qualifications
referred to in clauses (a) and (b) are not available,
the Director may relax the qualifications on the
basis of the merits of each case and the person in
whose favour relaxation is allowed shall be appointed
purely on temporary basis. Such appointee, however,
cannot claim benefit of “deemed permanency” under
sub-section
person
(2)
appointed
ig of section 5 of the MEPS
by relaxing the qualification
Act. A
as
contemplated by clause (1) (d) of Part III of
Schedule ‘B’ is not entitled to claim permanency
merely because he was assured by the institution that
he would be continued till he acquires the prescribed
qualifications. Even if there is such assurance or
undertaking given by the institutions, such assurance
or undertaking would not bind the institution
indefinitely and particularly in the cases where the
trained teacher becomes available or the workload is
not available. In the present case the
petitioner-institution has denied that in 1995-96
respondent no.1 was appointed as full timer in a
clear permanent vacany. It appears that there was
reduction in workload and, therefore, he was
appointed on clock hour basis.
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14. The second question raised by the petitioner
is whether the orders appointing and granting
approval as a part time teacher and on clock hour
basis would amount to reduction in rank, as contended
by respondent no.1. It was submitted that the
impugned judgment of the tribunal is without
jurisdiction, and is, therefore, nullity and that it
can be set aside even at this stage of the
proceedings. Section 9 of the MEPS Act confers right
of appeal
schools.
to
Under
tribunal
this
to employees
provision,
of private
notwithstanding
anything contained in any law or contract for the
time being in force, any employee in a private
school, who is dismissed or removed or whose services
are otherwise terminated or who is “reduced in rank”,
by the order passed by the Management, and who is
aggrieved, shall have a right of appeal and may
appeal against any such order. This provision,
confers right on employees to challenge their
reduction in rank by filing appeal before the school
tribunal. In the present case respondent no.1 was
appointed as full time teacher only for the academic
years 1991-92, 1992-93 and 1993-94. Thereafter he
was never appointed as full time teacher and he was
appointed either as part timer or on clock hour
basis. The grievance of reduction in rank was,
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however, made for the first time in 1997. It appears
that some divisions were closed, which resulted in
reduction of workload. Moreover, it appears that
some teachers, who rendered surplus, were directed to
be absorbed in the petitioner no.2 – college in
1995-96. The Deputy Director of Education,
therefore, could not accord approval to his
(respondent no.1) appointment for the academic year
1997-98 even as part time teacher and, therefore, he
was required to be appointed on clock hour basis. It
was
specifically contended before the tribunal
respondent no.1’s appointment does not amount
that
to
reduction in rank as alleged by him and, therefore,
he could not have filed appeal against such order.
The tribunal has recorded the submissions to that
effect, made on behalf of the petitioner-institution,
in paragraph 17 of the judgment. The tribunal has,
however, failed to consider the issue raised. The
submission of Mr.Kudle, learned counsel for
respondent no.1 that such issue was not raised before
the tribunal, therefore, deserves to be rejected
outright.
15. From the facts of this case it is clear that
after 1994-95 respondent no.1 was never appointed as
full time teacher, in view of the fact that certain
divisions were closed and no sufficient workload was
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available. As a matter of fact the permanent
vacancy, on which respondent no.1 was appointed as
full time teacher in 1991-92, 1992-93 and 1993-94,
was not available in 1994-95. Therefore, in and
after 1994-95, respondent no.1 was appointed only as
a part time teacher and in 1996-97 on clock hour
basis. It is against this backdrop the question that
requires consideration is whether that would amount
to “reduction in rank” ?
16.
A plain reading of the expression “reduced in
rank” as occurred in section 9 of the MEPS Act, means
to reduce or to shift, may be under exigencies of
situation or by way of punishment, to a post in lower
grade than the one to which the concerned employee
was initially recruited, or than the post which he
was holding at the relevant time. It amounts removal
from higher post and to appoint him to lower post or
grade. In other words, reduction in rank has the
same effect of removing an employee from a grade or
category of post to a lower grade or category. For
instance, reducing/shifting from the post of Head
Master to Assistant teacher. Such is not the case of
respondent no.1. In my opinion, appointing a full
time teacher as a part timer or on clock hour basis,
in view of reduction of divisions or workload, would
not amount to reduction in rank. Even if a full time
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teacher is appointed as a part timer or on clock hour
basis, his grade or category of post as assistant
teacher remains the same. In short, reduction of
workload cannot be treated as reduction in rank. In
the circumstances the impugned judgment deserves to
be set aside also on the ground that the appeal filed
by respondent no.1 under section 9 of MEPS Act itself
was not maintainable.
17. In the present case after respondent no.1
he was appointed
acquired the prescribed qualification in August 1995,
as part time teacher for the
academic year 1995-96 and his appointment was
approved as part timer vide order dated 29.9.1995.
He was once again appointed as part timer in 1996-97
but the said appointment was not approved, and it was
approved only on clock hour basis. It is pertinent
to note that after the Education department refused
to grant approval to his appointment as full time
teacher in junior college on the ground that he was
not trained teacher in 1994-95, respondent no.1
himself had requested the Deputy Director of
Education in writing to accord approval to his
appointment as a part time teacher. That seems to be
the reason why his appointment was approved as a part
time teacher by the respondent – education officer.
In 1995-96 and 1996-97, the petitioner-institution
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was forced to close some divisions and, therefore,
the permanent vacancy which was available in 1991-92,
1992-93 and in 1993-94, on which respondent no.1 was
appointed on probation, was not available in and
after 1994-95. In 1996-97, the management appointed
and sought approval on clock hour basis and it was so
granted by the Education Officer. It is thus clear
that when respondent no.1 was appointed as full time
teacher on permanent vacancy he did not possess the
prescribed qualification and when he acquired the
qualification
on
in August 1995, the permanent vacancy,
which he was working earlier, was not available.
Respondent No.1, therefore, was wrongly given benefit
of deemed permanency by the tribunal under section
5(2) of MEPS Act. In the result this writ petition
succeeds. The judgment and order passed by the
school tribunal is set aside. No costs.
18. At this stage Mr.Kudle, learned counsel for
respondent no.1 prayed for stay of this judgment for
a period of six weeks. Mr.Deshmukh, learned counsel
for the petitioner does not oppose the prayer. The
judgment shall remain stayed, as prayed, for a period
of six weeks from today.
(D.B.BHOSALE, J.)
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