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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Writ Petition No.399 of 2001,
Writ Petition No.418 of 2001
And
Writ Petition No.419 of 2001
Writ Petition No.399 of 2001
Vidya Bharti Shikshan Sanstha,
Goregaon, through its Secretary
Parasram Dnyaniram Katre,
aged about 46 years,
r/o Hirdamali,
Tahsil Goregaon,
District Gondia. ... Petitioner
Versus
1. Presiding Officer,
Additional School Tribunal,
Nagpur (Chandrapur).
2. Sunildatta s/o Sakharam Wasnik,
aged about 32 years,
r/o Chichgaon,
Tahsil Goregaon,
District Gondia.
3. Education Officer (Secondary),
Zilla Parishad, Gondia.
4. Kedarnath Ramdas Agade,
aged about 54 years,
Head Master,
Manoharbhai Patel High School,
Chichgaon Purgaon,
At Post Bhadanga, Taluq
Goregaon, District Gondia.
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5. Ramesh s/o Gajanan Kashyap,
aged about 28 years,
resident of and Post Goregaon,
Tq. Goregaon, District Gondia.
6. Eknath s/o Daulatji Khobragade,
aged 33 years, r/o Chichgaon,
Taluka Goregaon,
Distt. Gondia.
7. Tukaram s/o Sapku Chaudhari,
aged 38 years,
resident of Goregaon,
Tahsil Goregaon, Distt. Gondia. ... Respondents
Writ Petition No.418 of 2001
Vidya Bharti Shikshan Sanstha,
Goregaon, through its Secretary
Parasram Dnyaniram Katre,
aged about 46 years,
r/o Hirdamali,
Tahsil Goregaon,
District Gondia. ... Petitioner
Versus
1. Presiding Officer,
Additional School Tribunal,
Nagpur (Chandrapur).
2. Ku. Dileshwari d/o Lackhchand Thakre,
aged about 31 years,
r/o Chichgaon (Puregaon)
Tahsil Goregaon,
District Gondia.
3. Education Officer (Secondary),
Zilla Parishad, Gondia.
4. Kedarnath Ramdas Agade,
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aged about 54 years,
Head Master,
Manoharbhai Patel High School,
Chichgaon Purgaon,
At Post Bhadanga, Taluq
Goregaon, District Gondia.
5. Ramesh s/o Gajanan Kashyap,
aged about 28 years,
resident of and Post Goregaon,
Tq. Goregaon, District Gondia.
6. Eknath s/o Daulatji Khobragade,
aged 33 years, r/o Chichgaon,
Taluka Goregaon,
Distt. Gondia.
7. Tukaram s/o Sapku Chaudhari,
aged 38 years,
resident of Goregaon,
Tahsil Goregaon, Distt. Gondia. ... Respondents
Writ Petition No.419 of 2001
Vidya Bharti Shikshan Sanstha,
Goregaon, through its Secretary
Parasram Dnyaniram Katre,
aged about 46 years,
r/o Hirdamali,
Tahsil Goregaon,
District Gondia. ... Petitioner
Versus
1. Presiding Officer,
Additional School Tribunal,
Nagpur (Chandrapur).
2. Pralhad s/o Beniram Thakur,
aged about 33 years,
r/o Chichgaon (Puregaon),
Tahsil Goregaon,
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District Gondia.
3. Education Officer (Secondary),
Zilla Parishad, Gondia.
4. Kedarnath Ramdas Agade,
aged about 54 years,
Head Master,
Manoharbhai Patel High School,
Chichgaon Purgaon,
At Post Bhadanga, Taluq
Goregaon, District Gondia.
5. Ramesh s/o Gajanan Kashyap,
aged about 29 years,
resident of and Post Goregaon,
Tq. Goregaon, District Gondia.
6. Eknath s/o Daulatji Khobragade,
aged 33 years, r/o Chichgaon,
Taluka Goregaon,
Distt. Gondia.
7. Tukaram s/o Sapku Chaudhari,
aged 38 years,
resident of Goregaon,
Tahsil Goregaon, Distt. Gondia. ... Respondents
Shri J.S. Mokadam, Advocate for Petitioner in all Petitions.
Shri A.Z. Jibhkate, Advocate for Respondent No.2 in all
Petitions.
Shri D.B. Patel, AGP for Respondent No.3 in Writ Petitions
No.399 of 2001 and 419 of 2001.
Smt. I.L. Bodade, AGP for Respondent No.3 in Writ Petition
No.418 of 2001.
Coram : R.C. Chavan, J.
Reserved on : 17-2-2010
Pronounced on : 08-04-2010
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Judgment :
1. These petitioners by Management are directed
against the judgments rendered on 21-9-2000 by the learned
Presiding Officer, School Tribunal, Nagpur, allowing appeals of
respondents No.2 in each of the three petitions.
2. The petitioner-Society started a School on
no-grant basis in
1991 and the School was provided
grant-in-aid by the State Government from 1996. Respondent
No.2 in Writ Petition No.399 of 2001 Sunildatta, who belongs to
Scheduled Caste, was appointed as Assistant Teacher from 1-7-
1992 in a vacancy meant for that category. He was untrained
graduate and completed his Vacation B.Ed. Course in summer
of 1995, i.e. after his termination on 30-4-1994. Respondent
No.2 in Writ Petition No.418 of 2001 – Dileshwari was appointed
as untrained Teacher since the beginning of the School. The
first appointment order dated 5-7-1991 was from 8-7-1991 till
the end of 1991-92 session. She belongs to OBC category. She
too claims to have completed Vacation B.Ed. Course, but by
June 1996, i.e. after her termination on 30-4-1994. Respondent
No.2 in Writ petition No.419 of 2001 – Prahlad too was
appointed as untrained teacher with effect from
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2-7-1990(?). He belongs to OBC category and claims to have
completed Vacation B.Ed. Course in July 1994, i.e. after his
termination on 30-4-1994.
3. These respondents claimed that they were appointed
on clear and permanent vacancies, had been deputed by the
Management for completing B.Ed. and were, therefore entitled
to continuation. The petitioner terminated services of
respondent No.2 in these petitions with effect from 30-4-1994
by giving one month’s notice on 31-3-1994. The petitioner
claimed that the respondents were appointed on year-to-year
basis and had not been deputed for B.Ed. Vacation Course by
Management and that their services came to an end on expiry
of term of appeal.
4. The parties also had a dispute on the question of
payment of salary to them. There seems to be some dispute in
the Management and three members of Managing Committee,
who intervened before the Tribunal, claimed that Secretary P.G.
Katre had effected termination of these teachers without there
being any resolution by the Management. After termination of
respondents No.2 in these petitions, the group in Management
led by Shri P.D. Katre appointed three teachers, who have been
joined as respondent Nos.5 to 7 in these petitions.
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5. The learned Presiding Officer, School Tribunal, held,
after considering material before him, that the termination of
respondents No.2 in these petitions by notices dated 31-3-1994
was not legal, proper or valid and, therefore, by his impugned
judgments ordered their reinstatement with continuity of
service. Aggrieved thereby, the Management has filed these
petitions.
6.
While admitting the petitions on 3-12-2001, it was
stated that though the management had not reinstated
respondents No.2 pursuant to orders of the School Tribunal, the
Head Master (respondent No.4 in these petitions) had illegally
reinstated them. Since they had been reinstated, stay was
granted only for payment of past emoluments.
7. I have heard the learned counsel for the parties.
8. The learned counsel for the petitioner submitted that
respondents No.2 in these petitions were untrained and,
therefore, not qualified for appointment. Their appointments
were made without following prescribed procedure only till the
end of academic session and that too by Secretary of the
Society and not by Head Master, and that their appointments
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were not approved by the Education Department. The learned
counsel for the petitioner also submitted that the order of the
Tribunal would have the effect of disturbing services of three
others, who have the requisite qualification and have been
appointed after following proper procedure. He submitted that
they had not been made parties to the appeals before the
Tribunal.
9.
The learned counsel for the respondent-teachers
submitted that there was no question of joining three other
teachers, who were appointed in place of these respondents as
parties to the appeals before the School Tribunal, since
approval granted to their appointments was subject to result of
the appeals. He also submitted that they were not necessary
parties. For this purpose, he relied on a judgment of Orissa
High Court in Qaruda Adabar v. State of Orissa and others,
reported at 1997(1) E.S.C. 588, a Division Bench of Orissa High
Court was considering the necessity of joinder of parties in the
context of appointment of a teacher in an aided Educational
Institution. In that case, the services of a teacher had been
terminated by the Management. The said termination order
was quashed by the authorities. As a consequence, the
services of a teacher appointed in his place came to an end.
The second teacher, whose services came to an end,
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questioned his termination on the ground that he had not been
made a party in the proceedings for quashing termination of
the first teacher. The Orissa High Court held that the second
teacher could not have claimed to be a necessary party to the
earlier proceedings. The learned counsel for teachers
submitted, and rightly in my view, that there was no lis
between the two sets of teachers to be tried before the
Tribunal. Those teachers, who came to be appointed later were
not instrumental
respondent-teachers
in bringing
and the
about termination
respondent-teachers
of the
could
conceivably have no say in questioning validity of appointment
of those substitutes. Hence, there was no question of appeals
by the respondents being untenable on account of non-joinder
of their substitutes. In any case, since this point was not shown
to have been pressed before the Tribunal, it cannot be allowed
to be raised before this Court now.
10. The learned counsel for the petitioner assailed the
tenability of appeals filed on behalf of the respondents on the
ground that their appointments themselves were invalid.
11. In Ashok Asramji Gabhane v. Presiding Officer, School
Tribunal, Nagpur and others, reported at 2002(4) Mh.L.J. 225,
relied on by the learned counsel for the petitioner, a learned
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Single Judge of this Court held that the order of appointment,
which was not issued by the Head Master or the Secretary of
the School Committee, cannot be termed as an appointment
order contemplated by Schedule D of the MEPS Rules and no
legal right can be canvassed on the basis of such order. In that
case, the petitioner was appointed by orders dated 20-6-1991,
16-12-1991 and 24-6-1993. The appointment was against a
permanent post and, therefore, the petitioner claimed that he
had become a confirmed employee in terms of Section 5(2) of
the MEPS Act. He was relieved for undertaking D.Ed. Vacation
Course by the Head Master on 9-5-1993, but was not allowed to
resume duties from 1-8-1994 and, therefore, approached the
Tribunal. The Tribunal dismissed the appeal. This Court held
that the provisions of Section 5 of the MEPS Act for filling up
vacancy would apply only if the vacancy is permanent and only
in that situation, the appointment would be on probation for a
period of two years. The Court also observed that the
petitioner was not a qualified person when he was appointed,
and also held that the appointment orders dated 16-12-1991
and 24-6-1993 were not issued by the Secretary of the School
Committee and, therefore, were bad in law, since the orders
were signed by one Shri Indurkar claiming to be the President
of the Trust, when he was not the President. The Court,
therefore, dismissed the petition.
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12. The observations about appointment order not being
signed by the Head Master of the Secretary of the School
Committee came in this context. The learned counsel for the
respondent-teachers is right in submitting that even if an order
of appointment is not signed by the Head Master or the
Secretary of the School Committee, if the Management has
approved the appointment, the order cannot be assailed on the
ground that it is not signed by the Secretary of the School
Committee or the Head Master. If the order is allowed to be
assailed on such a technicality, it would amount to allowing the
Management to take advantage of their own wrong. In any
case, no such plea had been raised by the petitioner before the
School Tribunal.
13. The learned counsel for the petitioner next submitted
that in Anna Manikrao Pethe v. Presiding Officer, School
Tribunal, Amravati and Aurangabad Division, Amravati and
others, reported at 1997(3) Mh.L.J. 697, a Division Bench of this
Court held that while entertaining applications under Section 9
of the MEPS Act challenging termination, it will be necessary for
the Tribunal to decide three preliminary issues, viz., whether
the school was a recognized school as defined under the MEPS
Act; whether the appointment of the concerned teacher was
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made as per section 5 of the MEPS Act and the Rules
thereunder; and whether such an appointment has been
approved by the Education Officer in pursuance of the
provisions of the Act as well as the Rules framed thereunder. It
has been held by a Full Bench of this Court that requirement of
approval from the Education Officer need not be insisted upon
by the Tribunal for entertaining the applications under Section
9 of the MEPS Act. There is no dispute that the School did in
fact have recognition.
ig Therefore, the only question that
remains is whether appointment of respondents was made as
per Section 5 of the MEPS Act and Rules made thereunder.
14. There is no dispute that respondents No.2 in all the
three petitions were untrained and also that they belong to
backward classes. There is also no doubt that these
respondents had completed their vacation B.Ed. courses after
their services were terminated. It is the contention of the
learned counsel for the respondents that having deputed
respondents for Summer B.Ed. Course, the petitioner was
estopped from questioning appointments of the respondents on
the ground that they lacked training qualification. The learned
counsel for the petitioner submitted that the petitioner had
never recommended or deputed the respondents for vacation
B.Ed. Course, and that it may be the Head Master, who was
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hostile to Management, who might have recommended the
petitioner for vacation B.Ed.
15. The learned counsel for the respondents submitted
that in fact the only defence raised by the petitioner before the
School Tribunal was about failure to obtain the Management’s
permission for B.Ed. Course. He submitted that Rule 25 of the
MEPS Rules does not require the Management’s consent for
such deputation and previous permission of the head is enough.
Rule 25(1) of the MEPS Rules may have absolutely no bearing
on deputation for obtaining essential training qualification.
Sub-rule (2) of the said Rule would make it clear that there
would be no question of a teacher lacking training qualification
at appointment seeking permission to pursue such a course.
He has to only intimate the Head of his intention to join such a
course.
16. The learned counsel for the respondents next
submitted that the petitioner was estopped from questioning
lack of qualifications in the respondents and also their eligibility
to continue. For this purpose, he relied on a number of
judgments.
17. In Letters Patent Appeal No.85 of 2002 arising out of
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Writ Petition No.2433 of 2000 decided on 24-1-2003, a Division
Bench of this Court observed that the Government Resolution
dated 10-2-1994 had not been noticed by the learned Single
Judge, whereby the date for acquiring necessary qualification
had been extended to 1-6-1995 and that the teacher concerned
had acquired the necessary qualification in the month of July
1994. Therefore, by consent, the judgment and order of the
learned Single Judge had been set aside.
18. In Shri
Sant Gajanan Maharaj Bahuuddeshiya
Shikshan Prasarak Mandal, Khaparwada and another v.
Devendra Bhagwani Matode and others (Writ Petition No.1727
of 2007 decided on 8-10-2008), respondent No.1 was untrained
at the time of his employment or even till his termination.
Permission from the Education Department had not been
obtained before making his appointment. The School Tribunal
set aside the termination of the said teacher, who had been
deputed for B.Ed. Course by the Head Master without any
authority from the Management. This Court held that the last
appointment order of the respondent-teacher dated 19-6-1999
was for an year. However, in 1998-2000, the respondent-
teacher had been given a deputation certificate for doing his
vacation B.Ed. Course with an undertaking dated 16-3-1998
that the respondent would be continued in service till the
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completion of his training course and thereafter he would be
absorbed in service upon completion of course. This Court held
that in the absence of plea of fraud, the Management was
bound by this deputation certificate and, therefore, refused to
set aside the order passed by the School Tribunal and
dismissed the Management’s petition.
19. In Pralhad Vitthalrao Bhusari v. New Ideal Education
Society and others, reported at 2005(2) Bom.C.R. 48, the Court
was considering a case similar to that in Shri Sant Gajanan
Maharaj Bahuuddeshiya Shikshan Prasarak Mandal,
Khaparwada and another v. Devendra Bhagwani Matode and
others (Writ Petition No.1727 of 2007 decided on 8-10-2008).
Since the deputation certificate had not been produced before
the School Tribunal, this Court remitted the matter back to the
School Tribunal for a fresh decision.
20. In Dr. B.R. Ambedkar Samiti and another v. Ku. M.L.
Lonkar and others, reported at 2000(4) Mh.L.J. 507, the Court
was considering the case of untrained teacher whose services
were continued from year to year from 1986-86 to 1988-89.
The teacher had joined D.Ed. course for acquiring the requisite
qualification after obtaining permission from the Management.
The teacher had sought medical leave which had been granted.
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But when the teacher sought to join the duties at the end of the
leave period, she was told that her services were terminated,
contending that the teacher had failed to report for duties even
after the expiry of the leave period. The teacher had claimed
that she had sought extension of medical leave by a letter sent
under certificate of posting. The Tribunal held that there was a
presumption that the letter was duly served upon the
Management. The Tribunal also held that one month’s notice
as required under Rule 28 of the MEPS Rules was not given and,
therefore, set aside the order of termination. This Court upheld
the order of the Tribunal observing that contrary to the
requirements of the Rules, there could be no condition
stipulating that the services of the employee could be
terminated without notice.
21. The learned counsel for the petitioner submitted that
none of these judgments would be applicable since there is
nothing to show that the respondents had ever been deputed
by the petitioner for Vacation B.Ed. Courses. According to him,
all that the respondents have relied on is an experience
certificate issued by the Secretary of the Management. There
is no undertaking by the Management to employ the
respondents or to continue them till they completed their B.Ed.
Course. He submitted that the petitioner had simply
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terminated the services of the respondents as per Rule 28 of
the MEPS Rules, as the term of their appointments had come to
an end. He submitted that the only question which the Tribunal
was entitled to examine was whether this termination was
invalid.
22. The learned counsel for the respondents submitted
that in Renukacharya Prathamik Shala v. Shanta Bhimrao Patil
and others, reported at 1998 I CLR 72, a Division Bench of this
Court held that a teacher, who had put in ten years of service
and had in the meantime acquired requisite training
qualification was rightly ordered to be reinstated by the School
Tribunal and that the services of such teacher could not be
terminated under Rule 28 of the MEPS Rules.
23. I have carefully considered these submissions. First,
in these cases, there is nothing to show that the Management
had ever undertaken to continue to employ the respondent-
teachers after they complete their B.Ed. Course. Secondly, the
Government Resolution dated 10-2-1994, which extended the
time for acquisition of training qualification to untrained
teachers, would not apply to the respondents, since the
respondents had not been appointed before 10-2-1989. This
extension was granted in terms of Rule 6 of the MEPS Rules,
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where a proviso was inserted for enabling untrained teachers to
obtain prescribed training qualification at their own costs before
1-6-1987. Thus, the responsibility to obtain training
qualification even in respect of teachers, who were already in
employment before the MEPS Rules came into force or before
10-2-1989, was on the teachers themselves and there was no
responsibility on the Management to get them trained. In order
to overcome the paucity of trained teachers if certain
concessions were given, they could not be used by untrained
teachers to insist that irrespective of their not being qualified,
they should be continued because they had subsequently
obtained training qualification. In any case, it has to be stated
again that the respondents in these cases completed their B.Ed.
Course only after their termination. The question of estoppel
could have been raised in appropriate case, if the Management
had held out a promise to the teacher concerned that he would
be continued to be employed during and after the completion of
B.Ed. or D.Ed. Course. The authorities in the State had been
insisting upon the Managements to give an undertaking to
continue such candidates in their Schools during the period in
which the concerned teachers were to complete their B.Ed.
Course probably because the State did not want seats in such
Vacation B.Ed. Course to be blocked by the persons, who were
teachers only in the name-sake for the purpose of by-passing
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the admission procedure to regular B.Ed. Course. Therefore,
such insistence by the State while approving deputation to
B.Ed. Course cannot to be invoked by the teachers themselves
to claim a right to hold the post for which they were not
qualified. Therefore, all the arguments of the learned counsel
for the respondents in this behalf have to be rejected. At the
cost of repetition, it has to be pointed out that the respondents
have not filed on record any such undertaking by the
Management that the respondents would be continued to be
employed by the Management during or after completion of
their B.Ed. Course.
24. This takes me to the question about the status of the
respondents as persons not holding the requisite qualification
at the time of their appointment.
25. The learned counsel for the respondent-teachers also
relied on a judgment of this Court in Writ Petition No.631 of
1993 delivered on 23-4-1993, where the Court observed that it
could not be forgotton that under Clause 59 of the Secondary
School Code, an untrained teacher was also eligible to be
appointed, subject to his obtaining training qualification within a
period of five years from the date of appointment.
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26. Applicability of Clause 59 of the Secondary School
Code after MEPS Act and Rules came into force is doubtful.
Only if a matter is not covered by any provisiion of MEPS Act or
Rules could one resort to the Secondary School Code for
guidance. Under the MEPS Act, and particularly Schedule B of
the Rules, there is no question of an untrained person being
eligible to appointment. Since as a fact, there may be some
untrained teachers in a School, they have been dealt with in
result in amendment
Schedule F about fixation of seniority. Such inclusion does not
to Schedule B, which prescribes
qualifications for various categories of teachers.
27. The learned counsel for the petitioner submitted that
the respondents had not been appointed by following
prescribed procedure of issuing an advertisement and
subjecting them to a selection process. He also submitted that
the respondents were admittedly untrained at the time of their
appointment and, therefore, could not be said to have been
appointed in accordance with Section 5 of the MEPS Act and
hence their services are liable to be terminated. For this
purpose, he relied on a judgment of this Court in Priyadarshini
Education Trust and others v. Ratis (Rafia) Bano d/o Abdul
Rasheed and others, reported at 2007(6) Mh.L.J. 667, in which
the Court has observed as under :
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“Para 12 :…In view of the provisions as contained in section 5
of the MEPS Act and Rule 9 of MEPS Rules read with Articles 14
and 16 of the Constitution and the observations of the Hon’ble
Apex Court in the reported judgment which guide us, we draw
following conclusions;
(i) “duly appointed, in the manner prescribed” would
be an appointment of a person who is eligible
(qualified for the post) for appointment, who is selected
by due process of selection i.e. by competition amongst
all eligible and desirous candidates, and who is
appointed on a permanent vacant post. In other
words, inviting applications, as also holding
of screening tests, enabling all eligible and desirous
candidates to compete for selection and
appointment, is a must.
(ii) Once an eligible candidate (duly qualified as
required) is selected by selection process as above,
for filling in a permanent vacancy, there is no option
for the management and it is obligatory on it 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
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22open for Education Officer to grant approval for such
shorter period. [in fact, in view of the requirement as in
clause (I) above, the process of grant of approval
by Education Officer should begin with examination
of selection process and its validity.]
(iii) The candidate thus selected with due process and
appointed on probation shall enjoy status of deemed
permanency on completion of two years, unless
extension of probation is informed, or termination is
ordered.
(iv) 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
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.”
In view of this judgment of Division Bench, there can be no
doubt that even for filling up a vacancy from open category, an
advertisement would have to be issued. Contrary view taken
by the learned Single Judges in Nita Ramesh Danane v.
Dombivali Mitra Mandal and others, reported at 2009(1) Mh.L.J.
796, and Jagdamba Education Society, Nagpur v. Rajendra s/o
Baburao Golhar and others, reported at 2009(2) Mh.L.J. 522,
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cannot be followed. In any case, respondents No.2 in the three
petitions do not belong to open category and, therefore, for
filling up those vacancies, an advertisement was must.
28. The learned counsel for the respondents/teachers
relied on the following judgments, to support his contention
that the respondents/teachers were validly appointed and that
their services could not be terminated.
29A.
In Writ Petition No.604 of 1993 decided on 4-3-1993
(Anjuman Faroh-E Taleem and another v. Hafizul Rehman Abdul
Hamid), the respondent-teacher was appointed as a honourary
teacher on 1-10-1985 and continued from year to year. His
services were terminated on 30-3-1990. On appeal, the
Tribunal set aside the order of termination and directed
payment of difference of emoluments as also reinstatement.
The respondent was an untrained teacher having only the
qualification of S.S.C. The Management contended that since
the teacher did not have D.Ed. qualification, he could not be
reinstated. Relying on a Government Resolution
dated 20-7-1990, the Division Bench directed the petitioner to
give necessary facilities and permission to the respondent to
complete D.Ed. Course by correspondence and reduced the
entitlement to previous emoluments payable to the teacher to
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50%.
29B. In Shrawan Kumar Jha and others v. State of Bihar
and others, (Civil Appeals Nos.S321-22 of 1990) decided by the
Supreme Court, the Court was considering the appeals by 175
teachers, who were supposed to have their qualifications
verified before joining the service. Their appointments had
been subsequently cancelled. The Supreme Court held that
they should be heard before giving a finding as to whether the
appellants were validly appointed as Assistant Teachers.
29C. The learned Single Judge of this Court in Jagdamba
Education Society, Nagpur v. Rajendra s/o Baburao Golhar and
others, reported at 2009(2) Mh.L.J. 522, where too even after
noticing the judgment of the Division Bench in Priyadarshini
Education Trust and others v. Ratis (Rafiq) Bano d/o Abdul
Rasheed and others, reported at 2007(6) Mh.L.J. 667, this Court
held that the procedure prescribed for the purpose of
recruitment would be applicable only to those Institutions,
which are admitted to grant-in-aid and not to the Institutions,
which are not admitted to grant-in-aid. It is doubtful whether
such distinction between the Schools admitted to grant-in-aid
and the Schools not getting grant-in-aid could be still made
after the pronouncement by this Court that for the purpose of
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the MEPS Act and particularly invoking the jurisdiction of the
School Tribunal, the question as to whether the Schools get
grant-in-aid or not is relevant. Therefore, the procedure
prescribed including the requirement of publishing an
advertisement, which has been highlighted by the Division
Bench in Priyadarshini Education Trust will have to be followed.
This is particularly so because in the scheme of things, a
School, which does not get grant-in-aid in initial stages is
gradually admitted to grant-in-aid, as has happened even in the
present case.
29D. In National Education Society’s High School and
Junior College v. Mrs. Lulomool Monachary, reported at 1987(2)
Bom.C.R. 621, on which the learned counsel for the respondent-
teachers placed reliance, on facts, the Court came to the
conclusion that the appointment of teacher concerned could not
be said to be in a temporary vacancy, since she had been
appointed by a vacancy created by exit of a person holding the
permanent post. Such are not the facts in the present case.
Till the School received permanent recognition, there would be
no question of there being a permanent vacancy.
30. The learned counsel for the petitioners submitted
that reliance on these judgments by the learned counsel for the
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respondents/teachers would not alter the fact that there was
nothing to show that the respondents were duly appointed,
which burden was on the respondents and no amount of case
law could relieve them of this burden. He placed reliance on a
judgment of this Court in Rayat Shikshan Sanstha and another
v. Yeshwant Dattatraya Shinde [2009(6) Mh.L.J. 476], in which it
has been observed as under :
“Para 3 : Admittedly there is no evidence on record that the
appointment of the respondent was made after following the
procedure laid down in the M.E.P.S. Act and Rules. The Tribunal
has came to a conclusion that the said appointment was made
on a clear and permanent vacancy. Admittedly, no
advertisement was issued, nor any interview was held and, as
such, cannot be said that the appointment was made on a clear
and permanent post. The Tribunal, however, came to the
conclusion that the appointment was made on a clear and
permanent vacancy because the management was not in a
position to produce the relevant material on record. In my
view, the burden of establishing that the appointment was
made on a clear and permanent post that too after following
the procedure laid down under the Act and Rules, is squarely
on the Appellant and not on the management. The Tribunal,
therefore, in my view, committed an error of law, which is
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apparent on a face of record. ”
In view of this, the learned counsel for the petitioner submitted
that it was for the respondents to show that they had been
appointed on clear and permanent vacancies after issuing
appropriate advertisement, which they had not done.
31. In view of the pronouncement of the Division Bench
in Priyadarshini Education Trust and others v. Ratis (Rafia) Bano
d/o Abdul Rasheed and others, reported at 2007(6) Mh.L.J. 667,
for claiming protection, an employee has to be duly appointed,
i.e. only if he is eligible and qualified for holding the post.
There is no doubt that B.Ed. degree is the prescribed
qualification for the posts on which respondents No.2 were
appointed. They did not possess this qualification. In face of
this judgment of Division Bench, reliance by the learned
counsel for respondents No.2 on unreported judgment of this
Court in Writ Petition No.631 of 1993 delivered on 23-4-1993
and Rule 59 of the Secondary School Code would not help
respondents No.2.
32. The judgment of Supreme Court in Pramod Kumar v.
U.P. Secondary Education Services Commission and others,
reported at (2008) 7 SCC 153, cited by the learned counsel for
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the petitioners, would clear all doubts in the matter. A person
who does not possess requisite qualification would not be
entitled to claim any right.
33. The Supreme Court held that lack of essential
qualification was an illegality, which could not be cured. In that
case, the qualifications prescribed required the person to hold
B.Ed. degree. The teacher held B.Ed. degree from an Institution
which was not recognized by UGC. He was asked to acquire
B.Ed. degree from a recognized University within a period of
two years by letter dated 18-2-1993. The teacher obtained a
degree by undertaking a correspondence course. The teacher
filed a writ petition before the High Court complaining of non-
payment of salary. The High Court directed payment of salary.
A contempt petition was filed. Thereafter, the Management
started a departmental enquiry on the ground that the
petitioner had obtained appointed on the basis of a false and
fabricated B.Ed. degree and the services of the teacher were
terminated by order dated 12-2-1997. The teacher’s petition
was dismissed by the High Court on 9-3-1997. The Division
Bench dismissed the appeal of the teacher and, therefore, the
teacher approached the Supreme Court. In this context, the
Court held that the teacher concerned should have had
requisite qualification at the time of his appointment and,
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therefore, dismissed the appeal.
34. The learned counsel for the petitioner submitted that
in face of this judgment of the Supreme Court, there is
absolutely no doubt that the respondents could not have been
continued as they did not hold requisite qualification.
35. In Maharashtra Seva Sangh, Solapur and another v.
Shaikh Jamalchand and another, reported at 2009(4) Mh.L.J.
198, on which the learned counsel for the petitioner relied on, a
learned Single Judge of this Court was considering the question
of deemed permanency. In that case, the respondent held
degrees of MA (Sociology) and MA (Political Science) at the time
of his appointment on 5-7-1990 on clock hour basis. His
appointment was approved by the Education Officer on
30-3-1991 only by one year by relaxing the condition of having
B.Ed. qualification. By order dated 11-6-1991, the respondent
was appointed as full time teacher for a period of two years on
probation with effect from 15-6-1992. However, the Education
Officer granted approval only for one year and refused approval
for the next academic year on the ground that the respondent
was an untrained teacher. In 1992-93, the respondent had
taken admission for B.Ed. course and acquired the said
qualification on 24-8-1995. He was continued as part time
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teacher even in 1995-96, since after refusal of approval of the
Education Officer, he had been so appointed. In para 8 of the
judgment, the learned Single Judge held that in order to claim
benefit of deemed permanency under sub-section (2) of
Section 5 of the MEPS Act, a person must have been appointed
on permanent vacancy, must possess qualifications prescribed
under Rule 6 read with Schedule B of the MEPS Rules, and the
appointment must have been made in the manner prescribed,
that is after due process of selection. The Court held that the
power to relax the qualification under Rule 6 was restricted to
teachers in Secondary Schools and, therefore, refused to apply
relaxation to the respondent, who was a teacher in the Junior
College. Similar view was taken by the learned Single Judge in
Sawale Motiram Shridhar v. Maharashtra Seva Sangh, Solapur
and others, reported at 2009(4) Mh.L.J. 233.
36. In Jaimala Bhaurao Ramteke v. Presiding Officer,
School Tribunal, Nagpur and others, reported at 2009(5) Mh.L.J.
333, on which reliance is placed by the learned counsel for the
petitioner, a learned Single Judge of this Court held that while
filling up a permanent vacancy, the procedure prescribed must
be followed scrupulously and that when the School is
recognized on an year-to-year basis, appointments of the
teachers would be approved by the Education Department only
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for the particular year during which the School had recognition.
After considering several judgments, the Court ruled that mere
approval by the Education Officer does not cure the illegality or
irregularity in the appointment.
37. Since the respondents belong to the backward
classes and since one of the respondents also claim
accommodation in the woman’s quota, it is obvious that an
advertisement was mandatory in view of the judgment of the
Division Bench in Priyadarshini Education Trust. In view of this,
reliance by the learned counsel for the respondents on the
judgment in Nita Ramesh Danane v. Dombivali Mitra Mandal
and others, reported at 2009(1) Mh.L.J. 796, is misplaced. In
that case, even after noticing the judgment in Priyadarshini
Education Trust and others v. Ratis (Rafia) Bano d/o Abdul
Rasheed and others, reported at 2007(6) Mh.L.J. 667, the Court
observed that there was no requirement for advertising a post
in open category and that the employee had applied for a post
which was not a reserved post, since it was an isolated post
and, therefore, allowed the employee’s petition. It is not shown
that the respondents had been appointed after any such
selection process. Further since the orders of appointments
were themselves for a limited period, they could not claim that
they had been appointed on probation or that their
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appointments had, therefore, fructified into permanent
appointments. In fact, the learned counsel for the respondent-
teachers submitted that there was no case of deemed
permanency or no deeming status of probation claimed by the
respondents. All that they claimed was continuation in service
and that their services should not be terminated.
38. The learned counsel for the respondents also placed
reliance on a judgment of this Court in Hindi Vidya Bhavan,
Mumbai and others v. Presiding officer, School Tribunal,
Mumbai and others [2007(6) Mh.L.J. 563]. The Court was
dealing with a case of a wholesale departure by a Management
by resorting to contract workers. Hence, this judgment is not
applicable to the present case.
39. The learned counsel for the respondent-teachers has
placed reliance on my judgment in Janta Education Society and
another v. Prakash Babarao Shingane and another [2010(1)
Mh.L.J. 329], in which has been held as under :
“Para 2 : Facts, which are material for deciding this petition,
are as under :
Respondent No.1 was M.Com., B.P.Ed. when he was
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first appointed in a Junior College on 2-8-1985 on a fixed salary
of Rs.250/- per month for a period up to 30-6-1986. His
appointment was approved by the Deputy Director of Education
for the subjects of Commerce and Physical Education on a pay
scale of Rs.250-450/- for the Academic Session 1985-86. This
appointment was continued by another order dated 28-6-1986
on a fixed pay of Rs.500/- for the Academic Session from 1-7-
1986 to 8-5-1987. This too was approved by the Deputy
Director of Education for the Academic Session 1986-97. There
is a dispute about the next appointment order dated 9-7-1987.
According to the petitioners, respondent No.1 was appointed by
order dated 9-7-1987 on a clock-hour basis for the period from
9-7-1987 to 24-3-1988. By order dated 17-10-1988, the
Deputy Director of Education approved this appointment on a
clock-hour basis at the rate of Rs.12/- per hour with effect from
9-7-1987 till the end of the Academic Session 1987-88.
However, according to respondent No.1, this order was
fabricated and in fact he was appointed from 9-7-1987 to 8-7-
1987 in a clear vacancy. Respondent No.1 relies on a undated
order signed by the President of the Society, which does not
mention any pay scale, whereas the petitioners rely on an
order signed by the Principal of the College.”
After considering several judgments, it was held :
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“Para 24: I have considered these erudite judicial
pronouncements. I have serious doubts if the findings of the
Apex Court, in not one, but two judgments, after nothing the
provisions of section 5 of the MEPS Act, could be ignored and it
could still be held that an appointment in a clear vacancy must
be on probation. The order of appointment, which was under
consideration of the Apex Court in Hindustan Education Society
and another vs. Sk. Kaleem Sk. Gulam Nagi and others has
already been quoted in preceding paras. Teachers, who
appointment was question in Bharatiya Gramin Purnarrachana
Sanstha vs. Vijay Kumar and others, was selected and
appointed after following procedure for two years in a clear
vacancy. Yet, the Supreme Court in these two cases did not
hold that the appointments must be held to have been made on
probation. It may be audacious for me to ignore this and yet
follow contrary findings, which could be reconciled only by
distinguishing between a clear vacancy and a permanent
vacancy. Every clear vacancy need not be mistaken for a
permanent vacancy. When a new School starts, teachers will
have to be appointed even before students are enrolled. Such
appointments would obviously be in clear but temporary
vacancies, since no one would be able to predict if the School
would succeed or fail.”
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40. This position has been considered again in Writ
Petition No.3834 of 2002 decided on 26-3-2010
(Chandrashekhar s/o Dhaniram Patel v. Navshakti Vidyalaya
and others) and different view was not found to be warranted.
41. In view of this, since the appointments of the
respondents were for a limited period, and were not shown to
pursuant to an
have been made by following the prescribed period of selection
advertisement, and mainly, since the
respondents did not possess the requisite qualification at the
time of appointments, the School Tribunal was not justified in
ordering the respondents’ reinstatement or granting them
continuity in service, though the Management could always
consider whether these respondents could be continued on
existing vacancies, since they are serving for almost 18 years
now, and have also acquired requisite training qualification.
42. In view of this, the petitions are allowed. The
impugned judgments are quashed and set aside.
JUDGE.
Pdl.
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