{"id":110340,"date":"2002-09-12T00:00:00","date_gmt":"2002-09-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kondiba-so-dattarao-mirashe-vs-the-state-of-maharashtra-the-on-12-september-2002"},"modified":"2016-05-07T02:45:12","modified_gmt":"2016-05-06T21:15:12","slug":"kondiba-so-dattarao-mirashe-vs-the-state-of-maharashtra-the-on-12-september-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kondiba-so-dattarao-mirashe-vs-the-state-of-maharashtra-the-on-12-september-2002","title":{"rendered":"Kondiba S\/O Dattarao Mirashe vs The State Of Maharashtra, The … on 12 September, 2002"},"content":{"rendered":"
Bombay High Court<\/div>\n
Kondiba S\/O Dattarao Mirashe vs The State Of Maharashtra, The … on 12 September, 2002<\/div>\n
Equivalent citations: 2003 (2) MhLj 432<\/div>\n
Author: D Karnik<\/div>\n
Bench: B Marlapalle, D Karnik<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 D.G. Karnik, J. <\/p>\n
 FACTS:\n<\/p>\n
 1. The Nanded Municipal Council, which has been
\nconverted into Municipal Corporation  with  effect  from
\n25th March 1997, runs several schools within the city of
\nNanded.   The  Divisional  Revenue  Commissioner and the
\nRegional   Director   of    Municipal    Administration,
\nAurangabad,  under  which  fell  the  Municipal Council,
\nNanded, was pleased to accord sanction for creation of 3
\nposts of Head Masters alongwith certain other  posts  of
\nAssistant teachers,  Peons,  Chowkidars,  etc.    in the
\nprimary schools run by the  Municipal  Council,  Nanded,
\nvide letter  dated  16th June, 1984.  The qualifications
\nrequired for the post of Head Master of  the  school  as
\nlaid down   in  the  said  letter  was  B.A. B.Ed.    The
\npetitioner who possessed the required  qualification  of
\nB.A. B.Ed.   was selected and appointed as Head Master of
\nSangamwadi primary school run by the Respondent No. 4  on
\n18th June,  1984.  The Deputy Director of Education, who
\nis the Respondent No. 2 herein,  on  6th  February,  1991
\ngranted  approval  to the appointment of the petitioner,
\nbut as an  untrained  teacher,  from  the  date  of  his
\nappointment  and the petitioner was directed to pass the
\nD.Ed.  course within  a  period  of  five  years.    The
\nEducation Officer, who is the Respondent No.3 herein, on
\nthe  basis  of  the  letter  of  the  Deputy Director of
\nEducation  dated  6th  February,  1991,   also   granted
\napproval  to  the  appointment  of  the petitioner as an
\nuntrained teacher on the condition that  the  petitioner
\nshould complete  the  D.Ed.    course within a period of
\nfive years.  Relying on the said two communications, the
\nChief Officer, Municipal Council,  Nanded,  who  is  the
\nRespondent  No.4  herein,  issued  a  letter  dated 27th
\nMarch, 1991, to the petitioner informing the  petitioner
\nthat he  should  pass  D.Ed.   course within a period of
\nfive years and that as the petitioner  did  not  possess
\nthe D.Ed.    qualification,  he  would  be treated as an
\nuntrained teacher and would be entitled  to  get  salary
\nonly  as  an  untrained  teacher  and not as the trained
\nteacher.\n<\/p>\n
 2. In  this  petition,   the   petitioner   has
\nchallenged  the letter dated 27th March, 1991, issued by
\nthe Respondent  No. 4  in  pursuance  of  the  directions
\nissued by  the Respondents No.1 & 2.  Shri S.R. Barlinge,
\nthe  learned  Counsel  for  the  petitioner,  urged  the
\nfollowing points in support of the petition.\n<\/p>\n
 (i)  The  provisions  of Maharashtra Employees of
\nPrivate  Schools  (Conditions  of   Service)
\nRegulation  Act,  1977  (for  short M.E.P.S.
\nAct) and the Rules framed thereunder, namely
\nthe Maharashtra Employees of Private Schools
\n(Conditions of  Service)  Rules,  1981  (for
\nshort the   M.E.P.S.      Rules)   are   not
\napplicable  to  the  schools  run   by   the
\nMunicipal   Council   and,   therefore,  the
\nqualifications prescribed under the M.E.P.S.
\nRules for the appointment  of  an  Assistant
\nteacher  or  a  Head  Master do not apply to
\nsuch schools.  Consequently, the Respondents
\nNo.2 and  3  had  no  power  to  direct  the
\nRespondent  No.4  to treat the petitioner as
\nan untrained  teacher.      The   Divisional
\nRevenue   Commissioner   and   the  Regional
\nDirector  of  Municipal  Administration  who
\ncreated  and  sanctioned  the  posts of Head
\nMasters in the schools run by the Respondent
\nNo.4, only was the  competent  authority  to
\nprescribe the qualifications for the post of
\nthe Head  Master.  As the Commissioner & the
\nRegional Director had  prescribed  B.A. B.Ed.
\nas  the requisite qualification for the post
\nof the Head Master and  the  petitioner  did
\nposses  the same, he cannot be treated as an
\nuntrained teacher. <\/p>\n
\n \n\n (ii) Assuming   without   admitting   that    the\nprovisions of  the  M.E.P.S.    Act  and the\n<\/pre>\n
M.E.P.S.  Rules are applicable,  the  School
\nin  which  the  petitioner was appointed was
\nnot   the   primary   school   because   the
\npetitioner  was attached to that part of the
\nschool  which  runs  the   classes   between
\nstandards 5th  and  7th.   Even according to
\nthe Government Resolution dated  14.11.1979,
\nin respect of the schools conducting classes
\nbetween  standards  5th  and 7th, 75% of the
\nteachers should  possess   S.S.C.      D.Ed.\n<\/p>\n
qualification and 25% of the teachers should
\nbe Graduates with  B.Ed.  qualification.  As
\nthe    petitioner    possesses     B.A. B.Ed.\n<\/p>\n
qualification, he would fit in those 25% and
\nis not an untrained teacher.\n<\/p>\n
 Re First contention :\n<\/p>\n
 3. Section 3  of  the  M.E.P.S.   Act lays down
\nthat it shall apply to all private schools in the  State
\nof  Maharashtra, whether receiving any grant-in-aid from
\nthe State Government or not.    A  “private  school”  as
\ndefined in sub-section (20) of Section 2 of the M.E.P.S.
\nAct   means   a   recognised   school   established   or
\nadministered by a Management, other than the  Government
\nor a local  authority.    Thus  the M.E.P.S.  Act is not
\napplicable to the schools run by  the  local  authority,
\nlike the Respondent  No. 4.    The M.E.P.S.  Rules, 1981,
\nframed under Section 16 of the M.E.P.S.  Act, therefore,
\ndo not apply to the schools run by the local authorities
\nlike the Respondent No. 4.\n<\/p>\n
 4. We are, therefore, required to consider  the
\nauthority for prescribing the educational qualifications
\nrequired  for  appointment  as an Assistant teacher in a
\nschool  run  by  the  local  authority  like   Municipal
\nCouncil\/Corporation.   It  needs  to  be stated that the
\nprimary schools run by  the  Municipal  Corporation  are
\ngoverned  under  the  Bombay Primary Education Act, 1947
\nand the Bombay Primary Education Rules, 1949.    Whereas
\nthe  Secondary Schools run by such local authorities are
\ngoverned under the Secondary Schools Code.  In the  case
\nof Tikaram  Vs.    Mundikota  Shikshan Prasarak Mandal &
\nothers, , it has  been  held
\nthat  the  orders  passed  by  the authorities under the
\nSecondary  School  Code  can  be  challenged   in   Writ
\nPetitions  under  Article 226 of the Constitution though
\nthe Code is non statutory in character.    It  is  clear
\nthat  the  Secondary  Schools  Code  is a compilation of
\nexecutive instructions and orders.  In  support  of  our
\nview   that  the  qualifications  of  teachers,  age  of
\nretirement, etc.    are  governed  under  the  Secondary
\nSchools  Code,  we  may safely rely upon the judgment of
\nthe Apex Court in the case of M.G. Pandke and others  Vs.
\nMunicipal   Council   Hinganghat,  District  Wardha  and
\nothers, .\n<\/p>\n
 5. Section 2(2) of the Bombay Primary Education
\nAct defines the term “approved School” and  it  means  a
\nprimary  school maintained by the State Government or by
\na School board or a Zilla Parishad or by  an  authorised
\nMunicipality  or  which is for the time being recognised
\nas such by a School board or Zilla Parishad  or  by  the
\nState  Government  or  by an officer authorised by it in
\nthis behalf.  The term “Municipal School Board” has been
\ndefined under Section 2(11) and it means a School  board
\nconstituted  for  the area of an authorised Municipality
\nunder Section 3.  Section 3(2) states that for each area
\nof  an  authorised  Municipality,  there  shall   be   a
\nmunicipal school board.  The term “school board” means a
\nMunicipal  School  board  within  the meaning of Section
\n2(11) and the term “Primary School” means a school or  a
\npart  of  a  school in which primary education up to any
\nstandard is imparted as per Section 2(17)  of  the  said
\nAct.   The term “Director of Local Authorities” has been
\ndefined  under  Rule  2(c-1)  of  the   Bombay   Primary
\nEducation  Rules, 1949 and it means an officer appointed
\nfor the time being by the State  Government  to  be  the
\nDirector of   Local  Authorities.    As  per  Rule  2(k)
\n“trained  teacher”  means  a   teacher   who   holds   a
\ncertificate   of   training  granted  by  the  Education
\nDepartment of Government or such  other  certificate  as
\nmay,  from time to time, be recognised by the Government
\nin this behalf.\n<\/p>\n
 By  reading  the  scheme  of  Bombay Primary
\nEducation Act and the Rules framed thereunder as well as
\nthe  Secondary  Schools  Code,  it  is  clear  that  the
\nteachers  appointed  in the primary or secondary schools
\nrun by a Municipal  Council\/Corporation  must  meet  the
\neducational  requirements  as  prescribed thereunder and
\nthey must hold the qualifications for appointment  as  a
\ntrained teacher prescribed by the Government by invoking
\nthe  powers  under  the Bombay Primary Education Act and
\nthe Rules framed thereunder  or  the  Secondary  Schools
\nCode, as the case may be.\n<\/p>\n
 Re Second Contention :\n<\/p>\n
 6. Coming to the second contention of the petitioner
\non the  assumption  that the provisions of M.E.P.S.  Act
\nand Rules are applicable to the  Schools  in  which  the
\npetitioner  is working as Head Master, we must note that
\nthis issue is not required to be considered  on  account
\nof  our  clear  finding in reply to the first contention
\nthat the  schools  run  by  the  Municipal  Council  are
\ngoverned  either  under the provisions of Bombay Primary
\nEducation Act and the Rules  framed  thereunder  or  the
\nSecondary Schools  Code,  as  the  case  may be.  In any
\ncase, these cases are not governed  under  the  M.E.P.S.
\nAct and the Rules framed thereunder.\n<\/p>\n
 7. We are then required to consider the  status
\nof  the  classes from 5th to 7th standards, inasmuch as,
\nwhether they are called as primary schools or  secondary
\nschools.   These  classes  are  permitted to be attached
\neither to the primary schools and\/or  to  the  Secondary
\nschools.   If  the  existing  primary school has classes
\nfrom 1st to 4th standards, the classes from 5th  to  7th
\nstandards  are  granted  by way of natural growth and no
\npermission is granted for conducting the school only for
\nthe standards between 5th and  7th  and  as  such  these
\nclasses  are  required  to  be  attached  either  to the
\nprimary or to the secondary schools.   Section  2(7)  of
\nthe  Bombay  Primary  Education  Act  defines  the  term
\n“child” and it means a boy or a girl whose  age  is  not
\nless  than  six  and not more than fourteen years at the
\nbeginning of the school year.  As per  Section  2(8)  of
\nthe  Act,  the  term  “Director”  means  the Director of
\nEducation.  It is,  thus,  obvious  that  the  said  Act
\nencompasses  the  education  of the children between the
\nage of 6 and 14 years.  A Full Bench of this  Court,  in
\nthe case  of  Suryakant  Sheshrao Panchal Vs.  Vasantrao
\nNaik Vimukta Jati, Bhatkya Jamati Adarsh Prasarak Mandal
\nand others, noted that a primary school is normally from
\n1st to 7th standards.  However, a  primary  school  from
\n1st  to  4th  standards is called as Level-I and primary
\nschool from 5th to 7th standards is called as  Level-II.
\nEven if the classes of 5th to 7th standards are attached
\nto   a   Secondary   school   run   by   the   Municipal
\nCouncil\/Corporation, the section of 5th to 7th standards
\nwill have to be called as  primary  section  (Level-II).
\nIn  the  Policy Statement of Education Reconstruction in
\nMaharashtra published in February 1970,  the  Government
\nhad  announced  its policy decision that a programme for
\nattaching classes of standards from 5th to 7th standards
\nto  secondary   schools   should   be   undertaken   and
\naccordingly   vide   Government  Resolution  dated  27th
\nSeptember 1971, the Government directed that a secondary
\nschool, which fulfills the conditions laid down  therein
\nwould be considered for being granted permission to open
\nand attach  classes of standards 5th to 7th.  One of the
\nconditions was that the school had  a  trained  Graduate
\nHead Master  and  other  adequately qualified staff.  It
\nwas further directed that the requirements  of  teaching
\nstaff  for these classes permitted to be opened from the
\nacademic year 1972-73 should be calculated in accordance
\nwith the provisions of Rule 73 of the Secondary  Schools
\nCode  and out of such requirements, only 25% of teachers
\nmust be Graduate or trained Graduate i.e.  after every 3
\nunder-Graduate trained teachers employed, one may  be  a
\nGraduate trained teacher.  This limit was required to be
\napplied even in case of the secondary schools which were
\nallowed  to  open  the  classes of standards 5th to 7th.
\nThis  concept  was  further  regularised   and   clearly
\npropounded  by the next Government Resolution dated 21st
\nMay, 1979 and were made applicable to the schools run by
\nthe Municipal Councils vide Government Resolution  dated
\n14th November,  1979.    By  this  Government Resolution
\ndated 14.11.1979, the Government had decided  to  remove
\nthe  anomaly  and, therefore, prescribed a common policy
\nrelating to the facilities and staffing pattern provided
\nto the classes of 5th to 7th standards attached  to  the
\nsecondary  schools as well as to the primary schools run
\nby the local self Government.   More  so,  there  was  a
\ndifference in  the  staffing pattern.  In order to bring
\nparity, it was decided that in respect  of  5th  to  7th
\nstandards, teachers should be sanctioned in the ratio of
\n1.3 per class.  It was also resolved that out of every 4
\nsanctioned  teachers,  1st  3  teachers  should  possess
\neducational qualifications of S.S.C.  & D.Ed.   and  the
\n4th  teacher  should  be  a  Graduate  with  B.Ed.\/D.Ed.
\nAccordingly, 25% of the posts of teachers for 5th to 7th
\nstandards were converted  from  S.S.C.    +  D.Ed.    to
\nGraduate +  B.Ed.\/D.Ed.   and they were given higher pay
\nscale in two stages.  It is admitted that the petitioner
\nis employed  in  Sangamwadi  Primary  School  which  has
\nclasses  from  1st  to  7th standards and, therefore, he
\nwould be governed by the policy laid down by  the  State
\nGovernment  vide  Government Resolution dated 14.11.1979
\nand subsequently followed all along in  respect  of  the
\nschools run by the Municipal Councils.\n<\/p>\n
 8. Consequent  to  the decision of a Full Bench
\nof this Court in the case of Jayashree Sunil Chavan  Vs.
\nState  of  Maharashtra  and others, reported in 2000 (3)
\nMh.L.J.  605,  the  Government  issued  the  Resolutions
\ndated  25th  October 2000 as well as 7th November, 2001,
\nby directing that the trained  Graduates  appointed  for
\nthe  classes  between  5th  and  7th  standards ought to
\npossess the  D.Ed.    qualifications  instead  of  B.Ed.
\ndegree.   In  fact,  this decision of the Full Bench did
\nnot overrule the  scheme  of  the  State  Government  to
\nappoint   trained  Graduate  teachers  for  the  classes
\nbetween 5th to 7th standards and it only dealt with  the
\nqualifications  required  for  a  trained teacher in the
\nprimary schools.  Different  Division  Benches  of  this
\nCourt   had   taken   a   contrary  view  regarding  the
\neligibility of  Graduates  with  B.Ed.      degree   for
\nappointment as trained primary teachers.  The Full Bench
\nheld  that  for  appointment  as  primary school teacher
\nD.Ed.  is a necessary  qualification  and  the  teachers
\nholding B.Ed.    degree  would  not  qualify for such an
\nappointment.  Notwithstanding the said view, the  policy
\nof  the  State  Government, as announced vide Government
\nResolution dated 14.11.1979 and as continued thereafter,
\nwas not affected by the  Full  Bench  decision  of  this
\nCourt.   The Government Resolution dated 12.11.2001 came
\nto be challenged in Writ Petition No.3564\/2002  and  the
\nsame has  been  stayed  by  this  Court.   We will have,
\ntherefore, to hold that the  policy  of  the  Government
\nannounced  vide  Government  Resolution dated 14.11.1979
\ncontinues to apply for the primary school  from  1st  to
\n7th  standards  run by the Municipal Council and thus an
\nAssistant    teacher     who     possesses     B.A.B.Ed.
\nqualifications  and  teaches  in  the  schools imparting
\neducation from 5th to 7th standards is a trained teacher
\nand, therefore, is entitled to be appointed  as  a  Head
\nMaster.  The second contention, as raised by the learned
\nCounsel for the petitioner, is upheld and it is declared
\nthat the petitioner was eligible to be appointed as Head
\nMaster  of  the  Sangamwadi  Primary  School  run by the
\nRespondent No. 4 and he  could  not  be  said  to  be  an
\nunqualified teacher.     The  communications  dated  6th
\nFebruary, 1991 issued by the Respondent No. 2  and  dated
\n8th  March  1991  issued by the Respondent No. 3 granting
\napproval to the post of petitioner, but as an  untrained
\nteacher were    unsustainable.       Consequently,   the
\ncommunication and  the  order  dated  27th  March  1991,
\nissued  by  the  Respondent  to the petitioner, revoking
\napproval of the pay scale as trained  graduate  teacher,
\nis void ab initio and the same is required to be quashed
\nand set aside.\n<\/p>\n
 9. Resultantly,  petition  is  allowed  and the
\nRule is made absolute in terms of  prayers  clauses  (B)
\nand (D), but without costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Kondiba S\/O Dattarao Mirashe vs The State Of Maharashtra, The … on 12 September, 2002 Equivalent citations: 2003 (2) MhLj 432 Author: D Karnik Bench: B Marlapalle, D Karnik JUDGMENT D.G. Karnik, J. FACTS: 1. The Nanded Municipal Council, which has been converted into Municipal Corporation with effect from 25th March 1997, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-110340","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nKondiba S\/O Dattarao Mirashe vs The State Of Maharashtra, The ... on 12 September, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kondiba-so-dattarao-mirashe-vs-the-state-of-maharashtra-the-on-12-september-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kondiba S\/O Dattarao Mirashe vs The State Of Maharashtra, The ... on 12 September, 2002 - 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