{"id":127114,"date":"2010-04-08T00:00:00","date_gmt":"2010-04-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vidya-bharti-shikshan-sanstha-vs-presiding-officer-on-8-april-2010"},"modified":"2018-04-13T17:50:50","modified_gmt":"2018-04-13T12:20:50","slug":"vidya-bharti-shikshan-sanstha-vs-presiding-officer-on-8-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vidya-bharti-shikshan-sanstha-vs-presiding-officer-on-8-april-2010","title":{"rendered":"Vidya Bharti Shikshan Sanstha vs Presiding Officer on 8 April, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Vidya Bharti Shikshan Sanstha vs Presiding Officer on 8 April, 2010<\/div>\n
Bench: R. C. Chavan<\/div>\n
                               1\n\n    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,\n                 NAGPUR BENCH, NAGPUR\n\n\n\n\n                                                                         \n                 Writ Petition No.399 of 2001,\n\n\n\n\n                                                 \n                 Writ Petition No.418 of 2001\n                              And\n                 Writ Petition No.419 of 2001\n\n\n\n\n                                                \n                  Writ Petition No.399 of 2001\n\n\n    Vidya Bharti Shikshan Sanstha,\n\n\n\n\n                                     \n    Goregaon, through its Secretary\n    Parasram Dnyaniram Katre,\n                       \n    aged about 46 years,\n    r\/o Hirdamali,\n    Tahsil Goregaon,\n                      \n    District Gondia.                      ... Petitioner\n\n      Versus\n\n    1. Presiding Officer,\n      \n\n\n       Additional School Tribunal,\n       Nagpur (Chandrapur).\n   \n\n\n\n    2. Sunildatta s\/o Sakharam Wasnik,\n       aged about 32 years,\n       r\/o Chichgaon,\n\n\n\n\n\n       Tahsil Goregaon,\n       District Gondia.\n\n    3. Education Officer (Secondary),\n       Zilla Parishad, Gondia.\n\n\n\n\n\n    4. Kedarnath Ramdas Agade,\n       aged about 54 years,\n       Head Master,\n       Manoharbhai Patel High School,\n       Chichgaon Purgaon,\n       At Post Bhadanga, Taluq\n       Goregaon, District Gondia.\n\n\n\n\n                                                 ::: Downloaded on - 09\/06\/2013 15:49:16 :::\n                                2\n\n    5. Ramesh s\/o Gajanan Kashyap,\n       aged about 28 years,\n\n\n\n\n                                                                       \n       resident of and Post Goregaon,\n       Tq. Goregaon, District Gondia.\n\n\n\n\n                                               \n    6. Eknath s\/o Daulatji Khobragade,\n       aged 33 years, r\/o Chichgaon,\n       Taluka Goregaon,\n       Distt. Gondia.\n\n\n\n\n                                              \n    7. Tukaram s\/o Sapku Chaudhari,\n       aged 38 years,\n       resident of Goregaon,\n\n\n\n\n                                     \n       Tahsil Goregaon, Distt. Gondia.    ... Respondents\n                       \n                    Writ Petition No.418 of 2001\n                      \n    Vidya Bharti Shikshan Sanstha,\n    Goregaon, through its Secretary\n    Parasram Dnyaniram Katre,\n      \n\n    aged about 46 years,\n    r\/o Hirdamali,\n   \n\n\n\n    Tahsil Goregaon,\n    District Gondia.                      ... Petitioner\n\n      Versus\n\n\n\n\n\n    1. Presiding Officer,\n       Additional School Tribunal,\n       Nagpur (Chandrapur).\n\n\n\n\n\n    2. Ku. Dileshwari d\/o Lackhchand Thakre,\n       aged about 31 years,\n       r\/o Chichgaon (Puregaon)\n       Tahsil Goregaon,\n       District Gondia.\n\n    3. Education Officer (Secondary),\n       Zilla Parishad, Gondia.\n\n    4. Kedarnath Ramdas Agade,\n\n\n\n\n                                               ::: Downloaded on - 09\/06\/2013 15:49:16 :::\n                                3\n\n       aged about 54 years,\n       Head Master,\n\n\n\n\n                                                                     \n       Manoharbhai Patel High School,\n       Chichgaon Purgaon,\n\n\n\n\n                                             \n       At Post Bhadanga, Taluq\n       Goregaon, District Gondia.\n\n    5. Ramesh s\/o Gajanan Kashyap,\n       aged about 28 years,\n\n\n\n\n                                            \n       resident of and Post Goregaon,\n       Tq. Goregaon, District Gondia.\n\n    6. Eknath s\/o Daulatji Khobragade,\n\n\n\n\n                                     \n       aged 33 years, r\/o Chichgaon,\n       Taluka Goregaon,\n       Distt. Gondia.\n                       \n    7. Tukaram s\/o Sapku Chaudhari,\n       aged 38 years,\n                      \n       resident of Goregaon,\n       Tahsil Goregaon, Distt. Gondia.    ... Respondents\n      \n\n                    Writ Petition No.419 of 2001\n   \n\n\n\n    Vidya Bharti Shikshan Sanstha,\n    Goregaon, through its Secretary\n    Parasram Dnyaniram Katre,\n\n\n\n\n\n    aged about 46 years,\n    r\/o Hirdamali,\n    Tahsil Goregaon,\n    District Gondia.                      ... Petitioner\n\n\n\n\n\n      Versus\n\n    1. Presiding Officer,\n       Additional School Tribunal,\n       Nagpur (Chandrapur).\n\n    2. Pralhad s\/o Beniram Thakur,\n       aged about 33 years,\n       r\/o Chichgaon (Puregaon),\n       Tahsil Goregaon,\n\n\n\n\n                                             ::: Downloaded on - 09\/06\/2013 15:49:17 :::\n                                4\n\n       District Gondia.\n\n\n\n\n                                                                     \n    3. Education Officer (Secondary),\n       Zilla Parishad, Gondia.\n\n\n\n\n                                             \n    4. Kedarnath Ramdas Agade,\n       aged about 54 years,\n       Head Master,\n       Manoharbhai Patel High School,\n\n\n\n\n                                            \n       Chichgaon Purgaon,\n       At Post Bhadanga, Taluq\n       Goregaon, District Gondia.\n\n\n\n\n                                   \n    5. Ramesh s\/o Gajanan Kashyap,\n       aged about 29 years,\n                          \n       resident of and Post Goregaon,\n       Tq. Goregaon, District Gondia.\n\n    6. Eknath s\/o Daulatji Khobragade,\n                         \n       aged 33 years, r\/o Chichgaon,\n       Taluka Goregaon,\n       Distt. Gondia.\n      \n\n    7. Tukaram s\/o Sapku Chaudhari,\n       aged 38 years,\n   \n\n\n\n       resident of Goregaon,\n       Tahsil Goregaon, Distt. Gondia.    ... Respondents\n\n\n\n\n\n    Shri J.S. Mokadam, Advocate for Petitioner in all Petitions.\n    Shri A.Z. Jibhkate, Advocate for Respondent No.2 in all\n    Petitions.\n    Shri D.B. Patel, AGP for Respondent No.3 in Writ Petitions\n\n\n\n\n\n    No.399 of 2001 and 419 of 2001.\n    Smt. I.L. Bodade, AGP for Respondent No.3 in Writ Petition\n    No.418 of 2001.\n\n\n\n            Coram : R.C. Chavan, J.\n<\/pre>\n
            Reserved on    : 17-2-2010\n            Pronounced on : 08-04-2010\n\n\n\n\n                                             ::: Downloaded on - 09\/06\/2013 15:49:17 :::<\/span>\n                                        5<\/span>\n\n\n    Judgment :\n\n\n\n\n                                                                                    \n                                                            \n    1.          These    petitioners       by   Management          are     directed\n\n<\/pre>\n
    against the judgments rendered on 21-9-2000 by the learned<\/p>\n
    Presiding Officer, School Tribunal, Nagpur, allowing appeals of<\/p>\n
    respondents No.2 in each of the three petitions.<\/p>\n
\n\n\n\n\n                                               \n    2.          The     petitioner-Society        started       a     School        on\n\n    no-grant    basis    in\n                              \n                              1991     and      the   School        was    provided\n\n<\/pre>\n
    grant-in-aid by the State Government from 1996. Respondent<\/p>\n
    No.2 in Writ Petition No.399 of 2001 Sunildatta, who belongs to<\/p>\n
    Scheduled Caste, was appointed as Assistant Teacher from 1-7-\n<\/p>\n
    1992 in a vacancy meant for that category. He was untrained<\/p>\n
    graduate and completed his Vacation B.Ed. Course in summer<\/p>\n
    of 1995, i.e. after his termination on 30-4-1994.                 Respondent<\/p>\n
    No.2 in Writ Petition No.418 of 2001 – Dileshwari was appointed<\/p>\n
    as untrained Teacher since the beginning of the School.                       The<\/p>\n
    first appointment order dated 5-7-1991 was from 8-7-1991 till<\/p>\n
    the end of 1991-92 session. She belongs to OBC category. She<\/p>\n
    too claims to have completed Vacation B.Ed. Course, but by<\/p>\n
    June 1996, i.e. after her termination on 30-4-1994. Respondent<\/p>\n
    No.2 in Writ petition No.419 of 2001 – Prahlad too was<\/p>\n
    appointed     as      untrained        teacher      with        effect       from<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                   6<\/span><\/p>\n
    2-7-1990(?). He belongs to OBC category and claims to have<\/p>\n
    completed Vacation B.Ed. Course in July 1994, i.e. after his<\/p>\n
    termination on 30-4-1994.\n<\/p>\n
    3.         These respondents claimed that they were appointed<\/p>\n
    on clear and permanent vacancies, had been deputed by the<\/p>\n
    Management for completing B.Ed. and were, therefore entitled<\/p>\n
    to   continuation.   The    petitioner   terminated     services       of<\/p>\n
    respondent No.2 in these petitions with effect from 30-4-1994<\/p>\n
    by giving one month’s notice on 31-3-1994.          The petitioner<\/p>\n
    claimed that the respondents were appointed on year-to-year<\/p>\n
    basis and had not been deputed for B.Ed. Vacation Course by<\/p>\n
    Management and that their services came to an end on expiry<\/p>\n
    of term of appeal.\n<\/p>\n
    4.         The parties also had a dispute on the question of<\/p>\n
    payment of salary to them. There seems to be some dispute in<\/p>\n
    the Management and three members of Managing Committee,<\/p>\n
    who intervened before the Tribunal, claimed that Secretary P.G.\n<\/p>\n
    Katre had effected termination of these teachers without there<\/p>\n
    being any resolution by the Management. After termination of<\/p>\n
    respondents No.2 in these petitions, the group in Management<\/p>\n
    led by Shri P.D. Katre appointed three teachers, who have been<\/p>\n
    joined as respondent Nos.5 to 7 in these petitions.\n<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                     7<\/span><\/p>\n
    5.           The learned Presiding Officer, School Tribunal, held,<\/p>\n
    after considering material before him, that the termination of<\/p>\n
    respondents No.2 in these petitions by notices dated 31-3-1994<\/p>\n
    was not legal, proper or valid and, therefore, by his impugned<\/p>\n
    judgments ordered their reinstatement with continuity of<\/p>\n
    service.     Aggrieved thereby, the Management has filed these<\/p>\n
    petitions.\n<\/p>\n
    6.<\/p>\n
                 While admitting the petitions on 3-12-2001, it was<\/p>\n
    stated that though the management had not reinstated<\/p>\n
    respondents No.2 pursuant to orders of the School Tribunal, the<\/p>\n
    Head Master (respondent No.4 in these petitions) had illegally<\/p>\n
    reinstated them.      Since they had been reinstated, stay was<\/p>\n
    granted only for payment of past emoluments.\n<\/p>\n
    7.           I have heard the learned counsel for the parties.\n<\/p>\n
    8.           The learned counsel for the petitioner submitted that<\/p>\n
    respondents No.2 in these petitions were untrained and,<\/p>\n
    therefore, not qualified for appointment.      Their appointments<\/p>\n
    were made without following prescribed procedure only till the<\/p>\n
    end of academic session and that too by Secretary of the<\/p>\n
    Society and not by Head Master, and that their appointments<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                   8<\/span><\/p>\n
    were not approved by the Education Department.          The learned<\/p>\n
    counsel for the petitioner also submitted that the order of the<\/p>\n
    Tribunal would have the effect of disturbing services of three<\/p>\n
    others, who have the requisite qualification and have been<\/p>\n
    appointed after following proper procedure. He submitted that<\/p>\n
    they had not been made parties to the appeals before the<\/p>\n
    Tribunal.\n<\/p>\n
    9.<\/p>\n
                The learned counsel for the respondent-teachers<\/p>\n
    submitted that there was no question of joining three other<\/p>\n
    teachers, who were appointed in place of these respondents as<\/p>\n
    parties to the appeals before the School Tribunal, since<\/p>\n
    approval granted to their appointments was subject to result of<\/p>\n
    the appeals. He also submitted that they were not necessary<\/p>\n
    parties.    For this purpose, he relied on a judgment of Orissa<\/p>\n
    High Court in Qaruda Adabar v. State of Orissa and others,<\/p>\n
    reported at 1997(1) E.S.C. 588, a Division Bench of Orissa High<\/p>\n
    Court was considering the necessity of joinder of parties in the<\/p>\n
    context of appointment of a teacher in an aided Educational<\/p>\n
    Institution.   In that case, the services of a teacher had been<\/p>\n
    terminated by the Management.        The said termination order<\/p>\n
    was quashed by the authorities.         As a consequence, the<\/p>\n
    services of a teacher appointed in his place came to an end.\n<\/p>\n
    The   second    teacher,   whose   services   came     to    an     end,<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                     9<\/span><\/p>\n
    questioned his termination on the ground that he had not been<\/p>\n
    made a party in the proceedings for quashing termination of<\/p>\n
    the first teacher. The Orissa High Court held that the second<\/p>\n
    teacher could not have claimed to be a necessary party to the<\/p>\n
    earlier proceedings.       The learned counsel for teachers<\/p>\n
    submitted, and rightly in my view, that there was no lis<\/p>\n
    between the two sets of teachers to be tried before the<\/p>\n
    Tribunal. Those teachers, who came to be appointed later were<\/p>\n
    not   instrumental<\/p>\n
    respondent-teachers<\/p>\n
                         in   bringing<\/p>\n
                              and   the
\n                                          about   termination<\/p>\n
                                          respondent-teachers
\n                                                                    of    the<\/p>\n
                                                                         could<\/p>\n
    conceivably have no say in questioning validity of appointment<\/p>\n
    of those substitutes. Hence, there was no question of appeals<\/p>\n
    by the respondents being untenable on account of non-joinder<\/p>\n
    of their substitutes. In any case, since this point was not shown<\/p>\n
    to have been pressed before the Tribunal, it cannot be allowed<\/p>\n
    to be raised before this Court now.\n<\/p>\n
    10.       The learned counsel for the petitioner assailed the<\/p>\n
    tenability of appeals filed on behalf of the respondents on the<\/p>\n
    ground that their appointments themselves were invalid.\n<\/p>\n
    11.       In Ashok Asramji Gabhane v. Presiding Officer, School<\/p>\n
    Tribunal, Nagpur and others<\/a>, reported at 2002(4) Mh.L.J. 225,<\/p>\n
    relied on by the learned counsel for the petitioner, a learned<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                  10<\/span><\/p>\n
    Single Judge of this Court held that the order of appointment,<\/p>\n
    which was not issued by the Head Master or the Secretary of<\/p>\n
    the School Committee, cannot be termed as an appointment<\/p>\n
    order contemplated by Schedule D of the MEPS Rules and no<\/p>\n
    legal right can be canvassed on the basis of such order. In that<\/p>\n
    case, the petitioner was appointed by orders dated 20-6-1991,<\/p>\n
    16-12-1991 and 24-6-1993.         The appointment was against a<\/p>\n
    permanent post and, therefore, the petitioner claimed that he<\/p>\n
    had become a confirmed employee in terms of Section 5(2) of<\/p>\n
    the MEPS Act. He was relieved for undertaking D.Ed. Vacation<\/p>\n
    Course by the Head Master on 9-5-1993, but was not allowed to<\/p>\n
    resume duties from 1-8-1994 and, therefore, approached the<\/p>\n
    Tribunal. The Tribunal dismissed the appeal. This Court held<\/p>\n
    that the provisions of Section 5 of the MEPS Act for filling up<\/p>\n
    vacancy would apply only if the vacancy is permanent and only<\/p>\n
    in that situation, the appointment would be on probation for a<\/p>\n
    period of two years.      The Court also observed that the<\/p>\n
    petitioner was not a qualified person when he was appointed,<\/p>\n
    and also held that the appointment orders dated 16-12-1991<\/p>\n
    and 24-6-1993 were not issued by the Secretary of the School<\/p>\n
    Committee and, therefore, were bad in law, since the orders<\/p>\n
    were signed by one Shri Indurkar claiming to be the President<\/p>\n
    of the Trust, when he was not the President.             The Court,<\/p>\n
    therefore, dismissed the petition.\n<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                  11<\/span><\/p>\n
    12.       The observations about appointment order not being<\/p>\n
    signed by the Head Master of the Secretary of the School<\/p>\n
    Committee came in this context. The learned counsel for the<\/p>\n
    respondent-teachers is right in submitting that even if an order<\/p>\n
    of appointment is not signed by the Head Master or the<\/p>\n
    Secretary of the School Committee, if the Management has<\/p>\n
    approved the appointment, the order cannot be assailed on the<\/p>\n
    ground that it is not signed by the Secretary of the School<\/p>\n
    Committee or the Head Master. If the order is allowed to be<\/p>\n
    assailed on such a technicality, it would amount to allowing the<\/p>\n
    Management to take advantage of their own wrong.               In any<\/p>\n
    case, no such plea had been raised by the petitioner before the<\/p>\n
    School Tribunal.\n<\/p>\n
    13.       The learned counsel for the petitioner next submitted<\/p>\n
    that in Anna Manikrao Pethe v. Presiding Officer, School<\/p>\n
    Tribunal, Amravati and Aurangabad Division, Amravati and<\/p>\n
    others<\/a>, reported at 1997(3) Mh.L.J. 697, a Division Bench of this<\/p>\n
    Court held that while entertaining applications under Section 9<\/p>\n
    of the MEPS Act challenging termination, it will be necessary for<\/p>\n
    the Tribunal to decide three preliminary issues, viz., whether<\/p>\n
    the school was a recognized school as defined under the MEPS<\/p>\n
    Act; whether the appointment of the concerned teacher was<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                 12<\/span><\/p>\n
    made as per section 5 of the MEPS Act and the Rules<\/p>\n
    thereunder; and whether such an appointment has been<\/p>\n
    approved by the Education Officer in pursuance of the<\/p>\n
    provisions of the Act as well as the Rules framed thereunder. It<\/p>\n
    has been held by a Full Bench of this Court that requirement of<\/p>\n
    approval from the Education Officer need not be insisted upon<\/p>\n
    by the Tribunal for entertaining the applications under Section<\/p>\n
    9 of the MEPS Act. There is no dispute that the School did in<\/p>\n
    fact have recognition.\n<\/p>\n
                            ig Therefore, the only question that<\/p>\n
    remains is whether appointment of respondents was made as<\/p>\n
    per Section 5 of the MEPS Act and Rules made thereunder.\n<\/p>\n
    14.        There is no dispute that respondents No.2 in all the<\/p>\n
    three petitions were untrained and also that they belong to<\/p>\n
    backward    classes.   There     is also no doubt that these<\/p>\n
    respondents had completed their vacation B.Ed. courses after<\/p>\n
    their services were terminated.     It is the contention of the<\/p>\n
    learned counsel for the respondents that having deputed<\/p>\n
    respondents for Summer B.Ed. Course, the petitioner was<\/p>\n
    estopped from questioning appointments of the respondents on<\/p>\n
    the ground that they lacked training qualification. The learned<\/p>\n
    counsel for the petitioner submitted that the petitioner had<\/p>\n
    never recommended or deputed the respondents for vacation<\/p>\n
    B.Ed. Course, and that it may be the Head Master, who was<\/p>\n
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\n                                     13<\/span><\/p>\n
    hostile to Management, who might have recommended the<\/p>\n
    petitioner for vacation B.Ed.\n<\/p>\n
    15.       The learned counsel for the respondents submitted<\/p>\n
    that in fact the only defence raised by the petitioner before the<\/p>\n
    School Tribunal was about failure to obtain the Management’s<\/p>\n
    permission for B.Ed. Course. He submitted that Rule 25 of the<\/p>\n
    MEPS Rules does not require the Management’s consent for<\/p>\n
    such deputation and previous permission of the head is enough.\n<\/p>\n
    Rule 25(1) of the MEPS Rules may have absolutely no bearing<\/p>\n
    on deputation for obtaining essential training qualification.\n<\/p>\n
    Sub-rule (2) of the said Rule would make it clear that there<\/p>\n
    would be no question of a teacher lacking training qualification<\/p>\n
    at appointment seeking permission to pursue such a course.\n<\/p>\n
    He has to only intimate the Head of his intention to join such a<\/p>\n
    course.\n<\/p>\n
    16.       The    learned   counsel   for   the   respondents          next<\/p>\n
    submitted that the petitioner was estopped from questioning<\/p>\n
    lack of qualifications in the respondents and also their eligibility<\/p>\n
    to continue.    For this purpose, he relied on a number of<\/p>\n
    judgments.\n<\/p>\n
    17.       In Letters Patent Appeal No.85 of 2002 arising out of<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                   14<\/span><\/p>\n
    Writ Petition No.2433 of 2000 decided on 24-1-2003, a Division<\/p>\n
    Bench of this Court observed that the Government Resolution<\/p>\n
    dated 10-2-1994 had not been noticed by the learned Single<\/p>\n
    Judge, whereby the date for acquiring necessary qualification<\/p>\n
    had been extended to 1-6-1995 and that the teacher concerned<\/p>\n
    had acquired the necessary qualification in the month of July<\/p>\n
    1994.   Therefore, by consent, the judgment and order of the<\/p>\n
    learned Single Judge had been set aside.<\/p>\n
\n\n\n\n    18.        In   Shri\n                           \n                           Sant   Gajanan   Maharaj      Bahuuddeshiya\n                          \n    Shikshan   Prasarak     Mandal,    Khaparwada     and      another       v.\n\n<\/pre>\n
    Devendra Bhagwani Matode and others (Writ Petition No.1727<\/p>\n
    of 2007 decided on 8-10-2008), respondent No.1 was untrained<\/p>\n
    at the time of his employment or even till his termination.\n<\/p>\n
    Permission from the Education Department had not been<\/p>\n
    obtained before making his appointment. The School Tribunal<\/p>\n
    set aside the termination of the said teacher, who had been<\/p>\n
    deputed for B.Ed. Course by the Head Master without any<\/p>\n
    authority from the Management. This Court held that the last<\/p>\n
    appointment order of the respondent-teacher dated 19-6-1999<\/p>\n
    was for an year.       However, in 1998-2000, the respondent-\n<\/p>\n
    teacher had been given a deputation certificate for doing his<\/p>\n
    vacation B.Ed. Course with an undertaking dated 16-3-1998<\/p>\n
    that the respondent would be continued in service till the<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                  15<\/span><\/p>\n
    completion of his training course and thereafter he would be<\/p>\n
    absorbed in service upon completion of course. This Court held<\/p>\n
    that in the absence of plea of fraud, the Management was<\/p>\n
    bound by this deputation certificate and, therefore, refused to<\/p>\n
    set aside the order passed by the School Tribunal and<\/p>\n
    dismissed the Management’s petition.\n<\/p>\n
    19.       In Pralhad Vitthalrao Bhusari v. New Ideal Education<\/p>\n
    Society and others<\/a>, reported at 2005(2) Bom.C.R. 48, the Court<\/p>\n
    was considering a case similar to that in Shri Sant Gajanan<\/p>\n
    Maharaj     Bahuuddeshiya         Shikshan   Prasarak         Mandal,<\/p>\n
    Khaparwada and another v. Devendra Bhagwani Matode and<\/p>\n
    others (Writ Petition No.1727 of 2007 decided on 8-10-2008).\n<\/p>\n
    Since the deputation certificate had not been produced before<\/p>\n
    the School Tribunal, this Court remitted the matter back to the<\/p>\n
    School Tribunal for a fresh decision.\n<\/p>\n
    20.       In Dr. B.R. Ambedkar Samiti and another v. Ku. M.L.\n<\/p>\n
    Lonkar and others, reported at 2000(4) Mh.L.J. 507, the Court<\/p>\n
    was considering the case of untrained teacher whose services<\/p>\n
    were continued from year to year from 1986-86 to 1988-89.\n<\/p>\n
    The teacher had joined D.Ed. course for acquiring the requisite<\/p>\n
    qualification after obtaining permission from the Management.\n<\/p>\n
    The teacher had sought medical leave which had been granted.\n<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                        16<\/span><\/p>\n
    But when the teacher sought to join the duties at the end of the<\/p>\n
    leave period, she was told that her services were terminated,<\/p>\n
    contending that the teacher had failed to report for duties even<\/p>\n
    after the expiry of the leave period. The teacher had claimed<\/p>\n
    that she had sought extension of medical leave by a letter sent<\/p>\n
    under certificate of posting. The Tribunal held that there was a<\/p>\n
    presumption        that   the   letter    was    duly   served       upon      the<\/p>\n
    Management. The Tribunal also held that one month’s notice<\/p>\n
    as required under Rule 28 of the MEPS Rules was not given and,<\/p>\n
    therefore, set aside the order of termination. This Court upheld<\/p>\n
    the order of the Tribunal observing that contrary to the<\/p>\n
    requirements of the Rules, there could be no condition<\/p>\n
    stipulating that the services of the employee                         could be<\/p>\n
    terminated without notice.\n<\/p>\n
    21.         The learned counsel for the petitioner submitted that<\/p>\n
    none of these judgments would be applicable since there is<\/p>\n
    nothing to show that the respondents had ever been deputed<\/p>\n
    by the petitioner for Vacation B.Ed. Courses. According to him,<\/p>\n
    all that the respondents have relied on is an experience<\/p>\n
    certificate issued by the Secretary of the Management. There<\/p>\n
    is    no   undertaking     by    the     Management        to    employ        the<\/p>\n
    respondents or to continue them till they completed their B.Ed.\n<\/p>\n
    Course.       He     submitted     that    the    petitioner      had     simply<\/p>\n
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\n                                   17<\/span><\/p>\n
    terminated the services of the respondents as per Rule 28 of<\/p>\n
    the MEPS Rules, as the term of their appointments had come to<\/p>\n
    an end. He submitted that the only question which the Tribunal<\/p>\n
    was entitled to examine was whether this termination was<\/p>\n
    invalid.\n<\/p>\n
    22.         The learned counsel for the respondents submitted<\/p>\n
    that in Renukacharya Prathamik Shala v. Shanta Bhimrao Patil<\/p>\n
    and others, reported at 1998 I CLR 72, a Division Bench of this<\/p>\n
    Court held that a teacher, who had put in ten years of service<\/p>\n
    and   had    in   the   meantime   acquired   requisite        training<\/p>\n
    qualification was rightly ordered to be reinstated by the School<\/p>\n
    Tribunal and that the services of such teacher could not be<\/p>\n
    terminated under Rule 28 of the MEPS Rules.\n<\/p>\n
    23.         I have carefully considered these submissions. First,<\/p>\n
    in these cases, there is nothing to show that the Management<\/p>\n
    had ever undertaken to continue to employ the respondent-\n<\/p>\n
    teachers after they complete their B.Ed. Course. Secondly, the<\/p>\n
    Government Resolution dated 10-2-1994, which extended the<\/p>\n
    time for acquisition of training qualification to untrained<\/p>\n
    teachers, would not apply to the respondents, since the<\/p>\n
    respondents had not been appointed before 10-2-1989.                This<\/p>\n
    extension was granted in terms of Rule 6 of the MEPS Rules,<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                     18<\/span><\/p>\n
    where a proviso was inserted for enabling untrained teachers to<\/p>\n
    obtain prescribed training qualification at their own costs before<\/p>\n
    1-6-1987.     Thus,    the   responsibility     to   obtain        training<\/p>\n
    qualification even in respect of teachers, who were already in<\/p>\n
    employment before the MEPS Rules came into force or before<\/p>\n
    10-2-1989, was on the teachers themselves and there was no<\/p>\n
    responsibility on the Management to get them trained. In order<\/p>\n
    to overcome     the   paucity    of   trained   teachers      if   certain<\/p>\n
    concessions were given, they could not be used by untrained<\/p>\n
    teachers to insist that irrespective of their not being qualified,<\/p>\n
    they should be continued because they had subsequently<\/p>\n
    obtained training qualification. In any case, it has to be stated<\/p>\n
    again that the respondents in these cases completed their B.Ed.\n<\/p>\n
    Course only after their termination.      The question of estoppel<\/p>\n
    could have been raised in appropriate case, if the Management<\/p>\n
    had held out a promise to the teacher concerned that he would<\/p>\n
    be continued to be employed during and after the completion of<\/p>\n
    B.Ed. or D.Ed. Course.   The authorities in the State had been<\/p>\n
    insisting upon the Managements to give an undertaking to<\/p>\n
    continue such candidates in their Schools during the period in<\/p>\n
    which the concerned teachers were to complete their B.Ed.\n<\/p>\n
    Course probably because the State did not want seats in such<\/p>\n
    Vacation B.Ed. Course to be blocked by the persons, who were<\/p>\n
    teachers only in the name-sake for the purpose of by-passing<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                  19<\/span><\/p>\n
    the admission procedure to regular B.Ed. Course.           Therefore,<\/p>\n
    such insistence by the State while approving deputation to<\/p>\n
    B.Ed. Course cannot to be invoked by the teachers themselves<\/p>\n
    to claim a right to hold the post for which they were not<\/p>\n
    qualified. Therefore, all the arguments of the learned counsel<\/p>\n
    for the respondents in this behalf have to be rejected. At the<\/p>\n
    cost of repetition, it has to be pointed out that the respondents<\/p>\n
    have not filed on record any such undertaking by the<\/p>\n
    Management that the respondents would be continued to be<\/p>\n
    employed by the Management during or after completion of<\/p>\n
    their B.Ed. Course.\n<\/p>\n
    24.       This takes me to the question about the status of the<\/p>\n
    respondents as persons not holding the requisite qualification<\/p>\n
    at the time of their appointment.\n<\/p>\n
    25.       The learned counsel for the respondent-teachers also<\/p>\n
    relied on a judgment of this Court in Writ Petition No.631 of<\/p>\n
    1993 delivered on 23-4-1993, where the Court observed that it<\/p>\n
    could not be forgotton that under Clause 59 of the Secondary<\/p>\n
    School Code, an untrained teacher was also eligible to be<\/p>\n
    appointed, subject to his obtaining training qualification within a<\/p>\n
    period of five years from the date of appointment.\n<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                       20<\/span><\/p>\n
    26.           Applicability of Clause 59 of the Secondary School<\/p>\n
    Code after MEPS Act and Rules came into force is doubtful.\n<\/p>\n
    Only if a matter is not covered by any provisiion of MEPS Act or<\/p>\n
    Rules could one resort to the Secondary School Code for<\/p>\n
    guidance. Under the MEPS Act, and particularly Schedule B of<\/p>\n
    the Rules, there is no question of an untrained person being<\/p>\n
    eligible to appointment.      Since as a fact, there may be some<\/p>\n
    untrained teachers in a School, they have been dealt with in<\/p>\n
    result   in    amendment<\/p>\n
    Schedule F about fixation of seniority. Such inclusion does not<\/p>\n
                                 to    Schedule        B,     which       prescribes<\/p>\n
    qualifications for various categories of teachers.\n<\/p>\n
    27.           The learned counsel for the petitioner submitted that<\/p>\n
    the   respondents      had   not       been   appointed          by     following<\/p>\n
    prescribed      procedure    of    issuing    an        advertisement           and<\/p>\n
    subjecting them to a selection process. He also submitted that<\/p>\n
    the respondents were admittedly untrained at the time of their<\/p>\n
    appointment and, therefore, could not be said to have been<\/p>\n
    appointed in accordance with Section 5 of the MEPS Act and<\/p>\n
    hence their services are liable to be terminated.                        For this<\/p>\n
    purpose, he relied on a judgment of this Court in Priyadarshini<\/p>\n
    Education Trust and others v. Ratis (Rafia) Bano<\/a> d\/o Abdul<\/p>\n
    Rasheed and others, reported at 2007(6) Mh.L.J. 667, in which<\/p>\n
    the Court has observed as under :\n<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                    21<\/span><\/p>\n
    “Para 12 :…In view of the provisions as contained in section 5<\/p>\n
    of the MEPS Act and Rule 9 of MEPS Rules read with Articles 14<\/p>\n
    and 16 of the Constitution and the observations of the Hon’ble<\/p>\n
    Apex Court in the reported judgment which guide us, we draw<\/p>\n
    following conclusions;\n<\/p>\n
           (i)    “duly appointed, in the manner prescribed” would<\/p>\n
           be     an   appointment      of   a person        who     is    eligible<\/p>\n
           (qualified for the post) for appointment, who is selected<\/p>\n
           by due process of selection i.e. by competition amongst<\/p>\n
           all    eligible   and desirous     candidates,        and who is<\/p>\n
           appointed on a permanent vacant post.                          In other<\/p>\n
           words,      inviting   applications,         as     also        holding<\/p>\n
           of screening tests, enabling all eligible and desirous<\/p>\n
           candidates        to   compete         for        selection         and<\/p>\n
           appointment, is a must.\n<\/p><\/blockquote>\n
           (ii)   Once an eligible candidate (duly qualified as<\/p>\n
           required) is selected by selection process as above,<\/p>\n
           for filling in a permanent vacancy, there is no option<\/p>\n
           for the management and it is obligatory on it to<\/p>\n
           appoint such person on probation for a period of two<\/p>\n
           years.      It is neither open for the management to<\/p>\n
           appoint him for one academic year or                     any period<\/p>\n
           shorter than two years probation period, nor it is<\/p>\n
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\n                                  22<\/span><\/p>\n
           open for Education Officer to grant approval for such<\/p>\n
           shorter period. [in fact, in view of the requirement as in<\/p>\n
           clause (I) above, the process of grant of approval<\/p>\n
           by Education Officer should begin with examination<\/p>\n
           of selection process and its validity.]<\/p>\n<\/blockquote>\n
           (iii) The candidate thus selected with due process and<\/p>\n
           appointed on probation shall enjoy status of deemed<\/p>\n
           permanency     on   completion   of   two       years,      unless<\/p>\n
           extension of probation is informed, or termination is<\/p>\n
           ordered.\n<\/p><\/blockquote>\n
           (iv) The appointment of a person not belonging to<\/p>\n
           reserved category, in a post reserved for a particular<\/p>\n
           category,   because the candidate of that category is<\/p>\n
           not available, shall be absolutely temporary and on<\/p>\n
           an year to year basis,      governed by sub-rule (9) of<\/p>\n
           Rule 9, although in a permanent vacancy.”\n<\/p><\/blockquote>\n
    In view of this judgment of Division Bench, there can be no<\/p>\n
    doubt that even for filling up a vacancy from open category, an<\/p>\n
    advertisement would have to be issued. Contrary view taken<\/p>\n
    by the learned Single Judges in Nita Ramesh Danane v.\n<\/p>\n
    Dombivali Mitra Mandal and others, reported at 2009(1) Mh.L.J.\n<\/p>\n
    796, and Jagdamba Education Society, Nagpur v. Rajendra s\/o<\/p>\n
    Baburao Golhar and others, reported at 2009(2) Mh.L.J. 522,<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                   23<\/span><\/p>\n
    cannot be followed. In any case, respondents No.2 in the three<\/p>\n
    petitions do not belong to open category and, therefore, for<\/p>\n
    filling up those vacancies, an advertisement was must.\n<\/p>\n
    28.       The learned counsel for the respondents\/teachers<\/p>\n
    relied on the following judgments, to support his contention<\/p>\n
    that the respondents\/teachers were validly appointed and that<\/p>\n
    their services could not be terminated.\n<\/p>\n
    29A.\n<\/p>\n
              In Writ Petition No.604 of 1993 decided on 4-3-1993<\/p>\n
    (Anjuman Faroh-E Taleem and another v. Hafizul Rehman Abdul<\/p>\n
    Hamid), the respondent-teacher was appointed as a honourary<\/p>\n
    teacher on 1-10-1985 and continued from year to year.              His<\/p>\n
    services were terminated on 30-3-1990.         On appeal, the<\/p>\n
    Tribunal set aside the order of termination and directed<\/p>\n
    payment of difference of emoluments as also reinstatement.\n<\/p>\n
    The respondent was an untrained teacher having only the<\/p>\n
    qualification of S.S.C.   The Management contended that since<\/p>\n
    the teacher did not have D.Ed. qualification, he could not be<\/p>\n
    reinstated.       Relying    on    a   Government       Resolution<\/p>\n
    dated 20-7-1990, the Division Bench directed the petitioner to<\/p>\n
    give necessary facilities and permission to the respondent to<\/p>\n
    complete D.Ed. Course by correspondence and reduced the<\/p>\n
    entitlement to previous emoluments payable to the teacher to<\/p>\n
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\n                                      24<\/span><\/p>\n
    50%.\n<\/p>\n
    29B.          In Shrawan Kumar Jha and others v. State of Bihar<\/p>\n
    and others, (Civil Appeals Nos.S321-22 of 1990) decided by the<\/p>\n
    Supreme Court, the Court was considering the appeals by 175<\/p>\n
    teachers, who were supposed to have their qualifications<\/p>\n
    verified before joining the service.       Their appointments had<\/p>\n
    been subsequently cancelled.          The Supreme Court held that<\/p>\n
    they should be heard before giving a finding as to whether the<\/p>\n
    appellants were validly appointed as Assistant Teachers.\n<\/p>\n
    29C.          The learned Single Judge of this Court in Jagdamba<\/p>\n
    Education Society, Nagpur v. Rajendra s\/o Baburao Golhar and<\/p>\n
    others, reported at 2009(2) Mh.L.J. 522, where too even after<\/p>\n
    noticing the judgment of the Division Bench in Priyadarshini<\/p>\n
    Education Trust and others v. Ratis (Rafiq) Bano d\/o Abdul<\/p>\n
    Rasheed and others, reported at 2007(6) Mh.L.J. 667, this Court<\/p>\n
    held   that    the   procedure   prescribed   for     the     purpose        of<\/p>\n
    recruitment would be applicable only to those Institutions,<\/p>\n
    which are admitted to grant-in-aid and not to the Institutions,<\/p>\n
    which are not admitted to grant-in-aid. It is doubtful whether<\/p>\n
    such distinction between the Schools admitted to grant-in-aid<\/p>\n
    and the Schools not getting grant-in-aid could be still made<\/p>\n
    after the pronouncement by this Court that for the purpose of<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                    25<\/span><\/p>\n
    the MEPS Act and particularly invoking the jurisdiction of the<\/p>\n
    School Tribunal, the question as to whether the Schools get<\/p>\n
    grant-in-aid or not is relevant.      Therefore, the procedure<\/p>\n
    prescribed   including   the    requirement   of    publishing        an<\/p>\n
    advertisement, which has been highlighted by the Division<\/p>\n
    Bench in Priyadarshini Education Trust will have to be followed.\n<\/p>\n
    This is particularly so because in the scheme of things, a<\/p>\n
    School, which does not get grant-in-aid in initial stages is<\/p>\n
    gradually admitted to grant-in-aid, as has happened even in the<\/p>\n
    present case.\n<\/p>\n
    29D.      In National Education Society’s High School and<\/p>\n
    Junior College v. Mrs. Lulomool Monachary,<\/a> reported at 1987(2)<\/p>\n
    Bom.C.R. 621, on which the learned counsel for the respondent-\n<\/p>\n
    teachers placed reliance, on facts, the Court came to the<\/p>\n
    conclusion that the appointment of teacher concerned could not<\/p>\n
    be said to be in a temporary vacancy, since she had been<\/p>\n
    appointed by a vacancy created by exit of a person holding the<\/p>\n
    permanent post.   Such are not the facts in the present case.\n<\/p>\n
    Till the School received permanent recognition, there would be<\/p>\n
    no question of there being a permanent vacancy.\n<\/p>\n
    30.       The learned counsel for the petitioners submitted<\/p>\n
    that reliance on these judgments by the learned counsel for the<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                  26<\/span><\/p>\n
    respondents\/teachers would not alter the fact that there was<\/p>\n
    nothing to show that the respondents were duly appointed,<\/p>\n
    which burden was on the respondents and no amount of case<\/p>\n
    law could relieve them of this burden. He placed reliance on a<\/p>\n
    judgment of this Court in Rayat Shikshan Sanstha and another<\/p>\n
    v. Yeshwant Dattatraya Shinde [2009(6) Mh.L.J. 476], in which it<\/p>\n
    has been observed as under :\n<\/p>\n
    “Para 3 : Admittedly there is no evidence on record that the<\/p>\n
    appointment of the respondent was made after following the<\/p>\n
    procedure laid down in the M.E.P.S. Act and Rules. The Tribunal<\/p>\n
    has came to a conclusion that the said appointment was made<\/p>\n
    on   a   clear   and   permanent   vacancy.       Admittedly,         no<\/p>\n
    advertisement was issued, nor any interview was held and, as<\/p>\n
    such, cannot be said that the appointment was made on a clear<\/p>\n
    and permanent post.       The Tribunal, however, came to the<\/p>\n
    conclusion that the appointment was made on a clear and<\/p>\n
    permanent vacancy because the management was not in a<\/p>\n
    position to produce the relevant material on record.             In my<\/p>\n
    view, the burden of establishing that the appointment was<\/p>\n
    made on a clear and permanent post that too after following<\/p>\n
    the procedure laid down under the Act and Rules, is squarely<\/p>\n
    on the Appellant and not on the management.           The Tribunal,<\/p>\n
    therefore, in my view, committed an error of law, which is<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                  27<\/span><\/p>\n
    apparent on a face of record. ”\n<\/p>\n
    In view of this, the learned counsel for the petitioner submitted<\/p>\n
    that it was for the respondents to show that they had been<\/p>\n
    appointed on clear and permanent vacancies after issuing<\/p>\n
    appropriate advertisement, which they had not done.\n<\/p>\n
    31.       In view of the pronouncement of the Division Bench<\/p>\n
    in Priyadarshini Education Trust and others v. Ratis (Rafia) Bano<\/a><\/p>\n
    d\/o Abdul Rasheed and others, reported at 2007(6) Mh.L.J. 667,<\/p>\n
    for claiming protection, an employee has to be duly appointed,<\/p>\n
    i.e. only if he is eligible and qualified for holding the post.\n<\/p>\n
    There is no doubt that B.Ed. degree is the prescribed<\/p>\n
    qualification for the posts on which respondents No.2 were<\/p>\n
    appointed. They did not possess this qualification. In face of<\/p>\n
    this judgment of Division Bench, reliance by the learned<\/p>\n
    counsel for respondents No.2 on unreported judgment of this<\/p>\n
    Court in Writ Petition No.631 of 1993 delivered on 23-4-1993<\/p>\n
    and Rule 59 of the Secondary School Code would not help<\/p>\n
    respondents No.2.\n<\/p>\n
    32.       The judgment of Supreme Court in Pramod Kumar v.\n<\/p>\n
    U.P. Secondary Education Services Commission and others,<\/p>\n
    reported at (2008) 7 SCC 153, cited by the learned counsel for<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                    28<\/span><\/p>\n
    the petitioners, would clear all doubts in the matter. A person<\/p>\n
    who does not possess requisite qualification would not be<\/p>\n
    entitled to claim any right.\n<\/p>\n
    33.       The Supreme Court held that lack of essential<\/p>\n
    qualification was an illegality, which could not be cured. In that<\/p>\n
    case, the qualifications prescribed required the person to hold<\/p>\n
    B.Ed. degree. The teacher held B.Ed. degree from an Institution<\/p>\n
    which was not recognized by UGC.       He was asked to acquire<\/p>\n
    B.Ed. degree from a recognized University within a period of<\/p>\n
    two years by letter dated 18-2-1993. The teacher obtained a<\/p>\n
    degree by undertaking a correspondence course. The teacher<\/p>\n
    filed a writ petition before the High Court complaining of non-\n<\/p>\n
    payment of salary. The High Court directed payment of salary.\n<\/p>\n
    A contempt petition was filed.      Thereafter, the Management<\/p>\n
    started a departmental enquiry on the ground that the<\/p>\n
    petitioner had obtained appointed on the basis of a false and<\/p>\n
    fabricated B.Ed. degree and the services of the teacher were<\/p>\n
    terminated by order dated 12-2-1997.      The teacher’s petition<\/p>\n
    was dismissed by the High Court on 9-3-1997.           The Division<\/p>\n
    Bench dismissed the appeal of the teacher and, therefore, the<\/p>\n
    teacher approached the Supreme Court.        In this context, the<\/p>\n
    Court held that the teacher concerned should have had<\/p>\n
    requisite qualification at the time of his appointment and,<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                  29<\/span><\/p>\n
    therefore, dismissed the appeal.\n<\/p>\n
    34.       The learned counsel for the petitioner submitted that<\/p>\n
    in face of this judgment of the Supreme Court, there is<\/p>\n
    absolutely no doubt that the respondents could not have been<\/p>\n
    continued as they did not hold requisite qualification.\n<\/p>\n
    35.       In Maharashtra Seva Sangh, Solapur and another v.\n<\/p>\n
    Shaikh Jamalchand and another, reported at 2009(4) Mh.L.J.\n<\/p>\n
    198, on which the learned counsel for the petitioner relied on, a<\/p>\n
    learned Single Judge of this Court was considering the question<\/p>\n
    of deemed permanency.        In that case, the respondent held<\/p>\n
    degrees of MA (Sociology) and MA (Political Science) at the time<\/p>\n
    of his appointment on 5-7-1990 on clock hour basis.                  His<\/p>\n
    appointment was approved by the Education Officer on<\/p>\n
    30-3-1991 only by one year by relaxing the condition of having<\/p>\n
    B.Ed. qualification. By order dated 11-6-1991, the respondent<\/p>\n
    was appointed as full time teacher for a period of two years on<\/p>\n
    probation with effect from 15-6-1992. However, the Education<\/p>\n
    Officer granted approval only for one year and refused approval<\/p>\n
    for the next academic year on the ground that the respondent<\/p>\n
    was an untrained teacher.       In 1992-93, the respondent had<\/p>\n
    taken admission for B.Ed. course and acquired the said<\/p>\n
    qualification on   24-8-1995.     He was continued as part time<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                     30<\/span><\/p>\n
    teacher even in 1995-96, since after refusal of approval of the<\/p>\n
    Education Officer, he had been so appointed. In para 8 of the<\/p>\n
    judgment, the learned Single Judge held that in order to claim<\/p>\n
    benefit of deemed permanency under sub-section (2) of<\/p>\n
    Section 5 of the MEPS Act, a person must have been appointed<\/p>\n
    on permanent vacancy, must possess qualifications prescribed<\/p>\n
    under Rule 6 read with Schedule B of the MEPS Rules, and the<\/p>\n
    appointment must have been made in the manner prescribed,<\/p>\n
    that is after due process of selection. The Court held that the<\/p>\n
    power to relax the qualification under Rule 6 was restricted to<\/p>\n
    teachers in Secondary Schools and, therefore, refused to apply<\/p>\n
    relaxation to the respondent, who was a teacher in the Junior<\/p>\n
    College. Similar view was taken by the learned Single Judge in<\/p>\n
    Sawale Motiram Shridhar v. Maharashtra Seva Sangh, Solapur<\/p>\n
    and others<\/a>, reported at 2009(4) Mh.L.J. 233.\n<\/p>\n
    36.        In Jaimala Bhaurao Ramteke v. Presiding Officer,<\/p>\n
    School Tribunal, Nagpur and others<\/a>, reported at 2009(5) Mh.L.J.\n<\/p>\n
    333, on which reliance is placed by the learned counsel for the<\/p>\n
    petitioner, a learned Single Judge of this Court held that while<\/p>\n
    filling up a permanent vacancy, the procedure prescribed must<\/p>\n
    be    followed   scrupulously   and   that   when   the     School       is<\/p>\n
    recognized on an year-to-year basis, appointments of the<\/p>\n
    teachers would be approved by the Education Department only<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                    31<\/span><\/p>\n
    for the particular year during which the School had recognition.\n<\/p>\n
    After considering several judgments, the Court ruled that mere<\/p>\n
    approval by the Education Officer does not cure the illegality or<\/p>\n
    irregularity in the appointment.\n<\/p>\n
    37.       Since the respondents belong to the backward<\/p>\n
    classes   and   since    one   of   the    respondents      also     claim<\/p>\n
    accommodation in the woman’s quota, it is obvious                 that an<\/p>\n
    advertisement was mandatory in view of the judgment of the<\/p>\n
    Division Bench in Priyadarshini Education Trust. In view of this,<\/p>\n
    reliance by the learned counsel for the respondents on the<\/p>\n
    judgment in Nita Ramesh Danane v. Dombivali Mitra Mandal<\/p>\n
    and others<\/a>, reported at 2009(1) Mh.L.J. 796, is misplaced.                In<\/p>\n
    that case, even after noticing the judgment in Priyadarshini<\/p>\n
    Education Trust and others v. Ratis (Rafia) Bano<\/a> d\/o Abdul<\/p>\n
    Rasheed and others, reported at 2007(6) Mh.L.J. 667, the Court<\/p>\n
    observed that there was no requirement for advertising a post<\/p>\n
    in open category and that the employee had applied for a post<\/p>\n
    which was not a reserved post, since it was an isolated post<\/p>\n
    and, therefore, allowed the employee’s petition. It is not shown<\/p>\n
    that the respondents had been appointed after any such<\/p>\n
    selection process.      Further since the orders of appointments<\/p>\n
    were themselves for a limited period, they could not claim that<\/p>\n
    they   had   been    appointed      on    probation   or     that     their<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                  32<\/span><\/p>\n
    appointments     had,   therefore,   fructified     into      permanent<\/p>\n
    appointments. In fact, the learned counsel for the respondent-\n<\/p>\n
    teachers submitted that there was no case of deemed<\/p>\n
    permanency or no deeming status of probation claimed by the<\/p>\n
    respondents. All that they claimed was continuation in service<\/p>\n
    and that their services should not be terminated.\n<\/p>\n
    38.       The learned counsel for the respondents also placed<\/p>\n
    reliance on a judgment of this Court in Hindi Vidya Bhavan,<\/p>\n
    Mumbai and others v. Presiding of<\/a>ficer, School Tribunal,<\/p>\n
    Mumbai and others [2007(6) Mh.L.J. 563].               The Court was<\/p>\n
    dealing with a case of a wholesale departure by a Management<\/p>\n
    by resorting to contract workers. Hence, this judgment is not<\/p>\n
    applicable to the present case.\n<\/p>\n
    39.       The learned counsel for the respondent-teachers has<\/p>\n
    placed reliance on my judgment in Janta Education Society and<\/p>\n
    another v. Prakash Babarao Shingane and another [2010(1)<\/p>\n
    Mh.L.J. 329], in which has been held as under :\n<\/p>\n
    “Para 2 : Facts, which are material for deciding this petition,<\/p>\n
    are as under :\n<\/p>\n
              Respondent No.1 was M.Com., B.P.Ed. when he was<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                  33<\/span><\/p>\n
    first appointed in a Junior College on 2-8-1985 on a fixed salary<\/p>\n
    of Rs.250\/- per month for a period up to 30-6-1986.                     His<\/p>\n
    appointment was approved by the Deputy Director of Education<\/p>\n
    for the subjects of Commerce and Physical Education on a pay<\/p>\n
    scale of Rs.250-450\/- for the Academic Session 1985-86. This<\/p>\n
    appointment was continued by another order dated 28-6-1986<\/p>\n
    on a fixed pay of Rs.500\/- for the Academic Session from 1-7-\n<\/p>\n
    1986 to 8-5-1987.     This too was approved by the Deputy<\/p>\n
    Director of Education for the Academic Session 1986-97. There<\/p>\n
    is a dispute about the next appointment order dated 9-7-1987.\n<\/p>\n
    According to the petitioners, respondent No.1 was appointed by<\/p>\n
    order dated 9-7-1987 on a clock-hour basis for the period from<\/p>\n
    9-7-1987 to 24-3-1988.       By order dated 17-10-1988, the<\/p>\n
    Deputy Director of Education approved this appointment on a<\/p>\n
    clock-hour basis at the rate of Rs.12\/- per hour with effect from<\/p>\n
    9-7-1987 till the end of the Academic Session 1987-88.\n<\/p>\n
    However, according to respondent No.1, this order was<\/p>\n
    fabricated and in fact he was appointed from 9-7-1987 to 8-7-\n<\/p>\n
    1987 in a clear vacancy. Respondent No.1 relies on a undated<\/p>\n
    order signed by the President of the Society, which does not<\/p>\n
    mention any pay scale, whereas the petitioners rely on an<\/p>\n
    order signed by the Principal of the College.”\n<\/p>\n
              After considering several judgments, it was held :\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                 34<\/span><\/p>\n
    “Para   24:    I   have   considered   these      erudite       judicial<\/p>\n
    pronouncements. I have serious doubts if the findings of the<\/p>\n
    Apex Court, in not one, but two judgments, after nothing the<\/p>\n
    provisions of section 5 of the MEPS Act, could be ignored and it<\/p>\n
    could still be held that an appointment in a clear vacancy must<\/p>\n
    be on probation. The order of appointment, which was under<\/p>\n
    consideration of the Apex Court in Hindustan Education Society<\/p>\n
    and another vs. Sk. Kaleem Sk. Gulam Nagi and others has<\/p>\n
    already been quoted in preceding paras.             Teachers, who<\/p>\n
    appointment was question in Bharatiya Gramin Purnarrachana<\/p>\n
    Sanstha vs. Vijay Kumar and others<\/a>, was selected and<\/p>\n
    appointed after following procedure for two years in a clear<\/p>\n
    vacancy.   Yet, the Supreme Court in these two cases did not<\/p>\n
    hold that the appointments must be held to have been made on<\/p>\n
    probation. It may be audacious for me to ignore this and yet<\/p>\n
    follow contrary findings, which could be reconciled only by<\/p>\n
    distinguishing between a clear vacancy and a permanent<\/p>\n
    vacancy.   Every clear vacancy need not be mistaken for a<\/p>\n
    permanent vacancy. When a new School starts, teachers will<\/p>\n
    have to be appointed even before students are enrolled. Such<\/p>\n
    appointments would obviously be in clear but temporary<\/p>\n
    vacancies, since no one would be able to predict if the School<\/p>\n
    would succeed or fail.”\n<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span>
\n                                  35<\/span><\/p>\n
    40.        This position has been considered again in Writ<\/p>\n
    Petition   No.3834     of   2002      decided       on       26-3-2010<\/p>\n
    (Chandrashekhar s\/o Dhaniram Patel v. Navshakti Vidyalaya<\/p>\n
    and others) and different view was not found to be warranted.\n<\/p>\n
    41.        In view of this, since the appointments of the<\/p>\n
    respondents were for a limited period, and were not shown to<\/p>\n
    pursuant   to   an<\/p>\n
    have been made by following the prescribed period of selection<\/p>\n
                         advertisement,   and   mainly,         since      the<\/p>\n
    respondents did not possess the requisite qualification at the<\/p>\n
    time of appointments, the School Tribunal was not justified in<\/p>\n
    ordering the respondents’ reinstatement or granting them<\/p>\n
    continuity in service, though the Management could always<\/p>\n
    consider whether these respondents could be continued on<\/p>\n
    existing vacancies, since they are serving for almost 18 years<\/p>\n
    now, and have also acquired requisite training qualification.\n<\/p>\n
    42.        In view of this, the petitions are allowed.                 The<\/p>\n
    impugned judgments are quashed and set aside.\n<\/p>\n
                                              JUDGE.\n<\/p>\n
    Pdl.\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:49:17 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Vidya Bharti Shikshan Sanstha vs Presiding Officer on 8 April, 2010 Bench: R. C. Chavan 1 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, […]<\/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-127114","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nVidya Bharti Shikshan Sanstha vs Presiding Officer on 8 April, 2010 - 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\/vidya-bharti-shikshan-sanstha-vs-presiding-officer-on-8-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vidya Bharti Shikshan Sanstha vs Presiding Officer on 8 April, 2010 - 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