{"id":161520,"date":"2009-03-21T00:00:00","date_gmt":"2009-03-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/maharashtra-seva-sangh-vs-shri-shaikh-jamalchand-on-21-march-2009"},"modified":"2017-10-25T20:28:27","modified_gmt":"2017-10-25T14:58:27","slug":"maharashtra-seva-sangh-vs-shri-shaikh-jamalchand-on-21-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/maharashtra-seva-sangh-vs-shri-shaikh-jamalchand-on-21-march-2009","title":{"rendered":"Maharashtra Seva Sangh vs Shri Shaikh Jamalchand on 21 March, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Maharashtra Seva Sangh vs Shri Shaikh Jamalchand on 21 March, 2009<\/div>\n
Bench: D.B.Bhosale<\/div>\n
                                 :1:\n\n\n\n\n             IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                   CIVIL APPELLATE JURISDICTION\n\n                     WRIT PETITION NO.5556 OF 1999\n\n\n\n\n                                                                      \n    1. Maharashtra Seva Sangh\n\n\n\n\n                                              \n    Mashall Vasti, Jaykumar Nagar,\n    Vijapur Road, Solapur,\n    (through its Secretary),             ..\n\n    2. The Principal,\n\n\n\n\n                                             \n    Shree Nutan Prashala Junior\n    College, Mashaal Vasti,\n    Jaykumar Nagar, Vijapur Road,\n    Solapur                              .. Petitioners.\n\n\n\n\n                                  \n               Vs.\n\n    1. Shri Shaikh Jamalchand\n\n    Room Nos.12 and 13,\n                       \n    resident of Block No.2,\n\n    Keshav Nagar Police Line,\n    Solapur                              ..\n                      \n    2. The Deputy Director of\n    Education, Pune Region,\n    Dr.Ambedkar Road,\n    Pune - 17.                           .. Respondents.\n      \n\n\n    Mr.T.D.Deshmukh for the petitioners.\n   \n\n\n\n    Mr.S.G.Kudle for respondent no.1.\n    Mr.Chinchlikar AGP for the State.\n\n\n               CORAM : D.B.BHOSALE, J.\n<\/pre>\n
               DATED : 21ST MARCH, 2009.\n<\/p>\n
    ORAL JUDGMENT:\n<\/p>\n
    .         This    writ petition under Article 226 and 227<\/p>\n
    of   the Constitution of India is directed against the<\/p>\n
    judgment    and order dated 8.9.1999 in appeal No.70 of<\/p>\n
    1997   rendered     by the Presiding Officer,           Additional<\/p>\n
    School    Tribunal, Pune Region, Solapur.           The      appeal,<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:26:29 :::<\/span>
\n                                      :2:<\/span><\/p>\n
    filed   by   respondent      no.1 under section             9    of     the<\/p>\n
    Maharashtra     Employees of Private School               (Conditions<\/p>\n
    of   Service) Regulation, Act (for short “MEPS                     Act”),<\/p>\n
    challenging     his termination has been allowed by                     the<\/p>\n
    Tribunal.      The    operative        portion of     the       impugned<\/p>\n
    judgment reads thus:\n<\/p>\n
             .           Appeal is allowed as under.\n\n             .       The orders of reducing the appellant\n\n\n\n\n                                      \n<\/pre>\n
             from full time teacher to part time teacher
\n             and from part time teacher to teacher on
\n             Clock Hour Basis issued      by the    Deputy<\/p>\n
             Director of Education and Respondent No.1 are
\n             hereby declared illegal and are quashed and
\n             set aside.\n<\/p>\n
             .        Appellant is restored to full time
\n             teacher in Higher Secondary School by name
\n             Shree Nutan Prashala Jr.College, Solapur,
\n             since 1.4.1994.     He is    entitled to get
\n             salaries    as a full     time teacher   from
\n             1.4.1994, till he is restored as a full time<\/p>\n
             lecturer.    Respondents are directed to pay
\n             the salary with effect from 1.4.1994 within<\/p>\n
             the period of three months and further they
\n             are directed to allow the appellant to join
\n             his duties as a full time teacher in Shree
\n             Nutan Prashala Jr.College, Solapur run by
\n             Respondent No.1 immediately.\n<\/p>\n
             .           No order as to costs.\"\n\n\n\n\n\n    2.       The    facts that are relevant and necessary to\n\n<\/pre>\n
    decide the questions raised in this petition are that<\/p>\n
    respondent     No.1, who, at the relevant time, was only<\/p>\n
    MA   (Sociology)      and   MA     (Political       Science),           was<\/p>\n
    initially       appointed         on        5.7.1990         by         the<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:26:29 :::<\/span>
\n                                        :3:<\/span><\/p>\n
    petitioner-institution            in     their Junior         College         on<\/p>\n
    clock hour basis.        Admittedly he was not holding B.Ed<\/p>\n
    qualification,        which is prescribed under Rule 6 read<\/p>\n
    with    Schedule      B-III of MEPS Rules.             On 30th         March,<\/p>\n
    1991,     respondent        no.2    –     Education       Officer           had<\/p>\n
    approved    the appointment of respondent no.1 only for<\/p>\n
    one    year by relaxing the condition of qualification.\n<\/p>\n
    On    11.6.1991, respondent no.1 was appointed as                         full<\/p>\n
    time     teacher      for    sociology          with      effect          from<\/p>\n
    19.6.1991.      On 11.6.1992, he was once again appointed<\/p>\n
    on<\/p>\n
    for a period of two years (i.e.\n<\/p>\n
          probation with effect from 15.6.1992.\n<\/p>\n
                                                    1992-93 and 1993-94)<\/p>\n
                                                                    Respondent<\/p>\n
    No.2,    however, approved his appointment only for one<\/p>\n
    year    i.e.    for 1992-93.        Respondent No.1             thereafter<\/p>\n
    was    refused approval for academic year 1993-94                         vide<\/p>\n
    order    dated    5.10.1994        on the ground          that       he     was<\/p>\n
    untrained      teacher.       Respondent No.1 was once                  again<\/p>\n
    refused    approval      for the year 1994-95 on                 the      same<\/p>\n
    ground     vide      letter    dated          20.3.1995       issued          by<\/p>\n
    respondent      no.2 – Education Officer.               On      23.3.1995,<\/p>\n
    respondent      no.1    informed         to     respondent         no.2       in<\/p>\n
    writing that he is ready to work as part time teacher<\/p>\n
    since     he     was        not        holding       the        prescribed<\/p>\n
    qualification.         Respondent         No.2,    however,          granted<\/p>\n
    approval    only for the year 1994-95 with effect                         from<\/p>\n
    13.6.1995       as    part    time        teacher.        In       1992-93,<\/p>\n
    respondent      no.1 had taken admission for B.Ed                      course<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:26:29 :::<\/span>
\n                                   :4:<\/span><\/p>\n
    and    he acquired the said qualification on 24.8.1995.\n<\/p>\n
    Even    thereafter,     respondent no.1 was      continued           as<\/p>\n
    part time teacher for 1995-96 and his appointment was<\/p>\n
    approved as part time teacher by respondent no.2.                    He<\/p>\n
    was    thereafter     granted approval vide      letter        dated<\/p>\n
    29.11.1997      on   clock   hour   basis.     According             to<\/p>\n
    respondent      no.1, the approval granted on clock              hour<\/p>\n
    basis amounts to reduction in rank and hence he filed<\/p>\n
    the instant appeal under section 9 of the MEPS Act.\n<\/p>\n
    3.<\/p>\n
    rival
\n              The<\/p>\n
                     School Tribunal after having<\/p>\n
             contentions of the parties and the material on
\n                                                           considered<\/p>\n
    record, in paragraph 21 of the impugned judgment held<\/p>\n
    thus:\n<\/p>\n
              ”       ….   ….   …. it is clear that
\n              appointment order dated 11.6.1992 which was<\/p>\n
              issued by respondent no.1 to appellant as a
\n              full time lecturer in      Sociology was on
\n              probation for the period of two academic
\n              years i.e.    1992 to 1994.    Appellant has
\n              satisfactory completed the probation period<\/p>\n
              of two years and Deputy Director of Education
\n              has also accorded approval to the appellant’s
\n              appointment as a full      time lecturer in
\n              Jr.College by separate orders dated 11.1.1993
\n              by according relaxation to the appellant’s
\n              educational qualification because appellant<\/p>\n
              was not trained i.e. he has not completed
\n              B.Ed. Subsequently, appellant has completed
\n              B.Ed.   course also. Appellant has completed
\n              probation period of two years from 14.6.1992
\n              to April, 1994. Therefore, as per section
\n              5(2) of the Maharashtra Employees of Private
\n              Schools Act, 1977 says that ‘Every person
\n              appointed to fill permanent vacancy shall be
\n              on probation for the period of two years.
\n              Subject to the provisions sub-section (3) and<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:26:29 :::<\/span>
\n                                     :5:<\/span><\/p>\n
              (4),   he shall, on    completion on    this
\n              probation period of two years deemed to have
\n              been confirmed.   Therefore, in view of the
\n              Section 5(2) of the Maharashtra Employees of<\/p>\n
              Private Schools Act, 1977, appellant has
\n              become permanent employee of the respondent
\n              no.1 therefore respondent no.1 or Deputy<\/p>\n
              Director of Education    cannot reduce the
\n              appellant into the rank i.e. from full time
\n              teacher to part time teacher and from part
\n              time teacher to teacher on clock hour basis
\n              without following the procedure of law and<\/p>\n
              rules.\n<\/p>\n
              .       In this matter, it is very important
\n              to note that from the pleadings and documents
\n              of the both the parties, it is clear that<\/p>\n
              there was a clear and permanent vacancy when
\n              appellant was appointed as      a full time
\n              lecturer in Jr.College on probation       and<\/p>\n
              appellant has completed the probation period
\n              of two years     satisfactory therefore his
\n              appointment order was according to section
\n              (5) of the Maharashtra Employees of Private<\/p>\n
              Schools Act. Even though appellant was not
\n              B.Ed at the time of his initial appointment
\n              but he has completed his B.Ed. While he was
\n              in service therefore he has become trained
\n              teacher and his appointment was also approved
\n              by Deputy Director of Education by giving<\/p>\n
              relaxation in his Educational qualification.”\n<\/p>\n
    .         From perusal of the judgment of the tribunal,<\/p>\n
    and    in particular paragraph 21 thereof, it is                 clear<\/p>\n
    that    the    tribunal   has     given   benefit        of     deemed<\/p>\n
    permanency      to respondent no.1 under sub-section                 (2)<\/p>\n
    of section 5 of the MEPS Act.\n<\/p>\n
    4.        I    have heard learned counsel for the parties<\/p>\n
    at    length and with their assistance gone through the<\/p>\n
    entire        material    placed       before        the        court.\n<\/p>\n
    Mr.Deshmukh,      learned counsel for the petitioner,                  at<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:26:29 :::<\/span>
\n                                   :6:<\/span><\/p>\n
    the    outset,    invited    my attention to       the      relevant<\/p>\n
    provisions      of   the Act and the Rules, and           submitted<\/p>\n
    that    under any circumstances respondent no.1                 cannot<\/p>\n
    claim    benefit of the deeming provision under section<\/p>\n
    5(2)    of    the MEPS Act, since admittedly he             was      not<\/p>\n
    holding      the prescribed qualification at the time                  of<\/p>\n
    his    appointment on permanent vacancy as full                 timer.\n<\/p>\n
    He    submitted, when respondent no.1 was appointed                    on<\/p>\n
    permanent vacancy as a full timer, he was not holding<\/p>\n
    the    required qualification, and when he acquired the<\/p>\n
    prescribed<\/p>\n
    which    he    was<\/p>\n
                    qualification, the permanent vacant post,<\/p>\n
                         claiming,   ceased    to    exist.          This,<\/p>\n
    according to Mr.Deshmukh, the tribunal has completely<\/p>\n
    overlooked      and has wrongly held that respondent no.1<\/p>\n
    became    deemed     permanent teacher as contemplated                 by<\/p>\n
    sub-section      (2)   of   section   5   of    the      MEPS      Act.\n<\/p>\n
    Mr.Deshmukh      also submitted that the judgment of                 the<\/p>\n
    tribunal      is without jurisdiction and hence             nullity.\n<\/p>\n
    He    submitted that reduction in workload in any                  case<\/p>\n
    would not amount to reduction in rank and, therefore,<\/p>\n
    the appeal under section 9 of the MEPS Act itself was<\/p>\n
    not maintainable.\n<\/p>\n
    5.        Mr.Kudle, learned counsel for respondent no.1<\/p>\n
    on    the other hand submitted that though at the                  time<\/p>\n
    of his initial appointment, and in 1992 on probation,<\/p>\n
    he    was not possessing the prescribed          qualification,<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:26:29 :::<\/span>
\n                                        :7:<\/span><\/p>\n
    he    acquired      the    same    in August,      1995,       and      even<\/p>\n
    thereafter        he   was continued in the service till                    he<\/p>\n
    filed    the      appeal.     He, therefore,         submitted          that<\/p>\n
    respondent No.1 deemed to have been confirmed, as has<\/p>\n
    been     rightly       held   by     the     Tribunal.           Mr.Kudle<\/p>\n
    submitted      that     the moment respondent no.1               acquired<\/p>\n
    the    prescribed qualification he also acquired                      legal<\/p>\n
    right    to continue as a teacher on permanent vacancy.\n<\/p>\n
    He    then submitted that the institution had given                         an<\/p>\n
    undertaking        that they will allow respondent no.1                     to<\/p>\n
    continue<\/p>\n
                  in the said post and they would absorb<\/p>\n
    after he acquires the qualification of B.Ed.                       In view
\n                                                                              him<\/p>\n
    thereof      it is not open to the petitioner-institution<\/p>\n
    to reduce him in rank by appointing him on clock hour<\/p>\n
    basis.       He    submitted that the concept of               untrained<\/p>\n
    teacher      is    recognised under the provisions                 of     the<\/p>\n
    MEPS Act and the rules thereunder.               He submitted that<\/p>\n
    Rule 6 and the first proviso thereto clearly empowers<\/p>\n
    the management to appoint untrained teacher, and even<\/p>\n
    if the appointment of such teacher is allowed on year<\/p>\n
    to    year    basis,      his services are not liable                to     be<\/p>\n
    terminated,        unless trained graduate teachers                  become<\/p>\n
    available.         Mr.Kudle, thereafter, submitted that the<\/p>\n
    petitioner-institution            ought not to have reduced his<\/p>\n
    rank    from      full timer to clock hour basis.                He     then<\/p>\n
    submitted      that the submission of Mr.Deshmukh on                      the<\/p>\n
    point    of    maintainability           of the appeal        cannot        be<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:26:29 :::<\/span>
\n                                       :8:<\/span><\/p>\n
    considered        since    it    was never      raised        before        the<\/p>\n
    tribunal.         Lastly, he submitted that the appointment<\/p>\n
    of    surplus      teachers      at the relevant          time       in     the<\/p>\n
    school      shows    that    there      was    sufficient          workload<\/p>\n
    available      and    that      there    was no      reason        for      the<\/p>\n
    management        to appoint respondent no.1 on clock                     hour<\/p>\n
    basis    in    1997, which amounts to reduction                    in     rank<\/p>\n
    from full timer to clock hour basis.<\/p>\n
\n\n\n\n\n                                        \n    6.          The    questions that fall for my consideration\n\n    are\n\n    holding      the\n                         \n<\/pre>\n
           whether respondent no.1, who was admittedly<\/p>\n
                        prescribed qualification, provided
\n                                                                                not<\/p>\n
                                                                                for<\/p>\n
    under    Rule 6 read with schedule B-III of MEPS Rules,<\/p>\n
    at    the    time of his appointment on probation                      for     a<\/p>\n
    period of two years, i.e.            the academic years 1992-93<\/p>\n
    and    1993-94, can claim benefit of deemed permanency,<\/p>\n
    contemplated        by sub-section (2) of section 5 of                      the<\/p>\n
    MEPS    Act    ?, and whether the orders               appointing           and<\/p>\n
    granting      approval as a part timer and then on                      clock<\/p>\n
    hour basis, would amount to “reduction in rank” ?                             if<\/p>\n
    not,    whether appeal under section 9 of the MEPS                          Act<\/p>\n
    is maintainable ?\n<\/p>\n
    7.          Section      5 of the MEPS Act, insofar as                  fresh<\/p>\n
    appointments        of    teachers      in    junior      colleges          are<\/p>\n
    concerned, provides that the management shall, as far<\/p>\n
    as    possible,      fill in, “in the          manner       prescribed”,<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:26:29 :::<\/span>
\n                                      :9:<\/span><\/p>\n
    “every    permanent vacancy” in a private school by the<\/p>\n
    appointment of a person “duly qualified” to fill such<\/p>\n
    vacancy.       Sub-section (2) of section 5 provides that<\/p>\n
    every    person      appointed to fill a permanent             vacancy<\/p>\n
    shall    be    on    probation for a period of          two      years.\n<\/p>\n
    Such person becomes deemed permanent on completion of<\/p>\n
    this    probation      period of two years, subject to                the<\/p>\n
    provisions      of sub-sections (3) and (4).            Sub-section<\/p>\n
    (3)    empowers the management to terminate services of<\/p>\n
    the probationer at any point during the period of his<\/p>\n
    probation<\/p>\n
    salary    or
\n                   after
\n                          iggiving<\/p>\n
                    honorarium
\n                                      him one month’s<\/p>\n
                                   of one month in lieu
\n                                                              notice<\/p>\n
                                                                   of
\n                                                                            or<\/p>\n
                                                                          the<\/p>\n
    notice,    if in the opinion of management his work                     or<\/p>\n
    behaviour      during the period of his probation was not<\/p>\n
    satisfactory.           Sub-section      (4)        deals           with<\/p>\n
    re-appointment        of any probationer whose services has<\/p>\n
    been    terminated under sub-section (3).               Sub-section<\/p>\n
    (5)    provides      that the management may fill in              every<\/p>\n
    temporary      vacancy    by   appointing      a    person        “duly<\/p>\n
    qualified”      to    fill every permanent vacancy and                the<\/p>\n
    order    of    appointment shall be drawn up in the                 form<\/p>\n
    prescribed in that behalf, and shall state the period<\/p>\n
    of appointment of such person.\n<\/p>\n
    8.        A    plain    reading    of section 5 of         MEPS       Act<\/p>\n
    would    show that in order to claim benefit of                  deemed<\/p>\n
    permanency      under sub-section (2) of section 5 of the<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:26:29 :::<\/span>
\n                                       :10:<\/span><\/p>\n
    MEPS    Act, a person, who is otherwise eligible to                         be<\/p>\n
    appointed      in    a private school, must           satisfy         three<\/p>\n
    conditions as reflected in sub-section (1).                      Firstly,<\/p>\n
    his    appointment        must    be     on   permanent          vacancy;\n<\/p>\n
    secondly,       he       must     possess      the      qualification<\/p>\n
    prescribed under Rule 6 read with schedule ‘B’ of the<\/p>\n
    MEPS    Rules;       and lastly, his appointment must                   have<\/p>\n
    been    made    in    the manner prescribed           i.e.         by     due<\/p>\n
    process of selection.            In the present case we are not<\/p>\n
    concerned      with the last condition.            Once an eligible<\/p>\n
    candidate,<\/p>\n
    selected    by<\/p>\n
                    holding the “prescribed qualification” is<\/p>\n
                        selection process i.e.           by     competition<\/p>\n
    amongst all eligible and desirous candidates, and who<\/p>\n
    is    appointed      on    a    “permanent     vacant       post”,        the<\/p>\n
    management      has no option but to appoint such                    person<\/p>\n
    on    probation      for    a    period of two       years.          It     is<\/p>\n
    neither    open      for the management to appoint him                    for<\/p>\n
    one    academic      year      or any period shorter           than       two<\/p>\n
    years    probation period, nor it is open for Education<\/p>\n
    Officer    to grant approval for shorter period.                        Such<\/p>\n
    candidate, appointed on probation, shall enjoy status<\/p>\n
    of    deemed    permanency        on completion of          two      years,<\/p>\n
    unless    extension        of    probation      is    informed,             or<\/p>\n
    termination is ordered.            It is also well settled that<\/p>\n
    the appointment of a person not belonging to reserved<\/p>\n
    category,      in    a    post     reserved     for     a     particular<\/p>\n
    category,      because the candidate of that category                       is<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:26:29 :::<\/span>
\n                                           :11:<\/span><\/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.               (see      :\n<\/p>\n
    Priyadarshini            Trust Vs.     Ratis Bano 2007 (6) Mh.L.J.\n<\/p>\n
    667).\n<\/p>\n
    667)         It    is     thus    clear      that    to     claim        deemed<\/p>\n
    permanency         one must be eligible to hold the post, he<\/p>\n
    must    be     duly qualified, as prescribed under Rule                          6<\/p>\n
    read    with       schedule ‘B’ of the MEPS rules,                   and      the<\/p>\n
    post, in which he is appointed, is a permanent vacant<\/p>\n
    post.\n<\/p>\n
    9.        Rule       6\n                            \n                              read with part III of Schedule B                      of\n                           \n<\/pre>\n
    MEPS Rules deals with the qualifications for teachers<\/p>\n
    in junior colleges.              Rule 6 provides that the minimum<\/p>\n
    qualifications           for the posts of teachers and the non<\/p>\n
    teaching       staff      in     the primary     schools,          secondary<\/p>\n
    schools,       Junior      Colleges       and   Junior        Colleges          of<\/p>\n
    Education         shall    be     as specified in         Schedule          “B”.\n<\/p>\n
    Part    III       (1)(a) of Schedule ‘B’, with which we                       are<\/p>\n
    concerned         in the present petition, provides that the<\/p>\n
    full    time       teachers       in junior colleges            require         to<\/p>\n
    possess       a Master’s degree of a statutory                    University<\/p>\n
    in second class in the respective subjects plus B.Ed,<\/p>\n
    or    a diploma or Certificate in Teaching, approved by<\/p>\n
    the    Department.         Clause 1(d) of part III of Schedule<\/p>\n
    B     provides          that     if     persons        possessing             the<\/p>\n
    qualification           referred to in clauses (a) and (b) are<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:26:29 :::<\/span>
\n                                     :12:<\/span><\/p>\n
    not     available,       the    Director      may        relax         the<\/p>\n
    qualification on the basis of the merits of each case<\/p>\n
    and    the    person in whose favour such          relaxation            is<\/p>\n
    allowed shall be appointed purely on temporary basis.\n<\/p>\n
    10.       The first proviso to rule 6 provides that the<\/p>\n
    Education      Officer    may allow Managements to              appoint<\/p>\n
    untrained      Science    graduate      teachers     for      teaching<\/p>\n
    Mathematics and Science subjects or untrained Arts or<\/p>\n
    Commerce      graduates    for teaching other          subjects          in<\/p>\n
            appointments<\/p>\n
    “secondary schools” in exceptional circumstances, and<\/p>\n
    such                      shall, however, be allowed on                  an<\/p>\n
    year    to year basis, on the clear understanding                    that<\/p>\n
    they    shall have to obtain training qualification                      at<\/p>\n
    their    own costs and further subject to the condition<\/p>\n
    that    their services shall be liable for               termination<\/p>\n
    as     soon    as   trained      graduate     teachers            become<\/p>\n
    available.\n<\/p>\n
    11.       Mr.Deshmukh,         learned     counsel          for        the<\/p>\n
    petitioner      submitted      that    insofar     as      the     first<\/p>\n
    proviso      to Rule 6 is concerned, it will not apply to<\/p>\n
    the    facts of the present case since we are concerned<\/p>\n
    with    the    teachers    in    junior college        and      not      in<\/p>\n
    secondary      schools.     The first proviso to Rule 6                  is<\/p>\n
    applicable      only to the teachers in secondary                 school<\/p>\n
    and,    therefore,     no benefit of this proviso               can      be<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:26:29 :::<\/span>
\n                                       :13:<\/span><\/p>\n
    extended        to respondent no.1.          On the other hand, the<\/p>\n
    learned      counsel      for respondent no.1 submitted                     that<\/p>\n
    there    is      no difference between junior colleges                        and<\/p>\n
    higher      secondary schools and similarly no difference<\/p>\n
    can    be    made    between secondary schools                  and      higher<\/p>\n
    secondary        schools    for    extending           benefit         of     the<\/p>\n
    proviso to Rule 6.          He submitted that if such benefit<\/p>\n
    is    not    extended, till the trained                teachers          become<\/p>\n
    available,        the    institution      will       not      be     able       to<\/p>\n
    appoint      teachers,      and    as    a    result        thereof,          the<\/p>\n
    students will suffer.\n<\/p>\n
    12.         A    plain    reading    of rule 6           shows       that       it<\/p>\n
    provides        for minimum qualifications for the posts of<\/p>\n
    teachers        and the non-teaching staff in the                    “primary<\/p>\n
    schools”,        “secondary schools”, “junior colleges” and<\/p>\n
    “junior colleges of education”.                The first proviso to<\/p>\n
    rule     6,      however,    provides         for        relaxation             of<\/p>\n
    qualification        of teachers in the “secondary schools”\n<\/p>\n
    only.       The    word    “school” has        been       defined         under<\/p>\n
    section      2(24),      which    also    means        primary         school,<\/p>\n
    secondary        school,    higher secondary             school,         junior<\/p>\n
    college      of    education.       The       distinction            is     also<\/p>\n
    evident      from    Schedule      “B”, which is            divided         into<\/p>\n
    three    parts.      The first part provides                qualification<\/p>\n
    for    primary      teachers,      the       second       part       provides<\/p>\n
    qualifications          for teachers in secondary schools and<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:26:29 :::<\/span>
\n                                            :14:<\/span><\/p>\n
    junior     colleges          of    education, and the              part       three<\/p>\n
    provides        qualifications            for     teachers           in      junior<\/p>\n
    colleges.          It    is    thus      clear        that     there         is     a<\/p>\n
    difference         between        “secondary schools” and                 “higher<\/p>\n
    secondary       schools”,          and    in     any      case       “secondary<\/p>\n
    schools”           cannot         be         equated        with          “junior<\/p>\n
    colleges\/higher              secondary        schools”,          insofar           as<\/p>\n
    qualifications           for      teachers      is     concerned.             There<\/p>\n
    would     be no justification for the court to read                               the<\/p>\n
    words “higher secondary schools” in the first proviso<\/p>\n
    to     rule<\/p>\n
    construed
\n                  6.<\/span><\/p>\n
                    to<\/p>\n
                         The language of the statute<\/p>\n
                            suit convenience of the party
\n                                                                         cannot<\/p>\n
                                                                              to
\n                                                                                       be<\/p>\n
                                                                                      the<\/p>\n
    proceedings,         particularly when it is not susceptible<\/p>\n
    to     any other meaning.              The very same submission fell<\/p>\n
    for     the consideration of this court in the                            Trustees<\/p>\n
    of     S.P.R.      and       Others      Vs.    Abdul       Kaleem        &    Ors.\n<\/p>\n
    1999(4)       Bom.C.R.         104.\n                                   104       I     find     support         in     this\n\n    judgment      of     the learned Single Judge for                     the      view\n\n    that    the first proviso to Rule 6 would apply only to\n\n\n\n\n\n    the     persons         teaching          in      secondary             schools.\n\n    Therefore,      in      my     opinion, respondent               no.1       cannot\n\n    claim    any benefit whatsoever of the first proviso to\n\n\n\n\n\n    Rule 6.\n\n\n\n    13.       However,            that     does     not       mean       that         the\n\n    institutions         cannot       appoint       in junior          colleges         a\n\n    person    who      is not a trained teacher (i.e.                         \"B.Ed\")\n\n\n\n\n                                                           ::: Downloaded on - 09\/06\/2013 14:26:29 :::<\/span>\n                                          :15:<\/span>\n\n\n\n\n    and    that    the Education Department cannot relax                          the\n\n    qualifications.           Clause      (1)(d)     of       Part       III        of\n\n\n\n\n                                                                                \n<\/pre>\n
    Schedule ‘B’ of the MEPS Rules makes it clear that if<\/p>\n
    persons    possessing          the     prescribed         qualifications<\/p>\n
    referred to in clauses (a) and (b) are not available,<\/p>\n
    the    Director      may    relax the qualifications                   on     the<\/p>\n
    basis    of    the merits of each case and the person                           in<\/p>\n
    whose favour relaxation is allowed shall be appointed<\/p>\n
    purely    on temporary basis.               Such appointee, however,<\/p>\n
    cannot    claim      benefit of “deemed             permanency”           under<\/p>\n
    sub-section<\/p>\n
    person
\n                     (2)<\/span><\/p>\n
              appointed
\n                          ig  of    section 5 of the MEPS<\/p>\n
                               by relaxing the           qualification
\n                                                                         Act.        A<\/p>\n
                                                                                    as<\/p>\n
    contemplated        by    clause      (1)     (d)    of     Part       III      of<\/p>\n
    Schedule      ‘B’    is    not entitled to           claim        permanency<\/p>\n
    merely because he was assured by the institution that<\/p>\n
    he would be continued till he acquires the prescribed<\/p>\n
    qualifications.           Even if there is such assurance                       or<\/p>\n
    undertaking given by the institutions, such assurance<\/p>\n
    or    undertaking        would    not        bind    the        institution<\/p>\n
    indefinitely        and particularly in the cases where the<\/p>\n
    trained    teacher becomes available or the workload is<\/p>\n
    not     available.          In        the       present           case        the<\/p>\n
    petitioner-institution            has       denied that         in     1995-96<\/p>\n
    respondent      no.1      was    appointed as full timer                  in     a<\/p>\n
    clear    permanent        vacany.      It appears that there                  was<\/p>\n
    reduction       in    workload        and,      therefore,           he       was<\/p>\n
    appointed on clock hour basis.\n<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:26:29 :::<\/span>
\n                                         :16:<\/span><\/p>\n
    14.         The    second question raised by the petitioner<\/p>\n
    is    whether      the    orders         appointing        and         granting<\/p>\n
    approval      as    a part time teacher and on                   clock       hour<\/p>\n
    basis would amount to reduction in rank, as contended<\/p>\n
    by    respondent        no.1.       It    was    submitted          that       the<\/p>\n
    impugned       judgment        of    the       tribunal        is       without<\/p>\n
    jurisdiction,          and is, therefore, nullity and that it<\/p>\n
    can     be    set      aside      even    at    this      stage        of      the<\/p>\n
    proceedings.        Section 9 of the MEPS Act confers right<\/p>\n
    of    appeal<\/p>\n
    schools.<\/p>\n
\n                      to\n\n                   Under\n                           \n                            tribunal\n\n                              this\n                                          to    employees\n\n                                         provision,\n                                                                   of       private\n\n                                                              notwithstanding\n                          \n    anything      contained        in any law or contract                  for     the\n\n    time    being      in    force,      any employee          in      a    private\n\n<\/pre>\n
    school, who is dismissed or removed or whose services<\/p>\n
    are otherwise terminated or who is “reduced in rank”,<\/p>\n
    by    the    order passed by the Management, and                        who      is<\/p>\n
    aggrieved,        shall      have    a right of         appeal         and     may<\/p>\n
    appeal      against      any      such    order.        This       provision,<\/p>\n
    confers      right      on    employees         to    challenge             their<\/p>\n
    reduction      in rank by filing appeal before the school<\/p>\n
    tribunal.         In    the present case respondent no.1                       was<\/p>\n
    appointed      as full time teacher only for the academic<\/p>\n
    years    1991-92,        1992-93 and 1993-94.              Thereafter            he<\/p>\n
    was    never appointed as full time teacher and he                             was<\/p>\n
    appointed      either        as    part timer or          on     clock       hour<\/p>\n
    basis.       The    grievance        of reduction          in      rank      was,<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:26:29 :::<\/span>
\n                                       :17:<\/span><\/p>\n
    however, made for the first time in 1997.                    It appears<\/p>\n
    that    some    divisions were closed, which resulted                      in<\/p>\n
    reduction      of    workload.     Moreover, it        appears         that<\/p>\n
    some teachers, who rendered surplus, were directed to<\/p>\n
    be    absorbed      in   the petitioner no.2         –     college         in<\/p>\n
    1995-96.        The      Deputy     Director        of       Education,<\/p>\n
    therefore,       could     not    accord     approval           to       his<\/p>\n
    (respondent      no.1) appointment for the academic                    year<\/p>\n
    1997-98    even as part time teacher and, therefore, he<\/p>\n
    was required to be appointed on clock hour basis.                          It<\/p>\n
    was<\/p>\n
           specifically contended before the tribunal<\/p>\n
    respondent      no.1’s     appointment      does not         amount
\n                                                                           that<\/p>\n
                                                                               to<\/p>\n
    reduction      in rank as alleged by him and,                therefore,<\/p>\n
    he    could    not have filed appeal against such                   order.\n<\/p>\n
    The    tribunal      has recorded the submissions               to     that<\/p>\n
    effect, made on behalf of the petitioner-institution,<\/p>\n
    in    paragraph 17 of the judgment.           The tribunal             has,<\/p>\n
    however,      failed     to consider the issue raised.                   The<\/p>\n
    submission       of      Mr.Kudle,       learned       counsel           for<\/p>\n
    respondent no.1 that such issue was not raised before<\/p>\n
    the    tribunal,      therefore,     deserves to         be     rejected<\/p>\n
    outright.\n<\/p>\n
    15.       From      the facts of this case it is clear that<\/p>\n
    after    1994-95 respondent no.1 was never appointed as<\/p>\n
    full    time teacher, in view of the fact that                    certain<\/p>\n
    divisions      were closed and no sufficient workload was<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:26:29 :::<\/span>
\n                                      :18:<\/span><\/p>\n
    available.         As    a   matter   of   fact    the       permanent<\/p>\n
    vacancy,      on    which respondent no.1 was appointed                   as<\/p>\n
    full    time      teacher in 1991-92, 1992-93 and              1993-94,<\/p>\n
    was    not    available       in 1994-95.    Therefore,          in     and<\/p>\n
    after    1994-95, respondent no.1 was appointed only as<\/p>\n
    a    part    time    teacher and in 1996-97 on            clock       hour<\/p>\n
    basis.      It is against this backdrop the question that<\/p>\n
    requires      consideration is whether that would                  amount<\/p>\n
    to “reduction in rank” ?\n<\/p>\n
    16.<\/p>\n
                A plain reading of the expression “reduced in<\/p>\n
    rank” as occurred in section 9 of the MEPS Act, means<\/p>\n
    to    reduce      or to shift, may be under         exigencies            of<\/p>\n
    situation or by way of punishment, to a post in lower<\/p>\n
    grade    than      the one to which the concerned              employee<\/p>\n
    was    initially        recruited, or than the post which                 he<\/p>\n
    was holding at the relevant time.             It amounts removal<\/p>\n
    from    higher post and to appoint him to lower post or<\/p>\n
    grade.       In    other words, reduction in rank              has      the<\/p>\n
    same    effect of removing an employee from a grade                       or<\/p>\n
    category      of post to a lower grade or category.                     For<\/p>\n
    instance,      reducing\/shifting        from the post          of     Head<\/p>\n
    Master to Assistant teacher.            Such is not the case of<\/p>\n
    respondent        no.1.      In my opinion, appointing a              full<\/p>\n
    time    teacher as a part timer or on clock hour basis,<\/p>\n
    in    view of reduction of divisions or workload, would<\/p>\n
    not amount to reduction in rank.             Even if a full time<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:26:29 :::<\/span>
\n                                        :19:<\/span><\/p>\n
    teacher is appointed as a part timer or on clock hour<\/p>\n
    basis,      his    grade or category of post               as     assistant<\/p>\n
    teacher      remains      the same.       In short,        reduction           of<\/p>\n
    workload      cannot be treated as reduction in rank.                          In<\/p>\n
    the    circumstances the impugned judgment deserves                            to<\/p>\n
    be set aside also on the ground that the appeal filed<\/p>\n
    by respondent no.1 under section 9 of MEPS Act itself<\/p>\n
    was not maintainable.<\/p>\n
\n\n\n\n\n                                          \n    17.         In    the    present case after           respondent           no.1\n\n\n\n    he    was    appointed\n                          \n<\/pre>\n
    acquired the prescribed qualification in August 1995,<\/p>\n
                                as    part      time    teacher         for      the<\/p>\n
    academic      year      1995-96    and       his    appointment              was<\/p>\n
    approved      as      part timer vide order dated                29.9.1995.\n<\/p>\n
    He    was once again appointed as part timer in 1996-97<\/p>\n
    but the said appointment was not approved, and it was<\/p>\n
    approved      only on clock hour basis.               It is       pertinent<\/p>\n
    to    note that after the Education department                        refused<\/p>\n
    to    grant      approval to his appointment as                  full      time<\/p>\n
    teacher      in junior college on the ground that he                         was<\/p>\n
    not    trained        teacher    in    1994-95,       respondent           no.1<\/p>\n
    himself       had      requested      the     Deputy       Director            of<\/p>\n
    Education        in    writing    to    accord      approval          to     his<\/p>\n
    appointment as a part time teacher.                   That seems to be<\/p>\n
    the reason why his appointment was approved as a part<\/p>\n
    time    teacher by the respondent – education                       officer.\n<\/p>\n
    In    1995-96      and 1996-97, the          petitioner-institution<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:26:29 :::<\/span>
\n                                  :20:<\/span><\/p>\n
    was    forced    to close some divisions and,          therefore,<\/p>\n
    the permanent vacancy which was available in 1991-92,<\/p>\n
    1992-93    and in 1993-94, on which respondent no.1 was<\/p>\n
    appointed      on   probation,   was not available          in     and<\/p>\n
    after    1994-95.     In 1996-97, the management appointed<\/p>\n
    and sought approval on clock hour basis and it was so<\/p>\n
    granted    by the Education Officer.      It is thus           clear<\/p>\n
    that    when respondent no.1 was appointed as full time<\/p>\n
    teacher    on permanent vacancy he did not possess                 the<\/p>\n
    prescribed      qualification    and when he     acquired          the<\/p>\n
    qualification<\/p>\n
    on<\/p>\n
                        in August 1995, the permanent vacancy,<\/p>\n
          which he was working earlier, was not            available.\n<\/p>\n
    Respondent No.1, therefore, was wrongly given benefit<\/p>\n
    of    deemed    permanency by the tribunal under            section<\/p>\n
    5(2)    of MEPS Act.     In the result this writ          petition<\/p>\n
    succeeds.       The   judgment   and order    passed        by     the<\/p>\n
    school tribunal is set aside.        No costs.\n<\/p>\n
    18.       At    this stage Mr.Kudle, learned counsel               for<\/p>\n
    respondent      no.1 prayed for stay of this judgment for<\/p>\n
    a    period of six weeks.     Mr.Deshmukh, learned counsel<\/p>\n
    for    the petitioner does not oppose the prayer.                  The<\/p>\n
    judgment shall remain stayed, as prayed, for a period<\/p>\n
    of six weeks from today.\n<\/p>\n
                                              (D.B.BHOSALE, J.)<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:26:29 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Maharashtra Seva Sangh vs Shri Shaikh Jamalchand on 21 March, 2009 Bench: D.B.Bhosale :1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5556 OF 1999 1. Maharashtra Seva Sangh Mashall Vasti, Jaykumar Nagar, Vijapur Road, Solapur, (through its Secretary), .. 2. The Principal, Shree Nutan Prashala Junior […]<\/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-161520","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMaharashtra Seva Sangh vs Shri Shaikh Jamalchand on 21 March, 2009 - 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\/maharashtra-seva-sangh-vs-shri-shaikh-jamalchand-on-21-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Maharashtra Seva Sangh vs Shri Shaikh Jamalchand on 21 March, 2009 - 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