Bombay High Court
Shri Shivaji Education Society vs The Presiding Officer on 25 November, 2011
Author: R. K. Deshpande
Bench: R. K. Deshpande
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4720/2006
1. Shri Shivaji Education Society,
Pusad, Washim Road, Pusad,
District Yavatmal, through its
President.
2. Shri Shivaji Junior College
Chatari, Tahsil Umarkhed,
District Yavatmal, through its
Princiapl. PETITIONERS
...VERSUS...
1. The Presiding Officer, School
Tribunal, Amravati, District
Amravati.
2. The Deputy Director of Vocational
Education and Training, Amravati.
3. Vishwambhar s/o. Govindrao Garud,
aged about 35 years, Occ. - Nil,
R/o. Sawana, Tahsil Mahagaon,
District Yavatmal. RESPONDENTS
------------------------------------------------------------------------------------------------
Shri A.S.Chandurkar, Advocate, for petitioners
Shri J.B.Jaiswal, AGP, for Respondent Nos. 1 and 2
Shri Bhushan Mohta, Advocate h/f Shri Anand Parchure, Advocate,
for Respondent No. 3
------------------------------------------------------------------------------------------------
CORAM: R. K. DESHPANDE, J.
th
DATE : 25 NOVEMBER, 2011.
::: Downloaded on - 09/06/2013 17:57:07 :::
2
ORAL JUDGMENT
1] This petition challenges the judgment and order dated 17th August, 2006, passed by the School Tribunal, Amravati, in Appeal No. 74/2000 filed by the respondent no. 3 - employee, challenging his termination from service w.e.f. 30.06.1996 from the post of Instructor.
The tribunal has set aside the order of termination and directed the reinstatement with continuity in service. The claim for back-wages has been denied. The employer is, therefore, before this Court in this writ petition.
2] The respondent no. 3 - Vishwambhar Govindrao Garud was appointed as an Instructor in the Vocational School run by the petitioner society by order dated 31.07.1995. The order states that the appointment is on temporary basis for the session 1995-96 till the end of session. The Deputy Director, Vocational Education and Training by his order dated 1.12.1997 granted approval to the appointment of the respondent no. 3 as full time Instructor in the pay scale of Rs.1400-2600/-, upon relaxation of condition regarding obtaining of certificate and possession of experience. The approval was granted for the period from 03.08.1995 to 30.04.1996 i.e. for only one session. The services of the respondent no. 3 were ::: Downloaded on - 09/06/2013 17:57:07 ::: 3 terminated w.e.f. 30.06.1996. This was the subject matter of challenge in Appeal No. 74/2000 filed by the respondent no. 3 under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as MEPS Act for short).
3] The tribunal by its judgment and order dated 17th August, 2006, allowed the appeal, by setting aside the order of termination and directing reinstatement with continuity in service, without back-wages. The tribunal recorded the finding that the respondent no. 3 possesses the requisite qualification and experience required for appointment to the post of full time Instructor (Electrical).
The appointment was in a clear and permanent vacancy and hence the same should have been made on probation for a period of two years in terms of Section 5(2) of the MEPS Act. It has been held that the termination was not on the ground of unsatisfactory work and behavior, nor for any charges of misconduct and hence, the termination without any reasons was in contravention of the provisions of the Act and the Rules framed thereunder.
4] The contention of the learned counsel appearing for the petitioner Management is that, even assuming that the appointment of the respondent no. 3 ::: Downloaded on - 09/06/2013 17:57:07 ::: 4 was in a clear and permanent vacancy, still he was not eligible and qualified for being appointed to the post of full time Instructor and hence, the appointment was made purely on temporary basis for a period of one year. Since the respondent no. 3 was not having the requisite qualification and experience, the question of treating his appointment on probation does not arise and the tribunal has, therefore, committed an error in holding that the appointment should have been made on probation. In view of this, the basic question arises for consideration is whether the respondent no. 3 possesses the essential qualification and experience for being appointed as a full time Instructor (Electrical) in the school run by the petitioner.
5] Item 8 in Part III of Schedule B of MEPS Rules prescribes the qualification for teachers for teaching vocational subjects or courses. Undisputedly, the criteria regarding qualification and experience for appointment of Instructor (Electrical Maintenance) is governed by Clause
(ii) under Item 8. The same being relevant is reproduced below;
"8. Qualification for Teachers for teaching Vocational Subjects or Courses
(ii) Instructor (a) Secondary School Certificate (Electrical awarded by the Maharashtra Maintenance). State Board of Secondary and ::: Downloaded on - 09/06/2013 17:57:07 ::: 5 Higher Secondary Education, or its equivalent qualification recognised by the Government and Certificate issued by N.C.T.V.T. (I.T.I.) in the trade of Electrician or Certificate in the designated trade in Electrician issued by N.C.T.V.T. under National Apprenticeship Scheme;
and ig Certificate in Instructor's Training from Central Training Institute for Instructors.
(b) Three years' experience either in the teaching line or in the profession or both combined.
6] The tribunal has recorded the finding that the respondent no. 3 possesses SSC and HSSC certificates, acquired in the month of March 1991 and March 1994 respectively. It is also the finding recorded that the respondent no. 3 possesses the certificate issued by N.C.T.V.T (I.T.I) in the trade of Electrician. It is also the finding recorded by the tribunal that the respondent no. 3 possesses the certificate in the designated trade in electrician issued by N.C.T.V.T. under National Apprenticeship Scheme. Undisputedly, the respondent no. 3 did not possess the certificate in Instructor's Training from Central Training Institute for Instructors.
::: Downloaded on - 09/06/2013 17:57:07 ::: 6In view of this, the question is whether possession of certificate in Instructors Training from Central Training Institute for Instructors was an essential qualification for appointment as full time Instructor in Electrical Maintenance.
7] Perusal of the criteria regarding the qualifications indicate that the first and second certificates, are required to be issued by N.C.T.V.T., whereas the certificate in Instructors Training is required to be issued by the Central Training Institute for Instructors. The first two certificates pertain to the completion of course in the trade of electrician or in the designated trade in electrician. The third certificate pertains to Instructors Training to teach the courses concerned. The requirement of third certificate from Central Training Institute is separate and different from the earlier two certificates. It is an essential requirement of training of instructors. In the absence of certificate in Instructors Training from Central Training Institute for Instructors would not make the respondent no. 3 qualified to teach as full time Instructor in Electrical Maintenance in terms of criteria (a) above. Obtaining of certificate in Instructors Training would be an essential requirement and since the respondent no. 3 was not possessing the same, it cannot be held that he was qualified.
::: Downloaded on - 09/06/2013 17:57:07 ::: 78] So far as the requirement of possessing experience is concerned, obviously the teaching experience required is of three years, which is to be obtained after obtaining the certificate in Instructors Training and any experience possessed without obtaining such certificate cannot be termed as an "experience", contemplated by clause (b) above.
9] In view of above, the tribunal has committed an error in holding that the respondent no. 3 was possessing the requisite qualification and experience and therefore, his appointment should have been made on probation for a period of two years as contemplated by Section 5(2) of MEPS Act. The order of appointment was on purely temporary basis for one session. The approval was also for a period of one session and at the end of it, the services of respondent no. 3 were terminated. Hence, no fault can be found with the termination of the respondent no. 3 from service.
10] At this stage, Shri Mohta, the learned counsel appearing for the respondent no. 3 submits that the tribunal had passed an order of reinstatement of the respondent no. 3 in service and this Court had refused to grant any interim relief. The petitioner had approached ::: Downloaded on - 09/06/2013 17:57:07 ::: 8 the Apex Court challenging the order refusing to grant an interim relief and the SLP was dismissed by the Apex Court. He, therefore, submits that the respondent no. 3 has not been reinstated in service in spite of rejection of interim relief and hence the respondent no. 3 is entitled to salary for the period from the date of order of reinstatement passed by the School Tribunal till the date of dismissal of the petition. However, the petition arises out of the judgment and order passed by the School Tribunal, granting reinstatement, the question of issuing direction to make the payment of salary for this period does not arise in this petition and the respondent no. 3 would be at liberty to file appropriate proceedings to recover such salary, if permissible, in accordance with law.
11] In view of above, the writ petition is allowed.
The judgment and order dated 17th August, 2006, passed by the learned Presiding Officer, School Tribunal, Amravati, in Appeal No. 74/2000 is hereby quashed and set aside. The appeal No. 74/2000 filed by the respondent no. 3 is dismissed with no order as to costs.
JUDGE Rvjalit ::: Downloaded on - 09/06/2013 17:57:07 :::