Bombay High Court
Pandit Rajaram Wankhede vs The State Of Mah. Thr. Its Secretary Of ... on 11 June, 2019
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 wp1121of2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION 1121 OF 2013
Pandit s/o. Rajaram Wankhade
R/o. Renuka Nagar, Borgaon Manju,
Tah. & Dist. Akola ... PETITIONER
...V E R S U S...
1) The State of Maharashtra
through its Secretary to the
Education Department, Mumbai 32
2) Surendra Sukhadeorao Wadkar,
R/o. Wankhede Nagar, Dabki Road,
Akola
3) The Borgaon Shikshan Prasarak
Mandal, Borgaon Manju,
Tah. & Dist. Akola through its President.
4) Education Officer (Secondary),
Zilla Parishad, Akola
5) The Presiding Officer
School Tribunal Amravati
6) Mr. Gajanan Tukaram Pohankar
age - major, Occ. Teacher
c/o. Parashuram Naik Vidyalaya,
Borgaon Manju, Dist. Akola,
Maharashtra ...RESPONDENTS
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Shri A. Shelat, Counsel for petitioner
Shri N.H. Joshi, A.G.P. for respondents 1, 4 & 5,
Shri N.B. Kalwaghe Counsel for respondent 2,
Shri A.R. Deshpande Counsel for respondent 3,
Shri H.R. Gadhiya Counsel for respondent 6.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 23.08.2018
DATE OF PRONOUNCING THE JUDGMENT : 11.06.2019
JUDGMENT
The petitioner assails the judgment dated 31.1.2013 rendered by the School Tribunal in Appeal 36 of 2012 thereby repelling his challenge to the denial of the post of the Head Master.
2. Facts leading to the petition, broadly admitted as the facts are, are thus:
(i) Respondent - 3 Borgaon Shikshan Prasarak Mandal is a society registered under the Societies Registration Act which manages the Parshuram Nayak Vidyalaya and Smt. K.B. Somani Arts College, Borgaon (Manju), which is a recognized school receiving grant in aid.
(ii) The petitioner, who holds the qualification of B.A.B.P.Ed. came to be appointed as Physical Training Instructor (PTI) in clear and permanent vacancy which arose due to the death of one Suhas Pandurang Patil, vide appointment order dated 18.8.1989, which appointment received the approval of the ::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 :::
3 wp1121of2013 Education Officer, Akola Zilla Parishad vide order dated 12.11.1990.
(iii) The petitioner was promoted as Supervisor vide order 29.12.2000.
(iv) Respondent - 2, who holds the qualification M.A.B.Ed. and respondent 6 who holds the qualification B.A.B.Ed. came to be appointed on 26.7.1993 and 9.7.1999 respectively. In the Seniority List of the year 2008-2009, the petitioner is shown at serial 3 while respondents 2 to 6 are shown at serial 5 and 11 respectively.
(v) Shri N.S. Game, the Head Master superannuated on 30.6.2010. Shri S.J. Mohan, the next in the Seniority List relinquished claim to the post of Head Master.
(vi) In the Seniority List for the year 2010-2011, the name of the petitioner was shown at serial 40 on the premise that the petitioner belongs to category "H" in Schedule "F" and not to category "C". Respondent 2 was shown at serial 1 and was promoted as Head Master vide order 30.6.2010.
(vii) The petitioner approached the Education Officer who vide order dated 16.10.2010 held the petitioner senior to respondent 2 on the premise that the petitioner is included in category "C".
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(viii) Respondent 2 challenged the order of the Education Officer in Writ Petition 5164 of 2010. The High Court directed the Education Officer to reconsider the issue of inter se seniority. Vide order 16.5.2011, the Education Officer reiterated that the petitioner is senior to respondent 2.
(ix) Respondent 2 again approached the High Court in Writ Petition 2484 of 2011. The High Court set aside the order of the Education Officer with liberty to the petitioner to challenge the denial of the post of Head Master.
(x) The petitioner preferred Appeal 36 of 2012 which is decided by the judgment impugned.
3. Rival contentions in appeal:
The petitioner contended that the qualification B.P.Ed. is equivalent to the qualification B.Ed. and that he entered category "C" w.e.f. the date of appointment i.e. 18.8.1989 and is therefore senior to respondent 2 who entered category "C" w.e.f. 26.7.1993.
The management contended in rebuttal that the qualification B.P.Ed. is conspicuously missing from category "C" of schedule "F" of the Maharashtra Employees of Private Schools Rules, 1981 (Rules). The management further contended that neither the Maharashtra Employees of Private Schools (Conditions ::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 ::: 5 wp1121of2013 of Service) Regulations Act, 1977 (Act) nor the Rules envisage equivalence of B.P.Ed. qualification with B.Ed. qualification, and therefore, the petitioner cannot be treated as belonging to category "C" of Schedule F. Relying on the Government Resolution dated 16.1.1992, the management contended that passing the graduation examination in first or second division is an eligibility condition for promotion to the post of Head Master, and the petitioner having passed the graduation examination in third division, is not entitled to promotion as Head Master. This contention is also put forth by respondent 2. However, I need not delve any further on the said contention in view of the unrebutted submission of Shri A. Shelat, the learned counsel for the petitioner that the Government Resolution dated 16.1.1992 was stayed by the High Court vide order dated 12.5.1992 in Writ Petition 728 of 1992 and was subsequently withdrawn by the State Government by issuing Government Resolution dated 23.2.2006 which led to the disposal of the writ petition on the premise that the grievance of the petitioners therein did not survive.
4. The judgment of the School Tribunal:
(i) The Tribunal notes that neither the Act nor the Rules ::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 ::: 6 wp1121of2013 provide that the qualification B.P.Ed. is equivalent to B.A.
(ii) The Tribunal then refers to the submission of the petitioner that B.P.Ed. qualification is equivalent to B.Ed. in view of the Government Resolutions dated 22-6-1984 and 14-5-1987.
(iii) The Tribunal relies on the decision in Writ Petition 1380/1999 (Pandurang Mahadeorao Ghongde vs. The Education Officer (Secondary) Zilla Parishad, Nagpur and others) to hold that the Government Resolution dated 14-5-1987 is inconsistent with the Rules and, therefore, of no legal efficacy.
(iv) The Tribunal then considers the Government Resolution dated 25-11-1988 which was pressed into service by the petitioner in support of the submission that the qualification B.P.Ed. is equivalent to B.Ed. and holds that for reasons recorded by the High Court in Writ Petition 1380/1999 the Government Resolution dated 25-11-1988 would have no legal effect.
(v) The Tribunal notes that the Government Resolution dated 25-11-1988 is not issued in exercise of Rule making power of the State Government under Section 16 of the Act.
(vi) The Tribunal then considers Rules 3 of the Rules and holds that the words "equivalent qualification" are not incorporated in the Rule which would negate the contention of the petitioner that the qualification B.A., B.P.Ed. is equivalent to B.A. ::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 ::: 7 wp1121of2013 B.Ed. for the purpose of promotion to the post of Headmaster.
5. The Government Resolutions issued from time to time which deal with or touch the aspect of equivalence of B.P.Ed. and other qualifications with B.Ed. are referred to, considered and relied upon in catena of decisions of this Court. The Government Resolutions and their consideration by this Court shall be referred to in some detail at a later stage of the judgment. However, since the judgment of the Tribunal rests substantially, if not entirely, on the assumption that the Government Resolutions are inconsistent with the Rules and are, therefore, ineffective, it is necessary first to deal with the said aspect. The Tribunal is right in observing that in Pandurang Mahadeorao Ghongde vs. The Education Officer (Secondary) Zilla Parishad, Nagpur and others, a learned Single Judge of this Court articulates that the Government Resolution dated 14-5-1987 is inconsistent with the Rules. However, the attention of the learned Single Judge was not drawn to the earlier decisions of the Division Bench in which the same or similar Government Resolution/s are considered and relied upon.
In Letters Patent Appeal 44/2002 (Saraswati Prasarak Shikshan Sanstha vs. State of Maharashtra and others), the question involved was whether the qualification of H.D.Ed. ::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 ::: 8 wp1121of2013 (Bifocal) is equivalent to B.Ed. within the meaning of category "C" of Schedule-F of the Rules. In paragraphs 5 and 6 of the Judgment, the Division Bench considers the Government Resolutions issued from time to time including the Government Resolution dated 14-5-1987 which the learned Single Judge who decided Pandurang Mahadeorao Ghongde vs. The Education Officer (Secondary) Zilla Parishad, Nagpur and others held to be ineffective. Paragraphs 5 and 6 read thus :
"5. At this Stage reference may be made to the relevant Government Resolutions issued by the State Government from time to time. The Government Resolution dated 24-7-1969 is first in point of time. In para 1 of this Government Resolution, the State of Maharashtra has directed that H.D.Ed. (with physical education) as one of the methods subject should be treated academically on par with B.Ed. course conducted by the Universities. In paragraph 2 of this Government Resolution, it is further stated that holder of H.D.Ed. (with specification in Physical Education) should be eligible to the trained Graduates scale of Rs.120-300/- per month. By Government Resolution dated 13-5-1986, services of Teachers possessing H.D.Ed./B.P.Ed. qualification as Secondary School Teachers were continued. This Government Resolution continued such Teachers till final decision in a pending representation. By Government Resolution dated 14-5-1987, the State Government inter alia issued following direction :
"As per orders issued up till now, Teachers possessing H.D.Ed./B.P.Ed./B.Ed.(Physical Education) qualification should be treated at par with B.Ed. Even hereafter."
6. A further Government Resolution was issued on 25-11-1998, which was classificatory in nature and ::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 ::: 9 wp1121of2013 paragraphs 3 and 4, which are material for the purpose of this petition, read as follows :
"3. In terms of Government Resolution No.PHE- 1386/8378/86/SE dated 14-5-1987 it was decided that Physical Education Teachers should be considered eligible for promotion subject to certain conditions. The condition mentioned in Government Resolution dated 14-5-1987 in respect of Physical Education Teacher is that there should be one Physical Education Teacher for 250 students and the said Teacher should have at least 50% workload of physical education. The Government has already agreed that on this condition, teachers possessing a University degree plus H.D.Ed/H.P.D./B.Ed. (Physical Education) qualification should be considered for promotion.
4. By this order it is hereby clarified that from the date of this order, Arts Teachers and Physical Education Teacher subject to fulfilling the necessary conditions should be included in Category "C" of Schedule F of the Rules and should be considered eligible for promotion as per seniority."
The Division Bench then considered the submission that the Government Resolution dated 25-11-1988 is prospective and negated the said submission by observing that the said Government Resolution is only in clarificatory in nature.
My attention is invited to several other decisions in which the issue of equivalence of qualifications is decided on the basis of the Government Resolutions issued by the State Government. I am, even otherwise, not persuaded to fall in line with the observation of the learned Single Judge in Pandurang ::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 ::: 10 wp1121of2013 Mahadeorao Ghongde v. The Education Officer (Secondary) Zilla Parishad, Nagpur and others that the Government Resolution dated 14-5-1987 is inconsistent with the Rules. It is well settled that in exercise of executive power, which power is coextensive with the legislative power, it is permissible for the executive to supplement the statutory rules in respect of an unoccupied field. In B.N. Nagarajan and others vs. State of Mysore, AIR 1966 SC 1942, the Constitution Bench of the Hon'ble Supreme Court considered Rule 3 of the General Recruitment Rules, 1957 and held that the State is not prevented from exercising its executive power of appointing Assistant Engineers and determining their conditions of service by executive power. In the case before the Constitution Bench of the Supreme Court, the statutory rule was in skeleton form and stated that the method of recruitment and qualifications for each State Civil Service would be as prescribed in the Rules of recruitment of such service specially made in that behalf. It was contended before the Constitution Bench that unless and until such statutory rules were framed, no appointment to the post under the civil service of the State could be made. This contention was repelled by the Constitution Bench which held that the method of recruitment and prescription of qualification was a field unoccupied by the statutory rule and that the vacuum could be ::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 ::: 11 wp1121of2013 supplemented by executive instructions and administrative order. Similar view is taken in Nagpur Improvement Trust vs. Yadaorao Jagannath Kumbhare and others, (1999) 8 SCC 1999 in which it is held that in the absence of statutory rules regarding service conditions, executive instructions and administrative decisions shall be operative.
6. In the present case, it is not in dispute that the aspect of equivalence of qualifications is not touched either by the Act or the Rules framed thereunder and, therefore, the State is well within its power to fill in the vacuum by issuing executive instructions. In view of the authoritative enunciation of law by the Hon'ble Supreme Court, with due respect to the view taken by the learned Single Judge in Pandurang Mahadeorao Ghongde vs. The Education Officer (Secondary) Zilla Parishad, Nagpur and others, I will have to proceed on the premise that the executive instructions issued by the State Government in the form of Government Resolutions would supplement the statutory rules and fill in the vacuum and will have to be given full effect to.
7. At this stage, the relevant Government Resolutions having bearing on the controversy may be noted. ::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 ::: 12 wp1121of2013 Government Resolution dated 04-7-1973 reads thus :
"Government is pleased to direct that according to one of the recommendation of the Physical Education Committee (1968-69 appointed by Government under the chairmanship of the P.M. Joseph, the University Authorities in this state were requested by Government to start a full fledged degree in the faculty of Physical Education so as to produce bifocal Physical Education Teachers trained in the method of Physical Education and one academic subject. Accordingly the Maharashtra University and the Bombay University have stated respectively B.P.Ed. (Bachelor of Physical Education) and B.Ed. (Physical Education) course with in all respects. Government is pleased to direct that the graduated with a degree of bachelor in Physical Education (B.P.Ed.) of the Marathwada University or the Graduate with a degree of Bachelor of Education (Physical Education) i.e. B.Ed. (Physical Education) of the Bombay University should be treated as trained graduated on par other B.Ed. teachers for purpose of status pay-scales, promotion etc. and should be treated as qualified physical Education teacher for services in secondary school or as qualified Directors of physical education colleges and universities."
Government Resolution dated 06-6-1983 reads thus :
"Government is pleased to direct that the H.V.P. Mandal's Degree College of Physical Education at Amravati affiliated to the Nagpur University, has started one year degree course in Physical Education I.C.B.P.Ed. (Bifocal) since 1980-81 and the same has been continued. As this Course in academically on par with the B.Ed. course in all respects, and on the lines of courses approved by Government and run by other Universities, Government is pleased to direct that Graduates with a degree of Bachelor of Education (Physical Education) of Nagpur University should be treated as trained graduates on par with B.Ed. of Bombay, Pune Universities and B.P.Ed. of Marathwada and Shivaji University and should be treated as trained qualified Physical Education teacher for the purpose of ::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 :::
13 wp1121of2013 status, pay scales, promotion etc. for service in secondary schools or as qualified Director of Physical Education in colleges and Universities."
Government Resolution dated 22-6-1984 reads thus :
"vejkorh gs fo|kihB gs fonHkkZrhy vejkorh @vdksyk@ cqy<k.kk vkf.k ;orekG ;k ftYg;klkBh Lokraa=fjR;k LFkkiu dsys vkgs- lnjgq fo|kihBkpk ch-ih-,M- vH;kldze ch-,M- ;k vgZrkik=rs'kh led{krk ns.;kckcrpk izLrko 'kklukP;k fopkjk/khu gksrk- ;k izLrkokl 'kklu eatwjh nsr vkgs- vejkorh fo|kihBkps 'kkfjjhd f'k{k.k ch-ih-,M- inoh/kjkauk eqacbZ&iq.ks fo|kihBkP;k ch- ih-,M-P;k rlsp ejkBokMk o f'kokth fo|kihBkP;k ch-ih-,M- P;k inoh/kjkizek.ks izf'kf{kr inoh/kj vls letkos- lsok'krhZlkBh ek/;fed 'kkGk@egkfo|ky;kps rlsp fo|kihBkrwu 'kkfjjhd f'k{k.kkps f'k{kdkauk [email protected]@inksUurh bR;knh ckchalkBh izf'kf{kr vgZrkizkIr 'kkfjjhd f'k{k.k f'k{kdkaP;k led{k letkos-"
The next relevant Government Resolution is dated 14-5-1987 which reads thus :
"ek/;fed 'kkGkae/kwu ß'kkjhfjd f'k{k.kÞ ;k fo"k;kps f'k{k.k o ekxZn'kZu ;ksX;izdkjs Ogkos o egkjk"Vªkrhy loZ 'kkGkae/kwu ;k fo"k;kps f'k{k.k ns.kk&;k f'k{kdkaP;k izf'k{k.kkl lqlw=rk vlkoh] ;klkBh 'kkjhfjd f'k{k.k ek/;fed 'kkGkarwu ;ksX;izdkjs ns.;kdfjrk dk; mik; ;kstuk djkoh izf'k{k.kkRed vH;kldze dlk vlkok bR;knh 'kS{kf.kd o iz'kkldh; ckchaoj ;k fo"k;kpk l[kksy vH;kl d#u 'kklukyk ;k ckcrhr iq<hy dk;Zokgh dfjrk vgoky miyC/k d#u ns.;klkBh 1968&69 e/;s MkW- ih-,e- tkslsQ ;kaP;k v/;{krs[kkyh ,d lferh fu;qDr dj.;kr vkyh gksrh- lnj lferhus inoh/kj f'k{kdkalkBh@mesnokjkalkBh tks inO;qÙkj izf'k{k.kkRed vH;kldze lqpfoyk gksrk rks vH;kldze egkjk"Vªkrhy lacfa /kr fo|kihBkadMs fopkjkFkZ ikBfo.;kr vkyk vlrk lacfa /kr fo|kihBkauh MkW- ih-,e- tkslsQ lferhP;k f'kQkj'kh Lohd`r d#u rRiwohZ 'kkjhfjd f'k{k.k fo"k;d ts izf'k{k.kRed vH;kldze gksrs rs jÌ d#u ch-ih-,M~ gk lq/kkjhr vH;kldze ;Fkkdky dk;Zjr dsyk vkgs- oj uewn dsyYs ;k 'kklu fu.kZ;kUo;s lac/khr fo|kihBkdMwu ch-ih-,M~ izf'k{k.k vgZrk izkIr f'k{kdkauk@mesnokjkauk ek/;fed 'kkGkarwu 'kkjhfjd f'k{k.k fo"k;kps f'k{kd Eg.kwu fu;qDrh dj.;klkBh inoh/kj izf'kf{kr mesnokj Eg.kwu letkos- vls vkns'k 'kklukus osGksosGh fuxZfer dsyy s s vkgsr- ek/;fed 'kkGk vuqnku lafgrk egkjk"Vª [kktxh 'kkGkrhy ::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 :::
14 wp1121of2013 depkjh ¼lsosP;k 'krhZ½ fofu;eu 1977 o fu;ekoyh 1981 ;ke/;sn[ s khy ojhy vkns'kkyk vuql#u ;ksX; R;k rjrwnh dsyYs ;k vkgsr-
2- ifjPNsn ,d e/;s uewn dsyYs ;k oLrqfLFkrho#u vls fnlwu ;sbZy dh vkrki;Zr 'kklukus ch-ih-,M~ vgrkZikz Ir mesnokjkaP;k use.kqdk 'kkjhfjd f'k{k.k f'k{kd Eg.kwu dj.;kl ekU;rk fnysyh vkgs- ch-ih-,M~ izf'k{k.k vgrkZ ch-,M- izf'k{k.k vgZr's kh loZ n`"Vhus led{k let.;kl 'kklukph ekU;rk vkgs vlk pqdhpk vFkZ ykowu vusd fBdk.kh ch-,M~ f'k{kdka,soth ch-ih-,M- ik=rk/kkjd mesnokjkaP;k use.kqdk dj.;kr ;sÅ ykxY;k- gh ckc f'k{k.k lapkyd egkjk"Vª jkT; iq.ks ;kaps fun'kZukl vkY;koj R;kauh R;kaP;kdMhy i= dz-vek'kk 3085@¼20½ 20003@14&M] fnukad 24-5-1985 vUo;s loZ laca/khr vf/kdk&;kauh ch-ih-,M- izf'k{k.kRed vgZrk dsoG 'kkjhfjd f'k{k.k f'k{kd ;k inklkBh fofgr vlwu ;k inkO;frfjDr brj inkoj laca/khrkph fu;qDrh dsyh vlsy rj rh fu;ekuqlkj laer djrk ;s.kkj ukgh ;kckcr ;ksX; R;k lwpuk ns.;kr vkysY;k vkgsr ojhy lwpuk fuxZfer dsY;koj T;k ch-ih-,M- f'k{kdkaph fu;qDrh fu;eckg; >kyh vkgs v'kk f'k{kdkaP;k la?kVusus R;kpizek.ks lapkyd] egkjk"Vª jkT; 'kkjhfjd f'k{k.k la?kVusus ch- ch-,M~ izf'k{k.k vgZrc s kcr iqufoZpkj d#u 'kkjhfjd f'k{k.k f'k{kd ;kaph fuq;Drh dj.;klkBh fuf'pr lw= fofgr djkos- ;k f'k{kdkauk@mesnokjkauk brj fo"k; f'kdfo.;klkBh izf'kf{kr letkos bR;knh ekx.;k 'kklukleksj lknj dsY;k- ojhy ekx.;k 'kklukP;k fopkjk/khu vlY;keqGs 1985&86 ;k 'kS{kf.kd o"kkZP;k v[ksji;Zr T;ka ch-ih-,M~ f'k{kdkaP;k use.kqdk lac/khr vf/kdk&;kauh laer dsY;k vkgsr R;k iq<hy vkns'k jí gksbZi;Zra jí d# u;sr vls vkns'k 'kklu i= f'k{k.k o lsok;kstu foHkkx dz-ih,pbZ 1386@¼76@86½ ekf'k&4] fnukad 13-5-1986 vUo;s fuxZfer dj.;kr vkysys vkgsr-
3- 'kklukP;k vkns'kkuqlkj lapkyd] egkjk"Vª jkT; 'kS{kf.kd la'kks/ku o izf'k{k.k ifj"kn] iq.ks ;kauh lac/khr f'k{kdkaP;k ekx.;kckcr fopkj fofue; d#u 'kklukyk vgoky lknj dj.;kdfjrk ,rnFkZ lferhph fuq;Drh d#u lferhus lknj dsyYs ;k vgokykoj uohu 'kS{kf.kd /kksj.kkP;k lanHkkZr f'k{kd vkf.k R;kaps izf'k{k.k ;k fo"k;kdfjrk tks dk;Zdkjh xV MkW- e-ds- mikluh ;kaP;k v/;{krs[kkyh dk;Zjr vkgs] R;k xVkleksj ns[khy lnj vgoky vfHkizk;kFkZ Bsoyk gksrk- ,rnFkZ lferhus o dk;Zdkjh xVkus dsyYs ;k f'kQkj'kh y{kkr ?ksÅu lapkyd] egkjk"Vª jkT;] 'kS{kf.kd la'kks/ku izf'k{k.k ifj"kn] iq.ks ;kauh 'kklukdMs tks izLrko lknj dsyk R;k izLrkokpk vH;kl d#u ;kizdj.kh iq<hy vkns'k 'kklu fuxZfer dj.;kr ;sr vkgsr-
1½ T;k ek/;fed 'kkGkae/;s ,dgh vgZrkizkIr 'kkjhfjd f'k{k.k ::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 ::: 15 wp1121of2013 f'k{kd ulsy rj v'kk 'kkGkauh ,p-Mh-,M-@ch-ih-,M-@ch-,M- ¼'kkjhfjd f'k{k.k½ ik+=rk/kkjd fdeku ,dk mesnokjkph rjh fu;qDrh djkoh MkW- tkslsQ dfeVhus f'kQkjl dsY;kizek.ks ,p-Mh-,M@ch- ih-,M~ ¼'kkjhfjd f'k{k.k½ ;kaph fu;qDrh djrkauk loZlk/kkj.ki.ks 250 fo|kFkkZ la[;sl ,d f'k{kd ;FkkdkG gksbZy v'kk izdkjs uohu use.kqdk 'kkGsrhy ,dw.k th f'k{kdkaph eatwj ins vkgsr R;ke/;s djkO;kr] f'k{kdkaph fu;ekuqlkj ,dw.k eatwj inkaph la[;k ok<.kkj ukgh ;kph n{krk ?;koh-
2½ ojhy vgZrkik= 'kkjhfjd f'k{k.k f'k{kdkyk fdeku 50 Vdds dk;ZHkkj 'kkjhfjd f'k{k.k fo"k;kpk vlkok o R;kph fu;qDrh 'kkjhfjd f'k{k.k f'k{kd Eg.kwu djkoh- ,p-Mh-,M@ch-ih-,M@ch-,M- ¼'kkjhfjd f'k{k.k½ v'kk ik=rk/kkjd f'k{kdkauk lac/khr 'kkGse/;s 9 fdaok R;kis{kk vf/kd ?kM;kGh rklkapk dk;ZHkkj vlsy rj oj vuqde z kad ,d ;sFks uewn dsY;kizek.ks fdeku ,dk f'k{kdkis{kk vf/kd 'kkjhfjd f'k{k.k f'k{kdkaph fu;qDrh djkoh v'kh f'k{kdkauk iw.kZosG dk;ZHkkj miyC/k gks.;klkBh deh iM.kkjk dk;ZHkkj inoh ijh{ksl ?ksrysY;k 'kkys; fo"k;kpk fdaok izf'k{k.kkRed inohlkBh v/;kiu in~/krh Eg.kwu ?ksrysY;k lkekU; fo"k;kpk dk;ZHkkj nsÅu iw.kZosG dk;ZHkkj |kok-
3½ 1985&86 v[ksji;Zr T;k ,pMh,M @ chih,M @ ch-,M~ ¼'kkjhfjd f'k{k.k½ izf'k{k.k vgZrkik= f'k{kdkaP;k use.kqdk 'kkjhfjd f'k{k.k f'k{kd Eg.kwu u djrk lkekU; f'k{k.k f'k{kd Eg.kwu dj.;kr vkysY;k vkgsr R;k use.kqdk oj vuqdzekad 1 o 2 ;sFks fofgr dsyYs ;k lw=kuqlkj ;k dkGkr 'kkjhfjd f'k{k.k f'k{kd Eg.kwu fu;fer dj.;kr ;kO;kr- R;kaph use.kwd izFke use.kqdhP;k fnukadkiklwu fu;fer letkoh-
4½ ,p-Mh-,M-@ch-ih-,M-@ch-,M~ ¼'kkjhfjd f'k{k.k½ vgZrkizkIr f'k{kdkauk osru lsokT;s"Bkrk o lsok 'krhZP;k brj ckchadfjrk vkrki;Zra fuxZfer dsyYs ;k vkns'kkizek.ks ;kiq<s ns[khy ch-,M- ik=rs'kh led{k let.;kr ;kos-
ojhy vkns'kkpk lekos'k ek/;fed 'kkGk vuqnku lafgrk egkjk"Vª [kktxh 'kkGkarhy deZpkjh ¼lsok 'krhZ½ fofu;eu 1977 o fu;ekoyh 1981 e/;s ;ksX; R;k fBdk.kh ;ksX;izdkjs 'kq/nhi=d fuxZfer dj.;klkBh f'k{k.k lapkyd] egkjk"Vª jkT;] iq.ks ;kauh rks izLrko lknj djkok-"
The classificatory Government Resolution dated 25-11-1988 reads thus :
"egkjk"Vª [kktxh 'kkGkrhy deZpkjh ¼lsosP;k 'krhZ½ fu;ekoyh 1981 e/khy ^Q* lwph e/;s ek/;fed 'kkGkrhy ::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 :::
16 wp1121of2013 f'k{kdkaps fofo/k laoxZ o R;kph inksUurh rRos fo"kn dj.;kr vkysyh vkgsr- lnj ^Q* e/khy ^d* laoxkZe/khy O;Drh eq[;k/;kid@mieq[;k|kid ;k inkoj inksUurh gks.;kl ik= vlrkr- lnj ^d* loZlkekU;i.ks ek/;fed f'k{kd /kkj.k djhr vlysY;k vgZrspk mYys[k dj.;kr vkysyk vkgs- tls ,e-,- @,l-,l-lh@,e-dkWe-@ch-Vh-@ch-,M- fdaok ch-,-@ch-,l-lh-@ch- dkWe-ch-Vh-@ch-,M-@ fdaok RkRle bR;knh vkrki;Zra dyk f'k{kd gs loZlkekU; f'k{kd eku.;kr ;sr ulY;kus o fo'ks"k f'k{kd ;k ukR;kus R;kauk tjh izf'kf{kr inoh f'k{kdkauqlkj osruJs.kh feGr vlyh rjhgh inksUurhl R;kauk ik= let.;kr ;sr uOgrs- 2- ekU; fo|kihBkph inoh ok th-Mh- vkVZ infodk vf/kd vkVZ ekLVj fMIyksek ok fMIyksek bu vkVZ ,T;qds'ku v'kh dyk 'kk[ksph izf'k{k.k vgrkZ /kkj.k dsyYs ;k mesnokjkauk mPp dyklaLFkse/;s ¼gk;j vkVZ bULVhV;wV½ izk/;kid@izkpk;Z ;k inkoj fu;qDrhlkBh ik= letys tkrs- rFkkih l/;kP;k ek/;fed 'kkGslkBh ykxw vlysY;k rjrqnhuqlkj v'kk f'k{kdkauk dsoG fo'ks"k f'k{kd ;k laKe s /;sp R;kaph x.kuk gksr vlY;keqGs o R;kapk lekos'k lwphrhy ^d* laoxkZr gksr ulY;kus iq<hy inksUurhl rs ik= gksr ukghr- v'kk r&gsus ;k f'k{kdkaoj lrr vU;k; gksr vlY;kph rdzkj vlwu ;k f'k{kdkauk ^d* laoxkZe/ks lekos'k dj.;kr ;kok v'kh fn?kZdkGkiklwu 'kklukdMs ekx.kh dj.;kr vkysyh vkgs- gh ekx.kh 'kklukP;k fopkjk/khu gksrh- ;k ekx.khpk loZ n`"Vhdks.kkrwu fopkj dsY;kuarj o 1981 P;k fu;ekoyhrhy ^Q* lwph varxZr ^d* laoxkZe/khy R;k vgRkkZ fnY;k vkgsr- R;k vgRkkZ ok R;k vgZrsP;k rRle vgZrk/kkj.k dsY;kl v'kk f'k{kdkapk varHkkZo ^d* loZxkr dj.;kr ;srks gs ikgrk 'kklukus vkrk vlk fu.kZ; ?ksryk vkgs dh] [kkyhy vgrkZ /kkj.k dj.kk&;k f'k{kdkauk ^d* laoxkZr lekos'k dj.;kr ;kok- v½ ekU;rkizkIr fo|kihBkph inoh ¼T;ke/;s ch-,Q-,- ;k dyk infopkgh lekos'k vkgs-½ vFkok th-Mh-vkVZ inohdk vf/kd ,-,e- izek.ki= ok ,-,e- fMIyksek ok fMIyksek bu vkVZ ,T;wd's ku gh vgrkZ vlysY;k ek/;fed 'kkGsrhy f'k{kd-
c½ ekU;rkizIr fo|kihBkph inoh ¼T;ke/;s ch-,Q-,- ;k dyk infopkgh lekos'k vkgs½ ok th-Mh-vkVZ vf/kd Mh-Vh-lh- ok Mh-,e- ok ,-Vh-Mh- vgrkZ/kkjdkauk vuqde z s Mh-Vh-lh-] Mh-,e-],-Vh-Mh- gh vgrkZ izkIr dsY;kuarj 10 o"kkZpk vuqHko vlysys f'k{kd- 3- dzekzd ih,bZ-1386@8378@86 ekf'k% 4] fn- 14-5-1987 P;k 'kklu fu.kZ;kuqlkj 'kkfjjhd f'k{k.k f'k{kdkauk dkgh vVhoj inksUurhl ik= /kj.;kr ;kos vlsgh fu.kZ; ?ks.;kr vkysys vkgsr- 'kkfjjhd f'k{k.k f'k{kdkackcer fn- 14 es 1987 P;k 'kklu fu.kZ;kr foghr dsyYs ;k vVh Eg.ktsp 250 fon;kF;kZlkBh ,d 'kkfjjhd f'k{kd ;k lq=kuqlkj o v'kk f'k{kdkauk ::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 ::: 17 wp1121of2013 fdeku 50 VDds 'kkfjjhd f'k{k.k ;k fo"k;kpk dk;ZHkkj vlkok ;k 'krhZoj fon;kihBkph inoh vf/kd ,p-Mh-,M-@ch-ih-,M- @ch-,M@ch-,M- ¼'kkfjjhd f'k{k.k½ vgZrk /kkj.k dsyYs ;k f'k{kdkapk lekos'k dj.;kl ;kiwohZp ekU;rk ns.;kr vkysyh vkgs- 4- ;k vkns'kkOnkjs vkrk Li"V dj.;kr ;srs dh] ;k vkns'kkP;k fnukadkiklwu vko';d rsFks fo"kn dsyYs ;k vVhaP;k v/khu jkgwu dykf'k{kd o 'kkfjjhd f'k{k.k f'k{kd ;kapk fu;ekoyhe/khy ^Q* lwphP;k ^d* laoxkZe/ks lekos'k dj.;kr ;kok o ts"Brsuqlkj R;kr inksUurhl ik= let.;kr ;kos-
5- ;k vkns'kke/khy rjrqnh egkjk"Vª [kktxh 'kkGkrhy deZpkjh ¼lsosP;k'krhZ½ fu;ekoyh 1981 e/;s iq<hy vko`Rrh e/;s lekfo"V dj.;kr ;kO;kr- rks Ik;Zra ;k vkns'kke/khy rjrqnh ;k fu;ekoyhrhy rjrqnh vlY;kpsp eku.;kr ;kos gs vkns'k fo/kh o U;k; foHkkxkP;k lgerhus dj.;kr vkysys vkgsr-"
8. The Government Resolutions indubitably substantiate the contention of the petitioner that the qualification of B.P.Ed. is equivalent to the qualification B.Ed. I am not concerned here, with the question whether the qualification of B.P.Ed. makes a person eligible to be appointed as Assistant Teacher to teach academic subjects. Such appointment clearly appears to be impermissible. However, once a person holding B.P.Ed.
qualification is appointed as Physical Instructor, there cannot be any discrimination in the matter of pay-scale or promotion vis-a-
vis a person holding B.Ed. qualification. Such a view is taken by the learned Single Judge in a relatively recent decision in Sayyad Yousuf s/o Sayyad Moosa vs. State of Maharashtra and others, 2017(2) Mh.L.J. 472. The learned Single Judge has referred to ::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 :::
18 wp1121of2013 several decisions of this Court and I respectfully concur with the view taken in the said decision.
9. I may now adhere to the statutory scheme. The Act is brought on the statute book to inter alia regulate the terms and conditions of Service Rule of Employees of Private Schools. Section 16 of the Act is the source of the rule making power, in exercise of which the State Government has framed the Rules. Rule 3 deals with the qualifications and appointment of Head. Rule 3(1)(b) provides that the Head shall be a Graduate possessing Bachelor's degree in teaching or education of a statutory University or any other qualification recognized by Government as equivalent thereto and possessing not less than five years total full-time teaching experience after graduation of which at least two years experience shall be after acquiring Bachelor degree in teaching education. Rule 3(3) provides that the post of the Head shall be filled in by appointing the senior-most member of the teaching staff in accordance with the guidelines laid down in Schedule-F from amongst those employees who have satisfactory record of service. The explanation provides that the record of service shall be deemed to be satisfactory if there is nothing adverse in the Annual Confidential Report of the teachers ::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 ::: 19 wp1121of2013 concerned during the previous five years adverse remarks not duly communicated in writing to the teachers concerned, shall be disregarded for this purpose.
Rule 12 mandates that every management shall prepare and maintain seniority list in accordance with the guidelines laid down in Schedule-F which provides that category "C" shall include holders of :
B.A.,B.Sc./B.Com., B.T./B.Ed. or its equivalent.
(emphasis supplied) Rule 2(j) defines "Trained graduate" thus :
"Trained graduate" means a person possessing the qualifications mentioned in sub-clauses (I) to (vi) of clause (1) of item II in Schedule "B".
Item 2 of Schedule-B deals with the qualifications of trained teachers in the secondary schools and junior colleges of education and the relevant clause which is Clause-I sub-clause (v) & (vi) provides thus :
"II. Qualifications for trained Teachers in Secondary Schools and Junior Colleges of Education.
1. For Graduate Teachers :
(i) A Bachelor's degree in Teaching or Education of any statutory University or a qualification recognised by Government as equivalent thereto;::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 :::
20 wp1121of2013
(ii) A Teaching Diploma of any statutory University, if a person holding it is appointed for the first time before the 1st October, 1970 and continues to serve as a teacher with or without break after that date;
(iii) A Secondary Teacher's Certificate of the Education Department of Maharashtra State, if a person holding it is appointed for the first time before the 1 st October 1970 and continues to serve as a teacher with or without break after that date;)
(iv) A diploma in Education of the Graduates Basic Training Centres ;
(v) A diploma in Physical Education or a qualification recognized by Government as equivalent thereto; or Bifocal Higher Diploma in physical Education of the Government of Maharashtra (as Physical Education with one of the method subjects) or B.P.Ed. (Maharashtra University) or B.P.Ed. (Shivaji University of B.Ed. (Physical Education) (Bombay University) (or B.P.Ed. (Nagpur University) or Diploma in Physical Education, Culture and Recreation awarded by Hanuman Vyayam Prasarak Mandal, Amravati.
(vi) Any other degree, diploma or certificate which Government or the Inter-University Board may sanction as equivalent to any of the above qualifications, (and
(vii) After the commencement of the Maharashtra Employees of Private Schools (Conditions of Service) (Amendment) Rules, 2017, the persons to be appointed as the Graduate Teaches shall require to appear for the Aptitude Test, as specified by the Government in this regard, from time to time.)"
10. In the context of the statutory scheme, it must be held that the petitioner was a trained teacher within the meaning of Rule 2(j) of the Rules and in view of the Government Resolutions holding the field, the qualification of B.P.Ed. being equivalent to B.A., he entered category "C" with effect from the date of appointment 18-8-1989 and was, therefore, senior to respondent 2 ::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 :::
21 wp1121of2013 and respondent 6 herein who entered category "C" on 26-7-1993 and 09-7-1999 respectively. I am fortified in the said view by the decision of the Division Bench of this Court in Letters Patent Appeal 180/2012 (Subhash Bajiraoji Tathe vs. Education Officer, Zilla Parishad, Nagpur and others) which observes that it is held time and again by this Court by referring to the various Government Resolutions holding the field that the qualification of B.P.Ed. is equivalent to the qualification of B.Ed.
11. Shri H.R. Gadhia, learned Counsel for respondent 6 relies on the decision in Writ Petition 1380/1999 (Pandurang Mahadeorao Ghongde vs. The Education Officer (Secondary), Zilla Parishad, Nagpur and others), which is already considered supra. Shri A.R. Deshpande, learned Counsel for respondent 3 relies on the decisions of the learned Single Judge in Punjababa Govardhane Vidyavikas Pratisthan Ghoti, Dist. Nashik and another vs. Govind Pundlik Jadhav and another, 2009(6) Mh.L.J. 119 and Shivshakti Shikshan Sanstha and another vs. Nilkanth s/o Kawaduji Shivankar and another, 2005(3) Mh.L.J. 696.
12. The question which fell for consideration before the ::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 ::: 22 wp1121of2013 learned Single Judge in Shivshakti Shikshan Sanstha and another vs. Nilkanth s/o Kawaduji Shivankar and another, was whether candidate holding B.Com. B.P.Ed. qualification was eligible to be appointed as trained Assistant Teacher. The said question does not fall for consideration in this petition since the petitioner is not appointed to teach general subjects and was appointed as Physical Instructor. The judgment of the learned Single Judge in Shivshakti Shikshan Sanstha and another vs. Nilkanth s/o Kawaduji Shivankar and another in Letters Patent Appeal 134/2008 which is dismissed by the Division Bench, which confirmed the view of the learned Single Judge that B.P.Ed. is not a qualification for teacher appointed to teach general subjects. The decision of the learned Single Judge in Punjababa Govardhane Vidyavikas Pratisthan Ghoti, Dist. Nashik and another vs. Govind Pundlik Jadhav and another does not take the case of the contesting respondent any further.
13. In the light of the discussion supra, the judgment impugned is unsustainable in law and is set aside.
14. It is declared that the petitioner was entitled to promotion as Headmaster with effect from 01-7-2010 and the ::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 ::: 23 wp1121of2013 denial of such promotion is illegal. It is further directed that the petitioner shall be entitled to be treated as Headmaster with effect from 01-7-2010 and to all consequential reliefs including financial benefits.
15. Rule is made absolute in the afore stated terms.
JUDGE At this stage, the learned Counsel Shri H.R. Gadhiya for respondent 6 would submit that the judgment be stayed for a period of six weeks. However, in view of the law settled inter alia by the Division Bench of this Court, I am not inclined to stay the judgment.
JUDGE RSB/Adgokar ::: Uploaded on - 13/06/2019 ::: Downloaded on - 13/06/2019 23:12:18 :::