Bombay High Court
Sanjay Lalbahadur Divedi vs Shrikrishna Vyayam Shala on 15 February, 2010
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 3088 OF 2005
and
WRIT PETITION NO. 5196 OF 2009
with
WRIT PETITION NO. 4989 OF 2008
WRIT PETITION NO. 3088 OF 2005
Sanjay Lalbahadur Divedi,
r/o Vrindawan Colony,
Chandur Bazar,
District - Amravati. ... PETITIONER
Versus
1. Shrikrishna Vyayam Shala,
through its Secretary,
Amla Vishveshwar,
Tq. Chandur Railway,
District - Amravati.
2. Principal
Shrikrishna High School and
Junior College,
Amla Vishveshwar,
Tq. Chandur Railway,
District - Amravati.
3. The Deputy Director of Education,
Amravati Division, Amravati. ... RESPONDENTS
Shri Anand Parchure and Shri Shrikant Saoji, Advocates for the
Petitioner.
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Shri A.S. Kilor for Respondents No. 1 & 2.
Shri P.D. Kothari/ Shri V.A. Thakare, AGPs for Respondent No. 3.
WRIT PETITION NO. 5196 OF 2009
Shri Wasudeo Pundlik Wairagade,
r/o Dighori, Post - Nanhori,
Tahsil - Bramhapuri,
District - Chandrapur. ... PETITIONER.
Versus
1. Mahatma Fule Shikshan Sanstha,
Bramhapuri, District - Chandrapur,
through its Secretary Shri Kashinath
Kharkate.
2. Wainganga Vidyalaya, Kolari,
Tah - Bramhapuri, District -
Chandrapur, through its Head Master.
3. The Education Officer (Secondary),
Zilla Parishad, Chandrapur. ... RESPONDENTS
Shri P .N. Shende, Advocate for the petitioner.
Shri Upasani, Advocate for Respondents No. 1 & 2.
Shri P. D. Kothari/ V. A. Thakare for Respondent No. 3.
WRIT PETITION NO. 4989 OF 2008
Shri Santoshkumar Bhanudas Dhaye,
aged about 43 years, occupation - Service,
r/o Plot No.L-178/14, Near Sai Mandir,
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V.H.B. Colony, Bajoriya Nagar,
Yavatmal 445 001. ... PETITIONER.
Versus
1. State of Maharashtra,
through its Secretary,
Education Department,
Mantralaya, Mumbai 32.
2. Presiding Officer,
School Tribunal, Amravati
Division, Amravati at
Aurangabad.
3. Shri Yashwant Ramekar Shikshan
Sanstha kamathwada (Chani),
Tahsil - Darwha, Dist. Yavatmal.
4. The Head Master,
Shrimati Janabai Ramekar
Vidyalaya Kamathwada (Chani),
Taluka - Darwha,
District - Yavatmal.
5. The Education Officer (Secondary),
Zilla Parishad, Godhani Road,
Yavatmal. ... RESPONDENTS.
Petitioner in Person.
Shri Amol Mardikar, Advocate for Respondents No. 3 & 4.
Smt. T.D. Khade, Advocate for Respondents No. 1, 2 & 5.
.....
CORAM : B.P. DHARMADHIKARI, J.
DATE OF RESERVING THE JUDGMENT: JANUARY 19, 2010.
(W.P. NOS. 3088/2005 & 5196/2009)
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DATE OF RESERVING THE JUDGMENT: JANUARY 06, 2010.
(WRIT PETITION NO. 4989/2008)
DATE OF PRONOUNCING THE JUDGMENTS : FEB. 15, 2010.
JUDGMENT :
Writ Petition No. 4989 of 2009 was closed for judgment after hearing petitioner Santoshkumar in person and advocates for the respondents. Then W.P. 3088 of 2005 where same question arises came up for final hearing & W.P. No. 5196 of 2009 was listed for admission. Later two petitions were heard finally together with consent of all advocates there. They were also informed about the Writ Petition No. 4989 of 2009, already closed for judgment then.
2. Writ petition 4989/2009 under Art. 226 & 227 of the Constitution of India is fall out of judgment dated 19/9/2005 delivered by me in W.P. 1833/1994 on 19/9/2005 directing Education Officer, Secondary, Z.P. Yavatmal (Resp. 5 there & here) to find out whether time to procure B.Ed. qualification in second proviso to Rule 6 of Maharashtra Employees Of Private ::: Downloaded on - 09/06/2013 15:36:56 ::: 5 Schools (Conditions of Service) Regulation Rules, 1981, hereinafter 1981 Rules framed under the Maharashtra Employees Of Private Schools (Conditions of Service) Regulation Act, 1977 (1977 Act for short), was/is extended further and whether, therefore, the acquisition of B.Ed. training qualification by Petitioner Santoshkumar was within time. If it was within time, this Court also found that Petitioner would in that case be entitled to reinstatement in service. On 27/10/2005 the respondent 5 education officer issued directions to respondent 3 & 4 to reinstate petitioner as per this judgment. That direction was set aside on 23/11/2005 by the Division Bench of this Court in W.P. 5771/2005 after noticing violation of principles of natural justice and education officer was directed to take fresh decision within one month after hearing both sides. Accordingly on 21/1/2006 education officer has given his finding/report that last extension in that respect was till June, 1995 and thereafter time limit is not extended at all. He also recorded contention of petitioner that said time limit was for those untrained teachers who joined before 7/2/1974 or 10/2/1989 and as petitioner ::: Downloaded on - 09/06/2013 15:36:56 ::: 6 came to be appointed on 28/6/1990, government resolution dated 10/2/1994 granting last extension up to June,1995 is not applicable to his case.
3. Writ petition has been filed by petitioner through Adv.
S. Dhole and at the time of issuing notice in the matter on 1/12/2008 this Court recorded same stand of advocate of petitioner Santoshkumar with further contention that there was no time limit prescribed in cases like his to obtain the training qualification. Said advocate was then heard on 2 or 3 occasions by this Court and after 24/7/2009 the petitioner has started appearing in person. The prayers in the writ petition are :- "(i) require respondents to reinstate the petitioner to his original post with back wages & consequential benefit and continuity of services in view of the judgment dated 19/9/2005 in W.P. 1833/1994 as GR no. SSN-2690/(108) Secondary Education-2 is not applicable to the petitioner.; (ii) grant any other relief deemed fit in the circumstances of this petition & (iii) saddle the costs of petition upon the respondents". However, no technical ::: Downloaded on - 09/06/2013 15:36:56 ::: 7 objections as to its form or pleas were raised by any of the respondents and the entire arguments have been to demonstrate incorrectness or otherwise of the report or findings dated 21/1/2006 recorded by respondent No. 5.
4. Initial facts are mentioned by me in the judgment dated 19/9/2005 & show that petitioner had joined on 27/6/1990 and being untrained, he was appointed for 1990-91 session. On 29/6/1991 he was again appointed for 1991-92 session. On 8/5/1992 he was sent on deputation for completing B.Ed. training but on 25/6/1992, he was not allowed to join duties. He filed Appeal no. 110/92-A and School Tribunal granted him interim reinstatement on 22/7/1992. He was however reinstated from 5/3/1993 because of contempt petition 220/1992 filed by him in this Court. On 30.3/1993 he was again terminated mentioning that the management did not require his services and he filed Appeal no. 73/1993-A in which School Tribunal stayed this subsequent termination on 29/5/1993. This interim reinstatement continued till 20/10/1999. On ::: Downloaded on - 09/06/2013 15:36:56 ::: 8 20/10/1999 School Tribunal dismissed his later Appeal as his earlier Appeal 110/92-A was already dismissed by it on 26/4/1994. Both these orders were challenged in WP.
1833/1994. Perusal of judgment dated 19/9/2005 in W.P. 1833/1994 shows that there the extension of time beyond June, 1995 to obtain the training qualification was the only contention advanced by Santoshkumar. Thus only ground that petitioner procured training qualification within prescribed time was the stand raised there with further plea that on 6/7/1999 there was compromise with employer according to which the petitioner had given up back wages if allowed to join duties. As parties could not bring on record correct position, the inquiry by education officer to find out whether May,1998 acquisition of qualification was within stipulated time was therefore ordered in that matter. In paragraph 9 of said judgment this Court has concluded that :-- "However,considering the deed of compromise on record & all the facts mentioned above, it may be in the interest of justice to direct respondent nos. 3 & 4 to reinstate the petitioner back in service if time to obtain qualification was ::: Downloaded on - 09/06/2013 15:36:56 ::: 9 extended after April 1994 and if qualification of B.Ed. as acquired by the petitioner in May 1998 is within such extended period. If it is not within such extended time then no relief can be given to the petitioner in this petition".
5. Santoshkumar has apart from reiterating his stance mentioned above has also filed on records documents to show how elaborate scheme is devised by the State Government to impart training to in-service untrained teachers by providing vacation courses or special quota for them. He points out that respondent 3 & 4 gave an undertaking also not to terminate him while he was sent on deputation for that training. According to him this scheme for training is in consonance with Rule 6 of MEPS Rules,1981 and an untrained teacher who acquires requisite training qualification while in service can not be allowed to be discontinued. Adv. Mardikar as also Adv. Khade have supported the conclusions reached on 21/1/2006 by education officer and they urge that no policy can supersede the express provisions of law i.e. S. 5 of MEPS Act,1977 or Rule 6 of ::: Downloaded on - 09/06/2013 15:36:57 ::: 10 the 1981 Rules.
6. It is at once apparent that petitioner is destroying the very base due to which the intervention of respondent 5 Education Officer was found necessary. Adv. Mardikar & Adv.
Khade have urged that this petition seeks indirectly the review of judgment dated 19/9/2005. Objection to the tenability of the writ petition as filed or to relief as claimed has been raised by the respondents 3 & 4 in their reply affidavit also. Earlier I have found that relief of reinstatement can be given to petitioner only if his acquisition of training qualification is within time and not otherwise. Now, petitioner contends that there is or was no question of any time limit in the matter. In the face of earlier adjudication and the report of education officer dated 21/1/2006, it is clear that only remedy for petitioner in that case was to challenge the judgment dated 19/9/2005. But then it was also incumbent upon the Education Officer to place on record of WP 1833/1994 various G.Rs. pointed out by the Santoshkumar now. State Government and Education Officer could not have ::: Downloaded on - 09/06/2013 15:36:57 ::: 11 suppresses such material. Education Officer has also not referred to these G.Rs. even in his report dated 21/1/2006. Hence, as form of pleadings is never decisive and as petitioner is appearing in person, I have undertaken further exercise to find out the correctness or otherwise of his stand. All respondents are aware of the nature of challenge and have addressed the Court. In the meanwhile two other writ petitions in which same issue is directly involved have also come up for consideration. Advocate Parchure with Adv. Saoji & Adv. Shende appearing for teachers-
petitioners there have effectively tried to work out legal right in favour of their clients. It is clear that absence of time limit to obtain training qualification and effect of such absence are the questions involved here. It will be appropriate to briefly narrate the facts and controversy in other two writ petitions before proceeding further.
7. In W.P. no. 3088 of 2005 where same question arises and matter was for final hearing , I have heard Adv. Parchure with Adv. Saoji for petitioner Sanjay and Adv. Kilor for ::: Downloaded on - 09/06/2013 15:36:57 ::: 12 management. Petitioner Sanjay was in continuous service in junior college from 8/8/1994 and as he did not possess B.Ed.
qualification, he was appointed from 8/8/1994 till 6/5/1995.
Experience certificate dated 27/3/1997 issued by the principal shows that including then current session 1996-97, he had worked for 3 sessions. Approval order dated 15/7/1996 shows that the Deputy Director granted him approval from 2/8/1995 till 1995-96 due to backlog & as he was untrained. Deputation certificate dated 24/4/1995 shows that he was deputed on full salary for vacation B.Ed. It also contains an undertaking that he would be continued in the institution from May, 1996 till March,1997. He appeared for final B.Ed. examination in summer of 1997 and cleared it. When he went to join duties on 1/7/1997, his employers did not permit him to join and thus orally terminated him. Counsel for Sanjay pointed out that there was no one month written notice as per Rule 28(1) of 1981 Rules. He contends that finding on this issue is not recorded and School Tribunal proceeds as if service of notice of termination is accepted. The management was duty bound to continue Sanjay ::: Downloaded on - 09/06/2013 15:36:57 ::: 13 in service and there was no question of his applying in response to any advertisement. Subsequent selections in pursuance to such advertisement are therefore totally irrelevant and School Tribunal could not have dismissed the appeal as persons so selected were not joined as parties. Adv. Kilor states that Sanjay was unqualified and hence had no right to post as he was not & could not be put on probation. Undertaking by the management was for stipulated period and did not guarantee any continuation. There could not be any automatic absorption of such unqualified person qualifying later unless he competes with other qualified candidates. The provisions of S.5 of 1977 Act & Rule 9 of 1981 Rules contemplate public advertisement and an open selection process. He therefore supported the order of School Tribunal. It is also urged that as appointment was time bound, no separate notice of termination was warranted.
Learned AGP has supported the impugned judgment of the School Tribunal. All Counsel have cited some judgments.
8. W.P. 5196/2009 listed for admission was heard finally ::: Downloaded on - 09/06/2013 15:36:57 ::: 14 with W.P. no. 3088 of 2005 as very same question arose there.
Adv. P.N. Shende argued for petitioner Wasudeo and Adv.
Upasani defended the management. Arguments of both the learned Counsel are not much different. Maharashtra Secondary & Higher Secondary Boards Regulations,1977, particularly its Part II and Clause 28 dealing with procedure for recognition of institutions by Divisional Board are pointed out to show that its sub-clause 7 (xvi) requires respondent schools to comply with provisions of Secondary School Code in so far as they are not inconsistent with the provisions of Maharashtra Secondary & Higher Secondary Boards Act & the Regulations. GR dated 29/1/2008 perused by the Tribunal gave untrained graduate teachers appointed by management as per GR dated 14/11/1979 and to be appointed in future on post of trained graduate teachers, time of 7 years from their appointment instead of 5 years to obtain the B.Ed. qualification. In default their future increments are to be stopped till they obtain the qualification.
School Tribunal found that Wasudeo was teaching 8 to 10th standards and hence, these GRs applicable to middle schools ::: Downloaded on - 09/06/2013 15:36:57 ::: 15 having 5th to 7th standards was not helpful. It is important to note that nobody has disputed this position as incorrect. In addition it is also found that Petitioner did not obtain that qualification within 5 years of his appointment i.e. within period prescribed by clause 59 of S.S. Code. Wasudeo was appointed on 17/8/1993 and his B.Ed. mark sheet is dated 11/12/1998 i.e. after 5 years.
He did not produce statement of marks for May,1998 examination. According to Adv. Shende the School Tribunal overlooked the fact that Wasudeo was deputed for vacation training of 2 years from 1996 to 1998, that there was clear undertaking to absorb him in permanent service and that the post was still vacant. He asserts that the post is vacant even today. Adv. Upasani on the other hand has contended that appointment was on year to year basis with no right to post and hence reinstatement has been rightly declined. He also relies upon some judgments to support the findings of the School Tribunal. In case of Wasudeo, School Tribunal has found that management could not establish his alleged appointment against a reserved vacancy. Learned AGP has supported the ::: Downloaded on - 09/06/2013 15:36:57 ::: 16 impugned judgment. Various precedents are pressed in to service by parties to buttress their stance.
9. Adv. Kilor & Adv. Upasani also urge additionally that in view of express scheme of 1977 Act and 1981 Rules, undertaking or clause 59 of S.S.Code can not prevail and precedence needs to be given to intention of legislature. Respective learned AGPs though support the judgment of School Tribunal, urge that issue of alleged inconsistency between Rules & policy does not require adjudication in these matters. Such inconsistency according to them is being artificially created.
10. GR No. SSN-2690/(108) Secondary Education-2 dated 10/2/1994 or extension accorded thereby to time limit to acquire B.Ed. qualification till June 1995 is not in dispute and State has also filed its reply affidavit that there is no further extension thereafter. In present writ petition 4989/2008 nobody claims that case of Santoshkumar is governed by it. Thus the facts which emerge here show absence of any provision ::: Downloaded on - 09/06/2013 15:36:57 ::: 17 prescribing time limit for petitioner Santoshkumar or other two employees to obtain the training qualification of B.Ed. In the absence of any such policy, Santoshkumar has relied upon certain government decisions to urge that employee undergoing training training can not be terminated. Here both the terminations i-e. 25/6/1992 & 30/3/1993 of Santoshkumar were during his B.Ed. course. It is not in dispute that his appointment and approval were on year to year basis. Because of interim order of School Tribunal he continued to work till 20/10/1999 when his later Appeal 73/1993-A came to be dismissed. Thus during training and till he acquired B.Ed. degree in May,1998 he was in service. Therefore whether he had any right to post entitling him to grant of relief of reinstatement is the issue. Along with his affidavit dated 24/11/2009, Santoshkumar has filed 6 resolutions. He has argued that all these resolutions make special arrangements for untrained teachers in service and do not contemplate termination of their services but aim at their continuation only. According to him several thousand teachers not only in Maharashtra but also in ::: Downloaded on - 09/06/2013 15:36:57 ::: 18 country will loose their jobs if his version is not accepted. I have perused those GRs. and I find that these resolutions prescribe procedure for admission to regular, part-time and vacation B.Ed.
courses run by Government/Grant in aid Colleges of Education.
Resolution dated 13/5/1994 assigns separate 20% quota for serving untrained teachers & stipulated that undertaking of management not to discontinue such teacher after he obtained training qualification must accompany his admission form.
Resolution dated 20/12/1994 required employer to undertake to continue such untrained teacher in service during training and after its completion. As per GR dated 15/1/1997, this requirement continued for year 1997-98 also. Vide GR dated 9/1/1998 this was continued for 1998 - 1999 session also.
Santoshkumar got his B.Ed. degree in May,1998. He was already in service at that time and his employer must have given the undertaking as per these GRs. Santoshkumar has produced a deputation certificate dated 5/5/1992 issued by the president of institution which deputes him for vacation B.Ed. 1992-1994 while in service with undertaking that he would be absorbed in ::: Downloaded on - 09/06/2013 15:36:57 ::: 19 permanent service as science teacher after its completion.
11. The requirement of such undertaking or its prescribed contents are not in dispute between parties. It is clear that even if in any undertaking like that of Sanjay (WP 3088/2005) there was some deviation, that by itself can not justify the termination, if undertaking is legally binding. This undertaking and government resolutions having bearing on it were not pointed out to School Tribunal in matter of Santoshkumar or to this Court when it decided WP 1833/1994. But then affidavit reply dated 5/2/2009 filed by the respondent 5 Education Officer in his matter shows that petitioner Santoshkumar was given permission to avail B.Ed. training in 1992 till 1994 on 20/6/1992. He without completing his training approached respondent 3 & 4 to join duties and at that time respondent 3 & 4 had appointed one Dilip Shingane, a trained graduate teacher.
Santoshkumar then appealed to School Tribunal in Appeal 110/92-A and that appeal was dismissed on 26/4/1994. The judgment dated 19/9/2005 of this Court covers the adjudication ::: Downloaded on - 09/06/2013 15:36:57 ::: 20 in this Appeal also. These G.Rs. do not prescribe any outer time limit to obtain the training qualification. But then does that mean that Santoshkumar could have acquired the qualification at any time. Prospectus (Brochure) of Yashwantrao Chavan Open University, Maharashtra for year 1991-92 supplied by the petitioner Santoshkumar himself shows that its course of three six-monthly semester could be completed within 5 years but then Santoshkumar was not student of that course. Deputation certificate dated 5/5/1992 issued by respondent 3 here shows that Santoshkumar was deputed for in-service training course during 1992-1994. Undertaking that after completion of that course, Santoshkumar would be absorbed in permanent service is in it. He has not come with case that this deputation was extended further till May,1998 or was to continue till he successfully completed the course. Deputation training while in service appears to be the concession given by the government and that concession can not be presumed to remain in force indefinitely. If such unlimited life or effect is given to it, it may impinge upon the rights of other regular candidates obtaining ::: Downloaded on - 09/06/2013 15:36:57 ::: 21 B.Ed. qualification normally every year. It is necessary to find out what 1977 Act & 1981 Rule say in this regard. Petitioner In case of Wasudeo in WP 5196/2009, he was deputed for vacation training of 2 years from 1996 to 1998 & there was clear undertaking to absorb him in permanent service after its completion. Deputation certificate dated dated 24/4/1995 of Petitioner Sanjay in WP 3088/2005 shows that he was deputed on full salary for vacation B.Ed. Undertaking there is only that he would be continued in the institution from May, 1996 till March, 1997. He completed training after that period i.e. in May,1997.
12. Section 5 of 1977 Act deals with certain obligations of management of private schools. Its part relevant here (subsection
1) mandates that the Management shall, as soon as possible, fill in, in the manner prescribed, every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy. Subsection 2 prescribes that every person appointed to fill a permanent vacancy shall be on probation for a period of two years. Subject to the provisions of sub-sections (3) ::: Downloaded on - 09/06/2013 15:36:57 ::: 22 and (4), he shall, on completion of this probation period of two years, be deemed to have been confirmed. As per subsection (5) even a temporary vacancy has to be filled in by appointing a person duly qualified to fill such vacancy & the order of appointment is to be drawn up in the form prescribed in that behalf, and has to state the period of appointment of such person. The qualifications are prescribed by Rule 6 & Schedule B of 1981 Rules. In order to establish a right to post, the petitioner must therefore show that there existed a permanent vacancy, he possessed requisite qualifications and he was selected after an open selection process. Here it is admitted position that none of the petitioners were possessing the mandatory training qualification at the time of their respective selection & initial appointment. This emphasis on qualification also becomes apparent from Rule 6. The proviso to Rule 6 are as follows:-
"Provided that, the Education Officer may allow Managements to appoint untrained Science graduate teachers for teaching Mathematics and Science subjects or untrained Arts or Commerce graduates for teaching other subjects in secondary schools in exceptional ::: Downloaded on - 09/06/2013 15:36:57 ::: 23 circumstances, such as non availability of trained graduates. Such appointments shall, however, be allowed on year to years basis, on the clear understanding that they shall have to obtain training qualification at their own cost and further subject to the condition that their services shall be liable for termination as soon as trained graduate teachers become available.
(Provided further that the untrained graduate appointed as a teacher after obtaining the permission from the Education Officer before the commencement of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and who continues to be in service in any school on the date of commencement of the Maharashtra Employees of Private Schools (Conditions of Service) (Amendment Rules, 1984 shall, be continued in service on the condition that he obtains the prescribed training qualifications at his own cost before 1st June 1987, unless he has already obtained such qualifications, failing which his services shall be terminated)."
13. The management can thus appoint untrained teacher only in exceptional situation when trained teacher is not ::: Downloaded on - 09/06/2013 15:36:57 ::: 24 available but then the Education Officer has to permit it. Even after such permission, the untrained candidates like petitioners can be appointed on year to year basis. Thus they do not get or have any right to post. Though vacancy is clear, untrained teacher can not be appointed against it & he can not be put on probation. There is clear mandate in Rule 6 that such untrained candidate has to acquire training qualification at his own expenditure. No time limit is allowed therefor by law and his service is bound to be terminated as soon as trained teacher becomes available. In other words, if a trained teacher becomes available in less than one year, the untrained teacher so appointed has no option but to walk out. Thus there is no security of tenure at all & arrangement made by way of exception or concession must come to an end at the earliest. S. 5 requires training for selection not only against a permanent but also for temporary post. This exceptional appointment permitted by the law therefore again highlights the legislative mandate on possession of training qualification. Exception has been allowed only in the interest of students and deviation is permitted only ::: Downloaded on - 09/06/2013 15:36:57 ::: 25 under strict supervision of the education department. Second proviso which appears to be a transitory provision gives very limited protection to old i.e. pre 1984 untrained teachers and they are given some time to get themselves trained. Time till 1/6/1987 granted thereunder was last extended till June 1995.
As already held above this second proviso has no application here. Scheme of Section 5 and Rule 6 both therefore reveal the emphatic primacy given to the carrier of the students by the legislature. In this background when respondent 3 & 4 in WP 4989/2008 got trained teacher in 1992 itself, prayer of Santoshkumar who could get B.Ed. degree in May, 1998 to reinstate him can not be entertained. There was no legally enforceable undertaking by his employers in May 1998 when he procured the said training qualification. Exception made by the legislature can not here be made the basis of claim to relief of reinstatement or right to post. The exception can not be stretched to break legislative mandate itself.
14. Law has consistently held appointments of unqualified ::: Downloaded on - 09/06/2013 15:36:57 ::: 26 candidates illegal and no right flows therefrom in their favour. In AIR 2008 S.C. 1817 "Pramod Kumar v. U. P. Secondary Education Services Commission", Hon'ble Apex Court relies upon Secretary, State of Karnataka and others v. Umadevi (3) and others, ((2006) 4 SCC 1) National Fertilizers Ltd. and Ors. v.
Somvir Singh, ((2006) 5 SCC 493) and Post Master General, Kolkata and Ors. v. Tutu Das (Dutta), ((2007) 5 SCC 317) to conclude that if the essential educational qualification for recruitment to a post is not satisfied, ordinarily the same cannot be condoned. An appointment which is contrary to the statute/statutory rules would be void in law. An illegality cannot be regularized, particularly, when the statute in no unmistakable term says so. It is therefore more than clear that recruitment of trained teacher by management when Santoshkumar could not complete B.Ed. within reasonable time can not be objected to.
The undertaking of his employers to continue him in service or to absorb him after Santoshkumar procured B.Ed. can not be perpetual and run contrary to mandate of proviso to Rule 6 above. Validity of said undertaking of his employer need not be ::: Downloaded on - 09/06/2013 15:36:57 ::: 27 gone into here as it looses its relevance after reasonable time.
His deputation & undertaking therein was for 1992 - 1994 only.
In facts before me, competition of B.Ed. after 6 years can not be said to be within reasonable time. There are few judgments of this Court which consider Rule 6 of 1981 Rules itself & I find reference to 2007 (7) LJSOFT (URC) 98--Shree Shiv Chhatrapati Education Society & Anr. Vs. Naarendra Kashinath Choudhari & Anr. sufficient as it shows the rigour of Rule 6 & S.5. As Santoshkumar was not qualified his appointment was purely temporary only. This Court has held that it is the statutory requirement that teacher need to possess training qualification and in the absence of it such a candidate cannot claim any right to the post . Respondent No.1 employee there had failed to acquire training qualification though he was in service for about five years. An untrained teacher like him was held not to have any right to the post & it is declared that no fault can be found in termination of such an employee.
15. In Anuradha Ashok Dixit vs. Shiv Sena Kulgao ::: Downloaded on - 09/06/2013 15:36:57 ::: 28 Zopadpatti Seva Mahasangha - (1999) II CLR 591 this High Court has concluded that power of management to terminate untrained teacher under Rule 6 can not be taken away in absence of a valid statutory instrument. An untrained teacher remains a temporary teacher who can be terminated by giving one month notice. There the petitioner had contended that time to obtain training qualification was extended by GR which was found to be issued after her termination & hence, not applicable.
Learned Single Judge has further held that mere extension of time to procure the training qualification does not suspend the statutory power of management to terminate the untrained teacher who continues only as temporary employee. Other learned Single Judge has on 8/10/2008 in W.P. 1727/2007 Shri Sant Gajanan Maharaj vs. Devendra Bhagwani Matode held the undertaking to absorb after completion of B.Ed. vacation training 1998-2000 was binding on management. It was there concluded that management continued employee in service from 1994 till 2000 and never wanted to terminate him on availability of trained teacher. There were no complaints against him and it has ::: Downloaded on - 09/06/2013 15:36:57 ::: 29 been held that management,s contention that his appointment was not as per S. 5 of 1977 Act was afterthought. It thus turned mostly on facts & the issue of overriding effect of Rule 6 of 1981 Rules and impact of such undertaking on it was never put before this Court. It may also be noted here that in Malanbai T. Satpute vs. Dy. Director of Education - 2002(2) Bom.C.R. 677 this Court through its learned Single Judge did not find any merit in the contention of management that it terminated services because of government circular dated 22/2/1997 and observed that when a permanent post is occupied by an incumbent and he is confirmed in terms of section 5 of the MEPS Act,1977, his services can be interfered with only by following the provisions contained in rule 26 on account of reduction in the number of classes or fall in number of students. Being so by virtue of fall in number of students there cannot be an automatic abolition of any permanent post of an employee in the primary school. In view of the statutory provisions contained in section 5 of the said Act read with rule 26 of the said Rules, no letter of Education Officer can supplement or substitute the provisions of law contained in ::: Downloaded on - 09/06/2013 15:36:57 ::: 30 the said section 5 and the said rule 26. The statutory provisions are bound to prevail upon any such letters or contents thereof.
Being so, no value was attached to the finding of the Tribunal based on the letter dated 22-2-1997. It is declared that no provision in 1977 Act or 1981 Rules gives power to state government / executive to issue any circular or directions contrary to statutory mandate contained therein.
16. Clause 59 of S.S.Code & issue of inconsistency between Act/Rules & policy also needs to be gone into briefly.
Adv. Upasani has relied upon Raghunath Rai Bareja vs. Punjab National Bank reported at 2007(3) Mh.L.J. 83 (SC) where it is declared that Court has to administer justice according to law and considerations of fair play & equity, though important must yield to clear and express provisions of law. Such unambiguous provision of law can not be interpreted in different manner, only because of harsh consequences arising therefrom. Statement of objects of 1977 Act shows that earlier service conditions of employees like petitioners were determined by the executive ::: Downloaded on - 09/06/2013 15:36:57 ::: 31 orders of State Government. For the first time an enactment in the shape of 1977 Act has been brought into force for that purpose & to regulate their recruitment & employment. 1977 Act & 1981 Rules came into force for the first time from 16/7/1981.
In this background though the provisions of Clause 58.1 & 59 of S.S.Code may be found statutory in character, the same can not supersede S. 5 of 1977 Act or Rule 6 of 1981 Rules. In any case neither of these clauses of S.S. Code gave protection in service expressly though obligation to obtain training qualification within 5 years was cast on an untrained incumbent. It follows that express language of Rule 6 clearly militates with those clauses and hence, now those clauses can not be construed to confer any protection or an assurance of continuation or absorption in service.
17. Thus it is apparent that not obtaining B.Ed. within 5 years of joining or then getting it within 2 years of management sending the incumbent on deputation is not very material here.
The incumbent being untrained was not appointed against a ::: Downloaded on - 09/06/2013 15:36:57 ::: 32 clear vacancy permanently. He was not and could not have been put on probation. It is obvious that no lien or reservation therefore can be created in favour of such untrained person and he is not expected to continue to occupy that vacancy for 5 years if trained teachers become available in the meanwhile. Rights & obligations of untrained incumbent and management are both circumscribed by Rule 6 read with S. 5 and no statutory instrument modifying the mandate therein is pointed out to me.
In all three matters, petitioners have been replaced by trained teachers duly selected. In case of Santoshkumar selection & appointment of trained teacher has taken place when he was untrained. In case of Wasudeo , School Tribunal found that he could not obtain the B.Ed. degree within prescribed 5 years. In case of Sanjay, though he obtained training qualification in May 1997, he chose not to apply in response to advertisements dated 25/6/1997 & 13/8/1997 by his management. One R.G. Mhaske, a trained teacher then came to be selected. Next year, as Mhaske resigned fresh advertisement was published on 23/6/1998 and again Sanjay chose not to apply. His management then selected ::: Downloaded on - 09/06/2013 15:36:57 ::: 33 Shri Jawarkar, a duly trained teacher. Appointment of Sanjay was on year to year basis and in view of mandate of Rule 6, he was aware of the same. School Tribunal is therefore justified when in paragraph 14 of its judgment while deciding issue no. 5 it found that his service came to an end by efflux of time. Controversy about service of notice dated 31/3/1997 terminating him from 11/5/1997 is not very relevant. Rule 28(1) of 1981 Rules is not attracted here and Adv. Kilor has rightly relied upon judgment of this Court in Akbar Peerbhoy College vs. Mrs. Pramila N. Kutty reported at 1997(3) Mh.L.J. 195, particularly paragraph 13 in this regard. Moreover provisions of S. 5 of 1977 Act are very clear and merely acquiring a training qualification within 2 years or 5 years can not dispense with the open selection process and mature or crystallize in to a right to post automatically. Division Bench judgment of this Court in 2003(2) Mh.L.J. 432--Kondiba vs. State of Maharashtra is not useful here as it holds that provisions of 1977 Act & 1981 Rules are not applicable to municipal schools which continue to be regulated by S.S. Code. Division Bench of this Court relied on by AGP viz.
::: Downloaded on - 09/06/2013 15:36:57 ::: 34Priyadarshini Educational Trust vs. Ratis Bano - 2007 (6) Mh.L.J. 667 meets the arguments advanced before me succinctly and precisely. I find its reproduction sufficient to rebut the similar arguments before me. Division Bench in para 11 states:-
"11. It was argued by Advocate Shri Kazi that Rule 9 is the only rule, regarding the manner of appointment of staff and, therefore, the procedure as contained in this rule, must be taken as "in the manner prescribed" as contemplated by sub-section (1) of Section 5. He also referred to sub-rule (8) and pointed out that the said sub-rule makes a provision for advertisement of the vacancy in at least one newspaper having wide circulation, when the management desires to fill in the vacancies reserved for SC/ST/DTNT/OBC. According to him, sub-rule (3) makes no such provision and, therefore, it must be inferred that there is no necessity to issue an advertisement for the purpose of filling up vacancies of open category.
We are unable to appreciate, much less accept, such an argument. Referring to proviso to sub-section (1) of Section 5 of the Act, it is evident that, as soon as there is vacancy, the management is required to communicate with the Education Officer, Zilla ::: Downloaded on - 09/06/2013 15:36:57 ::: 35 Parishad. The vacancy is to be filled in, from the list of surplus persons maintained by the Education Officer.
This is the first indication of control of the State over the recruitment and appointment of staff, even of private schools. Even on reference to sub-rule (3) of rule 9, the candidate eligible for appointment and desirous of applying for such post, is required to apply in writing, by giving full details. We are unable to visualize a possibility of deserving candidate knowing about the vacancies in any private schools, unless the school invites applications by advertisement. The persons, who may learn about vacancies without advertisement, may only be kith and kins or those in close contact with the management or at the most staff members. If argument of Advocate Shri Kazi is to be accepted, it will be tantamount to accepting that rule 9 is drafted in such a manner as to promote nepotism, so far as appointments of open category candidates to teaching and non-teaching posts in private schools are concerned. If the argument of Advocate Shri Kazi is to be accepted, rule 9 will have to be read in a fashion, where reserved category candidates are required to enter the service by competing amongst themselves, but an open category candidate may be in a position to seek an ::: Downloaded on - 09/06/2013 15:36:57 ::: 36 appointment without competing. Legislature could not have intended to prescribe a manner of recruitment which would discriminate between reserved and un- reserved categories in respect of manner in which they can seek appointments. A legislation making it easier for a reserved candidate, may be justified, in view of Article 15(4) of the Constitution. But, a reverse position cannot be justified by any line of argument.
Article 14 guarantees equality before law and Article 16 gives equality of opportunity in the matter of public employment. Article 16 (1) reads;
"16. Equality of opportunity in matters of public employment. (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State."
In case we are to accept the submission as advanced by Advocate Shri Kazi, Rule 9 not only creates a discrimination in the recruitment and appointments of candidates between reserved and unreserved categories (making it more difficult for the reserved categories), but it also denies equal opportunity for all citizens desirous of seeking employment/appointment. In the absence of any advertisement, only those favoured by nepotism will be able to seek ::: Downloaded on - 09/06/2013 15:36:57 ::: 37 employment/appointments at the cost of all equally placed and desirous candidates, who are ignorant of such vacancies. Any procedure for recruitment/appointment, which does not afford equal opportunity to all eligible and deserving candidates to compete for seeking appointment and employment, must be seen and termed as unconstitutional as being violative of Articles 14 and 16(1).
On reference to Rule 9 Sub-Rule 2, it
-------------................------------..........for a limited period such as one academic year or shorter than that. Thus, although sub-rule (3) of rule (9) does not specifically speak of requirement of publication of vacancies by an advertisement and inviting applications from candidates eligible and desirous of seeking appointment, as sub-rule (8) speaks for the purpose of filling up the vacancies reserved under sub- rule (7), requirement of such an advertisement must be read within the provisions for the reasons discussed hereinabove and which may be summarized, at the cost of repetition as follows.
(i) Statute is enacted for the purpose of regulating the recruitment in private schools in the State. (ii) Interpretation that sub-rule 3 of rule 9 does not prescribe publication of advertisement, when read in ::: Downloaded on - 09/06/2013 15:36:57 ::: 38 the light of sub-rule 8, would be discriminatory and capable of promoting arbitrariness and nepotism.
(iii) Such an interpretation would be against the spirit of Articles 14 and 16 of the Constitution, and therefore, interpretation which would make rule 9 unconstitutional will have to be rejected.(iv) When sub-section 2 of section 5 compels the Management to appoint eligible, duly selected candidate only on probation, the backdoor entry of a person who alone knows about existence of vacancy cannot be accepted as palatable interpretation either of rule 9 or section 5 read with rule 9."
This judgment in paragraph 10 also says that notice under Rule 28(1) of 1981 Rules is not necessary when appointment comes to an end by efflux of time.
18. From above discussion it follows that the government resolutions mentioned above and produced on record by petitioner Santoshkumar and relied upon by all three petitioners can not modify the legislative mandate. They can not claim any right to post and reinstatement by virtue thereof. Only ::: Downloaded on - 09/06/2013 15:36:57 ::: 39 concession made in their favour appears to be a separate quota for admission to that course and facility of in-service training.
But then due to mandate of S. 5 of 1977 Act permanent vacancy with institution is liable to be filled in at the earliest by appointing qualified/trained person and by putting him on probation. Such permanent arrangement at the earliest is in the interest of students and ultimately the educational goals of State administration. Trained qualified teachers become available every year and keeping some of them out because some person appointed by way of concession is getting himself trained will not only be arbitrary but also loss of talent to Nation and will amount to failure to put the expertize to its due use. It may also be discriminatory. Therefore only legislature prescribed year to year appointment of candidates like petitioners with express mandate of replacing the untrained teacher by trained one as soon as possible. Rule 6 of 1981 Rules as applicable here does not prescribe any time limit and does not protect services of untrained teacher. He, in his own interest, has to procure that qualification as early as possible & at his own cost. When ::: Downloaded on - 09/06/2013 15:36:57 ::: 40 permanent vacancy can be filled in through open competitive selections in which all eligible i.e. trained graduate aspirants must participate, untrained teachers getting appointment as a concession can not defeat that process by claiming any exemption from it. Management has to advertise the vacancy with it every year to find out whether trained teacher becomes available or not. Untrained teacher appointed on year to year basis has to apply in response to it and only when the duly qualified teacher does not surface, he can be selected. His/Their appointment is year to year and till the post is not filled in permanently through a duly selected trained teacher, they have no option but to face such selections. Even after acquiring training qualification, for their permanent selections and appointment on probation, they have to compete with others.
After getting B.Ed. qualification, Legislation does not permit them to avoid competition with trained teachers when post is sought to be filled in permanently. In service training facility does not confer any precedence in their favour.
::: Downloaded on - 09/06/2013 15:36:57 ::: 4119. It follows that the petitioner Santoshkumar in W.P. 4989/2008 can not be reinstated with back wages ,consequential benefits and continuity of services only because of the judgment dated 19/9/2005 in W.P.1833/1994 as GR no. SSN-2690/(108) Secondary Education-2 is not applicable to the him and no interference is warranted with report or findings dated 21/1/2006 recorded by respondent 5 therein. Similarly no fault can be found with judgments of School Tribunal impugned respectively in W.P. 3088/2005 or in W.P. 5196/2009.
Consequently all the three writ petitions are dismissed. Rule discharged in all the matters with no order as to costs.
JUDGE ******* *dragon/GS.
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