Bombay High Court
Sachin Pranjabrao Surwade And 2 Others vs State Of Maharashtra, Through ... on 28 August, 2019
Equivalent citations: AIRONLINE 2019 BOM 1571
Author: R.K. Deshpande
Bench: R.K. Deshpande, Vinay Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.4079 of 2019
1. Sachin Panjabrao Surwade,
Aged : 33 Yrs., Ocu: Nil,
R/o Maratha Vihar,
Near Gopal Nagar, Amravati,
Tq. and Dist. Amravati.
2. Bhagwan Shrikrushna Ingle,
Aged : 36 Yrs, Ocu: Nil,
R/o : Advihir, Taluqa: Motala,
District: Buldhana.
3. Manoj Rameshrao Mahore,
Aged: 31 Yrs, Ocu: Nil,
R/o: Kishor Nagar, Amravati,
Tq. and Dist. Amravati. ... Petitioners
Versus
1. State of Maharashtra,
Through Principal Secretary,
School, Education and Sports
Department, Mantralaya,
Mumbai.
2. Directorate of Education,
(Secondary and Higher Secondary),
Maharashtra State,
Pune. ... Respondents
Shri S.B. Gandhe, Advocate for Petitioners.
Shri A.M. Deshpande, Additional Government Pleader for
Respondents.
Coram : R.K. Deshpande & Vinay Joshi, JJ.
Dated : 28th August, 2019
Oral Judgment (Per R.K. Deshpande, J.) :
1. Rule, made returnable forthwith. Heard finally by consent of
the learned counsels appearing for the parties.
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2. The challenge in this petition is to the Government Resolution
dated 7-2-2019 along with the Corrigendum dated 25-2-2019, which
prescribes the criteria of having 50% marks at the qualifying graduate
or post-graduate examination for appointment to the posts of teachers
to teach Standards IX to XII in the Private Schools governed by the
provisions of the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977 (MEPS Act) and the
Rules framed thereunder.
3. The minimum qualifications for appointment to the posts of
teachers in the Private Schools are governed by the provisions of
sub-rules (1) and (2) of Rule 6 of the Maharashtra Employees of
Private Schools (Conditions of Service) Rules, 1981 (MEPS Rules),
dealing with the qualifications of teachers and non-teaching staff,
which are reproduced below :
"6. Qualifications of teachers and non-teaching staff.--
(1) The minimum qualifications for the posts of teachers
and the non-teaching staff in the primary schools,
secondary schools, higher secondary schools, junior colleges
and junior colleges of education shall be as specified in
Schedule 'B'.
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(2) The Government or the agency authorized by the
Government shall conduct the Eligibility Test and Aptitude
Test for the appointments of the teachers or shikshan
sevaks for standard I to VII and Aptitude Test for the
appointments of teachers or Shikshan Sevaks for
standard IX to XII in the private aided schools, partially
aided schools and schools eligible for grant-in-aid, from
time to time."
Part II in Schedule 'B' deals with the qualifications for trained
teachers in Secondary Schools and Junior Colleges of Education.
A trained graduate teacher means one who possesses a Bachelor's
degree in Teaching or Education of any statutory University or a
qualification recognized by the Government as equivalent thereto
along with a professional certificate, a diploma or a degree recognized
by the Department which qualifies him for a teaching post in a School.
A full-time teacher in Junior College means a teacher who possesses a
Master's degree of a statutory University in second class in the
respective subjects plus B.Ed., or a Diploma or a Certificate in
Teaching, approved by the Department. It is only after possessing
these qualifications for appointment to the teaching posts in
Standards IX to XII that a person becomes eligible to appear for the
Eligibility Test and Aptitude Test, as prescribed in sub-rule (2) of
Rule 6, reproduced above.
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4. The petitioners, who are desirous of getting recruited to the
posts of teachers in Private Schools to teach Standard IX to XII, satisfy
the criteria of minimum qualifications prescribed under sub-rules (1)
and (2) of Rule 6 read with Schedule 'B'. All of them possess either
graduate or post-graduate degree in second class and had appeared for
the Teacher's Aptitude and Intelligence Test (TAIT) conducted as per
the Government Resolution dated 23-6-2017, as was modified on
7-2-2019, keeping in view the decision rendered by this Court on
21-1-2018 in Writ Petition No.5059 of 2018 during 12-12-2017 to
21-12-2017. The results of these examinations were declared on
1-3-2018.
5. It is not in dispute that about 12,140 posts of teachers to teach
Standards IX to XII were advertised on the 'PAVITRA' Portal
during 22-2-19 to 8-3-2019, out of which 8,020 posts were available in
the Schools run by Nagar Parishad, Mahanagar Palika and
Zilla Parishad, whereas 3,060 posts were in the Private Aided Schools.
The petitioners are held to be ineligible to apply for these posts by
providing access to the 'PAVITRA' Portal on the ground that by the
Government Resolution dated 7-2-2019 read with the Corrigendum
dated 25-2-2019, the criteria of having 50% marks at the graduate or
post-graduate level is prescribed under Schedules 'C' and 'D', appended
to the said Government Resolution, and none of the petitioners possess
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such marks at the graduate or post-graduate level. The petitioners
have, therefore, approached this Court, as they stood ousted from the
zone of consideration, though they do possess the minimum
qualifications prescribed in Rule 6 read with Schedule 'B' of the MEPS
Rules, referred to above, and have passed the TAIT Examination.
6. On 14-6-2019, this Court passed an order as under :
" The petitioners were successful in the Teachers Ability and
Intelligence Test (TAIT) examination held during the period
between 12th December, 2017 and 21st December, 2017, the
results of which were declared on 1st March, 2018. The
petitioners are qualified in terms of the qualifications prescribed
in Schedule "B" for selection and appointment to the post of
Teachers in standards IX, X, XI & XII. However, by Government
Resolution dated 7th February 2019, the criteria of qualification
is changed and acquisition of 50% of marks at the graduate and
post-graduate level is introduced which is not there in Schedule
"B". As a result, the petitioners are ousted form competition and
unable to apply for employment pursuant to several
advertisements which have been issued.
Issue notice to respondents for final disposal of the matter,
returnable on 21st June, 2019.
Learned Addl.G.P. Mr. Anand Fulzele, waives service of
notice on behalf of respondent nos.1 and 2.
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The process of selection may go on pursuant to such
advertisements; however the order of appointment shall not be
issued."
We are informed that the process of selection has gone ahead
and though the candidates are selected, no appointments are made as
yet in view of the aforesaid order passed by this Court.
7. The question is whether the action of the respondents is
illegal and justifiable to deny the petitioners the access to the
'PAVITRA' Portal and to oust them from the zone of consideration on
the basis of the criteria of 50% of marks at the graduate or post-
graduate level, prescribed in the Government Resolution dated 7-2-
2019 read with the Corrigendum dated 25-2-2019.
8. The recruitment and conditions of service of employees in the
Private Schools are governed by the MEPS Act and the Rules framed
thereunder. Section 16 of the MEPS Act confers the power upon the
State Government to frame the rules, and sub-sections (1) and (2)
therein being relevant, are reproduced below :
"16. Rules.
(1) The State Government may, by notification in the
Official Gazette, make rules for carrying out the purposes of
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this Act.
(2) In particular and without prejudice to the generality of
the foregoing power, such rules may provide for all or any of
the following matters, namely :-
(a) the minimum qualifications for recruitment of
employees of private schools (including its procedure);
(b) their scales of pay and allowances;
(c) their post retirement and other benefits;
(d) the other conditions of service of such employees
including leave, superannuation, re-employment and
promotions;
(e) the duties of such employees and Code of Conduct
and disciplinary matters;
(f) the manner of conducting enquiries;
(g) any other matter which is required to be or may be
prescribed."
The minimum qualifications for recruitment of employees of
Private Schools, including its procedure, are governed by the Rules
framed in exercise of the power conferred under clause (a) of sub-
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section (2) of Section 16, reproduced above. Such Rules have already
been framed, called as "The Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981" and published in the Official
Gazette on 16-7-1981.
9. In Para 5 of the affidavit dated 3-8-2019, filed on behalf of
the respondents, the stand is taken as under :
"5. The answering respondent submit that in the said GR, it is
specifically stated that the educational eligibility criteria for the
candidates to be selected as teachers for standard 9 th to 12th will
be as per the criteria prescribed in the Maharashtra Employees
of Private Schools (condition of service) Regulation Rules, 1981
and it is necessary to look into the provision of Rule 6 of the
Maharashtra Employees of Private Schools (condition of service)
Regulation Rules 1981, more specifically stated in schedule B.
A copy of Schedule B is annexed herewith as Annexure R-1."
It is not disputed on behalf of the respondents, and rather in
response to our query it is admitted, that Schedule 'B' under the MEPS
Rules, the criteria of obtaining 50% marks at the graduate or
post-graduate level is not specified. It is not the stand taken that
Schedule 'B' appended under the MEPS Rules is either required to be
amended or any steps are being taken to amend the said Schedule
prescribing the qualifications for appointment to the posts of teachers
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to teach Standards IX to XII.
10. The petitioners having undisputedly fulfilled the criteria of
qualifications prescribed under sub-rules (1) and (2) of Rule 6,
reproduced earlier, read with Schedule 'B', could not have been denied
their right to have access to the 'PAVITRA' Portal to apply for the posts
of teachers in question to teach Standards IX to XII in Private Schools.
We, therefore, find that the action of the respondents denying the
petitioners of their right of being considered for the posts of teachers
in Private Schools to teach Standards IX to XII, is contrary to the
provisions of Rule 6(1) and (2) read with Schedule 'B' of the MEPS
Rules.
11. The Government Resolution dated 7-2-2019 read with
Corrigendum dated 25-2-2019 and Schedules 'C' and 'D' therewith
prescribing obtaining of 50% marks at the graduate or post-graduate
level denies the right of the petitioners for being considered for the
posts of teachers in Private Schools to teach Standards IX to XII. The
introduction of such criteria is not by issuing the notification in the
Official Gazette by the Government in exercise of its power conferred
by Section 16(1) of the MEPS Act read with clause (a) of
sub-section (2) therein. The Government Resolutions cannot have the
effect of amending the provisions of the Rules and the
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Schedule prescribed thereunder. In fact, it is also not the stand of the
Government that these statutory provisions stood amended by virtue
of the said Government Resolution and the Corrigendum. Hence, such
criteria cannot be made applicable to the recruitment to the posts of
teachers in Private Schools governed by the MEPS Act and the Rules
framed thereunder.
12. In view of above, this petition is allowed and the following
order is passed :
ORDER
(1) The criteria of possessing 50% marks at the graduate or post-graduate level, introduced in Schedules 'C' and 'D' of the Government Resolution dated 7-2-2019 along with the Corrigendum dated 25-2-2019, is hereby quashed and set aside to the extent it is made applicable to the recruitment of teachers in the Private Schools governed by the MEPS Act and the Rules framed thereunder.
(2) The respondents are directed to permit the petitioners to have access to the 'PAVITRA' Portal for recruitment to the posts of teachers in Private Schools, i.e. Secondary Schools and Higher Secondary Schools (Junior Colleges), to teach Standards IX to XII.
(3) Though the persons are selected for the posts in question to teach Standards IX to XII in Private Schools, the respondents would not be able to proceed further to make their appointments.
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13. Rule is made absolute in above terms. No order as to costs.
(Vinay Joshi, J.) (R.K. Deshpande, J.) Lanjewar ::: Uploaded on - 03/09/2019 ::: Downloaded on - 17/04/2020 22:14:00 :::