Bombay High Court
Rohit P.Rathod vs Borivli Eudcation Society & Ors on 10 December, 2018
Bench: S.C. Dharmadhikari, Bharati H. Dangre
16-wp-1065-2001
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1065 OF 2001
Rohit Purshottamdas Rathod ...Petitioner
V/s.
Borivli Education Society & Ors. ...Respondents
----
Mr.Ashok T. Gade for the Petitioner.
Mr.Abhijeet J. Kandarkar a/w Ms.Trupti Puranik for Respondent
No.3.
----
CORAM : S.C. DHARMADHIKARI &
SMT.BHARATI H. DANGRE, JJ.
DATE : 10th DECEMBER 2018 P.C.:
1. By this Writ Petition under Article 226 of the Constitution of India the petitioner is seeking the following reliefs:-
"(a) That a writ of certiorari, writ of mandamus or any other appropriate writ, order or direction be issued calling for the records, and after examining the proprieties and legalities of the illegal appointment of the 4 th respondent as the Headmistress of the Primary School of the first respondent Society (Gujarati medium) be pleased to quash and set aside the said appointment.
(ai) that a Writ or Certiorari or any other Writ, Order or direction be issued, calling for the records and files pertaining to the letter dated 08.03.2001 of the Respondent No.3 be N.S. Kamble page 1 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 pleased to quash and set aside the said letter dated 08.03.2001 and grant all consequential reliefs to the petitioner.
(b) That a Writ of mandamus be issued against respondent Nos.1 to 3, their servants, agents and employees, ordering and directing them to appoint the petitioner as the Head of the said Gujarati Prathamik Shala by virtue of his seniority and clean record of service.
(D1) This Hon'ble Court be pleased to further order and direct the Respondent No.1 to 3 to pay the petitioner differential amount of pay scale of Headmaster from the date of illegal refusal to the petitioner i.e. since 2001 till the date of petitioner's retirement 2009.
(D2) This Ho'ble Court be pleased to further order and direct the respondent No.1 to 3 to pay the petitioner differential scale of Head master's pension, as per revised scale till this date and continue the same in future as per scale of Head master's pension."
2. The facts and circumstances leading to the filing of this petition can be set out here in below:-
The petitioner is an Art Teacher and at the relevant time he was working in the second respondent-School. He claims that he is senior most teacher holding the drawing teacher certificate as also Art master qualification. The petitioner says that the qualification Art master is equivalent to B.A. B.Ed. These are the qualifications which the trained graduate teacher acquires and N.S. Kamble page 2 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 qualifies himself for appointment. The petitioner is also holding a diploma in Commercial Art and claims that he was recognized as a best teacher by the respondent No.3.
3. The petitioner learnt about a vacancy in the post of the Head in the second respondent primary school i.e. the primary school managed by the first respondent-Borivali Education Society. The complaint of the petitioner is that instead of appointing him, the fourth respondent to this Writ Petition has been appointed as Headmistress. She is junior to the petitioner by three years.
4. The petitioner says that the reason for denying the appointment is that a drawing teacher is a special subject teacher. He cannot be appointed as a Head of the school. That is how the recommendation of the fourth respondent was made and at the time of filing the petition the approval to that appointment was not given by the Education Department.
5. The petitioner relies upon a Government Resolution/Circular dated 20.09.1970 to the effect that even a special subject teacher can be appointed as a head of the school. The petitioner complains that a written application was given to the N.S. Kamble page 3 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 Management to consider him, copy of which is Exhibit-B to the petition.
6. Finding no response, the petitioner sent a notice to the Education Officer-Primary of the third respondent-Corporation but to that also there was no response.
7. Hence, this Writ Petition was filed in this Court on 08 th February 2001.
8. When this petition was filed and copy of the unamended petition was served, an affidavit came to be filed by the respondent No.3-Municipal Corporation on 20.03.2001. In that affidavit, it is stated that the fourth respondent was promoted as Headmaster of the second respondent-School as the earlier Headmaster Manjulaben Mandvia was reverted to the post of Assistant Teacher. Thus, this is a promotional post and the promotion could have been granted on the basis of seniority-cum- merit. As far as the petitioner is concerned, he was not considered for promotion as he is a special teacher. He is a special teacher teaching drawing in the primary section of the second respondent- School. As per the policy of the respondents only trained teacher N.S. Kamble page 4 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 having professional qualification S.S.C. D.Ed., B.A. B.Ed etc., is considered for promotion on the basis of the seniority to the post of Headmaster. The petitioner being a drawing teacher having a qualification of S.S.C./D.T.C. which is a diploma and being a special teacher he was not considered. The petitioner may have been appointed on 06.08.1974, but in the absence of this qualification the petitioner's case was rightly not considered for promotion. The fourth respondent being a trained teacher and the senior most Assistant Teacher having joined the respondent No.2-school on 20.06.1977, in terms of the policy, she was promoted as Headmistress. Then, it is claimed that the special teachers have less number of periods than a trained teacher and therefore the case of the petitioner cannot be equated with that of the respondent No.4. There was an affidavit filed by the Management also dated 04.07.2001.
9. On this material, this Writ Petition was posted before a Division Bench on 18.07.2001 and it passed the following order:-
"1. Heard Mr.Shetty, for the petitioner. Mr.Yagnik appears for respondent Nos.1,2 and 4. Ms.Karia for respondent No.3.
2. The petitioner has raised a question with respect to the correctness of appointment of respondent N.S. Kamble page 5 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 No.4 as the Head Mistress of the primary school. He claims to be a trained teacher eligible for this post on the basis of his seniority. As against that, the defence of the respondents is that the Art Teacher, who is also not having full-fledged quota of Lectures, cannot be considered to be equivalent for appointment to this post. The respondents have also raised an issue that the school is a minority institution and, therefore, it has a right to appoint a Head Master of its choice. Matter requires consideration, Hence, rule.
3. Respondent No.4 is already functioning as the Head Mistress from December 2000. That being so, there will not be any interim relief. Hearing of the petition is expedited. It is pointed out by the respondents that the Municipal Corporation has already rejected the claim of the petitioner. That being so, the petitioner will have liberty to amend the petition and challenge the rejection also. The said amendment will be carried out within four weeks from today.
4. Respondents waive service.
5. Certified copy expedited."
10. Pursuant to this order the Writ Petition was amended. It was listed for hearing and final disposal. During its pendency the petitioner filed an additional affidavit stating that he has been awarded with a certificate for his meritorious work by the third respondent. That was a merit certificate as an Art teacher. That N.S. Kamble page 6 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 was awarded on 08.12.1999. Then the petitioner complains about placement in the seniority list and says that if seniority is determined by the length of service then having been appointed on 06.08.1974, he is the senior most teacher. His name should have been shown at serial No.3, but as he is drawing/Art Teacher, the Management depicts his name at Serial No.22. Reliance is placed on the seniority list of the staff for the year 2000-2001. Then, it is complained that the first respondent obtains aid from the third respondent-Municipal Corporation Greater Mumbai. Therefore Grant-in-Aid-Code is applicable for the primary section as per the rules set out in Grant-in-Aid-Code. The petitioner is eligible for the post of Headmaster and fulfilling the criteria set out in the rules and regulations. Despite that the third respondent did not promote him on the ground that he is not eligible. The petitioner claims that his degree is equivalent to B.A. B.Ed. and he relied upon the Director of Art, Maharashtra State letter dated 02.04.1998, copy of which is at Exhibit-E to this additional affidavit filed in this petition on 03.12.2013. Then, he says that there are number of Art teachers who were posted as Headmaster and he relied upon Exhibit-F to the additional affidavit. The petitioner also places reliance upon the Government of Maharashtra Resolution dated 25.11.1988 whereunder all Art Teachers and physical training teachers are N.S. Kamble page 7 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 included for promotion as per seniority. The petitioner has already placed reliance but again re-iterates that as per the resolution of Government of Maharashtra dated 20.09.1970, the special teachers can be considered and should be considered for appointment as Headmaster. Then at Exhibit-I there is a regulation dated 20.03.1978 which is relied upon to urge that such teachers are eligible for promotion as per their seniority and their seniority also has to be fixed accordingly.
11. On a copy of this additional affidavit being served, we heard both sides and passed an order on 03.08.2018 to the following effect :-
"1 The petitioner in this petition says that a letter of 8th March 2001 is contrary to law and that be quashed and set aside.
2 The petition was admitted on 18th July 2001 with the following order being passed :
"1 Heard Mr.Shetty for the petitioner, Mr.Yagnik appears for respondent nos.1, 2 and
4. Ms.Karia for respondent no.3. 2 The petitioner has raised a question with respect to the correctness of appointment of respondent no.4 as the Head Mistress of the primary school. He claims to be a trained N.S. Kamble page 8 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 teacher eligible for this post on the basis of his seniority. As against that, the defence of the respondents is that the Art Techer, who is also not having full-fledged quota of Lecturers, cannot be considered to be equivalent for appointment to this post. The respondents have also raised an issue that the school is a minority institution and, therefore, it has a right to appoint a Head Master of its choice. Matter requires consideration. Hence, Rule. 3 Respondent no.4 is already functioning as the Head Mistress from December 2000. That being so,there will not be any interim relief. Hearing of the petition is expedited. It is pointed out by the respondents that the Municipal Corporation has already rejected the claim of the petitioner. That being so, the petitioner will have liberty to amend the position and challenge that rejection also. The said amendment will be carried out within four weeks from today."
3 On 8th March 2001, the petitioner was informed by the Superintendent, Private Primary Schools, Education Department of the Municipal Corporation of Greater Mumbai that as per rules in force applicable to the staff of the aided private primary schools, the special teachers are not eligible for promotional post. Therefore, the petitioner's application for the post of Head Teacher N.S. Kamble page 9 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 cannot be considered.
4 This writ petition is pending in this Court with the above order being passed for 17 ½ years and more. 5 After a brief hearing and when our attention was invited to several rules by the petitioner's advocate and stated to be derived from a publication known as Municipal Corporation of Greater Mumbai - Primary Education Department, Grant-in-aid Code for Approved Private Primary Schools, Rule 6 is relied upon and there are other details as well.
6 We have an affidavit of the Management who are respondent nos.1 and 2 and in that, it is stated that the petitioner applied for the post on 5th December 2000, but was informed on 7th December 2000 that without a degree of D.Ed, a Special teacher cannot be appointed as a Head Master. It is in these circumstances, so also that the petitioner is not the senior most teacher (Arts Master) and that is a good reason for not appointing or considering him.
7 During the pendency of the writ petition, several affidavits have been placed on record. However, at the last hearing, we suggested to both sides that this is a matter which can be resolved only at the end of Municipal Corporation. It is the Municipal Corporation which has forwarded the impugned communication/letter and it is the Municipal Corporation's rules and regulations which are under scrutiny and consideration. It would be but N.S. Kamble page 10 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 proper if the Municipal Corporation through a high ranking official, goes into these details and brought before us by parties and after hearing the representative of the management as also the petitioner, an order is passed containing reasons. Apart from that, if the Rules are as projected by the petitioner and there is a scope for holding that substantial compliance with them would enable the parties, and particularly the petitioner to obtain the benefit, then, even that aspect should be gone into and duly considered.
8 We are happy to note that the petitioner is ready and willing to appear before the Deputy Municipal Commissioner (Education) and submit an application for his consideration, containing all the details and outlining his stand. Equally, the Management feels that it will be better if the Municipal Corporation resolves it and duly abide by the decision of the Municipal Corporation. 9 In the circumstances, we requested Mr. H.C. Pimple to take instructions and he states, on instructions, that the petitioner should appear before the Deputy Municipal Commissioner (Education) and he will take a decision, but some time be granted for that purpose. 10 On hearing both sides on this limited point, we are of the view that if the petitioner appears before the Deputy Municipal Commissioner (Education) with the representation/ application containing all details and annexing the relevant documents on Friday, 10th August 2018 at 11.00 a.m, let the Deputy Municipal N.S. Kamble page 11 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 Commissioner also take the necessary documents and records from the Management and after hearing both sides, pass a detailed order by 30th September 2018. 11 We post this matter for hearing on 4th October 2018. No further adjournments will be granted.
12. Pursuant to that order the petitioner's case was considered again and by the communication dated 15.10.2018 the Deputy Municipal Commissioner (Education) of the Municipal Corporation of Greater Mumbai intimated the petitioner that the petitioner not being a trained teacher, is not entitled for the post of Headmaster.
13. It is after in this communication/order that we have once again heard the parties at length.
14. We have carefully perused this petition and all the annexures thereto. We have also carefully perused additional affidavits placed on record.
15. The dates and events are admitted. The only issue arising for consideration, therefore, is whether the petitioner has been illegally and wrongfully overlooked while promoting the fourth N.S. Kamble page 12 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 respondent as Headmaster and whether indeed the petitioner was not eligible as determined by the Municipal Corporation of Greater Mumbai.
16. Mr.Ashok Gade appearing on behalf of the petitioner relies upon the above materials to urge that the petitioner was duly qualified. He would submit that the Deputy Municipal Commissioner has not considered the documentary evidence produced by the petitioner. None of the documents, which the petitioner forwards and relies upon have been considered while making a fresh determination. In other words, when the matter was sent back for a fresh consideration, the Municipal Corporation was obliged to pass a reasoned order after hearing the petitioner and uninfluenced by the earlier order or stand of the Municipal Corporation. Mr.Gade submits that this is not, admittedly, done.
17. His second complaint is that the additional affidavit filed in this petition would denote as to how the seniority list is faulty. Secondly, the Municipal Corporation of Greater Mumbai's, Grant-in-Aid Rules for primary education applies to approved Private Primary Schools within the area of operation of the Mumbai Municipal Corporation. Rule-6 of these Rules says that all head N.S. Kamble page 13 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 teachers and deputy head teachers of schools must know the language which is the medium of instruction in the school. Then reliance is placed on Rule- 26(6) of this Code to urge that cases of part-time teachers and special teachers like teachers for drawing, music and craft etc., who are treated on par with other teachers in respect of service conditions etc., shall also be governed by these Rules.
18. Mr.Gade, submits that initially the Municipal Corporation communicated to the petitioner that this is a Gujarati Medium primary school and the petitioner cannot be considered for appointment as it is a minority school. Later on this stand was given up. Therefore, according to Shri.Gade Art Master Certificate Course is a post diploma certificate course. It is recognized as equivalent to post-graduate diploma like B.A.B.Ed./B.Com.B.Ed./ B.Sc.B.Ed. etc and enhances the qualification of diploma holder drawing teachers. The Government of Maharashtra through the Director of Art has notified that such drawing teachers can be promoted to higher post and can obtain higher pay-scales. Our attention is also invited by Mr.Gade to several drawing and special teachers appointed as Headmasters. Then he relies upon the Government Resolution dated 25.11.1988 on the subject that the Art teachers have now N.S. Kamble page 14 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 been protected insofar as their service conditions and the Schedule- F to the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1978 and Rules, 1981 applies to such teachers. They would fall in class-(C) of this Schedule. Hence, these teachers were entitled to all the benefits on par with other teachers. Our attention is also invited to the earlier resolution of the Government of Maharashtra dated 20th September 1970 which is in the form a letter to the Director of Education, Maharashtra State, Pune. It says that the Government has recognized the qualifications of special teachers in Sanskrit, Hindi etc., as equivalent to B.A., M.A., so also such special teachers, who have been appointed in Arts, would be on par with the teachers of other subjects. The regulations about special teacher and Headmaster are also relied upon to urge that a drawing and physical training instructor/teachers who posses qualifications in their own subject are recognized and equivalent to B.A. and B.Ed. qualification holder teachers. This, according to Mr.Gade, would enable the petitioner to claim not only seniority but the post of Headmaster. He therefore, submits that the claim has been erroneously rejected. The Court has given ample opportunities to these respondents to correct their errors but having failed to do so, this Court must step in now at least and remove the injustice to the petitioner.
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19. In support of his contentions Mr.Gade relies upon the relevant provision of the Grant-in-Aid-Code. The averments in the Writ Petition and all the statements in the additional affidavits of the petitioner. He also places reliance upon a judgment rendered by this Court and reported in 1998-II-Current Labour Report-265 (Sushila Dixit V/s. Laxmibai Valanju Prathmik Shala & Ors.)
20. The Writ Petition is contested by the Municipal Corporation. The Municipal Corporation has throughout maintained its stand that the petitioner is not qualified and cannot be considered for promotion. Mr.Kandarkar, appearing on behalf of the Municipal Corporation invited our attention to the Government Resolution dated 26.02.1981 and the letter dated 15.03.1988, both of which have been referred in the impugned order of the Municipal Corporation and passed pursuant to our directions. Mr.Kandarkar would submit that a teacher like the petitioner would not have, in the teeth of these documents, been held to be eligible for promotion to the post of Headmaster. He has, therefore, rightly been overlooked. Mr.Kandarkar, has relied upon a judgment of the Division Bench of this Court, copy of which has been already forwarded and placed on record. That judgment is rendered in the case of the Jalgaon Zilla Kala Adhyapak Sangh V/s. The State of N.S. Kamble page 16 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 Maharashtra and Others reported in 1997 (1) MLJ 517.
21. For properly considering the rival contentions, we must first make a reference to the position of the petitioner. Admittedly, the petitioner was appointed as an Art teacher on 06.08.1974 in the second respondent-School. That is an aided primary school. The petitioner claims to be qualified as an Art teacher. He has a drawing teacher certificate and also the qualification of Art Master. He claims that to be equivalent to B.A., B.Ed. Thus, the petitioner concedes that it is only a trained graduate teacher who can be considered for promotion to the post of a Headmaster. That it is a promotional post, is also conceded. Once the petitioner says that he is a special teacher holding equivalent qualification, then, we must carefully scrutinize his claim in the light of the documents placed on record. The Writ Petition as also the Additional Affidavits seek to heavily rely upon the communication dated 20.09.1970 from the Government of Maharashtra to the Director of Education. This is on the subject of consideration of the special teachers to the post of Headmaster/Assistant Headmaster, Supervisor. This makes a reference to a letter of 26.06.1970 on the above subject. Then it clarifies that the order issued vide that Government letter should also be made applicable for appointment of Supervisors in Non-
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Government Secondary Schools. Then this communication reads
thus :-
"So far as other special teachers in Sanskrit, Hindi etc, possessing special qualifications in Sanskrot, Hindi etc, are concerned, Government has recognised equivalent to B.A./M.S. etc. So also special qualifications in teacher training in specialised subjects have been equated by the Government with B.T./B.Ed. etc. In view of this, a Special Teacher in Sanskrit, Hindi etc. who holds special qualifications which have been specifically declared by Government as equivalent to B.A./M.A./B.Ed./B.Ed. Post of Head Master/Assistant Recd Master/Supervisor in a recognised non-Govt. Secondary Schools provided he fulfills the other conditions regarding the touching experience as laid down in Rule 61(2) of the S.S. Code.
You are therefore, requested to bring the above and the orders issued vide Government Letter of even number dated the 26.08.1970 to the of all Heads of non- Government Secondary Schools immediately."
22. A bare reading of this portion of this circular/order would reveal that special teachers in Sanskrit, Hindi possessing special qualification in Sanskrit and Hindi etc., can claim parity with teachers training specialized subject and their qualifications are treated with B.A., B.Ed. etc. A special teacher in Hindi, Sanskrit etc., who holds special qualification, which has been specifically N.S. Kamble page 18 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 declared by the Government equivalent to BA/MA/B.Ed. qualifications can be considered for the post of Headmaster/Assistant Headmaster/Supervisor in the recognized Non-Government Secondary School, provided he or she fulfills the other conditions regarding the teaching experience as laid down in Rule 61(2) of the Shikshan Sevak Code. Thus, this letter/communication applies to the secondary schools. In any event, if equates teachers in Hindi, Sanskrit etc., with other teachers and the words employed therein make no reference to Drawing or Arts teachers. The petitioner may very well rely upon this communication and also the further clarification of 20.03.1978, but it is evident that these teachers would qualify and for promotion as Headmaster provided they are falling within the ambit of the Government communication dated 26.08.1970 and the clarification of 20.02.1973. The later communication of 1978 is on the subject of fixation of seniority in respective categories. Then there is a amendment to the recruitment rules for the primary teachers' post.
23. However, the petitioner himself has made reference to the Grant-in-Aid-Code. The Grant-in-Aid-Code for approved private primary schools in Greater Mumbai is framed under Section 62-C(3) of the Bombay Municipal Corporation Act by the Bombay Municipal N.S. Kamble page 19 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 Corporation and sanctioned by the Government of Maharashtra, Education and Social Welfare Department on 05.08.1963. This Grant-in-Aid-Code for primary teachers in Greater Bombay also makes a reference to the amendments brought in on 11.03.1965 and duly sanctioned by the Government in October/November 1965. There are further amendments brought in by the resolution of 05.05.1967 which also have been sanctioned by the Government on 14.11.1968. Chapter-I of this Code contains general Rules of recognition. Rule-1 is for recognition of primary Educational Institutions and Rule-2 deals with classification of primary institutions. Rules-3 and 4 set out the requirement of an application for recognition and for recognition itself. Rule-5 refers to conditions of recognition which also permits withdrawal of recognition. It is evident that all Head Teachers and Deputy Head Teachers of schools must know the language which is medium of instruction of the school. This Rule does not carry the petitioner's case any further. There are other Rules and right upto Rule-37 but Chapter-II itself clarifies that it deals with admission and withdrawals from recognized schools. Chapter-III deals with general rules of Grant-in- Aid. We are not concerned with this Chapter. All that we are concerned with are the provisions of this Code heavily relied upon and contained in the appendices. Appendix-VII makes reference to N.S. Kamble page 20 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 Rule-5 (Clause-6) of Chapter-I. It says that the pay-scales and other conditions of service as laid down by the Education Department of the BMC have to be followed and communicated to the teachers concerned unless any different scales are previously approved by the Education Department. Such other conditions have not been relied upon and what is heavily relied upon is Appendix-VII. Rule-6 of this Appendix says that it is desirable to have as many trained teachers as possible in an institution but in any case no institution shall recruit non-matriculate or Non-SSC or Non-THC as teachers for imparting instruction or training in ordinary or special subjects. The teachers trained in the special subject shall be recruited. Then there are other rules pertaining to the age limit, scales of salary and leave etc. There are powers conferred by the Rules of termination and what we have before us and heavily relied upon is Rule-26 which sets out the age of superannuation of the teachers. Thus, for the age of superannuation the special teachers, part-time teachers have been brought on par with other teachers. Their service conditions are also governed by these Rules. The special teachers are specifically referred, namely, drawing, music and crafts etc. Rule-27 sets out the general conditions of service.
24. Mr.Kandarkar, has brought to our notice a Government N.S. Kamble page 21 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 Resolution and which is relied upon in the impugned order, passed pursuant to our direction in the order dated on 15.10.2018. The Deputy Municipal Commissioner has specifically said that the D.Ed. was the qualification required for the post of the primary teacher. However, the petitioner's qualifications are not as per required qualifications for the post of Head for he was not a trained teacher and he was not entitled to the post of the head teacher as per circular dated 15.03.1988. The Government Resolution dated 26.02.1981 says that relaxation will have to be granted and commensurately to the teachers in Zilla Parishad, Nagar Palika/Nagrar Parishad and recognized private primary schools. If such teachers have been appointed after 15.10.1966 but who did not obtain the requisite qualification in terms of the Government Resolution dated 28.06.1977, then, if within 4 years and before 30.06.1981 they have acquired the basic qualifications while clearing the examination namely the SSC examination and thereafter within four years the D.Ed. (Primary) or D.Ed. (Pre- Primary) by incurring their own expenditure, then, they would be liable to be removed from services. However, the Government then considered the practicalities of doing away with the services of such teachers, who have been appointed before 30.06.1972. All such teachers therefore were exempted from passing the examinations N.S. Kamble page 22 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 referred to above and acquiring the qualification. However, they should not be terminated provided they acquire these qualifications before June 1985.
25. The other document relied upon is the communication of 15.03.1988. In that the authority, namely, the Deputy Municipal Commissioner (Education) found that the trained teachers should be given precedence over the untrained teachers in order of seniority. The petitioner not being a trained teacher could not be given parity and particularly while promoting other teachers as Headmaster. The Government Resolution dated 25.11.1988 relates to secondary school and that is not applicable to the petitioner being a teacher rather a special teacher in the primary school.
26. We have carefully scanned each of these documents and particularly the Grant-in-Aid-Code and the Rules therein relied upon. It is evident that the Grant-in-Aid-Code brings a special teacher on par with the other teachers but while considering them for promotional post, it is evident that the teachers must qualify and obtain qualifications laid down for trained teachers. The 25.11.1988 Government Resolution relied upon by Shri.Gade expressly makes a reference to teachers in secondary schools. It is N.S. Kamble page 23 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 such teachers styled as Art teachers but employed in secondary school who have been brought under the protective umbrella of the MEPS Act and MEPS Rules. This does not make any reference to the primary teachers. It may be that the qualifications of such teachers, who are special teachers, are referred therein but the context in which the reference is made cannot be overlooked. The context is to extend protection to special teachers in secondary schools and employed to teach secondary section. The letter of 2 nd April 1998 of the Director of Art, Maharashtra State is addressed to the Headmaster of the High School. The petitioner is confused because a Primary School cannot be equated with a Secondary or High School. Hence, this document also is of no assistance.
27. To our mind, therefore, there is nothing in either Grant- in-Aid-Code or the Government Resolution relied upon by Shri.Gade which would enable the petitioner to claim the promotion to the post of Headmaster.
28. The reliance on Sushila Dixit's case (Supra) is entirely misplaced.
29. The petitioner joined the school (first respondent-
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Management School) as Assistant Teacher. She held a secondary school certificate in a primary teacher certificate ('PTC' for short) though initially the school was not recognized by the Municipal Corporation, it came to be recognized sometime in the year 1979. When the recognition was applied for, inspection was carried out and two teachers including the petitioner who did not possess any diploma or degree in education namely D.Ed. or B.Ed. were singled out and complaint was that D.Ed. at least was the requisite qualification for primary teacher in recognized school. The recognition was refused because two teachers, including the petitioner before this Court were removed and two non-qualified teachers were appointed. That is how the plight of the petitioner was summarized and then this Court found that the resolution of 28.06.1977 was not applicable to primary school recognized by the Bombay Municipal Corporation running within this area. Primary Schools outside Greater Mumbai are run either by Municipal Corporation or by Education Officer attached to Zilla Parishad and the Village Panchayat and for all such institutions the State Government is the authority disbursing the Grant-in-Aid to Primary schools and the resolution of 08.06.1977 was intended to apply to them. As far as Municipal Corporation of Greater Mumbai is concerned it made its own Rules applied them and to the primary N.S. Kamble page 25 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 schools. Therefore, the teacher before this Court was held to be qualified to work as teacher of ordinary subjects in the primary school of the first respondent. The Court was of the view that the primary school must employ trained teachers, in no case Non- Matriculate or Non-SSC or Non-THC teacher should be recruited. The prescribed qualification of the petitioner was either SSC or THC. In fact the petitioner possesses both. It is in these circumstances she must be qualified to teach ordinary subject in the primary school.
30. It is in these circumstances that the termination of the petitioner before this Court was wrongful and the Writ petition was allowed.
31. This judgment has no application to the case at hand We are considering the issue of promotion to the post of Headmaster. It is well settled that promotion cannot be claimed as a matter of right. The right guaranteed by the Article 16(1) of the constitution of Indian is merely a right to be considered for promotion. Even for that right to be claimed the eligibility criteria must be fulfilled. In the event the eligibility criteria is lacking, then, overlooking for promotion cannot be a grievance at all.
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32. The cases of such Art teachers and covered by the MEPS Rules have been considered by this Court in the case of Jalgon Zilla Kala Adhyapak Sangh V/s. The State of Maharashtra (Supra) and though it found that there is hardship in respect of the drawing teachers that cannot be removed by a different interpretation and it is for the Government who must amend the rules.
33. Thus, promotion to the post of the Headmaster has to be not only on the basis of seniority but having found that the essential qualifications must also be possessed for placement in the seniority, then, such qualifications being lacking, the petitioner was rightly placed below the fourth respondent. She was admittedly a trained teacher. On his own showing, the petitioner claims to be a trained teacher but that is on the concept of parity. He says that the qualification of Art master is equivalent to B.A. B.Ed. and trained graduate teachers. Once the petitioner has not been able to establish this aspect and prove his case of equal status in that behalf, then, we cannot accede to the contentions of Mr.Gade and hold that the petitioner was wrongfully denied the promotion. The petitioner, being a special teacher, was treated as such and was brought on par with trained teachers for a limited purpose. However, in matters of promotion complete parity, as claimed, has not been granted. In N.S. Kamble page 27 of 28 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 26/12/2018 23:02:17 ::: 16-wp-1065-2001 such circumstances, we cannot hold that the petitioner has been overlooked for the promotional post illegally.
34. As a result of the above discussion, we find no merit in this Writ Petition. It is dismissed. Rule is discharged. There shall be no order as to costs.
(SMT.BHARATI H. DANGRE, J.) (S.C. DHARMADHIKARI,J.)
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