Bombay High Court
Shivshakti Shikshan Sanstha Kotha ... vs Nilkanth Kawaduji Shivankar And Anr. on 1 October, 2004
Equivalent citations: 2005(2)BOMCR105, 2005(3)MHLJ696
Author: B.P Dharmadhikari
Bench: B.P Dharmadhikari
JUDGMENT Dharmadhikari B.P., J.
1. By this petition filed under Article 226 of the Constitution of India, the petitioner-management challenges the judgment dated 2-5-1991 delivered by the School Tribunal, Amravati and Aurangabad Division at Aurangabad in Appeal No. 129 of 1988-A. By this judgment, the School Tribunal has directed the petitioners to reinstate respondent No. 1 by quashing and setting aside the oral termination done on 25-6-1988 or 1-7-1988 and has further directed that respondent No. 1 should be reinstated as Assistant Teacher or as a physical education instructor within 40 days with continuity of service and back wages till he is allowed to resume his duties. In the alternative, the Government has been directed that an equal amount be deducted from the grant due and payable to the petitioner-management and the same be paid to the respondent No. 1-employee.
2. This Court admitted writ petition on 18-6-1991 and granted interim stay of reinstatement only. The back wages were ordered to be deposited within two months and respondent No. 1 was allowed to withdraw the amount on furnishing security.
3. The question involved in this petition is whether candidate holding B.Com., B.P.Ed. qualification is eligible to be appointed as trained Assistant Teacher. The necessary facts in brief are :
The present petitioner No. 1 is a Public Trust and it runs a Secondary School viz. Shivshakti Vidyalaya which is petitioner No. 2. Respondent No. 2 in this petition is the Education Officer of Zilla Parishad, Yavatmal. Respondent No. 1 employee admittedly possesses B.Com., B.P.Ed, qualification. He was initially appointed as Physical Training Instructor in petitioner No. 2 school for one academic year i.e. 1985-86 with effect from 2-9-1985 to 3-5-1986 in the pay scale of 365-760 which is applicable to trained graduate. On 20-1-1986, the Education Officer granted approval to his appointment for the period from 2-9-1985 till the end of Academic Session 1985-86. The services of respondent No. 1 employee stood terminated by efflux of time at the end of Academic Session 1985-86. Thereafter, the petitioners have issued advertisement on 17-6-1986, 29-6-1986 and 8-8-1986 for various posts including the post of Assistant Teacher and the post, of Physical Training Instructor. Respondent No. 1 applied for the post of Assistant Teacher and on 18-8-1986, after his selection, he was appointed on probation for a period of one year as Assistant Teacher. This appointment was in the pay-scale of 335-680 as untrained teacher. On 18-12-1986, respondent No. 2. Education Officer granted approval only for one year i.e. till the end of Academic Session. His services again stood terminated at the end of that Academic Session. On 14-6-1987, the petitioner again issued advertisement inviting applications for appointment to the post of Assistant Teacher. On 22-6-1987, respondent No. 1 again applied for appointment as a Assistant Teacher. On 28-6-1987, respondent No. 1 was selected and appointed on probation for a period of one year as untrained Assistant Teacher in pay-scale of Rs. 335-680. The Education Officer, however, on 10-11-1987, refused to grant approval to him and remarked that "trained candidate should be appointed". At the end of Academic year 1987-88, the services of respondent No. 1 stood terminated. On 31-8-1988, respondent No. 1 filed appeal before the School Tribunal challenging the oral termination dated 1-7-1988 and 25-6-1988. On 2-5-1991, the School Tribunal has allowed this appeal with above directions. The School Tribunal has found that respondent No. 1 ought to have been appointed as Physical Training Instructor on probation for a period of two years in the year 1985-86 itself and there is no satisfactory explanation given by the petitioner-management as to why he came to be appointed on probation for one year. It further found that subsequent appointment of respondent No. 1 as Assistant Teacher in pay-scale of Rs. 335-680 applicable to untrained graduate on probation for one year is again without any explanation from management. It further found that training qualification (B.P.Ed.) has been included as a prescribed qualification for trained teacher in High School and Junior Colleges of Education in Schedule B of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act and Rules and therefore, respondent No. 1 could not have been treated as untrained graduate teacher. The School Tribunal has also relied upon the Government Resolution dated 14-5-1987 to conclude that qualifications like H.D.Ed., B.P.Ed, are treated as equivalent to B.Ed. In view of these findings, the School Tribunal concluded that respondent No. 1 was appointed against a permanent vacancy and he served for more than two years satisfactorily and therefore, he is qualified in view of the provisions of Section 5 of M.E.P.S. Act. It held that the services of respondent No. 1 could not have been terminated without following the procedure as contemplated under Rules 33, 36 and 37 of M.E.P.S. Rules 1981. It further found that in any case if his services were found unsatisfactory, he was entitled to one months notice as contemplated by Section 5(3) of M.E.P.S. Act. It therefore, held that the termination is illegal.
4. I have heard Shri Bhangde, learned Counsel for the petitioner, Shri Choudhari, learned Counsel for respondent No. 1 and Shri Kankale, A.G.P. for respondent No. 2.
5. Shri Bhangde, learned Counsel for the petitioners contended that the reasoning given by the School Tribunal that B.P.Ed, is equivalent to B.Ed. and therefore respondent No. 1 was entitled to be appointed as Assistant Teacher is contrary to law and cannot be sustained. He points out that there is no dispute about the qualifications of respondent No. 1. He further points out the provisions of Schedule B of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. Schedule B(1I) deals with qualifications for Trained Teacher in Secondary Schools and Junior College of Education. He invites my attention to Clause (v) thereof and points out that B.P.Ed. is recognised as training qualification for graduate teacher by this Clause (v). He points out that by Clause (I) B.Ed. in independently recognised as training qualification for graduate teacher with any other qualification recognised by Government as equivalent thereto. Thereafter he invites the attention of this Court to Schedule "C" of same Rules which deals with scales of pay. Part III of this Schedule deals with pay-scales of Secondary School Teachers Clause (4) of this Part III prescribes pay-scale Rs. 1350-2200 for untrained graduates. Clauses (5) to (10) prescribe pay-scale of 1400-2600 for Trained Graduates. He points out that in this part, there is no reference to Physical Education Teachers or Physical Training Instructor. He points out that Physical Training Instructors are dealt with independently in Part IV of Schedule "C" and Item (c) gives pay-scales of Physical Training Instructor. He points out that Graduate Physical Training Instructor with B.P.Ed. are given pay-scale of Rs. 1400-2600 under Clause (4) of sub-part "C". He contends that these Rules recognise Trained Graduate Assistant Teacher and Trained Graduate Physical Training Instructors independently. He contends that though for pay-scale there is equivalence, persons holding B.Ed. Qualification cannot be treated as trained Assistant Teacher and Assistant Teacher with B.Ed. as training qualification cannot be treated as trained Physical Training Instructor. He further contends that the School Tribunal has committed error by relying upon the Government Resolution dated 14-5-1987. He points out that the perusal of said Government Resolution itself shows that qualification B.Ed. is not recognised. He, therefore, contends that respondent No. 1 was not holding B.Ed. qualification and therefore, could not have been appointed as trained graduate teacher in response to the advertisements issued by management from July, 1986 onwards. He contends that respondent No. 1 was appointed as trained Physical Training Instructor on 31 -8-1985 but later on respondent No. 1 himself decided not to apply for the post of Physical Training Instructor in response to subsequent advertisements and voluntarily applied for the post of Assistant Teacher. He points out that the post of Physical Training Instructor was also advertised by the management and it was open to respondent No. 1 to apply for his selection to the post of Physical Training Instructor. He points out that the other person was appointed as Physical Training Instructor in response to these advertisements and respondent No. 1 could not have made any grudge when his sendees were terminated as Education Officer did not give approval to him as he was found untrained teacher. He also contends that the School Tribunal has ignored the applications made by respondent No. 1 for his selection as Assistant Teacher and further the School Tribunal ignored the fact that respondent No. 1 himself preferred to have B.Ed. Training and for that purpose the management has also issued an experience certificate to him. According to him, the entire approach of the School Tribunal is erroneous and contrary to settled law.
6. As against this, Shri Choudhari, learned Counsel for respondent No. 1 employee contends that initially when the petitioners appointed respondent No. 1 as Physical Training Instructor, it was a permanent vacancy and there-fore, respondent No. 1 ought to have been appointed as Physical Training Instructor on probation for a period of two years. He points out that the order of appointment dated 31-8-1985 appointing him as trained graduate Physical Training Instructor is for the period from 2-9-1985 onwards and for a period of one year. He contends that this order ought to have been for probation period of two years. He further points out that before expiry of said period of one year, the petitioners issued another appointment order to respondent No. 1 and appointed him as Assistant Teacher on probation for a period of one year and thereafter the next appointment order came to be issued whereby respondent No. 1 was appointed on probation for a period of one year with effect from 24-6-1987. He contends that thus there was never any gap in his service and he has worked continuously. He points out that thus from 2-9-1985 till the end of Academic Year 1987-88, in June 1988, he was practically worked continuously for a period of about three years. He points out that in view of the provisions of Section 5 of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, the petitioners were bound to fill in the vacancy by appointing him permanently on probation for a period of two years and after completion of that period respondent No. 1 due to have been confirmed. He contends that in view of this mandatory requirement by statute, the School Tribunal is right in finding that respondent No. 1 is deemed to have been confirmed and his service has not been terminated as required by provisions of Rules in this respect. He, therefore, contends that the relief granted by the School Tribunal to respondent No. 1 is just and proper and does not call for any interference in writ jurisdiction under Article 226 of Constitution of India. He states that in any case in 1981, the post of Physical Training Instructor was clear vacant post and respondent No. 1 was eligible for being appointed on probation for a period of two years against that post. He contends that in view of requirement of this statute, his appointment for a period of two years on probation, and after completion thereof, it must be presumed that he has become permanent.
7. To meet the arguments about equivalence of training qualification of B.P.Ed. with training qualification of B.Ed. Shri Choudhari has pointed out that he is holding B.P.Ed. qualification from Amravati University. He has relied upon the unreported judgment of learned Single Judge of this Court in (Writ Petition No. 439 of l999), delivered on 23-2-2000 in support of his proposition. He has further relied upon the judgment in the case of Anna Manikrao Pethe v. Presiding Officer, School Tribunal, , where according to him, the Division Bench has in para 8 found that a graduate with degree in physical education from Amravati University is eligible to be treated as a trained graduate for appointment as Assistant Teacher in secondary schools. He argues that this finding is recorded by the Division Bench of this Court and hence it is binding on this Court. He also relies upon paras 3 and 4 of Government Resolution dated 14-5-1987 in support of his contention. He further relies upon the judgment reported in Harlal Harchan Pradeshi v. State of Maharashtra, reported at to contend that the training qualification whether B.P.Ed, or B.Ed. is not material and the entire thrust of the Rules and the Schedule is upon the subjects taken by a teacher at his graduate level. He contends that taking any other view of the matter would permit the petitioner management to take advantage of its wrong. He points out that by continuing respondent No. 1 as Physical Training Instructor, he could have been declared surplus and could have been accommodated elsewhere. He contends that by acts of management, irreparable loss and injury will be caused to him if the arguments of petitioners are accepted. He states that it was not within his power to obtain appointment as Assistant Teacher and he further contends that the Education Officer also granted him approval for one year on first occasion as Assistant Teacher.
8. In reply Shri Bhangde, learned Counsel for the petitioners contends that there is some error in observations made by the Division Bench in para 8 of the judgment reported at . He contends that Government Resolution dated 14-5-1987 is not brought to the notice of the learned Division Bench. He relies upon the judgment of learned Single Judge dated 5-6-2002 in (Writ Petition No. 979 of 2001), to contend that the B.Ed. teachers cannot be appointed as Assistant Teacher in Secondary Schools. At this stage, Shri Choudhari learned Counsel appearing for respondent No. 1 points out that the relevant entry in para 8 of judgment reported at , states that appointment of respondent No. 1 was on 18-8-1996 which is prior to the Government Resolution dated 14-5-1987. He states that his subsequent appointment is dated 26-6-1987 i.e. after this Government Resolution. He, therefore, states that his services should have been protected as contemplated in the Government Resolution.
9. The perusal of judgment reported at , clearly shows that there the Division Bench was considering the question whether a person holding B.A., B.Ed. qualification could be called as Trained Graduate teacher. Para 8 of this ruling reads as under :
"Coming to the challenge to the impugned orders on the two grounds as mentioned hereinabove, (in support of second challenge regarding the petitioner being a trained teacher), the petitioner has relied upon the Government Resolution dated 6-6-1983 issued by the Government of Maharashtra wherein it has been stipulated that the one year course of physical education conducted by the H.V.P. Mandal's Degree College of Physical Education at Amravati affiliated to the Nagpur University has been approved to be a qualification for trained graduate teachers. In addition, the petitioner has relied upon Clause 2(1)(ii) of Schedule B to the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as M.E.P.S. Rules, for short). As per the said provisions, it is noticed that even a graduate with degree in physical education from Amravati University is eligible to be treated as a trained graduate for appointment as Assistant Teacher in Secondary Schools and Junior Colleges of Education. It is, therefore, held that the petitioner was qualified for being considered as a trained graduate for appointment as teacher for the first time in April/ May, 1990 that is, on his acquiring the bachelor of Education Degree. However, this alone does not come to the help of the petitioner for allowing the present petition."
10. The Division Bench has found that the qualification for physical education conducted by H.V.P. Mandal's Degree College of Physical Education of Amravati affiliated to the Nagpur University has been approved to be a qualification for trained graduate teachers. The Division Bench further held that even a graduate with degree in physical education from Amravati University is eligible to be treated as trained graduate for appointment as Assistant Teacher in Secondary Schools and Junior Colleges of Education. The Division Bench has, therefore, held that the petitioner before it was qualified for being considered as "trained graduate for appointment as teacher for the first time in April/May, 1990, that is, on his acquiring the bachelor of education degree". From para 2 of this judgment, it appears that the said petitioner passed his Bachelor of Physical Education Degree in summer of 1990 and it is also clear that he do not obtain Bachelor of Education Degree in April/May, 1990. Further, the Government Resolution dated 14-5-1987 has not been considered by the Division Bench. The said Government Resolution dated 14-5-1987 considers the Government Resolution dated 6-6-1983 referred to by the Hon'ble Division Bench in para 8 of this judgment. Perusal of Government Resolution dated 14-5-1987 revels that the Government had from time to time issued orders for appointment to the B.Ed. Trained teachers as Physical Training Instructors in schools and for treating them as trained graduate teachers. It is further mentioned that in these orders, it is stipulated that holders of B.P.Ed. qualification are to be treated similarly as holders of B.Ed. teachers for the purpose of pay scale. It is mentioned that in M.E.P.S. Act, 1977 and Rules, 1981 appropriate provision of these lines have been made. In para 2, the Government states that these orders have been wrongly understood to mean that Government has accepted B.P.Ed. qualification as equivalent to B.Ed. qualification for that purpose and in many schools instead of appointing B.Ed. teachers, B.P.Ed. candidates have been appointed. The Government further points out that therefore, on 24-5-1985, the Government has clarified that B.P.Ed. qualification is prescribed only for Physical Training Instructors and if persons holding B.P.Ed. qualification are appointed on any other post, it is not in accordance with Rules. The Government thereafter points out that in view of this, there were representation before the State Government for treating the B.P.Ed. holder candidates as trained for teaching other subjects also. Therefore, the Government has issued the Government Resolution dated 14-5-1987. In para 1, the Government has pointed out that as recommended by Dr. Joseph Committee, H.D.Ed., B.P.Ed. holders should be appointed as Physical Training Instructor in ratio of one teacher for 250 students and the said Physical Training Instructor should be appointed in existing sanctioned strength of teachers in the school by taking precaution that it will not increase the number of teachers working in the school. In para 2, it is mentioned that such Physical Training Instructor should have 50% work load of physical education and he should be appointed as Physical Training Instructor/Physical Education Teacher only. It is further mentioned that if there is workload in excess of 9 or more hours, another Physical Training Instructor can be appointed and in order to make up the deficit for completing full workload for such Physical Training Instructor, he should be allowed periods of subjects which he had taken at his graduation level or at training level for teaching methods. The Government has in para 3 has clarified that appointments of H.D.Ed., B.P.Ed. holders as general subject teachers made upto 1985-86 should be regularised within the limits of paras 1 and 2 of Government Resolution dated 14-5-1987 (present Government Resolution). Such holder of H.D.Ed. and B.P.Ed. qualifications are to be treated as equivalent to B.Ed. qualification holder for the purpose of seniority and other service conditions. Thus, perusal of this Government Resolution clearly reveals that State Government has not considered the qualification of B.P.Ed. as substitute for qualification of B.Ed. On the contrary, difference between the two has been clearly maintained by the State Government.
11. At this juncture, Shri Kankale, learned Assistant Government Pleader points out that respondent No. 2 has filed its return in the present petition and in para 3 thereof, the Education Officer has pointed out that a candidate holding B.P.Ed. qualification is eligible for the post of Physical Training Instructor and not for the post of Assistant Teacher. It will thus be seen that in para 8 of the judgment of the Division Bench mentioned above, this aspect of the matter has not been considered.
12. As pointed out by the learned Counsel for the parties, there seems to be some inadvertent error in mentioning of relevant clause of Schedule B in this para 8 of judgment of Division Bench. It is mentioned as "Clause 2(1)(ii) of Schedule B". If Schedule B is viewed in this light, it will be seen that relevant entry is (ii) which deals with qualification for trained teachers in Secondary Schools and Junior Colleges of Education. Further, the relevant sub-entry of this Schedule is (i) which deals with graduate teachers. The Entry (ii) which is mentioned in para 8 of the above judgment deals with teaching diploma of any statutory university acquired before 1-10-1970. The said Entry (ii) is, therefore, not relevant and it appears that said entry should have been Entry No. (v) which deals with qualification of B.P.Ed. of Nagpur University. When this entry of Schedule B-2(i)(v) is looked into, it becomes clear that in Part II of Schedule B, B.Ed. Training qualification has been separately mentioned and all qualifications in physical education are mentioned separately mentioned and all qualifications in Physical Education are mentioned separately under a separate entry. This distinction is also maintained in Schedule C which prescribes pay scales. Part III deals with pay scales of secondary school teachers and Entry No. 1 to 10 deals with the teachers who are specialised to teach various subjects (in subject of physical training). The Physical Training Instructors are maintained in para IV which deals with pay scale of special teachers in Secondary School and Junior Colleges of education. The B.P.Ed. qualification holders are mentioned in Part IV(c)(4). In view of the above mentioned Government Resolution dated 14-5-1987 or earlier Resolutions in this respect, Physical Training Instructors having graduation and training qualification of B.P.Ed. have been given same pay scale as that of trained B.Ed. teachers. However, this separate treatment clearly shows that a teacher with qualifications prescribed for Physical Training Instructor cannot be a substitute for a training graduate teacher holding qualifications as mentioned in Part III, Entry 8, 9 or 10. It is thus clear that as clarified by the State Government in its Resolution dated 14-5-1987, there is a provision already made in M.E.P.S. Rules, 1981 and B.P.Ed. and B.Ed. holders are treated separately.
13. Shri Bhangde, learned Counsel for the petitioners has placed reliance upon the order dated 5-2-2002 passed by the learned Single Judge in Writ Petition No. 979 of 2001 wherein in para 7, the learned Single Judge has observed that the petitioner was having a qualification of B.P.Ed. only and, therefore, undoubtedly, was not qualified to be appointed as Assistant Teacher. However, there is no further discussion in this respect in the said order.
14. As against this, Shri Choudhari, learned Counsel for respondent No. 1 relies upon certain similar observations in Writ Petition No. 439 of 1999 by the learned Single Judge. In the said order dated 23-2-2000, the learned Single Judge observed that H.D.Ed. qualification is brought at par with B.Ed. in the year 1969 by the Government Resolution and therefore, the School Tribunal, was right in giving category "C" to respondent No. 5 in the year 1974. The learned Single Judge was only concerned in relation to categorisation of Physical Training Instructor holding H.D.Ed. qualification and the teachers holding B.Ed. qualification. As already pointed out above, even Government Resolution dated 14-5-1987 recognises that for the purpose of seniority and other service conditions, H.D.Ed. is equivalent to B.Ed. But that does not mean that H.D.Ed. or B.P.Ed. is equal to B.Ed. for the purposes of recruitment.
15. Insofar as the judgment in the case of Harlal Harchan Pradeshi v. State of Maharashtra, reported at is concerned, Advocate Shri Choudhari, appearing for respondent No. 1 has relied upon this judgment to contend that the subjects taken while acquiring training qualification either of B.Ed. or B.P.Ed. are not relevant while considering the workload to be assigned to the trained teacher. He has taken the Court through various para Nos. 8, 9, 10 and 14 for that purposes. The relevant portion of this judgment is reproduced below :
"7..........The teachers who have done their basic graduation degree and subsequently obtained a degree or diploma in education to meet the qualifications as trained teachers in secondary schools must have fluency in the subjects being taught at the secondary school level. The contents of the course for the B.Ed. Degree Examination clearly indicate that the whole emphasis is to equip the graduate teachers with educational psychology, school organisation and structure, educational and statistics as well as methodology in education. To achieve the fluency in the subjects which are taught at the secondary school levels, it is necessary to examine the concerned teachers qualifications at the basic degree level irrespective of the subjects he/she has studied in the B.Ed. degree course. As per Rule 17.1 and Annexure 63 in the Secondary School Code it is stipulated that while appointing Assistant Teachers from amongst the trained graduates it is necessary to ensure that the subjects they had taken for their basic degree course are in keeping with the subjects taught in such classes.
8...........The term "trained teacher" and "trained graduate" have been separately defined under the M.E.P.S. Rules. Trained graduate means a person possessing the qualifications mentioned in Sub-Section s (i) to (v) of Clause I of Item II in Schedule B, whereas trained teacher means a teacher who has secured a professional certificates a diploma or a degree recognised by the department which qualifies him for a teaching post in a school. We are concerned with "trained graduate teachers" possessing the qualifications mentioned in Item II Clauses l(i) to (v) of Schedule B. The thrust in the scheme of the Rules while prescribing the educational qualifications is on the qualifications to be achieved by the teachers at the graduation levels and thus graduates become trained graduates by obtaining a degree or diploma in education. The B.Ed. course includes knowledge of the subjects of teaching methods in connection with only two subjects relating to graduation subjects and that too limited to methodology of teaching and not equipping such teacher with the fluency in these two subjects.
10. Though the scheme of the M.E.P.S. Rules postulates and recognises B.Com., B.Ed. as one of the qualifications for appointment to the post of Assistant Teacher in secondary schools the Education Officer or the Deputy Director of education has a statutory duty while granting approval to such appointments. To examine the qualifications at the basic degree level as well as post graduation level and not at the B.Ed. level so as to grant approval to these appointments. If the word load available in a particular school in the subjects which the concerned teacher has studied at the graduation level does not warrant his full term appointment or if there is no workload at all in such subjects, the Education Officer would not be at fault while declining approval to such teachers irrespective of their post degree level qualifications like B.Ed. or B.P.Ed. or even M.Ed. For that matter. Unless there is sufficient work load available in the respective subjects which the teacher has studied up to the graduation level, the authorities concerned would be justified declining approval for his appointment and such in an action, in no way, amounts to changing the provisions of the M.E.P.S. Rules or the Schedules thereunder."
Thus, the Division Bench of this Court after considering the provisions of Schedule B has found that the thrust of the Rules while prescribing educational qualification is upon the subjects of such teacher at his graduation level and graduate becomes Trained Graduate after securing degree or diploma in education. If the Government Resolution dated 14-5-1987 is viewed in this background said insistence upon subjects taken by B.P.Ed. candidate at his graduation level is also apparent. However, it is not in normal situations inasmuch as, this circular mentions that if there is workload in excess of 9 or more hours, another Physical Training Instructor can be appointed and in order to make up the deficit for completing full workload for such Physical Training Instructor, he should be allowed periods of subjects which he had taken at his graduation level or at training level for methodology of teaching. But again this ruling also cannot be interpreted to mean that where under provisions of M.E.P.S. Rules, 1981 Assistant Teacher with B.Ed. training qualification is required, a Physical Training Instructor with B.P.Ed. training qualification can be appointed. Here the Court was not concerned with comparison of B.Ed. candidate with B.P.Ed. candidate. The ruling shows that the substantive appointment has to be either as Assistant Teacher as P.T.I. and only in exceptional cases, subjects of such candidate at his graduation level can be allowed to be taught by him in order to make up the short fall.
16. Relying upon , learned Counsel for respondent No. 1 argues that it is not open to this Court to take any other view of the matter. He relies upon the various judgments in support of his contention. The said judgments are in the case of Dist. Manager, APSRTC v. K. Sivaji, reported at 2001(2) S.C.C. 135. In para 3 of this ruling, the Hon'ble Apex Court has said that a decision of concurrent Bench is binding on a Single Judge Bench and therefore, judicial discipline is either to follow that decision or to refer the matter to larger Bench. Sitting singly, the Single Judge cannot take a different view on the spacious ground that the decision is based on facts. He further relies upon the judgment in the case of Dr. Vijay Laxmi Sadho v. Jagdish, reported at , particularly para 33 thereof. In said ruling again the Hon'ble Apex Court has reiterated the same view and has stated that if a Bench of coordinate jurisdiction disagrees with another Bench of co-ordinate jurisdiction whether on the basis of "different arguments" or otherwise, on a question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. The third ruling on which reliance has been placed by Shri Choudhari, learned Counsel for respondent No. 1 is in the case of Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangha, reported at . He has relied upon para 2 of this ruling which holds that a decision of a Constitution Bench of the Apex Court binds a Bench of two learned Judges of Apex Court and the two Judges Bench is obliged to follow the Constitutional Bench regardless of their doubts about its correctness. Shri Choudhari, therefore, contends that even if this Court finds that there are errors in para 8 of the judgment , still this Court is obliged to follow the law as mentioned therein and it cannot take any other view of the matter.
17. Coming to the other argument of Shri Choudhari about the mandate of Section 5, it is apparent from the facts on record that respondent No. 1 accepted the appointment as Physical Training Instructor on probation for a period of one year from 2-9-1985 and at the time of his termination he was not working as Physical Training Instructor. Respondent No. 1, therefore, did not put in two years service as Physical Training Instructor. On the contrary, he voluntarily sought to apply for the post of Assistant Teacher in response to advertisement published by the management in June, 1986. It is to be noted that even on that occasion, post of Physical Training Instructor was advertised but respondent No. 1 did not apply for the said post and applied for the post of a special teacher. Thereafter, he accepted the appointment as untrained teacher in lower pay scale than that of trained Physical Training Instructor and worked for about one year. Again on second occasion after the advertisement, he applied for the post of Assistant Teacher and accepted similar appointment for a period of one year. As respondent No. 1 was not holding B.Ed. qualification, he could not have been appointed as a trained subject teacher (Assistant Teacher) on probation for a period of two years. On second occasion, i.e. in November, 1987 the Education Officer has specifically refused approval to the appointment of respondent No. 1 by putting a remark that "trained candidate should be appointed". It is admitted position on record that respondent No. 1 had also obtained No Objection Certificate for B.Ed. training on deputation. In such circumstances, it cannot be said that the management has breached mandate of Section 5 by not appointing respondent No. 1 on probation for a period of two years. It is not the case of respondent No. 1 that he was forced to accept the appointment as untrained Assistant Teacher.'
18. Shri Choudhari has placed reliance upon the unreported order dated 9-7-2001 delivered by the Division Bench in Letters Patent Appeal No. 53 of 2001. In this L. P. A. the argument was that respondent No. 2, who was trained teacher (M.A., B.Ed.) ought to have been appointed on probation for a period of two years because of mandate of Section 5(2) of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. The Division Bench has found that it was incumbent and mandatory upon the management to give appointment on probation for a period of two years. However, here respondent No. 1 is not holding training qualification of B.Ed. and, therefore, the above law may not be applicable. Answer to this argument will, therefore, depend upon question whether a Physical Training Instructor holding B.P.Ed. qualification can be appointed as Assistant Teacher and therefore, whether B.P.Ed. training qualification is a substitute for B.Ed. training qualification. For the same reasons, arguments of Shri Choudhari, learned Counsel for the respondent that management gave him wrong signal by appointing him on probation needs to be rejected as the appointment of respondent No. 1 was as untrained teacher and in lower pay scale. It is also a matter of record that he had thereafter made an attempt to obtain B.Ed. qualification by getting himself deputed for that post. Shri Choudhari, learned Counsel has also placed reliance on Government Resolution dated 14-5-1987 to contend that he has been appointed as Assistant Teacher prior to said resolution i.e. on 18-8-1986 and therefore, in terms of said Government Resolution his services are protected. It is to be noted that no such grievance has been made by respondent No. 1 before the School Tribunal. Further, as already mentioned above, management did not appoint him as trained teacher i.e. in other words his qualification of B.P.Ed. was not recognised by management as substitute for B.Ed. Hence, in view of the consideration of this point as above, this argument is also misconceived and is liable to be rejected.
19. In the light of the discussion made above, it is clear that the Government Resolution dated 14-5-1987 has not been pointed out to the Division Bench which decided the case . The Division Bench has relied upon earlier Government Resolution dated 6-6-1983. However, in later part, the Division Bench has construed entries contained in Schedule B of M.E.P.S. Rules, 1981 and concluded that even a graduate with degree of physical education from Amravati University is eligible to be treated as trained teacher for appointment as Assistant teacher in Secondary Schools and Junior Colleges of Education. However, question is whether said finding means that a Physical Training Instructor with training qualification in physical education is eligible to compete with candidates having training qualification in education i.e. B.Ed. etc. It is apparent that this question did not arise for consideration before the Division Bench at all. Candidate there did not possess B.Ed. qualification and in April/May, 1990 he acquired training qualification of B.P.Ed. and not B.Ed. Reading of paragraphs 3, 6 and 8 of this judgment together reveal that the Division Bench has there considered the case of B.P.Ed. candidate for permanent appointment to the post of P.T.I. These paragraphs leave no matter of doubt that Division Bench was not dealing with question involved in this petition. The words "Assistant Teacher" and "Bachelor of Education" used by Division Bench are referring to "Physical Training Instructor" and "bachelor of physical education" only. Arguments of Advocate Shri Choudhary, in this respect are liable to be rejected. The School Tribunal committed error in holding that respondent No. 1 should be deemed to have appointed on probation either as Assistant Teacher or as Physical Training Instructor.
20. Thus, from the discussion above, it appears that a candidate having B.Com., B.P.Ed. qualification is not eligible to be appointed as Assistant teacher in substantive capacity for teaching the subjects. The Rules require that such Assistant teacher should possess qualification of graduation with B.Ed, as training qualification. The law as laid down by the Division Bench in does not govern this controversy at all and the above referred rulings of Hon'ble Apex Court are not relevant here.
21. It is thus clear that the impugned judgment of School Tribunal dated 25-4-1991 at Annexure F is unsustainable and misconceived. It is hereby quashed and set aside. Rule is made absolute in above terms. No order as to costs.