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4. We are, therefore, required to consider the authority for prescribing the educational qualifications required for appointment as an Assistant teacher in a school run by the local authority like Municipal Council/Corporation. It needs to be stated that the primary schools run by the Municipal Corporation are governed under the Bombay Primary Education Act, 1947 and the Bombay Primary Education Rules, 1949. Whereas the Secondary Schools run by such local authorities are governed under the Secondary Schools Code. In the case of Tikaram Vs. Mundikota Shikshan Prasarak Mandal & others, , it has been held that the orders passed by the authorities under the Secondary School Code can be challenged in Writ Petitions under Article 226 of the Constitution though the Code is non statutory in character. It is clear that the Secondary Schools Code is a compilation of executive instructions and orders. In support of our view that the qualifications of teachers, age of retirement, etc. are governed under the Secondary Schools Code, we may safely rely upon the judgment of the Apex Court in the case of M.G. Pandke and others Vs. Municipal Council Hinganghat, District Wardha and others, .

By reading the scheme of Bombay Primary Education Act and the Rules framed thereunder as well as the Secondary Schools Code, it is clear that the teachers appointed in the primary or secondary schools run by a Municipal Council/Corporation must meet the educational requirements as prescribed thereunder and they must hold the qualifications for appointment as a trained teacher prescribed by the Government by invoking the powers under the Bombay Primary Education Act and the Rules framed thereunder or the Secondary Schools Code, as the case may be.

Re Second Contention :

6. Coming to the second contention of the petitioner on the assumption that the provisions of M.E.P.S. Act and Rules are applicable to the Schools in which the petitioner is working as Head Master, we must note that this issue is not required to be considered on account of our clear finding in reply to the first contention that the schools run by the Municipal Council are governed either under the provisions of Bombay Primary Education Act and the Rules framed thereunder or the Secondary Schools Code, as the case may be. In any case, these cases are not governed under the M.E.P.S. Act and the Rules framed thereunder.

Even if the classes of 5th to 7th standards are attached to a Secondary school run by the Municipal Council/Corporation, the section of 5th to 7th standards will have to be called as primary section (Level-II). In the Policy Statement of Education Reconstruction in Maharashtra published in February 1970, the Government had announced its policy decision that a programme for attaching classes of standards from 5th to 7th standards to secondary schools should be undertaken and accordingly vide Government Resolution dated 27th September 1971, the Government directed that a secondary school, which fulfills the conditions laid down therein would be considered for being granted permission to open and attach classes of standards 5th to 7th. One of the conditions was that the school had a trained Graduate Head Master and other adequately qualified staff. It was further directed that the requirements of teaching staff for these classes permitted to be opened from the academic year 1972-73 should be calculated in accordance with the provisions of Rule 73 of the Secondary Schools Code and out of such requirements, only 25% of teachers must be Graduate or trained Graduate i.e. after every 3 under-Graduate trained teachers employed, one may be a Graduate trained teacher. This limit was required to be applied even in case of the secondary schools which were allowed to open the classes of standards 5th to 7th. This concept was further regularised and clearly propounded by the next Government Resolution dated 21st May, 1979 and were made applicable to the schools run by the Municipal Councils vide Government Resolution dated 14th November, 1979. By this Government Resolution dated 14.11.1979, the Government had decided to remove the anomaly and, therefore, prescribed a common policy relating to the facilities and staffing pattern provided to the classes of 5th to 7th standards attached to the secondary schools as well as to the primary schools run by the local self Government. More so, there was a difference in the staffing pattern. In order to bring parity, it was decided that in respect of 5th to 7th standards, teachers should be sanctioned in the ratio of 1.3 per class. It was also resolved that out of every 4 sanctioned teachers, 1st 3 teachers should possess educational qualifications of S.S.C. & D.Ed. and the 4th teacher should be a Graduate with B.Ed./D.Ed. Accordingly, 25% of the posts of teachers for 5th to 7th standards were converted from S.S.C. + D.Ed. to Graduate + B.Ed./D.Ed. and they were given higher pay scale in two stages. It is admitted that the petitioner is employed in Sangamwadi Primary School which has classes from 1st to 7th standards and, therefore, he would be governed by the policy laid down by the State Government vide Government Resolution dated 14.11.1979 and subsequently followed all along in respect of the schools run by the Municipal Councils.