Kondiba S/O Dattarao Mirashe vs The State Of Maharashtra, The ...
2002 Latest Caselaw 967 Bom

JUDGMENT

D.G. Karnik, J.

FACTS:

1. The Nanded Municipal Council, which has been converted into Municipal Corporation with effect from 25th March 1997, runs several schools within the city of Nanded. The Divisional Revenue Commissioner and the Regional Director of Municipal Administration, Aurangabad, under which fell the Municipal Council, Nanded, was pleased to accord sanction for creation of 3 posts of Head Masters alongwith certain other posts of Assistant teachers, Peons, Chowkidars, etc. in the primary schools run by the Municipal Council, Nanded, vide letter dated 16th June, 1984. The qualifications required for the post of Head Master of the school as laid down in the said letter was B.A. B.Ed. The petitioner who possessed the required qualification of B.A. B.Ed. was selected and appointed as Head Master of Sangamwadi primary school run by the Respondent No. 4 on 18th June, 1984. The Deputy Director of Education, who is the Respondent No. 2 herein, on 6th February, 1991 granted approval to the appointment of the petitioner, but as an untrained teacher, from the date of his appointment and the petitioner was directed to pass the D.Ed. course within a period of five years. The Education Officer, who is the Respondent No.3 herein, on the basis of the letter of the Deputy Director of Education dated 6th February, 1991, also granted approval to the appointment of the petitioner as an untrained teacher on the condition that the petitioner should complete the D.Ed. course within a period of five years. Relying on the said two communications, the Chief Officer, Municipal Council, Nanded, who is the Respondent No.4 herein, issued a letter dated 27th March, 1991, to the petitioner informing the petitioner that he should pass D.Ed. course within a period of five years and that as the petitioner did not possess the D.Ed. qualification, he would be treated as an untrained teacher and would be entitled to get salary only as an untrained teacher and not as the trained teacher.

2. In this petition, the petitioner has challenged the letter dated 27th March, 1991, issued by the Respondent No. 4 in pursuance of the directions issued by the Respondents No.1 & 2. Shri S.R. Barlinge, the learned Counsel for the petitioner, urged the following points in support of the petition.

(i) The provisions of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short M.E.P.S. Act) and the Rules framed thereunder, namely the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short the M.E.P.S. Rules) are not applicable to the schools run by the Municipal Council and, therefore, the qualifications prescribed under the M.E.P.S. Rules for the appointment of an Assistant teacher or a Head Master do not apply to such schools. Consequently, the Respondents No.2 and 3 had no power to direct the Respondent No.4 to treat the petitioner as an untrained teacher. The Divisional Revenue Commissioner and the Regional Director of Municipal Administration who created and sanctioned the posts of Head Masters in the schools run by the Respondent No.4, only was the competent authority to prescribe the qualifications for the post of the Head Master. As the Commissioner & the Regional Director had prescribed B.A. B.Ed. as the requisite qualification for the post of the Head Master and the petitioner did posses the same, he cannot be treated as an untrained teacher.

 

 (ii) Assuming   without   admitting   that    the
provisions of  the  M.E.P.S.    Act  and the

M.E.P.S. Rules are applicable, the School in which the petitioner was appointed was not the primary school because the petitioner was attached to that part of the school which runs the classes between standards 5th and 7th. Even according to the Government Resolution dated 14.11.1979, in respect of the schools conducting classes between standards 5th and 7th, 75% of the teachers should possess S.S.C. D.Ed.

qualification and 25% of the teachers should be Graduates with B.Ed. qualification. As the petitioner possesses B.A. B.Ed.

qualification, he would fit in those 25% and is not an untrained teacher.

Re First contention :

3. Section 3 of the M.E.P.S. Act lays down that it shall apply to all private schools in the State of Maharashtra, whether receiving any grant-in-aid from the State Government or not. A "private school" as defined in sub-section (20) of Section 2 of the M.E.P.S. Act means a recognised school established or administered by a Management, other than the Government or a local authority. Thus the M.E.P.S. Act is not applicable to the schools run by the local authority, like the Respondent No. 4. The M.E.P.S. Rules, 1981, framed under Section 16 of the M.E.P.S. Act, therefore, do not apply to the schools run by the local authorities like the Respondent No. 4.

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, .

5. Section 2(2) of the Bombay Primary Education Act defines the term "approved School" and it means a primary school maintained by the State Government or by a School board or a Zilla Parishad or by an authorised Municipality or which is for the time being recognised as such by a School board or Zilla Parishad or by the State Government or by an officer authorised by it in this behalf. The term "Municipal School Board" has been defined under Section 2(11) and it means a School board constituted for the area of an authorised Municipality under Section 3. Section 3(2) states that for each area of an authorised Municipality, there shall be a municipal school board. The term "school board" means a Municipal School board within the meaning of Section 2(11) and the term "Primary School" means a school or a part of a school in which primary education up to any standard is imparted as per Section 2(17) of the said Act. The term "Director of Local Authorities" has been defined under Rule 2(c-1) of the Bombay Primary Education Rules, 1949 and it means an officer appointed for the time being by the State Government to be the Director of Local Authorities. As per Rule 2(k) "trained teacher" means a teacher who holds a certificate of training granted by the Education Department of Government or such other certificate as may, from time to time, be recognised by the Government in this behalf.

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.

7. We are then required to consider the status of the classes from 5th to 7th standards, inasmuch as, whether they are called as primary schools or secondary schools. These classes are permitted to be attached either to the primary schools and/or to the Secondary schools. If the existing primary school has classes from 1st to 4th standards, the classes from 5th to 7th standards are granted by way of natural growth and no permission is granted for conducting the school only for the standards between 5th and 7th and as such these classes are required to be attached either to the primary or to the secondary schools. Section 2(7) of the Bombay Primary Education Act defines the term "child" and it means a boy or a girl whose age is not less than six and not more than fourteen years at the beginning of the school year. As per Section 2(8) of the Act, the term "Director" means the Director of Education. It is, thus, obvious that the said Act encompasses the education of the children between the age of 6 and 14 years. A Full Bench of this Court, in the case of Suryakant Sheshrao Panchal Vs. Vasantrao Naik Vimukta Jati, Bhatkya Jamati Adarsh Prasarak Mandal and others, noted that a primary school is normally from 1st to 7th standards. However, a primary school from 1st to 4th standards is called as Level-I and primary school from 5th to 7th standards is called as Level-II. 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.

8. Consequent to the decision of a Full Bench of this Court in the case of Jayashree Sunil Chavan Vs. State of Maharashtra and others, reported in 2000 (3) Mh.L.J. 605, the Government issued the Resolutions dated 25th October 2000 as well as 7th November, 2001, by directing that the trained Graduates appointed for the classes between 5th and 7th standards ought to possess the D.Ed. qualifications instead of B.Ed. degree. In fact, this decision of the Full Bench did not overrule the scheme of the State Government to appoint trained Graduate teachers for the classes between 5th to 7th standards and it only dealt with the qualifications required for a trained teacher in the primary schools. Different Division Benches of this Court had taken a contrary view regarding the eligibility of Graduates with B.Ed. degree for appointment as trained primary teachers. The Full Bench held that for appointment as primary school teacher D.Ed. is a necessary qualification and the teachers holding B.Ed. degree would not qualify for such an appointment. Notwithstanding the said view, the policy of the State Government, as announced vide Government Resolution dated 14.11.1979 and as continued thereafter, was not affected by the Full Bench decision of this Court. The Government Resolution dated 12.11.2001 came to be challenged in Writ Petition No.3564/2002 and the same has been stayed by this Court. We will have, therefore, to hold that the policy of the Government announced vide Government Resolution dated 14.11.1979 continues to apply for the primary school from 1st to 7th standards run by the Municipal Council and thus an Assistant teacher who possesses B.A.B.Ed. qualifications and teaches in the schools imparting education from 5th to 7th standards is a trained teacher and, therefore, is entitled to be appointed as a Head Master. The second contention, as raised by the learned Counsel for the petitioner, is upheld and it is declared that the petitioner was eligible to be appointed as Head Master of the Sangamwadi Primary School run by the Respondent No. 4 and he could not be said to be an unqualified teacher. The communications dated 6th February, 1991 issued by the Respondent No. 2 and dated 8th March 1991 issued by the Respondent No. 3 granting approval to the post of petitioner, but as an untrained teacher were unsustainable. Consequently, the communication and the order dated 27th March 1991, issued by the Respondent to the petitioner, revoking approval of the pay scale as trained graduate teacher, is void ab initio and the same is required to be quashed and set aside.

9. Resultantly, petition is allowed and the Rule is made absolute in terms of prayers clauses (B) and (D), but without costs.