Shri Laxman Shankar Kaledhonkar vs The Honorary Secretary, Walwa ...
2004 Latest Caselaw 862 Bom

JUDGMENT

A.P. Shah, J.

1. The petitioner is working as a teacher in the D.Ed. College conducted by the 1st respondent society since 1.6.1976. At the time of his appointment as a teacher in the D.Ed. College, the petitioner possessed the qualification of B.A. B.Ed., then essential for the said post. The petitioner subsequently obtained M.Sc. Degree in the subject of Education Communication from Yeshwantrao Chavan Mukta Vidyapeeth, Nasik which has been recognised by the University Grants Commission Act, 1956. According to the petitioner M.Sc. degree in the subject of Education Communication is equivalent to M.A. M.Ed.

2. The 1st respondent institute runs a Girls High School and two Secondary Schools apart from the D.Ed. College. The Girl School and Secondary Schools are governed by the Maharashtra Employees of Private Schools (Conditions of Service Regulations) Act, 1977 and the Rules framed thereunder which are hereinafter for brevity's sake referred to as the 'MEPS Act' and 'MEPS Rules'. Prior to 1995, a D.Ed, college was also governed by the MEPS Act and MEPS Rules. The definition of school in the MEPS Act inter alia includes a junior college of education. Consequently, a common seniority list was maintained by the institution for the D.Ed. College as well as Secondary Schools and the Girls School.

3. In June 1996, the Principal of the D.Ed. college Shri D.S. Patil stood retired. The petitioner who is the senior most teacher applied to the management for appointing him as the Principal. The 1st respondent society, however, appointed respondent No. 3 as the Principal as he belonged to Scheduled Caste and there was a backlog for the schedule caste. The 3rd respondent does not possess the qualification as prescribed by the National Council. National Council for Teacher Education (NOTE) However, it appears that he was appointed on the basis of the MEPS Rules which were applicable to D.Ed. Colleges prior to coming into force of The National Council for Teacher Education Act, 1993. The petitioner seeks to challenge the appointment of the 3rd respondent mainly on the ground that the post of the Principal of the D.Ed. College is an isolated post and no reservation is permissible on the said post.

4. The National Council for Teacher Education Act, 1993 (for short NCTE Act) was brought into force on 25.12.1995. In 1995 itself the NCTE prescribed norms and standards for the teacher education institutions under the title "Elementary". It is not necessary to deal with the said norms and standards in detail but suffice it to say that as per the norms, the minimum qualification of a Principal of a D.Ed. College is post graduation in Teacher's Education with five years teaching experience as lecturer/teacher/educator. Subsequently the Government of India issued a Notification dated 29.12.1998 prescribing the norms and standards for teacher education institution. The said norms and standards were revised by the Government of India vide Notification dated 3.11.2001 but throughout the minimum educational qualification for the Principal remained the same i.e. post graduate degree in Teacher's Education with five years teaching experience as lecturer/teacher/educator.

5. Mr. Joshi, learned counsel appearing for the petitioner contended that the NCTE Act has received the assent of the President and being a Central statute it will have overriding effect over the MEPS Act and Rules framed thereunder. Mr. Joshi submitted and not without sufficient force, that after the enactment of the NCTE Act, D.Ed. Colleges are governed by the NCTE Act and the Regulations framed by the National Council and it is not permissible for the management to prepare a combined seniority list of the D.Ed. college along with the Secondary Schools and the Girl's School for the purpose of the promotion to the post of the Principal. In any event, according to Mr. Joshi, the post of the Principal in the D.Ed. College is an isolated post and no reservation is permissible to the said post.

6. In order to appreciate the submissions of Mr. Joshi, it will be necessary to refer to the relevant provisions of the NCTE Act. Section 2(c) of the said Act defines "Council" and it means the National Council for Teacher Education established under Sub-section (1) of Section 3. Section 2(e) defines "institution" which means an institution which offers courses or training in teacher education. Section 2(j) defines "Regional Committee" which means a Committee established under Section 20. Section 2(k) defines "regulations" which means regulations made under Section 32. Section 2(1) defines "teacher education" which means programmes of education, research or training of persons for equipping them to teach at pre-primary, primary, secondary and senior secondary stages in schools, and includes non-formal education, part-time education, adult education and correspondence education. Section 3 provides for establishment by the Central Government of a Council called the National Council for Teacher Education and Section 12 provides for the functions of the Council. Section 14 lays down that every institution offering or intending to offer a course of training in teacher education on or after the appointed day may, for grant of recognition under the Act, make an application to the Regional Committee concerned in such form and in such manner as may be determined by regulations. Section 15 contains a provision whereunder any recognised institution intends to start any new course or training in teacher education has to make an application seeking permission therefor to the Regional Committee concerned. Section 16 lays down that notwithstanding anything contained in any other law for the time being in force, no examining body shall, on or after the appointed day, grant affiliation whether provisional or otherwise to any institution or hold examination, whether provisional or otherwise, for a course or training conducted by a recognised institution, unless the institution concerned has obtained recognition from the Regional Committee concerned, under Section 14 or permission for a course or training under Section 15. Section 17 gives power to the Regional Committee to withdraw the recognition of such institution if such institution contravenes any of the provisions of the Act, or the rules or regulations or any condition subject to which recognition was granted has been contravened. Section 31 confers power on the Central Government to make regulations to carry out the provisions of the Act and Subsection (2) enumerates the matters in respect of which regulations can be framed. Section 32 empowers the Council to make regulations not inconsistent with the provisions of the Act.

7. Having regard to the Scheme of the NCTE Act, the provisions of the MEPS Act and the Rules framed thereunder which are inconsistent with the provisions of the NCTE Act cannot prevail in view of the Article 254 of the Constitution of India. In so far as the appointment of teachers and the Principal is concerned, the NCTE Act under Section 32(d)(1) empowers the Council to lay down the norms and guidelines for the minimum qualification for a person to be employed as a teacher under Clause (d) of Section 12 of the Act. In pursuance of the said power, the Council having laid down the norms which, inter alia, prescribes different qualification, experience, pay-scale and service conditions, then, what is provided for under the provisions of the MEPS Act, 1977 read with MEPS Rules, 1981, the post in D.Ed. College has to be treated as a separate and independent post and cannot be clubbed with the posts in the Girls School and Secondary Schools which are governed by the said MEPS Act and the Rules made thereunder. The provisions of qualification, experience, pay-scales and service conditions being different for the Principal under both the provisions of law in so far as the D.Ed. College is concerned, by virtue of the power under Section 32(d)(1), the same will override the provisions of the MEPS Act and the rules framed thereunder for other schools. In view thereof, the post of Principal in the D.Ed. College has to be treated as a separate independent post and cannot be clubbed with the post of Principal in other institutions which are governed and ruled by the provisions of the MEPS Act and Rules made thereunder. It is therefore, impermissible to club the seniority list of the two schools and/or educational institutions governed by the two different sets of rules and regulations. In our view, therefore, the post of Principal in D.Ed. College has to be treated as an isolated post and, therefore, there cannot be reservation on that post.

8. It is now well settled by a Constitution Bench decision of the Supreme Court in Post Graduate. Institute of Medical Education and Research. Chandigarh v. Faculty Association and Ors. reported in 1998 (2) Mh. L.J. 353 that there cannot be any reservation in a single post cadre. Until there is a plurality of posts in a cadre the question of reservation will not arise. Where there is a single post in a cadre, it has to be filled in only by open competition amongst all segments of the society. It was contended on behalf of the respondent Nos. 2 and 3 that the appointment of respondent No. 3 is protected under Government Resolution issued by the State Government dated 3.4.2003. We have gone through the said Government Resolution and we find that it was issued with a view to give an opportunity to the teachers appointed in D.Ed. College to acquire the educational qualifications as per the norms laid down by the National Council and it has no bearing on the issue involved in the present petition. The post of Principal in the D.Ed. College being an isolated post the same could not be reserved for backward class in view of the clear pronouncement of the Supreme Court in the case of Post Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association and Ors., (supra). Therefore, the appointment of respondent No. 3 to the post of Principal of respondent No. 4 college is set aside. The management of the College is directed to fill up the said post of Principal in accordance with the regulations framed by the NCTE within a period of 3 months from today. Rule is made absolute accordingly. No order as to costs.

Mr. Ghogare appearing for respondent Nos. 1 and 3 applies for stay of the operation of this order. Application is rejected.

Parties to act on an ordinary copy of this order duly authenticated by the Private Secretary of this Court.