Secretary, Gramodhar Vidya ... vs Ashok S/O Bhauraoji Udan And Anr.
2006 Latest Caselaw 1235 Bom

JUDGMENT

R.C. Chavan, J.

1. Rule. Returnable forthwith. Heard by consent of the parties.

2. By this petition the petitioner management takes exception to order passed by Presiding Officer, School Tribunal, Nagpur allowing respondent No. 1's appeal and directing the petitioner to reinstate respondent as Assistant Teacher with continuity of service and backwages.

3. Respondent No. 1 holds qualification of B. Com, B.P.Ed. He was appointed as Assistant Teacher in the petitioner's school in the year 1994. His services were terminated after an inquiry into misconduct by an order dated 20th June, 2001. This order was challenged by respondent No. 1 by preferring appeal before the School Tribunal which the Tribunal allowed, holding that the petitioner was recognised school and that respondent No. l's appointment was made as per Section 5 of the MEPS Act and Rules framed thereunder, and approved by the Education Officer in pursuance of the MEPS Act and Rules framed thereunder. The Tribunal also held that the termination order dated 20th June, 2001 was not legal and proper. Aggrieved thereby the petitioner management has preferred this petition contending that respondent No. l's appointment itself was not proved to have been made in accordance with the provisions of the Act and Rules and that there was no approval for the appointment of respondent No. 1. Consequently, the School Tribunal did not have jurisdiction to entertain the appeal which the Tribunal ought to have dismissed.

4. I have heard Shri Shelat, learned Counsel for the petitioner and Shri Mohagaonkar, learned Counsel for respondent No. 1 and Shri Parihar, learned A.G.P. for respondent No. 2.

5. The School Tribunal had held that respondent No. 1 was duly qualified to be appointed as a teacher in the petitioner's secondary school as per Rule 6 and Clause II of Schedule B appended to the MEPS Rules. The question of qualification of secondary school teacher has been considered by this Court and it has been held in Shivshakti Shikshan Sanstha v. Nilkanth reported at that the person holding qualification of B. P. Ed. could not be called as a trained teacher. In view of this, it would not be necessary to go into the question as to whether person holding qualification of B. P. Ed. can be held to be a graduate teacher as required under Rules.

6. The Presiding Officer of the School Tribunal had observed that the school was initially started on no grant basis and grants were released from the year 2001. Therefore, at the time of appointment of respondent No. 1, the school was working on no grant basis and hence, there was no question of obtaining approval from the Education Officer to the appointment of respondent No. 1. The Tribunal also held that it was for the management to submit proposal for approval of appointment of respondent No. 1 and the management could not take advantage of the fact that it had not send such a proposal to the Education Officer.

7. Adv. Mohgaonkar, learned Counsel for respondent No. 1 submitted supported this logic employed by the Tribunal. However, the fact would remain that had such a proposal been sent it would have been rejected because respondent No. 1 did not held qualifications prescribed under the Rules. The affidavit in reply filed on behalf of respondent No. 2 Education Officer (Secondary) Zilla Parishad, Nagpur shows that in view of the Education Officer, the respondent No. 1 does not have requisite qualifications for appointment as an Assistant Teacher in the petitioner's secondary school and hence, the appointment of respondent No. 1 could not be approved by respondent No. 2 Education Officer.

8. The learned Counsel for the petitioner submitted that since respondent No. 1 was not qualified to be appointed and since his appointment had not received approval from the Education Officer, respondent No. 1 was not entitled to invoke jurisdiction of the School Tribunal in view of the judgment of this Court in Anna Manikrao Pethe v. School Tribunal, reported at 1997 (3) Mh.L.J. 697, where this Court had ruled that before entertaining appeals it would be necessary for the Tribunal to decide three preliminary issues namely, (a) whether the School was recognised school under the MEPS Act; (b) whether the appointment of the concerned teacher was made as per Section 5 of the MEPS Act and (c) whether the appointment has been approved by the Education Officer in pursuance of the provisions of the Act and Rules made thereunder.

9. In this case, the school is undoubtedly recognised school but since the appointment of respondent No. 1 was not made as per Rule 6 of the MEPS Rules, since respondent No. 1 does not hold requisite qualification, and since the affidavit in reply filed by respondent No. 2 shows that the appointment could not have been approved by respondent No. 2 Education Officer, the conditions requisite for invoking jurisdiction of the School Tribunal were missing and therefore, the School Tribunal should not have entertained the appeal.

10. The learned Counsel for respondent No. 1 submitted that the services of respondent No. 1 had not been terminated on the ground that he did not pass requisite qualification or that his appointment was not approved. He pointed out that services of respondent No. 1 were terminated as a result of an enquiry which was conducted by the management. He submitted that, in this context, the validity of termination of services of respondent No. 1 ought to be judged by examining the procedure followed in the enquiry rather than by reverting to the questions of respondent's qualification or approval to his appointment. He submitted that the respondent's appointment has been made in the year 1997 itself i.e. long before the enquiry was started against him and therefore, wrecking up respondent's qualification or question of approval of his appointment in order to validate result of unjust enquiry would be impermissible. There can be no doubt that what management is seeking to do is to validate termination of respondent No. 1 without causing correctness of findings recorded to be examined by resorting to pleas which had nothing to do with termination of respondent No. 1. All the same, since this Court has already ruled about the parameters which would govern jurisdiction of the School Tribunal in entertaining an appeal as also that the degree of B.P. Ed. held by respondent No. 1 does not qualify him to be a graduate teacher, respondent No. l's case did not qualify for being taken up by the School Tribunal and the order of the School Tribunal has to be set aside as lacking in jurisdiction.

11. In view of this, the impugned order cannot be sustained. The petition is, therefore, allowed and the order passed by the School Tribunal directing respondent No. 1's reinstatement in STA Appeal No. 44/2004, delivered on 30th November, 2004, is set aside in its entirety.

Rule made absolute in the above terms.

No order as to costs.