Shri Shivaji Education Society vs The Presiding Officer
2011 Latest Caselaw 113 Bom

                                                        

                                       1

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR




                                                                                                      
                                                                           
                            WRIT PETITION NO.  4720/2006




                                                                          
    1.            Shri Shivaji Education Society,
                  Pusad, Washim Road, Pusad,
                  District Yavatmal, through its
                  President.




                                                           
    2.            Shri Shivaji Junior College
                  Chatari, Tahsil Umarkhed,
                  District Yavatmal, through its
                  Princiapl.                                                  PETITIONERS
                                          
                                   ...VERSUS...
             


    1.            The Presiding Officer, School
                  Tribunal, Amravati, District
          



                  Amravati.

    2.            The Deputy Director of Vocational
                  Education and Training, Amravati.





    3.             Vishwambhar s/o. Govindrao Garud,
                   aged about 35 years, Occ. - Nil,
                   R/o. Sawana, Tahsil Mahagaon,
                   District Yavatmal.                                          RESPONDENTS





    ------------------------------------------------------------------------------------------------
    Shri A.S.Chandurkar, Advocate,  for petitioners
    Shri J.B.Jaiswal, AGP, for Respondent Nos. 1 and 2
    Shri Bhushan Mohta, Advocate h/f Shri Anand Parchure, Advocate, 
    for Respondent No. 3
    ------------------------------------------------------------------------------------------------

                   CORAM:  R. K. DESHPANDE, J.

th DATE : 25 NOVEMBER, 2011.

ORAL JUDGMENT

1] This petition challenges the judgment and

order dated 17th August, 2006, passed by the School

Tribunal, Amravati, in Appeal No. 74/2000 filed by the

respondent no. 3 - employee, challenging his termination

from service w.e.f. 30.06.1996 from the post of Instructor.

The tribunal has set aside the order of termination and

directed the reinstatement with continuity in service. The

claim for back-wages has been denied. The employer is,

therefore, before this Court in this writ petition.

2] The respondent no. 3 - Vishwambhar

Govindrao Garud was appointed as an Instructor in the

Vocational School run by the petitioner society by order

dated 31.07.1995. The order states that the appointment is

on temporary basis for the session 1995-96 till the end of

session. The Deputy Director, Vocational Education and

Training by his order dated 1.12.1997 granted approval to

the appointment of the respondent no. 3 as full time

Instructor in the pay scale of Rs.1400-2600/-, upon

relaxation of condition regarding obtaining of certificate

and possession of experience. The approval was granted

for the period from 03.08.1995 to 30.04.1996 i.e. for only

one session. The services of the respondent no. 3 were

terminated w.e.f. 30.06.1996. This was the subject matter

of challenge in Appeal No. 74/2000 filed by the respondent

no. 3 under Section 9 of the Maharashtra Employees of

Private Schools (Conditions of Service) Regulation Act,

1977 (hereinafter referred to as MEPS Act for short).

3] The tribunal by its judgment and order dated

17th August, 2006, allowed the appeal, by setting aside the

order of termination and directing reinstatement with

continuity in service, without back-wages. The tribunal

recorded the finding that the respondent no. 3 possesses

the requisite qualification and experience required for

appointment to the post of full time Instructor (Electrical).

The appointment was in a clear and permanent vacancy

and hence the same should have been made on probation

for a period of two years in terms of Section 5(2) of the

MEPS Act. It has been held that the termination was not

on the ground of unsatisfactory work and behavior, nor

for any charges of misconduct and hence, the termination

without any reasons was in contravention of the

provisions of the Act and the Rules framed thereunder.

4] The contention of the learned counsel

appearing for the petitioner Management is that, even

assuming that the appointment of the respondent no. 3

was in a clear and permanent vacancy, still he was not

eligible and qualified for being appointed to the post of

full time Instructor and hence, the appointment was made

purely on temporary basis for a period of one year. Since

the respondent no. 3 was not having the requisite

qualification and experience, the question of treating his

appointment on probation does not arise and the tribunal

has, therefore, committed an error in holding that the

appointment should have been made on probation. In

view of this, the basic question arises for consideration is

whether the respondent no. 3 possesses the essential

qualification and experience for being appointed as a full

time Instructor (Electrical) in the school run by the

petitioner.

5] Item 8 in Part III of Schedule B of MEPS Rules

prescribes the qualification for teachers for teaching

vocational subjects or courses. Undisputedly, the criteria

regarding qualification and experience for appointment of

Instructor (Electrical Maintenance) is governed by Clause

(ii) under Item 8. The same being relevant is reproduced

below;

"8. Qualification for Teachers for teaching Vocational Subjects or Courses

(ii) Instructor (a) Secondary School Certificate (Electrical awarded by the Maharashtra Maintenance). State Board of Secondary and

Higher Secondary Education, or its equivalent qualification

recognised by the Government

and

Certificate issued by N.C.T.V.T. (I.T.I.) in the trade of Electrician

or

Certificate in the designated trade in Electrician issued by N.C.T.V.T. under National Apprenticeship Scheme;

and

ig Certificate in Instructor's Training from Central Training Institute for Instructors.

(b) Three years' experience either in the teaching line or in the profession or both combined.

6] The tribunal has recorded the finding that the

respondent no. 3 possesses SSC and HSSC certificates,

acquired in the month of March 1991 and March 1994

respectively. It is also the finding recorded that the

respondent no. 3 possesses the certificate issued by

N.C.T.V.T (I.T.I) in the trade of Electrician. It is also the

finding recorded by the tribunal that the respondent no. 3

possesses the certificate in the designated trade in

electrician issued by N.C.T.V.T. under National

Apprenticeship Scheme. Undisputedly, the respondent

no. 3 did not possess the certificate in Instructor's

Training from Central Training Institute for Instructors.

In view of this, the question is whether possession of

certificate in Instructors Training from Central Training

Institute for Instructors was an essential qualification for

appointment as full time Instructor in Electrical

Maintenance.

7] Perusal of the criteria regarding the

qualifications indicate that the first and second

certificates, are required to be issued by N.C.T.V.T.,

whereas the certificate in Instructors Training is required

to be issued by the Central Training Institute for

Instructors. The first two certificates pertain to the

completion of course in the trade of electrician or in the

designated trade in electrician. The third certificate

pertains to Instructors Training to teach the courses

concerned. The requirement of third certificate from

Central Training Institute is separate and different from

the earlier two certificates. It is an essential requirement of

training of instructors. In the absence of certificate in

Instructors Training from Central Training Institute for

Instructors would not make the respondent no. 3 qualified

to teach as full time Instructor in Electrical Maintenance

in terms of criteria (a) above. Obtaining of certificate in

Instructors Training would be an essential requirement

and since the respondent no. 3 was not possessing the

same, it cannot be held that he was qualified.

8] So far as the requirement of possessing

experience is concerned, obviously the teaching

experience required is of three years, which is to be

obtained after obtaining the certificate in Instructors

Training and any experience possessed without obtaining

such certificate cannot be termed as an "experience",

contemplated by clause (b) above.

9] In view of above, the tribunal has committed

an error in holding that the respondent no. 3 was

possessing the requisite qualification and experience and

therefore, his appointment should have been made on

probation for a period of two years as contemplated by

Section 5(2) of MEPS Act. The order of appointment was

on purely temporary basis for one session. The approval

was also for a period of one session and at the end of it,

the services of respondent no. 3 were terminated. Hence,

no fault can be found with the termination of the

respondent no. 3 from service.

10] At this stage, Shri Mohta, the learned counsel

appearing for the respondent no. 3 submits that the

tribunal had passed an order of reinstatement of the

respondent no. 3 in service and this Court had refused to

grant any interim relief. The petitioner had approached

the Apex Court challenging the order refusing to grant an

interim relief and the SLP was dismissed by the Apex

Court. He, therefore, submits that the respondent no. 3

has not been reinstated in service in spite of rejection of

interim relief and hence the respondent no. 3 is entitled

to salary for the period from the date of order of

reinstatement passed by the School Tribunal till the date

of dismissal of the petition. However, the petition arises

out of the judgment and order passed by the School

Tribunal, granting reinstatement, the question of issuing

direction to make the payment of salary for this period

does not arise in this petition and the respondent no. 3

would be at liberty to file appropriate proceedings to

recover such salary, if permissible, in accordance with

law.

11] In view of above, the writ petition is allowed.

The judgment and order dated 17th August, 2006, passed

by the learned Presiding Officer, School Tribunal,

Amravati, in Appeal No. 74/2000 is hereby quashed and

set aside. The appeal No. 74/2000 filed by the respondent

no. 3 is dismissed with no order as to costs.

JUDGE

Rvjalit