Bombay High Court
Swami Vivekanand Shikshan ... vs Presiding Officer, School ... on 27 October, 2015
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.7259 of 2014
With
Writ Petition No.4766 of 2015
Writ Petition No.7259 of 2014
1. Swami Vivekanand Shikshan Sanstha,
Itkheda, through its Secretary,
Shri Narayan Bhau Ghatbandhe,
At Post Kesori Kaneri,
Tq. Arjuni Morgaon,
District Gondia.
2. Head Master, Late Pandhari Bapu
Ghatbandhe High School,
Dinkar Nagar, Post Tukum Narayan,
Tq. Arjuni Mor, District Gondia. ... Petitioners
Versus
1. Presiding Officer,
School Tribunal,
2nd Floor, Administrative Building No.1,
Civil Lines, Nagpur.
2. Shri Narayan s/o Wasudeo Meshram,
Aged about 44 years,
Occupation - Service,
At Post Pratapgad,
Tah. Arjuni Mor,
District Gondia.
3. Education Officer (Secondary),
Zilla Parishad, Gondia. ... Respondents
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Shri V.A. Dhabe, Advocte for Petitioners.
Ms P.D. Rane, Assistant Government Pleader for Respondent Nos.1
and 3.
Shri P.N. Shende, Advocate for Respondent No.2.
With
Writ Petition No.4766 of 2015
Shri Narayan Wasudeo Meshram,
Aged about 44 years,
Occupation - Nil,
R/o At Post- Pratapgad,
Tah. Arjuni Mor,
Dist. Gondia. ... Petitioner
Versus
1. Swamy Vivekanand Shikshan Sanstha,
Itkheda, through its Secretary,
Shri Narayan Bhau Ghatbandhe,
R/o Kesori Kaneri,
Tah. Arjuni Mor, Dist. Gondia.
2. Late Pandhari Bapu Ghatbandhe
High School,
Dinkar Nagar, Post - Tukum Narayan,
Tah. Arjuni Mor, Dist. Gondia,
through its Headmaster.
3. The Education Officer (Sec.),
Zilla Parishad, Gondia. ... Respondents
Shri P.N. Shende, Advocate for Petitioner.
Shri V.A. Dhabe, Advocate for Respondent Nos.1 and 2.
Ms P.D. Rane, Assistant Government Pleader for Respondent No.3.
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Coram : R.K. Deshpande, J.
Dated : 27 October, 2015
th
Oral Judgment :
1. Rule, made returnable forthwith. Heard finally by consent of
the learned counsels appearing for the parties.
2.
The School Tribunal, Nagpur, by its judgment and order
dated 19-11-2014, has allowed Appeal No.STC-02/2006 filed under
Section 9 of the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977 challenging the oral
termination of the respondent No.2-Narayan Wasudeo Meshram
("the employee") from the post of Assistant Teacher with effect from
26-10-2005. The termination has been set aside and the Management
is directed to reinstate the employee on the same post with continuity
in service, but without payment of back wages. The Management has
filed Writ Petition No.7259 of 2014 challenging the order setting aside
the termination of the employee and directing his reinstatement with
continuity in service, whereas Writ Petition No.4766 of 2015 has been
preferred by the employee challenging the denial of back wages by the
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School Tribunal. Both these petitions are heard together.
3. There is no dispute that from 21-6-2000 to 26-10-2005, the
employee was continuously in service and he was appointed by issuing
the separate orders of appointment on year-to-year basis. The stand of
the Management before the School Tribunal was that the employee
was not possessing the requisite training qualification of B.Ed. and
hence the temporary appointment on year-to-year basis does not give
him any right of continuation in service. The School Tribunal has
relied upon the Government Resolution dated 14-6-2010 and held that
it is permissible to grant time to the teachers to acquire the training
qualification up to 31-3-2015. The School Tribunal has further held
that in view of the said Government Resolution, the employee needs to
be protected in service, as he was a permanent employee appointed
after following the due procedure of law.
4. Undisputedly, the basic qualification required for the
appointment of Assistant Teacher or Shikshan Sevak is of graduate
degree with training qualification. Undisputedly, B.Ed. is the training
qualification, which was not possessed by the employee till his
termination from service on 26-10-2005. The employee was,
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therefore, not qualified to be appointed on the post of Assistant
Teacher or Shikshan Sevak. His initial appointment or subsequent
appointments on year-to-year basis cannot, therefore, be construed as
an appointment or continuation as a probationer.
5. The Government Resolution dated 14-6-2010 has been issued
in terms of the First Proviso to Rule 6 of the Maharashtra Employees
of Private Schools (Conditions of Service) Rules, 1981, which is
reproduced below :
"6. Qualifications of Teachers.
The minimum qualifications for the posts of teachers and
the non-teaching staff in the primary schools, secondary
schools, Junior Colleges and Junior Colleges of Education shall
be as specified in Schedule "B":
Provided that, the Education Officer may allow
Managements to appoint untrained Science graduate teachers
for teaching Mathematics and Science subjects or untrained
Arts or Commerce graduates for teaching other subjects in
secondary schools in exceptional circumstances, such as non-
availability of trained graduates. Such appointments shall,
however, be allowed on an year to year basis, on the clear
understanding that they shall have to obtain training
qualification at their own cost and further subject to the
condition that their services shall be liable for termination as
soon as trained graduate teachers become available."
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The First Proviso to Rule 6 of the MEPS Rules allows the Managements
to appoint untrained Arts graduates for teaching the subjects in
exceptional circumstances, such as non-availability of trained
graduates. Such appointments have to be made on year-to-year basis
on the clear understanding that they shall have to obtain training
qualification at their own costs and further subject to the condition
that their services shall be liable for termination as soon as trained
graduate teachers become available.
6. The aforesaid Proviso merely enables the Managements with
the permission of the Education Officer to appoint or continue
untrained teachers on year-to-year basis, due to non-availability of
trained graduates. The appointment of the employee in the present
case being that of an untrained teacher on temporary, year-to-year
basis, does not confer upon him any right to claim his appointment on
probation or to claim protection in service in terms of of the First
Proviso to Rule 6 of the MEPS Rules read with the Government
Resolution dated 14-6-2010. Shri Shende for the employee has urged
that in terms of the Proviso to Rule 6, such appointment has to be
continued till the trained graduate teacher becomes available. The
Proviso operates at the discretion of the Management and the
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Education Officer and it makes it mandatory to terminate such
appointment upon availability of a trained graduate teacher. This
does not mean that it mandates the Management to continue
untrained teachers for years together or confers legal right upon an
employee to continue in service till he attains the training
qualification. The School Tribunal has, therefore, committed an error
in setting aside the termination of the employee and directing his
reinstatement with continuity in service.
7. In the result, the following order is passed :
Writ Petition No.7259 of 2014 filed by the Management is
allowed. The judgment and order dated 19-11-2014 passed by the
School Tribunal, Nagpur, in Appeal No.STC-02/2006 is hereby
quashed and set aside. The said appeal is dismissed.
Rule is made absolute accordingly. No order as to costs.
Consequently, Writ Petition No.4766 of 2015 filed by the
employee stands dismissed.
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Rule is discharged. No order as to costs.
JUDGE.
Lanjewar
